tag:blogger.com,1999:blog-87048996965387058492024-03-19T00:25:04.500-07:00EU Law AnalysisExpert insight into EU law developmentsSteve Peershttp://www.blogger.com/profile/05869161329197244113noreply@blogger.comBlogger827125tag:blogger.com,1999:blog-8704899696538705849.post-24381091164582493572024-03-10T06:45:00.000-07:002024-03-10T06:45:58.925-07:00 Climate case against ING: what does it mean for monetary policy?<p> <br /></p><p><b style="text-align: justify;"><br /></b></p><div class="separator" style="clear: both; text-align: center;"><a href="https://blogger.googleusercontent.com/img/a/AVvXsEj09GOzd1I1JGlN-q7xDPgLie1ZmaFcuJfAPJkg51SUFl9UlnVQh35OpmsiiW6QifWE1kKTaOihjngx-bNe2W-Qox85oK12_av0cGoFyKpQ4Ks-O-VsXzIRaA8Kfa1IoqV8TRrQRGr3SuRldEFlA5WClSt5AcnZ9CbUVxQFV74kRC4iSFxQKVx0aG_ux8Q" style="margin-left: 1em; margin-right: 1em;"><img alt="" data-original-height="3503" data-original-width="2268" height="285" src="https://blogger.googleusercontent.com/img/a/AVvXsEj09GOzd1I1JGlN-q7xDPgLie1ZmaFcuJfAPJkg51SUFl9UlnVQh35OpmsiiW6QifWE1kKTaOihjngx-bNe2W-Qox85oK12_av0cGoFyKpQ4Ks-O-VsXzIRaA8Kfa1IoqV8TRrQRGr3SuRldEFlA5WClSt5AcnZ9CbUVxQFV74kRC4iSFxQKVx0aG_ux8Q=w184-h285" width="184" /></a></div><p></p><p><b style="text-align: justify;"><br /></b></p><p><b style="text-align: justify;"><span lang="NL" style="font-size: 12.0pt; line-height: 107%;"><a href="https://www.tilburguniversity.edu/staff/a-m-mooij">Annelieke Mooij</a></span></b><span lang="NL" style="font-size: 12pt; line-height: 107%; text-align: justify;">, Assistant Professor,
Tilburg University</span></p>
<p class="MsoNormal" style="text-align: justify; text-justify: inter-ideograph;"><b><span lang="NL" style="font-size: 12.0pt; line-height: 107%;">Photo credit</span></b><span lang="NL" style="font-size: 12.0pt; line-height: 107%;">: Sandro Halank, via <a href="https://commons.wikimedia.org/wiki/File:2023-04-15_Eurotower,_Frankfurt_am_Main_by_Sandro_Halank%E2%80%93001.jpg">Wikimedia
Commons</a><o:p></o:p></span></p>
<p class="MsoNormal" style="text-align: justify; text-justify: inter-ideograph;"><span lang="NL" style="font-size: 12.0pt; line-height: 107%;">The Dutch climate
organization “milieudefensie” had threatened to start a <a href="https://www.nu.nl/algemeen/6298300/milieudefensie-klaagt-ing-aan-medeverantwoordelijk-voor-klimaatcrisis.html">case
against the Dutch ING</a> bank. The 14th of February 2024 the <a href="https://nieuws.ing.nl/nl-NL/234713-ing-reageert-op-brief-van-milieudefensie">ING
has responded</a> that it will not give in into the demands of the climate
organization. Hence making it highly likely that the climate policy of the ING
will face legal challenges. Prima facie the case seems without EU relevance as it
concerns a national climate organization suing a national bank. Though the case
may seem to lack European relevance, the opposite is true. The decision by the
Dutch judiciary may have serious European consequences. In particular for the Monetary
Union and may even bypass the independence of the ECB. <o:p></o:p></span></p>
<p class="MsoNormal" style="text-align: justify; text-justify: inter-ideograph;"><b><span lang="NL" style="font-size: 12.0pt; line-height: 107%;">Milieudefensie v. ING<o:p></o:p></span></b></p>
<p class="MsoNormal" style="text-align: justify; text-justify: inter-ideograph;"><span lang="NL" style="font-size: 12.0pt; line-height: 107%;">The climate organization
(plaintiff) <a href="https://en.milieudefensie.nl/news/this-is-our-official-letter-to-ing">asks
the court to order the ING</a> to take four concrete steps. The first is to
align its climate policy with the target of 1.5C as stipulated by the Paris Agreement.
The second demand is that the ING reduces its own emissions by 48%CO2 and 42%
CO2e by 2030. Third that it stops financing large corporate clients who have
adverse climate impacts. The fourth and final demand is that ING engages in
discussion with the plaintiff about how to substantiate these demands. The
demands made by the plaintiff are serious claims. Raising the question of the
likelihood these demands are met by the Dutch court. <o:p></o:p></span></p>
<p class="MsoNormal" style="text-align: justify; text-justify: inter-ideograph;"><span lang="NL" style="font-size: 12.0pt; line-height: 107%;">Whilst the court summons is
not yet finalized it is likely that the plaintiff will refer to two earlier
cases. The first is to an earlier case won against the Dutch state. In the <a href="https://uitspraken.rechtspraak.nl/details?id=ECLI:NL:HR:2019:2007">Urgenda
case</a> the Dutch Supreme Court ruled that the state had to reduce its
emissions in accordance with the Paris Agreement. The Supreme Court did not
state how the state had to comply, simply that it had to comply. The case gave
a strong message to the state that it had the obligation to meet the climate
agreements. Urgenda provided the foundation for the second case.<o:p></o:p></span></p>
<p class="MsoNormal" style="text-align: justify; text-justify: inter-ideograph;"><span lang="NL" style="font-size: 12.0pt; line-height: 107%;">The second case that the
plaintiff will likely reference is that of <a href="https://uitspraken.rechtspraak.nl/details?id=ECLI:NL:RBDHA:2021:5337">Milieudefensie
v. Shell</a>. This case still has an appeal pending. The case concerned the
climate responsibilities of Dutch oil concern Shell. The judiciary decided that
Royal Dutch Shell (RDS) was responsible for the emission reductions of the
global shell activities. In this capacity it had to reduce its global emissions
by 45% by 2030 in comparison to 2019 levels. This was considered <a href="https://www.stibbe.com/nl/publications-and-insights/klimaatzaak-milieudefensie-ea-rechtbank-beveelt-shell-te-zorgen-voor-co2">a
revolutionary case</a> as it is one of the first where the judiciary recognized
climate duties against a legal person. <span style="mso-spacerun: yes;"> </span>The
legal foundation was <a href="https://wilmap.stanford.edu/entries/article-6162-dutch-civil-code">article
6:162 of the Dutch Civil Code</a>, this article is a form of tort law. The
court considered that the emission reduction plans of Shell were not concrete enough.
Shell thereby violated an unwritten duty of care. Prima facie the case against
ING therefore looks strong. There are, however, two obstacles to overcome.<o:p></o:p></span></p>
<p class="MsoNormal" style="text-align: justify; text-justify: inter-ideograph;"><span lang="NL" style="font-size: 12.0pt; line-height: 107%;">The first minor challenge is
that of the impact of ING’s financial products on their clients. In the case
against Shell the court considered that the mother company RDS determined the
policy of the entire group (paraf. 4.4.4). It therefore had the influence to
change the companies’ policies and directions. Arguably a bank can have a similar
steering influence upon the direction of its clients. In particular the ING may
refuse loans intended to buy polluting machines. On the other hand banks can
approve loans for investment in greener operations. Loans can thereby have a
powerful impact upon the direction of a consumer. Operating credit on the other
hand will have a less likely impact on the course of a business. To demand that
all financing is discontinued to corporate clients who do not have a climate
plan provides a broad interpretation to the duty of care of the banking sector.
In particular, as the Dutch judge will have to weigh the right to a clean
environment against the right to operate a business. <o:p></o:p></span></p>
<p class="MsoNormal" style="text-align: justify; text-justify: inter-ideograph;"><span lang="NL" style="font-size: 12.0pt; line-height: 107%;">The second difficulty is that
unlike RDS, ING’s emissions (in)directly result from a varied investment
portfolio. As stated by the <a href="https://nieuws.ing.nl/nl-NL/234713-ing-reageert-op-brief-van-milieudefensie">response
of ING</a> measuring merely the emissions can lead to a negative climate
result. An increased investment in heat pumps, increases the emission portfolio
of ING but can decrease global emissions. The emissions in the Shell case were
the direct result of the company’s own activities. Redirecting its efforts from
fossil fuels to sustainable energy will have a positive impact upon the fight
against climate change. In length of this argument <a href="https://www.ecb.europa.eu/pub/pdf/scpwps/ecb.wp2779~a4eca2101a.en.pdf">Ferrari
and Landi</a> argue with regard to central banks that investments should be
made not by simply investing in the lowest emitters.<span style="mso-spacerun: yes;"> </span>Instead of this so-called “best-in-universe”
approach, banks should invest in companies that do well within their substitute
production group. The so-called best-in-class method of investment. Through
this approach global demand can be shifted to green products. Therefore unlike
the Shell case the court will have to decide between a blanket reduction of
emissions which may have a negative environmental impact, or a best-in-class
approach. The difficulty is that the court will then have to provide
instructions not on what goals to achieve but rather on how to achieve emission
reductions. The methods of achievement has been something the court has
refrained from doing in both Shell and Urgenda. The decision on methodology may
have a large impact on the future European Central Bank’s purchasing
programmes.<o:p></o:p></span></p>
<p class="MsoNormal" style="text-align: justify; text-justify: inter-ideograph;"><span lang="NL" style="font-size: 12.0pt; line-height: 107%;"><o:p> </o:p></span></p>
<p class="MsoNormal" style="text-align: justify; text-justify: inter-ideograph;"><b><span lang="NL" style="font-size: 12.0pt; line-height: 107%;">Impact on the Monetary Union<o:p></o:p></span></b></p>
<p class="MsoNormal" style="text-align: justify; text-justify: inter-ideograph;"><span lang="NL" style="font-size: 12.0pt; line-height: 107%;">The right to (private) life
codified in the European Convention for Human Rights (ECHR) played a
significant role in these cases. Article 52(3) of the EU Charter states that
the ECHR provides a minimum level of protection. The CJEU may therefore award a
higher level of protection but not lower than the ECHR. The interpretation of
the ECHR therefore has a large influence on the fundamental rights protected
within the EU Charter of Fundamental Rights.<o:p></o:p></span></p>
<p class="MsoNormal" style="text-align: justify; text-justify: inter-ideograph;"><span lang="NL" style="font-size: 12.0pt; line-height: 107%;">The judgements of national
judges are not binding for the European Court on the Convention of Human Rights
(ECtHR). However, when there appears to be a consensus among the majority of
members the ECtHR <a href="https://www.coe.int/t/dghl/cooperation/lisbonnetwork/themis/echr/paper2_en.asp">considers
there is common ground</a>. The existence of common ground decreases the margin
of appreciation for the member states. The case of Urgenda directly involved an
appeal to human rights against the state, specifically the right to life
(article 2) and private life (article 8). Similar cases have been successfully tried
in <a href="https://climatecasechart.com/non-us-case/friends-of-the-irish-environment-v-ireland/">Ireland</a>
and <a href="https://climatecasechart.com/non-us-case/commune-de-grande-synthe-v-france/">France</a>.
The ECtHR is yet to rule on the <a href="https://www.echr.coe.int/documents/d/echr/fs_climate_change_eng">climate
change cases that are pending</a>. There however seems a <a href="https://link.springer.com/chapter/10.1007/978-94-6265-507-2_7#Sec19">likelihood
of a positive outcome</a> for the plaintiffs. The CJEU will have to consider
the scope of these cases and can decide on the same or a higher standard of
protection. There is, however, a difference with the case of ING.<o:p></o:p></span></p>
<p class="MsoNormal" style="text-align: justify; text-justify: inter-ideograph;"><span lang="NL" style="font-size: 12.0pt; line-height: 107%;">The cases against the states
directly invoked human rights. In the Shell case the Dutch judge only
indirectly applied the fundamental rights when interpreting the duty of care.
It will likely do the same in the case of ING. This provides a less strong
signal about common ground to the ECtHR that the <a href="https://fra.europa.eu/en/eu-charter/article/37-environmental-protection#:~:text=A%20high%20level%20of%20environmental,the%20principle%20of%20sustainable%20development.">right
to a clean environment</a> includes specific obligations for banks and other
legal persons. It will take more national judges to reach similar judgements to
provide the ECtHR with to conviction that there is common ground. The court in
the Shell case, however, included the in its considerations the UN Guiding
principles. These principles create a large common understanding throughout the
ECHR members. The states obligation to enforce direct obligations for legal
persons through its courts are likely to be accepted by the ECtHR. <span style="mso-spacerun: yes;"> </span><span style="mso-spacerun: yes;"> </span>If so
it cannot be ignored especially by the largest bank in the EU; the European
Central Bank (ECB).<o:p></o:p></span></p>
<p class="MsoNormal" style="text-align: justify; text-justify: inter-ideograph;"><span lang="NL" style="font-size: 12.0pt; line-height: 107%;">The ECB has a tiered mandate.
Its <a href="https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A12016E127">primary
objective is to obtain price stability</a> which has been defined as keeping
inflation under but close to two percent on the medium term. To achieve this
goal the Treaty on the Functioning of the European Union (TFEU) has granted the
<a href="https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A12016E130">ECB
with a high level of independence</a>. This means that neither the EU or
national legislators cannot determine or influence how the ECB executes its
monetary policy. The ECB is therefore likely to argue that it cannot be
influenced as to how it conducts is monetary policy even with regard to climate
change. The ECB, however, is not immune from other primary or secondary
legislation. In the <a href="https://curia.europa.eu/juris/document/document.jsf;jsessionid=A17C4EE681686DB427D8EFBE13963DFE?text=&docid=48494&pageIndex=0&doclang=en&mode=lst&dir=&occ=first&part=1&cid=1679830">Olaf
case</a> the CJEU considered that the ECB falls within the EU legal framework.
Its independence only protects the ECB against political influence when it
conducts monetary policy.<o:p></o:p></span></p>
<p class="MsoNormal" style="text-align: justify; text-justify: inter-ideograph;"><span lang="NL" style="font-size: 12.0pt; line-height: 107%;">In addition to its primary
mandate the ECB has a secondary mandate to abide by. This mandate includes “[…]<a href="https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX%3A12008M003">the
sustainable development of the Earth</a>”. The ECB has to comply with its
secondary mandate if it does not violate its primary mandate. Currently this is
<a href="https://www.ecb.europa.eu/press/tvservices/podcast/html/ecb.pod210512_episode16.en.html">interpreted
by the ECB</a> to mean that when the ECB has a choice in how to achieve its
price stability objectives, the secondary mandate is guiding. The secondary
mandate, however, has various goals. Some of these goals can be achieved
simultaneously but some are <a href="https://www.europarl.europa.eu/cmsdata/207721/OFCE_FINAL2%20online.pdf">independent
or even substitute goals</a>. This makes it currently difficult to pinpoint to
the legal obligations of the ECB from the secondary mandate. When it comes to
climate change, however, the <a href="https://www.youtube.com/watch?v=Z9yzqUDl2DA">ECB considers itself bound
by the Paris Agreement</a>. In addition the <a href="https://www.cambridge.org/core/journals/german-law-journal/article/digital-euro-and-energy-considerations-can-the-ecb-introduce-the-digital-euro-considering-the-potential-energy-requirements/23A3E0D00334B06E557C137CEFA3598D">ECB
has to abide</a> by the <a href="https://www.europarl.europa.eu/charter/pdf/text_en.pdf">EU Charter of
Fundamental Rights</a>. It is however unclear what precise duties these
treaties bring to the ECB when it carries out its private sector funding
programmes. The ECB states that it is trying to <a href="https://www.ecb.europa.eu/pub/pdf/other/ecb.climate_related_financial_disclosures_eurosystem_corporate_sector_holdings_monetary_policy_purposes2023~9eae8df8d9.en.pdf">decarbonize
its corporate sector portfolio’s</a> by using a method called tilting. The
green bonds in the sector are given preference to the brown bonds. The
difficulty is that when green bonds run out the ECB will continue by purchasing
brown bonds if it considers this necessary for its monetary aim. The case of Milieudefensie
v. ING, can provide clear guidance with regard to the ECB’s fundamental right climate
responsibilities in its corporate sector programmes.<span style="mso-spacerun: yes;"> </span>The Dutch court’s reasoning can provide the
balance between a bank’s obligations to climate against the right to operate a
business. This reasoning can be incorporated by the ECB.<o:p></o:p></span></p>
<p class="MsoNormal" style="text-align: justify; text-justify: inter-ideograph;"><span lang="NL" style="font-size: 12.0pt; line-height: 107%;">The ECB <a href="https://deliverypdf.ssrn.com/delivery.php?ID=561029122115113121016097093001077085025024069039034031127020092068082113095083065102017000125011012022037010114121071071114064111037074093092107109078067000113004107039087066024080069077010113007071065103109112081030088106006123064082113092009084099114&EXT=pdf&INDEX=TRUE">makes
choices with regard to how (intense) to pursue price stability</a>. These
choices should be guided by human rights such as climate change and economic
needs. The ING decision can create a guiding framework on how to balance these
different interests. However before such guidelines can be considered binding
more national cases need to be tried, or the ING case would have to reach the
ECtHR. Still quite a road to be travelled.<o:p></o:p></span></p>Steve Peershttp://www.blogger.com/profile/05869161329197244113noreply@blogger.com0tag:blogger.com,1999:blog-8704899696538705849.post-19242409646577416582024-03-08T02:55:00.000-08:002024-03-08T02:55:17.491-08:00The Dillon Judgment, Disapplication of Statutes and Article 2 of the Northern Ireland Protocol/Windsor Framework<p> </p><div class="separator" style="clear: both; text-align: center;"><a href="https://blogger.googleusercontent.com/img/a/AVvXsEijyTdo6hFGvckX4Ul6ozWcx2cc67aBUw14Dpz95BSsQKrTVf-uIFdfWL_jlX6RWCfdHQoFOugrdZ_EEV75h_lgyqdxq8prtiIidqIbNuSCwegpBrQzxwZqA3hYoWeZAvUFcaw0cQTn5EBcrBc9COVjTAxmyb4clJudf8hEC_x4SizSxSWeelB6SO8GMMA" style="margin-left: 1em; margin-right: 1em;"><img alt="" data-original-height="1333" data-original-width="2000" height="285" src="https://blogger.googleusercontent.com/img/a/AVvXsEijyTdo6hFGvckX4Ul6ozWcx2cc67aBUw14Dpz95BSsQKrTVf-uIFdfWL_jlX6RWCfdHQoFOugrdZ_EEV75h_lgyqdxq8prtiIidqIbNuSCwegpBrQzxwZqA3hYoWeZAvUFcaw0cQTn5EBcrBc9COVjTAxmyb4clJudf8hEC_x4SizSxSWeelB6SO8GMMA=w429-h285" width="429" /></a></div><br /><br />
<p class="MsoNormal" style="text-align: justify;"><o:p> </o:p></p>
<p class="MsoNormal" style="text-align: justify;"><b>Anurag Deb</b>, PhD
researcher, Queens University Belfast, and <b>Colin Murray</b>, Professor of
Law, Newcastle Law School<o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;">Photo credit: <a href="https://commons.wikimedia.org/wiki/File:Foyle_Bridge_Derry_at_Dusk_Oblique.jpg">Aaronward</a>, via Wikicommons media</p>
<p class="MsoNormal" style="text-align: justify;">Extensive provisions of an Act of
Parliament have been disapplied by a domestic court in the UK for the first
time since Brexit. That is, in itself, a major development, and one which
illustrates the power of the continuing connections between the UK and EU legal
orders under the Withdrawal Agreement. It is an outcome which took many by
surprise, even though we have argued <a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4626236">at length</a>
that the UK Government has consistently failed to recognise the impact of
Article 2 in rights cases. So here is the story of this provision of the
Withdrawal Agreement, the first round of the <a href="https://www.judiciaryni.uk/judicial-decisions/2024-nikb-11"><i>Dillon</i></a>
case, and why understanding it will matter for many strands of the current
government’s legislative agenda.<o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;">Article 2 of the Windsor
Framework, as the UK Government insists on calling the entirety of what was the
Northern Ireland Protocol (even though the Windsor Framework did nothing to
alter this and many other provisions), is one of the great survivors of this
most controversial element of the Brexit deal. Whereas other parts of the
Brexit arrangements for Northern Ireland have been repeatedly recast, the
wording of this provision has remained remarkably consistent since Theresa May
announced her version of the <a href="https://assets.publishing.service.gov.uk/media/5bec6bf0e5274a082c807619/14_November_Draft_Agreement_on_the_Withdrawal_of_the_United_Kingdom_of_Great_Britain_and_Northern_Ireland_from_the_European_Union.pdf">Brexit
deal in November 2018</a> (although it was Article 4 in that uncompleted
version of the deal).<o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;">The provision was tied up
relatively early in the process. Indeed, it suited the UK Government to be able
to claim that rights in Northern Ireland were being protected as part of the
Withdrawal Agreement, to enable them to avoid claims that Brexit was
undermining the Belfast/Good Friday Agreement of 1998. Although the 1998
Agreement makes limited mention of the EU in general, it devotes an entire
chapter to rights and equality issues, and EU law would play an increasing role
with regard to these issues in the years after 1998. <span style="mso-spacerun: yes;"> </span><o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;">The UK Government made great play
of explaining, in 2020, that its Article 2 obligations reflected its ‘steadfast
commitment to upholding the Belfast (“Good Friday”) Agreement (“the Agreement”)
in all its parts’ (<a href="https://www.gov.uk/government/publications/protocol-on-irelandnorthern-ireland-article-2">para
1</a>). Even as it appeared ready to rip up large portions of the Protocol, in
the summer of 2021, the Article 2 commitments continued to be presented as ‘not
controversial’ (<a href="https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/1008451/CCS207_CCS0721914902-005_Northern_Ireland_Protocol_Web_Accessible__1_.pdf">para
37</a>). It might more accurately have said that these measures were not yet
controversial, for no one had yet sought to use this provision to challenge the
operation of an Act of Parliament. In a powerful example of Brexit “cake-ism”,
the UK Government loudly maintained that Article 2 was sacrosanct only because
it had convinced itself that the domestic courts would not be able to make much
use of it. <o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;">Little over a month ago, the Safeguarding
the Union Command Paper all-but sought to write the rights provision out of the
Windsor Framework (<a href="https://www.gov.uk/government/publications/safeguarding-the-union">para
46</a>):<o:p></o:p></p>
<p class="MsoNormal" style="margin-left: 36.0pt; text-align: justify;">The important
starting point is that the Windsor Framework applies only in respect of the
trade in goods - the vast majority of public policy is entirely untouched by
it. … Article 2 of the Framework does not apply EU law or ECJ jurisdiction, and
only applies in the respect of rights set out in the relevant chapter of the
Belfast (Good Friday) Agreement and a diminution of those rights which arises
as a result of the UK’s withdrawal from the EU.<o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;">Article 2 is a complex and
detailed provision, by which (read alongside Article 13(3)) the UK commits that
the law in Northern Ireland will mirror developments in EU law regarding the
six equality directives listed in Annex 1 of the Protocol and, where other
aspects of EU law protect aspects of the rights and equality arrangements of
the relevant chapter of the 1998 Agreement, that there will be no diminution of
such protections as a result of Brexit. But notwithstanding the complexity of
these multi-speed provisions, by no construction can it be tenable to suggest
that ‘the Windsor Framework applies only in respect of the trade in goods’. <o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;">The <a href="https://www.judiciaryni.uk/judicial-decisions/2024-nikb-11"><i>Dillon</i></a>
judgment marks the point at which the Government’s rhetoric is confronted by
the reality of the UK’s Withdrawal Agreement obligations, and the extent to
which they are incorporated into domestic law by the UK Parliament’s Withdrawal
legislation. The case relates to the controversial <a href="https://www.legislation.gov.uk/ukpga/2023/41/enacted">Northern Ireland
Troubles (Legacy and Reconciliation) Act 2023</a>, heralded by the UK
Government as its vehicle for addressing the legal aftermath of the Northern
Ireland conflict. This Act, in preventing the operation of civil and criminal
justice mechanisms in cases relating to the conflict, providing for an
alternate body for addressing these legacy cases (Independent Commission for
Reconciliation and Information Recovery) and requiring this body to provide for
immunity for those involved in causing harms during the conflict, has provoked
widespread concern within and beyond Northern Ireland. <o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;">The Act has been the subject of
challenges under the Human Rights Act 1998 and an inter-state action against
the UK launched before the European Court of Human Rights by Ireland. In the
interest of brevity, however, this post will explore only the challenges under
the Protocol/Windsor Framework. This is not the first case to invoke Article 2
(see <a href="https://eulawanalysis.blogspot.com/2022/05/rights-and-equality-law-in-northern.html">here</a>
and <a href="https://eulawanalysis.blogspot.com/2023/11/angesoms-application-for-judicial.html">here</a>
for our analysis of earlier litigation to which the UK Government should have
paid more attention), but this remains the most novel element of the
litigation, testing the operation of this element of the Withdrawal Agreement.
It is also offers the most powerful remedy directly available to those
challenging the Act; disapplication of a statute to the extent that it
conflicts with those elements of EU law which this provision preserves.<o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;">These requirements are explained
by the operation of Article 4 of the Withdrawal Agreement, which spells out
that elements of the Withdrawal Agreement and the EU law which continues to be
operative within the UK as a result of that Agreement will continue to be
protected by the same remedies as applicable to breaches of EU law by Member
States. Section 7A of the <a href="https://www.legislation.gov.uk/ukpga/2018/16/contents/enacted">European
Union (Withdrawal Act) 2018</a> reflected this obligation within the UK’s
domestic jurisdictions, as accepted by the UK Supreme Court in the <a href="https://www.supremecourt.uk/cases/docs/uksc-2022-0089-0093-judgment.pdf">Allister</a>
case (see <a href="https://eulawanalysis.blogspot.com/2023/02/maybe-we-like-misery-culmination-of.html">here</a>
for analysis). For Mr Justice Colton, his task could thus be summarised
remarkably easily; ‘any provisions of the 2023 Act which are in breach of the
WF [Windsor Framework] should be disapplied’ (para 527). All he had to do,
therefore, was assess whether there was a breach.<o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;">The rights of victims are a
prominent element of the Rights, Safeguards and Equality of Opportunity chapter
of the 1998 Agreement. These rights were, in part, given protection within
Northern Ireland Law through the operation of the <a href="https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:32012L0029">Victims’
Directive</a> prior to Brexit and, insofar as this EU law is being implemented,
through the operation of the EU Charter of Fundamental Rights with regard to
its terms. The key provision of the Victims’ Directive is the guarantee in
Article 11 that applicants must be able to review a decision not to prosecute,
a right clearly abridged where immunity from prosecution is provided for under
the Legacy Act. The breach of this provision alone was therefore sufficient to
require the application of extensive elements of the Legacy Act (sections 7(3),
8, 12, 19, 20, 21, 22, 39, 41, 42(1)) (<a href="https://www.judiciaryni.uk/judicial-decisions/2024-nikb-11">para 608</a>):
<o:p></o:p></p>
<p class="MsoNormal" style="margin-left: 36.0pt; text-align: justify;">It is correct
that article 11(1) and article 11(2) both permit procedural rules to be
established by national law. However, the substantive entitlement embedded in
article 11 is a matter for implementation only and may not be taken away by
domestic law. The Directive pre-supposes the possibility of a prosecution. Any
removal of this possibility is incompatible with the Directive. <o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;">The UK Government cannot claim to
have been blindsided by this conclusion. They explicitly acknowledged the
specific significance of the Victims’ Directive for the 1998 Agreement commitments
in their 2020 Explainer on Article 2 (<a href="https://www.gov.uk/government/publications/protocol-on-irelandnorthern-ireland-article-2">para
13</a>). Moreover, in the context of queries over the application of Article 2
to immigration legislation, the <a href="https://committees.parliament.uk/publications/9575/documents/162153/default/">UK
Government</a> insisted that in making provisions for victims the 1998
Agreement’s ‘drafters had in mind the victims of violence relating to the
conflict in Northern Ireland’. Exposed by these very assertions, the Government
hoped to browbeat the courts with a vociferous defence of the Legacy Act (going
so far as to threaten consequences against Ireland for having the temerity to
challenge immunity arrangements which raised such obvious rights issues).<o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;">The strange thing about the <i>Dillon</i>
case, therefore, is not that the court disapplied swathes of the Legacy Act. This
outcome is the direct consequence of the special rights protections that the UK
agreed for Northern Ireland as part of the Withdrawal Agreement. The strange
thing is that Mr Justice Colton arrived at this position so readily, in the
face of such a determined efforts by the UK Government to obscure the extent of
the rights obligations to which it had signed up. In the context of the UK’s
full membership of the EEC and its successors, it took many years and many
missteps to get to Judicial Committee of the House of Lords applying the remedy
of disapplication of statutory provisions which were in conflict with EU law
(or Community law, as it then was) in <a href="https://www.bailii.org/uk/cases/UKHL/1990/7.html">Factortame (No. 2)</a>.
The Northern Ireland High Court was not distracted from recognising that these
requirements remain the same within Northern Ireland’s post-Brexit legal
framework when it comes to non-diminution of rights as a result of Brexit. <o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;">Indeed, the Court could not be so
distracted. As we set out above, once Colton J determined that relevant
sections of the Legacy Act had breached the Victims’ Directive, the judge had
no discretion in the matter of disapplying the offending sections. This marks
perhaps one of the strangest revelations to emerge from Brexit. Disapplication of
inconsistent domestic law (of whatever provenance) as a remedy extends across
much of the Withdrawal Agreement, covering any and every aspect of EU law which
the Agreement makes applicable in the UK. This fact – spelled out in the crisp terms
of Article 4 of the Withdrawal Agreement – was nowhere to be found in the 1972
Accession Treaty by which the UK became part of the (then) EEC. This is
unsurprising, considering that the primacy of Community law over domestic law
was then a relatively recent <a href="https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A61964CJ0006">judicial
discovery</a>. In the decades since then, however, the principle of EU law
primacy and the requirement that inconsistent domestic laws be disapplied have
become a firm and irrevocable reality. Small wonder then, that the UK
Government accepted it as a price to pay for leaving Brussels’ orbit without
jeopardising the 1998 Agreement – no matter how it has since spun the notion of
“taking back control”. <o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;">Where the government might have
its own interests in attempting to obscure the clarity of Article 2 and its
attendant consequences, <i>Dillon</i> is by some measure a wake-up call for
Westminster. The <a href="https://committees.parliament.uk/publications/30491/documents/175903/default/">report
of the Joint Committee on Human Rights’</a> scrutiny of the Bill which became
the Legacy Act contained no reference to the Windsor Framework, notwithstanding
consistent work by the statutory Human Rights and Equality Commissions in
Northern Ireland (the NIHRC and ECNI) to highlight the issue. <i>Dillon</i> marks
not only some of the most extensive disapplication of primary legislation ever
enacted by Parliament, but also the first such outcome after Brexit. But <i>Dillon</i>
is only the beginning. It will be followed in the weeks to come by a challenge
to the <a href="https://nihrc.org/news/detail/illegal-migration-act-challenge-factsheet">Illegal
Migration Act 2023</a> by the NIHRC, where there are clear arguments that relevant
EU law has been neglected. The Government, and Westminster in general, have not
woken up to the legal realities of the Brexit deal. <i>Dillon</i> makes clear
that Parliament needs to pay far greater attention to the Windsor Framework;
not as a legal curio that only occasionally escapes its provincial relevance,
but as a powerful source of law which impacts law-making and laws which are
intended to apply on a UK-wide basis. <o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;"><span style="mso-spacerun: yes;"> </span><span style="mso-spacerun: yes;"> </span><o:p></o:p></p>Steve Peershttp://www.blogger.com/profile/05869161329197244113noreply@blogger.com0tag:blogger.com,1999:blog-8704899696538705849.post-46665280985153676942024-02-01T05:35:00.000-08:002024-02-02T11:06:41.464-08:00Saying Nothing much at all, to General Acclaim – The Windsor Framework Relaunch<p> </p><div class="separator" style="clear: both; text-align: center;"><a href="https://blogger.googleusercontent.com/img/a/AVvXsEj4DksA8gPjMh5i79sSJS3jE_8FVAySXnHbkq0quiS_Ry3Y6H4FictCvu7vsIlmnbE9TWX7lzCa1TUPE6umGUqP9m-wCxQe_gw-3bDLoivh-2UzQXnREdzUMEmkMnmN_r-7HBeQ6YPvQStPLK-o-G3j1oVHW1S56Z6upG80wBNKtGmSmUdZUWQ1NVYIG_g" style="margin-left: 1em; margin-right: 1em;"><img alt="" data-original-height="902" data-original-width="1280" height="226" src="https://blogger.googleusercontent.com/img/a/AVvXsEj4DksA8gPjMh5i79sSJS3jE_8FVAySXnHbkq0quiS_Ry3Y6H4FictCvu7vsIlmnbE9TWX7lzCa1TUPE6umGUqP9m-wCxQe_gw-3bDLoivh-2UzQXnREdzUMEmkMnmN_r-7HBeQ6YPvQStPLK-o-G3j1oVHW1S56Z6upG80wBNKtGmSmUdZUWQ1NVYIG_g" width="320" /></a></div><br /><br />
<p class="MsoNormal" style="text-align: justify;"><b><a href="https://www.ncl.ac.uk/law/people/profile/colinmurray.html">Colin Murray</a></b>,
Professor of Law, Newcastle Law School <o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;"><b>Photo credit</b>: <a href="https://en.wikipedia.org/wiki/User:Dom0803" title="en:User:Dom0803">en:User:Dom0803</a>,
via <a href="https://commons.wikimedia.org/wiki/File:Stormont_Parliamentary_Building_01.JPG">Wikimedia
Commons</a><o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;"></p><p class="MsoNormal" style="text-align: justify;">The landing space in which to do
a deal on the Windsor Framework and make it stick, second time round, was
remarkably small. The hard work of agreeing with the EU an approach to the
rules covering trade in goods involving Northern Ireland which would produce as
little friction as possible between different parts of the UK whilst
simultaneously safeguarding the EU Single Market had been done almost 12 months
ago. This, however, had not brought an end to the Democratic Unionist Party’s
(DUP’s) boycott of the Northern Ireland Assembly. <o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;">This meant that the UK Government
had appease multiple parties as it tried to persuade the DUP that the special
post-Brexit trading arrangements for Northern Ireland are not a threat to its
place in the UK. It had to be seen to provide further concessions to the DUP to
finally get the deal over the line, while simultaneously not doing anything
that could be regarded as threatening to the EU single market access for Northern
Ireland goods provided by the reworked Protocol. Looming over this difficult
balancing act was the threat of Brexit’s most ardent supporters within Rishi
Sunak’s own party, who remained anxious lest the new deal introduce an enhanced
degree of alignment between UK law and EU law post Brexit (as unhelpfully
splashed in the <a href="https://www.telegraph.co.uk/news/2024/01/24/rishi-sunak-sacrifice-brexit-freedoms-northern-ireland/">Telegraph</a>).<o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;">It turns out that Sunak’s formula
for performing such a complex feat has been to announce as little as possible
as loudly as possible (a masterclass in the <a href="https://www.youtube.com/watch?v=adJlo0BtHVI">Yes, Prime Minister</a>,
“radical tie for sober announcement” approach to policy). The new <a href="https://assets.publishing.service.gov.uk/media/65ba3b7bee7d490013984a59/Command_Paper__1_.pdf">Command
Paper</a> is more than twice as long as the Windsor Framework <a href="https://assets.publishing.service.gov.uk/media/63fccf07e90e0740d3cd6ed6/The_Windsor_Framework_a_new_way_forward.pdf">Command
Paper</a> of February 2023 and proclaims just how much it matters (derivatives
of “important” appear more than 50 times in the text, buttressed by nearly 30
uses of forms of “significant”). In appreciation of how well a ship building
metaphor plays in Northern Ireland, commitments are “copper fastened” fully
five times in the text.<span style="mso-spacerun: yes;"> </span><o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;">Announcing the new package in <a href="https://hansard.parliament.uk/commons/2024-01-31/debates/211B60F1-4CC0-43EB-97C3-C38F2ED7FD77/NorthernIrelandExecutiveFormation">Parliament</a>,
the Northern Ireland Secretary declared that the Conservative Party was “the
party of the Union”. You could be forgiven for thinking at this point that he
had not read the document, for it is repeatedly damning of the Conservatives’
record in office. The Command Paper laments that failing to respond to Unionist
concerns during negotiations over Brexit had “undermined economic and political
stability in Northern Ireland” (para 16) and lamented that “The decision of the
then Government to drop UK Internal Market Act clauses that would have
protected NI-GB trade meant that unfettered access was placed in legal
jeopardy” (para 27). If only Rishi Sunak could find out who was Chancellor of
the Exchequer at the time of that decision.<o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;">Such is the DUP’s fury over the
undermining of their position by the Conservatives, however, that the efforts
to address these concerns are a necessary part of the package, notwithstanding
the deflection of blame onto “the then Government”. What is perhaps more
surprising are some of the tonal slips. There are repeated reference to “the
sense” or “the perception” of the Union being under threat, so as to give
Sunak’s government enough cover to claim to be addressing DUP concerns without
ever acknowledging that it accepts them wholesale. <o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;">The most practically significant
elements of the Command Paper relate to the expansion and rebranding of the
“green lane” arrangements by which goods not generally believed to be at risk
of onward movement into the EU as they are moved from Great Britain into Northern
Ireland are subject to a minimal regime of checks based around specific risks.
These risks are identified on the basis of analysis of real-time trade flow
data shared with the EU.<span style="mso-spacerun: yes;"> </span>It is important
to note that these developments were to a large extent foreshadowed in the
Windsor Framework, as the operation of data sharing and risk management
processes became embedded. We are less than a year on from the acknowledgment
that “[t]hese protections are also not static, with specific recognition in the
agreement of the need to monitor, and as necessary adapt to, other changes in
the future” (Windsor Framework Command Paper, 2023, para 50). That the
rebranded internal market lane has been pledged to be operative “as soon as
possible” speaks to the need for the EU to accept the adequacy of the processes
in meeting the UK’s obligations.<o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;">Alongside these changes come an
agreement with the EU, and a draft legal text, which when concluded at the next
Joint Committee meeting will enable businesses operating in Northern Ireland to
have full access to goods imported into the UK under the UK’s post-Brexit trade
agreements. Much as hill farmers in Tyrone are unlikely to be jumping for joy
at the prospect of direct competition from New Zealand lamb, this development
does close off a complaint that Northern Ireland is experiencing post-Brexit
trading rules in a way that is distinct from (and for some, disadvantageous to)
the arrangements for the rest of the UK. <o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;">The DUP’s Gavin Robinson was
eager to draw attention to this change: <o:p></o:p></p>
<p class="MsoNormal" style="margin-left: 36.0pt; text-align: justify;">“We were told
that there would be no legal change to the Windsor framework or the EU text,
yet—this was part of the process of ensuring trust and commitment—colleagues
will have noticed the publication just yesterday of more than 60 pages of
legislative changes to text on the European perspective”<o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;">It is accurate to state that
Joint Committee decisions have legal status equal to Withdrawal Agreement
provisions, but this is better regarded as an outworking of the Windsor
Framework rather than a change to its core text. The Windsor Framework <a href="file:///E:/The_Windsor_Framework_a_new_way_forward.pdf">Command Paper</a>
made it clear that this development was a priority for the UK and the EU (see
para 15), it is just one that has taken some months come to fruition given the
complexity of the subject matter. As the new Command Paper notes, “There is
always the potential for issues to emerge, and for challenges to need to be
addressed. That capacity for ongoing dialogue, and for further development as
may be required, is acknowledged in the Windsor Framework and its accompanying
political declaration” (para 35). No one should be jumping up to say that
Brexit is finally done.<o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;">One key take away, which extends
from the Windsor Framework into the new Command Paper, is that the UK
Government’s focus has been on trading rules and not goods production. The
DUP’s Carla Lockhart put the issue directly to Chris Heaton-Harris in the
Commons; “Will the Secretary of State therefore confirm whether Northern
Ireland still remains under the EU’s single market laws for the production of
food and agrifood?” This drew a terse response from the Secretary of State;
“May I recommend that she re-reads the Windsor framework and indeed the Command
Paper?” If anyone does reread the documents they will find very little relevant
to goods production, and the UK Government might be better advised not to
attempt to obscure the reality that their efforts have been focused on securing
(dual) market access for Northern Ireland produced goods, not attempting to
reset the rules governing goods production established under the Protocol. <o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;">In parts of the Paper, the UK
Government become quite shrill in their insistence about the limitations to the
operation of EU law in Northern Ireland after Brexit; “The important starting
point is that the Windsor Framework applies only in respect of the trade in
goods - the vast majority of public policy is entirely untouched by it” (para
46). It is impossible not to see this as predominantly for the consumption of
its own MPs, because the discussion is couched entirely in terms of the Windsor
Framework having no impact on the Rwanda policy. <o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;">This is a strange flex in the
middle of a document about trade and Northern Ireland, and amounts to an
attempt to deny any general significance to the “non-diminution” of rights
commitment under Article 2. The problem for these claims is that the
non-diminution commitment does encompass elements of EU law like the <a href="https://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2011:101:0001:0011:en:PDF">Trafficking
Directive</a> which means that different rights protections are at issue in
Northern Ireland by comparison to the rest of the UK. The Command Paper,
perhaps unsurprisingly, makes no mention of the fact that the Northern Ireland
Human Rights Commission is currently engaged in litigation challenging the <a href="https://nihrc.org/news/detail/illegal-migration-act-challenge-factsheet">Illegal
Migration Act 2023</a> for what it regards as breaches of Article 2. <o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;">The new legislative protections
for Northern Ireland’s place in the Union is where the document goes full
Houdini. In discussing the UK Supreme Court’s Allister judgment, the Command
Paper is at pains to assert that the UK Parliament is fully sovereign and has
“taken back control” post Brexit (“Importantly, the Supreme Court importantly
recognised the UK’s sovereignty, exercised through Parliament”, at para 51,
which I guess must mean it is doubly important). But just a few pages after
this reminder that nothing is “permanent or irreversible” in this Government’s
account of the UK Constitution, come the supposed guarantees of Northern
Ireland’s place in the Union.<o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;">The most significant of these
come in the form of statutory instruments (the Windsor Framework
(Constitutional Status of Northern Ireland) Regulations 2024, the Windsor
Framework (Internal Market and Unfettered Access) Regulations 2024 and the Windsor
Framework (Marking of Retail Goods) Regulations 2024), which, promulgated under
the European Union Withdrawal Act, allow for far ranging changes to primary
legislation, including the Act itself. This allows these blocks of the deal to
be put in place rapidly, and Stormont restored. It also, of course, allows for
the whole process to be completed with cursory parliamentary scrutiny.<o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;">The Windsor Framework
(Constitutional Status of Northern Ireland) Regulations 2024 begins with an
amendment to section 38 of the <a href="https://www.legislation.gov.uk/ukpga/2020/1/contents/enacted">European
Union (Withdrawal Agreement) Act 2020</a>, asserting that the Windsor Framework
operates without prejudice to the “constitutional status of Northern Ireland as
part of the United Kingdom”. This is constitutional surplusage. The whole point
of the legislation is to implement an international agreement, and it is
therefore to be read in light of that agreement. And Article 1 of the Northern
Ireland Protocol, as remixed by the Windsor Framework, affirms that it operates
“without prejudice” to Northern Ireland’s constitutional status. <o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;">This Statutory Instrument then
takes an interesting turn. It inserts section 38A into the 2020 Act, which purports
to ban any future UK Government from ratifying any new agreement with the
European Union “that would create a new regulatory border between Great Britain
and Northern Ireland”. Two observations can be made of this pledge. The first
is that the horse has very much bolted. The Windsor Framework provides a
continuing mechanism for new and amended EU law relating to trade in goods to
apply to Northern Ireland (subject to the requirements of the Stormont veto,
which UK Governments can ultimately override if they disagree with a use of
it). There is thus no need for any new Agreement – a process of response to
change in EU law is baked into the existing arrangements and this new stricture
will not apply to it. Second, anyone who seeks to put much weight on this
pledge was not paying attention to the UK Government’s explanation of
parliamentary sovereignty just a few pages earlier. This commitment is a <a href="https://publiclawforeveryone.com/2015/04/29/would-david-camerons-tax-lock-law-be-legally-binding-or-just-a-political-gimmick/">gimmick</a>,
not unlike the statutory “tax lock” once promised by David Cameron.<o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;">The Statutory Instrument then
sets out an amendment to section 7A of the <a href="https://www.legislation.gov.uk/ukpga/2018/16/contents/enacted">European
Union (Withdrawal) Act 2018</a>. This is the closest that the whole process
comes to a live wire, because this provision is the connective tissue which
allows EU law to have legal effect within the domestic legal order insofar as
it gives effect to the Withdrawal Agreement (including the Protocol). Great
play has been made of this amendment as the end to the “automatic” application
of EU law in Northern Ireland. But that is not what this amendment does. A
large body of EU rules applies because of the Withdrawal Agreement, although
the amendment of some of these rules, or the addition of new EU measures, is
subject under the Windsor Framework to the operation of the Stormont Brake. <o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;">This new provision simply makes
that reality explicit in the statute. This perhaps has a clarificatory
function, but it suffices once again to note that this is a statute
implementing an international agreement and the operation of section 7A has
been assumed to operate to take account of the working of the Stormont Brake
since the Brake was introduced. It is worth noting explicitly that the
obligation on the law of Northern Ireland to automatically track developments in
the equality directives contained within Annex 1 of the Protocol, as modified
by the Windsor Framework, remains in full effect as it is not subject to the
Stormont Brake. <o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;">The Statutory Instrument then
amends the 2018 Act to require a ministerial acknowledgement before the
Parliament of whether a Bill affects trade between Northern Ireland and the
rest of the UK. This has been likened to the process under the Human Rights Act
by which ministers have to make a statement on the compliance of new legislation
with human rights. And there is an irony to this present government lifting and
repurposing such a provision. In this instance, however, the assessment does
not have to be conducted before every piece of legislation, but only where
ministers think there might be an issue. Plenty of scope exists for this
element to be overlooked, and it has no legal impact on the operation of a
statute in which it is not included. Very soon such ministerial statements will
become background noise. <o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;">The last piece of legislative
reform that I will address in this piece has also been accompanied by noisy
speculation; the UK Government has promised to banish from the statute book any
duty to have “due regard” to the all-island economy. This is very much in the
weeds of Brexit, but when Theresa May was having difficulty securing the
passage of the Withdrawal Agreement legislation she was obliged to concede the
Patten amendment, which became section 10 of the European Union (Withdrawal)
Act 2018. This was meant to restrict any ministerial attempts to use the
wide-ranging powers of delegated legislation under the Act to ignore the UK’s
commitments as part of the negotiating process made in the 2017 Joint Report.
Ministers had to have “due regard” to maintaining regulatory alignment which
supported the “all-island economy” in their use of these powers.<o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;">This phrase is a particular
bugbear of Unionism, and the Command Paper makes great play of the dangers of
“the divisive and misguided political notion of the ‘all-island economy’” (para
71), but it is a stretch to say it is still playing any part in informing
government policy. For one thing, new powers to implement the Protocol were
created in the 2020 Act, and it is arguable that the strictures imposed on the
original powers in the 2018 Act do not apply to them. Second, read in context,
the commitment in paragraph 49 of the <a href="https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/665869/Joint_report_on_progress_during_phase_1_of_negotiations_under_Article_50_TEU_on_the_United_Kingdom_s_orderly_withdrawal_from_the_European_Union.pdf">2017
Joint Report</a> is about the backstop. A lot of water has passed under the
bridge since then; it is not relevant to interpreting the UK’s subsequent
(distinct) obligations. At best, this is the cleaning up of an outdated
provision on the statute book.<span style="mso-spacerun: yes;"> </span><o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;">For all that attention devoted to
minor or inconsequential issues, a remarkable aspect of the Command Paper is
the extent to which it still leaves important issues unresolved. Paragraph 121
of the Paper makes an eye-catching commitment:<o:p></o:p></p>
<p class="MsoNormal" style="margin-left: 36.0pt; text-align: justify;">“The
Government can also confirm that there will be no Border Control Post at
Cairnryan. While goods that do not qualify for unfettered access to the UK’s
internal market - such as goods moving from Ireland via Northern Ireland - will
need to comply with the formalities required of any other third country goods
movements, we will develop an approach to checks and formalities on those goods
that does not pose any risk to the free and unfettered movement of qualifying
Northern Ireland goods.”<o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;">The commitment, however, obscures
a continuing problem. The UK Government has not finalised its definition of
Qualifying Northern Ireland Goods (despite talking about expanding the
definition for months). <o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;">With the <a href="https://ukandeu.ac.uk/explainers/the-uks-border-with-the-eu/">Border
Target Operating Model</a> now taking effect in Great Britain there remains no
clarity on what the government will do to check whether goods shipments moving
from Northern Ireland into Great Britain involve goods which qualify for
unfettered access and those which should be checked. There is no easy answer to
this issues that does not require some assessment of whether goods movements
meet the criteria, but the failure to address the issue in detail in the Paper
must generate suspicions that Unionists might find the approach the UK is
contemplating unpalatable. <o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;">The final thirty pages of the
Command Paper consists of “make weight” content, with Annex 1 addressing the
history of barriers to trade which have existed since the conclusion of the
Acts of Union and the creation of Northern Ireland. This content amounts to a
repost to claims that the “Acts of Union are the Union” or that Article VI must
somehow be “restored” or “fulfilled”. They speak to the incompleteness of the
UK’s removal of barriers to trade which came with incorporating Ireland into
the Union, and to the amount of times subsequent legislation has impinged upon
trade. <o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;">But they also speak to an
opportunity lost. These realities have been known, and <a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3657313">discussed</a>,
for years. Successive UK Governments, however, have cultivated inaccurate
impressions of the workings of the extent to which the Union operated to remove
barriers to trade for their own purposes. This is not a summary that the
Johnson Government, which talked relentlessly of “the provisions of the Acts of
Union playing a key role in keeping markets open” (<a href="https://assets.publishing.service.gov.uk/media/5f1033f43a6f40038573bcbb/uk-internal-market-white-paper.pdf">Internal
Market White Paper</a>, 2020, para 63) would have produced. Instead it is a
belated effort to redress that narrative. It is also a rushed effort, with
large sections of it apparently lifted from Professor Henry Patterson’s account
of trade between different parts of the UK since the Acts of Union published in
the Belfast <a href="https://www.newsletter.co.uk/news/opinion/columnists/henry-patterson-legalistic-attempts-to-restore-article-6-of-the-act-of-union-would-be-a-disaster-4495902">Newsletter</a>
earlier this week.<span style="mso-spacerun: yes;"> </span><o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;">No such package would be complete
without reheating some existing promises. The Castlereagh Foundation was
announced in the <a href="https://assets.publishing.service.gov.uk/media/5e178b56ed915d3b06f2b795/2020-01-08_a_new_decade__a_new_approach.pdf">New
Decade, New Approach</a> deal (para 26) as a means “to support academic
research through Universities and other partners to explore identity and the
shifting patterns of social identity in Northern Ireland”. The fact that
Castlereagh’s biographer, <a href="https://en.wikipedia.org/wiki/John_Bew_(historian)">John Bew</a>, is the
great survivor amongst special advisers to recent UK Prime Ministers is surely
not coincidental to this enduring fixation with a politician best remembered
for being maligned by <a href="https://knarf.english.upenn.edu/PShelley/anarchy.html">Shelley</a> after
Peterloo, for the Castlereagh Foundation is once again promised, indeed
guaranteed, in Annex 2. Given the overall tenor of the Paper, perhaps the
inclusion of reheated promises was inevitable, but it does flag the extent to
which the UK Government’s supposed commitments to Northern Ireland fade in and
out depending on the extent to which it is in crisis. What might Shelley say of
the whole thing; Very smooth, yet grim.<o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;">At this juncture, this account
might give the impression that these new developments are so insubstantial as
to not warrant Jeffrey Donaldson’s return to power sharing. But that is only
the case because all of the heavy lifting was done in the Windsor Framework’s
mitigations. Where these changes are at their most substantive, they are a
continuation of developments explicitly planned as part of the Windsor
Framework. Where they are window dressing, and there is a large amount of
window dressing, all of this could have been asserted many months ago. <o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;">The sour taste that the whole arrangement
leaves is that of a lost year in Northern Ireland’s governance. A year in which
politicians in Northern Ireland could have been governing in the interests of
the people of Northern Ireland and helping to address the cost of living
crisis. The conclusion of needs-based funding arrangements did not have to
become bound up in the story of the Windsor Framework, but the parties
returning to power sharing could not contemplate governing Northern Ireland
effectively without something being done to address the unsustainable pressure
on its finances.<o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;">The UK Government reached a
workable compromise with the EU in the Windsor Framework and the new
arrangements are in large part no more than outworkings of that deal. Had Sunak
been less concerned with looking over his shoulder at the threat posed by his
predecessors, so much more could have been done to involve the Northern Ireland
parties directly in the Windsor Framework negotiations and to arrive at
something that landed first time, without the need to confect this second deal.
<o:p></o:p></p><br /><p></p>Steve Peershttp://www.blogger.com/profile/05869161329197244113noreply@blogger.com4tag:blogger.com,1999:blog-8704899696538705849.post-13125444209509967182024-01-31T01:23:00.000-08:002024-01-31T01:23:18.929-08:00Would’ve, Could’ve, Should’ve: Preliminary Reflections on the EU’s New Corporate Sustainability Due Diligence Directive <p></p><div class="separator" style="clear: both; text-align: center;"><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEj4jTcQGb1mU8oiHrkQHnrUZwadpGp7B3bUpExbULak3uKH8OyUW92cMIdE-DxXa3eI1NcFRzPJqDbKkZAWN-ahv-EXihj-uIRnz9IBKgH3d6d9NW_VxloXAQxRGNNaX9gsi0Jlq2pkQkjfIkUUSuIsp03wXAAM9Afsi1UU803PfBjovRN1e0doB23fqGk/s683/protest.jpg" imageanchor="1" style="margin-left: 1em; margin-right: 1em;"><img border="0" data-original-height="683" data-original-width="512" height="360" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEj4jTcQGb1mU8oiHrkQHnrUZwadpGp7B3bUpExbULak3uKH8OyUW92cMIdE-DxXa3eI1NcFRzPJqDbKkZAWN-ahv-EXihj-uIRnz9IBKgH3d6d9NW_VxloXAQxRGNNaX9gsi0Jlq2pkQkjfIkUUSuIsp03wXAAM9Afsi1UU803PfBjovRN1e0doB23fqGk/w270-h360/protest.jpg" width="270" /></a></div><br /> <p></p><p class="MsoNormal" style="mso-prop-change: "Peers\, Steve" 20240131T0908; text-align: justify;"><br /></p>
<p class="MsoNormal" style="mso-prop-change: "Peers\, Steve" 20240131T0908; text-align: justify;"><b>Tara
Van Ho</b>, Senior Lecturer in Law, University of Essex <o:p></o:p></p>
<p class="MsoNormal" style="mso-prop-change: "Peers\, Steve" 20240131T0908; text-align: justify;"><o:p> </o:p></p>
<p class="MsoNormal" style="text-align: justify;"><b>Photo credit</b>: Infrogmation
of New Orleans, via <a href="https://commons.wikimedia.org/wiki/File:Bastille_Tumble_2010_Mollys_Lauren_BP_Skull.JPG">Wikimedia
commons</a><o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;"><o:p> </o:p></p>
<p class="MsoNormal" style="text-align: justify;">The European Union’s Council and
Parliament have agreed to a provisional text for a new directive that would
require certain large corporations to undertake human rights and environmental
due diligence. <o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;"><o:p> </o:p></p>
<p class="MsoNormal" style="text-align: justify;">I was reminiscing just the other
day while having coffee all alone, and Lord, it took me away, back to a
first-glance feeling during my first UN Forum. My hope was mixed with equal
levels of scepticism about the likelihood that laws like this would be adopted
let alone be effective. Over the past twelve years, the hopes and scepticism
have been met in equal measure, but never more so than with this law. <o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;"><o:p> </o:p></p>
<p class="MsoNormal" style="mso-prop-change: "Peers\, Steve" 20240131T0908; text-align: justify;">While
the final text is not yet public, a press release indicates the key
expectations and components of the agreed text. MEP Axel Voss has posted the
side-by-side comparator of the various drafts, including the new draft
agreement. This <a href="https://drive.google.com/file/d/1AkL0Hr2obZMZrTDV5DmGflivKugnGRcn/view">draft
confirms</a>: <o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;"><o:p> </o:p></p>
<p class="MsoListParagraphCxSpFirst" style="mso-list: l0 level1 lfo1; text-align: justify; text-indent: -18.0pt;"><!--[if !supportLists]--><span style="mso-ascii-font-family: Calibri; mso-bidi-font-family: Calibri; mso-fareast-font-family: Calibri; mso-hansi-font-family: Calibri;"><span style="mso-list: Ignore;">-<span style="font: 7.0pt "Times New Roman";">
</span></span></span><!--[endif]-->The directive will apply to large EU companies
with a worldwide net turnover of €150million and 500+ employees; <o:p></o:p></p>
<p class="MsoListParagraphCxSpMiddle" style="mso-list: l0 level1 lfo1; text-align: justify; text-indent: -18.0pt;"><!--[if !supportLists]--><span style="mso-ascii-font-family: Calibri; mso-bidi-font-family: Calibri; mso-fareast-font-family: Calibri; mso-hansi-font-family: Calibri;"><span style="mso-list: Ignore;">-<span style="font: 7.0pt "Times New Roman";">
</span></span></span><!--[endif]-->It will eventually capture non-EU companies with
€300 million net turnover generated in the EU and the Commission will publish a
list of applicable non-EU companies the law;<o:p></o:p></p>
<p class="MsoListParagraphCxSpMiddle" style="mso-list: l0 level1 lfo1; text-align: justify; text-indent: -18.0pt;"><!--[if !supportLists]--><span style="mso-ascii-font-family: Calibri; mso-bidi-font-family: Calibri; mso-fareast-font-family: Calibri; mso-hansi-font-family: Calibri;"><span style="mso-list: Ignore;">-<span style="font: 7.0pt "Times New Roman";">
</span></span></span><!--[endif]-->Affected businesses will need to address actual
and potential adverse human rights and environmental impacts in their “business
chain of activities” which covers their own operations, their subsidiaries, and
“the upstream business partners of the company and partially the downstream
activities, such as distribution or recycling”; <o:p></o:p></p>
<p class="MsoListParagraphCxSpMiddle" style="mso-list: l0 level1 lfo1; text-align: justify; text-indent: -18.0pt;"><!--[if !supportLists]--><span style="mso-ascii-font-family: Calibri; mso-bidi-font-family: Calibri; mso-fareast-font-family: Calibri; mso-hansi-font-family: Calibri;"><span style="mso-list: Ignore;">-<span style="font: 7.0pt "Times New Roman";">
</span></span></span><!--[endif]-->The financial sector is (temporarily?) excluded
pending a review and “a sufficient impact assessment;<o:p></o:p></p>
<p class="MsoListParagraphCxSpMiddle" style="mso-list: l0 level1 lfo1; text-align: justify; text-indent: -18.0pt;"><!--[if !supportLists]--><span style="mso-ascii-font-family: Calibri; mso-bidi-font-family: Calibri; mso-fareast-font-family: Calibri; mso-hansi-font-family: Calibri;"><span style="mso-list: Ignore;">-<span style="font: 7.0pt "Times New Roman";">
</span></span></span><!--[endif]-->There is a specific list of human rights and
environmental protections that businesses will be expected to respect and
address, and a list of obligations the breach of which will constitute “an
adverse human rights impact”; <o:p></o:p></p>
<p class="MsoListParagraphCxSpMiddle" style="mso-list: l0 level1 lfo1; text-align: justify; text-indent: -18.0pt;"><!--[if !supportLists]--><span style="mso-ascii-font-family: Calibri; mso-bidi-font-family: Calibri; mso-fareast-font-family: Calibri; mso-hansi-font-family: Calibri;"><span style="mso-list: Ignore;">-<span style="font: 7.0pt "Times New Roman";">
</span></span></span><!--[endif]-->That list excludes from application certain ILO
core conventions because not all EU member states have ratified them;<span style="mso-spacerun: yes;"> </span><o:p></o:p></p>
<p class="MsoListParagraphCxSpMiddle" style="mso-list: l0 level1 lfo1; text-align: justify; text-indent: -18.0pt;"><!--[if !supportLists]--><span style="mso-ascii-font-family: Calibri; mso-bidi-font-family: Calibri; mso-fareast-font-family: Calibri; mso-hansi-font-family: Calibri;"><span style="mso-list: Ignore;">-<span style="font: 7.0pt "Times New Roman";">
</span></span></span><!--[endif]-->Large companies will have an obligation of means
to develop and implement an effective plan to mitigate their impact on climate
change; <o:p></o:p></p>
<p class="MsoListParagraphCxSpMiddle" style="mso-list: l0 level1 lfo1; text-align: justify; text-indent: -18.0pt;"><!--[if !supportLists]--><span style="mso-ascii-font-family: Calibri; mso-bidi-font-family: Calibri; mso-fareast-font-family: Calibri; mso-hansi-font-family: Calibri;"><span style="mso-list: Ignore;">-<span style="font: 7.0pt "Times New Roman";">
</span></span></span><!--[endif]-->Those who are negatively affected (including
civil society or trade unions) can bring claims for civil liability within a
five-year period; and<o:p></o:p></p>
<p class="MsoListParagraphCxSpLast" style="mso-list: l0 level1 lfo1; text-align: justify; text-indent: -18.0pt;"><!--[if !supportLists]--><span style="mso-ascii-font-family: Calibri; mso-bidi-font-family: Calibri; mso-fareast-font-family: Calibri; mso-hansi-font-family: Calibri;"><span style="mso-list: Ignore;">-<span style="font: 7.0pt "Times New Roman";">
</span></span></span><!--[endif]-->At times, as a matter of last resort, businesses
may need to end their business relationships where negative impacts cannot be
prevented or ended. <o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;"><o:p> </o:p></p>
<p class="MsoNormal" style="text-align: justify;">This law represents progress for
many in the world. If implemented in good faith, it could provide better access
to remedies for victims who are negatively impacted by business operations. It
should also lead to the adoption of better and greater preventative measures,
avoiding the need for remediation in the first place. <o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;"><o:p> </o:p></p>
<p class="MsoNormal" style="text-align: justify;">It is the <a href="https://www.bhr-law.org/laws">first mandatory human rights due diligence
legislation</a> to address climate change, not just environmental damage. It
anticipates civil liability for businesses that breach their responsibilities.
It suggests compliance with the law as a criterion for public procurement,
placing the power of Member States’ purses beyond the law. The recognition that
at times business relationships will need to be terminated to ensure compliance
is significant and can help fill in gaps the negotiation has otherwise left
unaddressed, like the issue of conflict-affected and high-risk areas (which
I’ll return to later in the post). <o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;"><o:p> </o:p></p>
<p class="MsoNormal" style="text-align: justify;">I’d like to express my
appreciation to the NGOs and Parliamentarians who have gotten us to this point:
it is clear from the Council’s approach during negotiations that if you
would’ve blinked then they would’ve looked away at the first chance. I
particularly appreciate those who fought for the inclusion of international
humanitarian law and specific language on conflict-affected and high-risk
areas. This was needed and I was shocked by early rumours that the draft
agreement excluded this issue. I’m happy those were wrong.<o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;"><o:p> </o:p></p>
<p class="MsoNormal" style="text-align: justify;">The long-awaited human rights
requirements are intended to implement the <a href="https://www.ohchr.org/sites/default/files/documents/publications/guidingprinciplesbusinesshr_en.pdf">2011
United Nations Guiding Principles on Business and Human Rights (UNGPs)</a>. I
remember it all too well how the EU celebrated the adoption of the UNGPs and
how, together with the US and other capital-exporting states, promoted the
UNGPs as the standard for businesses when addressing human rights. The EU long
opposed proposals for an <a href="https://www.ohchr.org/en/hr-bodies/hrc/wg-trans-corp/igwg-on-tnc">international
treaty on business responsibility for human rights</a> because they felt that
it was unnecessary in light of the UNGPs’ existence and could distract states
from implementing the UNGPs. <o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;"><o:p> </o:p></p>
<p class="MsoNormal" style="text-align: justify;">Only recently, and only because <a href="https://www.europarl.europa.eu/RegData/etudes/BRIE/2018/620229/EPRS_BRI(2018)620229_EN.pdf">Parliament
required it</a>, the EU has joined the negotiations with <a href="https://www.business-humanrights.org/en/blog/why-isnt-the-eu-more-engaged-in-the-binding-treaty-negotiations/">all
the enthusiasm</a> of a 6-year-old child called to dinner when they’re playing
with their dinosaurs (meaning: none). The new directive evidences strong
disconnects from the EU’s demand that the UNGPs lead is pretty and what the EU
advocates for in the binding treaty and what the directive now requires for
reasons I set out below. <o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;"><o:p> </o:p></p>
<p class="MsoNormal" style="text-align: justify;">In this post, I provide a list of
things the EU would’ve, could’ve, and should’ve done had the Council been as
serious as Parliament about implementing the UNGPs. The would’ves apply to an
ideal application of the UNGPs: applying to all businesses and with a more
robust and comprehensive understanding of human rights. The could’ves represent
those areas in need of greater development: consulting with rightsholders
abroad; and clarifying that contractual clauses are not enough. Finally, the
“should’ve” is applying the law to the financial and arms sectors, a bare
minimum expectation under the UNGPs, the exclusion of which should embarrass
Council members for decades to come (I would have said generations but that
felt a tad bit dramatic). <o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;"><o:p> </o:p></p>
<p class="MsoNormal" style="text-align: justify;"><b>Would’ve: Applied to all
businesses <o:p></o:p></b></p>
<p class="MsoNormal" style="text-align: justify;"><o:p> </o:p></p>
<p class="MsoNormal" style="text-align: justify;">First, the UNGPs are explicit
that the responsibility to respect human rights applies to all businesses at
all times including small and medium-sized enterprises (SMEs). In the Geneva
treaty negotiations the EU has always walked a very thin line, insisting that <a href="https://www.europarl.europa.eu/RegData/etudes/BRIE/2018/620229/EPRS_BRI(2018)620229_EN.pdf">the
treaty, like the UNGPs, should apply to all businesses</a>, not just
transnational corporations. The initial <a href="https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A52022PC0071">Parliamentary
proposal for a directive</a> would’ve (largely) continued this approach and
complied with the UNGPs. Yet, it was clear from the <a href="https://www.business-humanrights.org/en/latest-news/comparison-between-eu-council-and-commission-proposals-on-human-rights-due-diligence-directive/">Commission’s
proposal and the Council’s response</a> that we were never going to get a
UNGP-compliant directive. The Directive will now only apply to large companies
(and not in the financial sector, an issue I’ll return to). The press release
does not indicate an intention to expand the scope of the Directive in the
future.<o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;"><o:p> </o:p></p>
<p class="MsoNormal" style="text-align: justify;">Including SMEs is admittedly
difficult. In the transnational context, large European companies <a href="https://kluwerlawonline.com/journalarticle/European+Review+of+Private+Law/27.2/ERPL2019020">have
long forced</a> SMEs in places like Bangladesh and Pakistan to absorb the cost of
social auditing processes while insisting on contracts that limit the legal
liability of European buyers and parents. This often leads to corrupt practices
for certifications or in redirecting revenue for the certification away from
protections or living wages for employees. That would defeat the purpose of the
law.<o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;"><o:p> </o:p></p>
<p class="MsoNormal" style="text-align: justify;">EU SMEs, on the other hand, often
already have a language of human rights, practices that facilitate due
diligence, and networks that can support their efforts to develop in this area.
A graduated expansion coupled with clauses aimed at protecting SMEs from the
abusive practices we’ve seen elsewhere could’ve provided an important example
of how SMEs can be included in mandatory human rights due diligence legislation.
It also would’ve strengthened the EU’s position in the Geneva-based
negotiations.<o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;"><o:p> </o:p></p>
<p class="MsoNormal" style="text-align: justify;">Instead, whenever the EU pushes
for an expansion of the treaty, I hope states like Pakistan and Bangladesh point
out the hypocrisy. <o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;"><o:p> </o:p></p>
<p class="MsoNormal" style="text-align: justify;"><b>Would’ve: Taken a broader
approach to human and labour rights<o:p></o:p></b></p>
<p class="MsoNormal" style="text-align: justify;"><o:p> </o:p></p>
<p class="MsoNormal" style="text-align: justify;">The UNGPs also call for
businesses to account for all human rights. In Principle 12, it states that
businesses should account for, “at a minimum,” the International Bill of Human
Rights (the Universal Declaration of Human Rights, the International Covenant
on Civil and Political Rights, and the International Covenant on Economic,
Social and Cultural Rights) and the ILO Core Conventions. Where relevant,
businesses need to rely on other standards as well. <o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;"><o:p> </o:p></p>
<p class="MsoNormal" style="text-align: justify;">The EU’s press release suggests
that the directive will only invoke treaties that are universally ratified by
EU member states. That would mean most of the <a href="https://indicators.ohchr.org/">major UN treaties</a> are addressed but
there are some disturbing omissions, including the <a href="https://www.ohchr.org/en/instruments-mechanisms/instruments/international-convention-protection-rights-all-migrant-workers">International
Convention on the Protection of All Migrant Workers and of their Families</a>
and the ILO Core Conventions. Those are rather significant omissions given
issues of <a href="https://www.europarl.europa.eu/RegData/etudes/BRIE/2021/689347/EPRS_BRI(2021)689347_EN.pdf">modern
slavery in EU food supplies</a>, and more broadly problems with the <a href="https://publications.iom.int/books/mapping-risks-migrant-workers-supply-chains-europe-case-studies-and-best-practices">treatment
of migrant workers throughout EU corporate supply chains</a>. <o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;"><o:p> </o:p></p>
<p class="MsoNormal" style="text-align: justify;">The list also prioritises EU
commitments over relevant obligations where the law has extraterritorial
impacts. There should have been a recognition that at times the Inter-American
and African systems on human rights can be applicable. This recognition is
important as the Inter-American and African systems have produced stronger
jurisprudence on various issues, including <a href="https://www.jstor.org/stable/27072156">indigenous rights</a> and
community rights than <a href="https://academic.oup.com/book/10611/chapter-abstract/158617019?redirectedFrom=fulltext">Europe</a>
(<i>significantly</i> stronger in the Inter-American system) while the
Inter-American system also produces more progressive jurisprudence on the
definition and nature of reparations, and the <a href="https://www.openglobalrights.org/justice-for-miskito-divers-a-turning-point-for-business-and-human-rights-standards/">direct
responsibility of businesses</a>. While the African system has more limited
jurisprudence, its jurisprudence on land rights and community rights is
similarly more advanced than the European system’s. <o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;"><o:p> </o:p></p>
<p class="MsoNormal" style="text-align: justify;">Sometimes, I miss who I used to
be when I could naively believe the absence of reference to the other human
rights systems was an oversight, but I fear this strengthens the case for the
laws as a form of neo-coloniality by suggesting a hierarchy of rights and
systems that centres European expectations in legislation that is supposed to
reflect broader standards. <o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;"><o:p> </o:p></p>
<p class="MsoNormal" style="text-align: justify;"><b>Could’ve: Undertaken Direct
Consultations with Foreign Rightsholders <o:p></o:p></b></p>
<p class="MsoNormal" style="text-align: justify;"><o:p> </o:p></p>
<p class="MsoNormal" style="text-align: justify;">The failure to recognise the
relevance of Inter-American and African jurisprudence reflects a broader
procedural failure by the Commission to consult foreign rightsholders who will
be affected the law. I cannot do greater justice to this criticism than <a href="https://www.uni-goettingen.de/de/568267.html">Caroline Omari Lichuma</a>
has done already in her <a href="https://www.nomos-elibrary.de/10.17104/0044-2348-2021-2-497.pdf?download_full_pdf=1&page=1">TWAIL
critique</a> of European human rights due diligence laws. <o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;"><o:p> </o:p></p>
<p class="MsoNormal" style="text-align: justify;">While my experience suggests that
many victims groups and rightsholders want mandatory laws, what they want <i>in</i>
those mandatory laws matters just as much as the desire <i>for</i> a law. They
had a right not just to voice their support for (or criticism of) the law but
to make substantive demands for the law itself. What would the additional
demands of rightsholders look like? Well, sometimes you just don't know the
answer ‘til someone's on their knees and asks you for a particular legislative
proposal, but a very recent study suggests that consultation might have led to
different approaches to remediation, particularly for climate-related harms.<o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;"><o:p> </o:p></p>
<p class="MsoNormal" style="text-align: justify;">I often find that memories feel
like weapons. In this field, we have often seen European businesses and states
undertake “new” initiatives they claim are for the benefit of others without
actually talking to the “others.” For example, studies suggest “social
auditing” and certification schemes do not deliver on the promises European
companies and social initiatives claim. This is unsurprising. Writing in the
U.S., the founding father of critical race theory, Derek Bell, has explained
that many “anti-racist” developments really represent interest convergence of
White and Black leaders. As such, the concessions are less radical or
responsive than what racialised communities would seek themselves. These
additional demands, however, are often dismissed or ignored. When Dr Lichuma
provided an overview of her critique at the 2022 UN Forum on Business and Human
Rights, one European delegate infamously responded that Europe’s position
wasn’t a matter of imperialism but of “leadership.” Real leadership, however,
would reflect the results of consultations with rights-holders not just the
political interests and concessions of European leaders. <o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;"><o:p> </o:p></p>
<p class="MsoNormal" style="text-align: justify;"><b>Could’ve: Clarified that Contractual
Clauses are not Enough<o:p></o:p></b></p>
<p class="MsoNormal" style="text-align: justify;"><o:p> </o:p></p>
<p class="MsoNormal" style="text-align: justify;">Recital 34, para 43 in the table
contains an extensive discussion of the kinds of measures companies can take to
comply with their human rights responsibilities. One of those is the
development of contractual clauses with business partners. I worry that I've
seen this film before and <a href="https://www.ecchr.eu/en/case/kik-paying-the-price-for-clothing-production-in-south-asia/">I
didn't like the ending</a>. <o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;"><o:p> </o:p></p>
<p class="MsoNormal" style="text-align: justify;">I’ve now mentioned twice that
social auditing is a sham. There will be exceptions to this rule and I can
point people to a few of my favourite exceptions, but let me reiterate what
existing <a href="https://kluwerlawonline.com/journalarticle/European+Review+of+Private+Law/27.2/ERPL2019020#:~:text=from%20their%20negligence.-,After%20explaining%20the%20work%20of%20social%20auditors%2C%20the%20article%20considers,harm%20workers%20at%20audited%20facilities.">research
indicates</a>: social auditing is generally ineffective and often detrimental for
rights-holders, providing a veneer of respectability for disrespectful
practices.<o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;"><o:p> </o:p></p>
<p class="MsoNormal" style="text-align: justify;">Increasingly, it is clear that
this is equally true of index listings meant to advise institutional investors
on their human rights risks. Last year, the US advisory company Morningstar
adopted rules aimed at exempting Israel that so fundamentally misunderstand the
UNGPs that it renders all its human rights reporting questionable (short story:
Morningstar concluded Israel isn’t a conflict-affected area…). More recently,
index provider MSCI accepted audits from Xinjiang, China, as evidence that the
car company Volkswagen was seriously addressing the issue of Uyghur forced
labour. <i>No</i> company can adequately address the issue of Uyghur forced
labour when operating in Xinjiang and (again, I cannot emphasise this enough) it
is irresponsible to rely on a social audit in this context. Because these
indexes set their own rules, and have no professional board standards, I can’t
actually accuse them of professional malfeasance but these responses are
shockingly inept. <o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;"><o:p> </o:p></p>
<p class="MsoNormal" style="text-align: justify;">Human rights due diligence is not
supposed to be the same as an audit, but often businesses looking for a quick
and dirty misdirection will use social audits and contractual clauses as a
substitution for due diligence. I fear that if contractual clauses are allowed,
due diligence will start to look more and more like social auditing and
indexing and less like the robust and circular mechanism of assessment,
responsiveness, and reparations than it is supposed to be. <span style="mso-spacerun: yes;"> </span><o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;"><o:p> </o:p></p>
<p class="MsoNormal" style="text-align: justify;">The directive could and should
clarify that while contractual clauses can be important they cannot transfer
legal liability.<span style="mso-spacerun: yes;"> </span><o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;"><o:p> </o:p></p>
<p class="MsoNormal" style="text-align: justify;"><b>Should’ve: Applied to the
Financial and Arms Sectors<o:p></o:p></b></p>
<p class="MsoNormal" style="text-align: justify;"><o:p> </o:p></p>
<p class="MsoNormal" style="text-align: justify;">At Recital 18, para 27, and <span style="mso-spacerun: yes;"> </span>Recital 19, para 28, we find an effective
exemption from the law for the arms and financial sectors, respectively. In
Recital 19, the CSDDD excludes “downstream business partners” from the scope of
due diligence obligations. I knew this was true from the press release, but
seeing the blatant language was surreal. I’m laughin', but the joke's not funny
at all. <o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;"><o:p> </o:p></p>
<p class="MsoNormal" style="text-align: justify;">I’m going to set aside the arms
sector for now (because I’m working on a lot regarding that sector right now), but
the exemption for the financial sector is gross (gross being a legal term of
art, just ask anyone…). The draft agreement says that “as regards regulated
financial undertakings, only the upstream but not the downstream part of their
chain of activities is covered by this Directive.” In other words: the bank is
not responsible for breaches caused by its financing of another’s activities no
matter how much the bank should have known how its financing would be used for
human rights violations. <o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;"><o:p> </o:p></p>
<p class="MsoNormal" style="text-align: justify;">Out of every group you’re
concerned with protecting, out of every business and industry, it is the banks
you the Council thinks can’t do due diligence? <o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;"><o:p> </o:p></p>
<p class="MsoNormal" style="text-align: justify;">Really?<o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;"><o:p> </o:p></p>
<p class="MsoNormal" style="text-align: justify;">The banks that kept looted Nazi
material from their rightful Jewish owners for decades? <o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;"><o:p> </o:p></p>
<p class="MsoNormal" style="text-align: justify;">The banks that repeatedly
financed South Africa’s apartheid regime, saving it when it was on the brink of
collapsing?<o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;"><o:p> </o:p></p>
<p class="MsoNormal" style="text-align: justify;">The banks accused of facilitating
money laundering for drug lords and terrorists? <o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;"><o:p> </o:p></p>
<p class="MsoNormal" style="text-align: justify;">The ones who facilitate tax
evasion?<span style="mso-spacerun: yes;"> </span><o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;"><o:p> </o:p></p>
<p class="MsoNormal" style="text-align: justify;">The banks that finance dam
projects in indigenous lands with such disregard for human rights that many of
their logos should just be “Hi, it’s me, I’m the problem. It’s me.” <o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;"><o:p> </o:p></p>
<p class="MsoNormal" style="text-align: justify;">The banks that know how to do extensive
due diligence on operational impacts when it’s in their financial interests? <o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;"><o:p> </o:p></p>
<p class="MsoNormal" style="text-align: justify;"><i>Those</i> banks? <i>That’s</i>
who needs protecting with this law?<o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;"><o:p> </o:p></p>
<p class="MsoNormal" style="text-align: justify;">You cannot be serious about human
rights if you are not serious about tackling the responsibility of the
financial sector. When it comes to the Council members who betrayed the
rights-holders with this clause, I got a list of names and yours is in red,
underlined, France and Austria. France was the first to indicate resistance to
the application to the financial sector, but it is Austria’s recent pressure on
Ukraine, in which <a href="https://www.reuters.com/world/europe/austria-backs-eu-russia-sanctions-after-ukraine-removes-raiffeisen-blacklist-2023-12-16/">it
leveraged international assistance for the war</a> on the removal of Austrian
Raiffiesen Bank from the list of international sponsors of war, that is perhaps
the worst development in this area. People need to know this, so they know
where to put pressure moving forward. <o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;"><o:p> </o:p></p>
<p class="MsoNormal" style="text-align: justify;">It appears there will be an
“impact assessment” to determine if the law should apply to this industry, but
that will be too little and far too late. <o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;"><o:p> </o:p></p>
<p class="MsoNormal" style="text-align: justify;">It’s also wholly unnecessary. <o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;"><o:p> </o:p></p>
<p class="MsoNormal" style="text-align: justify;">There is nothing particularly
special about banks or the financial industry that makes human rights due
diligence hard. They just don’t want to pay for it to be done properly. That’s
not surprising. No company wants to pay for it. Disney once complained about
reporting requirements before we even had any human rights due diligence laws
because they didn’t way to cut into CEO bonuses or shareholder profits. The
desire to not spend money on human rights due diligence is not an adequate
reason for allowing those complicit in the Nazi genocide or South African
apartheid or Russia’s unlawful war of aggression in Ukraine to continue to
evade human rights responsibilities. If anything, their focus on profits and
finances over people is exactly why this law is needed. <o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;"><o:p> </o:p></p>
<p class="MsoNormal" style="text-align: justify;"><b>Concluding note<o:p></o:p></b></p>
<p class="MsoNormal" style="text-align: justify;"><o:p> </o:p></p>
<p class="MsoNormal" style="text-align: justify;">So that’s it: my would’ves,
could’ves, should’ve for the EU. At times, the CSDDD provides me with hope
about the direction of travel for this field, but in other areas it represents
a crisis of my faith.<o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;"><o:p> </o:p></p>
<p class="MsoNormal" style="text-align: justify;"><o:p> </o:p></p>
<p class="MsoNormal" style="text-align: justify;"><o:p> </o:p></p>
<p class="MsoNormal" style="text-align: justify;">PS, Taylor Swift’s birthday was
on the same day as the final <a href="https://eur-lex.europa.eu/EN/legal-content/glossary/trilogue.html">trilogue</a>.
As a fun Easter Egg hunt for my fellow Swifties, I’ve sprinkled her lyrics
throughout this post (13 times, obviously). I’ll send a friendship bracelet to
the first Swiftie who emails me a list of all the hidden gems. Please use the
subject line “T-Swift Easter Egg Hunt” in your email. My email address can be
found on my <a href="https://www.essex.ac.uk/people/VANHO61805/Tara-Van%20Ho">Essex
profile</a>.<o:p></o:p></p>Steve Peershttp://www.blogger.com/profile/05869161329197244113noreply@blogger.com0tag:blogger.com,1999:blog-8704899696538705849.post-88344012396721970912024-01-30T10:55:00.000-08:002024-01-30T10:55:32.634-08:00 The Council must swiftly implement a legal framework akin to the CEOS for staff employed in CSDP missions: Reflections on the Jenkinson litigation (Case C-46/22 P) <p> <br /></p><p></p><div class="separator" style="clear: both; text-align: center;"><a href="https://blogger.googleusercontent.com/img/a/AVvXsEjRV0eln13VC8FWGz2LryItDWzXoO_Q4Q84KnYDaTKohX4tO8pttYcPzyVNPVLtE7yK5UKPkrbHKx95PO4sWxcCvTRvWieKTMfdm5irZ46tLIp8YsaO4j36M0zmR7wLqyUAhl-FjH8D-ignXxekWYGN6XOQ-Y09UEPjbkN1xNDZ6sBFLLepPWkzho5ov0c" style="margin-left: 1em; margin-right: 1em;"><img alt="" data-original-height="720" data-original-width="1133" height="203" src="https://blogger.googleusercontent.com/img/a/AVvXsEjRV0eln13VC8FWGz2LryItDWzXoO_Q4Q84KnYDaTKohX4tO8pttYcPzyVNPVLtE7yK5UKPkrbHKx95PO4sWxcCvTRvWieKTMfdm5irZ46tLIp8YsaO4j36M0zmR7wLqyUAhl-FjH8D-ignXxekWYGN6XOQ-Y09UEPjbkN1xNDZ6sBFLLepPWkzho5ov0c" width="320" /></a></div><br /><p></p>
<p class="MsoNormal" style="text-align: justify;"><b>Antje Kunst*<o:p></o:p></b></p>
<p class="MsoNormal" style="text-align: justify;"><b>Photo credit</b>: Jan-Tore
Egge, via <a href="https://commons.wikimedia.org/wiki/File:EEAS_20221110_132551.jpg">Wikimedia
Commons</a><b><o:p></o:p></b></p>
<p class="MsoNormal" style="text-align: justify;"><b>Introduction<o:p></o:p></b></p>
<p class="MsoNormal" style="text-align: justify;">The Court of Justice of the
European Union in its judgment in <i><a href="https://curia.europa.eu/juris/document/document.jsf;jsessionid=5221A3806484B1F28F91907E0C24F373?text=&docid=281791&pageIndex=0&doclang=EN&mode=req&dir=&occ=first&part=1&cid=3524591">Jenkinson
v Council and others</a></i> ( Case C-46/22 P) of 18 January 2024 dismissed the
appeal brought by Mr. Jenkinson, an Irish national, which has implications for
thousands of staff serving in international missions of the EU (EU missions)
under the EU’s Common Foreign and Security Policy (CFSP) in third states. <o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;">Mr. Jenkinson’s defeat before the
Court of Justice is not a victory for the defendants: the Council, the
Commission, the European External Action Service, and Eulex Kosovo. It is
clearly not in their interest that the General Court’s findings in the
judgement under appeal, <a href="https://curia.europa.eu/juris/document/document.jsf?text=&docid=249022&pageIndex=0&doclang=en&mode=lst&dir=&occ=first&part=1&cid=1192862">Case
<span style="mso-bookmark: _Hlk147753814;">T‑602/15 RENV</span><span style="mso-bookmark: _Hlk147753814;"></span></a><!--[if !supportNestedAnchors]--><a name="_Hlk147753814"></a><!--[endif]--> have been upheld. Also, it is a shame that
the Court of Justice did not express any views on one of the main claims in
this litigation regarding the Council’s failure to introduce a legal regime
comparable to the <a href="https://eu-careers.europa.eu/en/documents/regime-applicable-aux-autres-agents">Conditions
of Employment of Other Servants of the European Union</a> ("CEOS"). <o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;">Instead, the Court of Justice
held the related arguments were inadmissible or unsubstantiated, without
offering any views by passing on the merits of those arguments. This is a
missed opportunity, also taking into account that the General Court in <i><a href="https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:62020TJ0776">Stockdale v Council
and Others<span style="font-style: normal;"> </span></a></i>(including the
European Union’s Special Representative in Bosnia and Herzegovina) (T‑776/20), has
already made certain findings in this regard. <o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;"><b>Applicability of Private
International Law (Rome I Regulation) <o:p></o:p></b></p>
<p class="MsoNormal" style="text-align: justify;">Jenkinson’s claim was that the EU
did not envisage that private international law, i.e., an EU Regulation on the
law applicable to contractual obligations (the <a href="https://eur-lex.europa.eu/legal-content/EN/ALL/?uri=CELEX%3A32008R0593">Rome
I Regulation</a>) would be applicable to public law contracts such as those at
issue in the case. (para. 79 of the Judgment) The Court of Justice disagreed: ‘since
the General Court was seised pursuant to an arbitration clause under
Article 272 TFEU’, it was necessary in the absence of any choice of the
parties of the applicable national substantive law for the Court to identify it
(para. 88 of the Judgment). <o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;">The Court of Justice held that
the General Court was correct in taking recourse to the Rome I Regulation, to
do so. It did not interfere with the General Court’s determination that Irish
law was the applicable national substantive law governing Mr. Jenkinson’s claim
for a requalification of the series of fixed-term contracts, and that based on
Irish law, Mr. Jenkinson’s claim was dismissed (see paras. 123 -163 pp. of the Judgment)<o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;"><b>Application of various
national laws to staff working for the same employer<o:p></o:p></b></p>
<p class="MsoNormal" style="text-align: justify;">Only towards the end of the
Judgment the Court of Justice acknowledged that the application of various
national laws might, in practice, result for members of Eulex Kosovo’s contract
staff being treated differently as regards the rights conferred on them and the
obligations imposed on them in a given situation. (para. 262 of the Judgment)<o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;">However, it followed from
the contractual nature of the relationships that, in the absence of a common
European regime applicable to the members of Eulex Kosovo’s staff, the
substantive rules intended to supplement the contractual terms are derived from
a national law which will have been identified under the rules of private
international law. (para. 267 of the Judgment)<o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;">It concluded that Mr Jenkinson
had failed to show that, in the circumstances of the present case, the
application of different substantive rules of national law to the members of
Eulex Kosovo’s international staff constituted a breach of the principle of
non-discrimination. (para. 271 of the Judgment)<o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;">It is surprising that the Court
of Justice, unlike the General Court, expressed concerns about that similar
disputes of contract staff working in EU missions will be decided differently
depending on what the identified national law prescribes but then did not draw
any consequences from this. <o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;">In this respect Stephan Marquardt,
Eszter Orgovan (Counsels for the EEAS in Case C-46/22) and Emmanuelle
Raoult (Counsel for Eulex Kosovo in Case C-46/22) stated, albeit in their
personal capacity, in a recent academic contribution on the Jenkinson case: <o:p></o:p></p>
<p class="MsoNormal" style="margin-left: 35.4pt; text-align: justify;">“Having
recourse to the applicable national law … carries the risk of diverging
outcomes of similar disputes, notably regarding possible claims for damages,
where the conditions for such claims may differ from one legislation to the
other.”<o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;">(See Stephan Marquardt, Eszter
Orgovan and Emmanuelle Raoult, in <i><a href="https://brill.com/view/title/56756">The European Union's Contribution to
International Peace and Security</a></i>, Chapter 6: ‘The Legal and
Institutional Nature of EU Civilian Crisis Management Missions in the Light of
the Case Law of the Court of Justice of the European Union’).<o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;">This is a legitimate concern that
the defendants have, and here, was to the detriment of Mr. Jenkinson. Had the
national law of another state (e.g., another Member State, or third state)
applied, the requalification claim of a series of fixed-term contracts to a
permanent contract might have succeeded, and the outcome in a similar action
would be different. Not only that, a claim for damages might have succeeded
too. <o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;"><b>Other similar cases pending<o:p></o:p></b></p>
<p class="MsoNormal" style="text-align: justify;">Different outcomes could happen
in future case, including pending cases, which are currently stayed and concern
similar actions involving members of the international staff of Eulex
Kosovo: <i>BL and BM v Council and Others</i> (T‑204/19); <i>QP
and Others v Council and Others</i> (T‑183/21); and <i>RI
and Others v Council and Others</i> (T‑190/21). In relation to a
different mission<a name="ctx1"> there is the case of <i>Stockdale</i></a><i> v Council
and Others</i> (including the European Union’s Special Representative in
Bosnia and Herzegovina) (T‑776/20). Different outcomes could also occur in
future similar litigation, given that it is likely not Irish law will apply in
those cases. This could also lead to irreconcilable judgments. <o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;"><b>Claim of failure to adopt a
legal regime</b> <b>comparable to the CEOS</b><o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;">In his initial application
stretching back to 2017, Mr. Jenkinson sought compensation on the basis that
the Council, Commission, and the EEAS failed to comply with their obligations,
including to recruit him under a legal regime comparable to the CEOS.<span style="mso-spacerun: yes;"> </span><o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;">In his appeal in Case C-46/22 Jenkinson
argued that the General Court infringed Article 336 TFEU by holding that the
Council had lawfully delegated to the Head of Eulex Kosovo the power to adopt
the conditions of employment of international civilian staff. (Article 336 TFEU
provides ‘The European Parliament and the Council shall, acting by means of
regulations in accordance with the ordinary legislative procedure and after
consulting the other institutions concerned, lay down the Staff Regulations of
Officials of the European Union and the Conditions of Employment of other
servants of the Union.’)<o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;">The infringement of Article 336
TFEU also resulted from the fact, that the conditions of employment of
international civilian staff were laid down in the contracts between the Head
of Eulex Kosovo and the members of that mission's staff, whereas they ought to
and should have, instead, been decided by the Council. According to Mr.
Jenkinson, it was for the Council to adopt conditions of employment for
international civilian staff similar to those contained in the CEOS (para. 65
of the Judgment)<o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;">The Court of Justice noted that
Mr. Jenkinson, before the General Court, had made submissions regarding the
non-existence of a framework similar to the CEOS for hiring staff for those
missions. The Court of Justice then took issue with the fact that Mr. Jenkinson
had not sought a declaration from the General Court that there had been an
infringement of Article 336 TFEU through the failure to adopt, on the basis of
that article, a legal regime applicable to employment situations such as that
of Mr Jenkinson (para. 71 of the Judgement). Arguably, he should have. <o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;">In this context, the Court of
Justice rejected Mr. Jenkinson’s complaint in the appeal, that the application
of the substantive national law applicable to his contractual relationship
constituted an infringement of Article 336 TFEU by reason of the absence of a
legal framework adopted on the basis of that article. According to the Court of
Justice, because the complaint was not raised before the General Court, it was
consequently found both inadmissible and unfounded (paras. 72, 73 and 90 of the
Judgment).<o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;">This is significant, as any
contract staff working in an EU mission in a similar future action could make
submissions the Court of Justice considered were missing and seek such
declarations.<o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;"><b>Plea of Illegality regarding Joint
Action 2008/124 establishing the Eulex Kosovo<o:p></o:p></b></p>
<p class="MsoNormal" style="text-align: justify;">The Court of Justice also rejected
Mr. Jenkinson’s arguments regarding a plea of Illegality pursuant to Article
277 TFEU, specifically that Article 9 (3) and Article 10(3) of Joint
Action 2008/124 infringes Article 336 TFEU (paras. 38, 46 and 47 of the Judgment).
Those provisions state that Eulex Kosovo may also recruit international civilian
staff, as required, on a contractual basis and that the conditions of
employment and the rights and obligations of such staff are to be laid down in
the contracts between Eulex Kosovo and the members of staff.<o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;">The Court of Justice referred to
the General Court’s finding, that, even supposing that the appellant had in
fact raised a plea of illegality against Joint Action 2008/124, on the basis of
Article 277 TFEU, it had to be held that that plea was not substantiated. The
Court of Justice did not interfere with the General Court’s finding.<o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;">The plea of illegality regarding Joint
Action 2008/124 could be further substantiated in future litigation before the
General Court in a similar action with the consequence that the Court of
Justice would have to examine the alleged unlawfulness and whether there is an
infringement of Article 336 TFEU.<o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;"><b>National law vs EU staff law resolving
the dispute<o:p></o:p></b></p>
<p class="MsoNormal" style="text-align: justify;">Mr. Jenkinson further argued that
the application of national law by the General Court would be contrary to the
principle of non-discrimination in that it entails three instances of unequal treatment:
<o:p></o:p></p>
<p class="MsoListParagraphCxSpFirst" style="mso-list: l0 level1 lfo1; text-align: justify; text-indent: -18.0pt;"><!--[if !supportLists]--><span lang="DE" style="mso-ascii-font-family: Aptos; mso-bidi-font-family: Aptos; mso-fareast-font-family: Aptos; mso-hansi-font-family: Aptos;"><span style="mso-list: Ignore;">-<span style="font: 7.0pt "Times New Roman";">
</span></span></span><!--[endif]--><span lang="DE">first, Mr. Jenkinson being
treated differently to the servants of the European Union whose conditions of
employment are to be determined exclusively by the Council and the Parliament
pursuant to Article 336 TFEU.<o:p></o:p></span></p>
<p class="MsoListParagraphCxSpMiddle" style="mso-list: l0 level1 lfo1; text-align: justify; text-indent: -18.0pt;"><!--[if !supportLists]--><span lang="DE" style="mso-ascii-font-family: Aptos; mso-bidi-font-family: Aptos; mso-fareast-font-family: Aptos; mso-hansi-font-family: Aptos;"><span style="mso-list: Ignore;">-<span style="font: 7.0pt "Times New Roman";">
</span></span></span><!--[endif]--><span lang="DE">second, the servants of the
European Union, such as Mr Jenkinson, and national workers governed by
private law being treated the same, <o:p></o:p></span></p>
<p class="MsoListParagraphCxSpLast" style="mso-list: l0 level1 lfo1; text-align: justify; text-indent: -18.0pt;"><!--[if !supportLists]--><span lang="DE" style="mso-ascii-font-family: Aptos; mso-bidi-font-family: Aptos; mso-fareast-font-family: Aptos; mso-hansi-font-family: Aptos;"><span style="mso-list: Ignore;">-<span style="font: 7.0pt "Times New Roman";">
</span></span></span><!--[endif]--><span lang="DE">third, international staff of
different nationalities working for the same employer under the same conditions
and circumstances being treated in a discriminatory manner.<o:p></o:p></span></p>
<p class="MsoNormal" style="text-align: justify;"><span style="mso-spacerun: yes;"> </span>(see para. <span style="mso-spacerun: yes;"> </span>95 of the Judgment). <span style="mso-spacerun: yes;"> </span><o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;">Again, this complaint was
rejected by the Court of Justice as a new complaint and rejected as
inadmissible as it was not raised before the General Court, and the Court of Justice
did not make any findings on the substance in this regard (para. 106 of the Judgment).
<o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;">Also, this very compelling
discrimination argument, in particular regarding international staff working
for the same employer (i.e., international staff to whom the EU Staff
regulations apply and international staff to whom national law applies), could
be raised by applicants in future litigation before the General Court. <o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;"><b>Conclusion<o:p></o:p></b></p>
<p class="MsoNormal" style="text-align: justify;">The fact that the Court of
Justice has not interfered with the General Court applying national substantive
law to the dispute is highly problematic for the Council and the EEAS for the
reasons set out in the above-mentioned academic publication. In the future
therefore, it is wholly unpredictable how the national substantive law would
govern other similar disputes for staff in EU missions. This bears considerable
financial risks for the defendants. It also bears risks of future litigation in
which fundamental rights concerns will be raised, in particular a breach of the
principle of equal treatment and the prohibition of discrimination. <o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;">The Court of Justice refrained
from ruling that the Council’s failure to adopt a legal regime for staff in the
EU missions comparable to the CEOS is unlawful which would have obliged the
Council to act. Notwithstanding, the ruling shows that it is no longer
acceptable to keep the status quo. The financial risks associated with future similar
litigation, and the related uncertainties of the outcomes under the case law of
<i>Jenkinson</i>, should be compelling reasons for the Council, the
decision-maker within the CFSP, to act.<span style="mso-spacerun: yes;"> </span>Also,
what the Council back in 2008 establishing Eulex Kosovo might not have been able
to reach a consensus on might be acceptable,16 years later. <o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;">This would be in accordance with
the view expressed in an academic article, the President of the General Court,
Marc van der Woude recently:<o:p></o:p></p>
<p class="MsoNormal" style="margin-left: 35.4pt; text-align: justify;">In light of
the cases that have appeared before the CJEU in this area, that, “the precise
scope of the protection to which employees are entitled in a community of law,
still needs to be defined. Preferably, it should be aligned on the level of
protection to which EU staff regularly employed by the EU institutions can
already aspire.” <o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;">(See, M. van der Woude, ‘The
European Union’s Engagement With Questions of Strategic Autonomy and Security:
Do EU Courts Have a Role to Play?’, (2023), European Foreign Affairs Review,
Volume 28, Issue 4, pp. 311–322). <o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;"><o:p> </o:p></p>
<p class="MsoNormal" style="text-align: justify;">*<b>Antje Kunst</b> is an
international lawyer and a member of Pavocat Chambers advising and representing
individuals in a wide range of matters in the field of the EU’s Common Foreign
Security Policy (CFSP) and takes instructions from individuals challenging a
wide range of decisions including EU employment cases to EU and UN sanctions
before the EU courts and international bodies. <o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;"><o:p> </o:p></p>Steve Peershttp://www.blogger.com/profile/05869161329197244113noreply@blogger.com0tag:blogger.com,1999:blog-8704899696538705849.post-20862938299465955482024-01-18T14:53:00.000-08:002024-01-18T14:53:23.986-08:00Foreign policy sanctions and criminal law harmonisation <p> </p><div class="separator" style="clear: both; text-align: center;"><a href="https://blogger.googleusercontent.com/img/a/AVvXsEjJpchPybrYLBSQpEpBuvaU-hd4JFY7p3nhJA5lHbP96C5Fy6ezP1-euIiPCCDSVdnI6NCcxiBU6ReLmzBJ0Jl2wnzsAUf5cQvtglq2b5GkiH9831YKMxwFIH193rNOsQqtO_pfCaLck-3smCshZ1oPTN8ibmLvvJyuEYCaSLOyRwGBiQW0yX1ogR1xUbI" style="margin-left: 1em; margin-right: 1em;"><img alt="" data-original-height="320" data-original-width="256" height="240" src="https://blogger.googleusercontent.com/img/a/AVvXsEjJpchPybrYLBSQpEpBuvaU-hd4JFY7p3nhJA5lHbP96C5Fy6ezP1-euIiPCCDSVdnI6NCcxiBU6ReLmzBJ0Jl2wnzsAUf5cQvtglq2b5GkiH9831YKMxwFIH193rNOsQqtO_pfCaLck-3smCshZ1oPTN8ibmLvvJyuEYCaSLOyRwGBiQW0yX1ogR1xUbI" width="192" /></a></div><br /><p></p><p></p><p class="MsoNormal" style="text-align: justify;"><b>Professor Steve Peers</b>, Royal
Holloway University of London<o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;"><b>Photo credit</b>: Pierre
Blaché, via <a href="https://commons.wikimedia.org/wiki/File:Eiffel_Tower_with_the_colors_of_the_Ukrainian_flag_(51910907690).jpg">Wikicommons</a><o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;">*This blog post draws upon and
updates research for the 5th edition of <i><a href="https://global.oup.com/academic/product/eu-justice-and-home-affairs-law-9780198890256?cc=gb&lang=en&">EU
Justice and Home Affairs Law<span style="font-style: normal;"> </span></a></i>(OUP,
2023)<o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;">Late last year, the EU Member
States and the European Parliament agreed upon a <a href="https://data.consilium.europa.eu/doc/document/ST-16758-2023-INIT/en/pdf">Directive</a>
to harmonise criminal law as regards EU foreign policy sanctions. This followed
barely a year after the EU Council adopted a <a href="https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=uriserv%3AOJ.L_.2022.308.01.0018.01.ENG&toc=OJ%3AL%3A2022%3A308%3ATOC">decision</a> to
extend EU criminal law competence to cover those sanctions. This blog post
updates a <a href="http://eulawanalysis.blogspot.com/2022/12/eu-foreign-policy-sanctions-extending.html">previous
post</a> that discussed both the 2022 decision on competence and the initial Commission <a href="https://ec.europa.eu/transparency/documents-register/detail?ref=COM(2022)684&lang=en">proposal
for a Directive</a> that has now been agreed in principle. <o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;"><b>The Decision extending
competence<o:p></o:p></b></p>
<p class="MsoNormal" style="text-align: justify;">As noted in the previous post –
and discussed in more detail there – the 2022 Decision extending EU competence
was the first use of the EU’s power to extend the list of crimes which it had
competence to harmonise, as set out in <a href="https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A12008E083">Article
83</a> of the Treaty on the Functioning of the European Union (TFEU). The
previous list of crimes was: ‘terrorism, trafficking in human beings and sexual
exploitation of women and children, illicit drug trafficking, illicit arms
trafficking, money laundering, corruption, counterfeiting of means of payment,
computer crime and organised crime’.<o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;">That competence involves not only
the ‘definition of criminal offences’ but also ‘sanctions’, ie the length of jail
terms and/or other sanctions that can be imposed as part of the criminal law.
However, these are ‘minimum rules’ – meaning that Member States can add to them
as part of their criminal law.<o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;">Since the Treaty of Lisbon
entered into force in 2009, the EU has adopted Directives regarding most of the
ten Eurocrimes, in most cases replacing older forms of EU law adopted before
the Treaty of Lisbon entered into force. The exceptions are arms trafficking,
corruption, and organized crime – although there are pre-Lisbon EU laws
concerning the latter two crimes, a proposal from 2023 to <a href="https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=COM%3A2023%3A234%3AFIN">update
the law regarding corruption</a>, and other EU legislation concerning firearms
that falls short of adopting criminal sanctions for arms trafficking. In any
event, as we shall see, some arms trafficking will fall within the scope of the
newly agreed EU Directive on criminal law and EU foreign policy sanctions.<o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;"><b>The legal context: EU foreign
policy sanctions<o:p></o:p></b></p>
<p class="MsoNormal" style="text-align: justify;">As discussed in more detail in
the previous blog post, there is a body of EU law already in this field, based
on the EU’s powers to adopt Decisions on foreign policy sanctions (along with
other foreign policy issues) on the basis of <a href="https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A12016M029">Article
29</a> of the Treaty of European Union (TEU), alongside <a href="https://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:12008E215:EN:HTML">Article
215 TFEU</a>, which provides for most of those foreign policy sanctions to be
paralleled in the form of ordinary EU law (in practice, Regulations).<o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;">Although Article 215 provides for
qualified majority voting of Member States in the Council, the effective rule
is actually unanimity, for that is the rule which applies in the foreign policy
provisions of the TEU (with marginal exceptions) to the adoption of the EU
foreign policy measures which the Article 215 legislation gives effect
to. The Commission <a href="https://ec.europa.eu/transparency/documents-register/detail?ref=COM(2018)647&lang=en">proposed</a> a
few years ago to drop unanimity here, but Member States didn’t bite. (They would
have to agree unanimously to change the voting rule).<o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;">Over the years, there have been a
lot of EU foreign policy sanctions and a lot of litigation – mostly direct
challenges to the validity of the sanctions measures by the persons or
companies (or even the <a href="http://eulawanalysis.blogspot.com/2021/08/a-curia-mundi-cjeus-judgment-in-case.html">States</a>)
concerned by them in the EU General Court. That Court’s judgments can be
appealed to the CJEU; and <a href="http://eulawanalysis.blogspot.com/2017/03/judicial-control-of-eu-foreign-policy.html">national
courts have occasionally asked the CJEU</a> about the interpretation or
validity of sanctions decisions too. (Although in general the CJEU has no
jurisdiction over EU foreign policy measures – an exception which the Court has
been <a href="http://eulawanalysis.blogspot.com/2023/11/judicial-control-over-alleged-breaches.html">slowly eroding for
awhile</a> – as an exception to the exception, the CJEU has its normal
jurisdiction over foreign policy sanctions: see <a href="https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A12012E275">Article
275 TFEU</a>).<o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;"><b>The details of the Decision<o:p></o:p></b></p>
<p class="MsoNormal" style="text-align: justify;">A key point about the Decision extending
EU competence is that it applies only to the breach of <i>EU</i> foreign policy
sanctions. So the Decision does not give the EU power to harmonize criminal law
as regards the breach of purely <i>national</i> foreign policy
sanctions. The recently agreed Directive respects this distinction, applying
only to EU sanctions. <o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;">However, the competence – and the
recently agreed Directive – are not limited to breach of EU foreign policy
sanctions relating to the Russian invasion of Ukraine, even though that invasion
was the reason why the Decision and the Directive were adopted and agreed. In
fact, the Commission <a href="https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:52022PC0247">proposal</a> for
the Decision noted that the EU has forty sanctions regimes, applying not only
to countries but also ‘targeting proliferation and use of chemical weapons,
cyberattacks, human rights violations and terrorism’. (For more details, see
the Council <a href="https://www.consilium.europa.eu/en/policies/sanctions/">website</a>,
especially its <a href="https://www.sanctionsmap.eu/#/main">sanctions map</a>).
The anti-terrorism sanctions have been around for awhile, attracting high
profile litigation such as cases involving Mr <a href="https://curia.europa.eu/juris/document/document.jsf?text=&docid=67611&pageIndex=0&doclang=en&mode=lst&dir=&occ=first&part=1&cid=36589">Kadi</a> or <a href="https://curia.europa.eu/juris/document/document.jsf?text=&docid=249862&pageIndex=0&doclang=en&mode=lst&dir=&occ=first&part=1&cid=36589">Hamas</a>;
the <a href="https://www.eeas.europa.eu/eeas/eu-has-new-powerful-tool-protect-human-rights-eu-global-human-rights-sanctions-regime-0_en">human
rights sanctions</a> are fairly new, but will sometimes cross over with
other sanctions – see, for instance, the sanctions against Putin’s erstwhile allies, <a href="https://www.consilium.europa.eu/en/press/press-releases/2021/12/13/eu-imposes-restrictive-measures-against-the-wagner-group/">the
Wagner Group</a>, for human rights breaches (along with links to other EU
sanction measures).<o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;">In terms of the type of
sanctions covered, the preamble to the Decision, as well as the recently agreed
Directive, also makes clear that this is broad, applying not only to economic
sanctions such as restrictions on trade or financial relations, but to bans on
entry into the territory (which are also already given effect to by listing the
sanctioned people in the Schengen Information System) and to arms
embargoes. <o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;"><b>The agreed Directive<o:p></o:p></b></p>
<p class="MsoNormal" style="text-align: justify;"><i>Basic rules<o:p></o:p></i></p>
<p class="MsoNormal" style="text-align: justify;">The recently agreed Directive has
similarities to other Directives in this area – see, for instance, the
Directive on harmonization of criminal law as regards <a href="https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex%3A32017L0541">terrorism</a>.
But there are also some new elements compared to other Directives; and in any
event, it is the EU’s first foray into adopting criminal law relating to EU
foreign policy sanctions.<o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;">It should be stressed that (as
the preamble to the Decision confirms) the Directive will not make
breaches of EU foreign policy sanctions criminal for the first time in
most Member States. Just as with issues like terrorism and drug trafficking,
these were already crimes in most national laws before EU law came along. But
the details of the national laws probably differed more before the EU got
involved; the point of the EU’s involvement is to harmonize the
national laws somewhat. <o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;">Member States will have to apply
the Directive one year after its formal adoption (likely in spring 2024) – so by
spring 2025. This is longer than the six months proposed by the Commission, but
less than the two year deadline usually applicable to Member States applying
Directives. <o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;">As noted already, just like the
Decision on competence, the Directive will not be limited just to sanctions
against Russia, but will apply to EU foreign policy sanctions across the board.<o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;">Denmark has an opt out of EU
criminal law adopted after the Treaty of Lisbon, while <a href="https://twitter.com/StevePeers/status/1633308883660800001?s=20">Ireland opted
in</a>. <o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;"><i>Definition of crimes<o:p></o:p></i></p>
<p class="MsoNormal" style="text-align: justify;">The agreed Directive will require
Member States to criminalize nine types of breach of EU sanctions, which can be
summarised as: making funds available to sanctioned persons; failing to freeze
funds of sanctioned persons; enabling the entry or transit of a person covered
by an entry ban deriving from EU sanctions (in effect, an immigration law
offence that might overlap with the pre-existing EU law on <a href="https://eur-lex.europa.eu/legal-content/EN/ALL/?uri=celex%3A32002L0090">facilitation
of illegal entry and residence</a> – itself subject to a recent <a href="https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:52023PC0755">proposed
replacement</a>); entering into transactions with sanctioned entities; trading
in goods or services covered by EU sanctions; providing financial services
despite an EU law sanction; providing other services banned by sanctions law;
circumvention of sanctions; or abusing exceptions to the sanctions laws. <o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;">Member States will have an option
(not in the Commission proposal) to exempt from criminalisation breaches
involving sums less than €10k, although where multiple such minor breaches are
linked, Member States must accumulate them so that they might reach the €10k
threshold that way. (This threshold does not apply to entry bans, presumably
because a financial threshold is irrelevant)<o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;">In every case, an intentional
breach will have to be criminalized; and in one case (trade in arms or dual use
goods subject to sanctions), ‘serious negligence’ resulting in the breach will have
to be criminalized too. The Commission had proposed that ‘serious negligence’
should be criminalised in most cases. <span style="mso-spacerun: yes;"> </span><span style="mso-spacerun: yes;"> </span><o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;">There is a novel clause on the
position of lawyers advising those accused of sanctions breaches, which differs
somewhat from the Commission’s proposal:<o:p></o:p></p>
<p class="MsoNormal" style="margin-left: 36.0pt; text-align: justify;">Nothing in
paragraph 1 shall be understood as imposing an obligation on legal
professionals to report information that they receive from, or obtain on, one
of their clients, in the course of ascertaining the legal position of their
client, or performing the task of defending or representing that client in, or
concerning, judicial proceedings, including providing advice on instituting or
avoiding such proceedings<o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;">There is also an exemption for goods
or services provided for persons in need or humanitarian aid, although usually
EU sanctions law <a href="https://www.consilium.europa.eu/en/press/press-releases/2023/11/27/humanitarian-action-eu-introduces-further-exceptions-to-sanctions-to-facilitate-the-delivery-of-assistance/">has
its own exceptions</a> for those cases anyway. <o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;">Inchoate offences of incitement
and (in most cases) attempts are also criminalized, as is aiding and abetting. <o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;"><i>Penalties<o:p></o:p></i></p>
<p class="MsoNormal" style="text-align: justify;">Member States will have to provide
for a maximum possible penalty of at least five years for most of the main offences
(not the inchoate offences), and one year for most of the rest of the main
offences – subject to a threshold of €100,000 being involved (which can again be
satisfied by a linked series of offences). No financial threshold will apply in
two cases: breaches of entry bans and trade in sanctioned arms or dual use
goods. Furthermore, a three year maximum possible penalty applies to breaches
of entry bans. <o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;">More generally, as regards the
commission of any of the offences defined by the Directive, Member States will
be obliged to provide for additional penalties, such as fines, withdrawal of
permits, and even (a novelty for EU criminal law) a temporary ban on running
for office.<o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;">Legal persons are subject to
liability, too, and must be subject to penalties such as shutting down the
business or withdrawal of its licences. This is a longer list than usually
provided for in EU criminal law Directives. The Directive will go further than
usual in specifying the amount of possible fines, including basing them on
annual turnover (a method previously applied in non-criminal areas of EU law,
such as competition law and the GDPR).<o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;">Criminal liability must be
aggravated in certain cases (such as organized crime, breach of duty by a
public official or a professional, obstruction of justice, or prior convictions
in this field), and mitigated in others (where the offender ‘flips’ on his or
her criminal associates).<o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;"><i>Other provisions<o:p></o:p></i></p>
<p class="MsoNormal" style="text-align: justify;">Criminal jurisdiction would apply,
as usual under EU criminal law Directives, to acts committed on the territory,
on a ship or aircraft with a national flag, or by nationals. Member States will
have an option to apply liability to habitual residents.<o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;">Unusually, there will be rules on
limitation periods, ie when Member States would be out of time to bring a
prosecution or enforce a sentence. In most cases the limitation period would be
five years, with a possibility for derogation to at least three years where the
period can be interrupted by specified acts. Previously Member States have only
agreed to regulate this issue via EU law as regards <a href="https://eur-lex.europa.eu/legal-content/EN/ALL/?uri=CELEX%3A32017L1371#d1e1111-29-1">fraud
against the EU budget</a> (although the <a href="https://data.consilium.europa.eu/doc/document/ST-17114-2023-INIT/en/pdf">agreed
Directive</a> on environmental crime contains limitation rules, and the proposal
on <a href="https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A52022PC0105">violence
against women</a> would also address this point).<o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;">Finally, there would be links to
other EU law (besides, obviously, the sanctions laws themselves). The proposal
would link up with EU criminal law on money laundering and confiscation (the
latter now also <a href="https://www.europarl.europa.eu/meetdocs/2014_2019/plmrep/COMMITTEES/LIBE/DV/2024/01-22/ARC-ANNEXtoletterfromChairtoEP-Confiscation_EN.pdf">being
amended</a>), plus there is a novel link to the EU legislation on <a href="http://eulawanalysis.blogspot.com/2019/04/new-eu-directive-on-whistleblower.html#:~:text=Reporting%20to%20the%20public%20still,they%20reported%20to%20the%20public.&text=The%20Directive%20applies%20both%20in,sector%2C%20including%20to%20local%20authorities.">whistleblowers</a>:
that law must also apply to protect those in a company or organization who tip
off the authorities about breaches of sanctions. Conversely, there is no
proposed amendment of the law on the European Arrest Warrant – even though
breach of EU foreign policy sanctions is not on the list of crimes
where the dual criminality condition for extradition must be waived. However,
prosecution or sentences for sanctions breaches will sometimes fall within
areas where dual criminality has to be waived (like terrorism or organized
crime); and the dual criminality condition is more likely to be met as a result
of the harmonization Directive anyway (it may even be met already, simply by
virtue of the foreign policy sanctions measures themselves). <o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;"><b>Comments<o:p></o:p></b></p>
<p class="MsoNormal" style="text-align: justify;">It is hard to assess the likely
impact of the Directive, for several reasons. <o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;">First of all, it is difficult to
see what impact the Directive will have in practice without more detail on what
changes would be made to national law as a consequence of its adoption. As
noted already, while the Directive will bring about some harmonisation, Member States
already have some criminal laws on the books in this field. <o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;">Secondly, a key issue with
criminal law – just as with non-criminal forms of regulation of conduct – is that
its effectiveness depends upon the resources and expertise necessary to
investigate and bring prosecutions. On this point, the prospect of extending
competence to the European Public Prosecutor’s Office (EPPO) to include
breaches of EU foreign policy sanctions was <a href="https://www.lemonde.fr/idees/article/2022/11/29/l-appel-des-ministres-francais-et-allemand-de-la-justice-nous-souhaitons-l-extension-de-la-competence-du-parquet-europeen-aux-violations-des-sanctions-prises-par-l-ue_6152070_3232.html">raised
by the German and French justice ministers</a>. This would be important but has
not been raised again since the Directive was proposed. (Extensions of EPPO
competence need unanimous agreement of Member States, although some Member
States have opted out of the EPPO; the Commission’s proposal to <a href="https://eur-lex.europa.eu/legal-content/en/ALL/?uri=CELEX%3A52018DC0641">extend
its competence to terrorism</a> has not been agreed so far).<o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;">An extension of EU competence might
be seen as an EU power-grab, but it is notable that it is an exception: over
fourteen years after the Lisbon Treaty came into force, it is the only such extension
of competence to date. By contrast, as noted above, Member States have not yet
agreed an earlier proposal to extend the list of Eurocrimes to cover <a href="https://ec.europa.eu/info/sites/default/files/1_1_178542_comm_eu_crimes_en.pdf">hate
speech and hate crimes</a>, or agreed the proposal to drop unanimous voting for
some foreign policy measures; nor have they agreed to drop unanimity in <a href="http://eulawanalysis.blogspot.com/2019/06/more-majority-voting-on-eu-social.html">a
number of other areas</a> which the Commission proposed years
ago. <o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;">It is striking to see some novel
points (for EU criminal law) in this Directive: the specific rule on lawyers; the penalty of a ban on running for office (obviously relevant because politicians might be tempted to, and be in a position to, breach the sanctions); the more detailed regulation of financial penalties a la other areas of (non-criminal)
EU law; the obstruction of justice point; and the link with the whistleblowers
law. It is only the second time that the EU has agreed to regulate limitation
periods (although the revised environmental crime directive, also including
similar provisions, was agreed essentially simultaneously). <o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;">It is also significance to see the
singling out of arms trade in breach of sanctions for stricter treatment in several
respects, given the EU’s reluctance to regulate this issue as a Eurocrime to
date. In the context of foreign policy sanctions, it makes sense to treat the arms
trade more seriously, given its more direct contribution to the death and injury
which the EU sanctions aim to end. <o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;">The extension of competence is
also best understood as part of the EU’s response to the Russian invasion of
Ukraine – which has also prompted developments as regards the start (in
principle) of accession negotiations, the use of EU defence powers, and the first-ever
use of the long-dormant <a href="http://eulawanalysis.blogspot.com/2022/02/temporary-protection-for-ukrainians-in.html">temporary
protection Directive</a>. By itself, the extension of EU competence and the use
of those criminal law powers will not end the invasion – and, as noted already,
the agreed Directive applies to other EU sanctions too. Nor does it address the
criticism that that those sanctions are too little and too late. But it may
make some contribution to the effective implementation of those sanctions which
have been established to oppose the invasion, and in any event it sends a
political message that the EU is stepping up their enforcement. <o:p></o:p></p><br /><p></p>Steve Peershttp://www.blogger.com/profile/05869161329197244113noreply@blogger.com0tag:blogger.com,1999:blog-8704899696538705849.post-28430765399987291362024-01-04T03:22:00.000-08:002024-01-04T03:22:15.736-08:00 Football Revolution: how do the Court’s rulings of 21 December 2023 affect UEFA’s role as a ‘gatekeeper’?<div class="separator" style="clear: both; text-align: center;"><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEhux9uc_pW0Kg_1tq4o9BZQea-2DMD0tISQlnONotWjAO3rVqTr_fkNTyFidBi37ik2cLngq_uE-seuY6qXAzAY0wHo13z6T-Dx2iowtNaOwQzX-O3CNlrTWyavnhh8WMuHB3poXyfhyphenhyphenLcYH62hPQyG7vw4vL_Vmw9tIj78TX8o36xpW8IJdTZWkPNggXw/s961/football.jpg" imageanchor="1" style="margin-left: 1em; margin-right: 1em;"><img border="0" data-original-height="905" data-original-width="961" height="301" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEhux9uc_pW0Kg_1tq4o9BZQea-2DMD0tISQlnONotWjAO3rVqTr_fkNTyFidBi37ik2cLngq_uE-seuY6qXAzAY0wHo13z6T-Dx2iowtNaOwQzX-O3CNlrTWyavnhh8WMuHB3poXyfhyphenhyphenLcYH62hPQyG7vw4vL_Vmw9tIj78TX8o36xpW8IJdTZWkPNggXw/s320/football.jpg" width="320" /></a></div><br /><p><br /></p><p><br /></p><p><b style="text-align: justify;">Steve Weatherill</b><span style="text-align: justify;">, Somerville
College and Faculty of Law, University of Oxford</span></p><p class="MsoNormal" style="text-align: justify;"><o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;"><b>Photo credit</b>: Werner100359,
via <a href="https://commons.wikimedia.org/wiki/File:FC_Salzburg_gegen_Liverpool_FC_(UEFA_Champions_League_10.Dezember_2019)_58.jpg">Wikimedia
Commons</a><o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;"><b><o:p> </o:p></b></p>
<p class="MsoNormal" style="text-align: justify;"><b>Summary <o:p></o:p></b></p>
<p class="MsoNormal" style="text-align: justify;">The Court of Justice’s rulings of
21 December 2023 found practices associated with prior approval of new sporting
competitions organised by third parties to be incompatible with EU law. The
most prominent reason for this finding was the absence of transparent, non-discriminatory,
clear and precise substantive criteria and procedures. So – of course – governing
bodies in sport must amend their practices. But what remains, if anything, of
their legitimate role as a ‘gatekeeper’? Assume a prior approval system is based
on transparent, non-discriminatory, clear and precise substantive criteria and
procedures: when may a governing body – I will focus on football and on UEFA -
refuse to authorise a new competition? <o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;">I have three questions to address
in order to elucidate the legal principles set out by the Court on 21 December.
<i>First</i> could UEFA refuse to authorise a closed League (and could it
penalise participants)? I think, yes. <i>Second</i> could UEFA refuse to
authorise a second Champions League (and penalise participants) – i.e. in a
format identical to its own, except owned by third parties? I think, no. <i>Third</i>
could UEFA refuse to authorise a new competition (and penalise participants)
where the format is not identical to its own, but similar (and not closed), except
owned by third parties? I think, no, unless UEFA can demonstrate its own
competitions are superior according to the (predominantly economic criteria)
recognised by EU law. It seems to me that UEFA is entitled to defend the
European Model of Sport, most conspicuously by legitimately using its power to
forestall the creation of a ‘closed’ competition, but UEFA is not entitled to
protect its monopoly over the supply of competitions which comply with the
European Model of Sport. Therefore the Court has opened the door as a matter of
law to those who would wish to revolutionise football in Europe.<o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;"><o:p> </o:p></p>
<p class="MsoNormal" style="text-align: justify;"><b>The treatment of governing
bodies in sport as ‘gatekeepers’<o:p></o:p></b></p>
<p class="MsoNormal" style="text-align: justify;">What is the status of governing
bodies in sport – UEFA in particular - as ‘gatekeepers’ in the light of the three
momentous and lengthy rulings of 21 December 2023 - <a href="https://curia.europa.eu/juris/document/document.jsf?text=&docid=280765&pageIndex=0&doclang=en&mode=lst&dir=&occ=first&part=1&cid=12594255">Case
C-333/21</a> <i>European Superleague Company SL v FIFA, UEFA</i>; <a href="https://curia.europa.eu/juris/document/document.jsf?text=&docid=280764&pageIndex=0&doclang=en&mode=lst&dir=&occ=first&part=1&cid=12594423">Case
C-680/21</a><i> UL, SA Royal Antwerp Football Club v URBSFA, UEFA</i>; <a href="https://curia.europa.eu/juris/document/document.jsf?text=&docid=280763&pageIndex=0&doclang=en&mode=lst&dir=&occ=first&part=1&cid=12594556">Case
C-124/21 P</a> <i>International Skating Union v Commission</i>. The three
rulings, all delivered by the Grand Chamber, will be referred to hereafter as <i>ESL</i>,
<i>Royal Antwerp</i> and <i>ISU</i>.<o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;">The Court went out of its way in <i>ESL</i>
to insist that its ruling mainly addresses the compatibility with EU law of FIFA
and UEFA rules governing the prior approval of competitions and participation
therein by professional football clubs or players. The Court was not being
asked to rule on the compatibility of the Super League project itself with EU
law (<i>ESL</i> para 80). The rulings, though important, do not answer every
question and in fact they ask several new ones. Sometimes the Court issues
rulings which are relatively concrete and have a quasi-legislative feel – not on
this occasion. <o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;">Plainly, however, the Court on 21
December 2023 has done much to develop our understanding of the legal framework
which surrounds UEFA’s power of prior approval. Consequently it has also done
much to provide those who would wish to challenge the existence and/ or
exercise of that power in order to offer new competitions on the market for
football in Europe with fresh ammunition. The original version of the
Superleague – a ‘closed’ competition to which in any event only two of the
original twelve participating clubs continue to express fidelity – may be dead,
but the incentives to challenge UEFA’s monopoly and to introduce new
competitions have not vanished. This power struggle has only just begun.<o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;">The ‘gatekeeping’ power or the
power of prior approval claimed by UEFA is a power to authorise new events (or
not). It is, then, the power to determine the conditions under which potentially
competing undertakings may enter the market for the supply of football
competitions. This is a market which is well known to be immensely lucrative,
but it is also, as recent trends in club ownership reveal, of increasing
political salience. The world covets European football.<o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;">This gatekeeping power is capable
of falling within the scope of EU law – of course. The rulings of 21 December
2023 are clear on this, unsurprisingly so. The ‘rules on a sporting
association’s exercise of powers governing prior approval for sporting
competitions, the organisation and marketing of which constitute an economic
activity for the undertakings involved or planning to be involved therein,
come, in that capacity, within the scope of the … <span style="mso-spacerun: yes;"> </span>Treaty provisions on competition law’ (<i>ESL</i>
para 90). In support of this proposition the Court is able to cite its previous
ruling of 1 July 2008, <i><a href="https://curia.europa.eu/juris/document/document.jsf?text=&docid=67060&pageIndex=0&doclang=en&mode=lst&dir=&occ=first&part=1&cid=12594556">MOTOE</a></i>,
C‑49/07, which also found the gatekeeping practices of a governing body in
sport (<i>in casu</i> motorcycling) to fall foul of EU competition law. And it
added that for the same reason the rules also come within the scope of the
Treaty provisions on freedom of movement (<i>ESL</i> para 90).<o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;">The Court tells us that EU law is
violated where that power of prior approval is not governed by transparent,
clear and precise substantive criteria, which make it possible to prevent it
from being used arbitrarily. Those criteria must be appropriate to ensure the
non-discriminatory exercise of such a power and to enable effective review.
Moreover there shall be transparent and non-discriminatory procedural rules. The
rulings, most of all ESL, are larded with insistence on these features as a
condition of legality (<i>ESL</i> paras 88, 134-136, 147-8, 151-152, 175, 177, 178,
179, 203, 254, 255; <i>Royal Antwerp</i> para 57; <i>ISU</i> paras 127, 133).
It applies across the board in internal market law too – the same principles
are applicable to review pursuant to Article 102, Article 101 and Article 56
(on abuses of a dominant position, cartels, and free movement of services) too,
so competition and free movement law are aligned on this point.<o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;">This is general EU internal
market law. As the Court takes care to point out, this is consistent with
existing internal market case law in a wide range of economic sectors. Case law
cited ranges across several areas of activity. <i>ESL</i> para 133, and <i>ISU</i>
para 125 cite <i><a href="https://curia.europa.eu/juris/showPdf.jsf?text=&docid=95900&pageIndex=0&doclang=en&mode=lst&dir=&occ=first&part=1&cid=12594556">GB-Inno-BM</a></i>,
C‑18/88, which concerns telecommunications and <i><a href="https://curia.europa.eu/juris/liste.jsf?nat=or&mat=or&pcs=Oor&jur=C%2CT%2CF&for=&jge=&dates=&language=en&pro=&cit=none%252CC%252CCJ%252CR%252C2008E%252C%252C%252C%252C%252C%252C%252C%252C%252C%252Ctrue%252Cfalse%252Cfalse&oqp=&td=%3BALL&avg=&parties=raso&lg=&page=1&cid=12594423">Raso
and Others</a></i>, C‑163/96, which concerns the management of ports, alongside <i>MOTOE</i>
from the world of sport.<o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;">We can understand this as EU law
requiring good governance standards (transparency, non-discrimination etc) as a
pre-condition to finding regulatory practices to be lawful. This is not
specific to sport, but rather to any situation in which a body exercises a
power of, in short, gatekeeping.<o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;">The Court is anxious to protect
equality of opportunity as between undertakings, and to entrust an undertaking
which exercises a given economic activity the power to determine which other
undertakings are also authorised to engage in that activity and to determine
the conditions in which that activity may be exercised, gives rise to a
conflict of interests and puts that undertaking at an obvious advantage over
its competitors, by enabling it to deny them entry to the market concerned or
to favour its own activity. <o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;">The Court goes out of its way to
note that it does not matter how this is created, whether by public law
delegation or private market power (<i>ESL</i> paras 133, 137; <i>ISU</i> paras
125, 126). <i>MOTOE</i>, the motorcycling case, arose out of state regulation,
but the principle that such a gatekeeper needs to be controlled is – it is now
made clear by the Court - not limited to that, it applies to a gatekeeping
power however created and in whichever economic sector, and in fact it is
particularly important where the power is not derived from a grant made by a
public authority (<i>ESL</i> para 137). But, even if the principle is of
general application to any kind of ‘gatekeeper’, it might be of particular
relevance to sport given the notoriously poor governance standards that plague
some parts of it. And it is of particular relevance to the practices under
scrutiny in the judgments, because at the time the process followed by UEFA and
the ISU as gatekeepers was clearly deficient. <o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;">The absence of a framework providing
for substantive criteria and detailed procedural rules suitable for ensuring
that they are transparent, objective, non-discriminatory was fatal to the rules
when they were put to the tests demanded by Articles 102, 101 and 56 TFEU. This
is why the governing body practices were found to be unlawful on 21 December
2023 – just as fifteen years previously <i>MOTOE</i> had condemned the
practices of a governing body in sport as contrary to EU competition law for
want of restrictions, obligations and review within the prior approval process.<o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;">So governing bodies in sport and
UEFA in particular must change. They must improve. Let us assume they do. Let us
assume that a governing body has such a ‘gatekeeping’ power governed by
transparent, clear and precise substantive criteria, which make it possible to
prevent it from being used arbitrarily. They are appropriate to ensure the
non-discriminatory exercise of the power and to enable effective review. There
are transparent and non-discriminatory procedural rules. <o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;">Is that enough? What more does EU
law have to say? Most of all, within the framework applicable to authorisation decisions,
what criteria are legitimately applied to exclude third party organisers, and
which are not? This is vital to understand just how far the Court on 21
December 2023 has shrunk UEFA’s powers as a gatekeeper.<o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;">The Court takes us a bit further.
But the whole story is yet to be told.<o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;">Three questions serve to
structure the analysis: <i>First</i> could UEFA refuse to authorise a closed
League (and could it penalise participants)? <i>Second</i> could UEFA refuse to
authorise a second Champions League (and penalise participants) – i.e. in a
format identical to its own, except owned by third parties? <i>Third</i> could
UEFA refuse to authorise a new competition (and penalise participants) where
the format is not identical to its own, but similar (and not closed), except
owned by third parties?<o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;"><o:p> </o:p></p>
<p class="MsoNormal" style="text-align: justify;"><b>(i) First question<o:p></o:p></b></p>
<p class="MsoNormal" style="text-align: justify;">Could UEFA refuse to authorise a
closed League (and could it penalise participants)? Obviously it could not when
it had the inadequate framework which is the background to the rulings of 21
December, but if it has cleaned up its process and now follows a scheme that
meets the Court’s requirements of transparency, objectivity etc, could it
refuse to authorise a closed League (and could it penalise participants)? <o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;">I think, yes, UEFA could refuse
to authorise a closed League. <o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;"><i>ESL</i> para 143 concerns
Article 102. It tells us participation in and conduct of competitions is based
on sporting merit, which can only be guaranteed if all the teams involved
compete under homogeneous regulatory and technical conditions, ensuring a
certain equality of opportunity. Para 144 tells us it is legitimate to make the
organisation and conduct of international professional football competitions
subject to common rules, and, more broadly, to promote competitions based on
equal opportunities and merit. Compliance can legitimately be ensured by a
scheme of prior authorisation and by accompanying sanctions in the case of
violation of the rules. The same phrase appears at <i>ISU</i> para 132: the
holding of sporting competitions based on equality of opportunity and merit.<o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;"><i>ESL</i> para 175 addresses
Article 101. It begins by stating that ‘it follows from paragraphs 142 to
149’ – i.e. the Court explicitly wants to align Article 101 to Article 102 on
this point - that the specific nature of international football competitions
and the real conditions of the structure and functioning of the market for the
organisation and marketing of those competitions on European Union territory
lend credence to the idea that it is legitimate to have rules on prior approval
– though they need to be objective, transparent etc. Para 176 states that rules
on prior authorisation may be motivated by the pursuit of certain legitimate
objectives, such as that of ensuring respect for the principles, values and
rules of the game which underpin professional football. <o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;">Para 253 contains the same
approach to Article 56 TFEU on the free movement of services.<o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;">So – provided always that the
process meets the requirements of objectivity, transparency etc – the Court
appears to accept that a prior authorisation system may be used to refuse a
competition which is not based on sporting merit. So, most obviously, a ‘no’ to
closed leagues (and penalties on participants) appears to be a legitimate
exercise of the gatekeeping function.<o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;">The legal basis for this
legitimate exclusion of closed Leagues is not made entirely clear by the Court.
An important part of the package unwrapped on 21 December is to shrink the role
played in the legal analysis by <i><a href="https://curia.europa.eu/juris/document/document.jsf?text=&docid=46722&pageIndex=0&doclang=en&mode=lst&dir=&occ=first&part=1&cid=12596076">Wouters
and Others</a></i>, C‑309/99 and <i><a href="https://curia.europa.eu/juris/document/document.jsf?text=&docid=57022&pageIndex=0&doclang=en&mode=lst&dir=&occ=first&part=1&cid=12596374">Meca-Medina
and Majcen v Commission</a></i>, C‑519/04 P. Conduct which ‘by
its very nature infringes Article 102 TFEU’ cannot benefit from the <i>Wouters</i>/<i>
Meca</i> formula (<i>ESL</i>, para 185). Nor does it apply in situations
involving conduct which, far from merely having the inherent effect of
restricting competition, ‘reveals a degree of harm in relation to that
competition that justifies a finding that it has as its very “object” the
prevention, restriction or distortion of competition’ (<i>ESL</i>, para 186, <i>Royal
Antwerp</i>, para 115). So only if conduct does not have as its object the
prevention, restriction or distortion of competition and does not by its very
nature infringe Article 102 does the <i>Meca-Medina</i> route open up, allowing
a governing body in sport to show its practices to be necessary to achieve
legitimate objectives and thereby to place its practices beyond the scope of
the Treaty rules on competition.<a name="_Hlk154989377"> <o:p></o:p></a></p>
<p class="MsoNormal" style="text-align: justify;"><span style="mso-bookmark: _Hlk154989377;">All
this comes later in the ruling in <i>ESL</i> than the acceptance that
participation in and conduct of competitions shall be based on sporting merit
and equal opportunities and merit and that rules on prior authorisation may be
motivated by the pursuit of legitimate objectives including respect for the
principles, values and rules of the game which underpin professional football -
<i>ESL</i> paras 143, 144 re Article 102, para 176 re Article 101 and see also para
132 of <i>ISU</i>. Probably, then, the correct understanding is that action
taken to defend sporting merit is not a restriction of competition by object at
all within the (new) understanding of the scope of Article 101(1), and so
benefits from application of the <i>Meca-Medina</i> formula. <o:p></o:p></span></p>
<span style="mso-bookmark: _Hlk154989377;"></span>
<p class="MsoNormal" style="text-align: justify;">The object of requiring that new
competitions be open and based on sporting merit is not to restrict competition
but rather ‘the pursuit of legitimate objectives, such as ensuring observance
of the principles, values and rules of the game underpinning professional
football’ (<i>ESL</i> para 176) - just as in <i>Meca-Medina</i> itself the
Court found an inherent effect of restricting potential competition between
athletes as a result of anti-doping but placed the matter outwith Article
101(1) because the rules had the objective to ‘to safeguard the fairness,
integrity and objectivity of the conduct of competitive sport, ensure equal
opportunities for athletes, protect their health and uphold the ethical values
at the heart of sport, including merit’ (as explained, citing <i>Meca-Medina
and Majcen v Commission</i>, C‑519/04 P, EU:C:2006:492, in <i>ESL</i>
para 184, <i>Royal Antwerp</i> para 114, <i>ISU</i> para 112).<o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;">So, in sum: it is potentially
lawful to act to suppress a competition not based on access via sporting merit,
subject to showing transparent, objective, non-discriminatory (etc) criteria.
This is clearly important, and it puts a shape on the legitimate objectives
which UEFA may pursue in crafting pre-authorisation criteria. The Court in <i>ESL</i>
is not opening the door to a free-for-all – certain types of sporting
competition are, it seems, legitimately suppressed by UEFA as gatekeeper. In
this sense the judgments put a shape on the European Sports Model. It may as a
matter of law be defended: UEFA may legitimately act against ‘closed’
competitions and insist instead that only competitions which are merit-based
may be approved. In December 2022 Advocate General Rantos wrote a wildly
adventurous <a href="https://curia.europa.eu/juris/document/document.jsf?text=&docid=268624&pageIndex=0&doclang=en&mode=lst&dir=&occ=first&part=1&cid=12597189">Opinion</a>
in <i>ESL</i> which claimed that Article 165 ‘constitutionalised’ the European Sports
Model and that accordingly EU law granted a high level of protection to the
sporting status quo. One year later the Court’s rulings of 21 December 2023
ignore Mr Rantos’s Opinion and prefer a much more restrained reading of the
extent to which EU law respects the specificity of sport. But on this
particular point – the distaste for competitions which are not based on
sporting merit – the Court echoes Mr Rantos in its willingness to interpret EU
internal market law in a way that gives constitutionalised (i.e. recognised in
primary law) protection to open competitions.<o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;">This seems very helpful to UEFA.
It is entitled to act as a gatekeeper charged with the responsibility to defend
a model based on sporting merit. It means too that UEFA’s own competitions need
to have access based on sporting merit.<o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;"><o:p> </o:p></p>
<p class="MsoNormal" style="text-align: justify;"><b>(ii) Second question <o:p></o:p></b></p>
<p class="MsoNormal" style="text-align: justify;">Could UEFA refuse to authorise a
second Champions League (and penalise participants) – i.e. in a format
identical to its own, except owned by third parties?<o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;">I think, no.<o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;">This follows from <i>ESL</i> para
151 (concerning Article 102), on non-discrimination. This notes that UEFA
itself is economically active in the market in which it has the power of
pre-authorisation. So the criteria applicable must not favour UEFA over third
parties. If UEFA is able to stage a competition, then it cannot prevent a third
party from staging a similar competition.<o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;">It means too that UEFA may not
place restrictions on third party organisers which have the effect of favouring
its own competitions over others. It could not for example authorise clubs to
participate in a new competition while also requiring them to participate in
the UEFA Champions League.<o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;">UEFA’s rules on prior approval
were overhauled after ESL was referred to the Court but before the rulings of
21 December 2023. So the rules and procedures governing prior approval
condemned by the Court are not the rules and procedures which UEFA employs
today. Its June 2022 renovated Regulations <span style="mso-spacerun: yes;"> </span>may be found here: <a href="https://documents.uefa.com/v/u/_rmtminDpysQUj1VGB01HA">https://documents.uefa.com/v/u/_rmtminDpysQUj1VGB01HA</a>.<o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;">However the rules, amended to
clarify process and applicable criteria, seem to me to violate the
non-discrimination rule on which the Court insists. They provide that third
party organisers ‘shall provide confirmation that the clubs concerned can
always comply with their obligation to field their strongest team throughout
UEFA club competitions and national club competitions and any other
International Club Competition authorised by UEFA’; also that ‘in order to
protect the sporting merit of UEFA Champion Club Competitions’ and so that it
‘shall not adversely affect the good functioning of UEFA Champion Club
Competitions’ particular conditions shall be met. <o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;">That seems to me to be unlawful.
It seeks to protect the pre-eminence of UEFA’s competitions in the market.<o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;">The ruling in <i>ESL</i> seems to
open up scope for competing football competitions. I have often wondered if
UEFA could claim a need to have one and only one European competition for elite
clubs, to produce the true champion – so football isn’t like boxing. There is no
hint in the rulings of 21 December that this would be a legitimate exercise of
UEFA’s gatekeeping role. Instead the Court seems to open the door to multiple
competing versions of the Champions League. Whether that is economically
sustainable is far from clear: I do not explore that here, I confine myself to
exploring what shape EU law places on available opportunities.<o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;"><o:p> </o:p></p>
<p class="MsoNormal" style="text-align: justify;"><b>(iii) Third question</b> <o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;">Could UEFA refuse to authorise a
new competition (and penalise participants) where the format is not identical
to its own, but similar (and not closed), except owned by third parties?<o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;">I think, no, unless UEFA can
demonstrate its own competitions are superior according to the (predominantly
economic criteria) recognised by EU law.<o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;">The question here is whether the
ruling in <i>ESL</i> restricts UEFA still further than merely a
non-discrimination standard. If it does – it is dynamite!<o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;">I think it does, although there
is room for argument about precisely what the Court’s rulings entail.<o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;"><i>ESL</i> para 176 ESL (addressing
Article 101 TFEU) seems stronger still than a non-discrimination standard. It
notes that the pre-authorisation rules limit the design and marketing of
alternative or new competitions, even though they might offer an innovative
format attractive to consumers. They ‘completely deprive spectators and
television viewers of the opportunity to attend those competitions or to watch
the broadcast thereof’ (see also <i>ISU</i> para 146). That suggests an even
tighter control over UEFA than a mere non-discrimination standard. What is
needed, it seems, is a calculation of the attractiveness of the competitions on
offer (by national courts; maybe also by the Commission enforcing the Treaty
competition rules). UEFA cannot simply say: this is our model, and we tolerate
no other. This is explosive. It is here that the Court’s ruling could be
revolutionary or, at least, that it opens the door as a matter of law to those
who would wish to revolutionise football in Europe. The ruling’s treatment of media
rights seems the same. UEFA cannot simply say this is the existing design and
it cannot be changed. Its quality needs to be assessed (in a serious manner).<o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;">This is where/ why we appreciate
the significance of the Court’s refusal to allow <i>Meca-Medina</i> to apply to
practices which it considers by their very nature to infringe Article 102
TFEU (ESL para 185) or to conduct which does not merely having the inherent
‘effect’ of restricting competition but rather reveals a degree of harm in
relation to that competition that justifies a finding that it has as its very
‘object’ the prevention, restriction or distortion of competition (<i>ESL</i>
para 186, <i>Royal Antwerp</i> para 115, ISU para 113). The <i>Meca-Medina</i>
test, which invites a relatively open-ended assessment of the necessity of
practices to meet legitimate objectives in sport, is replaced by a narrower
test. The pre-authorisation scheme used by UEFA to deal with new competitions
(which are open and based on sporting merit) can survive only if it complies
with Article 101(3) and 102. <o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;">Exemption pursuant to Article
101(3) is possible, but the Court in <i>ESL</i> chooses to spell out with some
detailed care what is at stake under a clear concern to instruct a national
court to make a careful assessment of the prevailing circumstances, and not to
make easy assumptions about UEFA’s compliance with Article 101(3). (I take this
to be part of the motivation for its choice to shrink the scope of the much
looser <i>Meca-Medina</i> test). Efficiency gains must correspond not to any
advantage enjoyed by UEFA but only to ‘the appreciable objective advantages’
that practice makes it possible to attain in the market(s) concerned (<i>ESL</i>
para 152, <i>Royal Antwerp</i> para 121); those efficiency gains must have a
positive impact on all users, be they traders, intermediate consumers or end
consumers, which in football means inter alia, national football associations,
professional or amateur clubs, professional or amateur players, young players
and, more broadly, consumers, be they spectators or television viewers; the
conduct at issue must be indispensable or necessary; and must not provide the
opportunity to eliminate all actual competition for a substantial part of the products
or services concerned (the large market share held by UEFA is here clearly
relevant and causes the Court particular anxiety, <i>ESL</i> paras 199, 207).<o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;">The Court moves to Article 102,
and expressly aligns its interpretation with that advanced under Article 101(3)
(<i>ESL</i>, paras 201, 205). An undertaking holding a dominant position may
escape a condemnation of abuse by showing that its conduct is objectively
necessary, or that the exclusionary effect produced may be counterbalanced or
even outweighed by advantages in terms of efficiency which also benefit the
consumer: this is orthodox in the Court’s case law. In the circumstances under
review, were UEFA to amend its rules to comply with the requirements of
transparency, precision, non-discrimination proportionality etc, there would be
room to show them objectively justified ‘by technical or commercial
necessities’ (<i>ESL</i> para 203) or apt to allow efficiency gains which
counteract the likely harmful effects on competition and consumer welfare on
the market(s) concerned. <o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;">The Court’s hard-hitting point is
this: for Article 101(3) as for Article 102, justification requires the
demonstration of ‘convincing arguments and evidence’ (<i>ESL</i> para 205, <i>Royal
Antwerp</i> para 120), involving ‘establishing the actual existence and extent
of those [efficiency] gains’ (<i>ESL</i> para 204, <i>Royal Antwerp</i> para 121).
That is an inquiry for the national court. It clearly must be a serious
inquiry. <span style="mso-spacerun: yes;"> </span><o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;">The ruling in <i>Royal Antwerp</i>
is similarly motivated by an insistence on the need for ‘specific arguments and
evidence’ about the reality and extent of incentives and efficiency gains (para
129), as well as the attitude of spectators and television viewers (para 130),
albeit in the different context of the claim that rules on home-grown players
encourage training. So too under free movement, the national court must
consider the factors ‘thoroughly and comprehensively … taking into
consideration the arguments and evidence submitted’ (para 149).<o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;">Very similar concerns animate the
Court’s treatment of UEFA’s ownership and marketing of media rights (<i>ESL</i>
paras 210-241). It does not exclude that practice may be justified despite the
apparent anti-competitive effect consequent on the centralised control claimed
by UEFA at the expense of clubs acting as sellers of rights unilaterally,
bilaterally or multilaterally, but it does insist on a hard evidence-based look
at the possibility of exemption under Article 101(3) and at the basis of
claimed efficiency gains under Article 102. This is to be done by the national
court (maybe also by the Commission enforcing the Treaty competition rules).<o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;">Doubtless the Commission’s 2003
decision on joint selling of rights to the Champions League will need close
attention (<a href="https://competition-cases.ec.europa.eu/cases/AT.37398">2003/778/EC,
AT.37398</a>). That Decision is particularly interesting for not looking at the
argument that promoting solidarity in sport through income redistribution might
justify the anti-competitive consequences of centralised selling. In 2003 the
Commission saw no need to consider solidarity because it concluded that the
economic benefits of the joint selling met the criteria stipulated by Article
101(3) and it needed to look no further. <i>ESL</i> finds the Court willing to consider<span style="mso-spacerun: yes;"> </span>improvements in production and distribution
resulting from the centralised sale and the ‘solidarity redistribution’ of the
profit generated as of benefit to supporters, consumers, that is to say,
television viewers, and, more broadly, all EU citizens involved in amateur
football. It also mentions maintaining a balance and preserving a certain
equality of opportunity as between the participating professional football
clubs, given the interdependence that binds them together. Moreover it notes (better
maybe: it claims) there is a trickle-down effect from those competitions into
smaller professional football clubs and amateur football clubs which, whilst
not participating therein, invest at local level in the recruitment and
training of young, talented players, some of whom will turn professional and
aspire to join a participating club. And ‘the solidarity role of football, as
long as it is genuine, serves to bolster its educational and social function
within the European Union’ (<i>ESL</i> paras 234-235). But the benefit ‘for each
category of user – including not only professional and amateur clubs and
other stakeholders in football, but also spectators and television
viewers – must be proven to be real and concrete’ (ESL para 236).<o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;">It seems, then, that UEFA cannot
exclude new forms of competition unless it shows that Articles 101(3) and 102
are satisfied. That, I think, requires a much more sophisticated set of
criteria than UEFA currently has, even in the newly (2022) renovated form. Most
of all, ESL is simply the beginning in trying to understand how far UEFA, as
gatekeeper, may go in excluding new competitions which are different from
existing forms of competition but which are open and based on sporting merit.
There is now – after <i>ESL</i> – in principle more room to compete in the
market for football competitions in Europe.<o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;"><o:p> </o:p></p>
<p class="MsoNormal" style="text-align: justify;"><b>Conclusion<o:p></o:p></b></p>
<p class="MsoNormal" style="text-align: justify;">The Court has opened the door to
those who would wish to revolutionise football in Europe. This does not mean
there will be a SuperLeague or anything like it. There is no guarantee who will
win the power struggles to come. A lot will depend on the attitudes of the
elite clubs and of the fans, on sources of funding (certainly not limited to
Europe), as well as on the skill deployed and the strategies pursued by UEFA
and by those who would wish to dislodge UEFA from its current position of power.
The top-down ‘pyramid’ structure of governance in sport is robust and typically
defended with vigour from those near or at its top. Tension between UEFA and
the elite clubs is nothing new. Moreover history tells us that competing
Leagues in football tend not to survive. This, however, is not true in all
sports and perhaps it will not be true in football in future. There is a lot of
politics here, a lot of commercial incentives, a lot of cultural and social
dimensions. But as of 21 December 2023 as a matter of law UEFA’s power as a ‘gatekeeper’
able to dictate the pattern of football competitions in Europe seems
significantly weakened.<o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;"><o:p> </o:p></p>
<p class="MsoNormal" style="text-align: justify;"><o:p> </o:p></p>Steve Peershttp://www.blogger.com/profile/05869161329197244113noreply@blogger.com0tag:blogger.com,1999:blog-8704899696538705849.post-58725460790637325272024-01-02T12:41:00.000-08:002024-02-13T03:33:43.622-08:00The New EU Asylum Laws, part 3: the Resettlement Regulation<p> </p><br /><div><br /><div class="separator" style="clear: both; text-align: center;"><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEhwi9BX0icnWNlHSE8e1HnLz6pen2BNen77r0inSCUXVCMKZDs5VXBYgqLjaS8FedQQP48rArCkUbOEophPAzTBq8Akndba0JgZj8vyLQcn0AFYBOe6mVw1k2Dw2VaM_MrVb8Je9O6fGshMozc5KIYdg__vR3tywc0tWiiwdBr5uPHDSn9a2sLTPDZzcNg/s1096/refugees%202.jpg" style="margin-left: 1em; margin-right: 1em;"><img border="0" data-original-height="617" data-original-width="1096" height="208" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEhwi9BX0icnWNlHSE8e1HnLz6pen2BNen77r0inSCUXVCMKZDs5VXBYgqLjaS8FedQQP48rArCkUbOEophPAzTBq8Akndba0JgZj8vyLQcn0AFYBOe6mVw1k2Dw2VaM_MrVb8Je9O6fGshMozc5KIYdg__vR3tywc0tWiiwdBr5uPHDSn9a2sLTPDZzcNg/w369-h208/refugees%202.jpg" width="369" /></a></div></div><br />
<p class="MsoNormal" style="text-align: justify;"><b>Professor Steve Peers</b>,
Royal Holloway University of London*<o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;"><b>Photo credit</b>: Voice of
America, via <a href="https://commons.wikimedia.org/wiki/File:Kurdish_Refuge_Camp_in_Suruc_Turkey.jpg">Wikimedia
Commons</a> <a href="https://commons.wikimedia.org/wiki/File:20151029_5boats_with_refugees_arriving_to_Skala_Sykamias_Lesvos_Greece.jpg"></a><b><o:p></o:p></b></p><p class="MsoNormal" style="text-align: justify;">*Sentences with an asterisk have been updated since the original post in light of later developments. Most recent update: Feb 13 2024. </p>
<p class="MsoNormal" style="text-align: justify;">Just before Christmas, the
European Parliament and the Council (the EU body consisting of Member States’
ministers) <a href="https://ec.europa.eu/commission/presscorner/detail/en/statement_23_6708"><span style="text-decoration: none; text-underline: none;">reached a deal</span></a> on
five key pieces of EU asylum legislation, concerning asylum procedures, the ‘Dublin’
system on responsibility for asylum applications, the ‘Eurodac’ database
supporting the Dublin system, screening of migrants/asylum seekers, and
derogations in the event of crises. I’ll be looking at these agreements for new
legislation on this blog in later blog posts (see the agreed texts <a href="https://www.consilium.europa.eu/en/documents-publications/public-register/public-register-search/results/?WordsInSubject=&WordsInText=&DocumentNumber=&InterinstitutionalFiles=&SubjectMatters=ASILE&DocumentDateFrom=&DocumentDateTo=&MeetingDateFrom=&MeetingDateTo=&DocumentLanguage=EN&OrderBy=DOCUMENT_DATE+DESC">here</a>), unless the deal somehow unravels.* But for now this series looks at the planned new legal framework for asylum in the EU by looking at the first three texts that were made available: agreements on revised laws on <a href="https://data.consilium.europa.eu/doc/document/ST-6367-2024-INIT/en/pdf">qualification</a> of refugees and people with subsidiary protection, <a href="https://data.consilium.europa.eu/doc/document/ST-6381-2024-INIT/en/pdf">reception conditions</a> for asylum-seekers, and <a href="https://data.consilium.europa.eu/doc/document/ST-6368-2024-INIT/en/pdf">resettlement</a> of refugees from outside the EU.* These laws, agreed earlier between the European
Parliament and the Council, but not yet formally adopted, are intended to be
part of a ‘<a href="https://www.consilium.europa.eu/en/policies/eu-migration-policy/eu-migration-asylum-reform-pact/"><span style="text-decoration-line: none; text-underline: none;">package</span></a>’ of new or
revised EU asylum laws, along with the recently agreed measures.</p><p class="MsoNormal" style="text-align: justify;"><o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;">This is the third blog post in
the series, on the planned new Regulation on resettlement of refugees. The
first blog post in the series concerned the planned new <a href="http://eulawanalysis.blogspot.com/2023/12/the-new-eu-asylum-laws-part-1.html">qualification
Regulation</a>, and the second blog post concerned the revised <a href="http://eulawanalysis.blogspot.com/2024/01/the-new-eu-asylum-laws-part-2-reception.html">reception
conditions Directive</a>. There’s also an <a href="http://eulawanalysis.blogspot.com/2023/02/the-new-eu-resettlement-framework-ugly.html">earlier
analysis</a> of the planned resettlement law on this blog, by Emiliya Bratanova
van Harten.<o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;">As noted in the first post in
this series, all of the measures in the asylum package could in principle be
amended or blocked before they are adopted, except for the <a href="https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A32021R2303"><span style="text-decoration: none; text-underline: none;">Regulation revising the powers
of the EU asylum agency</span></a>, which was separated from the package and
adopted already in 2021. I will update this blog post as necessary in light of developments.
(On EU asylum law generally, see my asylum law chapter in the latest edition of<i>
<a href="https://global.oup.com/academic/product/eu-justice-and-home-affairs-law-9780198890232?cc=gb&lang=en&"><span style="text-decoration: none; text-underline: none;">EU Justice and Home Affairs Law</span></a></i>).<u><o:p></o:p></u></p>
<p class="MsoNormal" style="text-align: justify;"><b>The Resettlement regulation:
background <o:p></o:p></b></p>
<p class="MsoNormal" style="text-align: justify;">There have been two previous ‘phases’
in development of the Common European Asylum System: a first phase of laws mainly
adopted between 2003 and 2005, and a second phase of laws mainly adopted between
2011 and 2013. The 2024 package will, if adopted, in effect be a third phase,
although for some reason the EU avoids calling it that. <o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;">One important aspect in the way
that asylum law applies in practice is the resettlement of refugees, or people
who otherwise need protection, directly from where they have fled to into
countries of refuge. This avoids any further unsafe journey for them (or
payment of any more huge costs to smugglers), and also avoids the need to go
through the asylum system in the country of refuge, since the UNHCR (the UN
agency assisting with the application of refugee law) or another body has already
assessed their need for protection before they were resettled. <o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;">For some countries, resettlement
makes up a large proportion of the refugees who enter their territory; for the
EU, geographically closer to conflicts than countries like Canada (pending a
Trumpian civil war in its neighbour), inevitably there will be more people
fleeing persecution or conflict across its borders. <o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;">While the EU has previously adopted
non-binding ‘soft law’ on resettlement, and provided some funding for
resettlement from its budget, there has not previously been EU legislation on
the issue as such in either of the first two phases of the Common European
Asylum System. Like the planned Screening Regulation, the issue is therefore
being regulated for the first time in the 2024 batch of EU asylum law. So there
is no previous version of the law to discuss, and no relevant CJEU case law on
such previous legislation to refer to either. <o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;">The UK and Ireland opted out of
the proposed resettlement Regulation, although the role of the UK is now moot
post-Brexit. Denmark opted out it also. <o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;">As with all the new EU asylum measures,
each must be seen in the broader context of all the others – which I will be
discussing over the course of this series of blog posts. So whatever numbers
are admitted under the resettlement regulation, they are likely to be only a
small proportion of those who seek asylum in the EU. For those who are
resettled, in EU law terms, they will avoid being covered by the rules on reception
conditions or asylum procedures – as in principle they will move straight to
being covered by the Qualification Regulation (although not in all cases, as we
shall see). But it should not be forgotten that for everyone else applying for asylum,
the effect of other EU asylum law will be rather more convoluted and
controversial. <o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;">The legislative process leading
to the agreed text of the resettlement Regulation started with the Commission <a href="https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex%3A52016PC0468">proposal</a>
in 2016, as a response to the perceived refugee crisis. EU governments (the
Council) and the European Parliament then adopted their negotiating positions,
and jointly agreed a text in principle. Member States were reluctant to accept
that text, but then agreed to it eventually in 2022. But this blog post will look
only at the final text, leaving aside the politics of the negotiations. <o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;"><b>Basic issues <o:p></o:p></b></p>
<p class="MsoNormal" style="text-align: justify;">It is not explicit whether the resettlement
regulation aims to be the exclusive form of resettlement into the EU, or rather
whether Member States could still run their own parallel resettlement
programmes if they wished - although the 2024 Eurodac Regulation assumes that there will still be national resettlement schemes.* (The new Eurodac Regulation will apply to those admitted under either EU or national resettlement programmes)* It is also unclear if Member States could set higher
standards than set out in the Regulation. <o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;">Unlike the other measures in the asylum package, which will apply two years after adoption (so in spring 2026),* the date of application of the resettlement Regulation is not yet set out in the latest text. I will update this blog post
once an application date is agreed. <o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;">While Regulations are binding in
principle, the drafters of the Regulation are at great pains to limit its
binding effect in practice. It specifies that it ‘does not establish a right
for third-country nationals or stateless persons to request admission or to be
admitted to the territory of the Member States’ Equally, the Regulation ‘does
not impose an obligation on Member States to admit a person’. Member States’ contributions
to the EU’s Resettlement and Humanitarian Admission Plan set up by the
Regulation are ‘on a voluntary basis’. The details of Member States’ participation,
‘including the type of admission and the regions or countries from which
admission shall take place, and of their contribution to the total number of
persons to be admitted under that Plan shall be voluntary’. <o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;">The Regulation will define ‘resettlement’
as ‘the admission, following a referral from’ UNHCR, of non-EU citizens who are
eligible and not refused as defined by the Regulation, ‘from a third country to
which they have been displaced, to the territory of the Member States, and who
are granted international protection and have access to a durable solution in
accordance with EU and national law’. The parallel concept of ‘humanitarian admission’
is defined as admission after being ‘requested by a Member State, a referral
from the UNHCR, the European Union Agency for Asylum or another relevant
international body’, of non-EU citizens ‘from a third country to which they
have been forcibly displaced, to the territory of the Member States and who, at
least, on the basis of an initial evaluation’ meet the eligibility and refusal
grounds in the Regulation, and are granted ‘humanitarian status under national
law that provides for rights and obligations equivalent to those of’ the Qualification
Regulation. The resettlement Regulation also provides for 'emergency admission',
ie ‘the admission through resettlement or humanitarian admission of persons
with urgent legal or physical protection needs or with immediate medical needs’.
<u><o:p></o:p></u></p>
<p class="MsoNormal" style="text-align: justify;"><b>The framework for resettlement<o:p></o:p></b></p>
<p class="MsoNormal" style="text-align: justify;">The starting point is the EU Resettlement
and Humanitarian Admission Framework, which provides for: the ‘legal and safe
arrival’ of those with resettlement or humanitarian admission status, encouraging
Member States to ‘scale up their efforts’ to this end; contributes to
international resettlement and humanitarian admission initiatives ‘with a view’
to increasing the number of places available; and strengthening relations with
non-EU countries where the people concerned have currently fled to. <o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;">Which countries or regions should
people be admitted from? The Regulation says that this should be based on the
UNHCR’s Projected Global Resettlement Needs, ‘the scope for improving the
protection environment and increasing the protection space in third countries’,
and the scale of non-EU countries to meeting the UNHCR’s defined needs. <o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;">To advise the Commission on the
Regulation, a High Level Resettlement and Humanitarian Admission Committee will
be set up, consisting of representatives of Member States, the Council, the
Commission and the European Parliament. The UNHCR, the International Organisation
for Migration and the EU Asylum Agency will be invited to attend, and civil
society bodies may be invited too. After this Committee meets, the Commission
will invite Member States to indicate how many people they can admit under this
framework, including the type of admission and which countries people will be
admitted from.<o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;">At EU level, taking account of
the UNHCR’s needs and the Committee’s deliberations, the Council will adopt, on
a Commission proposal, a series of two-year EU Resettlement and Humanitarian
Admission Plans. The European Parliament will only be informed, but in practice
it is likely to express its opinion informally too. Each of these Plans will
define: the numbers of people to be admitted, indicating how much of this
number is covered by resettlement (‘not less than approximately 60%’) alongside
humanitarian admission and emergency admission; the breakdown of Member States’
participation and contributions (remember that Member State commitments will be
voluntary); and the list of regions or non-EU countries that people will be resettled
from or offered humanitarian protection from. Emergency admission will be
offered regardless of any list of countries or regions.<span style="mso-spacerun: yes;"> </span>The Plan ‘may, where necessary’ also include
a breakdown of groups of people to be covered, and details of coordination on the
ground between Member States. If ‘required by new circumstances, such as an
unforeseen humanitarian crisis’, the Council can amend the Plan by the same
process.<o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;"><b>Who will be admitted? <o:p></o:p></b></p>
<p class="MsoNormal" style="text-align: justify;">People will be eligible for
resettlement if, first of all, they meet the refugee or subsidiary protection
definitions of EU law (with cross-references to the definition of grounds of
persecution and subsidiary protection in the Qualification Regulation). Palestinians
who are no longer protected by the relevant UN agency (using the wording of the
<a href="https://www.unhcr.org/media/convention-and-protocol-relating-status-refugees">Refugee
Convention</a>, but not cross-referring to the Qualification Regulation or the
relevant case law on the EU qualification rules – see part 1 of this series) will
also be eligible – which could be important depending on developments in Gaza (see the recent CJEU <a href="https://curia.europa.eu/juris/document/document.jsf?text=gaza&docid=281163&pageIndex=0&doclang=en&mode=req&dir=&occ=first&part=1&cid=1305748#ctx1">Advocate-General’s opinion </a>on Gaza).*<o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;">Secondly, they must also be vulnerable,
as further defined: ‘women and girls at risk’; ‘minors , including
unaccompanied minors’; ‘survivors of violence or torture, including on the
basis of gender or sexual orientation’; ‘persons with legal and/or physical
protection needs, including as regards protection from refoulement’; ‘persons
with medical needs, including where life-saving treatment is unavailable in the
country to which they have been [forcibly] displaced’; ‘persons with
disabilities’; or ‘persons who lack a foreseeable alternative durable solution,
in particular those in [a] protracted refugee situation’. <o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;">For humanitarian admission, the first
criterion also applies; and in addition, they must fall into ‘at least one of the
categories’ listed in the definitions of vulnerable persons and family members
of a legally resident non-EU citizen or an EU citizen. Family members are
further defined as not only spouses and minor unmarried children, but also including
extended family: parents, siblings, and those dependent on a parent or child due
to ‘pregnancy, a new-born child, serious illness, severe disability or old age’,
where ‘family ties existed in the country of origin, that the child, parent or
other family member is able to take care of the dependent person, and that the
persons concerned expressed their desire in writing’. In this context, ‘Member
States shall take due account of the best interests of the child’; and where a
married minor is ‘not accompanied by his or her spouse, the best interests of
the minor may be seen to lie with his or her original family.’<o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;">The preamble states that the Regulation
is ‘without prejudice’ to the EU law on <a href="https://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2003:251:0012:0018:en:PDF">family
reunion</a> of non-EU citizens (which includes special rules for family reunion
for refugees), as well as EU <a href="https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex%3A32004L0038">free
movement law</a>, which has generous rules for family reunion of EU citizens
who move to another Member State. Family reunion under the Regulation ‘therefore
should focus on the family members who fall outside the scope of those
Directives or relevant national law, or who could not be reunited with their families
for other reasons’. The preamble goes on to say that when defining if family
members are dependent, ‘it should be recognised that the extended relations may
be the last line of defence for individuals who rely exclusively on the family
for survival, psychological support, and emotional care.’<o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;">There are several grounds for mandatory
exclusion: having the rights attached to nationals of the country of residence –
the wording of Article 1.E of the Refugee Convention – adding ‘or equivalent
rights and obligations’; where there are ‘reasonable grounds for considering’
that they have committed war crimes et al, in wording similar (but not fully
identical) to Article 1.F of that Convention; a security risk exception vaguely
similar (but broader than) Article 33(2) of that Convention; being the subject
of an alert in the Schengen Information System or a national database for the
purpose of refusing entry; those who have international protection or humanitarian
admission already from a Member State; and a prior refusal of resettlement from
a Member State on the security or database entry control grounds, within the last
three years. Member States <i>may</i> refuse admission on grounds that: the person
concerned refused or withdrew their consent to be admitted to another Member
State under the Regulation within the last three years; they committed a less
serious crime, as defined further; they refused to take a pre-departure
orientation programme; or the Member State cannot support their vulnerability.
But all of these grounds are subject to a non-discrimination rule. <o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;">Those covered by the Regulation will
have to consent (including as regards which Member State would resettle them),
and can withdraw consent. Failure to supply certain data or attend a personal
interview can be treated as an implied withdrawal, unless the person concerned was
not informed, complies later or can show that he or she was prevented from complying
due to force majeure informed. <o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;"><b>The admission process<o:p></o:p></b></p>
<p class="MsoNormal" style="text-align: justify;">In case of resettlement, Member
States will ask the UNHCR to refer candidates to them. For humanitarian
admission, Member States may ask the UNHCR, the EU asylum agency, or another international
body to refer people. Member States will then assess if those people meet the
criteria for admission, or fall foul of the criteria for refusal; they may give
preference for those with family links, social links, and protection needs. After
they are identified, these people will then be registered, and Member States must
inform them about the process. <o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;">For resettlement, Member States
must request UNHCR to assess the main criteria for admission; for humanitarian
admission, they <i>may</i> request UNHCR to do so. Member States must then
decide on admission within seven months; this can be extended for three months
in complex cases. In emergency cases, Member States ‘shall endeavour to decide’
within one month. Member States must end the process if the candidate withdraws
their consent; Member States may end the process if they have filled their
commitments, or to give preference based on the criteria in the Regulation, or
if they cannot comply with the time limits ‘for reasons beyond their control’.
There are detailed rules on how long information referred to in the Regulation
can be stored for. <o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;">It the candidate is rejected, the
Member State shall not admit them. There is no provision for procedural rights
if admission is refused, even to inform the candidate – although Member States
are obliged in principle to inform the UNHCR. <o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;">If the candidate is accepted, the
Member State must give them status in accordance with the Qualification Regulation,
and may give them a national form of permanent residence in accordance with the
EU’s long term residence Directive. <span style="mso-spacerun: yes;"> </span>Oddly
the resettlement Regulation fails to mention that the person with refugee
status or subsidiary protection can eventually qualify for <i>EU</i> long-term
residence as such under that Directive. <o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;">For humanitarian protection, the
Member State must give them a national status with rights ‘equivalent’ to those
under the Qualification Regulation, although this is ‘without prejudice to the
right to apply for international protection’. Unlike those with international
protection in a Member State, people with a national form of protection are
outside the scope of the current EU long-term residence Directive – although the
European Parliament (but not the Council or Commission) seeks to include them
during current talks on amending that Directive (on which, see my <a href="http://eulawanalysis.blogspot.com/2023/11/taking-rights-away-seriously-councils.html">blog
post</a>).<o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;">For a family member of a legal
resident ‘who does not individually qualify for international protection or for
a humanitarian status under national law’, Member States must issue a residence
permit which ‘shall have the same effect as a decision to issue a residence
permit’ for family members under <span style="mso-spacerun: yes;"> </span>the Qualification
Regulation, which will confer many of the rights under that Regulation anyway. <o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;">In any case, Member States must
make ‘every effort to ensure entry’ within twelve months, or less for emergency
cases. They ‘shall offer’ to make travel arrangements ‘where necessary’, and shall
offer prior orientation programmes ‘when considered feasible’. <o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;"><b>Comments <o:p></o:p></b></p>
<p class="MsoNormal" style="text-align: justify;">This Regulation might end up being
‘sold’ as an altruistic EU contribution to helping desperate people escape
conflict or persecution without risking further unsafe journeys or paying vile
smugglers. And that will be true – for a modest number of people. The EU will be
leaving everyone else who seeks to flee to the EU to escape persecution and
conflict to the mercy of those vile smugglers and unsafe journeys. Indeed, the
asylum package as a whole could well mean that it is harder for that larger group
of people to obtain refuge in the EU. <o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;">The altruistic motives of the
Regulation are rather undercut by its voluntary nature for Member States, and the
explicit inability of individuals to rely upon it. Like the pirate code, the
resettlement Regulation is more what you’d call guidelines, than actual rules. But
it is surely a racing certainty that at least one right wing populist party
will falsely claim that it entails an obligation to admit millions, if not billions and
trillions, of scary people.*<o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;">We should also be wary of anyone
in the EU institutions or Member States perverting the role of resettlement
within the broader context of refugee law to claim or imply, UK
government-style, that resettlement (or legal entry generally) is the <i>only</i>
legitimate route to seek or obtain asylum. In fact, the Refugee Convention
explicitly provides that irregular entrants can qualify as refugees, specifying
that in some circumstances States must refrain from punishing them for
irregular entry. But the Convention does not, as some other people believe,
provide that all refugees who enter illegally must be treated as legal entrants;
rather, the Convention recognises the existence of irregular entrants and a distinction
between them and legal entrants or residents in many respects, providing that
many rights of refugees are only granted to those who are legally present. Yet
the core <i>non-refoulement</i> right in the Convention – protection from being
sent to an unsafe country – applies regardless of whether the refugee entered
legally or not.<o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;">The final text of the Regulation
focusses on the needs of individuals and the capacity and willingness of Member
States, dropping the provisions from the original text that aimed also to link
resettlement to the source countries’ submission to EU external migration policy:
cooperation on readmitting people, controlling their border crossings, becoming
a ‘safe third country’ or ‘first country of asylum’ for the EU to send asylum
seekers back to, and development of their reception capacity. But a cynic may
well imagine that these criteria could nevertheless end up playing a role in
the application of the Regulation in practice. <o:p></o:p></p><div class="separator" style="clear: both; text-align: center;"><br /></div><br />Steve Peershttp://www.blogger.com/profile/05869161329197244113noreply@blogger.com0tag:blogger.com,1999:blog-8704899696538705849.post-89587375635949910472024-01-01T13:09:00.000-08:002024-02-13T03:14:06.276-08:00The New EU Asylum Laws, part 2: the Reception Conditions Directive<div class="separator" style="clear: both; text-align: center;"><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEiU4o6cr8XXPgAEjNGBp3papJYGbVQkR_tCn4aZaToWPBNbm6j7RzEPjiBvYxSwoawHwqy0BsqAYb7fkMH-qgRm_wQBLul_7MoVqVApJnrs_J52Zc7zEJQ9QWFc0fdL50sikakbNHLgI0K-LYRYsnN-6SP7qp19-V1TzGHCyso5OrEQZ-FGvb-Qo8ZY968/s1024/asylum%20law%203.jpg" style="margin-left: 1em; margin-right: 1em;"><img border="0" data-original-height="683" data-original-width="1024" height="252" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEiU4o6cr8XXPgAEjNGBp3papJYGbVQkR_tCn4aZaToWPBNbm6j7RzEPjiBvYxSwoawHwqy0BsqAYb7fkMH-qgRm_wQBLul_7MoVqVApJnrs_J52Zc7zEJQ9QWFc0fdL50sikakbNHLgI0K-LYRYsnN-6SP7qp19-V1TzGHCyso5OrEQZ-FGvb-Qo8ZY968/w379-h252/asylum%20law%203.jpg" width="379" /></a></div><br /><div><br /></div><br />
<p class="MsoNormal" style="text-align: justify;"><b>Professor Steve Peers</b>,
Royal Holloway University of London <o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;"><b>Photo credit</b>: <a href="https://commons.wikimedia.org/wiki/File:Refugees_Budapest_Keleti_railway_station_2015-09-04.jpg">Rebecca
Harms</a>, via Wikimedia Commons <a href="https://commons.wikimedia.org/wiki/File:20151029_5boats_with_refugees_arriving_to_Skala_Sykamias_Lesvos_Greece.jpg"></a><b><o:p></o:p></b></p><p class="MsoNormal" style="text-align: justify;">*sentences with an asterisk have been corrected or updated since the original publication of this post. Most recent update Feb 13 2024. </p>
<p class="MsoNormal" style="text-align: justify;">Just before Christmas, the
European Parliament and the Council (the EU body consisting of Member States’
ministers) <a href="https://ec.europa.eu/commission/presscorner/detail/en/statement_23_6708"><span style="text-decoration-line: none;">reached a deal</span></a> on
five key pieces of EU asylum legislation, concerning asylum procedures, the ‘Dublin’
system on responsibility for asylum applications, the ‘Eurodac’ database
supporting the Dublin system, screening of migrants/asylum seekers, and
derogations in the event of crises. I’ll be looking at these agreements for new
legislation on this blog (see the agreed texts <a href="https://www.consilium.europa.eu/en/documents-publications/public-register/public-register-search/results/?WordsInSubject=&WordsInText=&DocumentNumber=&InterinstitutionalFiles=&SubjectMatters=ASILE&DocumentDateFrom=&DocumentDateTo=&MeetingDateFrom=&MeetingDateTo=&DocumentLanguage=EN&OrderBy=DOCUMENT_DATE+DESC">here</a>), unless the deal somehow unravels.* But for now this series looks at the planned new legal framework for asylum in the EU by looking at the first three texts that were made available: agreements on revised laws on <a href="https://data.consilium.europa.eu/doc/document/ST-6367-2024-INIT/en/pdf">qualification</a> of refugees and people with subsidiary protection, <a href="https://data.consilium.europa.eu/doc/document/ST-6381-2024-INIT/en/pdf">reception conditions</a> for asylum-seekers, and <a href="https://data.consilium.europa.eu/doc/document/ST-6368-2024-INIT/en/pdf">resettlement</a> of refugees from outside the EU.* These laws, agreed earlier between the European
Parliament and the Council, but not yet formally adopted, are intended to be
part of a ‘<a href="https://www.consilium.europa.eu/en/policies/eu-migration-policy/eu-migration-asylum-reform-pact/"><span style="text-decoration-line: none;">package</span></a>’ of new or
revised EU asylum laws, along with the recently agreed measures.</p><p class="MsoNormal" style="text-align: justify;"><o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;">This is the second blog post in
the series, on the planned new reception conditions Directive. For the first
blog post, on the planned new qualification Regulation, see <a href="http://eulawanalysis.blogspot.com/2023/12/the-new-eu-asylum-laws-part-1.html">here</a>. <a href="http://eulawanalysis.blogspot.com/2024/01/the-new-eu-asylum-laws-part-3.html">Part 3</a> concerns the resettlement Regulation. There’s also an <a href="http://eulawanalysis.blogspot.com/2022/11/provisional-agreement-on-recast.html">earlier
analysis</a> of the revised reception conditions Directive on this blog, by Vasiliki
Apatzidou.<o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;">As noted in the first post in
this series, all of the measures in the asylum package could in principle be
amended or blocked before they are adopted, except for the <a href="https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A32021R2303"><span style="text-decoration-line: none;">Regulation revising the powers
of the EU asylum agency</span></a>, which was separated from the package and
adopted already in 2021. I will update this blog post as necessary in light of developments.
(Some of the description of the current Directive and its case law in this blog
post is adapted from my asylum law chapter in the latest edition of<i> <a href="https://global.oup.com/academic/product/eu-justice-and-home-affairs-law-9780198890232?cc=gb&lang=en&">EU
Justice and Home Affairs Law</a></i>).<o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;"><b>The reception conditions Directive:
background <o:p></o:p></b></p>
<p class="MsoNormal" style="text-align: justify;">There have been two previous ‘phases’
in development of the Common European Asylum System: a first phase of laws mainly
adopted between 2003 and 2005, and a second phase of laws mainly adopted between
2011 and 2013. The 2024 package will, if adopted, in effect be a third phase,
although for some reason the EU avoids calling it that. <o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;">One of the more controversial
issues in the asylum debate is how asylum-seekers are treated before a decision
is made on their asylum application, as regards issues like benefits, access to
employment, housing and detention. In each phase of EU asylum law, the EU has
addressed this issue by means of a law known as the <b>reception conditions
Directive</b>. The first phase <a href="https://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2003:031:0018:0025:En:PDF">reception
conditions Directive</a> was adopted in 2003; the <a href="https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex%3A32013L0033">second
phase Directive</a> replaced it in 2013. The third phase, if finally adopted in
2024, will include a <a href="https://data.consilium.europa.eu/doc/document/ST-16282-2022-INIT/en/pdf">new
version of the Directive</a>.<u> <o:p></o:p></u></p>
<p class="MsoNormal" style="text-align: justify;">There is CJEU case law on both
the <a href="https://curia.europa.eu/juris/liste.jsf?nat=or&mat=or&pcs=Oor&jur=C%2CT%2CF&for=&jge=&dates=&language=en&pro=&cit=L%252CC%252CCJ%252CR%252C2008E%252C%252C2003%252C9%252C%252C%252C%252C%252C%252C%252Ctrue%252Cfalse%252Cfalse&oqp=&td=%3BALL&avg=&lg=&page=1&cid=11548304">first
phase Directive</a> and the <a href="https://curia.europa.eu/juris/liste.jsf?nat=or&mat=or&pcs=Oor&jur=C%2CT%2CF&for=&jge=&dates=&language=en&pro=&cit=L%252CC%252CCJ%252CR%252C2008E%252C%252C2013%252C33%252C%252C%252C%252C%252C%252C%252Ctrue%252Cfalse%252Cfalse&oqp=&td=%3BALL&avg=&lg=&page=1&cid=11548304">second
phase Directive</a>. It might be argued that the case law is still relevant to
the new Directive, unless the relevant text has been amended. <o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;">The UK opted in to the first
phase Directive, but not the second phase Directive; conversely Ireland opted
out of the first phase Directive, but into the second phase Directive. Neither
opted into the proposal for the 2024 Directive. Of course, the UK is no longer
bound by EU law, but Ireland is still bound by the second phase Directive. Denmark
opted out of both. <o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;">Of course, none of the measures
in the package can be fully understood without the context of all the others –
which I will be discussing over the course of this series of blog posts. For
instance, it is possible that the effect of the other measures in the package
will be to reduce the numbers of people who would otherwise apply for refugee
or subsidiary protection status in the EU, or whose applications will be
considered on the merits (the asylum procedures law provides that some
applications can or must be considered inadmissible). Any reduction in the
numbers applying for asylum will reduce the numbers who are covered by the Directive;
any increase in the number of applications found inadmissible will in principle
curtail the length of time that asylum seekers are covered by it – only ‘in
principle’, because the Directive will still apply in the event of an appeal,
if the asylum seeker is still on the territory. Furthermore, some of the other
measures in the package include derogations from the Directive; we can only
fully assess the scope and impact of those derogations after those texts are
made public.<o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;">Reception conditions for asylum
seekers should more broadly be situated in the context of the asylum system as
a whole. While <i>benefits</i> etc for asylum seekers are provided under the reception
conditions Directive, the <i>process</i> of dealing with their applications for
asylum as such is subject to the rules in the EU law on asylum procedures,
while the <i>substance</i> of the claims (if they are admissible) is considered
on the basis of the EU law on qualifications (on which, see part 1 of this series).
As we shall see, the Dublin rules – ie which Member State is responsible for
considering their application – is relevant to reception conditions too. If the
application is successful, the parts of the qualification law rules dealing
with benefits etc for refugees and people with subsidiary protection then apply
(again, see part 1 of this series). <o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;">If the application fails at first
instance, the asylum seeker can appeal – an issue subject to the procedures
law, although as noted already, the reception conditions Directive applies
during the appeal, if the asylum seeker is allowed to stay on the territory. <i>Whether</i>
they are allowed to stay during the appeal is an issue dealt with under the
procedures law (spoiler: in principle appeals have suspensive effect, although
there are wide exceptions to that rule). If an appeal is successful (and quite a
few are), the qualification rules apply. But if an appeal fails, then in
principle the failed asylum seeker must be expelled on the basis of the rules
in the <a href="https://eur-lex.europa.eu/legal-content/EN/ALL/?uri=celex%3A32008L0115">Returns
Directive</a>. However, the Returns Directive leaves Member States with discretion
to allow irregular migrants to stay; and the <a href="http://eulawanalysis.blogspot.com/2014/12/could-eu-law-save-paddington-bear-cjeu.html">case
law</a> on that Directive <i>requires</i> Member States to let them stay if
they would be expelled to an unsafe country. Also, EU asylum law, as noted in
part 1 of this series, leaves Member States with discretion to grant a form of <i>national</i>
protection to people who do not qualify for refugee or subsidiary protection status.
People with such national status will largely fall outside the scope of any EU
law, although the equal treatment provisions in the recently agreed amendment
of the EU single permit Directive (discussed <a href="http://eulawanalysis.blogspot.com/2023/12/take-this-job-and-shove-it-revised-eu.html"><span style="text-decoration-line: none;">here</span></a>) will apply to
them, if they are allowed to work.<u><o:p></o:p></u></p>
<p class="MsoNormal" style="text-align: justify;">The legislative process leading
to the agreed text of the revised reception conditions Directive started with the Commission <a href="https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A52016PC0465">proposal</a>
in 2016, as a response to the perceived refugee crisis. EU governments (the
Council) and the European Parliament then adopted their negotiating positions,
and jointly agreed a text in principle. Member States were reluctant to accept
that text, but then agreed to it eventually in 2022. But this blog post will
compare the 2024 Directive only to the current Directive, leaving aside the politics
of the negotiations. <o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;"><b>Basic issues <o:p></o:p></b></p>
<p class="MsoNormal" style="text-align: justify;">The first key issue is the type
of law used, which is linked with the degree of harmonisation which the EU seeks
in this field. Like the first and second phase laws, the 2024 reception
conditions law will be a Directive, which means that Member States will still
be bound to achieve the outcome required but have a choice of form and method. But
since the qualification and procedures laws will be turned into Regulations (binding
in and of themselves, without national transposition), the 2024 law will be the
<i>only</i> Directive applicable in the field of asylum law. <o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;">As for the level of harmonisation,
the 2024 reception conditions Directive will still set a form of minimum
standards: Member States can have higher standards, as long as those standards are
compatible with the Directive. So there will still be both a floor and a ceiling.
Again, the reception conditions Directive will then become unique in the field
of asylum law, as the equivalent provisions in the laws on qualifications and
procedures will be dropped, in favour of full harmonisation in principle –
although note that some provisions in the qualification and procedures
Regulations will still only be options for Member States. Exactly what the ceiling
means in terms of reception conditions may be open to debate, because there’s
no CJEU case law on the issue (for the case law on the ceiling applicable to
the outgoing qualification Directive, see part 1; there’s also case law on the
equivalent provision of the returns Directive, which is not technically an asylum
measure)<u> <o:p></o:p></u></p>
<p class="MsoNormal" style="text-align: justify;">The 2024 Directive
provides that Member States will have to implement it two years after its adoption - so likely by spring 2026.*<o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;">Turning to the details of the Directive,
there are nine main elements to the law: its scope, general provisions,
detention, education, employment, benefits, reduction or withdrawal of benefits,
special cases, and appeals and final provisions. This blog post mostly does not
discuss the preamble, but keep in mind that the preamble adds some important
detail to many of the points in the main text analysed here.<o:p></o:p></p>
<p class="MsoNormal"><b>Scope<o:p></o:p></b></p>
<p class="MsoNormal" style="text-align: justify;">As with the second phase Directive,
the 2024 Directive will apply to applicants both for refugee and subsidiary
protection status, although Member States can choose to apply it to applicants
for other types of status. (The first phase Directive only applied to
applicants for refugee status). The Directive still does not apply to
applications at consulates. Otherwise, as before, it will apply to those ‘who
make an application for international protection on the territory, including at
the external border, in the territorial sea or in the transit zones of the
Member States, as long as they are allowed to remain on the territory as
applicants, as well as to family members, if they are covered by such
application for international protection according to national law.’ <o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;">The 2024 Directive will delete an
exception in the current law, which excludes the Directive from applying where
the temporary protection Directive (which has been <a href="http://eulawanalysis.blogspot.com/2022/02/temporary-protection-for-ukrainians-in.html">applied
in practice</a> to those fleeing the invasion of Ukraine) applies. So in
principle this means that anyone covered by temporary protection who decides to
apply for asylum in light of temporary protection expiring in March 2025 (as
the law now stands) will be covered by the reception conditions Directive – if
Member States a) apply this aspect of the 2024 Directive before the deadline to
apply it in 2026; and b) opt to apply the temporary protection directive and
reception conditions directive simultaneously (the temporary protection
directive gives Member States the option not to allow this). <o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;">As with the new Qualification
Regulation, ‘family member’ will be defined slightly more broadly, to include relationships
formed outside the country of refuge, not just those formed inside the country
or origin. It will also include adult dependent children. But it will still be necessary
for the family members to be present on the territory in connection with the
asylum application. A minor must be considered unmarried if the marriage would not
have been allowed under the Member State’s national law, especially on grounds
of age.<o:p></o:p></p>
<p class="MsoNormal"><b>General provisions<o:p></o:p></b></p>
<p class="MsoNormal" style="text-align: justify;">Under the current Directive, asylum
seekers have to be informed within fifteen days of lodging their application of
the rights and benefits to which they are entitled and the obligations placed
upon them by Member States. The 2024 Directive provides that they must be given
information on the basis of a standard template, within three days of the application,
or the deadline to register it under the asylum procedures law. There are expanded
provisions on making this information understandable. <o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;">As for documentation, under the
current law asylum seekers have to be given, within three days of their application,
a document certifying their status or the legality of their presence on the
territory (subject to certain exceptions), and Member States ‘may’ supply
asylum seekers with a travel document ‘when serious humanitarian reasons arise
that require their presence in another State’. Member States cannot ‘impose
unnecessary or disproportionate documentation or other administrative
requirements’ before granting rights under the Directive, solely because the
beneficiaries are asylum applicants.<o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;">Under the 2024 Directive, the
main rules on documentation will be set out instead in the procedures law. The ban
on unnecessary etc documentation remains, including now non-discrimination
based on nationality. Also, the rules on travel documents are tightened: Member
States may ‘only’ supply them in the event of ‘serious humanitarian reasons or
other imperative reasons’ that require asylum-seekers’ presence in another State,
and the document’s validity must be ‘limited to the purpose and duration needed
for the reason for which it is issued’.<o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;">A number of changes will be made
to the rules on movement within a Member State. Under the current Directive, asylum
seekers are entitled to freedom of movement within a Member State, or at least
within an assigned area, but Member States can decide on asylum seekers’
residence on grounds of public order, public interest, or the necessity to
decide on applications quickly. Member States can also require asylum seekers
to reside in a certain place in order to obtain benefits. <o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;">Under the 2024 Directive, there
are more detailed rules on Member States’ requiring applicants to stay in a
particular region, to ensure fair distribution of applicants or efficient
processing of applications. There are also revised provisions on limiting free
movement to a specific place, linked to the receipt of benefits, on different
grounds: ‘for reasons of public order or to effectively prevent the applicant
from absconding, where there is a risk of absconding, in particular’ in Dublin
cases. <o:p></o:p></p>
<p class="MsoNormal"><b>Detention</b><o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;">As before (rules on detention
were only added in the second phase Directive), asylum seekers cannot be
detailed solely for applying for asylum, and detention must be ‘necessary’ based
on an individual assessment. The 2024 Directive will add that they cannot be
detailed based solely on their nationality. Another new provision concerns detainees
(or would-be detainees) who are special cases, who might be released from detention,
or have their detention adjusted, in light of their personal circumstances. It
will also now be specified that detention cannot be punitive. <o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;">The definition of ‘detention’ – confinement
in a particular place, involving the deprivation (not merely the limitation) of
free movement within a territory – will not change, so presumably the CJEU case
law still applies: detention includes transit zones where the asylum-seekers’
movements are controlled by guards, they live in a small container, and are
surrounded by high fences and barbed wire (<i><a href="https://curia.europa.eu/juris/document/document.jsf?text=&docid=226495&pageIndex=0&doclang=en&mode=lst&dir=&occ=first&part=1&cid=11542980">FMS</a></i>
judgment; <a href="https://curia.europa.eu/juris/document/document.jsf?text=&docid=235703&pageIndex=0&doclang=en&mode=lst&dir=&occ=first&part=1&cid=11542980">C-808/18
<i>Commission v Hungary</i></a>); the prospect of leaving for a non-Member
State does not alter the conclusion that asylum-seekers are detained, because
leaving would end the possibility of applying for asylum in a Member State and
would not work on its own terms (as there was no effective possibility of
applying for asylum there).</p><table border="0" cellpadding="0" cellspacing="0" class="MsoNormalTable" style="border-collapse: collapse; mso-padding-alt: 0cm 0cm 0cm 0cm; mso-yfti-tbllook: 1184; width: 100%;">
<tbody><tr>
<td colspan="2" style="padding: 0cm;" valign="top">
<p class="MsoNormal" style="text-align: justify;">The possible grounds for detention
will expand from six to seven. However, since the list of grounds will remain
exhaustive (‘only’) – leaving aside criminal law outside the scope of the
Directive – it will still not be possible to detain asylum seekers purely
because housing capacity has been exhausted (<i><a href="https://curia.europa.eu/juris/document/document.jsf?text=&docid=227722&pageIndex=0&doclang=en&mode=lst&dir=&occ=first&part=1&cid=11505485">VL</a></i>
judgment), because of their inability to cover their needs (<i><a href="https://curia.europa.eu/juris/document/document.jsf?text=&docid=226495&pageIndex=0&doclang=en&mode=lst&dir=&occ=first&part=1&cid=11542980">FMS</a></i>
judgment), or because they entered illegally (<a href="https://curia.europa.eu/juris/document/document.jsf?text=&docid=261930&pageIndex=0&doclang=en&mode=lst&dir=&occ=first&part=1&cid=11542781">Case
C-72/22 PPU</a>) – although the latter point must be qualified in light of
the ground to detain pursuant to a border procedure. <o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;">First, detention can be
justified ‘in order to determine or verify [an asylum seeker’s] identity or
nationality’. Second, it can be justified:<o:p></o:p></p>
</td>
</tr>
<tr>
<td style="padding: 0cm;" valign="top">
<p class="MsoNormal" style="margin-left: 36pt; text-align: justify;">(b)<o:p></o:p></p>
</td>
<td style="padding: 0cm;" valign="top">
<p class="MsoNormal" style="text-align: justify;">in order to determine those
elements on which the application for international protection is based which
could not be obtained in the absence of detention, in particular when there is
a risk of absconding of the applicant (on the first two grounds for detention,
see the <a href="https://curia.europa.eu/juris/document/document.jsf?text=&docid=194431&pageIndex=0&doclang=en&mode=lst&dir=&occ=first&part=1&cid=11542980"><i>K</i>
judgment</a>) <o:p></o:p></p>
</td>
</tr>
</tbody></table><span style="text-align: justify;"><br /></span><div><div style="text-align: start;"><span style="text-align: justify;">The 2024 Directive will now add a
definition of ‘risk of absconding’. (Note also that </span><a href="http://eulawanalysis.blogspot.com/2017/05/immigration-detention-and-rule-of-law.html" style="text-align: justify;">previous
case law</a><span style="text-align: justify;"> requires Member States to set out details in national law, concerning
a similarly worded definition).</span></div><p class="MsoNormal" style="text-align: justify;">The third ground for detention is
the new one. It will be possible to detain asylum seekers ‘in order to ensure
compliance with legal obligations imposed on the applicant through an
individual decision [requiring residence in a specific place] in cases where
the applicant has not complied with such obligations and there is still a risk
of absconding of the applicant’. This is linked to the revised rules on
requiring residence in a specific place, summarised above.<o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;">The fourth ground for detention
will be amended. The current text refers to detention ‘in order to decide, in
the context of a procedure, on the applicant’s right to enter the territory’.
The new version will refer instead to deciding that issue ‘in accordance with’
the border procedures rules in the new asylum procedures Regulation (which will
alter the border procedures rules as compared to the current procedures
Directive). I will examine in a subsequent blog post whether the revised rules on border procedure
detention might alter the Court’s rulings against Hungarian transit zone detention
under the current rules (<i><a href="https://curia.europa.eu/juris/document/document.jsf?text=&docid=226495&pageIndex=0&doclang=en&mode=lst&dir=&occ=first&part=1&cid=11542980">FMS</a></i>
judgment; <a href="https://curia.europa.eu/juris/document/document.jsf?text=&docid=235703&pageIndex=0&doclang=en&mode=lst&dir=&occ=first&part=1&cid=11542980">C-808/18
<i>Commission v Hungary</i></a>).*<o:p></o:p></p>
<table border="0" cellpadding="0" cellspacing="0" class="MsoNormalTable" style="border-collapse: collapse; mso-padding-alt: 0cm 0cm 0cm 0cm; mso-yfti-tbllook: 1184; width: 100%;">
<tbody><tr>
<td style="padding: 0cm;" valign="top">
<p class="MsoNormal" style="text-align: justify;">Fifth, an asylum seeker can be
detained when subject to a return procedure under the Returns Directive, if ‘the
Member State concerned can substantiate on the basis of objective criteria,
including that he or she already had the opportunity to access the procedure
for international protection, that there are reasonable grounds to believe
that he or she is making the application for international protection merely
in order to delay or frustrate the enforcement of the return decision’. The
Court of Justice has interpreted this ground narrowly (<i><a href="https://curia.europa.eu/juris/document/document.jsf?text=&docid=227722&pageIndex=0&doclang=en&mode=lst&dir=&occ=first&part=1&cid=11505485">VL</a></i>
judgment; see also the <a href="https://curia.europa.eu/juris/document/document.jsf?text=&docid=242521&pageIndex=0&doclang=en&mode=lst&dir=&occ=first&part=1&cid=11542980"><i>JA</i>
ruling</a>).<o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;">Sixth, detention can take place
‘when protection of national security or public order so requires’. The CJEU
has already interpreted this provision under the current Directive, as discussed
<a href="http://eulawanalysis.blogspot.com/2016/03/detention-of-asylum-seekers-first-cjeu.html">here</a>
and in <a href="https://curia.europa.eu/juris/document/document.jsf?text=&docid=261930&pageIndex=0&doclang=en&mode=lst&dir=&occ=first&part=1&cid=11542781">Case
C-72/22 PPU</a>. Finally, asylum seekers can be detained on the basis of the specific rules in the Dublin Regulation (as replaced).<o:p></o:p></p>
</td>
<td style="padding: 0cm;" valign="top">
<p class="MsoNormal"><o:p> </o:p></p>
</td>
</tr>
</tbody></table>
<p class="MsoNormal" style="text-align: justify;">As before, Member States must lay
down the grounds for detention in national law, along with the rules on
alternatives to detention. There are still no time limits on
detention of asylum seekers in general, although the case law on detention
under the border procedure under the current asylum procedures law has set time
limits, and for failed asylum seekers there are time limits to detention in the
Returns Directive. There is already an obligation to give reasons for detention
in writing; the new Directive adds a requirement to explain why coercive
measures are not used instead.</p><p class="MsoNormal" style="text-align: justify;"><o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;">The provision on judicial review
of detention will be amended to provide a deadline (fifteen days, or exceptionally
21 days), with a useful remedy: release from detention after 21 days if there
is no ruling. (The current rule on release if detention is unlawful will be
retained) The rules on further judicial reviews will now include a requirement
of regular automatic reviews of detention of unaccompanied minors. There is no
reason to doubt that the Hungarian criminalisation of advice to asylum-seekers
(see <a href="https://curia.europa.eu/juris/document/document.jsf?text=&docid=249322&pageIndex=0&doclang=en&mode=lst&dir=&occ=first&part=1&cid=11542980">Case
C-821/19</a>) would still breach EU law. <o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;">Finally, the guarantees on
detention for special cases will now include a requirement to give timely support
for those who need it, and not to detain at all those whose health would be put
at ‘serious risk’. There will be stronger language requiring that detention of
minors is exceptional, and some specific tightening of the circumstances and
conditions of their detention: never in prison accommodation (at present this ban
only applies to unaccompanied minors, not minors in general) or other law
enforcement locations, and only on grounds of safeguarding (for unaccompanied
minors) or because their caregivers are detained (for other minors). There are
new references to ‘family unity’ and to detention adapted to minors. <o:p></o:p></p>
<p class="MsoNormal"><b>Education<o:p></o:p></b></p>
<p class="MsoNormal" style="text-align: justify;">The current directive requires
access to education ‘under similar conditions’ to nationals, and the new
Directive will add a requirement for ‘the same access’ – concepts that are
potentially in tension. Education must be ‘integrated’ with that for national children,
and be of the ‘same quality’. The waiting period for access to education must
be cut from three months to two, with a possible first month not provided
within the ‘mainstream’ school system; although it will still be possible to
provide education outside the mainstream education system indefinitely, if mainstream
education is ‘not possible’ due to the ‘specific situation’ of the minor. <o:p></o:p></p>
<p class="MsoNormal"><b>Employment<o:p></o:p></b></p>
<p class="MsoNormal" style="text-align: justify;">The second phase Directive cut
the waiting period for access to employment, after lodging an asylum claim,
from 12 months to 9 months; the 2024 Directive will now cut this to 6 months. As
before, this is only triggered if there is no decision on the application yet,
and if the delay is not the fault of the applicant. According to the <a href="file:///C:/Users/UMTL002/Documents/applicant%20who%20appealed%20against%20a%20transfer%20decision,%20or%20who%20did%20not%20apply%20for%20asylum%20in%20the%20first%20Member%20State%20of%20entry">CJEU’s
interpretation</a> of the current Directive, a delay is not the fault of the applicant
if they appealed against a transfer decision, or did not apply for asylum in
the first Member State of entry. But a delay is their fault if they failed to
cooperate with the authorities, as defined by the asylum procedures law. <u><o:p></o:p></u></p>
<p class="MsoNormal" style="text-align: justify;">However, there is a new
exception, denying access to employment if a Member State has triggered some of
the fast-track provisions in the procedures Regulation. (Remember also that the
Directive sets minimum standards, so in principle Member States can grant labour
market access earlier).<o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;">Another new exception, discussed further
below, provides that access to employment is lost when the asylum seeker is
notified that they must be transferred to another Member State under the Dublin
rules. As with the new Dublin exception for benefits, this overturns <a href="file:///C:/Users/UMTL002/Documents/applicant%20who%20appealed%20against%20a%20transfer%20decision,%20or%20who%20did%20not%20apply%20for%20asylum%20in%20the%20first%20Member%20State%20of%20entry">CJEU
case law</a> on the point, and raises the question of the effect of an appeal against
the transfer (which was also expressly addressed in the case law, as noted
above).<u><o:p></o:p></u></p>
<p class="MsoNormal" style="text-align: justify;">There are more detailed
provisions on possible job-market preference, and new rules on equal treatment –
although these are also subject to exceptions. It will remain the case that labour
market access will be retained during appeals, if the appeals have suspensive
effect. <o:p></o:p></p>
<p class="MsoNormal"><b>Benefits<o:p></o:p></b></p>
<p class="MsoNormal" style="text-align: justify;">As for State assistance, the 2024
Directive maintains (with minor rewording) the current basic rule that Member
States must ensure ‘material reception conditions’ that ‘provide an adequate standard
of living for applicants, which guarantees their subsistence and protects their
physical and mental health’, although assistance can be reduced or eliminated
for asylum seekers with means or who have been working. (On the adequacy of financial
support under the first phase Directive, see the <i><a href="https://curia.europa.eu/juris/document/document.jsf?text=&docid=148395&pageIndex=0&doclang=en&mode=lst&dir=&occ=first&part=1&cid=11500130">Saciri</a></i>
judgment) A new provision will state that Member States cannot ask for
contributions to health care costs if the health care in question is provided
for free to their citizens. <o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;">For housing, a new provision will
emphasise that it must guarantee an ‘adequate standard of living’. The current
rule that Member States must aim to prevent sexual violence or harassment in
reception centres will be expanded to refer to ensuring ‘as far as possible,
the prevention of assault and violence, including violence committed with a
sexual, gender, racist or religious motive’ – which would seem to cover also violence
against asylum seekers or reception centres committed by extremist far right groups.
Other new provisions state that ‘Member States shall provide separate sanitary
facilities for female applicants and a safe place in accommodation centres for
them and their minor children’, and give Member States an option to permit
asylum seekers to do voluntary work outside reception centres. <o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;">As under the current Directive,
the 2024 Directive will specify that Member States should change reception
centres where asylum-seekers are living only where necessary. The case law on
the current Directive says that this does not prevent Member States moving
asylum-seekers to a new reception centre when they are preparing to transfer
the applicants to another Member State under the Dublin rules (see <i><a href="https://curia.europa.eu/juris/document/document.jsf?text=&docid=239602&pageIndex=0&doclang=en&mode=lst&dir=&occ=first&part=1&cid=11503169">VW</a></i>
and <i><a href="https://curia.europa.eu/juris/document/document.jsf?text=&docid=239603&pageIndex=0&doclang=en&mode=lst&dir=&occ=first&part=1&cid=11503169">EV</a></i>),
even if the asylum seekers have appealed against the transfer decision; as we
shall see below, the 2024 Directive takes an even stricter approach to those covered
by the Dublin rules. <o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;">Finally, the current Directive
allows a temporary exception from the housing rules where the asylum seeker is
a special case or housing provision is temporarily exhausted, provided that ‘basic
needs’ are still met. The 2024 rules will amend this, adding also the scenario
where ‘due to a disproportionate number of persons to be accommodated or a
man-made or natural disaster, housing capacities normally available are temporarily
unavailable’. In place of a reference to ‘basic needs’, it will now be specified
that in such cases Member States ‘shall in any circumstances ensure access to
health care…and a standard of living for all applicants in accordance with
Union law, including the Charter of Fundamental Rights of the European Union,
and international obligations’. This wording now matches the minimum standards required
when reception conditions are reduced or withdrawn, discussed further below. The
CJEU has ruled that detention cannot be considered in this context as a form of
alternative housing provision (<i><a href="https://curia.europa.eu/juris/document/document.jsf?text=&docid=227722&pageIndex=0&doclang=en&mode=lst&dir=&occ=first&part=1&cid=11505485">VL</a></i>
judgment); there is nothing in the 2024 Directive to suggest that interpretation
should be changed.<o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;">Health care provided to asylum
seekers has to include as a minimum essential treatment of illness, emergency
care, and mental health; the 2024 Directive will add a reference to ‘necessary
sexual and reproductive health care which is essential to address a serious
physical condition’. It will be expressly specified that health care must be
provided even where benefits are otherwise withdrawn due to the applicant being
subject to a Dublin transfer. <o:p></o:p></p>
<p class="MsoNormal"><b>Reduction or withdrawal of benefits <o:p></o:p></b></p>
<p class="MsoNormal" style="text-align: justify;">In the current law, Member States
are allowed to reduce or (exceptionally) withdraw reception conditions where
rules on reporting or residence have been breached, or if the applicant makes a
repeat application as defined in the asylum procedures directive. They can also
reduce conditions where ‘an asylum seeker has failed to demonstrate that the
asylum claim was made as soon as reasonably practicable after arrival in that
Member State’. Furthermore, conditions
can be withdrawn or reduced if the applicant concealed financial resources, and
there can be ‘sanctions’ for ‘serious breaches’ of reception centre rules, or
‘seriously violent behaviour’.<o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;">The 2024 Directive will provide
that benefits can only be withdrawn for violent behaviour (as reworded). But
the daily expenses allowance, or other benefits, can also be reduced in the cases
referred to in the current law, as well as failure to cooperate with the
authorities or failure to comply with integration measures; although the prospect
of punishment for late applications (which dates back to a UK demand during the
negotiations of the first phase Directive) has been dropped. <o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;">Various procedural safeguards in
the current law are retained, along with a substantive safeguard: Member States
must always retain access to emergency health care and a ‘standard of living in
accordance with Union law’ (referring to the EU Charter of Fundamental Rights and
international law); this replaces the current minimum requirement of a ‘dignified
standard of living’. As noted above, the same rule will apply when Member States
temporarily apply an exception to normal benefits rules in special cases or due
to overloaded reception capacity. <o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;">Interpreting the current rules on
withdrawal or reduction of benefits, the CJEU has ruled that ‘sanctions’ for
breaches of the rules of an accommodation centre can include reduction or
withdrawal of benefits; but a complete withdrawal, making the asylum seeker
homeless and giving him only a list of homelessness charities to contact, was a
breach of the obligation to ensure a decent standard of living, in accordance
with the EU Charter (<i><a href="https://curia.europa.eu/juris/document/document.jsf?text=&docid=220532&pageIndex=0&doclang=en&mode=lst&dir=&occ=first&part=1&cid=11496049">Haqbin</a></i>;
see also the later<i> <a href="https://curia.europa.eu/juris/document/document.jsf?text=&docid=263735&pageIndex=0&doclang=en&mode=lst&dir=&occ=first&part=1&cid=11498305">TO
<span style="font-style: normal;">judgment</span></a></i>). The reworded minimum
in the 2024 Directive, which adds a reference to the Charter in this context, appears
to integrate this case law (although the case law post-dates the 2018 agreement
on the text of the Directive), rather than overturn it. EU law requires as an
absolute minimum, according to the case law, that the State refrain from
imposing ‘extreme material poverty that does not allow that person to meet his
or her most basic needs such as a place to live, food, clothing and personal
hygiene, and that undermines his or her physical or mental health or puts that
person in a state of degradation incompatible with human dignity’.<u><o:p></o:p></u></p>
<p class="MsoNormal" style="text-align: justify;">The biggest change in this area in
the 2024 Directive is the overturning of the Court of Justice case law on the
position of asylum seekers subject to a Dublin transfer (<i><a href="https://curia.europa.eu/juris/document/document.jsf?text=&docid=127563&pageIndex=0&doclang=en&mode=lst&dir=&occ=first&part=1&cid=11231035">CIMADE
and GISTI</a></i>). In that case, the Court found that there were no express
exceptions in the first phase Directive for Dublin cases, and that transfers
might take months to take place or never happen at all. Member States were
responsible for ensuring application of the Directive until a transfer was
carried out, considering <i>inter alia</i> the right to dignity in the EU
Charter of Fundamental Rights. Separately, as noted above, the CJEU <a href="file:///C:/Users/UMTL002/Documents/applicant%20who%20appealed%20against%20a%20transfer%20decision,%20or%20who%20did%20not%20apply%20for%20asylum%20in%20the%20first%20Member%20State%20of%20entry">has
ruled</a> that access to employment is not lost because the asylum seeker did
not apply in the first Member State of entry, or is subject to the Dublin
rules, or appeals against a Dublin transfer decision with suspensive effect. <o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;">In the 2024 Directive, a new
clause specifies that access to benefits and employment is ended from the point
at which the asylum seeker is notified of a transfer decision under the Dublin
rules. However, this does not apply to healthcare, and is ‘without prejudice to
the need to ensure a standard of living in accordance with Union law, including
the Charter of Fundamental Rights of the European Union, and international
obligations.’ As noted above, this test, which also applies to the ‘traditional’
grounds for withdrawing or reducing benefits, appears to be consistent with the
case law on those traditional grounds, which rules out a complete removal of
support for housing, food, clothing and hygiene. <o:p></o:p></p>
<p class="MsoNormal"><b>Special cases<o:p></o:p></b></p>
<p class="MsoNormal" style="text-align: justify;">The list of special cases will be
expanded to add mentions of LGBTI applicants, PTSD (as an example of mental
illness), and victims of ‘gender-based violence’, ‘child or forced marriage, or
violence committed with a sexual, gender, racist or religious motive’. There
will be a new deadline of 30 days after the asylum claim to complete an
assessment (or a separate deadline in the procedures law), and new rules on the
obligations for those assessing asylum-seekers. As before, the assessment
process is separate from the determination of whether some qualifies as a
refugee or needs subsidiary protection. <o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;">For specific groups of special
cases, as regards minors the 2024 Directive will add references to ‘the need
for stability and continuity in care’ and the risk that the minor is ‘a victim
of any form of violence or exploitation’, along with references to access to
school materials and a safeguarding requirement for anyone working with minors.
In the case of unaccompanied minors, there will be deadlines to appoint a
representative, as well as a number of other changes to the rules, including
the prospect of the minor complaining about the representative. (For a breach
of the current version of the obligation to consider the vulnerability of unaccompanied
minors, see again the <i><a href="https://curia.europa.eu/juris/document/document.jsf?text=&docid=220532&pageIndex=0&doclang=en&mode=lst&dir=&occ=first&part=1&cid=11496049">Haqbin</a></i>
judgment – which is also a practical demonstration of the importance of having
a representative to litigate in the interests of the unaccompanied minor).<o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;">Finally, the provision on victims
of torture et al will add specific references to victims of trafficking in
human beings, expand on the forms of violence concerned and the motivation for
it (‘including sexual-, gender-, racist- or religious-motivated violence), and
refer specifically to rehabilitation, counselling and translation needs. <o:p></o:p></p>
<p class="MsoNormal"><b>Appeals and final provisions<o:p></o:p></b></p>
<p class="MsoNormal" style="text-align: justify;">The current rules on appeals
against decisions under the Directive, which include the legal aid aspects of
judicial review, are amended to include an appeal against a decision to refuse
legal aid because there is ‘no tangible prospect of success’. <o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;">The final provisions are amended
to require Member States to take account of the EU Asylum Agency’s guidelines
for their monitoring and control systems, and to place those systems into the monitoring
mechanism set out in the Regulation establishing the Agency. There is also a new provision requiring Member
States to set out contingency planning measures. <o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;">The provisions on staff and resources
will also refer now to the use of training materials developed by the Agency,
as well as the tools on identifying special cases. Finally, the provisions on
resources will now refer specifically to ‘translators and interpreters’, ‘taking
into account seasonal fluctuations’ in asylum numbers, and allocating resources
for ‘local, regional, civil society or international organisations’ which play
a role in applying the law in practice. <o:p></o:p></p>
<p class="MsoNormal"><b>Comments<o:p></o:p></b></p>
<p class="MsoNormal" style="text-align: justify;">According to the Commission’s
proposal, the main objectives of the new Directive are to deter movement
between Member States, harmonise the law further, and increase self-reliance of
asylum-seekers. The former two objectives are shared with the qualification Regulation,
as discussed in part 1 of this series, and they are linked: it is often
presumed that one reason for movement of asylum seekers between Member States
is the differences in their asylum laws (although this assumption is also
contested).<o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;">Will the Directive deter movement
between Member States? For the reasons explained above, Member States cannot enforce
the Dublin rules by means of a <i>complete</i> removal of support for food and
housing; and since the level of support may be quite low already, the threat may
be less effective than Member States hope: asylum seekers might not even hear
such threats over the sounds of their rumbling tummies. But it is bound to have
<i>some</i> effect – including the removal of access to the labour market,
where it is being exercised – and some key questions are left unclear. Since
the access cannot be withdrawn until a transfer decision is notified (in <i>CIMADE
and GISTI</i>, the Court ruled that the grounds for removal of benefits in the
Directive were exhaustive), it cannot be withdrawn at an earlier stage in the Dublin
process, so arguably not purely because the applicant did not apply in the
first Member State of entry, but only after that fact leads to a transfer
decision being made. (It should be recalled that the Dublin rules, even in the 2024
version, are more complex than a simple allocation of responsibility for the asylum
claim to the first State of entry in all cases). <o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;">What if the asylum seeker appeals
the transfer decision, with suspensive effect? Here, the new Directive is silent,
and the case law points in both directions: the access to employment case law
says that such access remains in light of the appeal, while the benefits case
law says that the asylum seeker can be transferred to different housing, in
light of the planned transfer, despite an appeal. In my view, it can be
inferred from the absence of a provision on the point, and the need to
interpret exceptions narrowly in light of Charter rights (both the right to dignity
and the right to effective remedies), that appeals against transfer decisions will
suspend the removal of benefits and access to employment, as long as those
appeals are suspensive as regards the transfer itself. But undoubtedly the
counter-argument will be made that this would undermine the attempts to make
the Dublin system work efficiently – or, put bluntly, the intention to starve asylum
seekers out of resisting its application. <o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;">Surely if the appeal against transfer
is successful, or the transfer is not carried out by the deadline, then access
to benefits and employment must be restored, on any interpretation. All of this
will depend in practice on how the revised Dublin system applies in practice,
and in particular the wording of the revised rules on transfers and appeals
against them (the Dublin rules on detention may be relevant too, as that
remains a detention ground under the Directive). <o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;">How much further harmonisation
will result from the Directive? There is certainly a degree more harmonisation
on a number of points, such as information and documentation, limits on
movement, time limits for judicial review of detention, detention guarantees, the
details of access to employment, the definition of reception conditions, and special
cases. In some cases the harmonisation results from cross-references to other
new EU asylum laws, so it is hard to assess the changes in isolation. And in
any event, the assumption that harmonisation of standards is closely linked to
movement between Member States is in any event contested, as noted above. As
regards education, the shorter time limits and expanded use of mainstream education
are undercut by the possibility of still providing education outside the mainstream.
Finally, the changes to the law on family unity and detention conditions adapted
to minors imply that neither US-style family separation nor UK-style painting
over Disney murals would be allowed under EU law. <o:p></o:p></p>
<p class="MsoNormal"><o:p></o:p></p><p style="text-align: justify;">Finally, as for the self-reliance of asylum seekers, the earlier
access to the employment market and the clarification of related equal
treatment and labour market tests should in principle increase the numbers of
asylum seekers able to support themselves via work. But the exceptions for accelerated
procedures and the Dublin cut off raise the question of whether the labour
market access given with one hand will be in practice taken away with the other. </p></div>Steve Peershttp://www.blogger.com/profile/05869161329197244113noreply@blogger.com0tag:blogger.com,1999:blog-8704899696538705849.post-75952364033664162152023-12-30T06:29:00.000-08:002024-02-13T02:56:30.656-08:00The New EU Asylum Laws, part 1: the Qualification Regulation<p></p><div class="separator" style="clear: both; text-align: center;"><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEgcOJZfOvcKZaMcPrKUt_srzs3CURrwJcV2cMX6iCz7vZ71ru8PL8es4eY1AKe4fBdrzstHKXq2jzrxC7ym01lhbJNj-QE2mb7mkc23yz8P-FaXWY6TIwCyT4cbgUxzl44j6VBEhUxY2kQ4Bm9o-ewgzhXbyOxWBmf1NO80FNBJD-eJPw9WXE_TMt1p0Zs/s5349/refugees%201.jpg" style="margin-left: 1em; margin-right: 1em;"><img border="0" data-original-height="1529" data-original-width="5349" height="157" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEgcOJZfOvcKZaMcPrKUt_srzs3CURrwJcV2cMX6iCz7vZ71ru8PL8es4eY1AKe4fBdrzstHKXq2jzrxC7ym01lhbJNj-QE2mb7mkc23yz8P-FaXWY6TIwCyT4cbgUxzl44j6VBEhUxY2kQ4Bm9o-ewgzhXbyOxWBmf1NO80FNBJD-eJPw9WXE_TMt1p0Zs/w553-h157/refugees%201.jpg" width="553" /></a></div><br /> <p></p><br />
<p class="MsoNormal" style="text-align: justify;"><b>Professor Steve Peers</b>,
Royal Holloway University of London*<o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;"><b>Photo credit</b>: Ggia, via <a href="https://commons.wikimedia.org/wiki/File:20151029_5boats_with_refugees_arriving_to_Skala_Sykamias_Lesvos_Greece.jpg">Wikimedia
Commons</a><b><u><o:p></o:p></u></b></p>
<p class="MsoNormal" style="text-align: justify;">*sentences with an asterisk have been corrected or updated since the original publication of this post. Most recently updated 13 Feb 2024. </p><p class="MsoNormal" style="text-align: justify;">Just before Christmas, the
European Parliament and the Council (the EU body consisting of Member States’
ministers) <a href="https://ec.europa.eu/commission/presscorner/detail/en/statement_23_6708">reached
a deal</a> on five key pieces of EU asylum legislation, concerning asylum procedures,
the ‘Dublin’ system on responsibility for asylum applications, the ‘Eurodac’
database supporting the Dublin system, screening of migrants/asylum seekers,
and derogations in the event of crises. I’ll be looking at these agreements for
new legislation on this blog (see the agreed texts <a href="https://www.consilium.europa.eu/en/documents-publications/public-register/public-register-search/results/?WordsInSubject=&WordsInText=&DocumentNumber=&InterinstitutionalFiles=&SubjectMatters=ASILE&DocumentDateFrom=&DocumentDateTo=&MeetingDateFrom=&MeetingDateTo=&DocumentLanguage=EN&OrderBy=DOCUMENT_DATE+DESC">here</a>),
unless the deal somehow unravels.* But for now this series looks at
the planned new legal framework for asylum in the EU by looking at the first three texts that were made available: agreements on revised laws on <a href="https://data.consilium.europa.eu/doc/document/ST-6367-2024-INIT/en/pdf">qualification</a>
of refugees and people with subsidiary protection, <a href="https://data.consilium.europa.eu/doc/document/ST-6381-2024-INIT/en/pdf">reception conditions</a> for asylum-seekers, and <a href="https://data.consilium.europa.eu/doc/document/ST-6368-2024-INIT/en/pdf">resettlement</a> of refugees from outside the EU.* <a href="http://eulawanalysis.blogspot.com/2024/01/the-new-eu-asylum-laws-part-2-reception.html">Part 2</a> of this series, on reception conditions, is now also published, as is <a href="http://eulawanalysis.blogspot.com/2024/01/the-new-eu-asylum-laws-part-3.html">Part 3</a>, on the resettlement Regulation.* These laws, agreed earlier between the
European Parliament and the Council, but not yet formally adopted, are intended
to be part of a ‘<a href="https://www.consilium.europa.eu/en/policies/eu-migration-policy/eu-migration-asylum-reform-pact/">package</a>’
of new or revised EU asylum laws, along with the recently agreed measures.</p><p class="MsoNormal" style="text-align: justify;"><o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;">It should be noted that the body-positive
lady has not yet sung: all of the measures in the asylum package could in
principle be amended or blocked before they are adopted, except for the <a href="https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A32021R2303">Regulation
revising the powers of the EU asylum agency</a>, which was separated from the
package and adopted already in 2021. I will update this blog post as necessary in light of
developments.<o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;"><b>The qualification Regulation:
background <o:p></o:p></b></p>
<p class="MsoNormal" style="text-align: justify;">There have been two previous ‘phases’
in development of the Common European Asylum System: a first phase of laws mainly
adopted between 2003 and 2005, and a second phase of laws mainly adopted between
2011 and 2013. The 2024 package will, if adopted, in effect be a third phase,
although for some reason the EU avoids calling it that. <o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;">In each phase, the law on <b>qualification</b>
is central: defining what is necessary to obtain refugee status or subsidiary
protection status (ie protection other than as a refugee), and setting out what
rights people have if they obtain either status. The first phase <a href="http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:32004L0083:en:HTML">Qualification
Directive</a> was adopted in 2004; the <a href="http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2011:337:0009:0026:en:PDF">‘second
phase’ Qualification Directive</a> replaced it in 2011. (I analysed the
negotiation of the latter Directive <a href="https://www.academia.edu/24729621/The_Recast_Qualification_Directive">here</a>;
there’s also a lengthy analysis of it by Madeline Garlick and Violeta Moreno
Lax in <a href="http://www.brill.com/products/book/eu-immigration-and-asylum-law-text-and-commentary-second-revised-edition" style="font-style: italic;">EU
Immigration and Asylum Law: Text and Commentary</a>, and see also my asylum chapter in the latest edition of <i><a href="https://global.oup.com/academic/product/eu-justice-and-home-affairs-law-9780198890232?cc=gb&lang=en&">EU Justice and Home Affairs Law</a></i>). The third phase, if finally
adopted in 2024, will include a <a href="https://data.consilium.europa.eu/doc/document/ST-16279-2022-INIT/en/pdf">qualification
<i>Regulation</i></a>. <span style="mso-spacerun: yes;"> </span></p><p class="MsoNormal" style="text-align: justify;"><o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;">There is CJEU case law on both
the <a href="https://curia.europa.eu/juris/documents.jsf?nat=or&mat=or&pcs=Oor&jur=C&for=&jge=&dates=&language=en&pro=&etat=clot&cit=none%252CC%252CCJ%252CR%252C2008E%252C%252C%252C%252C%252C%252C%252C%252C%252C%252Ctrue%252Cfalse%252Cfalse&oqp=&td=%3B%3B%3BPUB1%3BNPUB1%3B%3B%3BORDALL&avg=&lgrec=en&page=1&text=2004%252F83&lg=&cid=10844781">first
phase Directive</a> and the <a href="https://curia.europa.eu/juris/documents.jsf?nat=or&mat=or&pcs=Oor&jur=C&for=&jge=&dates=&language=en&pro=&etat=clot&cit=none%252CC%252CCJ%252CR%252C2008E%252C%252C%252C%252C%252C%252C%252C%252C%252C%252Ctrue%252Cfalse%252Cfalse&oqp=&td=%3B%3B%3BPUB1%3BNPUB1%3B%3B%3BORDALL&avg=&page=1&text=2011%252F95&lg=&cid=10844781">second
phase Directive</a>. It might be argued that the case law is still relevant to
the new Regulation, unless the relevant text has been amended; in some cases
the Regulation (or the preamble to it) reflects some of that case law.<o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;">The UK and Ireland opted in to
the first phase Directive, but not the second phase Directive or the proposal
for the 2024 Regulation. Of course, the UK is no longer bound by EU law, but
Ireland is still bound by the first phase Directive. Denmark opted out of both.
<o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;">Of course, none of the measures
in the package can be fully understood without the context of all the others –
which I will be discussing over the course of this series of blog posts. For
instance, it is possible that the effect of the other measures in the package
will be to reduce the numbers of people who would otherwise apply for refugee
or subsidiary protection status in the EU, or whose applications will be
considered on the merits (the asylum procedures law provides that some
applications can or must be considered inadmissible). The qualification law is
only relevant to those who get to that stage. And for those who do obtain
refugee or subsidiary protection status, they can eventually obtain EU long-term
resident status, which inter alia provides for a limited prospect of movement
between Member States – and that law is in turn being renegotiated too,
separately from the asylum package (my comments on that renegotiation <a href="http://eulawanalysis.blogspot.com/2023/11/taking-rights-away-seriously-councils.html">here</a>).<o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;">The legislative process leading
to the agreed text of the qualification Regulation started with the Commission <a href="https://ec.europa.eu/home-affairs/sites/homeaffairs/files/what-we-do/policies/european-agenda-migration/proposal-implementation-package/docs/20160713/proposal_on_beneficiaries_of_international_protection_-_subsidiary_protection_eligibility_-_protection_granted_en.pdf">proposal</a> in
2016, as a response to the perceived refugee crisis, followed by EU governments
agreeing their <a href="http://www.statewatch.org/news/2017/jul/eu-council-qualifications-mandate-to-negotiate-10475-17.pdf">position</a> on
the proposal, which had to be negotiated with the European Parliament (its
negotiating position was set out <a href="http://www.europarl.europa.eu/sides/getDoc.do?type=REPORT&mode=XML&reference=A8-2017-0245&language=EN">here</a>).
I compared the three institutions’ positions in a blog post <a href="http://eulawanalysis.blogspot.com/2017/07/the-new-eu-law-on-refugees-takes-shape.html">here</a>.
But this blog post will compare the 2024 Regulation only to the current
Directive, although I have updated some of the discussion in my previous blog
post where relevant.<o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;"><b>Basic issues <o:p></o:p></b></p>
<p class="MsoNormal" style="text-align: justify;">The first key issue is the type
of law used, which is linked with the degree of harmonisation which the EU seeks
in this field. The first and second phase qualification laws were Directives,
which mean that Member States were bound to achieve the outcome required but
had a choice of form and method. The 2024 law will be a Regulation, which is
binding in and of itself, without national transposition. <o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;">As for the level of harmonisation,
the Directives set a form of minimum standards: Member States could have higher
standards, as long as those standards were compatible with the Directives. So
they set not only a floor, but also a ceiling: the CJEU judgments in <i><a href="http://curia.europa.eu/juris/document/document.jsf?text=&docid=79167&pageIndex=0&doclang=en&mode=lst&dir=&occ=first&part=1&cid=246106">B
and D</a></i>,<i> <a href="http://curia.europa.eu/juris/liste.jsf?language=en&td=ALL&num=C-542/13">M’Bodj</a></i> (discussed <a href="http://eulawanalysis.blogspot.co.uk/2014/12/could-eu-law-save-paddington-bear-cjeu.html">here</a>),
<i><a href="https://curia.europa.eu/juris/document/document.jsf?text=&docid=206429&pageIndex=0&doclang=en&mode=lst&dir=&occ=first&part=1&cid=10833956">Ahmedbekova</a></i>
and <i><a href="https://curia.europa.eu/juris/document/document.jsf?text=&docid=248901&pageIndex=0&doclang=en&mode=lst&dir=&occ=first&part=1&cid=10844781">LW</a></i>
discussed the limits of the power to set higher standards. But this will soon be
history: the 2024 Regulation will remove the power to set higher standards even
with a ceiling, providing instead for uniform standards in principle, although
some national options will remain in the text. (The same two basic changes will
also be made to the current asylum procedures Directive). <o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;">The new Regulation, reflecting
that case law, will note that Member States are however free to retain or
establish a separate status of humanitarian protection, as long as there is no
confusion with the (EU harmonised) notions of refugee or subsidiary protection
status. People with such national status will largely fall outside the scope of
any EU law, although the equal treatment provisions in the recently agreed
amendment of the EU single permit Directive (discussed <a href="http://eulawanalysis.blogspot.com/2023/12/take-this-job-and-shove-it-revised-eu.html">here</a>)
will apply to them, and the resettlement Regulation will apply aspects of the qualification Regulation to those admitted
on a humanitarian basis under the EU resettlement law (see Part 3 of this series).*<o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;">In practice the shift toward
harmonisation may lead to some lowering of standards overall, due to the absence
of the possibility to have higher standards generally (even subject to a
ceiling) and the removal of some options, to the extent that Member States will
now be obliged to (for instance) provide for an ‘internal flight alternative’
in their law, and to require two criteria (not just one criterion) to be satisfied
to apply the ‘particular social group’ ground of refugee protection. But the
effect of such changes is qualified: for example, the requirement to apply the ‘internal
flight alternative’ rule comes with additional safeguards attached to that
rule, and Member States may have had less enthusiasm to apply higher standards
for refugees, as compared to the options in EU law to have higher standards for
(say) employment and environmental law. <o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;">The 2024 qualification
Regulation will be applicable two years after its adoption - so likely by spring 2026. <o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;">The refugee parts of the
Regulation (like the prior Directives) aim to implement the <a href="http://www.unhcr.org/uk/3b66c2aa10">UN Refugee Convention</a> (which
the EU refers to as the ‘Geneva Convention’) in more detail, as regards both
the definition of ‘refugee’ and the rights which refugees receive. The case law
of the CJEU has often interpreted the Directive in light of the Convention,
which seems likely to continue because the Regulation still makes many references
to the Convention. <o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;">Turning to the details of the Regulation,
there are five main elements to the law: common rules (applying to both refugee
and subsidiary protection status); the definition of ‘refugee’; cessation,
exclusion from and withdrawal of refugee status; the definition and cessation
etc of subsidiary protection; and the content of status (ie the benefits people
with status receive). This blog post mostly does not discuss the preamble, but keep
in mind that the preamble adds some important detail to many of the points in
the main text analysed here.<o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;"><b>Common rules<o:p></o:p></b></p>
<p class="MsoNormal" style="text-align: justify;">Family members of refugees and
people with subsidiary protection will be defined slightly more broadly. A
‘family member’ will now include relationships formed outside the country of
refuge, not just those formed inside the country or origin. This means, for
instance, that the spouse of a Syrian refugee who married him while in Turkey
or Lebanon, and the children of that couple born in such countries, would now
be defined as ‘family members’. It is still necessary for the family members to
be present on the territory in connection with the asylum application, though (as
confirmed by the recent CJEU judgment in <i><a href="https://curia.europa.eu/juris/document/document.jsf?text=2011%252F95&docid=272582&pageIndex=0&doclang=en&mode=req&dir=&occ=first&part=1&cid=10667564#ctx1">Afrin</a></i>
– although note that in such cases, the separate EU law on <a href="https://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2003:251:0012:0018:en:PDF">family
reunion</a> applies for refugees). 'Family members' will now include dependent adult children.* A minor must be considered unmarried if the
marriage would not have been allowed under the Member State’s national law,
especially on grounds of age.<o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;">The Regulation ‘should’ apply to
those covered by the planned new EU law on resettlement of refugees from non-EU
countries (according to the preamble); the rules on assessment of asylum
applications will expressly apply to them. (In fact, as discussed in Part 3 of this series, the resettlement Regulation will be clearer on this point).* As with
the previous Directives – and unlike other EU asylum law measures – there is no
provision on the territorial scope of the Regulation. <o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;">It will now be mandatory, not
optional, for the main burden of proof to rest upon the applicant to show why
the claim for refugee or subsidiary protection status is justified; and a new
clause in the preamble will reflect the ECJ’s 2014 case law (discussed <a href="http://eulawanalysis.blogspot.co.uk/2014/12/lgbti-asylum-seekers-cjeu-sends-mixed.html">here</a>)
which limits the intrusiveness of Member States’ questioning of the credibility
of LGBTI asylum-seekers. The importance of the asylum seeker applying at
the ‘earliest possible time’ will be de-emphasised. <o:p></o:p></p>
<p class="MsoNormal" style="margin-top: 12pt; text-align: justify;">As before, the
Regulation will retain the possibility of becoming a refugee or needing
subsidiary protection ‘sur place’ – ie because of events which took place after
the asylum seeker left his or her country of origin, or due to activities of
the applicant since leaving that country. But the exception to this rule will remain
optional (‘may’): where the applicant has created the circumstances for use of
this provision, Member States may refuse protection. This exception will be
widened in two ways (extending it to include subsidiary protection claims, and
applying it to initial applications, not just repeat applications), but also
subject to a new safeguard (the circumstances created by the applicant must be
for the for the ‘sole or main purpose of creating the necessary conditions for
applying for international protection’). In fact, the ‘sole aim’ test is
already proposed by an Advocate-General’s <a href="https://eur-lex.europa.eu/legal-content/FR/TXT/HTML/?uri=CELEX:62022CC0222">opinion</a>
in a pending case concerning the current Directive.<o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;">On the other hand, the option to
refuse claims because the asylum seeker had an ‘internal flight alternative’ –
ie he could have fled to a safe part of the country of origin, like a supposed
‘safe zone’ in Syria – will become mandatory. (The possibility of rejecting a
claim because an asylum seeker would arguably have been safe in a <i>different</i> country
is the subject of the asylum procedures Regulation). However, there are new safeguards:
a strong presumption that the concept cannot apply where the source of
persecution is the State; applying the main rules on qualification first;
shifting the burden of proof to the authorities, and obliging them to consider
contrary arguments submitted by the applicant; more on the personal
circumstances of the applicant; a requirement to consider whether the applicant
could meet their basic needs; and a specific protection for unaccompanied
minors. There is also a new requirement to consider the country of origin
information supplied by the EU Asylum Agency. Note that although the CJEU has
not yet interpreted the rules on the ‘internal flight alternative’ as such, it
has <a href="https://curia.europa.eu/juris/document/document.jsf?text=&docid=280243&pageIndex=0&doclang=en&mode=lst&dir=&occ=first&part=1&cid=11035154">recently
ruled</a> that differences in interpretation of the rule between Member States
are not a good enough reason to refuse to transfer an asylum seeker to another
Member State under the Dublin rules. In that context, it is possible that the additional
provisions in the Regulation will lead to a more harmonised interpretation of
the rule between Member States. <o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;">As for the sources of persecution
or protection, the Regulation will retain the current rules in the Directive, replacing
a reference to considering whether EU acts define a country as providing effective
protection from persecution with a reference to considering country of origin
information, including from the EU asylum agency where available. <o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;"><b>Definition of ‘refugee’<o:p></o:p></b></p>
<p class="MsoNormal" style="text-align: justify;">The Regulation retains the basic
idea from the previous Directives – and the UN Refugee Convention – that a
‘refugee’ is someone persecuted because of their race, religion, political
opinion, nationality or particular social group, elaborating upon each of these
concepts. The definition of ‘persecution’ will not change, but there are some changes
to the text on ‘particular social group’: adding a reference to how the group
is perceived, dropping a reference to criminal law, and adding a reference to ‘gender
expression’. Furthermore, there are some new elaborations of the concept in the
preamble, including a reference to the possibility of persecution on grounds of
disability. As noted above, all Member States will also now have to require that
asylum-seekers show that they both perceive themselves as part of a
distinct group and are perceived as different by the rest of society,
due to the loss of the capacity to set higher standards. (In the meantime, the
CJEU has ruled for the first time on the position of women as part of
a particular social group, with a judgment <a href="https://curia.europa.eu/juris/liste.jsf?nat=or&mat=or&pcs=Oor&jur=C%2CT%2CF&num=c-621%252F21&for=&jge=&dates=&language=en&pro=&cit=none%252CC%252CCJ%252CR%252C2008E%252C%252C%252C%252C%252C%252C%252C%252C%252C%252Ctrue%252Cfalse%252Cfalse&oqp=&td=%3BALL&avg=&lg=&page=1&cid=11039243">in January</a> on domestic violence – see earlier discussion <a href="http://eulawanalysis.blogspot.com/2023/05/ag-de-la-tours-opinion-in-c-62121.html">here</a>
– and also a pending case on Afghan women, discussed <a href="http://eulawanalysis.blogspot.com/2023/11/rethinking-gender-based-asylum-look-at.html">here</a>).*<o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;">More generally, a new clause will
provide that asylum seekers cannot be expected to hide their identity or beliefs,
confirming case law as regards <a href="http://curia.europa.eu/juris/document/document.jsf?text=2004%252F83&docid=144215&pageIndex=0&doclang=en&mode=req&dir=&occ=first&part=1&cid=52473#ctx1">sexuality</a>
and <a href="http://curia.europa.eu/juris/document/document.jsf?text=2004%252F83&docid=126364&pageIndex=0&doclang=EN&mode=req&dir=&occ=first&part=1&cid=52473#ctx1">religion</a>.<o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;"><b>Exclusion, cessation and
withdrawal of status<o:p></o:p></b></p>
<p class="MsoNormal" style="text-align: justify;">The current Directive elaborates on
the Refugee Convention on exclusion, but the Regulation will elaborate further.
First, the preamble to the new Regulation will enshrine the basic elements of CJEU
case law on the special status of some Palestinians (case law starting with <i><a href="http://curia.europa.eu/juris/document/document.jsf?text=2004%252F83&docid=82833&pageIndex=0&doclang=EN&mode=req&dir=&occ=first&part=1&cid=56619#ctx1">Bolbol</a></i> and <i><a href="http://curia.europa.eu/juris/document/document.jsf?text=2004%252F83&docid=131971&pageIndex=0&doclang=en&mode=req&dir=&occ=first&part=1&cid=52473#ctx1">El
Kott</a></i>; note also the recent Advocate-General’s opinion relating
<a href="https://curia.europa.eu/juris/fiche.jsf?id=C%3B563%3B22%3BRP%3B1%3BP%3B1%3BC2022%2F0563%2FP&nat=or&mat=or&pcs=Oor&jur=C%2CT%2CF&num=C-563%252F22&for=&jge=&dates=&language=en&pro=&cit=none%252CC%252CCJ%252CR%252C2008E%252C%252C%252C%252C%252C%252C%252C%252C%252C%252Ctrue%252Cfalse%252Cfalse&oqp=&td=%3BALL&avg=&lgrec=en&lg=&cid=11040941">specifically
to Gaza</a>).* Secondly, a new provision on exclusion on grounds of terrorism states
that no proportionality test is required in such cases, confirming the judgment
in <i><a href="http://curia.europa.eu/juris/document/document.jsf?text=&docid=79167&pageIndex=0&doclang=en&mode=lst&dir=&occ=first&part=1&cid=246106">B
and D</a></i>; the preamble also takes account of the judgment in <i><a href="http://curia.europa.eu/juris/document/document.jsf?text=&docid=187322&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=252613">Lounani</a></i> on
the exclusion of foreign fighters, discussed <a href="http://eulawanalysis.blogspot.co.uk/2017/01/foreign-fighters-helpers-excluded-from.html">here</a>).
Finally, another new provision will require consideration of whether a minor
would be considered criminally responsible for acts under the law of a Member
State, when considering if a minor would be excluded on grounds of war crimes,
terrorism et al. <o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;">On cessation – loss of refugee
status because, <i>inter alia</i>, the situation has improved significantly in
the country of origin – the Regulation will provide again that account must be
taken of country of origin information supplied by the EU asylum agency, or
other sources.<o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;">As for the withdrawal of refugee
status, withdrawal will be mandatory in more cases, now including where ‘there
are reasonable grounds for regarding him or her as a danger to the security of
the Member State in which he or she is present’ and where ‘he or she, having
been convicted by a final judgment of a particularly serious crime, constitutes
a danger to the community of the Member State in which he or she is present’.
Previously withdrawal of refugee status was only optional in some cases. The
CJEU has recently interpreted the latter of the two newly mandatory exceptions
(see the trilogy of judgments <a href="https://curia.europa.eu/juris/liste.jsf?nat=or&mat=or&pcs=Oor&jur=C%2CT%2CF&num=663%252F21&for=&jge=&dates=&language=en&pro=&cit=none%252CC%252CCJ%252CR%252C2008E%252C%252C%252C%252C%252C%252C%252C%252C%252C%252Ctrue%252Cfalse%252Cfalse&oqp=&td=%3BALL&avg=&lg=&page=1&cid=11047877">here</a>,
<a href="https://curia.europa.eu/juris/document/document.jsf?text=&docid=275244&pageIndex=0&doclang=en&mode=lst&dir=&occ=first&part=1&cid=11047877">here</a>
and <a href="https://curia.europa.eu/juris/document/document.jsf?text=&docid=275247&pageIndex=0&doclang=en&mode=lst&dir=&occ=first&part=1&cid=11047877">here</a>).
Also, the Court has more broadly <a href="https://curia.europa.eu/juris/document/document.jsf?text=&docid=214042&pageIndex=0&doclang=en&mode=lst&dir=&occ=first&part=1&cid=11044347">ruled</a>
that even if refugee <i>status</i> is withdrawn, the person concerned remains a
<i>refugee</i>, still benefiting from non-refoulement and the rights which the
Refugee Convention sets out for refugees who are unlawfully resident. <o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;"><b>Subsidiary protection <o:p></o:p></b></p>
<p class="MsoNormal" style="text-align: justify;">The core definition of subsidiary
protection (a threat of serious harm deriving from the death penalty, torture
or similar treatment, or facing a specified threat from armed conflict) will not
be affected by the Regulation – although the preamble will entrench some of the
relevant CJEU case law on how much violence against civilians, and what types
of conflict, trigger the ‘armed conflict’ ground of subsidiary protection (<i><a href="http://curia.europa.eu/juris/liste.jsf?pro=&lgrec=en&nat=or&oqp=&dates=&lg=&language=en&jur=C%2CT%2CF&cit=none%252CC%252CCJ%252CR%252C2008E%252C%252C%252C%252C%252C%252C%252C%252C%252C%252Ctrue%252Cfalse%252Cfalse&td=%3BALL&pcs=Oor&avg=&page=1&mat=or&parties=elgafaji&jge=&for=&cid=65572"><span style="text-decoration: none; text-underline: none;">Elgafaji</span></a></i> and <i><a href="http://curia.europa.eu/juris/document/document.jsf?text=2004%252F83&docid=147061&pageIndex=0&doclang=EN&mode=req&dir=&occ=first&part=1&cid=52473#ctx1"><span style="text-decoration: none; text-underline: none;">Diakité</span></a></i>). The
provision on cessation of subsidiary protection will refer to country of origin
information, including from the EU Asylum Agency. <o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;">There will be some changes to the
rules on exclusion from subsidiary protection (it will be necessary to show
that there was a <i>conviction</i> for a ‘serious crime’, if committed after
admission to the territory; the person concerned must be a danger to <i>national</i>
security, not security generally); and the prospect of exclusion from
subsidiary protection due to commission of less serious crimes will remain
optional. As with refugee status, the rules on exclusion will now specify that
no proportionality test is required, along with special provision for minors.<o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;"><b>Rights of refugees and persons
with subsidiary protection </b><o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;">The Regulation will change the
provisions on the rights of those with refugee status or subsidiary protection
in several ways. First, if a Member State has not issued a residence permit
within 15 days, it must at least issue some provisional documentation so that
access to rights is more effective. Secondly, the list of vulnerable people now
includes parents of adult dependent children. Thirdly, there will be a common
template for information to be given to people with refugee status or
subsidiary protection, which will emphasise the limits on their movement to other
Member States. <o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;">Fourthly, due to the abolition of
the right for Member States to set higher standards where compatible with the qualification
law, it will no longer be possible for them to give refugee or subsidiary
protection status automatically to family members who do not qualify separately
for refugee or subsidiary protection status in their own right (see <i><a href="https://curia.europa.eu/juris/document/document.jsf?text=&docid=206429&pageIndex=0&doclang=en&mode=lst&dir=&occ=first&part=1&cid=10833956">Ahmedbekova</a></i>).
On the other hand, there is still an obligation to extend the same rights in
the law to family members covered by it, even if they will not have refugee or
subsidiary protection status as such. This will include having a residence
permit with the same date of expiry as the person with refugee or subsidiary
protection status, which is an improvement on the current Directive. But the
Regulation precludes a residence permit being issued to a spouse or unmarried
partner ‘where there are strong indications that the marriage or partnership
was contracted for the sole purpose of enabling the person concerned to enter
or reside in the Member State’.<o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;">Fifthly, there will be more
harmonisation of the rules on residence permits, as regards fees, an explicit
requirement to use the EU uniform format, an obligation to issue a permit within
90 days, and a requirement not to leave people with gaps between permits when
they are renewed. The prospect for non-renewal of permits will now be linked to
withdrawal of status (compare with the <i><a href="http://curia.europa.eu/juris/document/document.jsf?text=&docid=165215&pageIndex=0&doclang=en&mode=lst&dir=&occ=first&part=1&cid=312815">T</a></i> judgment
on the current law, discussed <a href="http://eulawanalysis.blogspot.co.uk/2015/06/what-if-refugee-allegedly-supports.html">here</a>).<o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;">Sixthly, there will be parallel harmonisation
of the rules related to travel documents, which are issued by Member States to
beneficiaries of international protection in place of passports, given that it
would probably be unsafe for them to contact officials from their country of
origin. (In the case of refugees, this supplements the rules already set out in
the Refugee Convention). They will be valid for more than one year and will be
expressly subject to the EU’s passport security rules.<o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;">Seventh, the provisions on
movement within the territory will be redrafted to add the proviso that equal
treatment with other non-EU citizens applies where they are ‘generally in the
same circumstances’. This may be an attempt to confirm the case law in <i><a href="http://curia.europa.eu/juris/document/document.jsf?text=&docid=174657&pageIndex=0&doclang=en&mode=lst&dir=&occ=first&part=1&cid=974767">Alo
and Osso</a></i> (discussed <a href="http://eulawanalysis.blogspot.co.uk/2016/03/enhancing-and-diluting-legal-status-of.html">here</a>),
which permits a link between limiting movements and the grant of benefits in
some cases.<o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;">Eighth, there will be a new rule
emphasising that refugees and people with subsidiary protection do not have the
right to move between Member States – unless they are allowed to stay on the
basis of national or other EU law, and subject to the right to make short-term
visits under the Schengen rules. As noted already, the EU rules in question
include a limited right to move between Member States under the EU long-term residence
Directive, which is also being renegotiated. Any unauthorised movement between
Member States can be punished by ‘resetting the clock’ on acquisition of long-term
residence status under that law. However, Member States will have to fully
count the time spent as an asylum-seeker when determining if a refugee or person
with subsidiary protection has spent five years’ legal residence in order to
qualify as an EU long-term resident under that Directive. <o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;">Ninth, the rules on integration
will be amended by an obligation to ensure equal treatment as regards
work-related matters, including taking account of experience in an occupation
obtained outside the country of refuge. The rules on education will provide for
equal treatment for adults (subject to an optional exception for loans and
grants) and an express right to finish secondary school after the age of
majority. Social assistance benefits can be linked to compulsory integration
courses, and it will still be possible for Member States to limit beneficiaries
of subsidiary protection to ‘core benefits’, which will now be listed in the
main text instead of the preamble (adding housing benefits, which takes account
of <a href="https://curia.europa.eu/juris/liste.jsf?nat=or&mat=or&pcs=Oor&jur=C%2CT%2CF&for=&jge=&dates=&language=en&pro=&cit=none%252CC%252CCJ%252CR%252C2008E%252C%252C%252C%252C%252C%252C%252C%252C%252C%252Ctrue%252Cfalse%252Cfalse&oqp=&td=%3BALL&avg=&parties=kamberaj&lg=&page=1&cid=10838943">analogous
case law</a>). It will also now be explicit that Member States may make
integration measures compulsory, subject to provisions on fees and accessibility. Finally, there will be new provisions on the guardians of unaccompanied minors. <o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;"><b>Assessment<o:p></o:p></b></p>
<p class="MsoNormal" style="text-align: justify;">To what extent will the Regulation
achieve the objectives which it sets out in its preamble?<o:p></o:p></p>
<p class="MsoNormal" style="margin-left: 36pt; text-align: justify;">To ensure
harmonisation and more convergence in asylum decisions and as regards the
content of international protection in order to reduce incentives to move
within the […] Union, encourage beneficiaries of international protection to
remain in the Member State that granted them protection and ensure an equality
of treatment of beneficiaries of international protection<o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;">The assumption that harmonisation
of refugee decisions deters movements within the EU is often questioned, but in
any event the Regulation should in principle increase harmonisation of
decision-making somewhat. This stems not only from converting a Directive into a Regulation and removing the qualified option to have higher standards, but
also from removing some of the options in the main part of the law, and
providing more details of how the common rules must be interpreted – for instance,
as regards <i>sur place</i> applications, the internal protection alternative,
and the definition of ‘particular social group’.* Note that in some cases this
takes the form of integrating the case law into the main text or preamble, thereby
making it more visible – and this blog post only mentions some of the new
details which will be added to the preamble. <o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;">On discouraging movements between
Member States, the sanction of restarting the clock on EU long-term residence
status for those who move without authorisation, plus allowing easier access to
that status for those who stay put, aims to provide a simultaneous carrot and
stick. Awkwardly the Regulation does not provide for the situation, <a href="https://curia.europa.eu/juris/document/document.jsf?text=&docid=211801&pageIndex=0&doclang=en&mode=lst&dir=&occ=first&part=1&cid=10841390">recognised
by the case law</a> (albeit subject to a very high threshold), when it is legitimate
for a refugee or person with subsidiary protection to move to another Member
State because the conditions in the Member State which extended them protection
have deteriorated to the point where they breach the EU Charter of Fundamental
Rights. <o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;">As for equality of treatment of
those with international protection, the changes in the rules on the rights
after obtaining refugee or subsidiary protection status appear liable to reduce
differences between Member States – if that is the issue of equal treatment being
referred to. On the other hand, some differences between refugees and people
with subsidiary protection (as regards social assistance, and being covered or
not by the family reunion Directive, which will be particularly relevant where
family members are not already present) will remain. <span style="mso-spacerun: yes;"> </span><o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;">More fundamentally, as noted
already this Regulation will form part of a broader package aiming at the same
objectives; in particular the new Regulation on asylum procedures will in parallel
harmonise the law on the procedural side, and changes to the law on reception
conditions will also aim to discourage movements between Member States. And
going beyond this, the bigger impact of the asylum package may come not from
this Regulation, but from the new constraints planned on asylum seekers’ applications
being considered on the merits in the first place – potentially leaving the EU
law on qualification for refugee and subsidiary protection status, whatever its
form or legal content, as a form of Potemkin village less frequently accessible
in practice. Some of the other blog posts in this series will examine the extent
to which the new asylum package could lead to this result. <o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;"><o:p> </o:p></p>
<p class="MsoNormal" style="text-align: justify;">Barnard & Peers: chapter 26<o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;">JHA5: chapter I:5<o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;"><br />
**Disclaimer: I was an independent adviser for a consultancy advising the
European Commission on the implementation of and possible amendment of the
current Directive.<o:p></o:p></p>
<p class="MsoNormal"><o:p> </o:p></p>Steve Peershttp://www.blogger.com/profile/05869161329197244113noreply@blogger.com0tag:blogger.com,1999:blog-8704899696538705849.post-11164127139235010202023-12-28T09:55:00.000-08:002023-12-28T09:55:06.121-08:00 Online Formation of Companies in Lithuania in a Comparative Context: Implementation of the Digitalisation Directive and Beyond<p style="text-align: justify;"> </p>
<div class="separator" style="clear: both; text-align: center;"><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEgo-EbTqCxWmHLBjvgFkZRf7QfhZ0FGTM9d92MHnXL3IN5J69DqYsRs9CL9311GQUgvqqdZBInQUSeKVUjTnuvJlqPGyl1RF3rFl5lY3t6MUZZOxJBolvWCRQwrdgZEhp0dzoJI7rYdiC1kgggneXSDGJF-1afGFZg2N2t_zYLLxgNFFutNFEEuk6UPCyU/s2272/Cat-and-computer.jpg" imageanchor="1" style="margin-left: 1em; margin-right: 1em;"><img border="0" data-original-height="1704" data-original-width="2272" height="240" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEgo-EbTqCxWmHLBjvgFkZRf7QfhZ0FGTM9d92MHnXL3IN5J69DqYsRs9CL9311GQUgvqqdZBInQUSeKVUjTnuvJlqPGyl1RF3rFl5lY3t6MUZZOxJBolvWCRQwrdgZEhp0dzoJI7rYdiC1kgggneXSDGJF-1afGFZg2N2t_zYLLxgNFFutNFEEuk6UPCyU/s320/Cat-and-computer.jpg" width="320" /></a></div><br /><p class="MsoNormal" style="line-height: normal; margin-left: 36pt; text-align: justify; text-indent: 0cm;"><br /></p><p class="MsoNormal" style="line-height: normal; margin-left: 36pt; text-align: justify; text-indent: 0cm;"><b style="text-indent: 0cm;">Virginijus
Bitė</b><span style="text-indent: 0cm;">, Professor of Law at the Law School of Mykolas Romeris University</span></p><p class="MsoNormal" style="line-height: normal; margin-left: 36pt; text-align: justify; text-indent: 0cm;"><o:p></o:p></p>
<p class="MsoNormal" style="line-height: normal; margin-left: 36pt; text-align: justify; text-indent: 0cm;"><b>Ivan
Romashchenko</b>, Senior Researcher of the Legal Technology Centre at the Law
School of Mykolas Romeris University<o:p></o:p></p>
<p class="MsoNormal" style="line-height: normal; margin-left: 36pt; text-align: justify; text-indent: 0cm;"><o:p>Photo credit: <b>Elian</b>, via <a href="https://commons.wikimedia.org/wiki/File:Cat-and-computer.JPG">Wikimedia Commons</a> </o:p></p>
<p class="MsoNormal" style="line-height: normal; margin-left: 36pt; text-align: justify; text-indent: 0cm;">For
many years, paper was the main format for the registration of companies. The <a href="https://eur-lex.europa.eu/eli/dir/2019/1151/oj">Digitalisation Directive</a>,
adopted in 2019, obliged European Union (EU) Member States to provide founders
with the option to form private companies digitally. Although for Lithuania,
where online formation of legal entities had already existed even before 2019
and these regulatory developments did not bring about radical change, they nevertheless
forced the national legislator to introduce the required amendments. The
adopted amendments mostly took effect on 1 July 2022. Among others, the
amendments provide for the recognition of identification tools, which means
that electronic signatures issued in other EU Member States should be
recognised. In addition, the State Enterprise Centre of Registers of the
Republic of Lithuania has taken steps to change the registration portal’s
interface, to have a guide in English and to simplify the process of registration
by allowing foreigners to go without opening bank accounts in Lithuania as a
prerequisite to incorporation.<o:p></o:p></p>
<p class="MsoNormal" style="line-height: normal; margin-left: 36pt; text-align: justify; text-indent: 0cm;">In
our <a href="https://rdcu.be/dfMc2">research</a> we aimed at studying the provisions
of the Digitalisation Directive and the results of its implementation in
Lithuania to suggest possible improvements in the online registration of
companies. We have carried out a comparative study of both EU jurisdictions (Estonia,
Latvia, Lithuania, and Poland) and one non-EU jurisdiction (Ukraine). In
addition, a survey was carried out among representatives of large,
middle-sized, and small law firms in Lithuania. Additionally, an interview was held
with a representative of the State Enterprise Centre of Registers regarding the
implementation of the Digitalisation Directive, their experience in registering
companies online and future work perspectives. Respective authorities in other
jurisdictions, including the Centre of Registers and Information Systems of the
Republic of Estonia, the Register of Enterprises of the Republic of Latvia, and
the Ministry of Justice of the Republic of Poland, were also approached for
statistical information about online registration of limited liability companies.<o:p></o:p></p>
<p class="MsoNormal" style="line-height: normal; margin-left: 36pt; text-align: justify; text-indent: 0cm;">One
of the key provisions of the Digitalisation Directive, the obligation to ensure
online formation of private companies, was fulfilled in Lithuania in 2009–2010.
To compare, online formation of companies in Estonia has been available since
2007, in Latvia since 2010, and in Poland since 2012. In Ukraine the
possibility to create limited liability companies online was officially
announced in 2019. The statistical information has shown the increase of
companies being established online in all the studied jurisdictions.<o:p></o:p></p>
<p class="MsoNormal" style="line-height: normal; margin-left: 36pt; text-align: justify; text-indent: 0cm;">As
a prerequisite for online formation of private companies in the jurisdictions
in focus the template of the articles of association was approved. Estonia,
Latvia, and Lithuania use a rather standard template which does not allow many different
options of regulation. Meanwhile, in Poland and in Ukraine, templates are designed
in a way that the founders may choose among various options. On the one hand,
having optional clauses in the model articles of association provides more
flexibility to founders—they may choose the clause which fits their needs. On
the other hand, if the founders want more sophisticated articles of association,
they can go to a notary. It may be argued that in a situation with many options
of default provisions founders would be forced to hire lawyers to advise them
how one option differs from the other and which is better to choose, entailing
more legal expenses. The incorporation process risks becoming even more costly
if, instead of default provisions with many options, the model articles of
association contain empty fields that the founders would have to fill out.
Based on the above, introducing more default provisions for a template of a
limited liability company is not an ideal solution fitting all and should be
studied more.<o:p></o:p></p>
<p class="MsoNormal" style="line-height: normal; margin-left: 36pt; text-align: justify; text-indent: 0cm;">Another
important aspect we outlined is how the founding documents are to be signed and
how easily online registration of companies can be available to foreigners. In
general, out of those countries, Estonia has the longest history of application
of online registration of companies (since 2007). This jurisdiction has for
some time clearly given a way to form companies online to foreigners residing
in the EU. In other studied EU jurisdictions, qualified electronic signatures
from foreign providers have gradually been recognised. In Poland, there is also
one more way to sign the founding documents: through the creation of an ePUAP
trusted profile, but this covers only persons having a PESEL number. Therefore,
qualified electronic signatures are the main identification tool to form
companies online.<o:p></o:p></p>
<p class="MsoNormal" style="line-height: normal; margin-left: 36pt; text-align: justify; text-indent: 0cm;">In
Lithuania several respondents opined in favour of broader usage of e-signatures
during online formation of companies, namely the introduction of e-banking. There
are some arguments to support said statement. Bank clients who have e-banking
are always identified and always undergo a security check with the verification
of identification documents. This is why there are grounds to recognise
electronic banking as one of the identification tools for the purpose of
company formation. Latvian and Ukrainian experience of using Bank ID as an
identification tool proves that this instrument is user-friendly and
convenient.<o:p></o:p></p>
<p class="MsoNormal" style="line-height: normal; margin-left: 36pt; text-align: justify; text-indent: 0cm;">Despite
a considerably high level of implementation of the Digitalisation Directive in Lithuania,
there are still issues in online formation of companies in Lithuania which were
reported by respondents. Some of the outlined issues have already been tackled
or should be resolved by the implementation of the Digitalisation Directive,
namely the recognition of identification means issued in other EU Member States
to empower foreigners and the publishing of constituent documents in a language
broadly understood by most cross-border users. At the same time, some steps
urged by respondents exceed the requirements of the Digitalisation Directive.
Those are both technical and legal measures. As for purely technical issues,
many respondents pointed at the apparently excessive need to have several documents
signed with e-signatures instead of signing one single file. The recognition of
e-banking as an identification tool and more flexibility in the signing of a
template of a constituent document for a limited liability company would make
online formation of companies more accessible to a broader range of people.
These suggestions essentially go beyond the effect of the Digitalisation
Directive but are aimed at the improvement of the existing regulation of
company formation.<o:p></o:p></p>
<p class="MsoNormal" style="line-height: normal; margin-left: 36pt; text-align: justify; text-indent: 0cm;"><o:p> </o:p></p>
<p class="MsoNormal" style="line-height: normal; margin-left: 36pt; text-align: justify; text-indent: 0cm;">For
more information see: Bitė, V., Romashchenko, I. Online Formation of Companies
in Lithuania in a Comparative Context: Implementation of the Digitalisation
Directive and Beyond. Eur Bus Org Law Rev (2023).
https://doi.org/10.1007/s40804-023-00282-6.<o:p></o:p></p>Steve Peershttp://www.blogger.com/profile/05869161329197244113noreply@blogger.com0tag:blogger.com,1999:blog-8704899696538705849.post-50499675442881778162023-12-22T05:59:00.000-08:002023-12-22T05:59:11.423-08:00The son of a leading businessperson under the Russian sanctions framework before the CJEU: Ongoing relevance of the Tay-Za case law<p> <br /></p><div class="separator" style="clear: both; text-align: center;"><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEizEE6VHous6UlSoHBot48Qd_bvFq8Mdc6j_klaazH1hOGCaNX0A4g1izOxfzBDuvu66P1et_3FYRYjE2tZMJouyhk6s-5-tx9T-rnZrRMU2RiKizRXObClHKMM8yjEfVgS742rTKtozU0LmMwyaw8rqKZndCa_EFMG1n2GhXPFjATgjapZ0tTXcJKMDJo/s3067/moscow.jpg" imageanchor="1" style="margin-left: 1em; margin-right: 1em;"><img border="0" data-original-height="3067" data-original-width="2603" height="386" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEizEE6VHous6UlSoHBot48Qd_bvFq8Mdc6j_klaazH1hOGCaNX0A4g1izOxfzBDuvu66P1et_3FYRYjE2tZMJouyhk6s-5-tx9T-rnZrRMU2RiKizRXObClHKMM8yjEfVgS742rTKtozU0LmMwyaw8rqKZndCa_EFMG1n2GhXPFjATgjapZ0tTXcJKMDJo/w328-h386/moscow.jpg" width="328" /></a></div><p></p><br />
<p class="MsoNormal" style="text-align: justify;"><o:p> </o:p>By <b>Antje Kunst</b>*</p><p class="MsoNormal" style="text-align: justify;"><o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;"><b>Photo credit</b>: Alvegaspar, via <a href="https://commons.wikimedia.org/wiki/File:Moscow_July_2011-39a.jpg">Wikicommons media</a><o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;">Many challenges before the EU
General Court of listings or re-listings of Russian oligarchs and their
immediate family members have been unsuccessful in recent past.<span style="mso-spacerun: yes;"> </span><o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;">However, on 29 November 2023, a
second de-listing application of Alexander Pumpyanskiy before the EU General
Court was successful (Case T‑734/22 <i><a href="https://curia.europa.eu/juris/document/document.jsf?text=&docid=280230&pageIndex=0&doclang=FR&mode=lst&dir=&occ=first&part=1&cid=8667362">Pumpyanskiy
v Council</a></i>, ECLI:EU:T:2023:761 only available in French). This came after
a first application was unsuccessful (Case T-291/22 <i><a href="https://curia.europa.eu/juris/document/document.jsf?text=&docid=277034&pageIndex=0&doclang=FR&mode=lst&dir=&occ=first&part=1&cid=8667362">Pumpyanskiy
v Council</a></i>, EU:T:2023:499 only available in French).<o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;">Alexander Pumpyanskiy is the son
of Dmitry Pumpyanskiy, a Russian billionaire and founder of TMK, a leading
producer of pipes for the oil and gas industry in Russia. <span style="mso-spacerun: yes;"> </span>Sinara Group is a Russian investment company. Dimitry,
the primary target of the designation criteria, and his wife have separate
cases before the Court. <o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;"><b>Introduction<o:p></o:p></b></p>
<p class="MsoNormal" style="text-align: justify;">The basis for Mr. Pumpyanskiy’s initial
listing stemmed from his association with his father, Dmitry, through their
roles in TMK and the Sinara Group. He was also said to provide support to and
benefit from the government of Russia. In his first case the Court held that the
positions in the two companies ‘undoubtedly gave him a power of influence and
responsibilities within those undertakings’. His family relationship and
business ties with his father were sufficient to show that he was associated
with him. <o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;">Regarding his re-listings in Case
T-734/22, after periodic reviews, the EU General Court found that the criterion
of association was no longer fulfilled as the applicant had resigned from his
positions within the Sinara group and TMK on 9 March 2022 following his initial
listing. The only remaining connection to his father was his familial tie,
which the Court deemed insufficient for an association in this particular
context. Furthermore, the General Court ruled that his former roles were
insufficient evidence to demonstrate ongoing ‘support for the government’. The
Court only dismissed his request for damages <o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;">This ruling from the General
Court within the context of Russian sanctions offers valuable insights into the
Court's approach in how it will address future challenges of listings or
re-listings by immediate family members of leading Russian businesspersons. <span style="mso-spacerun: yes;"> </span>It also appears that the <i>Prigozhina</i> case,
the case of the mother of the late Chef of the Wagner Group Yevgeni Prigozhin (Case
T-212/22, <i><a href="https://curia.europa.eu/juris/liste.jsf?nat=or&mat=or&pcs=Oor&jur=C%2CT%2CF&for=&jge=&dates=&language=en&pro=&cit=none%252CC%252CCJ%252CR%252C2008E%252C%252C%252C%252C%252C%252C%252C%252C%252C%252Ctrue%252Cfalse%252Cfalse&oqp=&td=%3BALL&avg=&parties=Prigozhina%2Bv%2BCouncil&lg=&page=1&cid=8667362">Prigozhina
v Council</a></i>, EU:T:2023:104) continues to be important case law on which
the Court will rely regarding applications of immediate family members of Russian
oligarchs. <o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;"><b>Ceasing of business
relationship with primary target<o:p></o:p></b></p>
<p class="MsoNormal" style="text-align: justify;">In the case at hand the Court
recalled that the applicant's name was initially listed on the grounds that he
was related to his father, by reason of their family relationship and their business
relationship, i.e., their respective activities within the TMK company and the
Sinara group. <o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;">The General Court found that since
the applicant had ceased his functions on 9 March 2022, i.e., six months before
the adoption of the first maintenance measures, one year before the adoption of
the second and one and a half years before the adoption of the third, such past
functions, could not, by reason of the length of time, justify, on their own,
the maintenance of the measures. The past functions alone were deemed insufficient
to establish a link of association with his father within the meaning of the
criterion (g). (para. 61 of the Judgment)<o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;"><b>Mere family relationship
insufficient <o:p></o:p></b></p>
<p class="MsoNormal" style="text-align: justify;">The General Court determined
that, at the time of the applicant's re-listing, there was no evidence of ‘economic
or capital ties’ or ‘common interests’ between the applicant and his father
which are necessary for fulfilling the criterion of association. Relying on its
case law of <i><a href="https://curia.europa.eu/juris/document/document.jsf?text=&docid=120361&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=8667362">Tay
Za v Council</a></i> (C-376/10 P, ECLI:EU:C:2012:138) regarding associated family
members the listing was effectively grounded solely on the family tie between
him and his father which was considered insufficient. <o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;"><b>Ongoing relevance of <i>Tay Za</i>
case law <o:p></o:p></b></p>
<p class="MsoNormal" style="text-align: justify;">The Court accepted the Council’s
argument that the sanctions framework was different in the present case than in
the <i>Tay Za</i> case related to the regime of Myanmar, however it considered
that notwithstanding that, the case-law of <i>Tay Za</i> could be applied mutatis
mutandis, to the applicant's situation. <a name="point68">(paras. 62 to 64 of the
Judgment)<o:p></o:p></a></p>
<p class="MsoNormal" style="text-align: justify;"><span style="mso-bookmark: point68;">This
underscores the ongoing relevance of the <i>Tay Za</i> case law, also within
the context of Russian sanctions. It appears to enable sons and daughters who
have been listed under the criterion associated with leading businesspersons
operating in Russia to be successful with their challenges of their listings or
re-listings when resigning from company positions in which the primary
sanctioned individual is or was involved. <o:p></o:p></span></p>
<p class="MsoNormal" style="text-align: justify;"><span style="mso-bookmark: point68;"><b>Without
association no risk of circumvention established <o:p></o:p></b></span></p>
<p class="MsoNormal" style="text-align: justify;"><span style="mso-bookmark: point68;">The
General Court found that the Council had not established a risk of
circumvention making the exact same findings as in the <i>Prigozhina</i> case on
the ground that there was no association.</span> (see paras. 54, 68-71 of the
Judgment)<o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;">The General Court like in <i>Prigozhina</i>
accepted that there was a ‘non-negligible risk’ that individuals providing
support to the government, e.g., leading businesspersons, might exert pressure
on individuals associated with them, e.g., their family members, in order to
circumvent the effect of the measures imposed on them. (see para. 105 of <i>Prigozhina</i>
case) However in the case at hand association to a leading businessperson had
not been established. <o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;">In the Syrian sanctions framework
it was expressly provided for ‘leading businesspersons operating in Syria’ and ‘members
of the Assad or Makhlouf families’ and ‘persons associated with them’. The
familial connection with these families might be adequate to include individuals'
names on the lists using the criterion of 'association with members of these
families.' (para. 70 of the Judgment) In Pumpyanskiy's case, the relevant legal
framework did not include 'members of certain families' among the listing
criteria.<a name="point70"> </a><o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;"><b>The importance of being
up-to-date<o:p></o:p></b></p>
<p class="MsoNormal" style="text-align: justify;">As in other sanctions cases in
which applicants succeeded with their de-listing applications, the Court made
clear how important an up-to-date statement of reasons and up-to-date evidence
is. In the court proceedings the Council relied, to justify the re-listings, on
matters on which it did not rely when it adopted the contested measures. Regarding
the Council’s claim that the applicant continued to be involved in TMK’s
foreign subsidiaries after resigning from his company roles the Court ruled
that this assertion was absent from the statement of reasons. Some evidence the
Council provided post-dated the contested measures and was therefore dismissed.
(see paras. 74 and 76, 77 of the Judgment). Other evidence was not regarded as
sufficiently concrete and precise. <o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;"><b>Material or financial support
to the Government of Russia<o:p></o:p></b></p>
<p class="MsoNormal" style="text-align: justify;">The Court also found that the Council
could not assume, merely because the applicant was chairman and a member of the
board of directors of the Sinara group or a member of the board of directors of
the TMK company when his name was initially entered on the lists at issue, that
he could be classified as a natural person who provides material or financial
support to the Government of Russia, even several months after leaving such
functions. That would lead to the applicant's situation being frozen and to the
periodic review exercise being deprived of any useful effect. (para. 85 of the
Judgment) <o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;">In line with previous case law
the General Court held that the ceasing of exercising functions within a
structure did not in itself imply that former functions in companies were
irrelevant, as past activities could influence behaviour. However, taken in
isolation, a person's former functions could not justify the listing. If the Council
intended to rely on past activities, it needed to provide serious and
corroborating evidence in support of its view that the applicant maintained
links with the companies in question on the date on which the contested
measures were adopted. (para. 87 of the Judgment)<o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;"><b>Conclusion<o:p></o:p></b></p>
<p class="MsoNormal" style="text-align: justify;">In this case the Council failed
to convincingly prove that the applicant maintained ties with his father and
the companies in question after stepping down from his roles in those companies
at the time of his initial listing. In future similar cases, the Council might
be able to furnish convincing up-to-date evidence and establish that the family
member in question remained connected to the primary targeted individual by for
example ‘common interests’. <o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;">This case shows that there must a
complete cutting off of business ties with the primary targeted individual in
order to be successful before the Court and in order not to risk a further
listing by the Council on the basis of association. <o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;">The Court was correct in
requiring an up-to-date statement of reasons and up-to-date evidence to support
a continuous involvement of the applicant in TMK, e.g., in TMK’s foreign
subsidiaries. The result might be though that the Council in Pumpyanskiy's case
decides to update the statement of reasons and use the evidence which
post-dated the contested measures in support of a new listing. This might be
then the subject of further litigation before the General Court which is
already swamped with sanctions cases. <o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;">The risk of circumvention might
be considered by the Council as significant in many Russian sanctions cases. However,
fact remains in the absence of a presumption of circumvention by immediate
family members and the Council failing to provide convincing evidence which establishes
association and a risk of circumvention, immediate family members of leading
businesspersons will be successful before the Court. <o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;">What role the Council’s introduction
of the new listing criterion of ‘immediate family member of leading Russian
businesspersons operating in Russia’ can and will in the future play in all of this
remains to be seen. On this point see my <a href="http://eulawanalysis.blogspot.com/2023/08/the-risk-of-circumvention-of-eu.html#:~:text=That%20said%2C%20the%20General%20Court,of%20the%20measures%20to%20which">previous
post</a>: ‘The risk of circumvention of EU sanctions through the immediate
family of leading businesspersons and the case law of the CJEU’.<o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;"><o:p> </o:p></p>
<p class="MsoNormal" style="text-align: justify;">*Antje Kunst is an
international lawyer and a member of Pavocat Chambers advising and representing
individuals in a wide range of matters in the field of the EU’s Common Foreign
Security Policy (CFSP) and takes instructions from individuals for challenging
EU and UN sanctions before the EU courts and international bodies.</p>Steve Peershttp://www.blogger.com/profile/05869161329197244113noreply@blogger.com0tag:blogger.com,1999:blog-8704899696538705849.post-49862320973778976782023-12-20T17:44:00.000-08:002023-12-22T02:01:38.763-08:00Take this job and shove it: the revised EU law on non-EU migrant workers<p> </p><div class="separator" style="clear: both; text-align: center;"><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEjCRAd51IX9X3sLB2RPMcBUXvjPn0UtdH6wrwV1plWl4dvyDzm8tHkCWJUh_jq3B8UBoihdzEGU_zmgiR_fftCj_4rGZeV_C8zurvoeSNnmxR4yxicmcoGVW5OcpfEcWDPxy2KrjzkOZaWUfCLb24va0R4HsmBW__g9QEhbHMrGc__llZXzjX0P9sAKclM/s2400/plane.jpg" style="margin-left: 1em; margin-right: 1em;"><img border="0" data-original-height="1600" data-original-width="2400" height="252" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEjCRAd51IX9X3sLB2RPMcBUXvjPn0UtdH6wrwV1plWl4dvyDzm8tHkCWJUh_jq3B8UBoihdzEGU_zmgiR_fftCj_4rGZeV_C8zurvoeSNnmxR4yxicmcoGVW5OcpfEcWDPxy2KrjzkOZaWUfCLb24va0R4HsmBW__g9QEhbHMrGc__llZXzjX0P9sAKclM/w379-h252/plane.jpg" width="379" /></a></div><br /><p></p><br />
<p class="MsoNormal"><b>Professor Steve Peers</b>, Royal Holloway University of
London<o:p></o:p></p><p class="MsoNormal">*Text updated Dec 22 2023, to add a link to the agreed text of the Directive</p>
<p class="MsoNormal"><b>Photo credit</b>: Lasse Fuss, via <a href="https://commons.wikimedia.org/wiki/File:Lufthansa_A380_D-AIMC.jpg">Wikimedia
commons</a><o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;">Overshadowed somewhat by the <a href="https://www.consilium.europa.eu/en/press/press-releases/2023/12/20/the-council-and-the-european-parliament-reach-breakthrough-in-reform-of-eu-asylum-and-migration-system/">agreement</a>
on asylum legislation, the EU Member States and the European Parliament have
also this week <a href="https://www.consilium.europa.eu/en/documents-publications/public-register/public-register-search/results/?WordsInSubject=single+permit&WordsInText=&DocumentNumber=17041%2F23&InterinstitutionalFiles=&DocumentDateFrom=&DocumentDateTo=&MeetingDateFrom=&MeetingDateTo=&DocumentLanguage=EN&OrderBy=DOCUMENT_DATE+DESC&ctl00%24ctl00%24cpMain%24cpMain%24btnSubmit=">agreed</a> on an amendment to EU law on migrant non-EU workers, known as the ‘single permit
Directive’. Unlike the asylum deal, which (subject to seeing the legal texts; I’ll
comment more when they are available) seems at first sight to be a reduction in
standards, the revised single permit Directive is a modest but useful
improvement in standards applicable to migrant workers. <o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;"><b>Background<o:p></o:p></b></p>
<p class="MsoNormal" style="text-align: justify;">The <a href="https://eur-lex.europa.eu/legal-content/EN/ALL/?uri=celex%3A32011L0098">current
single permit law</a> dates back to 2011. It does not regulate the numbers of
migrants coming from non-EU countries to seek work in Member States (the
Treaties state that only Member States can regulate that). <span style="mso-spacerun: yes;"> </span>Nor does it regulate the substance of when non-EU
labour migrants are admitted (ie issues such as shortage occupations, pay
thresholds or other criteria for admission). Rather it regulates two issues:
the procedural aspects of applying to be a migrant non-EU worker in the EU, and
the equal treatment of such migrant workers. (Note that there are also EU laws
on specific groups of migrant workers, which regulate the details of admission
of non-EU workers in more detail: the <a href="http://eulawanalysis.blogspot.com/2021/05/the-revised-blue-card-directive-eus.html">Blue
Card law</a> on highly skilled workers; the <a href="http://eulawanalysis.blogspot.com/2015/02/ending-exploitation-of-seasonal-workers.html">seasonal
workers Directive</a>; and the <a href="http://eulawanalysis.blogspot.com/2014/11/the-new-directive-on-intra-corporate.html">intra-corporate
transferees Directive</a>. The EU law on admission of non-EU <a href="http://eulawanalysis.blogspot.com/2015/01/more-research-is-needed-eus-attempt-to.html">students
and researchers</a> is also relevant to academic staff and trainees). There is <a href="https://curia.europa.eu/juris/liste.jsf?nat=or&mat=or&pcs=Oor&jur=C&for=&jge=&dates=&language=en&pro=&etat=clot&cit=L%252CC%252CCJ%252CR%252C2008E%252C%252C2011%252C98%252C%252C%252C%252C%252C%252C%252Ctrue%252Cfalse%252Cfalse&oqp=&td=%3BALL&avg=&lg=&page=1&cid=8110366">limited
CJEU case law</a> on the 2011 Directive: all of it concerns equal treatment in
Italy. The UK, Ireland and Denmark opted out of the law – although it has nevertheless
become applicable to UK citizens who seek to move to the EU as labour migrants post-Brexit.
<o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;">Believing that the law needed updating
to streamline the admissions process and strengthen equal treatment, the
Commission <a href="https://eur-lex.europa.eu/resource.html?uri=cellar:cbf5fadf-c702-11ec-b6f4-01aa75ed71a1.0001.02/DOC_1&format=PDF">proposed
replacing</a> it with a new version in April 2022. (See also the <a href="https://home-affairs.ec.europa.eu/proposal-directive-single-application-procedure-single-permit-third-country-nationals-reside-work_en">impact
assessment</a> on the new proposal, and the 2019 <a href="https://home-affairs.ec.europa.eu/policies/migration-and-asylum/legal-migration-and-integration/legal-migration-fitness-check_en">fitness
check</a> and <a href="https://eur-lex.europa.eu/legal-content/EN/TXT/?qid=1567068156341&uri=CELEX:52019DC0160">report
on implementation</a> of the 2011 law) At the same time, the Commission
proposed replacing the EU law on long-term resident non-EU citizens (see my
comments on that proposal <a href="http://eulawanalysis.blogspot.com/2022/05/long-term-resident-non-eu-citizens-eu.html">here</a>
and <a href="http://eulawanalysis.blogspot.com/2022/05/poundshop-free-movement-long-term.html">here</a>,
and on the Council’s position <a href="http://eulawanalysis.blogspot.com/2023/11/taking-rights-away-seriously-councils.html">here</a>).
The latter proposal is taking longer to negotiate. <o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;">The <a href="https://www.europarl.europa.eu/doceo/document/A-9-2023-0140_EN.html">European
Parliament</a> and the <a href="https://data.consilium.europa.eu/doc/document/ST-10464-2023-INIT/en/pdf">Council</a>
adopted their positions on the single permit proposal in spring of this year,
and have now concluded their negotiations. Again Ireland and Denmark opted out, and the law will be
relevant to Brits who move to the EU. The revised law (the ‘2024 Directive’) will
likely be formally adopted in the spring of 2024, and Member States will have
two years to adapt their law to comply with it. The following describes the
current law, while explaining how the 2024 version will change it; it also
indicates which Commission proposals for amendments were rejected.<o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;"><b>Scope of the single permit law<o:p></o:p></b></p>
<p class="MsoNormal" style="text-align: justify;">In addition to non-EU citizens
admitted for work, who are covered by both the procedural and equal treatment
parts of the Directive, the equal treatment part of the Directive also applies
to non-EU citizens who are admitted for <i>other</i> reasons, but who are <i>allowed</i>
to work. However, several groups of non-EU citizens are excluded from its
scope, usually because they are subject to more specific rules in other EU law:
non-EU family members of EU citizens who have moved between Member States;
citizens of countries which have a free movement treaty with the EU, and their
families; workers who are posted to provide services (the Commission’s proposal
to clarify whom this exception refers to was rejected); applicants or workers
who are seasonal workers or intra-corporate transferees (the 2024 version will define
these groups by reference to other EU law); au pairs (the Commission’s proposal
to define them by reference to EU law was rejected); who have applied for or
obtained temporary protection (adding a reference to EU law; on the position of
those fleeing the invasion of Ukraine, see <a href="http://eulawanalysis.blogspot.com/2022/02/temporary-protection-for-ukrainians-in.html">here</a>;
the European Parliament’s amendment to drop this exclusion failed); who have
applied for or obtained refugee status or subsidiary protection on the basis of
EU law; who are EU long-term residents as defined by EU law; who have applied for
or been admitted as self-employed workers; whose expulsion is suspended (the
European Parliament tried to drop this exclusion too); or who have applied for
or been admitted as seafarers. <o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;">Member States may also disapply
the procedural part of the Directive (but not the equal treatment part) to
those who were admitted for less than six months (the European Parliament
tried, but failed, to cut this to three months), or who were admitted to study;
and the procedural part does not apply at all to those admitted on the basis of
a visa. <o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;">The biggest change to the scope
in the 2024 version is that the equal treatment part of the Directive will now
apply to the beneficiaries of <i>national</i> protection (as distinct from
EU-harmonised asylum law), if that national law allows them to work. Applicants
for national protection are still fully excluded. This is a compromise between
the Commission and European Parliament, which wanted to drop this exclusion for
applicants for and those holding national protection status fully, and the
Council, which wanted to retain it fully. <o:p></o:p></p>
<p class="MsoNormal"><b>The single permit process<o:p></o:p></b></p>
<p class="MsoNormal" style="text-align: justify;">The 2011 law provides that a single
permit is both a work permit and a residence permit, issued on the basis of a
single application. Either an employer or employee applies for it (or both, if
a Member State allows that). Applications must be made from outside the country,
although Member States <i>may</i> allow applications for those who are legally
present. The 2024 law will liberalise this, by always allowing in-country
applications from non-EU citizens who are legally resident on the basis of a
residence permit; Member States <i>may</i> allow in-country applications by
those who are otherwise legally present. (The Commission and European
Parliament wanted to require Member States to consider in-country applications
from the latter group, but allowing in-country applications from holders of residence
permits was as far as the Council was willing to go).<o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;">Member States must decide on
single permit applications within 90 days, cut from four months under the
current law at the behest of the European Parliament. Also, the 2024 law will
streamline this further by requiring that this time limit also covers time to
check the labour market (where national law provides for this). But the Commission’s
more ambitious proposal (backed by the European Parliament) to streamline the
process even more by applying this time limit also to the issue of a visa was
rebuffed by the Council. So was the European Parliament’s attempt to cut the
time limit to 45 days in certain cases. It will still remain possible to extend
the deadline in exceptional cases. <o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;">The European Parliament’s attempt
to introduce a minimum period of validity for single permits (two years for an
indefinite contract, otherwise the duration of the contract) was not accepted
by the Council, so this issue remains regulated by national law. <o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;">The current procedural rights to
know the reasons for a rejection of an application or withdrawal of a single
permit, and to challenge that decision in court, are retained. They are strengthened
by adding requirements to consider the individual case and the principle of
proportionality, at the European Parliament’s behest. The provisions on access
to information will be expanded, including fees, legal redress and workers’
organisations – those additions again at the European Parliament’s behest. On
application fees, it will now be specified that they must not be excessive; the
European Parliament’s amendment to specify that an employer could not collect
the fee from the worker (where the employer pays the fee) was accepted. <o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;"><b>Employment rights<o:p></o:p></b></p>
<p class="MsoNormal" style="text-align: justify;">The current Directive provides
for basic rights to live in the country and carry out employment once the
single permit has been issued. The Commission sought to go further, and add two
further rights of fundamental importance to the position of non-EU workers: the
right to change employer and the protection of status in the event of unemployment.
In both cases, the Council sought to offer much less improvement and the European
Parliament sought to offer much more; and in both cases, the end result was a
compromise. <o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;"><i>Changing employer<o:p></o:p></i></p>
<p class="MsoNormal" style="text-align: justify;">Currently, this issue (like
unemployment) is left to national law. Therefore it is not accurate to say that
the 2011 directive <i>requires</i> workers to stick with their current
employers; rather the Directive does not stand in the way of most <i>Member
States</i> insisting upon such a requirement (for the details of which Member
States require this, see the impact assessment). <o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;">The Commission proposed that
workers could change employer, subject only to the option for Member States to
require notification and a check of the labour market situation; this could be
suspended for 30 days while Member States did checks. The Council position
provided that Member States also could recheck the original conditions of
admission, check a possible change of occupation, suspend the job move for 90
days (not 30) and require a minimum period with the first employer (but no more
than a year), subject to an obligation to allow earlier employer changes in ‘exceptional’
cases. The European Parliament would have required notification but would only
have allowed labour market checks in certain cases. The final text of the 2024
directive allows for notification and labour market checks, with a 45 day
period to do checks (with an exceptional 15 day extension), and the possibility
for Member States to require no more than six months with the same employer before
attempting to change employer – subject to an obligation to let the worker
change employer earlier if the employer has seriously breached the employment
contract. <o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;"><i>Unemployment<o:p></o:p></i></p>
<p class="MsoNormal" style="text-align: justify;">The Commission proposed that the
worker could stay for three months of unemployment, and if they found a new job
after they could stay for 30 days more while Member States did checks. The
Council position cut that to two months over the entire validity of the permit.
The European Parliament version provided for a nine month period, with a 12
month extension in the event of a ‘serious violation’ of the worker’s rights by
an employer. The compromise in the final text of the 2024 directive is three
months’ unemployment over the validity of the permit – rising to six months after
two years holding a single permit, although for periods of unemployment above
three months Member States can require the worker to have sufficient resources
without recourse to social assistance. Moreover, if there are reasonable
grounds to believe that a worker has suffered particularly exploitative working
conditions, the unemployment period can be extended by four months. <o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;"><b>Equal treatment <o:p></o:p></b></p>
<p class="MsoNormal" style="text-align: justify;">First of all, a reminder that as
noted above, the equal treatment provisions of the Directive have a wider scope,
applying also to those admitted for other reasons but allowed to work, and now to
be extended also to those with a form of national protection. <o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;">There is a long list of equal
treatment rights, but also a long list of exceptions. The Commission proposed
that the possible derogation from equal treatment as regards housing be
narrowed so that it applied only to public housing, and that those admitted on the
basis of a visa have equal treatment as regards family benefits. The final text
accepted the first of those amendments, subject to qualifying wording (and an
explanation in the preamble, inter alia on the importance of workers having a
choice not to have to take housing tied to the employer), but rejected the
second (at the Council’s behest). There are also elaborations on the work-related
equality rights. <o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;">Finally, in addition to some
amendments to the obligations to provide information on the public, there are
two wholly new provisions on bad employers: one on public sector monitoring and
checks, and the other on workers’ rights of individual redress against them. <span style="mso-spacerun: yes;"> </span><o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;"><b>Comments <o:p></o:p></b></p>
<p class="MsoNormal" style="text-align: justify;">It is obvious that the Member
States in the Council were willing to accept a lot of the proposals from the
Commission, as well as many of those from the European Parliament. The social
democratic party in the Parliament has <a href="https://www.socialistsanddemocrats.eu/newsroom/agreement-single-permit-directive-will-help-improve-working-conditions-and-provide-more">taken
credit</a> for insisting on these amendments, and indeed it should be
congratulated if it had the main role, because the agreed law does improve the
position of non-EU migrant workers. But we should not forget that as assiduously
as they defended migrant workers’ rights, the social democrats (and liberals)
were simultaneously reportedly throwing asylum seekers and refugees under the
bus in the asylum negotiations.<o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;">To recap, the main changes to the
current law are: rights to change employer and protection during unemployment;
an extension of personal scope of the equal treatment rules (and their
qualified extension to private housing); monitoring of, and facilitation of
challenges against, bad employers; in-country applications for all holders of
residence permits and a shorter deadline to decide on applications. <o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;">The main points rejected by the
Council concerned visas: including the visa process within the deadline to
decide on applications; and equal treatment in family benefits for visa holders.
The main successes of the Parliament (besides defending Commission proposals,
particularly as regards changes of employer and unemployment) are the shorter
deadline to decide on applications, and an extra stay if victimised by a particularly
vile employer. <span style="mso-spacerun: yes;"> </span><span style="mso-spacerun: yes;"> </span><o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;">Indeed, one striking feature of
the amendments is how much they aim to protect against bad employers – not only
as regards that possible extra stay, but also as regards redress against them and
greater monitoring of them. The provisions on private housing, and also obviously
protection in the event of unemployment and the right to change employers, implicitly
help to protect against exploitative employers too. A set of revisions on the law
on migrant workers that mainly concerns how to protect them against predatory
employers could be seen as a sign of late capitalism. <o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;">While all of the revised law formally
concerns immigration, most of it is in effect about the relationship between workers
and their employers: only the provisions on in-country applications and
application deadlines are immigration law in the purest sense. Of course, any
law on migrant workers can only be fully understood in context as an aspect of
labour markets; the situation on the labour market will in turn be fundamental
in practice for any migrant worker who contemplates changing employer, or who is
looking for a new job during unemployment. And the key points left to national
law (admission quotas, conditions of admissions) are also strongly
affected by how labour markets operate in practice. Leaving these aspects of
economic migration to national law mirrors the aspects of employment
law as such which are left to national law by the EU, in order to take account
of differences between Member States as regards the functioning of labour
markets and traditions of employment regulation. <o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;"><o:p> </o:p></p>
<p class="MsoNormal" style="text-align: justify;"><o:p> </o:p></p>Steve Peershttp://www.blogger.com/profile/05869161329197244113noreply@blogger.com0tag:blogger.com,1999:blog-8704899696538705849.post-60487943247633427772023-11-30T10:53:00.000-08:002023-11-30T10:53:42.648-08:00Judicial control over alleged breaches of fundamental rights in the implementation of Eulex Kosovo and Advocate General’s Ćapeta's Opinion in Joined Cases C-29/22 P and C-44/22 P<p></p><div class="separator" style="clear: both; text-align: center;"><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEh6rspDBVqqeEtuJBkIRaOoA2IFO_12RnuxZTxwHNeu5zgQRho_fnsiYNK0oIsosnIxqx-JxXnVth7Ze0vmcYCTgm7dMUuOi0Y0Vb_D47YwEcAAVkHSeVvIMksJjiIzRVZna0ljsYBmVxdIzG-7Kr7kp0LUDIMsOdIVIHA9mPaYQZ-9yfNFlJhOrwH8BfQ/s2357/kosovo.jpg" imageanchor="1" style="margin-left: 1em; margin-right: 1em;"><img border="0" data-original-height="1737" data-original-width="2357" height="306" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEh6rspDBVqqeEtuJBkIRaOoA2IFO_12RnuxZTxwHNeu5zgQRho_fnsiYNK0oIsosnIxqx-JxXnVth7Ze0vmcYCTgm7dMUuOi0Y0Vb_D47YwEcAAVkHSeVvIMksJjiIzRVZna0ljsYBmVxdIzG-7Kr7kp0LUDIMsOdIVIHA9mPaYQZ-9yfNFlJhOrwH8BfQ/w415-h306/kosovo.jpg" width="415" /></a></div><br /> <p></p><p><br /></p><p class="MsoNormal" style="text-align: justify;"><b>Antje
Kunst*</b></p>
<p class="MsoNormal" style="text-align: justify;"><span style="mso-bookmark: _Hlk152171168;"><b>Photo
credit</b>: Sharon Hahn Darlin, via </span><a href="https://commons.wikimedia.org/wiki/File:Ka%C3%A7anik,_Kosovo_-_Orthodox_Church.jpg"><span style="mso-bookmark: _Hlk152171168;">Wikimedia Commons</span><span style="mso-bookmark: _Hlk152171168;"></span></a><span style="mso-bookmark: _Hlk152171168;"><o:p></o:p></span></p>
<p class="MsoNormal" style="text-align: justify;"><span style="mso-bookmark: _Hlk152171168;">Advocate
General (‘AG’) Ćapeta<a name="_Hlk151639996"> delivered her </a></span><a href="https://curia.europa.eu/juris/document/document.jsf?text=&docid=280078&pageIndex=0&doclang=en&mode=lst&dir=&occ=first&part=1&cid=3619983"><span style="mso-bookmark: _Hlk152171168;"><span style="mso-bookmark: _Hlk151639996;">Opinion</span></span><span style="mso-bookmark: _Hlk152171168;"><span style="mso-bookmark: _Hlk151639996;"></span></span></a><span style="mso-bookmark: _Hlk152171168;"><span style="mso-bookmark: _Hlk151639996;"> in
Joined Cases C‑29/22 P and C‑44/22, <i>KS and KD</i>, on 23 November 2023.
She proposed that individuals may bring an action for damages against the EU
before the EU Courts based on alleged breaches of fundamental rights in the
implementation of an EU Common Security and Defence Policy (‘CSDP’) mission, Eulex
Kosovo, and, related to the investigations that were carried out, during that
mission, into the disappearance <a name="ctx19">and</a> killing of the
applicants’ family members in 1999 in Pristina (<a name="ctx20">Kosovo</a>).<o:p></o:p></span></span></p>
<span style="mso-bookmark: _Hlk151639996;"></span>
<p class="MsoNormal" style="text-align: justify;"><span style="mso-bookmark: _Hlk152171168;"><b>Introduction<o:p></o:p></b></span></p>
<p class="MsoNormal" style="text-align: justify;"><span style="mso-bookmark: _Hlk152171168;">In
this case before the Grand Chamber, the main question is to what extent there
is a limitation on the jurisdiction of the EU Courts in the Common Foreign and Security
Policy (‘CFSP’), which includes CSDP missions, provided for by provisions of
the EU treaties, and whether the Court of Justice of the European Union (CJEU)
has jurisdiction to hear actions for damages allegedly caused by breaches of
fundamental rights committed in the implementation of the Eulex Kosovo. This was
a novel question before the Court.<o:p></o:p></span></p>
<p class="MsoNormal" style="text-align: justify;"><span style="mso-bookmark: _Hlk152171168;">The
case concerns two individuals, KS and KD, who lost their direct family members
in 1999 in the aftermath of the Kosovo conflict. Their murders and
disappearances remain unsolved. In 2008, Eulex Kosovo was established as a CSDP
mission, and one of its tasks was inter alia to investigate such crimes. <a name="_Hlk151641066"><o:p></o:p></a></span></p>
<p class="MsoNormal" style="text-align: justify;"><span style="mso-bookmark: _Hlk152171168;"><span style="mso-bookmark: _Hlk151641066;">This blog post concludes that in sensitive
cases like the case of KS and KD involving an EU body, Eulex Kosovo, which
carries out executive functions vis-à-vis individuals, it is imperative that EU
Courts do not hide behind the ‘CFSP’ limitations. At stake are the rights of
individuals whose family members' disappearances were not adequately
investigated by the European Union.<o:p></o:p></span></span></p>
<span style="mso-bookmark: _Hlk151641066;"></span>
<p class="MsoNormal" style="text-align: justify;"><span style="mso-bookmark: _Hlk152171168;"><b>Human
Rights Review Panel to review complaints against Eulex Kosovo<o:p></o:p></b></span></p>
<p class="MsoNormal" style="text-align: justify;"><span style="mso-bookmark: _Hlk152171168;">The
executive mandate of Eulex Kosovo, acting in part like a state, made it
necessary to establish a body to review fundamental rights breaches by the
mission. A year after Eulex Kosovo became operational, the Council established a
Human Rights Review Panel (‘HRRP’) to review complaints of alleged human
rights violations committed by Eulex Kosovo in the performance of its executive
mandate. The HRRP’s findings and recommendations were non-binding, and
the Panel could not adopt a recommendation of monetary compensation. <o:p></o:p></span></p>
<p class="MsoNormal" style="text-align: justify;"><span style="mso-bookmark: _Hlk152171168;"><a name="_Hlk151641425">Regarding KS, the HRRP determined that Eulex Kosovo had
breached her rights under the ECHR by failing to conduct an effective
investigation into the disappearance of her husband. Concerning KD, the HRRP
concluded that Eulex Kosovo's inquiry into the abduction and killing of her
husband and son was inadequate, leading to a violation of her rights under the
ECHR. <o:p></o:p></a></span></p>
<p class="MsoNormal" style="text-align: justify;"><span style="mso-bookmark: _Hlk152171168;"><span style="mso-bookmark: _Hlk151641425;">In both cases, the HRRP made several (non-binding)
recommendations to the Head of Mission of Eulex Kosovo. </span>In the
follow-up to the implementation of its recommendations, the HRRP
essentially declared that the Head of Mission had only in part implemented its
recommendations, but nonetheless decided to close the cases. <o:p></o:p></span></p>
<p class="MsoNormal" style="text-align: justify;"><span style="mso-bookmark: _Hlk152171168;"><b>Decision
to establish a review panel lacking the authority to enforce its rulings<o:p></o:p></b></span></p>
<p class="MsoNormal" style="text-align: justify;"><span style="mso-bookmark: _Hlk152171168;">Before
the EU General Court in </span><a href="https://curia.europa.eu/juris/liste.jsf?num=T-771/20&language=en"><span style="mso-bookmark: _Hlk152171168;">Case T-771/20</span><span style="mso-bookmark: _Hlk152171168;"></span></a><span style="mso-bookmark: _Hlk152171168;">, the case
under appeal before the Court of Justice, the applicants contended that their
action, brought on account of a breach of fundamental human rights, pertained
to matters of a policy or strategic nature. In other words, they were related
to defining Eulex <a name="ctx180">Kosovo</a>’s activities, priorities, <a name="ctx181">and</a> resources; <a name="ctx182">a</a>s well as to the
decision to establish a review panel lacking the authority to enforce its
rulings or offer redress for identified breaches. <o:p></o:p></span></p>
<p class="MsoNormal" style="text-align: justify;"><span style="mso-bookmark: _Hlk152171168;">In
the applicants’ view, the breaches of their fundamental rights arose from a
lack of prioritisation, or a lack of the necessary resources, or appropriate
personnel to enable Eulex <a name="ctx183">Kosovo</a> to carry out its
executive mandate <a name="ctx184">and</a> thus fulfil the EU’s legal
obligations. The breaches did not arise from malfunctions on the part of Eulex
Kosovo, in those particular cases (para. 23 of the Order of the EU General
Court in Case T-771/20).<o:p></o:p></span></p>
<p class="MsoNormal" style="text-align: justify;"><span style="mso-bookmark: _Hlk152171168;">The
General Court held that it did not have jurisdiction ‘to review the legality of
such acts or omissions, which relate to strategic choices and decisions
concerning the mandate of a crisis management mission set up under the CSDP,
which is an integral part of the CFSP, nor can it award damages to applicants
who claim to have suffered harm as a result of those acts or omissions’ (para.
27 of the Order of the EU General Court).<b><o:p></o:p></b></span></p>
<p class="MsoNormal" style="text-align: justify;"><span style="mso-bookmark: _Hlk152171168;"><b>Effective
judicial protection requires review of CFSP decisions<o:p></o:p></b></span></p>
<p class="MsoNormal" style="text-align: justify;"><span style="mso-bookmark: _Hlk152171168;">AG
Ćapeta in <i>KS and KD</i>, on appeal at the Court of Justice, observed that the
inclusion of the CFSP in the EU constitutional framework means that the basic
principles of the EU legal order apply to all activities of the EU undertaken
within that policy, including in the area of the CFSP. The rule of law in the
EU legal order required that the EU Courts ensure the lawfulness of the actions
of EU institutions and bodies when they implement the CFSP (para. 83 of the Opinion).
<o:p></o:p></span></p>
<p class="MsoNormal" style="text-align: justify;"><span style="mso-bookmark: _Hlk152171168;">To
ensure the effective judicial protection of individuals who claim that their
fundamental rights have been infringed by EU institutions or bodies in the
exercise of the CFSP, the EU Courts must, in principle, have jurisdiction to
hear such claims (para. 84 of the Opinion). <o:p></o:p></span></p>
<p class="MsoNormal" style="text-align: justify;"><span style="mso-bookmark: _Hlk152171168;">AG
Ćapeta found that the provisions in the EU Treaties excluding the CFSP from the
jurisdiction of the EU Courts can and should be interpreted as not applying to
actions for damages for the alleged breach of fundamental rights resulting from
a CFSP measure (para. 93 of the Opinion). <o:p></o:p></span></p>
<p class="MsoNormal" style="text-align: justify;"><span style="mso-bookmark: _Hlk152171168;">She
considered that the EU Courts must interpret the EU Treaties in conformity with
the principle of effective judicial protection. In this respect, she relied on the
Opinion of AG Bobek in </span><a href="https://curia.europa.eu/juris/liste.jsf?nat=or&mat=or&pcs=Oor&jur=C%2CT%2CF&num=c-14%252F19&for=&jge=&dates=&language=en&pro=&cit=none%252CC%252CCJ%252CR%252C2008E%252C%252C%252C%252C%252C%252C%252C%252C%252C%252Ctrue%252Cfalse%252Cfalse&oqp=&td=%3BALL&avg=&lg=&page=1&cid=3620121"><span style="mso-bookmark: _Hlk152171168;"><i>SatCen v KF</i></span><span style="mso-bookmark: _Hlk152171168;"></span></a><span style="mso-bookmark: _Hlk152171168;">,
(Case C‑14/19 P, EU:C:2020:220), para. 69): ‘…Article 47 of the
Charter does not allow the Court to rewrite the Treaties, but it does require
the Court to interpret the existing provisions so that they can achieve their
full potential to provide judicial protection to anyone concerned by acts of EU
institutions and bodies’ (paras. 100 and 101 of the Opinion). <o:p></o:p></span></p>
<p class="MsoNormal" style="text-align: justify;"><span style="mso-bookmark: _Hlk152171168;"><b>Judicial
review of strategic decisions related to EU international missions<o:p></o:p></b></span></p>
<p class="MsoNormal" style="text-align: justify;"><span style="mso-bookmark: _Hlk152171168;">AG
Ćapeta noted that there are strategic decisions over which the EU Courts lack
jurisdiction. She elaborated on this in greater length in her Opinion in </span><a href="https://curia.europa.eu/juris/fiche.jsf?id=C%3B351%3B22%3BRP%3B1%3BP%3B1%3BC2022%2F0351%2FP&nat=or&mat=or&pcs=Oor&jur=C%2CT%2CF&num=351%252F22&for=&jge=&dates=&language=en&pro=&cit=none%252CC%252CCJ%252CR%252C2008E%252C%252C%252C%252C%252C%252C%252C%252C%252C%252Ctrue%252Cfalse%252Cfalse&oqp=&td=%3BALL&avg=&lgrec=en&lg=&cid=3619983"><span style="mso-bookmark: _Hlk152171168;"><i>Neves 77 Solutions</i></span><span style="mso-bookmark: _Hlk152171168;"></span></a><span style="mso-bookmark: _Hlk152171168;">
(delivered on the same day). Specifically, the EU Courts could not evaluate
whether the EU should establish a mission in a particular part of the world.
However, once a political decision to involve the EU in a specific country or
conflict is made, the EU Courts must have the authority to scrutinise whether
the implementation of such a decision is designed and executed in a manner that
interferes disproportionately with human rights (para. 118 of the Opinion)<a name="point119">. </a><a name="point13"><span style="mso-bookmark: point119;"><span style="mso-spacerun: yes;"> </span><o:p></o:p></span></a></span></p>
<span style="mso-bookmark: point119;"></span><span style="mso-bookmark: point13;"></span>
<p class="MsoNormal" style="text-align: justify;"><span style="mso-bookmark: _Hlk152171168;">In
respect of the broad approach AG Ćapeta took, she clarified that some of those strategic
decisions require more deference to the reasons put by the Council or other
responsible body. The availability of funding for a particular mission might
affect the rights of individuals whose family members’ disappearances were
inadequately investigated. She then pointed out that the EU Courts must weigh
such considerations against the broader financial and staff capacity of the EU,
which manages missions globally and faces decisions on resource allocation. However,
in her view, this did not entirely preclude the jurisdiction of EU Courts;
instead, questions of deference and the intensity of scrutiny arise after
jurisdiction is established (para. 119 of the Opinion). <a name="_Hlk152171227"><o:p></o:p></a></span></p>
<p class="MsoNormal" style="text-align: justify;"><span style="mso-bookmark: _Hlk152171168;"><span style="mso-bookmark: _Hlk152171227;"><b>Political and strategic decisions can
never be in breach of fundamental rights<o:p></o:p></b></span></span></p>
<p class="MsoNormal" style="text-align: justify;"><span style="mso-bookmark: _Hlk152171168;"><span style="mso-bookmark: _Hlk152171227;">In situations where political or strategic
decisions have the potential to violate fundamental rights, according to AG Ćapeta,
the EU Courts should have the capacity to consider an individual's complaint. In
this respect, the AG pointed out that the EU Courts are likely to show
deference to the Council's reasons when assessing whether these decisions constitute
a breach of fundamental rights (para. 120 of the Opinion). <a name="point124">In
light of her reflections, AG Ćapeta found that </a>EU institutions and bodies
are always bound by fundamental rights, and the choice to infringe those rights
is not an available political or </span>strategic choice, including in the area
of the CFSP. <a name="_Hlk151644007">There is a limit imposed on political and
strategic decisions, as they can never be in breach of fundamental rights</a> (para.
124 of the </span>Opinion).<o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;"><b>Comment<o:p></o:p></b></p>
<p class="MsoNormal" style="text-align: justify;">The accountability of EU
international missions, like CSDP missions, has long been a concern. For the
CJEU to decline jurisdiction for an action for damages brought by individuals
based on an alleged breach of fundamental rights by the EU on the basis that EU
law limits the jurisdiction of the EU Courts is problematic, especially
considering this concern of lack of accountability. As a whole therefore, the
Opinion of AG Ćapeta is a step in the right direction.<o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;">The case of KS and KD was also,
previously, <a href="https://www.casemine.com/judgement/uk/5c739b982c94e03b441dc0a6">before a
UK court</a> and it was of the view that it did not have jurisdiction itself, given
that in its view, the jurisdiction lay with the EU Court. To leave individuals
in these type of cases without a judicial remedy, i.e. a national court and the
EU Courts declining jurisdiction, is not acceptable. The essential entitlement
to judicial protection for individuals affected by acts of EU institutions and
bodies underscores the imperative to assert jurisdiction in these cases, just
like the Court did in <i>SatCen v KF</i>.<o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;">Especially in sensitive cases
like the case of KS and KD involving an EU body, Eulex Kosovo, which performs executive
functions vis-à-vis individuals, it is crucial that EU Courts do not hide
behind the ‘CFSP’ limitations. At stake are the rights of persons whose family
members’ disappearances were not successfully investigated. AG Ćapeta correctly
finds that only exceptionally, the constitutional role of the EU Courts can be
limited. <o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;">EU law should be read as
requiring respect for fundamental rights in all EU policies, and that it must
be adhered to, and subject to judicial review. To assume jurisdiction in KS and
KD-like cases ensures, in the words of AG Ćapeta, that CFSP decisions affecting
individuals do not cross ‘red lines’ imposed by fundamental rights. <o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;"><o:p> </o:p></p>
<p class="MsoNormal" style="text-align: justify;">Comments were gratefully received
from Prof. Graham Butler who has published an excellent analysis on the
Opinion: <a href="https://eulawlive.com/op-ed-jurisdiction-of-the-eu-courts-in-the-common-foreign-and-security-policy-reflections-on-the-opinions-of-ag-capeta-in-ks-and-kd-and-neves-77-solutions-by-graham-butler/">https://eulawlive.com/op-ed-jurisdiction-of-the-eu-courts-in-the-common-foreign-and-security-policy-reflections-on-the-opinions-of-ag-capeta-in-ks-and-kd-and-neves-77-solutions-by-graham-butler/</a><o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;"><o:p> </o:p></p>
<p class="MsoNormal" style="text-align: justify;"><b><i>*Antje Kunst</i></b><i> is
an international lawyer and a member of Pavocat Chambers advising and
representing individuals in a wide range of matters in the field of the EU’s
Common Foreign Security Policy (CFSP) and takes instructions from individuals
challenging a wide range of decisions including EU employment cases to EU and
UN sanctions before the EU courts and international bodies. <o:p></o:p></i></p>
<p class="MsoNormal" style="text-align: justify;"><i>She was Counsel for KF before
the Court of Justice of the European Union in Case C-14/19 P (SatCen v KF) and worked
as a senior lawyer for the UN Mission in Kosovo.<o:p></o:p></i></p>
<p class="MsoNormal" style="text-align: justify;"><o:p> </o:p></p>Steve Peershttp://www.blogger.com/profile/05869161329197244113noreply@blogger.com0tag:blogger.com,1999:blog-8704899696538705849.post-65188080100994630732023-11-29T23:51:00.000-08:002023-11-29T23:51:52.998-08:00Angesom’s application for judicial review: the Fundamental Rights Charter makes a (shaky) comeback in Northern Ireland<p class="MsoNormal" style="text-align: justify;"> </p><div class="separator" style="clear: both; text-align: center;"><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEjIor50UHHOv6Pg_qJPK9FpcIVLiqUqGyBiMNuMBT1jg4CIFsdSOa9sth2LCy7tiDiwlz5YWrX0iazcOCEUeXfju6MnT1V8M31d6cmZjcCVeDlxIDvQZTkZ9GY5sCCikZbXIlibrBaSc9iOX7HDdtBTBB024HWYu6MZKIvPt0PSL0XBrmRiQRci9BKrdqQ/s2048/stormont.jpg" imageanchor="1" style="margin-left: 1em; margin-right: 1em;"><img border="0" data-original-height="1536" data-original-width="2048" height="278" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEjIor50UHHOv6Pg_qJPK9FpcIVLiqUqGyBiMNuMBT1jg4CIFsdSOa9sth2LCy7tiDiwlz5YWrX0iazcOCEUeXfju6MnT1V8M31d6cmZjcCVeDlxIDvQZTkZ9GY5sCCikZbXIlibrBaSc9iOX7HDdtBTBB024HWYu6MZKIvPt0PSL0XBrmRiQRci9BKrdqQ/w371-h278/stormont.jpg" width="371" /></a></div><br /><p></p><p class="MsoNormal" style="text-align: justify;"><br /></p>
<p class="MsoNormal" style="text-align: justify;"><b><a href="https://pure.qub.ac.uk/en/persons/anurag-deb">Anurag Deb</a></b>, researcher,
Queen’s University Belfast<o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;"><b>Photo credit</b>: Dom0803, via
<a href="https://commons.wikimedia.org/wiki/File:Northern_Ireland_Parliament_Buildings.jpg">Wikipedia
commons</a><o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;"><o:p> </o:p></p>
<p class="MsoNormal" style="text-align: justify;">Aman Angesom, an Eritrean
national who does not speak English, arrived in Northern Ireland in June 2021
and applied for asylum. Initially accommodated in a house and then a hotel in
Belfast, the Home Secretary made the decision to remove him to Scotland in
October 2021. He was given less than 24 hours’ notice of his impending removal:
he received a letter around 6 pm, for a removal time of 11.30 am the following
day. The letter was in English with no translation provided to Mr Angesom. He
was duly removed to Scotland and challenged this decision.<o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;"><o:p> </o:p></p>
<p class="MsoNormal" style="text-align: justify;">The challenge to the Home
Secretary’s decision rested on five grounds, of which this post only explores
the final ground: that the decision breached Article 2 of the Ireland/Northern
Ireland Protocol (now sometimes known as the Windsor Framework). This was not
the first such case invoking Article 2. Colin Murray has analysed the most
important decision in this regard for this blog: <a href="https://eulawanalysis.blogspot.com/2022/05/rights-and-equality-law-in-northern.html">here</a>.
This decision, SPUC’s application for judicial review, was <a href="https://www.bailii.org/nie/cases/NICA/2023/35.html">affirmed on appeal</a>
in 2023. This post will explore how <i>Angesom</i> builds on the SPUC test with
its detailed consideration of the EU Charter of Fundamental Rights (CFR), and
why this matters both for human rights protection in Northern Ireland and for
the reality of the post-Brexit legal landscape in the UK.<o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;"><o:p> </o:p></p>
<p class="MsoNormal" style="text-align: justify;"><b>Article 2 and the CFR<o:p></o:p></b></p>
<p class="MsoNormal" style="text-align: justify;"><o:p> </o:p></p>
<p class="MsoNormal" style="text-align: justify;">Without delving into detail which
Murray has already set out, the relevant aspect of Article 2 in <i>Angesom</i>
is its non-diminution guarantee. What this means is that the UK is bound (<a href="https://eur-lex.europa.eu/legal-content/EN/TXT/?qid=1580206007232&uri=CELEX%3A12019W/TXT%2802%29">internationally</a>
and <a href="https://www.legislation.gov.uk/ukpga/2018/16/section/7A">domestically</a>)
to ensure that the rights, safeguards and equality of opportunity provisions
mentioned in the <a href="https://www.dfa.ie/media/dfa/alldfawebsitemedia/ourrolesandpolicies/northernireland/good-friday-agreement.pdf">Good
Friday Agreement</a> and underpinned by EU law on 31 December 2020 are not
diminished in Northern Ireland following that date. ‘EU law’ in this context
refers to all EU law which applied to and in the UK on 31 December 2020. This
includes the CFR. But the applicability of the CFR does not stop at a certain
date for Northern Ireland. <o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;"><o:p> </o:p></p>
<p class="MsoNormal" style="text-align: justify;">The Protocol continues to apply a
list of EU law to Northern Ireland, and any such law brings with it the bells
and whistles of EU law. These bells and whistles include, for example, the rule
that such law must be interpreted consistently with the CFR. This is a rule <a href="https://curia.europa.eu/juris/document/document.jsf?text=&docid=176461&pageIndex=0&doclang=en&mode=lst&dir=&occ=first&part=1&cid=3329073">confirmed</a>
by the Court of Justice of the EU and Court of Justice case law continues to
bind domestic courts in the UK in relation to any EU law made applicable by the
Protocol (but not the whole Withdrawal Agreement). Like the faces of the Roman
god Janus, therefore, the CFR looks both to the past (applying to all of EU law
on or before 31 December 2020) and the future (applying to only the listed EU
laws after 31 December 2020). In <i>Angesom</i>, Mr Justice Colton confirms
this at para 94, observing: <o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;"><o:p> </o:p></p>
<p class="MsoNormal" style="margin-left: 36.0pt; text-align: justify;">The combined
effect of section 7A of the European Union (Withdrawal) Act 2018 (“EUWA 2018”)
and Article 4 of the Protocol limits the effects of section 5(4) and (5) of the
EUWA 2018 and Schedule 1, para 3 of the same Act which restrict the use to
which the Charter of Fundamental Rights […] may be relied on after the UK’s
exit.<o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;"><o:p> </o:p></p>
<p class="MsoNormal" style="text-align: justify;">It is important to unpick this
statement. Section 7A of the EUWA, like section 2(2) of the European Communities
Act 1972 before it, gives effect to the evolving body of rights, obligations,
powers, liabilities, and so on, which arise under the Withdrawal Agreement.
Crucially, s 7A also subjects everything in the statute book (including the
EUWA) to the former provision. Section 5(4) of the same Act declares “The
Charter of Fundamental Rights is not part of domestic law” on or after 31
December 2020. This seems to contradict section 7A, except for the fact that
section 5(4) is itself subject to section 7A, as Colton J observes. Moreover,
section 5(7) makes this subjection explicit – subjecting 5(4) to “relevant
separation agreement law” which is defined in section 7C(3) to include, among
other things, section 7A of the EUWA. This kind of drafting may seem confusingly
circular, but it reinforces the fact that no part of domestic law presently
circumscribes or otherwise impacts the ability of the Protocol to have full
effect in Northern Ireland.<o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;"><o:p> </o:p></p>
<p class="MsoNormal" style="text-align: justify;">The availability of the CFR means
that Mr Angesom was entitled to rely directly on its rights in a way which is
unavailable in Great Britain (as the Protocol does not extent beyond Northern
Ireland). In this case, the right in question was Article 7 CFR – the right to
private and family life, which Mr Angesom argued was breached through his
removal to Scotland. Regrettably but with respect, the court’s reasoning starts
to suffer from this point in the judgment.<o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;"><o:p> </o:p></p>
<p class="MsoNormal" style="text-align: justify;"><b>One step forward and two steps
back?<o:p></o:p></b></p>
<p class="MsoNormal" style="text-align: justify;"><o:p> </o:p></p>
<p class="MsoNormal" style="text-align: justify;">Although the court in <i>Angesom</i>
definitively clarified that the CFR applies in Northern Ireland now as it did
before Brexit (albeit in respect of a vastly reduced body of EU law), there are
two problematic points in its reasoning.<o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;"><o:p> </o:p></p>
<p class="MsoNormal" style="text-align: justify;">The first point concerns how
Article 2 protects against a diminution of rights enjoyed prior to Brexit. The
relevant text of the Article states: “The United Kingdom shall ensure that no
diminution of rights, safeguards or equality of opportunity, as set out in [the
Good Friday Agreement] results from its withdrawal from the [European] Union.”
In <i>Angesom</i>, although the applicant did not provide much detail as to why
his right to private and family life was disrupted as a result of being removed
to Scotland, Colton J considered that this right was also protected under
Article 8 of the European Convention on Human Rights (ECHR), via the Human
Rights Act 1998 (HRA). Consequently, the applicant suffered no diminution (para
103). The judge framed the question this way: <o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;"><o:p> </o:p></p>
<p class="MsoNormal" style="margin-left: 36.0pt; text-align: justify;">The question
as to whether there has been a breach of Article 2(1) therefore turns on
whether a diminution of rights has occurred by reason of the fact that the
applicant can no longer rely on Charter rights outside of Northern Ireland or
whether it must be shown that in practice there is a substantive difference in
the level of protection offered to the applicant in Scotland under the ECHR
(para 100).<o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;"><o:p> </o:p></p>
<p class="MsoNormal" style="text-align: justify;">With respect, this is deeply
problematic. If functionally similar (but legally non-EU) rights protections
were sufficient to satisfy Article 2, one would expect that to be found within
the text of the Article itself. This aside, however, the idea that the Protocol
– part of a treaty between the EU and the UK – should be able to create legally
enforceable obligations on the UK relating to a completely different treaty (in
other words, the obligation under Article 2 can be satisfied via ECHR-compliant
protections) is a surprise. The surprise is even greater when one considers
that the EU <a href="https://curia.europa.eu/juris/document/document.jsf?docid=160882&doclang=EN#:~:text=The%20Union%20shall%20accede%20to,principles%20of%20the%20Union's%20law.">has</a>
not acceded to the ECHR, raising the question why the ECHR should have occupied
the minds of the framers of the Withdrawal Agreement at all. <o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;"><o:p> </o:p></p>
<p class="MsoNormal" style="text-align: justify;">Moreover, even if Colton J was
correct to frame the question this way, there is an obvious answer: yes. Anyone
taken out of the field of the CFR’s applicability loses its most powerful
remedy: the automatic disapplication of any domestic legal provision which
falls within the scope of EU law and which contravenes the CFR. The HRA,
powerful as it is, does not allow courts to disapply Acts of the UK Parliament;
by contrast, assuming the satisfaction of certain conditions, the CFR <a href="https://curia.europa.eu/juris/document/document.jsf?text=&docid=49550&pageIndex=0&doclang=en&mode=lst&dir=&occ=first&part=1&cid=3337407">demands</a>
it.<o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;"><o:p> </o:p></p>
<p class="MsoNormal" style="text-align: justify;">The second problem in <i>Angesom</i>
relates to which EU laws are said to be protected by the non-diminution
guarantee Article 2. The applicant relied on the <a href="https://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2003:031:0018:0025:En:PDF">Reception
Conditions Directive</a>, which prescribes minimum standards for asylum seekers
in every EU Member State. On the facts, Colton J found that the Home Secretary
had complied with these standards (para 125). But this was preceded by the
following question the court asked: “The next question is whether this
Directive was binding on the UK on or before 31 December 2020. In other
words, is the Directive capable of having direct effect? (para 116)”.<o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;"><o:p> </o:p></p>
<p class="MsoNormal" style="text-align: justify;">With respect, whether a directive
was binding or not on 31 December 2020 is a relevant question, but direct
effect is not a requirement for a directive to be binding. This is reflected in
the <i><a href="https://www.bailii.org/eu/cases/EUECJ/1982/R881.html">Becker</a></i>
case, which Colton J cites (para 117). In <i>Becker</i>, only directives which
have “unconditional and sufficiently precise” provisions in terms of their
subject matter have direct effect (<i>Becker</i>, para 25). Equating the two
concepts (a binding directive and direct effect) has the problematic
consequence of potentially restricting the non-diminution guarantee under
Article 2 only to those directives which are capable of direct effect. <o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;"><o:p> </o:p></p>
<p class="MsoNormal" style="text-align: justify;"><b>Conclusion<o:p></o:p></b></p>
<p class="MsoNormal" style="text-align: justify;"><o:p> </o:p></p>
<p class="MsoNormal" style="text-align: justify;">On the whole, <i>Angesom</i> is a
welcome and definitive clarification that places the status and application of
the CFR in the Northern Ireland legal order beyond doubt. The fact that the challenge
under Article 2 failed on the facts obviated any impact which could have arisen
from its problematic legal reasoning. <o:p></o:p></p>
<p><span style="text-align: justify;"> </span> </p>Steve Peershttp://www.blogger.com/profile/05869161329197244113noreply@blogger.com1tag:blogger.com,1999:blog-8704899696538705849.post-21556925624737112412023-11-29T06:43:00.000-08:002023-11-29T06:45:42.748-08:00 Live Facial Recognition for Law Enforcement: The European Union’s Regulatory Approach Should be Informed by UK Police’s Practice<p> </p><div class="separator" style="clear: both; text-align: center;"><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEim_CjTpbDnDL-xYVqjbWsfGbWypnXqsw_0X5Ot_0ZtN4PR9DQtC8TRf2MA-gtEhQKfUiptFuqc2wHhY8bWLz3Mv2SkD5kbXKj17ce9iOr3bMP-CJl59e3lQG0Xob8D_k8_EORegQdmCK6hKuu2HOfsNmDWUSqQZSRdF6gyz-Q-ZfRnACLYW9TbHXnLpu4/s3390/cctv.jpg" imageanchor="1" style="margin-left: 1em; margin-right: 1em;"><img border="0" data-original-height="2259" data-original-width="3390" height="267" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEim_CjTpbDnDL-xYVqjbWsfGbWypnXqsw_0X5Ot_0ZtN4PR9DQtC8TRf2MA-gtEhQKfUiptFuqc2wHhY8bWLz3Mv2SkD5kbXKj17ce9iOr3bMP-CJl59e3lQG0Xob8D_k8_EORegQdmCK6hKuu2HOfsNmDWUSqQZSRdF6gyz-Q-ZfRnACLYW9TbHXnLpu4/w401-h267/cctv.jpg" width="401" /></a></div><br /><div class="separator" style="clear: both; text-align: center;"><br /></div><br /><p></p>
<p class="MsoNormal" style="text-align: justify;"><span lang="IT"><o:p> </o:p></span></p>
<p class="MsoNormal" style="text-align: justify;"><b><span lang="IT">Asress Adimi
Gikay</span></b><span lang="IT"> (PhD)<o:p></o:p></span></p>
<p class="MsoNormal" style="text-align: justify;"><span lang="IT">Senior Lecturer in
AI, Disruptive Innovation, and Law at Brunel University London<o:p></o:p></span></p>
<p class="MsoNormal" style="text-align: justify;"><span lang="IT">Photo credit: Dirk
Ingo Franke, via <a href="https://commons.wikimedia.org/wiki/File:%C3%9Cberwachungskameras_Autohof_in_Th%C3%BCringen_an_A9_03.06.2013_10-07-08.JPG">Wikimedia
Commons</a><o:p></o:p></span></p>
<p class="MsoNormal" style="text-align: justify;"><span lang="IT"><o:p> </o:p></span></p>
<p class="MsoNormal" style="text-align: justify;"><b><span lang="IT">Divergent
Approaches to Regulating Live Facial Recognition <o:p></o:p></span></b></p>
<p class="MsoNormal" style="text-align: justify;">In what is
characterised as an '<a href="https://bigbrotherwatch.org.uk/2023/10/passport-photo-facial-recognition-database/#:~:text=Responding%20to%20the%20Government%27s%20plan,violation%20of%20British%20privacy%20principles.">Orwellian
Nightmare</a>', UK’s Minister of Crime, Rt Hon Chris Philp MP recently suggested the opportunity for the
UK police to search <a href="https://www.youtube.com/watch?v=5pBcmO1KQzk">national
passport database</a> using facial recognition technology to tackle shoplifting
crimes. This occurred as preparations were underway for the <a href="https://www.gov.uk/government/topical-events/ai-safety-summit-2023">AI
Safety Summit</a>, an event that took place in London. It has some irony, to
the surveillance anxious participants who gathered to discuss AI Safety as
London is one of the cities with the <a href="https://www.statista.com/chart/19256/the-most-surveilled-cities-in-the-world/#:~:text=The%20highest%2Dranked%20non%2DChinese,U.S.%20cities%20in%20the%20analysis.">largest
number of CCTV cameras</a>; but importantly where the police frequently use live
facial recognition (LFR) in public spaces. </p>
<p class="MsoNormal" style="text-align: justify;"><span lang="IT">Since South Wales
Police made the <a href="https://mashable.com/article/south-wales-police-facial-recognition-technology">first
arrest using LFR over six years ago</a>, UK Police use the technology to locate
criminal suspects from crowds. In <span style="mso-spacerun: yes;"> </span>LFR,
the artificial intelligence(AI) software compares, in real-time, biometric
facial images captured by a camera with <a href="https://www.college.police.uk/app/live-facial-recognition/live-facial-recognition">existing
facial templates</a> of persons of interest<span style="mso-spacerun: yes;">
</span>in a police-created database known as ‘<a href="https://www.college.police.uk/app/live-facial-recognition/watchlist#:~:text=For%20any%20inclusion%20on%20the,or%20the%20safety%20of%20others.">watchlist</a>’.
This is contrasted with <a href="https://www.south-wales.police.uk/police-forces/south-wales-police/areas/about-us/about-us/facial-recognition-technology/#:~:text=Retrospective%20Facial%20Recognition%20(RFR)%20is,in%20order%20to%20identify%20them.">retrospective
facial recognition system</a> where the facial recognition takes place in the
absence of the person of interest based on a video or still image taken from a
source (also known as post-system). The UK government has called up on <a href="https://www.wired.co.uk/article/uk-police-face-recognition-expansion">police
force to expand the use of the technology</a>, amidst growing concerns that the
technology could <a href="https://www.wired.co.uk/article/uk-police-face-recognition-expansion">endanger
civil liberties</a>. <o:p></o:p></span></p>
<p class="MsoNormal" style="text-align: justify;"><span lang="IT">By contrast<a name="_Hlk151199574">, the European Union’s (EU) upcoming AI Act, in the </a><a href="https://www.amnesty.org/en/latest/news/2023/06/eu-european-parliament-adopts-ban-on-facial-recognition-but-leaves-migrants-refugees-and-asylum-seekers-at-risk/"><span style="mso-bookmark: _Hlk151199574;">Parliament’s Compromise Amendments</span><span style="mso-bookmark: _Hlk151199574;"></span></a><span style="mso-bookmark: _Hlk151199574;">
categorically bans the use of LFR. However, the ‘</span><a href="https://www.euractiv.com/section/artificial-intelligence/news/ai-act-meps-mull-narrow-facial-recognition-technology-uses-in-exchange-for-other-bans/"><span style="mso-bookmark: _Hlk151199574;">trialogue negotiations</span><span style="mso-bookmark: _Hlk151199574;"></span></a><span style="mso-bookmark: _Hlk151199574;">’
seem to have led to a compromise where the use of the technology is permitted
for specifically listed crimes punishable by at least five years. </span>The
EU’s restrictive position seems <span style="mso-spacerun: yes;"> </span>intended
primarily to appease civil society organisations, <a href="https://edri.org/wp-content/uploads/2022/10/CZ-Minister-Digitalisation-letter-AI-act.pdf">12
of which wrote a letter</a> to the EU Council in 2022 reiterating the need to
prohibit the technology in categorical terms. Meanwhile, despite the recent call
from 61 MPs and 31 civil society organisations demanding the <a href="https://bigbrotherwatch.org.uk/2023/10/65-parliamentarians-call-for-immediate-stop-to-live-facial-recognition-surveillance/">immediate
cessation</a> of the use of the technology by UK police and private companies,
efforts to stop the technology have remained unsuccessful in the UK.<o:p></o:p></span></p>
<p class="MsoNormal" style="text-align: justify;"><span lang="IT">In this post,
explain why the UK’s approach should inform the regulation of LFR in the EU, by
using evidences from the use of the technology by the UK police. I also
introduce the theory of incrementalism, a normative framework for regulating
novel technologies posing evolving risks whose magnitudes are yet to be known,
in my forthcoming <a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4541539">Cambridge
Law Journal Article</a>—‘Regulating Use by Law Enforcement Authorities of Live
Facial Recognition Technology in Public Spaces: An Incremental Approach.’<span style="mso-spacerun: yes;"> </span><o:p></o:p></span></p>
<p class="MsoNormal" style="text-align: justify;"><b><span lang="IT">Why the EU’S
Approach Should Take an Incremental Approach</span></b></p>
<p class="MsoNormal" style="text-align: justify;"><span lang="IT"><a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4541539">Incrementalism</a>
calls for regulating the use of the LFR technology by the police, and by
extension similar technologies with novel advantages and risks, through
progressive adjustment of the existing legal framework in the light of the
potential risks and evidence of actual harm. This is different from a
regulatory framework that responds to the risk of harm assessed in abstract
terms, without considering the context of actual application of the technology,
existing safeguards as well as the overall benefit of the technology.<o:p></o:p></span></p>
<p class="MsoNormal" style="text-align: justify;"><span lang="IT"><a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4541539">I propose
this theory to incorporate four main ingredients</a>: sectoralism; reliance on
existing legal frameworks; evidence-based regulation; and flexibility. This post
will only explain evidence-based regulation as one of the important elements of
the theory. The UK’s prevailing approach to regulating LFR and AI in general
reflects certain elements of incrementalism. A measured regulation of facial
recognition technology in the EU requires adopting this theory in its entirety
or partially. <span style="mso-spacerun: yes;"> </span><o:p></o:p></span></p>
<p class="MsoNormal" style="text-align: justify;"><b><span lang="IT">Evidence-Based
Regulation<o:p></o:p></span></b></p>
<p class="MsoNormal" style="text-align: justify;"><span lang="IT">The position of the
EU on LFR does not appear to be based on thorough assessment of the benefits
and risks of the harm of the technology as well as public support and the
ability of law enforcement authorities to use it in proportionate manner. <span style="mso-spacerun: yes;"> </span>Indeed, these are important factors in
choosing the appropriate response to a new regulatory phenomenon. The
experience in the UK provides an excellent insight into understanding the
issue. <o:p></o:p></span></p>
<p class="MsoNormal" style="text-align: justify;"><b><span lang="IT">Evidence of Public
Support and Benefits of the Technology<o:p></o:p></span></b></p>
<p class="MsoNormal" style="text-align: justify;"><span lang="IT">In a 2019 UK
national survey conducted by Ada Lovelace Institute, <a href="https://www.adalovelaceinstitute.org/wp-content/uploads/2019/09/Public-attitudes-to-facial-recognition-technology_v.FINAL_.pdf">70%
of respondents</a> thought police should be permitted to use facial recognition
in criminal investigation, with <a href="https://www.adalovelaceinstitute.org/wp-content/uploads/2019/09/Public-attitudes-to-facial-recognition-technology_v.FINAL_.pdf">71%
supporting its use on public spaces, if it helps reduce crime</a>. This
positive public view aligns with the existing evidence of the effectiveness of
the technology in tackling crimes. In 2020 and 2022, the London Metropolitan
Police Service <a href="https://www.met.police.uk/SysSiteAssets/media/downloads/force-content/met/advice/lfr/deployment-records/lfr-deployment-grid.pdf?__cf_chl_tk=E4chFYMwb1R0UEpHQDPXHwY97erNGn7HlaoR4TLWC6E-1672872096-0-gaNycGzNC9E">identified
nine suspects</a> in eight live facial recognition deployments. Earlier in
2018, the technology assisted South Wales Police in, reportedly,<span style="mso-spacerun: yes;"> </span><a href="https://www.bbc.co.uk/news/uk-wales-south-west-wales-44007872">making 450
arrests</a>. <span style="mso-spacerun: yes;"> </span>Several deployments in the
UK have recently shown the effectiveness of the technology in helping arresting
people suspected of committing violent crimes.<o:p></o:p></span></p>
<p class="MsoNormal" style="text-align: justify;"><span lang="IT">In October 2023,
the Metropolitan Police identified <a href="https://news.met.police.uk/news/met-uses-facial-recognition-to-crack-down-on-prolific-retail-criminals-473935">149
suspects</a> of retail crimes using <a href="https://www.met.police.uk/SysSiteAssets/media/downloads/force-content/met/advice/lfr/new/rfr-policy-v1-final.pdf">retrospective
facial recognition</a>. They compared <a href="https://news.met.police.uk/news/met-uses-facial-recognition-to-crack-down-on-prolific-retail-criminals-473935">hundreds
of CCTV still images</a> provided by retail businesses of their ‘<a href="https://news.met.police.uk/news/met-uses-facial-recognition-to-crack-down-on-prolific-retail-criminals-473935">prolific
retail offenders</a>’ against custody images. The result is significant as
retail business are crucial to the UK economy creating a job for <a href="https://news.met.police.uk/news/met-uses-facial-recognition-to-crack-down-on-prolific-retail-criminals-473935">one
in ten Londoners</a>. Additionally, these crimes lead to the loss of estimated <a href="https://news.met.police.uk/news/met-uses-facial-recognition-to-crack-down-on-prolific-retail-criminals-473935">£1.9
billion in revenue</a> whilst involving <a href="https://news.met.police.uk/news/met-uses-facial-recognition-to-crack-down-on-prolific-retail-criminals-473935">rampant
abuse of retail workers</a>.<span style="mso-spacerun: yes;"> </span><o:p></o:p></span></p>
<p class="MsoNormal" style="text-align: justify;"><span lang="IT">With the technology
garnering some public support, campaigners struggle to present a persuasive
evidence of harm of using it to back their push for blanket prohibition or
suspension in the UK. As EU members states have not allowed the technology to
be used, it is impossible to understand if the technology actually causes
harm.<span style="mso-spacerun: yes;"> </span>Generally, advocacy groups<span style="mso-spacerun: yes;"> </span>highlight the inaccuracy of face recognition
systems, especially in identifying <a href="https://nvlpubs.nist.gov/nistpubs/ir/2019/NIST.IR.8280.pdf#page=4">women
of colour</a>, with Big Brother Watch claiming that Met and South Wales Police
facial recognition systems are over <a href="https://bigbrotherwatch.org.uk/campaigns/stop-facial-recognition/">89%
inaccurate</a>. However <a href="https://science.police.uk/site/assets/files/3396/frt-equitability-study_mar2023.pdf">the
National Physical Laboratory</a> independently tested two facial recognition
systems used by the UK police in 2022. The result showed the software<a href="https://science.police.uk/site/assets/files/3396/frt-equitability-study_mar2023.pdf">
underperformed the most on Black-Female faces</a>, but the discrepancy in
accuracy rates across demographics was found to be <a href="https://science.police.uk/site/assets/files/3396/frt-equitability-study_mar2023.pdf">statistically
insignificant</a>. Equally importantly, the inaccuracy of the technology does
not inevitably translate into harm due to the existing legal safeguards the UK
police adhere to, safeguards that exist or can be implemented in the EU.<o:p></o:p></span></p>
<p class="MsoNormal" style="text-align: justify;"><b><span lang="IT">Evidence of Safe
and Proportionate Use<o:p></o:p></span></b></p>
<p class="MsoNormal" style="text-align: justify;"><span lang="IT">Despite the
technology seeming to be unquestionably inaccurate, there is no reported case
of serious harm resulting from the use of the technology in the UK because the
UK police use it safely and proportionately. This can be contrasted with the
US, where troubling incidents of wrongful arrests using facial recognition
systems have been documented. For instance, <a href="https://edition.cnn.com/2021/04/29/tech/nijeer-parks-facial-recognition-police-arrest/index.html">Nijeer
Parks, a Black American</a> misidentified by facial recognition was <a href="https://edition.cnn.com/2021/04/29/tech/nijeer-parks-facial-recognition-police-arrest/index.html">wrongfully
incarcerated for ten days</a>. According to a <a href="https://int.nyt.com/data/documenttools/new-jersey-facial-recognition-lawsuit-nijeer-parks-v/38ff3e74088a95a9/full.pdf">civil
complaint</a> against the Director of Woodridge Police and others, Nijeer Parks
voluntarily visited the police station to clear his name upon learning of an
arrest warrant issued for him, in what he believed to be a case of mistaken
identity. The police subjected him to <a href="https://int.nyt.com/data/documenttools/new-jersey-facial-recognition-lawsuit-nijeer-parks-v/38ff3e74088a95a9/full.pdf">coercive
interrogations and solitary confinement</a>, to secure his confession, whilst
ignoring his alibi and the mismatch between DNA and fingerprints found at the
crime scene with those of Nijeer Parks’. <o:p></o:p></span></p>
<p class="MsoNormal" style="text-align: justify;"><span lang="IT">These kinds of
incidents seem to reflect more of police misconduct than the inherent challenge
posed by the technology.<a name="_Hlk151199901"> Despite the concerns in the
US,<span style="mso-spacerun: yes;"> </span>in 2021, not less than </a><a href="https://www.securityindustry.org/2021/07/09/most-state-legislatures-have-rejected-bans-and-severe-restrictions-on-facial-recognition/"><span style="mso-bookmark: _Hlk151199901;">seventeen state legislatures</span><span style="mso-bookmark: _Hlk151199901;"></span></a><span style="mso-bookmark: _Hlk151199901;">
rejected bills to ban facial recognition. Some states including </span><a href="https://cityofno.granicus.com/MediaPlayer.php?view_id=42&clip_id=4142"><span style="mso-bookmark: _Hlk151199901;">New Orleans</span><span style="mso-bookmark: _Hlk151199901;"></span></a><span style="mso-bookmark: _Hlk151199901;"> and </span><a href="https://lis.virginia.gov/cgi-bin/legp604.exe?ses=221&typ=bil&val=sb741"><span style="mso-bookmark: _Hlk151199901;">Virginia</span><span style="mso-bookmark: _Hlk151199901;"></span></a><span style="mso-bookmark: _Hlk151199901;">, that had previously
banned facial recognition have now </span><a href="https://edition.cnn.com/2022/08/05/tech/facial-recognition-bans-reversed/index.html#:~:text=Over%20the%20past%20few%20years,technology%20is%20making%20a%20comeback."><span style="mso-bookmark: _Hlk151199901;">reversed course</span><span style="mso-bookmark: _Hlk151199901;"></span></a><span style="mso-bookmark: _Hlk151199901;">,
to allow its regulated use.<span style="mso-spacerun: yes;"> </span>Legislatures
seem to want legal frameworks that strike a balance between benefits of the
technology and addressing its risks</span>. <o:p></o:p></span></p>
<p class="MsoNormal" style="text-align: justify;"><span lang="IT">Such a legal
framework largely exists in the UK and the EU, as the two jurisdictions have
similar human rights regimes. The UK police are obligated to use facial
recognition technology in compliance with the Human Rights Act and the Equality
Act, the latter imposing <a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4541539">equality
impact assessment</a> obligation. Equality impact assessment requires the
police to proactively tackle the potential discriminatory impact of the
technology on specific groups and implement risk mitigation measures. These
measures are supplemented by privacy law under the European Human Rights
Convention and data protection rules under the Law Enforcement Directive
(applicable both in the EU and the UK).<o:p></o:p></span></p>
<p class="MsoNormal" style="text-align: justify;"><span lang="IT">In the UK, the
police also adhere to a national document prescribing detailed procedures for
deploying live facial recognition technology known as the <a href="https://www.college.police.uk/app/live-facial-recognition/where-date-time-duration-and-location-deployment">authorised
professional practice</a>. This national code of practice has <a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4541539">a binding
force</a>. As a result of these comprehensive safety frameworks, the UK police
have used facial recognition technology for <a href="https://twitter.com/BigBrotherWatch/status/1719398384614752410">seven-years</a>
without <a href="https://www.youtube.com/watch?v=7CZzr-A5t5M">a single instance
of wrongful arrest or abuse</a>. As the European Union has advanced legal
frameworks on human rights, privacy, data protection, and rule of law in general,
it is inconceivable that the result of using facial recognition technology in
the EU would be different from that of the UK. <o:p></o:p></span></p>
<p class="MsoNormal" style="text-align: justify;"><span lang="IT">Advocacy groups also
highlight privacy intrusion and the expansion of surveillance as further
concerns in relation to the use of LFR in public spaces. Nevertheless,
these are addressed by<a href="https://deliverypdf.ssrn.com/delivery.php?ID=998105006000069125069107127099111121053040051018055094125102007098095111071065120123041031008002042043044088081125018116029086025010021006031084094025116104086099030064008046090122005002106018124108088121029028020122112066080120068122067088118083098069&EXT=pdf&INDEX=TRUE">
legally limiting</a> the duration, purpose and context of the use of the
technology in the UK. The police are required to <a href="https://www.college.police.uk/app/live-facial-recognition/where-date-time-duration-and-location-deployment">assess
the proportionality</a> of using the technology, especially in places where it
could have serious privacy implications such as hospitals and schools. This is
mainly because <a href="https://www.echr.coe.int/documents/d/echr/convention_ENG#:~:text=Right%20to%20respect%20for%20private,his%20home%20and%20his%20correspondence.">article
8 of the European Human Rights Convention</a>, similarly to its EU counterparts,
<a href="https://fra.europa.eu/en/eu-charter/article/7-respect-private-and-family-life?page=2#:~:text=Everyone%20has%20the%20right%20to,family%20life%2C%20home%20and%20communications.">articles
7</a>, and <a href="https://fra.europa.eu/en/eu-charter/article/52-scope-and-interpretation-rights-and-principles">52</a>
of the Charter of Fundamental Rights allow interference with privacy right
based on the assessment of proportionality and necessity. <span style="mso-spacerun: yes;"> </span>The existing legal framework in the UK does
not permit surveillance at will. Things are not different in the EU, and in any
event, a<span style="mso-spacerun: yes;"> </span>loophole that creates a room
for excessive surveillance could be addressed by a legislation. <o:p></o:p></span></p>
<p class="MsoNormal" style="text-align: justify;"><span lang="IT">Additionally, the
face recognition software used by the police does <a href="https://www.judiciary.uk/wp-content/uploads/2020/08/R-Bridges-v-CC-South-Wales-ors-Judgment.pdf">not
retain biometric data of individuals unless<span style="mso-spacerun: yes;">
</span>positively matched</a>, and <a href="https://www.bailii.org/ew/cases/EWHC/Admin/2019/2341.html">personal data
generated during its use</a> is automatically deleted within a short span of
time. These are intentionally built-in features of the software aimed at
lessening the privacy and data protection impacts of the technology. Last, LFR
is currently used in public spaces where people are unlikely to engage in
private activities that should outweigh the public's interest in tackling
violent crimes, although again, specific deployments need to observe the
requirements of necessity and proportionality. <o:p></o:p></span></p>
<p class="MsoNormal" style="text-align: justify;"><span lang="IT">Academics and
advocacy groups often express doubt about the clarity of the legal basis for
using facial recognition or the existence of mechanisms for redress for harms
caused by the use of the technology. But this is not based on sound legal
analysis. <a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4541539">The
current law does allow the police</a> to gather information for fighting crimes
including using new technological tools.<span style="mso-spacerun: yes;">
</span>Furthermore, the police can be liable to pay <a href="https://deliverypdf.ssrn.com/delivery.php?ID=779068125074112109117082080011096028034002008002053038105112004071104005117124114124043110106115033100010089100121125117100074123000008015072070089114126090103076124091018094089067121107087027088011064123019016079126067092108068068067069006013071110088&EXT=pdf&INDEX=TRUE" target="_blank">compensation for harms</a>, if they wrongfully detain or
interrogate someone following misidentification using facial recognition
technology under civil liability law. This is not to suggest that the existing
law is without any loophole, but that addressing any legal gap requires
delicate balancing rather than unnecessarily restrictive measures. <o:p></o:p></span></p>
<p class="MsoNormal" style="text-align: justify;"><b><span lang="IT">The Need to
Reverse Course in the EU<o:p></o:p></span></b></p>
<p class="MsoNormal" style="text-align: justify;"><span lang="IT">The EU Commission’s
Initial Draft of the AI Act permitted the limited use of LFR for law
enforcement purpose. First, by way of exception it allowed the use of the
technology for narrowly defined, specific, and legitimate purposes [Art.
5(1)(d)]. These purposes are:<o:p></o:p></span></p>
<p class="MsoNormal" style="text-align: justify;"><span lang="IT">(i) the targeted
searches for specific potential victims of crime, including missing children; <o:p></o:p></span></p>
<p class="MsoNormal" style="text-align: justify;"><span lang="IT">(ii) the prevention
of a specific, substantial and imminent threat to the life or physical safety
of natural persons or a terrorist attack; and <o:p></o:p></span></p>
<p class="MsoNormal" style="text-align: justify;"><span lang="IT">(iii) the
detection, localisation, identification or prosecution of a perpetrator or
suspect of a crime with a maximum sentence of at least three years that would
allow for issuing a European Arrest Warrant. <o:p></o:p></span></p>
<p class="MsoNormal" style="text-align: justify;">Second, the
relevant law enforcement authority must demonstrate that the use of the
technology is justifiable against (a) the seriousness, probability and scale of
the harm caused in the absence of the use of the technology;(b) the
seriousness, probability and scale of consequences of the use of the technology
for the rights and freedoms of all persons concerned; and (c) the compliance of
the technology's use with necessary and proportionate safeguards and conditions
in relation to the temporal, geographic and personal limitations[Art. 5(2)-3].
The authority proposing to use the technology bears the burden of
justification.</p>
<p class="MsoNormal" style="text-align: justify;">Third, the relevant
law enforcement authority must obtain prior express authorisation from a
judicial or a recognised independent administrative body of the Member State in
which the technology is to be used, issued upon a reasoned request. If duly
justified by urgency, the police may apply for authorisation during or after
use [Art. 5(3)].</p>
<p class="MsoNormal" style="text-align: justify;"><a href="https://www.amnesty.org/en/latest/news/2023/06/eu-european-parliament-adopts-ban-on-facial-recognition-but-leaves-migrants-refugees-and-asylum-seekers-at-risk/">The
Parliament’s Compromise Amendments</a> categorically banned LFR used either by
private companies or law enforcement authorities. As this post has demonstrated, the evidence
in the UK as well the recent reversal of bans in the US clearly indicate that
the EU’s position is not based on concrete evidence. As mentioned earlier, the
‘<a href="https://www.euractiv.com/section/artificial-intelligence/news/ai-act-meps-mull-narrow-facial-recognition-technology-uses-in-exchange-for-other-bans/">trialogue
negotiations</a>’ seem to have led to a compromise where the use of the
technology is permitted for specific crimes punishable by at least five years.
This is unnecessarily restrictive as host of crimes including money laundering,
financial fraud and other offences are not envisioned to be among the crimes
for which the technology can be used.</p>
<p class="MsoNormal" style="text-align: justify;"><b><span lang="IT">A Call for
Measured Regulation</span></b></p>
<p class="MsoNormal" style="text-align: justify;"><span lang="IT">The thinking behind
the EU’s approach seems to be highly influenced by campaigners who depict the
use of the technology as '<a href="https://bigbrotherwatch.org.uk/2023/10/passport-photo-facial-recognition-database/">Orwellian</a>'
to induce public<span style="mso-spacerun: yes;"> </span>fear, regardless of the
context in which it is used. It appears to be a knee-jerk reaction, rather than
an evidence-based response. The UK’s current practice and legal framework
certainly have <a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4541539">some
loopholes to close</a>. For instance, the technology could potentially be used <a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4541539">for all
crimes today</a>, regardless of the seriousness of the crimes in question. But addressing
these kinds of details does not entail suspending the use of the technology or
entirely prohibiting it. Neither does it requires unnecessarily restricting it.
Any legislative effort that aims to strike a delicate balance between the
societal benefits and risks of the technology should take an incremental
approach, that allows for timely response to evolving risk based on <a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4541539">actual
evidence of harm than conjecture</a>. Starting with the strictest regulatory
framework, uninformed by evidence could needlessly deny society of the benefits
of the technology. <o:p></o:p></span></p>
<p class="MsoNormal" style="text-align: justify;"><span lang="IT"><o:p> </o:p></span></p>Steve Peershttp://www.blogger.com/profile/05869161329197244113noreply@blogger.com0tag:blogger.com,1999:blog-8704899696538705849.post-34395841608756441432023-11-25T08:10:00.000-08:002023-11-29T06:46:12.374-08:00Taking Rights Away Seriously: the Council’s position on the long-term residents Directive<p> </p><div class="separator" style="clear: both; text-align: center;"><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEhYb09549Om5LWMSlEH3ca_LQN8gijn9O6VQSuYA558l8KIlr1XGf5bXd7mTnL8nmEBpOjGSmSxTSbxFxHkuPXao-2GI127__JSFvta9-7hHnh25CK7qDpCxsXPLJpBra4qcdFCQC-KcJEJ1GhHV0YZVX2mnjh3oEZ9xt_k6LTKlZ2EltmzZGbvqsflM48/s1600/council.jpg" style="margin-left: 1em; margin-right: 1em;"><img border="0" data-original-height="1000" data-original-width="1600" height="232" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEhYb09549Om5LWMSlEH3ca_LQN8gijn9O6VQSuYA558l8KIlr1XGf5bXd7mTnL8nmEBpOjGSmSxTSbxFxHkuPXao-2GI127__JSFvta9-7hHnh25CK7qDpCxsXPLJpBra4qcdFCQC-KcJEJ1GhHV0YZVX2mnjh3oEZ9xt_k6LTKlZ2EltmzZGbvqsflM48/w371-h232/council.jpg" width="371" /></a></div><br /><p></p><p class="MsoNormal" style="background: white; line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto;"><br /></p>
<p class="MsoNormal" style="background: white; line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto;"><b><span face=""Arial",sans-serif" style="color: #333333; mso-fareast-font-family: "Times New Roman"; mso-fareast-language: EN-GB;">Professor Steve Peers</span></b><span face=""Arial",sans-serif" style="color: #333333; mso-fareast-font-family: "Times New Roman"; mso-fareast-language: EN-GB;">, Royal Holloway University of London<o:p></o:p></span></p>
<p class="MsoNormal" style="background: white; line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto; tab-stops: 286.7pt;"><span face=""Arial",sans-serif" style="color: #333333; mso-fareast-font-family: "Times New Roman"; mso-fareast-language: EN-GB;">Photo credit: <b>JLogan</b>, via <a href="https://commons.wikimedia.org/wiki/File:Justus_Lipsius_EU_Council_489_Wide.jpg">Wikimedia
commons</a> <span style="mso-tab-count: 1;"> </span><o:p></o:p></span></p>
<p class="MsoNormal" style="background: white; line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto; text-align: justify;"><span face=""Arial",sans-serif" style="color: #333333; mso-fareast-font-family: "Times New Roman"; mso-fareast-language: EN-GB;">Although the Commission and European Parliament seek
to improve the legal status of long-term non-EU residents in the EU, the
Council seeks to make them (on the whole) worse off, particularly in terms of getting EU long-term residence status in the first place. This is the position
following the recent <a href="https://www.consilium.europa.eu/en/press/press-releases/2023/11/23/third-country-nationals-eu-updates-rules-for-long-term-resident-status/">Council
agreement</a> on Member States’ position on the Commission <a href="https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A52022PC0650&qid=1652444835100"><span style="color: #992211;">proposal</span></a> for a Directive on the issue, dating
back to May 2022 (see also the <a href="https://www.europarl.europa.eu/doceo/document/A-9-2023-0145_EN.html">European
Parliament position</a> from spring 2023), which would replace the current <a href="https://eur-lex.europa.eu/legal-content/en/ALL/?uri=celex%3A32003L0109"><span style="color: #992211;">Directive</span></a> on this issue dating from 2003
(that law was previously <a href="https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A32011L0051"><span style="color: #992211;">amended</span></a> in 2010 to extend it to those
with refugee or subsidiary protection status). <o:p></o:p></span></p>
<p class="MsoNormal" style="background: white; line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto; text-align: justify;"><span face=""Arial",sans-serif" style="color: #333333; mso-fareast-font-family: "Times New Roman"; mso-fareast-language: EN-GB;">The Council and the European Parliament will now
start negotiations to determine the final text of the revised law (if they can
agree at all). Timing is tight if they aim to agree it before the next European
Parliament elections (the Parliament’s final session before the elections is in
April 2024). <o:p></o:p></span></p>
<p class="MsoNormal" style="background: white; line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto; text-align: justify;"><span face=""Arial",sans-serif" style="color: #333333; mso-fareast-font-family: "Times New Roman"; mso-fareast-language: EN-GB;">I previously commented on the 2022 proposal in two
blog posts: a <a href="http://eulawanalysis.blogspot.com/2022/05/long-term-resident-non-eu-citizens-eu.html">first
part</a> on the changes to the scope and conditions for obtaining long-term resident
status in a first Member State, and a <a href="http://eulawanalysis.blogspot.com/2022/05/poundshop-free-movement-long-term.html"><span style="color: #992211;">second part </span></a>on the proposals to change
the rules on long-term resident non-EU citizens moving to other Member States.
(This blog post draws upon and updates some of the text of those previous blog
posts; I have highlighted the changes in the Council version of the various
parts of the proposal, by the words ‘<b><u>Council version</u></b>’ in bold and
underline). </span></p><p class="MsoNormal" style="background: white; line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto; text-align: justify;"><span face="Arial, sans-serif" style="color: #333333;">British readers might also be interested in my earlier discussion
of specific issues around the application of the current law to British
citizens </span><a href="http://eulawanalysis.blogspot.com/2018/12/uk-citizens-as-non-eu-citizens-in-eu.html" style="font-family: Arial, sans-serif;"><span style="color: #992211;">here</span></a><span face="Arial, sans-serif" style="color: #333333;">, although they will also find a little
bit of Anglo action in this blog post. (Note that Denmark and Ireland have an
opt out; and although the UK had also opted out of the current law while it was
a Member State, ironically it is more relevant to Brits post-Brexit, in their
new role as non-EU citizens).</span></p>
<p class="MsoNormal" style="background: white; line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto; text-align: justify;"><span face=""Arial",sans-serif" style="color: #333333; mso-fareast-font-family: "Times New Roman"; mso-fareast-language: EN-GB;">The following comments are based on the text as
agreed by Member States on November 23, which was not made public at the time. Update, November 29: the text is <a href="https://data.consilium.europa.eu/doc/document/ST-16000-2023-INIT/en/pdf">now public</a>. <o:p></o:p></span></p>
<p class="MsoNormal" style="background: white; line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto; text-align: justify;"><b><span face=""Arial",sans-serif" style="color: #333333; mso-fareast-font-family: "Times New Roman"; mso-fareast-language: EN-GB;"> </span></b><span face=""Arial",sans-serif" style="color: #333333; mso-fareast-font-family: "Times New Roman"; mso-fareast-language: EN-GB;"><o:p></o:p></span></p>
<p class="MsoNormal" style="background: white; line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto; text-align: justify;"><b><span face=""Arial",sans-serif" style="color: #333333; mso-fareast-font-family: "Times New Roman"; mso-fareast-language: EN-GB;">Personal scope: who is covered?</span></b><span face=""Arial",sans-serif" style="color: #333333; mso-fareast-font-family: "Times New Roman"; mso-fareast-language: EN-GB;"><o:p></o:p></span></p>
<p class="MsoNormal" style="background: white; line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto; text-align: justify;"><span face=""Arial",sans-serif" style="color: #333333; mso-fareast-font-family: "Times New Roman"; mso-fareast-language: EN-GB;">The current law on EU long-term resident (LTR)
status excludes from its scope: students; people who have obtained or applied
for temporary protection or a purely national form of protection;
asylum-seekers; those who reside ‘solely on temporary grounds such as au pair
or seasonal worker, or as workers posted by a service provider for the purposes
of cross-border provision of services, or as cross-border providers of services
or in cases where their residence permit has been formally limited’; and
diplomats as defined by the relevant international treaties. As a result of
Brexit, British citizens in the EU implicitly moved within the scope of the EU
LTR law once their EU citizenship ceased due to Brexit. (The CJEU has <a href="http://eulawanalysis.blogspot.com/2022/06/its-end-but-moment-has-been-prepared.html">confirmed</a>
this loss of EU citizenship).<o:p></o:p></span></p>
<p class="MsoNormal" style="background: white; line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto; text-align: justify;"><span face=""Arial",sans-serif" style="color: #333333; mso-fareast-font-family: "Times New Roman"; mso-fareast-language: EN-GB;">The <b><u>Council version</u></b> has accepted the
Commission’s proposal to drop the exclusion of those whose ‘residence permit
has been formally limited’, on the grounds of imprecision: according to the
Commission proposal’s explanatory memorandum, ‘its interpretation led to legal
uncertainty in the transposition and implementation by Member States’. Indeed,
the relevant CJEU case law (<i><a href="https://curia.europa.eu/juris/document/document.jsf?text=&docid=128643&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=6351923"><span style="color: #992211;">Singh</span></a></i>) is rather vague – establishing that
the ‘formally limited’ exception is different from the ‘temporary grounds’
exception and has a common EU meaning, but not clearly explaining what that
common meaning is. <o:p></o:p></span></p>
<p class="MsoNormal" style="background: white; line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto; text-align: justify;"><span face=""Arial",sans-serif" style="color: #333333; mso-fareast-font-family: "Times New Roman"; mso-fareast-language: EN-GB;">The rest of the exclusions remain intact, and the <b><u>Council
version</u></b> seeks to exclude more groups explicitly: intra-corporate transferees
and those whose expulsion is suspended, and adding ‘job search’ as an example
of a group excluded by the ‘temporary grounds’ exception. (Note that the CJEU has
<a href="https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A62020CJ0624">ruled</a>
that this exception does not exclude non-EU family members of EU citizens who
have <i>not</i> left their Member State of nationality – a group known
to EU lawyers as <i>Zambrano</i> cases – from the scope of the EU Directive).
<o:p></o:p></span></p>
<p class="MsoNormal" style="background: white; line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto; text-align: justify;"><span face=""Arial",sans-serif" style="color: #333333; mso-fareast-font-family: "Times New Roman"; mso-fareast-language: EN-GB;">These exclusions are obviously important in
particular to millions who fled the Russian invasion of Ukraine and obtained
temporary protection in the EU (see discussion of EU temporary protection for
them <a href="http://eulawanalysis.blogspot.com/2022/02/temporary-protection-for-ukrainians-in.html"><span style="color: #992211;">here</span></a>). However, as discussed next, this is not
quite the end of the story: there is an issue of whether and how to consider
the time spent on the territory as part of an excluded group, if the person concerned
is subsequently allowed to stay on a basis which is <i>not</i> excluded from
the scope of the Directive.<o:p></o:p></span></p>
<p class="MsoNormal" style="background: white; line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto; text-align: justify;"><b><span face=""Arial",sans-serif" style="color: #333333; mso-fareast-font-family: "Times New Roman"; mso-fareast-language: EN-GB;"> </span></b><span face=""Arial",sans-serif" style="color: #333333; mso-fareast-font-family: "Times New Roman"; mso-fareast-language: EN-GB;"><o:p></o:p></span></p>
<p class="MsoNormal" style="background: white; line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto; text-align: justify;"><b><span face=""Arial",sans-serif" style="color: #333333; mso-fareast-font-family: "Times New Roman"; mso-fareast-language: EN-GB;">Obtaining the long-term residence
right</span></b><span face=""Arial",sans-serif" style="color: #333333; mso-fareast-font-family: "Times New Roman"; mso-fareast-language: EN-GB;"><o:p></o:p></span></p>
<p class="MsoNormal" style="background: white; line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto; text-align: justify;"><i><span face=""Arial",sans-serif" style="color: #333333; mso-fareast-font-family: "Times New Roman"; mso-fareast-language: EN-GB;">The five year waiting period</span></i><span face=""Arial",sans-serif" style="color: #333333; mso-fareast-font-family: "Times New Roman"; mso-fareast-language: EN-GB;"><o:p></o:p></span></p>
<p class="MsoNormal" style="background: white; line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto; text-align: justify;"><span face=""Arial",sans-serif" style="color: #333333; mso-fareast-font-family: "Times New Roman"; mso-fareast-language: EN-GB;">The current law requires Member States to grant EU
long-term residence status to non-EU citizens ‘who have resided legally and
continuously’ on the territory for five years before submitting an application.
It is necessary to apply in order for the status in order to obtain it (see <i><a href="https://curia.europa.eu/juris/document/document.jsf?text=&docid=129461&pageIndex=0&doclang=en&mode=lst&dir=&occ=first&part=1&cid=6613903"><span style="color: #992211;">Iida</span></a></i>): unlike status under free movement
law, EU LTR status for non-EU citizens is not conferred automatically once the
conditions are met. There are currently no exclusions from the five-year
waiting period for family members (see the <i><a href="https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A62013CJ0469"><span style="color: #992211;">Tahir</span></a></i> case). The 2022 proposal
retains the five-year rule, although a new review clause would require the
Commission to report two years after the deadline to apply the new law on the
prospects of shortening the waiting period, and there would be an exception for
some family members as well as a shorter waiting period following a move to
another Member State, both discussed below. (The <b><u>Council version </u></b>has
accepted the changes on future reports and second Member States, but – spoiler!
– rejected the change on family members).<o:p></o:p></span></p>
<p class="MsoNormal" style="background: white; line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto; text-align: justify;"><span face=""Arial",sans-serif" style="color: #333333; mso-fareast-font-family: "Times New Roman"; mso-fareast-language: EN-GB;">There are some further rules about calculation of
this five-year time period. For those excluded from the scope of the current
law, it provides that no account should be taken of time spent on the territory
under the temporary grounds/formally limited exception, or as a diplomat. Half
the period spent as a student must be taken into account, if the student goes
on to obtain a different residence permit which can qualify for LTR status.
Similarly, if an asylum-seeker obtains refugee or subsidiary protection status,
at least half the time spent as an asylum-seeker must be taken into account; if
the asylum-seeker had to wait more than 18 months after the application was
lodged to obtain either form of international protection, <i>all</i> that
time counts. The text is silent on how to count time spent on the territory for
people who have obtained or applied for temporary protection or a purely
national form of protection.<o:p></o:p></span></p>
<p class="MsoNormal" style="background: white; line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto; text-align: justify;"><span face=""Arial",sans-serif" style="color: #333333; mso-fareast-font-family: "Times New Roman"; mso-fareast-language: EN-GB;">Those with refugee or subsidiary protection status
that has been revoked, ended or was not renewed under the terms of EU asylum
law cannot qualify for EU LTR status. Finally, as regards absences from the
territory during the five-year qualification period, those absences still count
towards the five-year period if they are ‘shorter than six consecutive months
and do not exceed in total 10 months within’ the five years. Member
States <i>may</i> also count longer absences if their national law
provides, for ‘specific or exceptional reasons of a temporary nature’, although
they have to stop the clock during these longer absences (unless the longer
absences are due to ‘secondment for employment purposes, including the
provision of cross-border services’, in which case they may count the longer
absence fully if they wish).<o:p></o:p></span></p>
<p class="MsoNormal" style="background: white; line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto; text-align: justify;"><span face=""Arial",sans-serif" style="color: #333333; mso-fareast-font-family: "Times New Roman"; mso-fareast-language: EN-GB;">The 2022 proposal would make four changes to these
rules. First, there would be a new general requirement to monitor the stay of
non-EU citizens before the five year period, in particular those who got their
residence permit on the basis of investment. The <b><u>Council version</u></b>
includes a vaguer version of this clause, with no specific reference to
investment.<o:p></o:p></span></p>
<p class="MsoNormal" style="background: white; line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto; text-align: justify;"><span face=""Arial",sans-serif" style="color: #333333; mso-fareast-font-family: "Times New Roman"; mso-fareast-language: EN-GB;">Secondly, there would be a new right to <i>cumulate</i> residence
in multiple Member States, provided that the last two years before the application
for LTR status were spent in the Member State where the application is made.
This builds on existing possibilities in EU law for cumulation of residence for
select groups of non-EU citizens (for <a href="http://eulawanalysis.blogspot.com/2021/05/the-revised-blue-card-directive-eus.html"><span style="color: #992211;">Blue Card holders</span></a>, ie highly skilled workers
admitted under an EU scheme). However, Member States would have to exclude
counting time spent in another Member State by a non-EU citizen who obtained a
residence permit due to investment in a different Member State. <o:p></o:p></span></p>
<p class="MsoNormal" style="background: white; line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto; text-align: justify;"><span face=""Arial",sans-serif" style="color: #333333; mso-fareast-font-family: "Times New Roman"; mso-fareast-language: EN-GB;">The <b><u>Council version </u></b>has accepted the cumulation
right in principle, but has curtailed it significantly. It would require the
last <i>three</i> years to be spent in the Member State of application, and
would only allow a total of two years in another Member State to be cumulated.
Most significantly, the right would only apply to selected groups: Blue Card
holders; holders of <i>national</i> residence permits for highly-skilled
workers, if they were allowed to move between Member States; intra-corporate
transferees and researchers as defined by EU law; and family members of any of
these groups, or of long-term residents themselves. The preamble vaguely
suggests that EU citizens’ non-EU family members could cumulate time periods in
multiple Member States too; but the details of this should really be placed in
the main text. There is also a vague preambular clause on British citizens,
saying that time spent under free movement law and the withdrawal agreement should
be cumulated; again it is not clear if the free movement law point applies to
multiple Member States. Anyway including Blue Card holders is a Potemkin
village: the revised Blue Card Directive already contains essentially more
generous rules on this issue for them. Also, the <b><u>Council version </u></b>would
defer the actual application in practice of the cumulation rules, until the
Commission and Council had worked out the logistics of cumulation.<o:p></o:p></span></p>
<p class="MsoNormal" style="background: white; line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto; text-align: justify;"><span face=""Arial",sans-serif" style="color: #333333; mso-fareast-font-family: "Times New Roman"; mso-fareast-language: EN-GB;">Thirdly, in the 2022 proposal, the rules on
counting five years’ residence would change for those who previously resided on
the basis of a status excluded from the scope of the LTR law. It would be explicit
that ‘[a]ny period of residence spent as a holder of a long-stay visa or
residence permit issued under Union or national law, including’ periods spent
on the basis of temporary or national protection, as a student, or on a
temporary basis, counts towards the five year period, as long as a more
long-lasting form of residence status has been obtained later. This would definitely
improve the position of those who previously resided as students or on a
temporary basis, and arguably confirm the existing position of those with temporary
or national protection – potentially important for millions of temporary protection
beneficiaries, among many other groups of people. However, the current rule of
taking into account only [at least] half the period spent as an asylum-seeker
(or all of the period if it takes 18 months to get refugee or subsidiary
protection status) would be retained.<o:p></o:p></span></p>
<p class="MsoNormal" style="background: white; line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto; text-align: justify;"><span face=""Arial",sans-serif" style="color: #333333; mso-fareast-font-family: "Times New Roman"; mso-fareast-language: EN-GB;">The <b><u>Council version</u></b> of this is mostly
much more restrictive. Previous time on the territory as one of the excluded
groups of people, in the event of being allowed to stay on a more permanent
basis afterward, would <i>only</i> count for intra-corporate transferees; it
would only be an <i>option</i> to count it as regards former students. Implicitly
it would not be possible for the other groups. This definitely reduces standards
as compared to the <i>current</i> law for students, and arguably for temporary
protection beneficiaries too. <o:p></o:p></span></p>
<p class="MsoNormal" style="background: white; line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto; text-align: justify;"><span face=""Arial",sans-serif" style="color: #333333; mso-fareast-font-family: "Times New Roman"; mso-fareast-language: EN-GB;">On the other hand, the <b><u>Council version</u></b>
would improve the position for refugees and subsidiary protection
beneficiaries, copying an agreement reached during negotiations on asylum law.
All the time previously spent as an asylum-seeker would count, although if beneficiaries
of international protection were on the territory of another Member State
without authorisation, the clock would be reset and they would have to start
accumulating five years’ residence from scratch, unless they were in that second
Member State due to circumstances outside their control.<o:p></o:p></span></p>
<p class="MsoNormal" style="background: white; line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto; text-align: justify;"><span face=""Arial",sans-serif" style="color: #333333; mso-fareast-font-family: "Times New Roman"; mso-fareast-language: EN-GB;">Finally, a new clause on family members, discussed
further below, would allow for the right to LTR status for the children of EU
LTRs who are born or adopted on the territory of the Member State which granted
the LTR permit, without waiting for the five-year period. An application for
LTR status would still be necessary. However, the <b><u>Council version </u></b>refused
to accept this; although it is possible to adopt ‘more favourable provisions’
for the family members concerned as an option, it is not clear if that can
extend to obtaining LTR status early. <o:p></o:p></span></p>
<p class="MsoNormal" style="background: white; line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto; text-align: justify;"><i><span face=""Arial",sans-serif" style="color: #333333; mso-fareast-font-family: "Times New Roman"; mso-fareast-language: EN-GB;"><span style="mso-spacerun: yes;"> </span> </span></i><span face=""Arial",sans-serif" style="color: #333333; mso-fareast-font-family: "Times New Roman"; mso-fareast-language: EN-GB;"><o:p></o:p></span></p>
<p class="MsoNormal" style="background: white; line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto; text-align: justify;"><i><span face=""Arial",sans-serif" style="color: #333333; mso-fareast-font-family: "Times New Roman"; mso-fareast-language: EN-GB;">Other conditions</span></i><span face=""Arial",sans-serif" style="color: #333333; mso-fareast-font-family: "Times New Roman"; mso-fareast-language: EN-GB;"><o:p></o:p></span></p>
<p class="MsoNormal" style="background: white; line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto; text-align: justify;"><span face=""Arial",sans-serif" style="color: #333333; mso-fareast-font-family: "Times New Roman"; mso-fareast-language: EN-GB;">First of all, the EU LTR law requires Member States
to ensure that non-EU citizens have ‘stable and regular resources’ and
‘sickness insurance’ in order to obtain LTR status. The ‘resources’ requirement
is further defined; such resources must be:<o:p></o:p></span></p>
<p class="MsoNormal" style="background: white; line-height: normal; margin-left: 36pt; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto; text-align: justify;"><span face=""Arial",sans-serif" style="color: #333333; mso-fareast-font-family: "Times New Roman"; mso-fareast-language: EN-GB;">…sufficient to maintain
himself/herself and the members of his/her family, without recourse to the
social assistance system of the Member State concerned. Member States shall
evaluate these resources by reference to their nature and regularity and may
take into account the level of minimum wages and pensions prior to the
application for long-term resident status;<o:p></o:p></span></p>
<p class="MsoNormal" style="background: white; line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto; text-align: justify;"><span face=""Arial",sans-serif" style="color: #333333; mso-fareast-font-family: "Times New Roman"; mso-fareast-language: EN-GB;">The current law defines the ‘sickness insurance’
requirement to cover ‘all risks normally covered for his/her own nationals in
the Member State concerned’.<o:p></o:p></span></p>
<p class="MsoNormal" style="background: white; line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto; text-align: justify;"><span face=""Arial",sans-serif" style="color: #333333; mso-fareast-font-family: "Times New Roman"; mso-fareast-language: EN-GB;">In the 2022 proposal, the sickness insurance
requirement would not be modified as such, but the resources requirement would
be amended to state that the resources can be ‘also made available by a third
party’, and that ‘Member States may indicate a certain sum as a reference
amount, but they may not impose a minimum income level, below which all
applications for EU long-term resident status would be refused, irrespective of
an actual examination of the situation of each applicant.’ (There would also be
new rules on comparison with applications for national LTR status, what happens
if an applicant already has national LTR status, and an exemption for certain
family members; these issues are discussed further below).<o:p></o:p></span></p>
<p class="MsoNormal" style="background: white; line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto; text-align: justify;"><span face=""Arial",sans-serif" style="color: #333333; mso-fareast-font-family: "Times New Roman"; mso-fareast-language: EN-GB;">The first of these amendments reflects the CJEU
case law on the resources requirement. In the <a href="https://curia.europa.eu/juris/document/document.jsf?text=&docid=218624&pageIndex=0&doclang=en&mode=lst&dir=&occ=first&part=1&cid=6619252"><i><span style="color: #992211;">X </span></i><span style="color: #992211;">judgment</span></a>,
the Court ruled that the resources rule was an autonomous rule of EU law, not
defined by national law, and that the resources could be provided by third
parties (in that case, a brother of the applicant for LTR status). It was
nevertheless important that the resources be ‘stable’ and ‘regular’, as the EU
law requires; in that context, the relationship with the family member, and
whether the support was based on a legal requirement, could be
relevant. <o:p></o:p></span></p>
<p class="MsoNormal" style="background: white; line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto; text-align: justify;"><span face=""Arial",sans-serif" style="color: #333333; mso-fareast-font-family: "Times New Roman"; mso-fareast-language: EN-GB;">However, the <b><u>Council version</u></b> would
again reduce standards below the level of the current law, as interpreted by
the CJEU; the (qualified) obligation to take account of the resources supplied
by third parties (such as family members) would only be an <i>option</i> for
Member States. <o:p></o:p></span></p>
<p class="MsoNormal" style="background: white; line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto; text-align: justify;"><span face=""Arial",sans-serif" style="color: #333333; mso-fareast-font-family: "Times New Roman"; mso-fareast-language: EN-GB;">In the current law, Member States also have an
option to require compliance with ‘integration conditions’ in order to obtain
EU LTR status. The 2022 proposal would not alter this optional obligation
(except as regards comparison with rules for national LTR status and exemptions
for family members, both discussed below). There is CJEU case law that
indirectly addresses these requirements: <i><a href="https://curia.europa.eu/juris/document/document.jsf?text=&docid=164725&pageIndex=0&doclang=en&mode=lst&dir=&occ=first&part=1&cid=517419"><span style="color: #992211;">P and S</span></a></i>, discussed <a href="http://eulawanalysis.blogspot.com/2015/06/integration-requirements-for-third.html"><span style="color: #992211;">here</span></a>, in which the Court ruled that an
integration requirement imposed <i>after</i> getting LTR status was
acceptable, subject to being proportionate. The <b><u>Council’s position</u></b>
would alter the current law by stating that integration conditions may in particular
concern learning the national language of the Member State; but this reflects
how integration conditions are applied in practice anyway. (The preamble of the
2022 proposal also refers to language acquisition). <o:p></o:p></span></p>
<p class="MsoNormal" style="background: white; line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto; text-align: justify;"><span face=""Arial",sans-serif" style="color: #333333; mso-fareast-font-family: "Times New Roman"; mso-fareast-language: EN-GB;">Next, Member States may reject applications on
grounds of public policy and public security, subject to the requirement that:<o:p></o:p></span></p>
<p class="MsoNormal" style="background: white; line-height: normal; margin-left: 36pt; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto; text-align: justify;"><span face=""Arial",sans-serif" style="color: #333333; mso-fareast-font-family: "Times New Roman"; mso-fareast-language: EN-GB;">When taking the relevant decision,
the Member State shall consider the severity or type of offence against public
policy or public security, or the danger that emanates from the person
concerned, while also having proper regard to the duration of residence and to
the existence of links with the country of residence<o:p></o:p></span></p>
<p class="MsoNormal" style="background: white; line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto; text-align: justify;"><span face=""Arial",sans-serif" style="color: #333333; mso-fareast-font-family: "Times New Roman"; mso-fareast-language: EN-GB;">The 2022 proposal would make no change to this
provision. Note that it has been the subject of case law: the CJEU <a href="https://curia.europa.eu/juris/document/document.jsf?text=&docid=230607&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=5988437"><span style="color: #992211;">ruled in 2020</span></a> that a prior criminal
conviction cannot automatically exclude a non-EU citizen from obtaining EU LTR
status; there must be a ‘specific assessment’ of each applicant, taking into
account the offence committed, the degree of risk to public policy and
security, the length of residence and the strength of links with that
State. <o:p></o:p></span></p>
<p class="MsoNormal" style="background: white; line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto; text-align: justify;"><span face=""Arial",sans-serif" style="color: #333333; mso-fareast-font-family: "Times New Roman"; mso-fareast-language: EN-GB;">Finally, the 2022 proposal would delete an odd
provision in the current law, which states that in the process of applying for
LTR status, the evidence submitted to show that the non-EU citizen meets the
conditions to obtain LTR status ‘may also include documentation with regard to
appropriate accommodation’. It is not clear if this allows Member States to
impose a further requirement for the applicant to show that he or she has
adequate accommodation; but if the clause is deleted, the point is moot. But
the <b><u>Council version</u></b> would retain it, clarifying it to state that
the evidence regarding accommodation would be part of the assessment of the
resources requirement.<o:p></o:p></span></p>
<p class="MsoNormal" style="background: white; line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto; text-align: justify;"><span face=""Arial",sans-serif" style="color: #333333; mso-fareast-font-family: "Times New Roman"; mso-fareast-language: EN-GB;"> <o:p></o:p></span></p>
<p class="MsoNormal" style="background: white; line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto; text-align: justify;"><b><span face=""Arial",sans-serif" style="color: #333333; mso-fareast-font-family: "Times New Roman"; mso-fareast-language: EN-GB;">The application process and
procedural rights</span></b><span face=""Arial",sans-serif" style="color: #333333; mso-fareast-font-family: "Times New Roman"; mso-fareast-language: EN-GB;"><o:p></o:p></span></p>
<p class="MsoNormal" style="background: white; line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto; text-align: justify;"><span face=""Arial",sans-serif" style="color: #333333; mso-fareast-font-family: "Times New Roman"; mso-fareast-language: EN-GB;">The 2022 proposal would retain the current rule
that a Member State should decide on an application for EU LTR status within
six months. However, the possibility of extensions in ‘exceptional’ cases would
be dropped, replaced by a clause providing for the authorities to request
further information if they need clarification relating to an application.
There would be a new rule for those who already have national LTR status
(discussed further below). The <b><u>Council version</u></b> would keep the
possibility of exceptional extensions, albeit limiting it to a 60-day maximum. <o:p></o:p></span></p>
<p class="MsoNormal" style="background: white; line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto; text-align: justify;"><span face=""Arial",sans-serif" style="color: #333333; mso-fareast-font-family: "Times New Roman"; mso-fareast-language: EN-GB;">As for procedural guarantees, the current law
requires reasons to be given for refusing applications or withdrawing status,
notification of decisions (specifying redress procedures and time limits), and
the right to ‘mount a legal challenge’ to rejections of applications, or
withdrawals, loss or non-renewal of EU LTR status.<o:p></o:p></span></p>
<p class="MsoNormal" style="background: white; line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto; text-align: justify;"><span face=""Arial",sans-serif" style="color: #333333; mso-fareast-font-family: "Times New Roman"; mso-fareast-language: EN-GB;">There would be an ostensibly new rule on fees,
providing that while Member States may require fees for handling applications
for EU LTR status, those fees ‘shall not be disproportionate or excessive’. In
fact this reflects CJEU case law (see <i><a href="https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:62010CJ0508"><span style="color: #992211;">Commission v Netherlands</span></a></i> and <i><a href="https://curia.europa.eu/juris/document/document.jsf?text=&docid=166761&pageIndex=0&doclang=en&mode=lst&dir=&occ=first&part=1&cid=4059698"><span style="color: #992211;">CGIL and INCA</span></a></i>).<o:p></o:p></span></p>
<p class="MsoNormal" style="background: white; line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto; text-align: justify;"><span face=""Arial",sans-serif" style="color: #333333; mso-fareast-font-family: "Times New Roman"; mso-fareast-language: EN-GB;">As regards both fees and procedural guarantees
(including time limits to decide on applications), Member States would have to
extend any more favourable treatment which they accord to holders of or
applicants for national LTR status to applicants for or holders of EU LTR
status (see further below). However, the <b><u>Council version</u></b> would
drop this requirement as regards time limits.<o:p></o:p></span></p>
<p class="MsoNormal" style="background: white; line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto; text-align: justify;"><span face=""Arial",sans-serif" style="color: #333333; mso-fareast-font-family: "Times New Roman"; mso-fareast-language: EN-GB;"> <o:p></o:p></span></p>
<p class="MsoNormal" style="background: white; line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto; text-align: justify;"><b><span face=""Arial",sans-serif" style="color: #333333; mso-fareast-font-family: "Times New Roman"; mso-fareast-language: EN-GB;">Equal treatment rights</span></b><span face=""Arial",sans-serif" style="color: #333333; mso-fareast-font-family: "Times New Roman"; mso-fareast-language: EN-GB;"><o:p></o:p></span></p>
<p class="MsoNormal" style="background: white; line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto; text-align: justify;"><span face=""Arial",sans-serif" style="color: #333333; mso-fareast-font-family: "Times New Roman"; mso-fareast-language: EN-GB;">The current law provides that EU LTRs are entitled
to equal treatment with nationals as regards: access to employment and
self-employment (with an exception for activities involving ‘public
authority’); working conditions; education and vocational training, including
study grants; recognition of professional qualifications; social security,
social assistance and social protection, as defined by national law; tax
benefits; access to goods and services, including procedures for obtaining
housing; freedom of association; and access to the territory of the Member
State granting LTR status. However, Member States can impose a residence
condition for the LTR or his/her family members for some aspects of equal
treatment. They can also limit access to employment or self-employment where
existing rules only give access to EU citizens, and impose language or
educational requirements as regards access to education. Moreover, they can
limit access to social assistance and social protection to ‘core benefits’. The
equal treatment rules are ‘without prejudice’ to EU asylum law, as regards
refugees and people with subsidiary protection (and their family members); and
Member States have the right to set higher standards.<o:p></o:p></span></p>
<p class="MsoNormal" style="background: white; line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto; text-align: justify;"><span face=""Arial",sans-serif" style="color: #333333; mso-fareast-font-family: "Times New Roman"; mso-fareast-language: EN-GB;">The new proposal would amend the equal treatment
rules to: define social security by reference to <i>EU</i> law; add
access to private housing; drop the possibility of a residence condition for
family members; eliminate the ‘core benefits’ exception; provide for benefits
if an LTR moves to a non-EU country; and require the extension of any more
favourable national rules for national LTRs to those holding EU LTR status. The
<b><u>Council version</u></b> rejects the proposals as regards private housing
or residence conditions for family members, but accepts the others. <o:p></o:p></span></p>
<p class="MsoNormal" style="background: white; line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto; text-align: justify;"><span face=""Arial",sans-serif" style="color: #333333; mso-fareast-font-family: "Times New Roman"; mso-fareast-language: EN-GB;">This should be seen in light of the CJEU case law
on the equal treatment clause, which has: limited the use of the ‘core
benefits’ clause (<i><a href="https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A62010CJ0571"><span style="color: #992211;">Kamberaj</span></a></i>, which interpreted the exception
strictly in light of the EU Charter of Fundamental Rights and said that it
could not be used to exclude equal treatment for housing benefit, or apply if a
Member State had not declared its intention to use it; see also the <i><a href="https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A62020CJ0094"><span style="color: #992211;">KV</span></a></i> judgment); provided for family
members to get benefits despite not being resident (<i><a href="https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A62019CJ0303"><span style="color: #992211;">INPS</span></a></i>, where the Court again also adds a
condition of the Member State expressing its intention to use the exception);
and ruled that a lack of equal treatment as regards a family discount card is
in breach of the requirement of non-discrimination for access to goods and
services (<i><a href="https://curia.europa.eu/juris/document/document.jsf?text=&docid=248292&pageIndex=0&doclang=en&mode=lst&dir=&occ=first&part=1&cid=6639836"><span style="color: #992211;">ASGI</span></a></i>, again referring to the condition of
a Member State stating an intention to derogate).<o:p></o:p></span></p>
<p class="MsoNormal" style="background: white; line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto; text-align: justify;"><span face=""Arial",sans-serif" style="color: #333333; mso-fareast-font-family: "Times New Roman"; mso-fareast-language: EN-GB;"> <o:p></o:p></span></p>
<p class="MsoNormal" style="background: white; line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto; text-align: justify;"><b><span face=""Arial",sans-serif" style="color: #333333; mso-fareast-font-family: "Times New Roman"; mso-fareast-language: EN-GB;">Loss of status and expulsion</span></b><span face=""Arial",sans-serif" style="color: #333333; mso-fareast-font-family: "Times New Roman"; mso-fareast-language: EN-GB;"><o:p></o:p></span></p>
<p class="MsoNormal" style="background: white; line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto; text-align: justify;"><span face=""Arial",sans-serif" style="color: #333333; mso-fareast-font-family: "Times New Roman"; mso-fareast-language: EN-GB;">The current law requires Member States to remove
LTR status in the event of its ‘fraudulent acquisition’, following an expulsion
measure, or due to absence from EU territory of 12 months. But Member States
have an option to allow longer absences in general, or for ‘specific or
exceptional reasons’. There is an option to remove LTR status where the person
concerned is a ‘threat to public policy’ that falls short of the grounds for
expulsion. Member States may also withdraw LTR status for people who have lost
international protection status in accordance with EU asylum law. LTR status in
one Member State is also lost once another Member State has granted it, or
after six years’ absence from a single Member State’s territory; a Member State
may allow such LTR status to stay after six years’ absence for ‘specific
reasons’. Where LTR status is lost due to absence, a Member State
must provide a facilitated procedure to get it back, ‘in particular’ for those
who moved to another Member State to study; the process and details of this are
left to national law. If LTR status is lost but the former LTR is not removed,
a Member State must allow the former LTR to stay if they meet the conditions to
stay under national law (on which, see the 2019 <a href="https://curia.europa.eu/juris/document/document.jsf?text=&docid=211702&pageIndex=0&doclang=en&mode=lst&dir=&occ=first&part=1&cid=6648682"><i><span style="color: #992211;">YZ</span></i><span style="color: #992211;"> judgment</span></a>).<o:p></o:p></span></p>
<p class="MsoNormal" style="background: white; line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto; text-align: justify;"><span face=""Arial",sans-serif" style="color: #333333; mso-fareast-font-family: "Times New Roman"; mso-fareast-language: EN-GB;">The 2022 proposal would change these rules to refer
to a ‘decision ending the legal stay’ instead of expulsion or removal (to match
the wording of the EU <a href="https://eur-lex.europa.eu/legal-content/EN/ALL/?uri=celex%3A32008L0115"><span style="color: #992211;">Returns Directive</span></a>), and allow an absence from
the EU of 24 months, not 12. However, the option to permit longer absences than
that would be limited to cases of ‘specific or exceptional reasons’. The
facilitated process to get LTR status back would no longer be left to national
law; there would be a mandatory exemption from integration requirements and
optional exemptions from the waiting period and resources and sickness
insurance conditions. (The <b><u>Council version</u></b> would set a three-year
time limit on the mandatory exemption from integration requirements)<o:p></o:p></span></p>
<p class="MsoNormal" style="background: white; line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto; text-align: justify;"><span face=""Arial",sans-serif" style="color: #333333; mso-fareast-font-family: "Times New Roman"; mso-fareast-language: EN-GB;">Note that a recent judgment of the CJEU,
discussed <a href="http://eulawanalysis.blogspot.com/2022/01/residents-of-everywhere-cjeu-rules-on.html"><span style="color: #992211;">here</span></a>, interpreted the 12-month absence rule
generously, providing that a return for a few days during that period could
interrupt the absence and so start the clock on the 12-month period anew.
Presumably that would apply equally to the longer 24-month period of absence
now being proposed. On the other hand, the <a href="https://curia.europa.eu/juris/document/document.jsf?text=&docid=211702&pageIndex=0&doclang=en&mode=lst&dir=&occ=first&part=1&cid=6648682"><i><span style="color: #992211;">YZ</span></i><span style="color: #992211;"> judgment</span></a> was
less generous as regards fraud, ruling that LTR status could be lost even if
the applicant was unaware that the documentation was fraudulent.<o:p></o:p></span></p>
<p class="MsoNormal" style="background: white; line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto; text-align: justify;"><span face=""Arial",sans-serif" style="color: #333333; mso-fareast-font-family: "Times New Roman"; mso-fareast-language: EN-GB;">Again, the <b><u>Council version</u></b> would be (overall)
less generous than the current law, as interpreted by the CJEU. Its version would
provide for the loss of LTR status in the event of not having the ‘main residence’
in the EU, either for 18 consecutive months, or for 18 cumulative months in one
of the five year periods since the LTR permit was first granted. Member States
would have an option to be more generous. And current standards would also be
lowered by making it <i>mandatory</i> to remove LTR status where the person
concerned is a ‘threat to public policy’ that falls short of the grounds for
expulsion.<o:p></o:p></span></p>
<p class="MsoNormal" style="background: white; line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto; text-align: justify;"><span face=""Arial",sans-serif" style="color: #333333; mso-fareast-font-family: "Times New Roman"; mso-fareast-language: EN-GB;">As for expulsion, the current law provides that
Member States can ‘solely’ expel an EU LTR where there is ‘an actual and
sufficiently serious threat to public policy or public security’. This decision
‘shall not be founded on economic considerations’, and Member States must
consider the duration of residence, the age of the LTR, the consequences for
the LTR and family members, and the links with the Member State and the country
of origin. There must be judicial redress against expulsion, legal aid must be
granted ‘on the same terms’ as nationals, and there are special rules if the
LTR has international protection.<o:p></o:p></span></p>
<p class="MsoNormal" style="background: white; line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto; text-align: justify;"><span face=""Arial",sans-serif" style="color: #333333; mso-fareast-font-family: "Times New Roman"; mso-fareast-language: EN-GB;">The 2022 proposal would amend these rules only as
regards cross-references to the Returns Directive. CJEU case law is relevant
here: the Court has confirmed that a criminal conviction is not sufficient by
itself to justify expulsion, but that the various factors listed in the law
must be fully taken into account (<i><a href="https://curia.europa.eu/juris/document/document.jsf?text=&docid=197528&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=6650074"><span style="color: #992211;">Lopez Pastuzano</span></a></i>, discussed <a href="http://eulawanalysis.blogspot.com/2017/12/the-security-of-status-of-long-term-non.html"><span style="color: #992211;">here</span></a>; <i><a href="https://curia.europa.eu/juris/document/document.jsf?text=&docid=227296&pageIndex=0&doclang=en&mode=lst&dir=&occ=first&part=1&cid=6648682"><span style="color: #992211;">WT</span></a></i>; see also <i><a href="https://curia.europa.eu/juris/document/document.jsf?text=&docid=116127&pageIndex=0&doclang=en&mode=lst&dir=&occ=first&part=1&cid=6648682"><span style="color: #992211;">Ziebell</span></a></i>).<o:p></o:p></span></p>
<p class="MsoNormal" style="background: white; line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto; text-align: justify;"><b><span face=""Arial",sans-serif" style="color: #333333; mso-fareast-font-family: "Times New Roman"; mso-fareast-language: EN-GB;"> </span></b><span face=""Arial",sans-serif" style="color: #333333; mso-fareast-font-family: "Times New Roman"; mso-fareast-language: EN-GB;"><o:p></o:p></span></p>
<p class="MsoNormal" style="background: white; line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto; text-align: justify;"><b><span face=""Arial",sans-serif" style="color: #333333; mso-fareast-font-family: "Times New Roman"; mso-fareast-language: EN-GB;">Family members</span></b><span face=""Arial",sans-serif" style="color: #333333; mso-fareast-font-family: "Times New Roman"; mso-fareast-language: EN-GB;"><o:p></o:p></span></p>
<p class="MsoNormal" style="background: white; line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto; text-align: justify;"><span face=""Arial",sans-serif" style="color: #333333; mso-fareast-font-family: "Times New Roman"; mso-fareast-language: EN-GB;">A wholly new clause in the 2022 proposal contains a
number of special rules for family members. First, children of EU LTRs born or
adopted in the territory could obtain LTR status immediately following an
application, waiving the waiting period and the resources, sickness insurance
and integration rules. Second, family members of EU LTRs would only have to
comply with integration requirements in the <a href="https://eur-lex.europa.eu/legal-content/en/ALL/?uri=celex%3A32003L0086"><span style="color: #992211;">family reunion Directive</span></a> after family
reunion has been granted. Third, the application of EU LTRs’ family members would
be fast-tracked, and they would benefit from some of the procedural rights in
the proposed LTR law. Next, family members of EU LTRs would be exempt from
labour market tests as regards access to employment. Finally, any more
favourable rules for family members of national LTRs relating to these issues
must be extended to family members of EU LTRs.<o:p></o:p></span></p>
<p class="MsoNormal" style="background: white; line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto; text-align: justify;"><span face=""Arial",sans-serif" style="color: #333333; mso-fareast-font-family: "Times New Roman"; mso-fareast-language: EN-GB;">The <b><u>Council version</u></b> would gut almost
all of this part of the proposal. There would be no early or simplified acquisition
of LTR status for those born or adopted on the territory – only residence
permits issued on the same basis as family members who were admitted from
another country. There would be no deferral of integration requirements until after
family reunion was granted, and no equal treatment as regards family members. The
time limit to decide on applications would be cut from nine months to six
months, but not 90 days as the Commission proposed. Only the immediate access
of family members to the labour market remains unscathed. <span style="mso-spacerun: yes;"> </span><o:p></o:p></span></p>
<p class="MsoNormal" style="background: white; line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto; text-align: justify;"><b><span face=""Arial",sans-serif" style="color: #333333; mso-fareast-font-family: "Times New Roman"; mso-fareast-language: EN-GB;"> </span></b><span face=""Arial",sans-serif" style="color: #333333; mso-fareast-font-family: "Times New Roman"; mso-fareast-language: EN-GB;"><o:p></o:p></span></p>
<p class="MsoNormal" style="background: white; line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto; text-align: justify;"><b><span face=""Arial",sans-serif" style="color: #333333; mso-fareast-font-family: "Times New Roman"; mso-fareast-language: EN-GB;">Relationship with national LTR status</span></b><span face=""Arial",sans-serif" style="color: #333333; mso-fareast-font-family: "Times New Roman"; mso-fareast-language: EN-GB;"><o:p></o:p></span></p>
<p class="MsoNormal" style="background: white; line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto; text-align: justify;"><span face=""Arial",sans-serif" style="color: #333333; mso-fareast-font-family: "Times New Roman"; mso-fareast-language: EN-GB;">A key feature of the existing and proposed EU LTR
law is that the EU law does not fully harmonise national law on LTR status: it
sits in parallel to it. Under the current law, Member States may still issue
national LTR permits on a ‘more favourable basis’ than the EU rules; but such
permits do <i>not</i> confer the right to move to other Member
States, as confirmed by the CJEU in the <i><a href="https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A62013CJ0469"><span style="color: #992211;">Tahir</span></a></i> case.<o:p></o:p></span></p>
<p class="MsoNormal" style="background: white; line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto; text-align: justify;"><span face=""Arial",sans-serif" style="color: #333333; mso-fareast-font-family: "Times New Roman"; mso-fareast-language: EN-GB;">Under the proposal, the capacity to issue national
long-term residence permits is retained, but the reference to ‘more favourable
conditions’ for them would be dropped. This is because the proposal would
require non-discrimination between national law on LTR status and EU LTR status
in a number of areas. (This approach to the relationship between EU and
national immigration law was pioneered in the recent revision of the Blue Card
directive for highly-skilled workers: see discussion <a href="http://eulawanalysis.blogspot.com/2021/05/the-revised-blue-card-directive-eus.html#:~:text=A%20Blue%20Card%20must%20be,first%20two%20years%20of%20residence."><span style="color: #992211;">here</span></a>).<o:p></o:p></span></p>
<p class="MsoNormal" style="background: white; line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto; text-align: justify;"><span face=""Arial",sans-serif" style="color: #333333; mso-fareast-font-family: "Times New Roman"; mso-fareast-language: EN-GB;">In particular, Member States would have to extend
to applicants for EU LTR status any more favourable rules relating to applicants
for national LTR status as regards resources, integration conditions,
procedural guarantees (including time limits to decide on applications), fees
for applications, equal treatment, and family members. The <b><u>Council version</u></b>
only accepts some of this, though: it would retain only equal treatment as regards
procedures (but <i>not</i> time limits), fees, and equal treatment.<o:p></o:p></span></p>
<p class="MsoNormal" style="background: white; line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto; text-align: justify;"><span face=""Arial",sans-serif" style="color: #333333; mso-fareast-font-family: "Times New Roman"; mso-fareast-language: EN-GB;">A separate issue is the relationship between
national and EU LTR status. Can both types of status be held, or do non-EU
citizens have to choose between one or the other? The current law is not
explicit on this issue – and neither is the 2022 proposal. Member States have
interpreted it differently in practice, and the case law has not addressed the
point yet.<o:p></o:p></span></p>
<p class="MsoNormal" style="background: white; line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto; text-align: justify;"><span face=""Arial",sans-serif" style="color: #333333; mso-fareast-font-family: "Times New Roman"; mso-fareast-language: EN-GB;">The 2022 proposal addresses the link between the
two from a different angle, providing that if an applicant for an EU LTR status
already has a national LTR status, the applicant is exempt from the conditions
of resources, sickness insurance and integration, provided that ‘compliance
with those conditions was already verified in the context of the application
for the national residence permit’. But this does not tell us whether the
application for EU status can come in addition to national LTR status, or must
be a replacement for national status, or whether Member States can choose which
of those two approaches they prefer. (It does necessarily mean that holding
national LTR status cannot rule out applying for EU LTR status in future). In
any event, the <b><u>Council version</u></b> of this clause weakens it considerably,
providing that Member States only have an <i>option</i> not to require the
application of the resources and sickness insurance requirements in such cases;
and there is no provision to drop the integration condition. <o:p></o:p></span></p>
<p class="MsoNormal" style="background: white; line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto; text-align: justify;"><b><span face=""Arial",sans-serif" style="color: #333333; mso-fareast-font-family: "Times New Roman"; mso-fareast-language: EN-GB;"><o:p> </o:p></span></b></p>
<p class="MsoNormal" style="background: white; line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto; text-align: justify;"><b><span face=""Arial",sans-serif" style="color: #333333; mso-fareast-font-family: "Times New Roman"; mso-fareast-language: EN-GB;">Movement between Member States<o:p></o:p></span></b></p>
<p class="MsoNormal" style="background: white; line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto; text-align: justify;"><span face=""Arial",sans-serif" style="color: #333333; mso-fareast-font-family: "Times New Roman"; mso-fareast-language: EN-GB;">The current law provides that EU LTRs can move to
other Member States on grounds of ‘exercise of an economic activity in an
employed or self-employed capacity’, ‘pursuit of studies or vocational
training’ or ‘other purposes’. The 2022 proposal retains this basic clause.<o:p></o:p></span></p>
<p class="MsoNormal" style="background: white; line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto; text-align: justify;"><span face=""Arial",sans-serif" style="color: #333333; mso-fareast-font-family: "Times New Roman"; mso-fareast-language: EN-GB;">However, the current law allows for limits on the
right. Member States can apply a labour market or preference test for those EU
LTRs who move for the purposes of employment or self-employment. They can also
retain pre-existing quotas on the number of non-EU citizens who move to their
territory. The 2022 proposal would delete both of these limits; but the <b><u>Council
version</u></b> would retain the possible labour market or preference test.<o:p></o:p></span></p>
<p class="MsoNormal" style="background: white; line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto; text-align: justify;"><span face=""Arial",sans-serif" style="color: #333333; mso-fareast-font-family: "Times New Roman"; mso-fareast-language: EN-GB;">Some groups of workers are excluded from the scope
of the current (and proposed) law: EU LTRs posted by their employer to perform
services, or who provide services themselves; those moving as seasonal workers
(Member States can decide the conditions for this group under their national
law); and cross-border workers (who can similarly be ‘subject to specific
provisions of national law’).<o:p></o:p></span></p>
<p class="MsoNormal" style="background: white; line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto; text-align: justify;"><i><span face=""Arial",sans-serif" style="color: #333333; mso-fareast-font-family: "Times New Roman"; mso-fareast-language: EN-GB;">Conditions for moving</span></i><span face=""Arial",sans-serif" style="color: #333333; mso-fareast-font-family: "Times New Roman"; mso-fareast-language: EN-GB;"><o:p></o:p></span></p>
<p class="MsoNormal" style="background: white; line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto; text-align: justify;"><span face=""Arial",sans-serif" style="color: #333333; mso-fareast-font-family: "Times New Roman"; mso-fareast-language: EN-GB;">The EU LTR has to apply for a residence permit in
the second Member State within three months of arrival. Under the current law,
each Member State has an option to consider applications made while the LTR is
still living in the first Member State; the proposed law would <i>require</i> Member
States to consider such applications. The <b><u>Council version</u></b> would keep
this as an option only.<o:p></o:p></span></p>
<p class="MsoNormal" style="background: white; line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto; text-align: justify;"><span face=""Arial",sans-serif" style="color: #333333; mso-fareast-font-family: "Times New Roman"; mso-fareast-language: EN-GB;">The second Member State <i>may</i> require
‘stable and regular resources’ and sickness insurance as a condition for the
LTR to get a residence permit there. This differs from the <i>obligation</i> for
the first Member State to impose such requirements before LTR status is
obtained there (as discussed further in the first blog post). The wording of
these conditions is otherwise currently identical to the wording which applies
to the conditions to get LTR status in the first Member State.<o:p></o:p></span></p>
<p class="MsoNormal" style="background: white; line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto; text-align: justify;"><span face=""Arial",sans-serif" style="color: #333333; mso-fareast-font-family: "Times New Roman"; mso-fareast-language: EN-GB;">The 2022 proposal adds that the resources can be
‘also made available by a third party’, which matches the proposed amendment to
the conditions for getting LTR status in the first Member State, which takes
account of the case law on the latter point. However, the 2022 proposal
does <i>not</i> match the proposal to add other new wording to the
conditions for getting LTR status in the first Member State, on use of a
reference amount, but not a minimum income level which applies automatically.
The <b><u>Council version</u></b> would add this wording, and also drop the proposed
requirement to consider third party resources.<o:p></o:p></span></p>
<p class="MsoNormal" style="background: white; line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto; text-align: justify;"><span face=""Arial",sans-serif" style="color: #333333; mso-fareast-font-family: "Times New Roman"; mso-fareast-language: EN-GB;">The second Member State has an option to require an
LTR to comply with integration <i>measures </i>before getting a
residence permit. The wording here is different from the rules on getting LTR
status in the first Member State, where the law refers to an option to require
compliance with integration <i>conditions</i>. The second Member State
cannot require compliance with integration measures if the LTR has already
complied with integration conditions in the first Member State. However, the <b><u>Council
version</u></b> would yet again reduce standards compared to the current law,
by dropping this limit on Member States. <o:p></o:p></span></p>
<p class="MsoNormal" style="background: white; line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto; text-align: justify;"><span face=""Arial",sans-serif" style="color: #333333; mso-fareast-font-family: "Times New Roman"; mso-fareast-language: EN-GB;">Member States may require documentation as regards
employment (ie some form of proof of being hired), self-employment (a funding
requirement), or studies. The 2022 proposal would delete an unclear reference
to providing evidence of accommodation, matching a deletion of the similarly
unclear clause relating to applying for LTR status in the first Member State.
The <b><u>Council version</u></b> would retain the clause on accommodation. <o:p></o:p></span></p>
<p class="MsoNormal" style="background: white; line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto; text-align: justify;"><span face=""Arial",sans-serif" style="color: #333333; mso-fareast-font-family: "Times New Roman"; mso-fareast-language: EN-GB;">New provisions in the 2022 proposal would address
two important points: EU LTRs would have equal treatment with EU citizens as
regards recognition of professional qualifications; and an EU LTR must be
allowed to start work or study in the second Member State no more than 30 days
after submitting a complete application for a residence permit. But the <b><u>Council
version</u></b> would only provide an option for Member States to let the LTR
begin work after submitting an application.<o:p></o:p></span></p>
<p class="MsoNormal" style="background: white; line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto; text-align: justify;"><i><span face=""Arial",sans-serif" style="color: #333333; mso-fareast-font-family: "Times New Roman"; mso-fareast-language: EN-GB;">Family members</span></i><span face=""Arial",sans-serif" style="color: #333333; mso-fareast-font-family: "Times New Roman"; mso-fareast-language: EN-GB;"><o:p></o:p></span></p>
<p class="MsoNormal" style="background: white; line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto; text-align: justify;"><span face=""Arial",sans-serif" style="color: #333333; mso-fareast-font-family: "Times New Roman"; mso-fareast-language: EN-GB;">Core family members who already lived with the EU
LTR in the first Member State must be admitted to the second Member State.
Extended family members <i>may</i> be admitted. If the family members
did not already live with the EU LTR in the first Member State, the EU’s <a href="https://eur-lex.europa.eu/legal-content/en/ALL/?uri=celex%3A32003L0086"><span style="color: #992211;">family reunion Directive</span></a> applies. The <b><u>Council
version</u></b> would drop the obligation in the 2022 proposal to consider
third party resources when assessing their applications.<o:p></o:p></span></p>
<p class="MsoNormal" style="background: white; line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto; text-align: justify;"><span face=""Arial",sans-serif" style="color: #333333; mso-fareast-font-family: "Times New Roman"; mso-fareast-language: EN-GB;">A separate new provision on family members in the
2022 proposal would allow them, when applying for an ‘autonomous residence
permit’ from the sponsor they are joining under the family reunion Directive,
to cumulate residence in different Member States, as long as the last two years
were spent in the second Member State. But the <b><u>Council version</u></b>
would drop this.<o:p></o:p></span></p>
<p class="MsoNormal" style="background: white; line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto; text-align: justify;"><i><span face=""Arial",sans-serif" style="color: #333333; mso-fareast-font-family: "Times New Roman"; mso-fareast-language: EN-GB;">Exceptions: public policy, public security
and public health</span></i><span face=""Arial",sans-serif" style="color: #333333; mso-fareast-font-family: "Times New Roman"; mso-fareast-language: EN-GB;"><o:p></o:p></span></p>
<p class="MsoNormal" style="background: white; line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto; text-align: justify;"><span face=""Arial",sans-serif" style="color: #333333; mso-fareast-font-family: "Times New Roman"; mso-fareast-language: EN-GB;">The second Member State has an option to refuse the
LTR a residence permit on grounds of public policy or public security. As with
the conditions for getting LTR status in the first Member State, the second
Member State must assess the severity and type of offence committed by the
person concerned; but conversely there is no requirement to assess the duration
of residence or links with the country of origin, and no rule against founding
a refusal on ‘economic considerations’.<o:p></o:p></span></p>
<p class="MsoNormal" style="background: white; line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto; text-align: justify;"><span face=""Arial",sans-serif" style="color: #333333; mso-fareast-font-family: "Times New Roman"; mso-fareast-language: EN-GB;">As for public health, the 2022 proposal (also accepted
in the <b><u>Council version</u></b>) would replace the current law with a
cross-reference to the Schengen Borders Code, which defines a ‘threat to public
health’ slightly differently, as:<o:p></o:p></span></p>
<p class="MsoNormal" style="background: white; line-height: normal; margin-left: 36pt; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto; text-align: justify;"><span face=""Arial",sans-serif" style="color: #333333; mso-fareast-font-family: "Times New Roman"; mso-fareast-language: EN-GB;">any disease with epidemic potential
as defined by the International Health Regulations of the World Health
Organization and other infectious diseases or contagious parasitic diseases if
they are the subject of protection provisions applying to nationals of the
Member States.<o:p></o:p></span></p>
<p class="MsoNormal" style="background: white; line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto; text-align: justify;"><i><span face=""Arial",sans-serif" style="color: #333333; mso-fareast-font-family: "Times New Roman"; mso-fareast-language: EN-GB;">Procedural rights</span></i><span face=""Arial",sans-serif" style="color: #333333; mso-fareast-font-family: "Times New Roman"; mso-fareast-language: EN-GB;"><o:p></o:p></span></p>
<p class="MsoNormal" style="background: white; line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto; text-align: justify;"><span face=""Arial",sans-serif" style="color: #333333; mso-fareast-font-family: "Times New Roman"; mso-fareast-language: EN-GB;">Currently national authorities in the second Member
State must make a decision on the LTR’s application for a residence permit
within four months. If the documentation is incomplete, or in ‘exceptional
circumstances’ due to the complexity of the application, they have a further
three months. The 2022 proposal would cut these deadlines to 90 days and 30
days respectively; but the <b><u>Council version</u></b> would set them at four
months and 60 days. <o:p></o:p></span></p>
<p class="MsoNormal" style="background: white; line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto; text-align: justify;"><span face=""Arial",sans-serif" style="color: #333333; mso-fareast-font-family: "Times New Roman"; mso-fareast-language: EN-GB;">Otherwise procedural rights are very similar to
those applicable when applying for LTR status in the first Member State: giving
reasons; notification; information on redress and time limits to seek it. But
this only applies to rejection of applications, not to withdrawal of status.
There is a right of legal redress in the case of rejection, withdrawal or
non-renewal. However, there is no reference to equal treatment as compared to
applicants for residence permits under national law, and no express reference
to fees, although the CJEU case law has confirmed that any fees for residence
permit applications in the second Member State must be proportionate: <i><a href="https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:62010CJ0508"><span style="color: #992211;">Commission v Netherlands</span></a></i>.<o:p></o:p></span></p>
<p class="MsoNormal" style="background: white; line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto; text-align: justify;"><i><span face=""Arial",sans-serif" style="color: #333333; mso-fareast-font-family: "Times New Roman"; mso-fareast-language: EN-GB;">Equal treatment</span></i><span face=""Arial",sans-serif" style="color: #333333; mso-fareast-font-family: "Times New Roman"; mso-fareast-language: EN-GB;"><o:p></o:p></span></p>
<p class="MsoNormal" style="background: white; line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto; text-align: justify;"><span face=""Arial",sans-serif" style="color: #333333; mso-fareast-font-family: "Times New Roman"; mso-fareast-language: EN-GB;">The second Member State must guarantee equal
treatment for the LTR who has moved there, once the LTR has received a
residence permit, by cross-reference to the rules on equal treatment of LTRs in
the first Member State (see discussion above). So the case law applicable to
that equal treatment rule, and the proposed amendments to that rule (if agreed)
necessarily apply in the second Member State too. The 2022 proposal would
extend this to family members of the LTR, replacing a cross-reference to the
weaker provisions of the family reunion Directive. It would also delete the
power for Member States to limit changes of employer by LTRs in the first year.
(There would be an option for Member States to impose an obligation to <i>notify</i> changes
of employer instead). However, Member States would still have discretion to
limit access to employment or self-employment by students or those who move for
other reasons. The <b><u>Council version</u></b> would drop both proposed
amendments.<o:p></o:p></span></p>
<p class="MsoNormal" style="background: white; line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto; text-align: justify;"><i><span face=""Arial",sans-serif" style="color: #333333; mso-fareast-font-family: "Times New Roman"; mso-fareast-language: EN-GB;">Withdrawal or loss of status</span></i><span face=""Arial",sans-serif" style="color: #333333; mso-fareast-font-family: "Times New Roman"; mso-fareast-language: EN-GB;"><o:p></o:p></span></p>
<p class="MsoNormal" style="background: white; line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto; text-align: justify;"><span face=""Arial",sans-serif" style="color: #333333; mso-fareast-font-family: "Times New Roman"; mso-fareast-language: EN-GB;">Before the LTR obtains LTR status in the second
Member State, that Member State can expel the person concerned to the second
Member State for breaching the conditions set out in EU law for holding the
residence permit there (as discussed above). The first Member State must take
that person back. Under the 2022 proposal, references to national law are
replaced by references to the EU’s <a href="https://eur-lex.europa.eu/legal-content/EN/ALL/?uri=celex%3A32008L0115"><span style="color: #992211;">Returns Directive</span></a> instead. Also, the
option for the second Member State to expel the non-EU citizen from the EU
entirely on ‘serious grounds of public policy or public security’ would be
removed. The <b><u>Council version</u></b> agrees with these amendments.<o:p></o:p></span></p>
<p class="MsoNormal" style="background: white; line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto; text-align: justify;"><span face=""Arial",sans-serif" style="color: #333333; mso-fareast-font-family: "Times New Roman"; mso-fareast-language: EN-GB;"> <o:p></o:p></span></p>
<p class="MsoNormal" style="background: white; line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto; text-align: justify;"><b><span face=""Arial",sans-serif" style="color: #333333; mso-fareast-font-family: "Times New Roman"; mso-fareast-language: EN-GB;">Obtaining LTR status in the second
Member State</span></b><span face=""Arial",sans-serif" style="color: #333333; mso-fareast-font-family: "Times New Roman"; mso-fareast-language: EN-GB;"><o:p></o:p></span></p>
<p class="MsoNormal" style="background: white; line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto; text-align: justify;"><span face=""Arial",sans-serif" style="color: #333333; mso-fareast-font-family: "Times New Roman"; mso-fareast-language: EN-GB;">Under the current law, the LTR who has moved to the
second Member State can obtain LTR status in that Member State, subject to all
the same conditions and procedural rules that apply to obtaining LTR status in
the first Member State. Therefore all the case law on the latter rules, and all
the proposed amendments to them (if agreed) necessarily apply too.<o:p></o:p></span></p>
<p class="MsoNormal" style="background: white; line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto; text-align: justify;"><span face=""Arial",sans-serif" style="color: #333333; mso-fareast-font-family: "Times New Roman"; mso-fareast-language: EN-GB;">The 2022 proposal suggests speeding up this
process, allowing the LTR to get LTR status from the second Member State after
only a three-year wait, instead of the usual five years. However, before the
five-year period, the second Member State is not obliged to grant ‘social
assistance, or maintenance aid for studies, including vocational training,
consisting in student grants or student loans’ to LTRs other than ‘workers,
self-employed persons, and their family members’. A Member State can opt to be
more generous, on condition that it is also more generous to EU citizens in the
same circumstances. But Member States could also opt to end the stay of LTRs
who are workers or self-employed people between three and five years if they
cease to satisfy the ‘sufficient resources’ or ‘comprehensive sickness
insurance’ requirement. Remarkably the <b><u>Council version</u></b> accepts
this reduction in the usual five-year waiting period.<o:p></o:p></span></p>
<p class="MsoNormal" style="background: white; line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto; text-align: justify;"><span face=""Arial",sans-serif" style="color: #333333; mso-fareast-font-family: "Times New Roman"; mso-fareast-language: EN-GB;">Finally, while refugees and those with subsidiary
protection are entitled to qualify for EU LTR status and move to another Member
State, and there are some provisions relevant to their particular situation,
neither the current law nor the 2022 proposal provides for the transfer of
their international protection status.<o:p></o:p></span></p>
<p class="MsoNormal" style="background: white; line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto; text-align: justify;"><b><span face=""Arial",sans-serif" style="color: #333333; mso-fareast-font-family: "Times New Roman"; mso-fareast-language: EN-GB;"> </span></b><span face=""Arial",sans-serif" style="color: #333333; mso-fareast-font-family: "Times New Roman"; mso-fareast-language: EN-GB;"><o:p></o:p></span></p>
<p class="MsoNormal" style="background: white; line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto; text-align: justify;"><b><span face=""Arial",sans-serif" style="color: #333333; mso-fareast-font-family: "Times New Roman"; mso-fareast-language: EN-GB;">Comments</span></b><span face=""Arial",sans-serif" style="color: #333333; mso-fareast-font-family: "Times New Roman"; mso-fareast-language: EN-GB;"><o:p></o:p></span></p>
<p class="MsoNormal" style="background: white; line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto; text-align: justify;"><span face=""Arial",sans-serif" style="color: #333333; mso-fareast-font-family: "Times New Roman"; mso-fareast-language: EN-GB;">The Commission’s proposal would have opened up EU
LTR status to more people, making it harder to lose and giving holders more
rights. The European Parliament position (which I have not discussed here) goes
further on these points. But the Council position not only rejects most of the
Commission’s (and necessarily the Parliament’s) proposals; on the whole, it
actually goes backwards compared to the current law.<o:p></o:p></span></p>
<p class="MsoNormal" style="background: white; line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto; text-align: justify;"><span face=""Arial",sans-serif" style="color: #333333; mso-fareast-font-family: "Times New Roman"; mso-fareast-language: EN-GB;">In particular, the Council would <b><u>take rights
away</u></b> as regards: exclusion of further groups of people (although arguably
they are just specific examples of the current ‘temporary grounds’ exception); former
students and (arguably) former temporary protection beneficiaries obtaining LTR
status; taking account of third parties’ contribution to resources (arguably a
reduction of rights also when moving between Member States); adding a ‘main
residence’ requirement to retain LTR status in the event of absence; and
allowing Member States to require compliance with integration standards again
when moving to another Member State. <o:p></o:p></span></p>
<p class="MsoNormal" style="background: white; line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto; text-align: justify;"><span face=""Arial",sans-serif" style="color: #333333; mso-fareast-font-family: "Times New Roman"; mso-fareast-language: EN-GB;">The Council would <b><u>reject improvements</u></b>
as regards: cumulation of residence in multiple Member States for most people; former
students and former ‘temporary grounds’ residents obtaining LTR status;
extensions to the period to decide on an application (although they would be
limited in time); equivalence in time limits with national LTR status; some improvements
to the equal treatment rules; family members obtaining LTR status early, delaying
integration requirements, or equality with national LTR children; the accommodation
requirement (including in second Member States); equality with national LTR
applications as regards resources, sickness insurance, and integration requirements;
simplified EU LTR applications for those who already have national status
(except for purely optional simplifications); dropping labour market or preference
requirements for moving between Member States; simplification of applications
to move to another Member State; starting work or study early in another Member
State; family members cumulating residence in different Member States to obtain
autonomous residence; (most of) the reduced time limits to decide on
applications for LTRs to obtain residence permits in a second Member State; and
improvements to equal treatment in a second Member State . <o:p></o:p></span></p>
<p class="MsoNormal" style="background: white; line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto; text-align: justify;"><span face=""Arial",sans-serif" style="color: #333333; mso-fareast-font-family: "Times New Roman"; mso-fareast-language: EN-GB;">Finally, the Council would admittedly <b><u>accept improvements</u></b>
as regards: dropping the ‘formally limited’ exception; allowing cumulation of
residence in multiple Member States for some people (although this is not an
improvement for most Blue Card holders); refugees and people with subsidiary
protection obtaining LTR status; some aspects of the equal treatment rules;
facilitated access to reacquisition of LTR status (with limits); family members’
labour market access; equality with national LTR applications as regards procedures,
fees, and equal treatment; dropping quotas on movement to another Member State;
expulsion out of the EU from a second Member State; and a shorter waiting period
to obtain LTR status in the second Member State. <o:p></o:p></span></p>
<p class="MsoNormal" style="background: white; line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto; text-align: justify;"><span face=""Arial",sans-serif" style="color: #333333; mso-fareast-font-family: "Times New Roman"; mso-fareast-language: EN-GB;">The biggest of these three lists is of proposed
improvements which the Council has rejected. While the length of this list is a
disappointment, from the perspective of the EU’s stated goals of improving equality
and integration, at least (potential) long-term residents are no worse off than
they are at the moment. <o:p></o:p></span></p>
<p class="MsoNormal" style="background: white; line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto; text-align: justify;"><span face=""Arial",sans-serif" style="color: #333333; mso-fareast-font-family: "Times New Roman"; mso-fareast-language: EN-GB;">The other two lists – new rights the Council has
agreed to, and existing rights the Council would remove – may look similar in quantity.
But they are not <i>qualitatively</i> similar. For the key rights the Council
would remove concern how soon people can become long-term residents in the
first place, potentially in practice even preventing them from becoming LTRs at
all (depending on the length of their subsequent legal stay on other grounds).
The removal of rights which the Council desires would also make it easier to lose
LTR rights and harder to obtain them in a second Member State. <o:p></o:p></span></p>
<p class="MsoNormal" style="background: white; line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto; text-align: justify;"><span face=""Arial",sans-serif" style="color: #333333; mso-fareast-font-family: "Times New Roman"; mso-fareast-language: EN-GB;">Of course, it is possible that the European
Parliament may ride to the rescue during trilogue negotiations. But will it? The
Council may reject any attempt to improve current standards, considering the loss
of its desires to reduce those standards an acceptable price to pay as long as
standards are not improved. Or the Parliament may be willing to agree to reduce
its ambitions, or even reduce current standards, given its desire to agree laws
in this field before its next election, in order to avoid the next Parliament,
in the event of a shift to the right in the next elections, agreeing with the
Council’s more restrictive views – or even pushing the Council towards trashing
even more of the current Directive. As with EU asylum law, the European
Parliament is haunted by the Ghost of Parliament Future.<o:p></o:p></span></p>
<p class="MsoNormal" style="background: white; line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto; text-align: justify;"><span face=""Arial",sans-serif" style="color: #333333; mso-fareast-font-family: "Times New Roman"; mso-fareast-language: EN-GB;"> <o:p></o:p></span></p>
<p class="MsoNormal" style="background: white; line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto; text-align: justify;"><span face=""Arial",sans-serif" style="color: #333333; mso-fareast-font-family: "Times New Roman"; mso-fareast-language: EN-GB;">See also<o:p></o:p></span></p>
<p class="MsoNormal" style="background: white; line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto; text-align: justify;"><span face=""Arial",sans-serif" style="color: #333333; mso-fareast-font-family: "Times New Roman"; mso-fareast-language: EN-GB;"><a href="http://fra.europa.eu/en/publication/2023/long-term-residents">Report of
the EU Fundamental Rights Agency</a> <o:p></o:p></span></p>
<p class="MsoNormal" style="background: white; line-height: normal; mso-margin-bottom-alt: auto; mso-margin-top-alt: auto; text-align: justify;"><span face=""Arial",sans-serif" style="color: #333333; mso-fareast-font-family: "Times New Roman"; mso-fareast-language: EN-GB;"><a href="https://ecre.org/ecre-policy-paper-the-potential-of-the-eus-long-term-residency-directive/">ECRE
policy paper</a><o:p></o:p></span></p>Steve Peershttp://www.blogger.com/profile/05869161329197244113noreply@blogger.com0tag:blogger.com,1999:blog-8704899696538705849.post-4358155038973248432023-11-21T06:46:00.000-08:002023-11-21T07:40:18.558-08:00 Rethinking Gender-Based Asylum: A Look at the Advocate General’s Opinion on Women Fleeing the Taliban <p> </p><div class="separator" style="clear: both; text-align: center;"><a href="https://blogger.googleusercontent.com/img/a/AVvXsEgCUlOAWR2Oz_UO27Iybd6Fx9niyuF7oYVd1D2FfEGSira4BkEJyWSxHmAoJehXz2pEDjR8Pc9WYrfJLV0rVzFzDdSv1GCoXJ58qKzBN60hVsWIy-B9offnqxLfVIxSL3W4H-Ur0m7AzhQtIyJ4oezzvnQWjGCkjMpUH2F3D388EVAbR1g8Q3dmXcUdFjA" style="margin-left: 1em; margin-right: 1em;"><img alt="" data-original-height="307" data-original-width="340" height="240" src="https://blogger.googleusercontent.com/img/a/AVvXsEgCUlOAWR2Oz_UO27Iybd6Fx9niyuF7oYVd1D2FfEGSira4BkEJyWSxHmAoJehXz2pEDjR8Pc9WYrfJLV0rVzFzDdSv1GCoXJ58qKzBN60hVsWIy-B9offnqxLfVIxSL3W4H-Ur0m7AzhQtIyJ4oezzvnQWjGCkjMpUH2F3D388EVAbR1g8Q3dmXcUdFjA" width="266" /></a></div><br /><p></p><p class="MsoNormal" style="text-align: justify;"><a href="https://www.uu.nl/staff/TErtunaLagrand">Türkan Ertuna Lagrand</a> (Assistant
Professor, Utrecht University School of Law) and <a href="https://www.uu.nl/staff/SNicolosi">Salvo Nicolosi</a> (Senior Assistant
Professor, Utrecht University School of Law)</p><p class="MsoNormal" style="text-align: justify;">Photo credit: <a href="https://commons.wikimedia.org/wiki/File:One_Afghan_Woman_Makes_a_Difference.jpg">USAIDAfghanistan</a>, via Wikimedia Commons</p>
<p class="MsoNormal" style="text-align: justify;"><span lang="NL">Can a woman be
recognized as a refugee, merely because of her gender? This has been one of the
<a href="https://academic.oup.com/rsq/issue/41/3">most debated questions in
international refugee law</a>, which has recently reached the Court of Justice
with two joined cases in <a href="https://curia.europa.eu/juris/document/document.jsf?text=&docid=269282&pageIndex=0&doclang=en&mode=lst&dir=&occ=first&part=1&cid=566148">AH</a>
and <a href="https://curia.europa.eu/juris/document/document.jsf?text=&docid=269246&pageIndex=0&doclang=en&mode=lst&dir=&occ=first&part=1&cid=566063">FN</a>
on which last 9 November 2023, Advocate General Richard de la Tour delivered
his <a href="https://curia.europa.eu/juris/document/document.jsf?text=&docid=279507&pageIndex=0&doclang=en&mode=req&dir=&occ=first&part=1&cid=566236">Opinion</a>.
These joined cases relate to a request for a preliminary ruling from the
Austrian High Administrative Court. The referring judge was in doubt whether, in
light of Article 9 (1) (a) and (b) of the <a href="https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex%3A32011L0095">Qualification
Directive</a>, it is sufficient that a woman who is affected, merely on the
basis of her gender, by the accumulation of government-imposed or supported
restrictive measures can be recognised as a refugee without the need to assess
the woman’s individual situation. <o:p></o:p></span></p>
<p class="MsoNormal" style="text-align: justify;"><span lang="NL">While awaiting the
ruling from the Court of Justice, it is worth underscoring the significance of
the Advocate General’s Opinion in light of three complementary dimensions, each
representing crucial elements within the Advocate General’s assessment. These
dimensions refer to the nature of persecution arising from discriminatory
measures; the issue of whether women can be recognized as constituting a
distinct social group; the need to conduct an individual assessment as the
foundational basis for granting refugee status. <o:p></o:p></span></p>
<p class="MsoNormal" style="text-align: justify;"><span lang="NL">By addressing these
three dimensions, this short post aims to flag the potential for the Court of
Justice to expand the scope of protection in Europe and contribute to the
progressive development of international refugee law. <o:p></o:p></span></p>
<p class="MsoNormal" style="text-align: justify;"><b><span lang="NL">Systematic
discrimination against women<o:p></o:p></span></b></p>
<p class="MsoNormal" style="text-align: justify;"><a name="_Hlk150548793"><span lang="NL">The reference from the Austrian Court is rooted in the rise of the </span></a><a href="https://www.bbc.co.uk/programmes/m00142f1"><span style="mso-bookmark: _Hlk150548793;"><span lang="NL">Taliban regime in Afghanistan in 2021</span></span><span style="mso-bookmark: _Hlk150548793;"></span></a><span style="mso-bookmark: _Hlk150548793;"><span lang="NL">, marked by the implementation of a set of discriminatory measures
specifically aimed at women in the country. As the Austrian High Administrative
Court as well as </span></span><a href="https://www.ohchr.org/en/press-releases/2023/03/afghanistan-un-experts-say-20-years-progress-women-and-girls-rights-erased"><span style="mso-bookmark: _Hlk150548793;"><span lang="NL">experts of the United Nations</span></span><span style="mso-bookmark: _Hlk150548793;"></span></a><span style="mso-bookmark: _Hlk150548793;"><span lang="NL"> have underscored, the Taliban has put in place measures severely
restricting civil and political rights. Such measures consist of preventing women
from travelling without a male companion, obligating them to cover their
bodies; denying participation in political office and political decision-making
processes; denying women access to legal means to obtain protection from
gender-based and domestic violence; and lack of protection against forced
marriages. Additionally, these measures have significantly curtailed social,
economic and cultural rights, such as women’s right to engage in gainful
employment, and women’s access to health care, education and sports. In this
regard, it is worth stressing that Afghanistan is the only country in the world
where girls and young women are forbidden from attending secondary school and
higher education institutions.<o:p></o:p></span></span></p>
<p class="MsoNormal" style="text-align: justify;"><span style="mso-bookmark: _Hlk150548793;"><span lang="NL">Admittedly, the accumulation of these measures has led to a situation that
the Advocate General considered of 'severe, systematic and institutionalised
discrimination' against women. <o:p></o:p></span></span></p>
<span style="mso-bookmark: _Hlk150548793;"></span>
<p class="MsoNormal" style="text-align: justify;"><span lang="NL">The concept of
‘discrimination’ is <span style="mso-spacerun: yes;"> </span>of paramount
importance to determine the existence of persecution for the purposes of
seeking recognition as a refugee. However, not all discrimination amounts to
persecution. On this point,<span style="mso-spacerun: yes;"> </span>Advocate
General’s Opinion is especially illustrative as it, in light of the <a href="https://www.unhcr.org/media/handbook-procedures-and-criteria-determining-refugee-status-under-1951-convention-and-1967">UNHCR
Handbook</a>, clarifies that ‘a measure of discrimination will only amount to
persecution if it leads to consequences of a substantially prejudicial nature
for the person concerned, such as… access to available educational facilities’.
<o:p></o:p></span></p>
<p class="MsoNormal" style="text-align: justify;"><span lang="NL">The Advocate
General concluded that while some measures individually amount to persecution
under Article 9 (1) (a) of the Qualifications Directive (which states that to
be considered ‘persecution’, an act must be ‘be sufficiently serious by its
nature or repetition as to constitute a severe violation of basic human
rights, in particular the rights’ which States cannot derogate from under
Article 15(2) ECHR), others cumulatively meet the threshold under Article 9 (1)
(b), due to systematic violations of human rights which are ‘sufficiently
severe as to affect an individual' in a similar manner as mentioned in Article
9 (1) (a).<o:p></o:p></span></p>
<p class="MsoNormal" style="text-align: justify;"><b><span lang="NL"><o:p> </o:p></span></b></p>
<p class="MsoNormal" style="text-align: justify;"><b><span lang="NL">Women as a particular
social group <o:p></o:p></span></b></p>
<p class="MsoNormal" style="text-align: justify;"><span lang="NL">Interestingly,
these joined cases gave the Advocate General de la Tour an opportunity to reiterate
and finetune a line of argumentation that he followed earlier this year in the
case of <a href="https://curia.europa.eu/juris/document/document.jsf?text=&docid=272702&pageIndex=0&doclang=EN&mode=req&dir=&occ=first&part=1&cid=883910">WS</a>.
On that occasion, the Advocate General argued that women can constitute a particular
social group ‘solely on account of their condition as women.’ They in fact
share an innate and immutable characteristic, because of which they are seen
differently by society, according to their country of origin, by reason of the
social, legal or religious norms of that country or the customs of the
community to which they belong (para 72). In the same opinion, Advocate General
de la Tour convincingly rejected the tendency, <span style="mso-spacerun: yes;"> </span>often followed by <a href="https://www.refworld.org/cases,AUS_HC,3deb326b8.html">senior courts</a>,
according to which to use women qua women cannot constitute a relevant social group
owing to the size of the group. On the contrary, de la Tour concluded that ‘the
concept of “distinct identity” of a group, in that it is perceived differently
by the surrounding society, cannot be interpreted as entailing a quantitative
assessment.’ From this perspective, the Advocate General echoed the position of
the UNHCR <span style="mso-spacerun: yes;"> </span>reminding that other grounds
are not bound by the question of size and upheld the <a href="https://www.cambridge.org/core/books/law-of-refugee-status/nexus-to-civil-or-political-status/2603E7C98206D1F49FCF9FDCBB7B9265">scholarly
view</a> that have unearthed the fallacy of such an approach.<o:p></o:p></span></p>
<p class="MsoNormal" style="text-align: justify;"><b><span lang="NL">Challenging the
individual assessment as the foundational basis for refugee status<o:p></o:p></span></b></p>
<p class="MsoNormal" style="text-align: justify;"><span lang="NL">Borrowing Hathaway
and Foster’s words ‘it is now widely understood that where a woman has a well-founded
fear of being persecuted for reasons of her gender,… refugee status ought to be
recognized.’ Despite the equivocal terms of the Qualification Directive
(Article 10), recognizing only that ‘[g]ender related aspects, including gender
identity, shall be given due consideration for the purposes of determining
membership of a particular social group or identifying a characteristic of such
a group,’ there is nonetheless widespread recognition in Europe that women
constitute a social group for Convention purposes. As the situation of women
and girls in Afghanistan has deteriorated rapidly, Member State authorities went
even further to recognize women as refugees solely on the basis of their gender
without assessing on a case-by-case basis whether there is an individual a risk
of persecution. <o:p></o:p></span></p>
<p class="MsoNormal" style="text-align: justify;"><span lang="NL">While Austria was
the first Member State to officially explore the possibility of accepting
Afghan women as refugees without an individual assessment, a number of other States
have recognized women from Afghanistan as refugees without further examination
as to the individual situation. Sweden <a href="https://www.migrationsverket.se/English/Private-individuals/Protection-and-asylum-in-Sweden/Nyhetsarkiv/2022-12-07-Women-from-Afghanistan-to-be-granted-asylum-in-Sweden.html">announced</a>
in December 2022 that any Afghan woman asking for refugee status will be
granted this status. After firstly declaring to <span style="mso-spacerun: yes;"> </span>continue with an individual examination of
female asylum seekers from Afghanistan, <a href="https://fln.dk/da/Nyheder/Nyhedsarkiv/2022/15122022">Denmark later
decided</a> to hold a ‘relaxed assessment of evidence’ and as of <a href="https://fln.dk/da/Nyheder/Nyhedsarkiv/2023/30012023">30 January 2023</a> all
women and girls from Afghanistan have been granted asylum solely because of
their gender. Similarly, the <a href="https://migri.fi/en/-/refugee-status-to-afghan-women-and-girls">Finnish
Immigration Service</a> has announced in early 2023 that ‘all Afghan women and
girls are granted refugee status.’<o:p></o:p></span></p>
<p class="MsoNormal" style="text-align: justify;"><span lang="NL">Such a domestic practice
offered the Advocate General the opportunity to explain that this practice
falls within the margin of appreciation that is left to the Member States by
Article 3 of the Qualification Directive to introduce or retain more favourable
standards for determining who qualifies as a refugee, in so far as those
standards are compatible with the Directive. In this regard, the Advocate
General also referred to the ruling in <a href="https://curia.europa.eu/juris/liste.jsf?language=it&jur=C%2CT%2CF&num=c-91/20&parties=&dates=error&docnodecision=docnodecision&allcommjo=allcommjo&affint=affint&affclose=affclose&alldocrec=alldocrec&docdecision=docdecision&docor=docor&docav=docav&docsom=docsom&docinf=docinf&alldocnorec=alldocnorec&docnoor=docnoor&docppoag=docppoag&radtypeord=on&newform=newform&docj=docj&docop=docop&docnoj=docnoj&typeord=ALL&domaine=&mots=&resmax=100&Submit=Rechercher">LW</a>
e, in relation to which the Court- decided that such standards may consist, inter
alia, in relaxing the conditions for granting refugee status and should not
prejudice to the general scheme and objectives of that Directive (paras 39-40).
Indeed, concurring with the Advocate General, asylum applications submitted by
women and girls from Afghanistan have specific characteristics that would allow
the competent authorities to deviate from the individual assessment method, in
principle required by Article 4 (3) of the Qualification Directive. The
discriminatory measures to which Afghan women and girls are exposed are part of
a regime of segregation and oppression imposed solely on account of the women’s
presence on the territory, regardless of their identity or personal
circumstances. Such a circumstance makes unnecessary to establish that the
applicant is targeted because of distinctive characteristics other than her
gender. <o:p></o:p></span></p>
<p class="MsoNormal" style="text-align: justify;"><span lang="NL">Interestingly, despite
these readily apparent, objective circumstances in the country of origin, the
Advocate General did not approach the cases on the basis of prima facie
recognition of refugee status, which as confirmed by the <a href="https://www.refworld.org/pdfid/555c335a4.pdf">UNCHR</a>, constitutes an
exception to the principle of individual assessment. As argued by <a href="https://www.jstor.org/stable/10.5305/intelegamate.54.6.1115">Zieck</a>, prima
facie recognition is in essence ‘a collective form of status determination that
presumes that each individual member of a particular group qualifies for
refugee status based on objective information on the circumstances causing
flight.’ While particularly suited to situation of large scale arrivals of
refugees, prima facie recognition may also be appropriate in relation to groups
of similarly situated individuals whose arrival is <a href="https://www.refworld.org/pdfid/555c335a4.pdf">not on a large scale</a>.
However, as the legal foundations and contours of this practice remains still <a href="https://brill.com/display/title/10629">opaque</a>, the Advocate General
might have chosen to confine his argumentation within the specific features of
EU asylum law, notably Article 4 of the Qualification Directive. This was a
reasonable but also particularly relevant choice as it clarifies to what extent
EU asylum law allows a departure from an individual assessment, thereby offering
a valuable standpoint to the Court to proceed in the same direction.<o:p></o:p></span></p>
<p class="MsoNormal" style="text-align: justify;"><b><span lang="NL">Concluding
remarks<o:p></o:p></span></b></p>
<p class="MsoNormal" style="text-align: justify;"><span lang="NL">To conclude, the Joined
Cases in AH and FN bear significant relevance, particularly in the near term
for Member States that have already adjusted their asylum policies concerning
Afghan women, and, prospectively, for those Member States poised to emulate
such modifications, following an expected favourable ruling by the Court. If
the Court were to adopt the analytical framework proposed by Advocate General
de la Tour, this would, therefore, contribute to aligning the EU's stance with
that of the UNHCR, the Human Rights Council, thereby substantially contributing
to the advancement of international refugee law.<o:p></o:p></span></p>
<p class="MsoNormal"><span lang="NL"><o:p> </o:p></span></p>Steve Peershttp://www.blogger.com/profile/05869161329197244113noreply@blogger.com0tag:blogger.com,1999:blog-8704899696538705849.post-928866762559682712023-11-17T12:20:00.000-08:002023-11-17T12:20:56.647-08:00Amazon v DSA: insights from interim proceedings<p> </p><p class="MsoNormal" style="text-align: justify;"> </p><div class="separator" style="clear: both; text-align: center;"><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEiKyszMCsyHBWFNdSAOAgJrOfv98_idMMUwyvLruiJY5k4LYqtLG5Yc6BP6fr-iYCFSVMAhR3nurjLs5TOo9ozyqSGJWk1OizKPSyFA47Es9uHEzjJsjJHE_jXsGJyL49_I1PlT3t9MedPvmCaJsvuMlSLRpbrwUcWW8uHjLFsqnVmcGjD53OIygEPrpfk/s4032/Amazon_Lieferung.jpg" imageanchor="1" style="margin-left: 1em; margin-right: 1em;"><img border="0" data-original-height="3024" data-original-width="4032" height="290" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEiKyszMCsyHBWFNdSAOAgJrOfv98_idMMUwyvLruiJY5k4LYqtLG5Yc6BP6fr-iYCFSVMAhR3nurjLs5TOo9ozyqSGJWk1OizKPSyFA47Es9uHEzjJsjJHE_jXsGJyL49_I1PlT3t9MedPvmCaJsvuMlSLRpbrwUcWW8uHjLFsqnVmcGjD53OIygEPrpfk/w386-h290/Amazon_Lieferung.jpg" width="386" /></a></div><br /><o:p></o:p><p></p>
<p class="MsoNormal" style="text-align: justify;"><o:p> </o:p></p>
<p class="MsoNormal" style="text-align: justify;"><b><a href="https://www.awo.agency/about/laureline-lemoine/">Laureline Lemoine</a></b>,
Senior Associate, AWO Agency <o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;"><o:p> </o:p></p>
<p class="MsoNormal" style="text-align: justify;"><b>Photo credit</b>: <a href="https://commons.wikimedia.org/wiki/File:Amazon_Lieferung.JPG">KarleHorn</a>,
via Wikimedia Commons<o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;"><o:p> </o:p></p>
<p class="MsoNormal" style="text-align: justify;">On September 27, 2023, the
President of the General Court, Marc van der Woude, issued an <a href="https://curia.europa.eu/juris/document/document.jsf?text=&docid=277901&pageIndex=0&doclang=en&mode=lst&dir=&occ=first&part=1&cid=1935887">order</a>
in the case of T‑367/23 R <i>Amazon Services Europe v Commission</i>, one of
the first legal challenges against the <a href="https://digital-strategy.ec.europa.eu/en/policies/digital-services-act-package">Digital
Services Act</a> (DSA). The order sheds light on Amazon's stance and the
arguments that can be anticipated in the main proceedings, and has potential
implications for other providers of very large online platforms (VLOP). <o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;"><o:p> </o:p></p>
<p class="MsoNormal" style="text-align: justify;">Amazon was designated as a Very
Large Online Platform (VLOP) by the European Commission on 25 April 2023. This
designation meant that Amazon, along with other VLOPs, had until 25 August 2023
to comply with DSA obligations, while other entities (platforms,
intermediaries) have until 17 February 2024. In response, Amazon initiated
legal action to annul the Commission's VLOP designation, asserting that it
infringed upon principles of equal treatment and constituted a disproportionate
restriction on its rights. However, as EU acts are presumed lawful, Amazon was
required to comply with DSA obligations throughout the proceedings, leading
them to request interim measures to suspend specific obligations stemming from
their VLOP designation.<o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;"><o:p> </o:p></p>
<p class="MsoNormal" style="text-align: justify;"><b>Examining Amazon's
arguments <o:p></o:p></b></p>
<p class="MsoNormal" style="text-align: justify;"><o:p> </o:p></p>
<p class="MsoNormal" style="text-align: justify;">One of Amazon's primary concerns
was Article 38 of the DSA, which mandates an opt-out for recommender systems
based on user profiling. Amazon argued that this requirement would adversely
impact their business, customers, and third-party sellers. However, President Marc
van der Woude noted that Article 38 does not prohibit the use of such systems
but merely offers users an opt-out option, and suggested that Amazon could
inform customers effectively about the benefits and risks of such an option.
The President suggested that platforms could employ “precise and effective
measures” to inform customers of the “benefits of the recommender systems and
the risks that will ensue from opting out”. In this context, Amazon could only
claim financial harm, which, based on the evidence, was deemed insufficient to
imperil its financial viability before the final judgement. Consequently, no
interim measures were granted concerning Article 38 of the DSA.<o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;"><o:p> </o:p></p>
<p class="MsoNormal" style="text-align: justify;">The suggestion from the Court
could lead to platforms employing pop-ups and persuasive language to prompt
users to continue using profiling-based recommender systems, similar to how
they request users to approve personalised advertising via cookie
banners. <o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;"><o:p> </o:p></p>
<p class="MsoNormal" style="text-align: justify;">Amazon's objections were more
substantial concerning Article 39, where it argued that the obligation to
publish an advertisement repository would expose confidential information,
causing harm to their advertising activities and partners and leading to the
loss of consumers. <o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;">For the purpose of interim
proceedings, the President had to assume the confidentiality of the information
and therefore agreed that the repository revealed sensitive information, which
could potentially be exploited by competitors. The Commission tried to
counter-argue that the main novelty of the DSA was to consolidate information,
explaining that Amazon was already obligated to disclose most of the required
information under existing EU legal acts. However, the President highlighted
that certain elements of the DSA, particularly pertaining to the duration of advertisements
(Article 39(2)(d) DSA) and the total of recipients reached (Article 39(2)(g)),
appeared to be genuinely new and not covered by previous legislation.<o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;"><o:p> </o:p></p>
<p class="MsoNormal" style="text-align: justify;">One of the key issues of the main
proceedings will therefore centre around the question whether the information
Amazon is supposed to publish under Article 39 is genuinely confidential. To
prevent jeopardising the ongoing main proceedings, the General Court President
chose to suspend Amazon’s obligation to make the advertisement repository public,
but Amazon is still required to create and compile the repository pending the
outcome of the main proceedings. <o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;"><b><o:p> </o:p></b></p>
<p class="MsoNormal" style="text-align: justify;"><b>Implications for VLOPs<o:p></o:p></b></p>
<p class="MsoNormal" style="text-align: justify;"><o:p> </o:p></p>
<p class="MsoNormal" style="text-align: justify;">The outcome of this interim
proceeding has broader implications, especially for other VLOPs. <o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;">The absence of a clear case and
the failure to demonstrate real harm in these interim proceedings regarding
Article 38 could deter other VLOPs from pursuing similar challenges. Since
Article 38 offers an opt-out mechanism closely aligning with GDPR principles,
it also makes it less likely to be contested.<o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;"><o:p> </o:p></p>
<p class="MsoNormal" style="text-align: justify;">Conversely, other VLOPs could
argue that Article 39 directly impacts their core business models as well. The
fact that Amazon obtained a suspension may inspire them to explore similar
avenues, given their shared concerns and arguments, which could increase their
chances of securing a similar exemption.<o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;"><br />
<b>Conclusion<o:p></o:p></b></p>
<p class="MsoNormal" style="text-align: justify;"><o:p> </o:p></p>
<p class="MsoNormal" style="text-align: justify;">The interim proceedings in the
case of T‑367/23 R <i>Amazon Services Europe v Commission</i> provides
interesting insights into how Amazon is navigating their obligations under the
DSA. The legal processes and arguments emerging from this case offer a glimpse
of what is to come and as this case unfolds, it will continue to be a focal
point in the broader discussion surrounding DSA enforcement and its implementation.<o:p></o:p></p>Steve Peershttp://www.blogger.com/profile/05869161329197244113noreply@blogger.com0tag:blogger.com,1999:blog-8704899696538705849.post-27748578191100566582023-11-01T03:00:00.003-07:002023-11-01T03:00:42.693-07:00 Europol’s Joint and Several Liability Regime: Revolutionizing EU Fundamental Rights Responsibility? <p></p><div class="separator" style="clear: both; text-align: center;"><a href="https://blogger.googleusercontent.com/img/a/AVvXsEgRjt_RqZbJLX-cLcfZBNscSUIQoNxf_IB9WI057kuTEYb-EUL8Wsuo0QavQ-ww33kPSxP5ur9fJWXAQH-q2402jmXQpPEa5b_MMTmjp9NETj8COzFiHcs7qWULUWOHF7jTCrzl1aw1pSUBavNAC0NYE8FnmgbWxxBCTz7lX1yAKuQTeMWOC6ybWvz15q0" style="margin-left: 1em; margin-right: 1em;"><img alt="" data-original-height="1440" data-original-width="1074" height="266" src="https://blogger.googleusercontent.com/img/a/AVvXsEgRjt_RqZbJLX-cLcfZBNscSUIQoNxf_IB9WI057kuTEYb-EUL8Wsuo0QavQ-ww33kPSxP5ur9fJWXAQH-q2402jmXQpPEa5b_MMTmjp9NETj8COzFiHcs7qWULUWOHF7jTCrzl1aw1pSUBavNAC0NYE8FnmgbWxxBCTz7lX1yAKuQTeMWOC6ybWvz15q0=w199-h266" width="199" /></a></div> <br /><p></p><p><br /></p>
<p class="MsoNormal" style="text-align: justify;"><b><span style="mso-ansi-language: EN-GB;">Dr Joyce de Coninck</span></b><span style="mso-ansi-language: EN-GB;">, University
of Ghent<o:p></o:p></span></p>
<p class="MsoNormal" style="text-align: justify;"><o:p><b>Photo credit</b>: <a href="https://commons.wikimedia.org/wiki/File:Europol_building,_The_Hague,_the_Netherlands_-_5991.jpg">Oseveno</a> </o:p></p><p class="MsoNormal" style="text-align: justify;"><o:p><br /></o:p></p>
<p class="MsoNormal" style="text-align: justify;"><b>Introduction <o:p></o:p></b></p>
<p class="MsoNormal" style="text-align: justify;"><o:p> </o:p></p>
<p class="MsoNormal" style="text-align: justify;">The Europol Regulation introduces
a system of joint and several EU liability for unlawful data processing in
violation of Article 7 and 8 of the Charter of Fundamental Rights. This nascent
EU liability regime features at the heart of the dispute in the <a href="https://curia.europa.eu/juris/liste.jsf?lgrec=fr&td=%3BALL&language=en&num=T-528/20&jur=T">Marián
Kočner v Europol</a> saga, and much like the recent <a href="https://curia.europa.eu/juris/document/document.jsf?text=&docid=277021&pageIndex=0&doclang=en&mode=req&dir=&occ=first&part=1&cid=93054">WS
and others v Frontex</a> case before the General Court, highlights the urgency
for clarification on joint responsibility for human rights violations as a
result of shared conduct between the EU’s operational agencies and the EU
Member States. <o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;"><o:p> </o:p></p>
<p class="MsoNormal" style="text-align: justify;">One of the drivers prompting this
need for clarification, relates to the increased cooperation between the EU’s
operational agencies on the one hand, with EU Member States on the other hand,
in achieving common objectives. While Frontex is increasingly endowed with
(executive) powers in the EU’s Integrated Border Management (see <a href="http://eulawanalysis.blogspot.com/2019/04/the-new-european-border-and-coast-guard.html">here</a>,
<a href="https://verfassungsblog.de/frontex-and-the-rule-of-law-crisis-at-eu-external-borders/">here</a>
and <a href="https://odysseus-network.eu/wp-content/uploads/2021/09/Odysseus-Series-Blog-Post-new-Pact.pdf">here</a>),
Europol is endowed with <a href="https://www.europarl.europa.eu/news/en/press-room/20220429IPR28234/parliament-backs-giving-more-powers-to-europol-but-with-supervision">increased
powers</a> regarding the processing of large datasets, the screening of foreign
direct investment in security-related cases and the acquisition of data from
private companies in dealing with terrorist or child abuse material. These
enhanced powers result in a multiplicity of public and private actors working
together in achieving common goals, where previously such tasks fell within the
exclusive purview of the Member States. <span style="mso-spacerun: yes;"> </span><o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;"><o:p> </o:p></p>
<p class="MsoNormal" style="text-align: justify;">The ‘crowding of the operational
field’, referred to by <a href="https://storage.googleapis.com/jnl-up-j-ulr-files/journals/1/articles/770/submission/proof/770-1-2541-1-10-20220215.pdf">Gkliati
and McAdam</a> as the ‘many hands’ problem, reveals a significant disconnect
between the EU’s contemporary liability regime on the one hand, and the
application of this liability regime in practice to situations of joint conduct
that give rise to human rights harms on the other hand. In other words, the EU’s
liability regime was not legally designed to accommodate questions of joint responsibility
for human rights harms flowing from concerted conduct by the EU institutions,
bodies, offices and agencies and the EU Member States. The incompatibility – or
rather, unsuitability – of the EU’s human rights regime in dealing with joint
conduct, features on two distinct levels, and on both levels, a driving force
behind the unsuitability is one of legal design. <o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;"><o:p> </o:p></p>
<p class="MsoNormal" style="text-align: justify;">On the one hand, <a href="https://global.oup.com/academic/product/the-european-union-and-human-rights-9780198814177?cc=us&lang=en&">historical
accounts of the constitutionalization of fundamental rights</a> in the EU, giving
rise to the Charter of Fundamental Rights in particular, explain that this
process was by and large the result of constitutional concerns over EU
fundamental rights protection by domestic courts. In other words, this exercise
of constitutionalization came about in reaction to constitutional objections by
Member States regarding the level of protection of fundamental rights provided
under the EU’s chapeau. An unintended consequence of this development appears
to be that the drafters of the Charter did not necessarily consider joint and
inseparable operational conduct by EU entities and the EU Member States. In
turn, and as predicted by <a href="https://onlinelibrary.wiley.com/doi/abs/10.1111/1468-5965.00388">Weiler</a>,
it did not bring the added clarity to how the state-centric Charter rights –
many of which were inspired by and textually almost identical to state-centric
international human rights treaties – would translate into enforceable negative
and positive human rights obligations that give flesh to the bones of these
human rights commitments. In other words, the mere fact that EU entities are
bound by fundamental rights in the Charter, does not relay much on how the EU
must conduct itself in order to comply with these rights, as I have discussed
at length elsewhere (<a href="https://www.cambridge.org/core/journals/german-law-journal/article/effective-remedies-for-human-rights-violations-in-eu-csdp-military-missions-smoke-and-mirrors-in-human-rights-adjudication/75284521D6082AE6A64318751A82B562">here</a>,
<a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4438517">here</a>
and <a href="https://biblio.ugent.be/publication/8721431">here</a>). <o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;"><o:p> </o:p></p>
<p class="MsoNormal" style="text-align: justify;">On the other hand, the EU’s
liability regime also was not legally designed to respond to questions of
responsibility-allocation flowing from unlawful joint conduct giving rise to
human rights harms. This is textually and historically supported, as the EU’s
action for damages falls within the exclusive purview of the CJEU (Article 268 in
juncto 340 TFEU) and case law has set out rules proclaiming that national
courts shall be seized where damages are the result of the <a href="https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:61986CJ0089">incorrect</a>
or <a href="https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:61982CJ0281">correct</a>
implementation by Member States of EU legislative acts (for a general
discussion, see <a href="https://watermark.silverchair.com/isbn-9780199533770-book-part-37.pdf?token=AQECAHi208BE49Ooan9kkhW_Ercy7Dm3ZL_9Cf3qfKAc485ysgAAA4YwggOCBgkqhkiG9w0BBwagggNzMIIDbwIBADCCA2gGCSqGSIb3DQEHATAeBglghkgBZQMEAS4wEQQM16YUIGngaUtHd0YpAgEQgIIDORf_oBSwRH83b9EnVzz6WLzkUBGh8g2Ve162c5IkY77CCLmlOv-UnIEoJmXOePblMTEApE4z4DMDqJANbfyTG81RaxNSAZepPU7Fb8pgxy0xs5TSOqQGwPVpAiStw3WTNbFuiw2BytW3abWJe3SghxrsdZOXdOk1zdVB-yzKEeAe8REgshtc41QYsQVHFFFMmFFP_EfxpRV9sB9-VoT3AfGlPtaWXBPnevPW4WtM6FVh7zNEug3cj1TMzdwWzohzZws9CXFm45N6MfvLuL3spZerhRYP-ohBpLnB_EfHQP2y-EOS60-WK7V6iC3ArCxUn-1ckaihpy0okepm5NqgPn5pdbRNESllSVGx_jEktN1rf2NBGBOOPilnR_wWZ4dSnhIvS6Hw3s8G9MvfCeTjr23JqAlXQz5Dkqq4evq0pp3XmEe4KIb84hoVlkcMcNDvx5SytzpDyUPU2uK9QGx9nqdfGtwxMNgi3RAY5k1rwgaPxafjMySmKqvzQ8kttCVMTyhiLCuzfunq_niPdOGtyHlBwrdATGccqwooR_XlJHuxs-ri55ghMyQ1g_gT3vOZFHAhfrgwq4mBzftQyyECwRs_1ftmvfmXA4ume_53tn6WgNk-LupydHMD9bwbIHgQrfI2urQquA9Z2Lhuj-qbEywMcKl8tIxPdDmUmiXQbsZcDCPlm55vpEj1ZFPvmzAhQxwJUmqebOxBqKziu2z5AcJAsTDlsOvtRHhw41IDJKldp5KaCVxQMfNd0BvW2UolU61iATgvAbdLtSiZfxhMR0cEKjYar4YtrmD-8woXOC393ZbmVg_HzXUaO2yusbrEx6L6fSkigwZWL660Yw_vEQvTl3RjZbdu1_Usi92VbfbpC_gitGKOJkC3YmbvYGIk4O1hOz5Up3CF4T7DDVI7CYQx6-dtwRPIF-857aO0p7G3-PBvdR7S5F4pcr7vcaDHIaCS1UXqqv560uDFKt5q7VdDmGlxsJ9uxX6Om7oDw9v7NZ1qbMaHBLXKScZ0ulIYcEp1BrN-btYkLb0SRDgtSLeCmuFe0KcGvEB6xWV4NDXpT4XFYV4QQRWDaMXgvs-yV1qJl-yFi07ekw">here</a>).
In other words, the EU’s action for damages was not developed to consider joint
non-contractual responsibility and the conditions for liability subsequently
developed through the CJEU’s case law were also not developed with such
liability in mind. <o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;"><o:p> </o:p></p>
<p class="MsoNormal" style="text-align: justify;">However, the increased reliance
on inseparable and operational cooperation between EU entities and its Members
giving rise to fundamental rights harms, brings to the fore a new dimension of
liability that was not foreseen in either the normative human rights
developments giving rise to the Charter, nor the liability regime that
currently exists within the EU’s framework. Yet it is precisely this question
of joint liability that sits at the heart of the case of <a href="https://curia.europa.eu/juris/liste.jsf?lgrec=fr&td=%3BALL&language=en&num=T-528/20&jur=T">Marián
Kočner v Europol</a> currently pending before the CJEU and the accompanying <a href="https://curia.europa.eu/juris/document/document.jsf?text=&docid=274650&pageIndex=0&doclang=en&mode=req&dir=&occ=first&part=1&cid=399908">opinion
by Advocate General Rantos</a> as developed and discussed in what follows.<o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;"><o:p> </o:p></p>
<p class="MsoNormal" style="text-align: justify;"><b>The Case <o:p></o:p></b></p>
<p class="MsoNormal" style="text-align: justify;"><o:p> </o:p></p>
<p class="MsoNormal" style="text-align: justify;">In 2018 Marián Kočner was being
investigated by the Slovak criminal authorities within the context of a murder
investigation. The investigation resulted in the domestic authorities taking
possessing of two mobile phones and a USB drive belonging to the Applicant,
which were subsequently handed over to Europol at the request of the domestic
authorities in October 2018. Several months later, Europol returned the mobile
phones and the USB-drive along with relevant scientific reports concerning its
contents, as well as a hard-drive with encrypted data derived from the mobile
phones to the Slovak authorities. The contents of the mobile phones and USB
drive – transcripts of intimate conversations involving the applicant and his
girlfriend, as well as the inclusion of his name on the ‘mafia lists’ – were
subsequently leaked in large quantities and made public by the press. On the
basis of these leaks the Applicant claimed compensation from Europol for
non-material damage stemming from unlawful data processing, underscoring that
the leaks by the press violated his right to a private and family life as
protected under Article 7 CFR. <o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;"><o:p> </o:p></p>
<p class="MsoNormal" style="text-align: justify;">In the subsequent action for
damages on the basis of Article 268 and Article 340 TFEU, the General Court
dismissed the Applicant’s claims (Kočner v Europol T-528/20) holding that no
causal link could be established between Europol’s conduct and the purported
damages stemming from the data made public from the mobile phones, and that the
Applicant had not provided any evidence demonstrating that the ‘mafia lists’
had been drawn up by Europol. <o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;"><o:p> </o:p></p>
<p class="MsoNormal" style="text-align: justify;">In his appeal, the Applicant asks
the Court of Justice to set aside the General Court’s ruling on the basis of
six points of law. For the purpose of the current contribution however, the
focus will be on the argument raised by the Applicant concerning the nature of
the EU’s liability. Specifically, the Applicant argues that the General Court
erred in law for having disregarded Europol’s liability in light of recital 57
of the Europol Regulation related to joint and several liability. In other
words, this claim by the Applicant juxtaposes the concept of ‘joint and several
liability’ with the notion of joint responsibility more generally, contending
that the implications of these different approaches to responsibility may have
yielded a different outcome in the case. According to the Applicant, the fact
that the General Court did not consider Europol’s liability through the
standard of ‘joint and several liability’ constitutes an error depriving
recital 57 of the Europol Regulation of any significance. <o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;"><o:p> </o:p></p>
<p class="MsoNormal" style="text-align: justify;">The arguments advanced by the
Applicant provide the Court of Justice with the first-ever opportunity to rule
on the scope and implications of the concept of joint and several liability of
Europol, which – given the marginal case law on joint responsibility for human
rights harms more generally – could prove very instructive in clarifying the
conditions of joint responsibility and the manner in which such responsibility
should be allocated between the EU and the Member States. <o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;"><o:p> </o:p></p>
<p class="MsoNormal" style="text-align: justify;"><b>The Opinion <o:p></o:p></b></p>
<p class="MsoNormal" style="text-align: justify;"><o:p> </o:p></p>
<p class="MsoNormal" style="text-align: justify;">After dismissing an admissibility
objection by Europol, Advocate General Rantos identifies six grounds of appeal,
of which four relate to the question of whether unlawful data processing occurred
by Europol. The remaining two points of appeal concern the nature of Europol’s
liability and the concept of ‘joint and several liability’ specifically. <o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;"><o:p> </o:p></p>
<p class="MsoNormal" style="text-align: justify;">The question of the nature of
Europol’s responsibility essentially revolves around recital 57 and Article 50
of the Europol Regulation. As aforementioned, recital 57 introduces the concept
of joint and several liability where it may “…be unclear for the individual
concerned whether damage suffered as a result of unlawful data processing is a
consequence of action by Europol or by a Member State”. This provision
covers only liability issues relating to unlawful data processing and only
insofar it is unclear to which party the (unlawful) data processing should be
attributed, whereas the preceding recital 56 recalls that for all other
questions of non-contractual liability, the EU’s general liability rules – as
articulated in the CJEU’s Bergaderm ruling – apply. <o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;"><o:p> </o:p></p>
<p class="MsoNormal" style="text-align: justify;">Chapter 7 of the Europol
Regulation covers remedies and liability and Article 50 specifically, addresses
liability stemming from unlawful data processing. This provision holds in its
first paragraph that anyone having suffered damage from unlawful data processing
will be entitled to receive compensation from either Europol in line with the
general liability rules of article 340 TFEU, or from the Member State in which
the unlawful data processing occurred in accordance with its domestic law. The
second paragraph (Article 50(2)) holds that where a dispute arises concerning
the ultimate responsibility for compensation, the Management Board of Europol
shall decide by a two-thirds majority who bears the burden of ultimate
responsibility for compensation. Grosso modo the relevant recitals appear to refer
to modalities of responsibility allocation between Europol and the implicated
Member States, whereas Article 50 is concerned with the ensuing obligation of
compensation insofar responsibility has effectively been established. <span style="mso-spacerun: yes;"> </span><o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;"><o:p> </o:p></p>
<p class="MsoNormal" style="text-align: justify;">AG Rantos begins his opinion on
the nature of the EU’s liability by pointing out that while the relevant
recitals do introduce a solidarity-based responsibility mechanism, this is not mentioned
explicitly in its operative counterpart. In fact, the absence of any explicit
reference to joint and several liability in Article 50 led the General Court to
the conclusion that liability in accordance with the general rules on liability
embedded in Article 340 TFEU, could not be causally established. <o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;"><o:p> </o:p></p>
<p class="MsoNormal" style="text-align: justify;">After recalling the conditions to
establish EU liability generally (para 34 – 35), AG Rantos addresses the
question of the nature of Europol’s liability in a threefold manner, recalling
that a provision of EU law must be interpreted mindful of its wording (1), the
context in which it was drafted (2), and its objective and purpose (3), which
may be inferred from its legislative history and through comparative
interpretation. <o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;"><o:p> </o:p></p>
<p class="MsoNormal" style="text-align: justify;">Contrary to Europol, AG Rantos
concedes that the wording of the relevant recitals (which appear to introduce
new modalities of joint responsibility under EU law), and the wording of the
Article 50 (which neglects any reference to joint and several liability and
refers only to compensation) is not unambiguous. To this end, he underscores
that the reference to joint and several liability in recital 57 suggests
concurrent liability for Europol and the Member States, whereas Article 50
literally suggests responsibility for compensation as being a responsibility of
either the Member State or Europol. Similarly, the generic reference to
non-contractual EU liability in Article 340 TFEU, which is to be considered in
line with the general principles common in the laws of the Member States,
leaves room for interpretation. <o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;"><o:p> </o:p></p>
<p class="MsoNormal" style="text-align: justify;">As concerns the context of the
contested provisions, the AG notes that while recitals have no legally binding
force as such, they nevertheless function as an indicator of the intent of the
legislator. In casu, the intent of the legislator was to favor the aggrieved
parties and eliminate any questions of attribution. The AG concludes that this
is not in conflict with Article 50, following which the latter must be
interpreted in light of recital 57 and the concept of joint and several
liability. <o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;"><o:p> </o:p></p>
<p class="MsoNormal" style="text-align: justify;">Finally, the objectives of recital
57 of the Europol Regulation may be discerned through its legislative history
and a comparative interpretation of its meaning in light of general principles
common to the Member States. Here, the AG recalls that the concept of ‘joint
and several liability’ had been introduced in the very first Commission
proposal and had been included among others to limit the difficulties
encountered by aggrieved parties in attributing unlawful processing to either
the Member States or the EU. Furthermore, a comparative analysis of this
concept reveals that Member States make use of this mode of liability in cases
where attribution of unlawful conduct may be hard to establish. The Advocate
General concludes that suspending the procedure before EU courts while the
concomitant domestic procedure against the Member State is pending – as
typically occurs for questions of joint responsibility – would deprive Article
50 interpreted through recital 57 of any significance. It flows from this that
concurrent proceedings would thus be possible.<span style="mso-spacerun: yes;">
</span><o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;"><br />
<b>Analysis <o:p></o:p></b></p>
<p class="MsoNormal" style="text-align: justify;"><o:p> </o:p></p>
<p class="MsoNormal" style="text-align: justify;">The case deals with a situation
of ‘many hands’ cooperation involving a Member State which gives rise to a
question of unlawful data processing, arguably falling within the ambit of
Article 7 (respect for private and family life) and 8 (protection of personal
data) of the Charter. Flowing from this, the Applicant argues that Europol
should be held responsible under the rules of joint and several liability,
whereas Europol contends that this should be assessed under the standard rules
of joint responsibility which are derived from the Bergaderm ruling. In
essence, this is a question of whether the lex generalis applies or instead,
whether a lex specialis applies. As aforementioned, the Advocate General
recommends that the case be re-examined by the General Court, in light of the
(underdeveloped) rules on joint and several liability, whereby he concurs with
the Applicant that it is unclear to which party the conduct should be
attributed. <o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;"><o:p> </o:p></p>
<p class="MsoNormal" style="text-align: justify;">The Francovich and Brasserie du
Pêcheur judgments, spell out the conditions for Member State liability under EU
law, whereas the Bergaderm judgment spells out the conditions for
non-contractual responsibility of the EU institutions. These conditions require
that for responsibility to arise, there must be a (sufficiently serious) breach
of EU law, that causally gives rise to damage. In certain cases, the CJEU will
also demand that the conduct must be attributable to the EU actor under
scrutiny. <o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;"><o:p> </o:p></p>
<p class="MsoNormal" style="text-align: justify;">These rules apply to
responsibility and joint responsibility between the EU and its Member States
generally, but importantly do not prejudice more tailored, specific or
alternative rules on (joint) liability. An alternative, bifurcated approach to
liability exists in the realm of EU data processing. On the one hand, there are
the data-processing specific rules for Member State liability embedded in the <a href="https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A02016R0679-20160504&qid=1532348683434">GDPR</a>.
On the other hand, there are specific liability rules for data processing
applicable to EU institutions, bodies, offices and agencies as embedded in the <a href="https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32016L0680">Data
Protection Law Enforcement Directive</a>, as well as the <a href="https://eur-lex.europa.eu/legal-content/EN/TXT/?qid=1552577087456&uri=CELEX:32018R1725">Data
Processing by the EU Institutions and Bodies Regulation</a>. These data
processing-specific rules apply, unless there are more specific rules that have
been developed, which is the case for processing of operational data by Europol
(Article 2(3) Data Processing by the EU Institutions and Bodies Regulation). In
other words, more specific rules have been developed for situations involving
processing of data for Europol. Accordingly, when it is clear to which actor
(the Member State or Europol) unlawful data processing should be attributed,
the regular rules on liability apply, in accordance with the domestic regime
for Member State liability and in accordance with the action for damages
concerning Europol’s liability (Article 50(1) Europol Regulation). However,
when attribution is not clear, joint and several liability applies (recital 57 in
juncto Article 50(2) Europol Regulation), leaving it to the Management Board to
decide in case of conflict who bears the ultimate responsibility to provide
compensation for the inflicted harm (Article 50(2) Europol Regulation). <o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;"><o:p> </o:p></p>
<p class="MsoNormal" style="text-align: justify;"><b>Juxtaposing Joint Liability
and Joint and Several Liability <o:p></o:p></b></p>
<p class="MsoNormal" style="text-align: justify;"><b><o:p> </o:p></b></p>
<p class="MsoNormal" style="text-align: justify;">This approach appears to give
rise to procedural efficiency from the perspective of the Applicant and appears
to relax the Bergaderm conditions for EU responsibility to arise.<span style="mso-spacerun: yes;"> </span><o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;"><o:p> </o:p></p>
<p class="MsoNormal" style="text-align: justify;"><b>Choosing the Judicial Forum <o:p></o:p></b></p>
<p class="MsoNormal" style="text-align: justify;"><o:p> </o:p></p>
<p class="MsoNormal" style="text-align: justify;">The objective of the joint and
several liability mechanism is to ensure that the Applicant’s rights are
safeguarded. This means that unlike the system of joint EU-Member State responsibility,
the domestic court will not necessarily be the primary forum to establish
responsibility and the ensuing burden of reparations. Instead, the aggrieved
individual could go through either the domestic legal system or the EU’s action
for damages to have responsibility established. Upon conclusion of the legal
procedures and once the Applicant has been awarded damages, these actors could
subsequently settle any dispute on the duty to provide reparations in a
subsequent procedure within the Management Board of Europol, the decision of
which could also be subject to legal scrutiny under the annulment procedure.
Under this mechanism, the Applicant enjoys a much lesser of a burden in
choosing the appropriate judicial venue and is not constrained by which actor
will be able to provide reparations. Instead, reparations (in case of
responsibility) will be the default from the perspective of the Applicant. <o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;"><b><o:p> </o:p></b></p>
<p class="MsoNormal" style="text-align: justify;"><b>Attribution and Causation
Revisited <o:p></o:p></b></p>
<p class="MsoNormal" style="text-align: justify;"><o:p> </o:p></p>
<p class="MsoNormal" style="text-align: justify;">The system of joint and several <span style="mso-ansi-language: EN-GB;">liability </span>suggests that as soon as a
situation implicates both Europol and a Member State, and the questionable
conduct cannot be definitely attributed to either entity, the requirement of
attribution becomes obsolete, as the conduct will be considered attributable to
both in full. Interestingly, by relaxing the requirement to establish
attribution, the condition of causation will arguably also be relaxed. It is
important to recall that while attribution links a particular line of conduct
to an actor, causality links that actor to the damage. Relaxing the rules of
attribution under the joint and several liability regime and doing away with
the requirement to definitively attribute conduct to one or the other, ipso
facto entails that the requirement of causality as it currently is being
applied, can never be met. Causation under general EU liability law demands
that there is an uninterrupted relationship between the unlawful conduct by a
certain actor, giving rise to damage. Yet, in the absence of an obligation to
attribute to either the Member State or the EU, the unlawful data processing
will be considered attributable to both. If the unlawful conduct is considered
attributable to both, it is then unclear how this impacts the causality requirement,
which demands that the chain of causation linking the damage to the unlawful
conduct by a particular actor, be uninterrupted by intervening acts. <o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;"><o:p> </o:p></p>
<p class="MsoNormal" style="text-align: justify;"><b>Lingering Questions for the EU
Courts <o:p></o:p></b></p>
<p class="MsoNormal" style="text-align: justify;"><o:p> </o:p></p>
<p class="MsoNormal" style="text-align: justify;">In light of the limited case law
on EU (joint) responsibility generally, a number of questions remain
unaddressed including by Advocate General Rantos either. <o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;"><o:p> </o:p></p>
<p class="MsoNormal" style="text-align: justify;"><b>Attribution <o:p></o:p></b></p>
<p class="MsoNormal" style="text-align: justify;"><o:p> </o:p></p>
<p class="MsoNormal" style="text-align: justify;">A first small but pervasive
question that demands further clarification concerns when Article 50 read in
light of recital 57 of the Europol Regulation is triggered. The presumption
appears to be that it is straightforward to distinguish between scenarios in
which attribution can be definitively established, and situations in which it
is unclear to which entity the unlawful data processing should be attributed.
Yet, to date no clear standard of attribution can be definitely discerned under
the general system of EU liability. In fact, practice by the EU institutions
internally, in international relations, and across different EU policy fields,
suggests that the rule of attribution differs significantly in a rather
haphazard manner. This is complicated by the absence of a common legal forum to
settle responsibility questions implicating the EU and Member States in
unlawful data processing. The applied attribution rules under domestic regimes
may very well differ from attribution rules under the EU’s liability regime for
example, and to date, it is not clear which attribution rules should prevail,
much less how this impacts whether Europol’s joint and several liability
mechanism is triggered. Arguably, the absence of a coherent and clarified
approach to attribution under EU law means that it will be easier for
Applicants to trigger joint and several liability under the Europol Regulation.
However, this remains to be seen, and is as always, dependent on the applicable
burden, standard and method of proof required to show that it’s unclear to
which actor the unlawful data processing should be attributed. <o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;"><o:p> </o:p></p>
<p class="MsoNormal" style="text-align: justify;"><b>Joint and Several Liability
Beyond Data Processing<o:p></o:p></b></p>
<p class="MsoNormal" style="text-align: justify;"><o:p> </o:p></p>
<p class="MsoNormal" style="text-align: justify;">The question of human rights
liability for violations occurring at the hands of operational EU agencies has
gained much traction in recent years. The current pending actions for damages
against Frontex prompt the question whether a – CJEU clarified – system of
joint and several liability may be a way forward. Anyone who has attended a
conference or workshop involving Frontex representatives, has undoubtedly been
confronted with the scripted answer to questions of human rights
responsibility: ‘Frontex is not responsible for such actions – Frontex merely
coordinates Member State actions’. Leaving aside the veracity of this response,
it is undisputed the current regime of liability allocation has resulted in
much blame shifting at the expense of individual rights. Conversely, the system
of joint and several liability introduced by the Europol Regulation may very
well be a way to circumvent this type of blame-shifting, safeguard the rights
of the individual while ensuring that the burden of reparation is not
circumvented by one at the expense of the other. A well-developed system of
joint and several liability could thus fulfill both a remedial function –
namely to protect the Applicants’ fundamental rights, as well as a deterrence
function. By increasing the likelihood of legal responsibility through more relaxed
rules on attribution and causation, EU institutions, bodies, offices and
agencies may be disincentivized to resort to ‘many hands’ to circumvent
responsibility claims in implementing their policies, or at least be
incentivized to clarify their own rules on (human rights) responsibility
allocation. Of course, I write this knowing full well that it is precisely
these institutions that prefer to continue operating in the ‘many hands’
murkiness and that clarified rules on responsibility will receive political
push-back and may disincentivize operational agencies from providing support in
tackling transnational issues. Yet, once every so often, a unicorn-like
development surfaces in the field of EU human rights responsibility, as
evidenced by the joint and several liability mechanism in this case. Who knows
– maybe this same unicorn will resurface in the EU’s responsibility acquis more
generally? In any event, I await the CJEU’s perspective on this matter
eagerly.<span style="mso-spacerun: yes;"> </span><o:p></o:p></p>Steve Peershttp://www.blogger.com/profile/05869161329197244113noreply@blogger.com0tag:blogger.com,1999:blog-8704899696538705849.post-4217220884967571312023-10-15T15:03:00.003-07:002023-10-15T15:05:16.347-07:00 Analyzing the legality of the EU Commission’s proposed withdrawal of preferential tariffs for third countries when cooperation on migrant returns ‘fails’--an unholy alliance of trade and migration? <p> </p>
<p class="MsoNormal" style="text-align: justify;"><span lang="DE"><o:p> </o:p></span></p><div class="separator" style="clear: both; text-align: center;"><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEguutxj1PrcztqPDlw3lYTPtdmEJsZbSV7jIXojkBgTdKGzUS72p73yX7EByi_pep8J13Xy9vBjhEkWdVwA5Uui4fXyPegDsoceahVBNhFRRYZDfeIlJVVoWhDnxwUPFmgTnhREsVSSUlXVepIERAexeXSsD_eiDHMH7O-rbLjoozrobAEN6F2dvMYjZOA/s1832/ships.jpg" imageanchor="1" style="margin-left: 1em; margin-right: 1em;"><img border="0" data-original-height="1184" data-original-width="1832" height="274" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEguutxj1PrcztqPDlw3lYTPtdmEJsZbSV7jIXojkBgTdKGzUS72p73yX7EByi_pep8J13Xy9vBjhEkWdVwA5Uui4fXyPegDsoceahVBNhFRRYZDfeIlJVVoWhDnxwUPFmgTnhREsVSSUlXVepIERAexeXSsD_eiDHMH7O-rbLjoozrobAEN6F2dvMYjZOA/w423-h274/ships.jpg" width="423" /></a></div><br /><p></p>
<p class="MsoNormal" style="text-align: justify;"><b><span lang="DE">Marion Panizzon</span></b><span lang="DE">, Senior Research Fellow, World Trade Institute, University of Bern*<o:p></o:p></span></p>
<p class="MsoNormal" style="text-align: justify;"><span lang="DE"><o:p> </o:p></span></p>
<p class="MsoNormal" style="text-align: justify;"><span lang="DE">*Privat-Docent, Dr.
iur., LL.M., Senior Research Fellow, World Trade Institute, University of Bern
and Legal Consultant, World Trade Advisors, Ltd. Geneva. I thank Dr. Alan
Desmond, Leicester University for his thoughtful comments on several earlier
drafts. I’m grateful to Dr. Christian Häberli, World Trade Institute, for his
critical read of an earlier draft in light of current WTO law and practice.<o:p></o:p></span></p>
<p class="MsoNormal" style="text-align: justify;"><span lang="DE"><o:p> </o:p></span></p>
<p class="MsoNormal" style="text-align: justify;"><b><span lang="DE">Photo credit</span></b><span lang="DE">: NOAA, via <a href="https://commons.wikimedia.org/wiki/File:Container_ships_President_Truman_(IMO_8616283)_and_President_Kennedy_(IMO_8616295)_at_San_Francisco.jpg">Wikimedia
commons</a><o:p></o:p></span></p>
<p class="MsoNormal" style="text-align: justify;"><span lang="DE"><o:p> </o:p></span></p>
<p class="MsoNormal" style="text-align: justify;"><span lang="DE"><o:p> </o:p></span></p>
<p class="MsoNormal" style="text-align: justify;"><span lang="DE">As a strategy to
rebalance uneven negotiating positions, the ‘comprehensive approach’ defined in
paragraph 11 of the Global Compact for Safe, Regular and Orderly Migration
(GCM) sets the stage for rendering more <a href="https://documents-dds-ny.un.org/doc/UNDOC/GEN/N18/451/99/PDF/N1845199.pdf?OpenElement">attractive</a>
EU trade and EU external migration policy to third countries. However, the
comprehensive approach, considered a component of ‘shared responsibility’ under
the GCM is often confounded with conditionality, because both might, according
to <a href="https://eulawanalysis.blogspot.com/search?q=migration">Hocquét 2023</a>,
expand the radius of migration policies, to areas outside its immediate realm. There
are marked differences though, since conditionality establishes a<span style="mso-spacerun: yes;"> </span>co-dependency between measures the EU wishes
to implement, with areas of interest to the third country, being education,
energy, natural resources, climate adjustment, public health (<a href="https://academic.oup.com/book/7697/chapter/152824695?login=true">Peers
2016</a>). Conversely, the comprehensive approach while based on mutuality,
rather than reciprocity, ideally strives to create the win-win-win situations,
in most cases, breaks down to integrating safe pathways with border management
(<a href="https://www.mdpi.com/1893778">Vitiello 2022</a>)<o:p></o:p></span></p>
<p class="MsoNormal" style="text-align: justify;"><span lang="DE"><o:p> </o:p></span></p>
<p class="MsoNormal" style="text-align: justify;"><span lang="DE">In trade, ‘rights-based
conditionality’ for obtaining trade preferences, has been criticized by academics
(<a href="https://www.jstor.org/stable/48597361">Hafner-Burton et al. 2019</a>)
and UNCTAD alike <a href="https://heinonline.org/HOL/LandingPage?handle=hein.kluwer/jwt0041&div=36&id=&page=">(Irish
2007</a>), and materializes when preferential import duties are leveraged for securing
the developing or least-developed country’s cooperation to fulfill an EU public
good, including <a href="https://policy.trade.ec.europa.eu/news/commission-proposes-new-eu-generalised-scheme-preferences-promote-sustainable-development-low-income-2021-09-22_en">combatting</a>
narcotics trading, child labor and worker exploitation, <span style="mso-spacerun: yes;"> </span>as well as the smuggling and trafficking. At
the outset, the trade and development chapter inserted in the 1960s into the
General Agreement on Tariffs and Trade (GATT) had empowered developing and
least-developed countries to catch-up. One such avenue came in the shape of GSP
developed under the auspices of the UNCTAD in 1968 and anchored by several
temporary waivers into GATT, to protect infant industries thru non-reciprocal
treatment (<a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=630760">Michalopoulos
2020</a>). Today, the expectation on trade preferences is that they fulfill non-trade
policy objectives (NTPO), which is an attribution that distorts the original
idea behind the GATT Art. XXIV and the subsequent Enabling Clause, permanently waiving
the most-favored nation treatment otherwise due if a WTO Member lowers a tariff(<a href="https://ecdpm.org/work/square-pegs-in-round-holes-using-trade-policy-for-non-trade-objectives-volume-9-issue-2-2020/eu-trade-policies-carrot-and-stick-mechanisms-in-pursuit-of-non-trade-policy-objectives">ECDPM
2020</a>).<o:p></o:p></span></p>
<p class="MsoNormal" style="text-align: justify;"><span lang="DE"><o:p> </o:p></span></p>
<p class="MsoNormal" style="text-align: justify;"><span lang="DE"><a href="https://policy.trade.ec.europa.eu/news/commission-proposes-new-eu-generalised-scheme-preferences-promote-sustainable-development-low-income-2021-09-22_en">Initiated
in 2021</a>, the EU Commission’s reform of Regulation EU 978/2012 Generalized
System of Preferences (GSP) for developing and least-developed countries, proposes
to expand by the area of migrant readmission, the cooperation the EU requires
from beneficiary countries for exports from those countries to benefit from a
lower or <a href="https://policy.trade.ec.europa.eu/development-and-sustainability/generalised-scheme-preferences_en">zero
import duty on two-thirds of tariff lines under standard GSP</a>, a zero duty
on the same tariff lines, conditioned on the ratification of 27 conventions (GSP+)
or a zero import duty on all products from LDCs except for arms and ammunition
(Everything-but-Arms, EBA) <span style="mso-spacerun: yes;"> </span>into the EU.
Adding to the EU’s long list of incentives to buy origin countries’ approval
for sending back their citizens in irregular stays in the EU, the Commission’s
proposal, critically viewed by the EU Parliament, NGOs, and academics alike,
would have complemented that listing by adding preferential trade initiatives
to it. Inversely, the GSP Regulation, equally boasting an ever increasing to-do
list of criteria countries need to fulfill in order to enjoy the preferences,
has now been topped by the criteria of readmitting (irregular) migrants. <o:p></o:p></span></p>
<p class="MsoNormal" style="text-align: justify;"><span lang="DE"><o:p> </o:p></span></p>
<p class="MsoNormal" style="text-align: justify;"><span lang="DE">The legality of both
the EU external migration system with the new addition of trade and the EU GSP
regulation with its expansion to include migration policy, poses challenges of
legality and practicability under WTO law, as academics and practitioners have
analysed and this post discusses.<o:p></o:p></span></p>
<p class="MsoNormal" style="text-align: justify;"><span lang="DE"><o:p> </o:p></span></p>
<p class="MsoNormal" style="text-align: justify;"><span lang="DE">In its reform
proposal of <a href="https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:02012R0978-20170101&from=EN">EU
GSP Regulation</a> 978/2012, the EU Commission suggest for the very first time,
to interlace EU external migration policy, notably EU readmission agreements
and cooperation on assisted and voluntary return to the EU’s GSP for the period
of 2024-34. In particular the proposal foresees to up the ante of EU Regulation
978/2012 withdrawal of tariff preferences procedure by adding migrant
readmissions as one benchmark to measure good governance, the former which is,
alongside sustainable development and human rights one of the areas of
cooperation which can conditionality rewards either positively or which is sanctioned
off negatively, by the withdrawal or suspension of preference, ranging from
visa relaxation, development cooperation or lowered import tariffs into the EU.
As <a href="https://eumigrationlawblog.eu/the-policy-intrusion-of-migration-management-eu-development-development-and-visa-policies/">Grundler
and Guild</a> 2023 have observed, the negative conditionality (<a href="https://ecdpm.org/application/files/3316/7845/4683/How-EU-Promotes-Democracy-Human-Rights-Gender-Equality-Global-Europe-Beyond-ECDPM-Discussion-Paper-337-2023.pdf">Sabourin
and Jones 2023</a>) which the Commission would like to see, is insofar not
surprising, as EU member states have traditionally taken to constructs double
binds, pitting legal pathways against migration control (<a href="https://odysseus-network.eu/wp-content/uploads/2021/09/Odysseus-Series-Blog-Post-new-Pact.pdf">Garcia-Andrade
2020:260</a>) in bilateral migration agreements, with questionable outcome.<o:p></o:p></span></p>
<p class="MsoNormal" style="text-align: justify;"><span lang="DE">.<o:p></o:p></span></p>
<p class="MsoNormal" style="text-align: justify;"><span lang="DE">Whereas the EU has
inserted Art. 25(a), a readmission clause in its 2019 revision of the<span style="mso-spacerun: yes;"> </span><a href="https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=uriserv%3AOJ.L_.2019.188.01.0025.01.ENG">Schengen
Visa Code</a> (<a href="https://ecdpm.org/work/the-new-eu-visa-code-and-what-it-means-for-african-countries">Bisong
2019</a>; <a href="https://eumigrationlawblog.eu/the-policy-intrusion-of-migration-management-eu-development-development-and-visa-policies/">Grundler
and Guild 2023</a>), the Commission’s activating the Union’s common commercial
policy <a href="https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A12008E207">Art.
207 TFEU</a>, to secure cooperation on readmissions, uses a new tool for the
same purpose, yet without specifying the periodicity of review of third
countries’ cooperation or lack thereof, as Art. 25a does. Several human rights
organizations have remarked in response to the Commission’s proposal and the <a href="https://www.consilium.europa.eu/en/press/press-releases/2022/12/20/council-approves-reinforced-rules-on-granting-trade-preferences-to-developing-countries/">Council’s
endorsement in 2022</a>, that the insertion of migration, is shaky on more than
one legal ground (<a href="https://www.hrw.org/news/2023/02/28/joint-ngo-letter-delete-reference-readmission-conditionality-draft-gsp-reform">Human
Rights Watch</a>, <a href="https://www.fidh.org/en/international-advocacy/european-union/eu-negotiators-must-oppose-migration-conditionality-in-the">FIDH</a>,
<a href="https://ecre.org/wp-content/uploads/2020/01/PN_25.pdf">ECRE</a>).<o:p></o:p></span></p>
<p class="MsoNormal" style="text-align: justify;"><span lang="DE"><o:p> </o:p></span></p>
<p class="MsoNormal" style="text-align: justify;"><span lang="DE">Firstly, withdrawing
the preferential tariff treatment, which LDC and developing countries obtain
under one of the three pillars of the GSP, GSP+ and Everything-but-Arms (EBA)
treatment might be unlawful under the <a href="https://www.europarl.europa.eu/RegData/etudes/IDAN/2022/653661/EXPO_IDA(2022)653661_EN.pdf">WTO
Appellate Body jurisprudence</a>, as shown by DG External Policies’ Report on
the proposed GSP reform (2022). In that WTO decision of 2004, the benefit of
lower tariffs must be granted on a non-discriminatory basis to ‘similarly
situated beneficiary countries’ and a clear link between the benefit granted
and the ‘development objective’ be made. Hence, the idea of threatening a
developing or least developed country with the withdrawal of a tariff
preference, is not new, as <a href="https://academic.oup.com/book/7697/chapter/152824695?login=true">Peers
(2016)</a> points out (534-537), but the EU Parliament in its criticism of the
EU Commission’s proposed new EU GSP Regulation <span style="mso-spacerun: yes;"> </span>had legitimate concern, that the EU would be
creating the similar situation that had led the WTO Appellate Body ruling in EC-Tariff
Preferences, to condemn it and which had put a stop to any selective imposition
of trade preferences (<a href="https://academic.oup.com/jiel/article/6/2/507/808506?login=true">Bartels
2003</a>). <o:p></o:p></span></p>
<p class="MsoNormal" style="text-align: justify;"><span lang="DE"><o:p> </o:p></span></p>
<p class="MsoNormal" style="text-align: justify;"><span lang="DE">Up until this day,
the Commission rewards countries of origin for cooperating on forced returns,
border screening, information campaign, via visa relaxations for diplomatic
staff, journalists, by facilitating remittances transfers and lowering costs,
by a promise of better integration of third country nationals <a href="https://academic.oup.com/book/7697/chapter/152824695?login=true">(Peers 2016).</a>
In so doing, the EU has treated different migrant origin countries,
differently, yet, so far, without risking WTO incompatibility, since if visa,
remittances or integration remain outside the scope of the WTO. The situation
is different, given the recently suggested negative trade conditionality,
contingent on withdrawing tariff preferences, when a readmission cannot take
place. It implies that the Commission must define ‘objective’ benchmarks around
readmission, for when that tariff treatment is to be removed in addition to
treating similarily situated countries, identically. <o:p></o:p></span></p>
<p class="MsoNormal" style="text-align: justify;"><span lang="DE"><o:p> </o:p></span></p>
<p class="MsoNormal" style="text-align: justify;"><span lang="DE">Secondly, the EP
during the 2022 inter-institutional trilogues between Council, Commission, ascertained
that tying preferences to readmission of one’s own nationals, might be too far
removed a conditionality. Recently, the EP’s international trade (<a href="https://www.europarl.europa.eu/legislative-train/theme-an-economy-that-works-for-people/file-new-gsp-regulation">INTA)
committee on 19 September 2023</a> voted in favour of <a href="https://ec.europa.eu/transparency/documents-register/detail?ref=COM(2023)426&lang=de">extending</a>
the current EU GSP scheme to 31 December 2027, which the Commission proposed to
avoid the current GSP lapsing in light of the lack of agreement on the main
proposal, until the Parliament and Council can agree on how to update that
Regulation. Meanwhile, INTA has not further entered into discussions about
circumscribing the exact legal scope triggering a potential tariff withdrawal,
whether a non-implementation of an EU readmission agreement or of a bilateral
readmission agreement must be shown, or whether the refusal to negotiate such
an agreement in the first place is sufficient to trigger the clause, or, as the
<a href="https://www.europarl.europa.eu/RegData/etudes/IDAN/2022/653661/EXPO_IDA(2022)653661_EN.pdf">DG
External Relations</a> suggested, the non-compliance with international obligations
under a EURA. Nonetheless, the Commission’s proposal currently stands at the
brink of extinction. Yet, it seems timely to analyse its legality with WTO and
international obligations, as a final vote, after EP elections, could overturn
the INTA’s refusal to follow the Commission’s proposal. <o:p></o:p></span></p>
<p class="MsoNormal" style="text-align: justify;"><span lang="DE"><o:p> </o:p></span></p>
<p class="MsoNormal" style="text-align: justify;"><span lang="DE">In this blogpost, I
discuss legality of the EU’s reform proposal under two WTO instruments, the <a href="https://www.wto.org/english/tratop_e/dispu_e/repertory_e/e1_e.htm">Enabling
Clause</a> 1971, setting the legal basis for the Special and Differential
Treatment of trade in goods from developing and least-developed WTO Members and
the <a href="https://docs.wto.org/dol2fe/Pages/SS/directdoc.aspx?filename=q:/WT/L/847.pdf&Open=True">LDC
Services Waiver</a> 2011, to understand which out of the two takes origin
country concerns seriously. In so doing, I draw on the discussion started by <a href="https://eumigrationlawblog.eu/passing-political-pressure-for-a-development-agenda-wto-law-limits-to-the-trade-migration-linkage-in-the-proposed-eu-gsp-regulation/">Vidigal</a>
(2023) and <a href="https://eumigrationlawblog.eu/ensuring-the-return-of-mode-4-service-suppliers-without-admitting-them-in-the-first-place/">Tans</a>
(2023) about why the<span style="mso-spacerun: yes;"> </span>Commission proposal
conflicts with WTO rules. In so doing, I touch upon the number of preferential
trade agreements (PTAs) which, similarily, have used a trade component as the quid-pro-quo
for obtaining a partner’s cooperation on irregular migration. Since PTAs pit
trade in services, and thus a form of legal pathways (as opposed to trade in
goods) to return migration, within their chapters on the temporary movement of
natural persons, the conditionality is more closely or directly contingent on
people-on-the-move.<o:p></o:p></span></p>
<p class="MsoNormal" style="text-align: justify;"><span lang="DE"><o:p> </o:p></span></p>
<p class="MsoNormal" style="text-align: justify;"><span lang="DE">Consequently, the EU
Commission were better advised to negotiate such openings of its services markets
for service supplying natural persons, from countries of origin, within one of
its deep and comprehensive free trade agreements (DCFTA) than to go freestyle
by attempting to match migrant readmission with trade-in-goods. Not only are
countries of origin deeply in need of docking onto the global services markets,
but that linkage to readmission, at least in theory, appears to be an immediate
one, since services is the only trade flow, hinging, for face-to-face delivery,
directly on human factor mobility. Finally, there is in WTO law, a legal basis
for enabling such one-way flows of natural persons from developing and
least-developing countries (LDCs), without this asymmetric trade posing problem
under the WTO GATS most-favored nation clause (MFN), as discussed below.<o:p></o:p></span></p>
<p class="MsoNormal" style="text-align: justify;"><span lang="DE"><o:p> </o:p></span></p>
<p class="MsoNormal" style="text-align: justify;"><span lang="DE"><b>Aggregated
conditionality as catalyst of informalizing EU migration cooperation</b><o:p></o:p></span></p>
<p class="MsoNormal" style="text-align: justify;"><span lang="DE"><o:p> </o:p></span></p>
<p class="MsoNormal" style="text-align: justify;"><span lang="DE">As <a href="https://www.frontiersin.org/articles/10.3389/fhumd.2023.1207628/abstract">Frasca
(2023)</a> and <a href="https://www.cambridge.org/core/journals/leiden-journal-of-international-law/issue/5E7FEA02D60B342265AD129DBC7DB2CC">Desmond
(2023)</a> point out, soft law, in the EU external migration context, re-asserts
EU sovereignty in instances, where a legally binding obligation on shaky
grounds. The key catalyst to jumpstart the process turns out to be
conditionality, whitewashed as the comprehensive approach, because it allows to
create the traction that soft law lacks. Consequently, conditionality
substitutes for a norm failing to deploy a legally binding effect, whether a
country refuses to embrace the internationally binding quality of the duty to
take back one’s own nationals or considers not being concerned by the duty to
take back one’s own nationals. However, the role of conditionality when the EU
deploys its armada of informalized migration arrangements, whether
partnerships, technical readmission arrangements, <a href="https://arts.unimelb.edu.au/__data/assets/pdf_file/0009/3409830/Bangladesh-1.pdf">standard
operation procedures</a>, dialogues still needs more research.<o:p></o:p></span></p>
<p class="MsoNormal" style="text-align: justify;"><span lang="DE"><o:p> </o:p></span></p>
<p class="MsoNormal" style="text-align: justify;"><span lang="DE">Under the <a href="https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A52020DC0609&qid=1605029899839">New
Pact on Migration and Asylum</a> of 23 September 2020, conditionality was up
for a supposedly ‘fresh start’ with the<span style="mso-spacerun: yes;"> </span><a href="https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=COM%3A2022%3A657%3AFIN&qid=1651223944578">Communication,
Attracting Skills and Talents to the EU</a> (27 April 2022), spearheading the <a href="https://home-affairs.ec.europa.eu/policies/migration-and-asylum/legal-migration-and-integration/talent-partnerships_en">Talent
partnerships</a> complementing <a href="https://home-affairs.ec.europa.eu/policies/international-affairs/collaboration-countries/eastern-partnership/mobility-partnerships-visa-facilitation-and-readmission-agreements_en">EU
mobility partnerships</a> as a multidimensional response to the 18 <a href="https://home-affairs.ec.europa.eu/policies/migration-and-asylum/irregular-migration-and-return/humane-and-effective-return-and-readmission-policy_en">EU
readmission agreements</a> (2023) and 6 arrangements, which regularly fail for
non-reciprocally engaging with the sending country ‘s interests and needs (<a href="https://www.bloomsbury.com/uk/law-and-judicial-dialogue-on-the-return-of-irregular-migrants-from-the-european-union-9781509943470/">Moraru,
Cornelisse and de Bruycker 2022</a>). <span style="mso-spacerun: yes;"> </span>Whereas the Commission was not yet breaking
with positive conditionality driving much of the EU external migration policy,
conditionality’s new focus on vocational and professional upskilling of
trainees thru circular Talent Partnerships bears evidence that the Commission
is on the lookout for new anchors by which to reinvigorate conditionality, and
its EU external migration policy (<a href="https://www.epc.eu/content/PDF/2023/Funding_the_EUs_external_migration_policy_DP.pdf">Tsourdi,
Zardo and Sayed 2023</a>).<o:p></o:p></span></p>
<p class="MsoNormal" style="text-align: justify;"><span lang="DE"><o:p> </o:p></span></p>
<p class="MsoNormal" style="text-align: justify;"><span lang="DE">Whereas negative
conditionality, which retributes a third country for its lack of cooperation on
implementing EU migration policy, has prompted Ethiopia and Afghanistan to sign
non-binding readmission declarations (<a href="https://www.swp-berlin.org/10.18449/2020C34/">SWP Berlin 2020</a>), the
threatened suspension of development aid, has never materialized. Speaking
against negative conditionality, as the one the Commission proposes for trade
preferences is that raising visa processing charges has not encouraged
cooperation (<a href="https://eumigrationlawblog.eu/the-policy-intrusion-of-migration-management-eu-development-development-and-visa-policies/">Grundler
and Guild</a> 2023), nor is cutting development aid the appropriate penalty for
a country such as Nigeria, where remittances are high and thus, installing of
vocational training makes more of a difference (<a href="https://www.sem.admin.ch/sem/en/home/international-rueckkehr/ch-migrationsaussenpolitik/abkommen/migrationspartnerschaften.html">Nigeria-Switzerland
Migration Partnership of 2011</a>). <o:p></o:p></span></p>
<p class="MsoNormal" style="text-align: justify;"><span lang="DE"><o:p> </o:p></span></p>
<p class="MsoNormal" style="text-align: justify;"><span lang="DE">In 2021, against
the background of arrivals by at-sea crossings and over the central route to
Europe (<a href="https://www.icmpd.org/file/download/58952/file/ICMPD_Migration_Outlook_2023.pdf">ICMPD
2023</a>) tripling, the Commission introduced a new feature to its palette of negative
conditionality for non-cooperation over irregular migration. Under its <a href="https://www.europarl.europa.eu/legislative-train/theme-an-economy-that-works-for-people/file-new-gsp-regulation" target="new">Proposal for a revised GSP Regulation, COM(2021) 579 final</a>
for 2024-2034, the EU would now withdraw preferential trade benefits, either
under the GSP+ (Generalized System of Preferences) granted to the <a href="https://trade.ec.europa.eu/access-to-markets/en/content/generalised-scheme-preferences-plus-gsp">seven
EU beneficiaries</a> (Bolivia, Cape Verde, Kyrgyzstan, Mongolia, Pakistan,
Philippines, Sri Lanka), or for least-developed countries (LDCs) under its <a href="https://trade.ec.europa.eu/access-to-markets/en/content/everything-arms-eba">Everything-but-Arms</a>
(EBA), if ‘beneficiary countries on migration and the readmission of rejected
asylum seekers’ refuse to cooperate (<a href="https://eumigrationlawblog.eu/the-special-treatment-of-developing-countries-the-eu-legislators-migration-controversy/">Guild</a>
2023 in this blogpost).<o:p></o:p></span></p>
<p class="MsoNormal" style="text-align: justify;"><span lang="DE"><o:p> </o:p></span></p>
<p class="MsoNormal" style="text-align: justify;"><span lang="DE"><o:p> </o:p></span></p>
<p class="MsoNormal" style="text-align: justify;"><b><span lang="DE">Along a
well-trodden path—forerunners to identifying trade as leverage for incentivizing
migrant returns<o:p></o:p></span></b></p>
<p class="MsoNormal" style="text-align: justify;"><b><span lang="DE"><o:p> </o:p></span></b></p>
<p class="MsoNormal" style="text-align: justify;"><span lang="DE">For the past decade
or longer, EU Member States have sought to level the playing field over migration
policy among North and West African countries of origin and transit, by
proposing one-size-fits-all bilateral migration management, on the basis of
Art. 79:5 TFEU in the shape of agreements linking legal pathways to cooperation
on returns. <a href="https://www.immigration.interieur.gouv.fr/fr/Europe-et-International/Les-accords-bilateraux/Les-accords-bilateraux-en-matiere-de-circulation-de-sejour-et-d-emploi/Les-accords-bilateraux-avec-certains-Etats-d-Afrique-subsaharienne">France’s
agreements on the joint management of migration flows</a> and solidary
development for example, stepped up labor admission quotas, or created the same
new categories of admission, for all of the seven African countries willing to
sign on to a readmission clause. The suggested EU GSP link to cooperation on
migration, would run counter to precisely those efforts, that remove treating
certain origin countries better than others, thus risking to re-install
post-colonial privileges (<a href="https://scholarship.law.vanderbilt.edu/cgi/viewcontent.cgi?article=1132&context=vjtl">Robertson
2017</a>).<o:p></o:p></span></p>
<p class="MsoNormal" style="text-align: justify;"><span lang="DE"><o:p> </o:p></span></p>
<p class="MsoNormal" style="text-align: justify;"><span lang="DE">Another forerunner
to the prospective trade and (return) migration linkage, is the <a href="https://data.consilium.europa.eu/doc/document/ST-12384-2016-ADD-1/en/pdf">EU
Compact with Jordan</a> which reduces tariffs to duty-free, quota-free exports (DFQF)
for products manufactured in Jordan with 10% (first 2 years) and later on, 15%
‘refugee content’. For becoming eligible for this Everything-but-Arms (EBA)
privilege, Jordan had to temporarily accept a least-developed country (LDC)
status. Whereas Jordan was compensated for employing refugees, in an
afterthought, the DFQF occurred with a view to reducing secondary onward
movement of refugees to Europe (<a href="https://academic.oup.com/rsq/article/39/3/273/5843510">Lenner 2020</a>). If
the EU’s Jordan Compact targeted refugees and not migrants, it was critically
received by scholars (<a href="https://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?article=2167&context=faculty_scholarship">Gordon
2021</a>) and advocates of fair and ethical recruitment under <a href="https://www.ilo.org/global/programmes-and-projects/prospects/news/WCMS_877718/lang--en/index.htm">ILO
standards</a>.<o:p></o:p></span></p>
<p class="MsoNormal" style="text-align: justify;"><span lang="DE"><o:p> </o:p></span></p>
<p class="MsoNormal" style="text-align: justify;"><b><span lang="DE">Tariff Reduction
for Return Migrations? Criticism of the proposed EU GSP 2023-34 <o:p></o:p></span></b></p>
<p class="MsoNormal" style="text-align: justify;"><span lang="DE"><o:p> </o:p></span></p>
<p class="MsoNormal" style="text-align: justify;"><span lang="DE">Trade preferences
can be critical for the survival of a developing country on the global market,
and their withdrawal carries ethical consequences, as discussed by <a href="https://eumigrationlawblog.eu/ensuring-the-return-of-mode-4-service-suppliers-without-admitting-them-in-the-first-place/">Tans
2023</a>. Questions about the legality of the EU GSP scheme under WTO law (<a href="https://odi.org/en/insights/migration-management-and-external-policy-in-europe-are-increasingly-connected-and-thats-problematic/">ODI
Report 2023</a>) also arise. Firstly, for <a href="https://eumigrationlawblog.eu/ensuring-the-return-of-mode-4-service-suppliers-without-admitting-them-in-the-first-place/">Tans</a>,
proposing to retract tariffs if migrant returns seem low (to the EU), is not
immediate enough a link to human mobility (<a href="https://www.europarl.europa.eu/thinktank/en/document/EXPO_IDA(2022)653661">EP
in-depth analysis of the Commission’s proposal of January 2022</a>). In this
line of thinking, the Commission would first need to open legal pathways for
migrants under the temporary movement of persons, the so-called Mode 4, under
an economic partnership agreement (EPA) before it could retract trade
preferences in goods. <o:p></o:p></span></p>
<p class="MsoNormal" style="text-align: justify;"><span lang="DE"><o:p> </o:p></span></p>
<p class="MsoNormal" style="text-align: justify;"><span lang="DE">If we recall how Mode
4 GATS stands as the only format of international human mobility that is liberalised
internationally, under the multilateral WTO/GATS (<a href="https://www.ohchr.org/sites/default/files/Documents/Issues/Migration/StudyMigrants/CivilSociety/VincentChetailTransnationalMovement.pdf">Chetail
2014</a>), Mode 4 presents the very connection between trade and temporary
migration that is missing from the EU’s proposal. Labelled ‘mode 4’ of <a href="https://www.wto.org/english/tratop_e/serv_e/mouvement_persons_e/mouvement_persons_e.htm">Art.
1:2(d) GATS</a> this temporary mobility is a sub-form of international
migration. However, it is limited under an excruciatingly narrow definition, to
a) temporary stay abroad, b) not entering the labor market (only the services)
of the host country c) opened only under commitments by member states d)
categories of persons are narrowly defined, often clustering in the
highly-skilled segments (<a href="https://research.upjohn.org/up_press/14/">Trachtman
2009;</a>). As (<a href="https://eumigrationlawblog.eu/ensuring-the-return-of-mode-4-service-suppliers-without-admitting-them-in-the-first-place/">Tans</a>
in this blogpost) suggests, the EU conditionality working through Everything-but-Arms
(EBA) and GSP+ should only apply to those nationals who move under the EU’s
GATS mode 4 commitments, if they fail to return voluntarily at the end of their
legal temporary stay. <o:p></o:p></span></p>
<p class="MsoNormal" style="text-align: justify;"><span lang="DE"><o:p> </o:p></span></p>
<p class="MsoNormal" style="text-align: justify;"><b><span lang="DE">Looking for
Alternatives 1: Cotonou Convention’s Cooperation on Migrant Returns <o:p></o:p></span></b></p>
<p class="MsoNormal" style="text-align: justify;"><span lang="DE"><o:p> </o:p></span></p>
<p class="MsoNormal" style="text-align: justify;"><span lang="DE">To this day, the
temporary, cross-border movement of natural persons, the so-called Mode 4 has
been missing out of EU economic partnership agreements (EPA) with North African
countries (<a href="https://publications.iom.int/system/files/pdf/Migration_International_Trade_and_Foreign_Direct_Investment.pdf">Cottier
and Shinghal 2021</a>), such that threatening to withdraw tariff preferences
under the EU GSP, or even suspending the cross-border mobility so as to
penalize countries in North Africa for refusing to take back their own citizens
in irregular stays abroad remains illusory. In addition, speaking against
penalizing countries of origin for refusing to take back citizens, and thus, against
applying the EU’s revised GSP, is Art. 74 on ‘return and readmission’ of the 15
April 2021 <a href="https://international-partnerships.ec.europa.eu/system/files/2021-04/negotiated-agreement-text-initialled-by-eu-oacps-chief-negotiators-20210415_en.pdf">negotiated
agreement text</a> initialed by the EU and the ACPs chief negotiators -- a
follow-up to the <a href="https://international-partnerships.ec.europa.eu/policies/european-development-policy/acp-eu-partnership_en">Cotonou
agreement</a><span style="mso-spacerun: yes;"> </span>-- restates Art. 5 Cotonou
agreement with the exception of a return clause which is free from any
conditionality—neither is there a negative consequence for failing to take back
one’s nationals, nor are typical migrant host countries required to open their
labor markets to potential migrant workers. <o:p></o:p></span></p>
<p class="MsoNormal" style="text-align: justify;"><span lang="DE"><o:p> </o:p></span></p>
<p class="MsoNormal" style="text-align: justify;"><b><span lang="DE">Looking for
Alternatives 2: Preferential Trade Agreements and ‘Embedded’ Returns<o:p></o:p></span></b></p>
<p class="MsoNormal" style="text-align: justify;"><span lang="DE"><o:p> </o:p></span></p>
<p class="MsoNormal" style="text-align: justify;"><span lang="DE">Several economic
partnership agreements (EPA) have been consolidating an emerging opinio juris of
obliging the origin country to take back their own nationals, once these have
terminated their temporary stay to supply a service abroad: <span style="mso-spacerun: yes;"> </span><a href="https://www.mofa.go.jp/policy/economy/fta/index.html">Japan’s EPAs</a>
with the <a href="https://www.mofa.go.jp/policy/economy/fta/philippines.html">Philippines</a>
(2008), Indonesia and <a href="https://www.mofa.go.jp/policy/economy/fta/vietnam.html">Vietnam</a>
(2009) codify a return clause, which is linked to a services trade commitment.
It spells out a requirement for the Filipino, Vietnamese nurses and caregivers
to return home, who have failed Japan’s national board examination (NBE). Because
this return clause applies solely to the closed-circuit of the categories of
persons whose movement the EPA facilitates (<a href="https://www.researchgate.net/figure/Number-of-Indonesian-Nurses-coming-to-Japan-based-on-IJEPA_tbl1_241689003">Efendi
at al. 2013</a>; <a href="https://link.springer.com/chapter/10.1057/9781137352217_14">Naiki 2015</a>),
I label it ‘embedded return’. Japan’s EPA of 2019 with the EU, Annex 17 imposes
a duty of cooperation on worker’s returns, even if it remains generic when compared
to Japan’s EPA with the countries mentioned above. Unlike for what the EU
Commission envisages with reforming its GSP regulation, Japan’s EPA carry no
negative consequences if either Vietnam, Indonesia or the Philippines fail to
cooperate on returns. <o:p></o:p></span></p>
<p class="MsoNormal" style="text-align: justify;"><span lang="DE"><o:p> </o:p></span></p>
<p class="MsoNormal" style="text-align: justify;"><b><span lang="DE">A Definitive
‘No’? Uncertain Legality of a Trade - Return Migration Linkage under WTO Law<o:p></o:p></span></b></p>
<p class="MsoNormal" style="text-align: justify;"><span lang="DE"><o:p> </o:p></span></p>
<p class="MsoNormal" style="text-align: justify;"><span lang="DE">As <a href="https://www.wto-ilibrary.org/content/papers/10.30875/25189808-2022-12/read">Carzaniga
and Sharma 2022</a> note, WTO Members’ right to regulate emerges from Art. VI
GATS. As such, there is a discretionary space under Art. VI, but not an
unlimited one, which would permit biometric border surveillance and data
collection at the border, under the condition that certain criteria, including
transparency are met. However, such broad reading contrasts with the <a href="https://www.wto.org/english/tratop_e/serv_e/8-anmvnt_e.htm">GATS Annex on
the Temporary Movement of Natural Persons</a> which stipulates that measures that
regulate entry and stay remain under the sovereign right of WTO Members and fall
outside the scope of the WTO. Under this narrow interpretation, any PTA linking
return duties conditionally to the temporary movement of workers would, in
theory, be in breach of the GATS Annex. To summarize, the EU Commission might
be infringing WTO/GATS by proposing a GSP reform since the multilateral trade
rules of the WTO/GATS Annex preclude a legal connection being made between
migrants’ return and trade in services. Beyond the uncertain legality of the
Commission’s proposed reform of Regulation EU 1083/2013, there are political
economic reasons why arguing in favor of the reform would be bad judgment,
discussed further below.<o:p></o:p></span></p>
<p class="MsoNormal" style="text-align: justify;"><b><span lang="DE"><o:p> </o:p></span></b></p>
<p class="MsoNormal" style="text-align: justify;"><b><span lang="DE">People-on-the-move
and the ‘new’ EU GSP 2024-34: Moving to the GATS Services Waiver instead?<o:p></o:p></span></b></p>
<p class="MsoNormal" style="text-align: justify;"><span lang="DE"><o:p> </o:p></span></p>
<p class="MsoNormal" style="text-align: justify;"><span lang="DE">A key consideration
speaking against using the revision of the EU GSP to manage the EU’s external
migration policy, are the uncertain consequences for countries non-complying
with the GSP+ or EBA? In general, countries subject to the GSP+, need to ratify
the 27 international law conventions on good governance, labor and human
rights, as well as environmental protection, for becoming eligible for the preferential
tariff treatment. If the EU deems there is a failure to fully implement
provisions of these 27 Conventions, it will normally suspend the preferential
tariff and the country’s exports move back to the higher regular tariff (<a href="https://ec.europa.eu/commission/presscorner/detail/en/IP_20_1469">Cambodia
in 2019</a>). Now, if the EU considers a ‘failure to cooperate on return
migration’ in the same rationale as the 27 Conventions, it conjures a questionable
linearity between irregular migration and a non-existent international
convention about protecting migrants’ rights. Naturally, the ILO Migrant
Workers’ Convention could embody the 28th international convention countries of
origin of migrants would be asked to sign to receive the tariff privilege, so
as to create a closer lineage. <o:p></o:p></span></p>
<p class="MsoNormal" style="text-align: justify;"><span lang="DE"><o:p> </o:p></span></p>
<p class="MsoNormal" style="text-align: justify;"><span lang="DE">However, since no
EU Member State has signed onto to it, this option falls out of question, even
if thematically it would address the linkage the EU desires to build. If not
the ICMWR, would the 7 GSP+ beneficiaries of the EU, which are <a href="https://trade.ec.europa.eu/access-to-markets/en/content/generalised-scheme-preferences-plus-gsp">Sri
Lanka, Cap Verde, Pakistan, the Philippines, Kyrgysztan</a>, in addition to
ratifying the 27 UN Conventions be required to sign onto EU readmission
agreements, or EU mobility partnerships or the UN anti-smuggling/trafficking
protocols as the benchmark for obtaining the lower tariff? Would cooperating
with a single EU Member State thru a bilateral readmission agreement be
sufficient to hold off higher tariffs on cotton T’shirts or cocoa products or
coffee? By the very act of withdrawing trade preferences, if the EU perceives
efforts of reducing irregular migration as waning, becomes comparable to
suspending tariff preferences from a beneficiary country where corruption
starts to spread, narcotics are being produced or trafficked, labor standards
are neglected, human trafficking and smuggling take place. In this logic,
irregular migration becomes an act that is to be penalized and sanctioned, in
the same order as narcotics trading, corrupting business practices or human trafficking
and smuggling, which ethically and legally is a questionable nexus to make.<o:p></o:p></span></p>
<p class="MsoNormal" style="text-align: justify;"><span lang="DE"><o:p> </o:p></span></p>
<p class="MsoNormal" style="text-align: justify;"><span lang="DE">There are better
ways to incentivize countries of origin to take back their citizens in unlawful
stays abroad than to withdraw tariff preferences. One is to use the <a href="https://www.un.org/ldcportal/content/decisions-taken-favour-ldcs-wto">LDC
Waiver of WTO/GATS</a> whereby a host country increases sectoral labor market
openings in services for nationals of a country of origin. This scheme has the
advantage of closely matching with the EU Talent Partnerships, the former which
are sending potential migrants for a training and upskilling to Europe. In
concreto, the mechanism is the following: if the LDC cooperates with the EU on
irregular migration, it shall obtain additional market access on mode 4 or mode
3 for its natural persons involved in service provision. Under this paradigm,
unlike with for the GSP+/EBA, migration is neither treated as a criminal
activity that needs to be contained. In fact, the EU is already testing an LDC
Waiver type of model in its Skills Partnerships, which ‘buy professionals from
an LDC to deliver services in Europe’ (<a href="https://www.wto.org/english/tratop_e/serv_e/2_sarson_020621.pdf">WTO Council
for Trade in Services, Webinar on LDC waiver 2-3 June 2021</a>). <o:p></o:p></span></p>
<p class="MsoNormal" style="text-align: justify;"><span lang="DE"><o:p> </o:p></span></p>
<p class="MsoNormal" style="text-align: justify;"><span lang="DE">In preferring the
LDC Waiver alternative to vamping up the GSP, the EU would make a strong
statement that cross-border mobility, in the first instance, occurs for
improving migrants’ wellbeing that it is ‘cooperative rather than punitive’ (<a href="https://www.fidh.org/en/international-advocacy/european-union/eu-negotiators-must-oppose-migration-conditionality-in-the">FIDH
2023</a>). <o:p></o:p></span></p>
<p class="MsoNormal" style="text-align: justify;"><span lang="DE"><o:p> </o:p></span></p>
<p class="MsoNormal" style="text-align: justify;"><span lang="DE">In addition, the EU
GSP+/EBA reform, as proposed by the Commission, discredits its pilot projects on
labor migration and <a href="https://ec.europa.eu/commission/presscorner/detail/en/ip_22_2654">skills
partnerships</a>, which already have incorporated a return obligation for all
the trainees sent to an EU Member State for upskilling. Even if the contentious
term of ‘return’, is replaced by the expression of a so-called ‘soft landing’
back home (<a href="https://eumigrationlawblog.eu/eu-cooperation-on-migration-with-partner-countries-within-the-new-pact-new-instruments-for-a-new-paradigm/">Garcia
Andrade 2020</a>), these EU Talent Partnerships are anything but free from
return obligations. Hence, to now enlist the GSP+/EBA scheme for securing even
more returns, puts developing countries and LDCs at risk of an additional
sanctioning mechanism (<a href="https://www.caritas.eu/wordpress/wp-content/uploads/2020/10/201012-Final-CE_FES-Policy-brief-The-impact-of-EU-external-migration-policies-on-sustainable-development.pdf">Bisong
2022).</a> <span style="mso-spacerun: yes;"> </span><o:p></o:p></span></p>
<p class="MsoNormal" style="text-align: justify;"><span lang="DE"><o:p> </o:p></span></p>
<p class="MsoNormal" style="text-align: justify;"><b><span lang="DE">Exploring the ‘LDC
Waiver’: Securing Cooperation on Returns by Providing Legal Pathways on Mode 4<o:p></o:p></span></b></p>
<p class="MsoNormal" style="text-align: justify;"><span lang="DE"><o:p> </o:p></span></p>
<p class="MsoNormal" style="text-align: justify;"><span lang="DE">Special and
differential treatment (SDT) for the Global South under Art XIX GATS (<a href="https://www.oecd-ilibrary.org/docserver/786764616255.pdf?expires=1688315667&id=id&accname=guest&checksum=7000072F194F0B57A8018D45A4691145">OECD
2016</a>) calls on<span style="mso-spacerun: yes;"> </span>WTO Members to ‘give
special priority’ when opening services markets to exports of LDCs. On
the basis of Art XIX, WTO Members took a Ministerial Conference decision on 17
December 2011 to install a <a href="https://docs.wto.org/dol2fe/Pages/SS/directdoc.aspx?filename=q:/WT/L/847.pdf&Open=True">LDC
services waiver.</a> Since WTO Members were not using it, LDCs were encouraged
to make a <a href="https://docs.wto.org/dol2fe/Pages/FE_Search/FE_S_S006.aspx?Query=@Symbol=%20(s/c/w/356%20or%20s/c/w/356/*)&Language=ENGLISH&Context=FomerScriptedSearch&languageUIChanged=true">collective
request</a> under the lead of Uganda, to indicate in which sectors of their
services industries a waiver of the MFN and a removal of discriminatory
barriers<span style="mso-spacerun: yes;"> </span>to national treatment
(including quotas, licensing requirements, authorization procedures, labor
market tests or professional qualifications) could prove development-friendly.
By 2015, 50 WTO Members had made offers, and at the Nairobi Ministerial
Conference, a <a href="https://docs.wto.org/dol2fe/Pages/SS/directdoc.aspx?filename=q:/WT/MIN15/48.pdf&Open=True">decision</a>
was adopted to prolong duration of the waiver until 2030.<o:p></o:p></span></p>
<p class="MsoNormal" style="text-align: justify;"><span lang="DE"><o:p> </o:p></span></p>
<p class="MsoNormal" style="text-align: justify;"><span lang="DE">Under the LDC
waiver, the EU, US, Canada, Singapore offer ‘best Free Trade Agreement (FTA)-level’
or in 25% of cases above best FTA level, which is the only way for LDC service
suppliers to enjoy a competitive advantage on the global services markets. The
LDC waiver provides predictability to service traders who otherwise operate
under high volatility, so that a sustainable services industry can grow in LDCs
and is more in line with day-to-day reality of LDC economies, many of which are
no longer export-based in terms of goods. Australia’s opening of warehouse
services beyond the categories it has liberalized in the WTO is promising,
while Switzerland opened insurance services to LDC providers with lower
qualification/notification requirements. <o:p></o:p></span></p>
<p class="MsoNormal" style="text-align: justify;"><span lang="DE"><o:p> </o:p></span></p>
<p class="MsoNormal" style="text-align: justify;"><span lang="DE">Special and
Differential Treatment (SDT) under the early years of GATT was limited to
developing countries granted preferences amongst each other (1971) and later
on, industrialized countries followed suit, when the GATT Enabling Clause
L/4903 0f 1979 transformed the 10-year waivers <span style="mso-spacerun: yes;"> </span>of the 1970s into permanent ones. In contrast,
the LDC Services waiver, while based on the idea of SDT, requires countries,
like the EU, to offer non-reciprocal market access in sectors or modes of
services delivery of interest to the services exports of developing and least
developed Members. Moreover, it is temporary without a clear scope for
discretion over how much reciprocity the grant-giving country is prepared to
offer. Such facts, including that SDT is generally considered more difficult to
implement than trade facilitation (<a href="https://boris.unibe.ch/3627/1/ElsigRIO.pdf">Elsig 2010)</a>, render the
Commission proposal difficult to digest and even more treacherous to implement.
On the upside, the causality of openings in all four modes of services supply
or Mode 4 only, would make the case to embed international people-on-the-move
and their forced returns within the Services Waiver more plausible, because the
fourth mode of service delivery, the so-called Mode 4 of GATS is the only WTO
entry point for the temporary movement of natural persons, which can involve
migrants, including in irregular stays, depending on national immigration and
labor legislation.<o:p></o:p></span></p>
<p class="MsoNormal" style="text-align: justify;"><span lang="DE"><o:p> </o:p></span></p>
<p class="MsoNormal" style="text-align: justify;"><b><span lang="DE">Conclusions<o:p></o:p></span></b></p>
<p class="MsoNormal" style="text-align: justify;"><span lang="DE"><o:p> </o:p></span></p>
<p class="MsoNormal" style="text-align: justify;"><span lang="DE">In this blogpost I
put forward the case for subsuming a compensation mechanism for countries of
origin taking back migrants in irregular stays under the LDC Services Waiver of
the GATS, rather than under the <a href="https://www.wto.org/english/tratop_e/dispu_e/repertory_e/e1_e.htm">1971
GATT Enabling Clause</a> legitimizing the sequence of EU GSP Regulations.<o:p></o:p></span></p>
<p class="MsoNormal" style="text-align: justify;"><span lang="DE"><o:p> </o:p></span></p>
<p class="MsoNormal" style="text-align: justify;"><span lang="DE">The EU Commission’s
heralded ‘positive outcome’ for states cooperating on migrants’ return, appears
to be a negative conditionality of withdrawing tariff duties. As such it is
less attractive than pledging market access under the LDC Waiver, in more than
one way. Firstly, sending countries are often serving as regional services hubs
in <a href="https://www.oecd.org/trade/topics/services-trade/">construction,
logistics, and production-related services</a> or becoming global players in
tourism and healthcare, such that benefitting from the LDC Waiver, if
cooperating on return migration with the EU, resonates with the Global South’s
evolution from export-based manufacturing to service economy. <o:p></o:p></span></p>
<p class="MsoNormal" style="text-align: justify;"><span lang="DE"><o:p> </o:p></span></p>
<p class="MsoNormal" style="text-align: justify;"><span lang="DE">Secondly, source
countries are more likely to embrace a pledge by the EU to open a services
sector, in exchange for ensuring a functioning readmission procedure, than they
will actually benefit from already low tariffs. Therefore, to co-opt the LDC
Waiver for migration management leads to a fuller integration of countries of
origin into global value-chains. <o:p></o:p></span></p>
<p class="MsoNormal" style="text-align: justify;"><span lang="DE"><o:p> </o:p></span></p>
<p class="MsoNormal" style="text-align: justify;"><span lang="DE">Thirdly, the LDC Waiver
works without attaching conditionalities. This is key because having too many
conditionalities can increase the compliance costs on developing and
least-developed countries and backfire, as a disproportionate amount of
resources is invested into meeting criteria, rather than on the ground. <a href="https://sgp.fas.org/crs/misc/RL33663.pdf">(US Congress, GSP 2022).</a><o:p></o:p></span></p>
<p class="MsoNormal" style="text-align: justify;"><span lang="DE"><o:p> </o:p></span></p>
<p class="MsoNormal" style="text-align: justify;"><span lang="DE">In sum, the LDC
Waiver not only responds to the WTO’s call for special and differential
treatment of developing countries, but it offers more credibility to the
revised EU GSP 2024-34 than the GSP, because of its co-ownership by countries
of origin. The LDC Waiver opens up valuable export markets in exchange for a duty
of taking back one’s own citizens. It would certainly be more in line with the <a href="file:///C:/Users/marion/Dropbox/publications/Blogs/Recognizing%20further%20that%20there%20is%20need%20for%20positive%20efforts%20designed%20to%20ensure%20that%20developing%20countries,%20and%20especially%20the%20least%20developed%20among%20them,%20secure%20a%20share%20in%20the%20growth%20in%20international%20trade%20commensurate%20with%20the%20needs%20of%20their%20economic%20development,">WTO
Marrakech Agreement’s</a> Preamble which stresses ‘the need for positive efforts
designed to ensure that developing countries …secure a share in the growth in
international trade’ over negative retribution as a way to elevate nations out
of poverty.<o:p></o:p></span></p>
<p class="MsoNormal" style="text-align: justify;"><span lang="DE"><o:p> </o:p></span></p>
<p class="MsoNormal" style="text-align: justify;"><span lang="DE"><o:p> </o:p></span></p>
<p class="MsoNormal" style="text-align: justify;"><span lang="DE"><o:p> </o:p></span></p>
<p class="MsoNormal" style="text-align: justify;"><span lang="DE"><o:p> </o:p></span></p>Steve Peershttp://www.blogger.com/profile/05869161329197244113noreply@blogger.com1tag:blogger.com,1999:blog-8704899696538705849.post-78644288976326811272023-09-22T07:54:00.003-07:002023-09-22T08:42:20.223-07:00Responsibility in Joint Returns after WS and Others v Frontex: Letting the Active By-Stander Off the Hook<p> </p><div class="separator" style="clear: both; text-align: center;"><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEj8oIOMIzktKiUiqOlV6iyIa-pUiXQYD5PhDavsnvmkqMrE45NUhDPuQq-Z_GTf0Cy7WKCiyFBDNcOXlnYjc57SEDK4QAiJhnXqx4r__A0ZSHEnuP9DsSfVgJBB-wH_aXDNIktXsAKEc5pUrW_jcVHdq3oEFf5EDdR5dwCOTiF27tqxMeClNQLMnQFjdfQ/s800/frontex%202.jpg" style="margin-left: 1em; margin-right: 1em;"><img border="0" data-original-height="533" data-original-width="800" height="245" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEj8oIOMIzktKiUiqOlV6iyIa-pUiXQYD5PhDavsnvmkqMrE45NUhDPuQq-Z_GTf0Cy7WKCiyFBDNcOXlnYjc57SEDK4QAiJhnXqx4r__A0ZSHEnuP9DsSfVgJBB-wH_aXDNIktXsAKEc5pUrW_jcVHdq3oEFf5EDdR5dwCOTiF27tqxMeClNQLMnQFjdfQ/w369-h245/frontex%202.jpg" width="369" /></a></div><br /><p></p><br />
<p class="MsoNormal" style="text-align: justify;"><b style="mso-bidi-font-weight: normal;">Melanie Fink</b> and <b style="mso-bidi-font-weight: normal;">Jorrit J
Rijpma</b> <o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;"><b style="mso-bidi-font-weight: normal;">Melanie Fink</b> is APART-GSK Fellow of the Austrian Academy of
Sciences, Central European University and Assistant Professor, Europa
Institute, Leiden University<o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;"><b style="mso-bidi-font-weight: normal;">Jorrit Rijpma</b> is Professor of EU law, Europa Institute, Leiden
University<o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;"><b>Photo credit</b>: Влада на Република
Северна Македонија, via <a href="https://commons.wikimedia.org/wiki/File:%D0%A6%D0%B5%D1%80%D0%B5%D0%BC%D0%BE%D0%BD%D0%B8%D1%98%D0%B0_%D0%BD%D0%B0_%D0%BE%D1%84%D0%B8%D1%86%D0%B8%D1%98%D0%B0%D0%BB%D0%BD%D0%BE_%D0%B7%D0%B0%D0%BF%D0%BE%D1%87%D0%BD%D1%83%D0%B2%D0%B0%D1%9A%D0%B5_%D0%BD%D0%B0_%D0%B7%D0%B0%D0%B5%D0%B4%D0%BD%D0%B8%D1%87%D0%BA%D0%B0%D1%82%D0%B0_%D0%BE%D0%BF%D0%B5%D1%80%D0%B0%D1%86%D0%B8%D1%98%D0%B0_%D0%BD%D0%B0_%D0%A4%D1%80%D0%BE%D0%BD%D1%82%D0%B5%D0%BA%D1%81_%D0%B2%D0%BE_%D0%A0%D0%B5%D0%BF%D1%83%D0%B1%D0%BB%D0%B8%D0%BA%D0%B0_%D0%A1%D0%B5%D0%B2%D0%B5%D1%80%D0%BD%D0%B0_%D0%9C%D0%B0%D0%BA%D0%B5%D0%B4%D0%BE%D0%BD%D0%B8%D1%98%D0%B0_(20.04.2023)_-_52832016510.jpg">Wikimedia
Commons</a><o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;"><o:p><b>See also </b><a href="http://eulawanalysis.blogspot.com/2023/09/the-eu-general-courts-judgment-in-case.html">analysis of the human rights aspects</a> of the judgment, by Francesca Romana Partipilo </o:p></p>
<p class="MsoNormal" style="text-align: justify;"><br /></p><p class="MsoNormal" style="text-align: justify;">On 6 September 2023 the General
Court delivered its long-awaited ruling in<i style="mso-bidi-font-style: normal;"><a href="https://curia.europa.eu/juris/document/document.jsf?text=&docid=277021&pageIndex=0&doclang=en&mode=lst&dir=&occ=first&part=1&cid=4293683">
WS and others v Frontex</a></i>. In a short and matter-of-fact judgment, it dismissed
an action for damages by a Syrian refugee family against the European Border
and Coast Guard Agency (Frontex). The family, escaping Aleppo at the height of
the Syrian war in 2016, was returned to Turkey just days after their arrival in
violation of the principle of non-refoulement. Their return was carried out as
a joint return operation between Greece and Frontex. With the action brought
before the General Court, they sought compensation from Frontex for its role in
the violation of the principle of non-refoulement, as well as their degrading
treatment in the return process. <o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;">After the many reports of
fundamental rights violations at the external borders, including pushbacks,
this was the first case in which Frontex came under judicial scrutiny for its
role in potential violations. Earlier, a damning <a href="https://fragdenstaat.de/dokumente/233972-olaf-final-report-on-frontex/">OLAF-report</a>,
demonstrating that the Agency had turned a blind eye to pushbacks in the course
of operations it coordinated, had led to the resignation of its Executive
Director. <o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;">Since its establishment,
successive legislative amendments have consistently increased Frontex’s powers,
short of transferring command and control over border guards and return
officers. Yet, Frontex has always maintained that it cannot be held responsible
for violations of fundamental rights as it merely acts as coordinator and
facilitator in joint (return) operations. Wrongdoings in the context of joint
operations, so Frontex, would be exclusively on the Member State in charge. <o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;">In an unsatisfactory judgment
that fails to do justice to the plight of a refugee family that turned to the
European Union for protection, the General Court now seems to confirm that
stance. Doing so, it failed to acknowledge the role and obligations of Frontex
during joint operations. Adopting an unreasonably and unnecessarily high
threshold for the establishment of the causal link requirement, it also
excludes almost any prospect of Frontex being accountable for any breaches of
its obligations. After a brief overview of the judgment, we will discuss each
of these points in turn. We refer to <a href="https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A32016R1624">Regulation
2016/1624</a>, which governed the activities of Frontex at the time of the
return, even though it has been replaced with <a href="https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32019R1896">Regulation
2019/1896</a> in the meantime. However, the relevant provisions have not substantially
changed.<o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;"><o:p> </o:p></p>
<p class="MsoNormal" style="text-align: justify;"><b style="mso-bidi-font-weight: normal;">The judgment<o:p></o:p></b></p>
<p class="MsoNormal" style="text-align: justify;">On admissibility, the Court
rejected two arguments advanced by Frontex. First, it did not consider that it
was called upon to make general statements of principle by ruling on the
applicants’ damages claim. Second, it did not accept the argument that the
applicants were barred from bringing an action for damages, as they could have
brough an action for annulment against the letter of the Agency’s fundamental
rights officers dismissing their complaint under the individual complaints’
mechanism. The Court held that these two actions do not preclude each other as
they pursue different objectives, but explicitly left the question whether the
actions of the Agency’s Fundamental Rights Officer within the framework of that
administrative procedure constitute challengeable acts under <a href="https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex%3A12016E263">Article
263 TFEU</a>, which if they are would subject this procedure to judicial review
by the Court. <o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;">On substance, non-contractual
liability arises when <a href="https://curia.europa.eu/juris/showPdf.jsf?text=&docid=45418&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=2560983">three
cumulative conditions</a> are met: a sufficiently serious breach of a rule of
EU law conferring rights on individuals, damage, and a causal link between the
unlawful conduct and the damage. Reversing the order in which it assessed the
conditions, the General Court dismissed the action based solely on the absence
of a sufficiently direct causal link between the conduct of the Agency and the
damage that was invoked. At the outset it had already recalled that the
unlawful conduct would need to be the determining cause of the damage. It
considered that the applicants wrongly departed from the presumption that
without the alleged conduct by Frontex they would not have been returned. Here
the General Court repeats Frontex’s mantra that it only provides technical and
financial support. Most importantly, it emphasizes Frontex’s lack of competence
to adopt a return decision or decide applications for international protection,
leaving any liability with the responsible Member State.<o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;">The General Court skipped the
question whether the return of the applicants and their treatment during the
return procedure constituted a violation of EU law altogether. Although this
may be interpreted as a sign of judicial economy, it is also a way to avoid
having to pronounce itself on the behaviour of the Member State in question. In
addition, the Court may have otherwise been required it to address the limits
of its own jurisdiction under <a href="https://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:12008E276:EN:HTML">Article
276 TFEU</a>, which precludes it from assessing the validity or proportionality
of Member States’ law enforcement authorities. <o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;"><o:p> </o:p></p>
<p class="MsoNormal" style="text-align: justify;"><b style="mso-bidi-font-weight: normal;">The Role, Obligations, and Responsibility of Frontex <o:p></o:p></b></p>
<p class="MsoNormal" style="text-align: justify;">By virtue of Article 28 Regulation
2016/1624, Frontex is prohibited from ‘entering into the merits of return
decisions’ because these ‘remain the sole responsibility of the Member States’.
The Court rightly held that Frontex cannot be responsible for any potential
unlawfulness of the return decision itself. As with any other national
administrative decision, it would be for the Member State authorities to ensure
its lawfulness. <o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;">Aside from the question whether a
return decision was even taken under the Return Directive, and whether this decision
was then lawful, the applicants’ allegations in the case go well beyond the decision
itself. Frontex’s alleged wrongdoing concerns the implementation of the
decision, despite clear indications of a risk of refoulement, and the degrading
treatment of the applicants as the expulsion was carried out. This phase of the
return process, i.e. the implementation of return decisions in the form of
joint return operations, is a core competence of Frontex, which by virtue of
Article 28(1) Regulation 2016/1624 renders ‘the necessary assistance’ to return
operations and ensures their ‘coordination or […] organisation’. <o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;">This coordinating role comes with
obligations. Concretely, Article 28(3) Regulation 2016/1624 explicitly states
that ‘Agency shall ensure that the respect for fundamental rights, the
principle of non-refoulement, and the proportionate use of means of constraints
are guaranteed during the entire return operation’ (see also generally Article 34
Regulation 2016/1624). In addition, as an EU body, Frontex is bound by the <a href="https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex%3A12012P%2FTXT">EU
Charter of Fundamental Rights</a>, including the absolute prohibitions of refoulement
in Article 19 and of inhuman or degrading treatment in Article 4. These rights
are widely understood under European human rights law to include <a href="https://global.oup.com/academic/product/positive-obligations-under-the-european-convention-on-human-rights-9780192888044?cc=pt&lang=en&">positive
obligations</a> that require authorities to actively ensure the protection of a
right, for example by taking practical steps to protect a person against
interferences by others. Frontex has a whole toolbox of means available to meet
these obligations, including reporting and communication duties. As a last
resort, Article 25(4) Regulation 2016/1624 requires the agency to withdraw,
should violations of fundamental rights or international protection obligations
occur that are serious or likely to persist. <o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;">Frontex conducts joint return
operations together with the Member States. However, if it violates its own
obligations under EU law, it bears responsibility that may be invoked through
an action for damages. This responsibility is independent from any possible
responsibility of the Member State who in turn bears responsibility for its own
failures in the process (see also <a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4553835">here</a>). Not
separating the return decision from its implementation, the Court failed to
acknowledge the role of Frontex in the latter. In addition, shielding the
agency from responsibility for a violation of its obligations in joint return operations
emasculates these provisions, which also negatively affects the credibility of
the EU as a rule of law advocate. <o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;"><o:p> </o:p></p>
<p class="MsoNormal" style="text-align: justify;"><b style="mso-bidi-font-weight: normal;">Causation and Joint Liability <o:p></o:p></b></p>
<p class="MsoNormal" style="text-align: justify;">An important complicating factor in
this case, is the interplay between the actions of Frontex and the host Member
State. Situations where more than one actor is involved in causing harm are not
uncommon, but incredibly complex when it comes to allocating legal
responsibility (see also <a href="https://kluwerlawonline.com/journalarticle/Common+Market+Law+Review/56.5/COLA2019101">here</a>).
<o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;">First, it might be unclear who is
considered the ‘author’ of a violation, in other words, to whom the unlawful
conduct is attributable. As a national administrative decision, the return
decision is clearly attributable to the host state. Things are <a href="https://www.cambridge.org/core/journals/german-law-journal/article/action-for-damages-as-a-fundamental-rights-remedy-holding-frontex-liable/8350DBBC6DC5F504D414F26E61B0FB8C">more
complicated</a> at the implementation level, where the actions of the host
state and Frontex are more intertwined. However, since the Court did not
separate the return decision from its implementation, the question of
attribution played no role in the case. <o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;">The second difficulty concerns
causation, that is the link between the unlawful conduct and the damage. The
Court denies the existence of a sufficiently direct causal link between Frontex’s
conduct and the harm complained of because Frontex lacks the competence to interfere
with the return decision or grant international protection. In other words, in
the Court’s view, the return decision is the cause for the applicants’ harm,
not Frontex’s conduct. Underlying this argument seems to be an assumption that
‘exclusive’ causation might be required for liability to arise. This is also
the view the General Court defended in the recent case <a href="https://curia.europa.eu/juris/document/document.jsf?text=&docid=246708&pageIndex=0&doclang=FR&mode=lst&dir=&occ=first&part=1&cid=2449402">Kočner
v EUROPOL</a>, a case currently under appeal with <a href="https://curia.europa.eu/juris/document/document.jsf?text=&docid=274650&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=2449490">Advocate
General Rantos</a> suggesting the Court of Justice take a less restrictive
approach to the causation requirement. <o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;">In the past, there have been <a href="https://curia.europa.eu/juris/document/document.jsf?text=&docid=78780&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=2453740">cases</a>
in which the Court seemed accepting of the idea that the existence of an
additional determining causes for a damage does not necessarily bar a finding
of liability. In light of the coordinating nature of Frontex’s tasks, allegations
of wrongdoing will usually, if not always, go hand in hand with (potential)
wrongdoing by one or more Member States. If Frontex is not accountable simply
because a Member State may have acted unlawfully too, this appears to exclude any
reasonable prospect of Frontex being held accountable for breaches of its
obligations. In fact, it would seem to stand in the way of joint liability
between the Union and a Member State altogether, which has been recognised by
the Court as early as <a href="https://curia.europa.eu/juris/showPdf.jsf?text=&docid=87533&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=2458208">1967</a>
and is a necessary means to ensure accountability in the EU’s multi-level
administration (for more detail see <a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4563588">here</a>). <o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;"><o:p> </o:p></p>
<p class="MsoNormal" style="text-align: justify;"><b style="mso-bidi-font-weight: normal;">Conclusion<o:p></o:p></b></p>
<p class="MsoNormal" style="text-align: justify;">The Court, in limiting itself to
an assessment of causality, failed to acknowledge a clear violation of one of
the core tenants of EU refugee law, the prohibition of refoulement, as well as
a range of safeguards laid down in EU secondary legislation. Frontex was
present during this violation, and rather than intervened, contributed to it.
All of this would not in itself have resulted in Frontex being held liable, but
the argument that it is excluded because of a lack of competence regarding the decisions
on return and international protection is flawed and lays bare a misconception of
the practical reality of joint law enforcement operations as well as the role
and obligations of Frontex under EU law in that context. <o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;">This judgment begs the question
what Frontex’s fundamental rights obligations are worth in the absence of a
meaningful way to enforce them. Even if a Member State could, at least in
theory, be held responsible before the national judge, and ultimately before
the ECtHR, that should not mean that the exercise of public power by a Union body
should be allowed to escape judicial review. In a system of shared
administration, which the management of the shared external borders has become,
joint responsibility carries a need for joint liability. <o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;">This case shows how the ‘<a href="https://curia.europa.eu/juris/showPdf.jsf?text=&docid=92818&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=39904">complete
system of remedies</a>’ fails to provide effective judicial control of public
power in the EU's area of freedom, security and justice, which is characterised
by integration through operational cooperation rather than law. Enforcement
powers remain the Member States’ exclusive prerogative in name, but in practice
are increasingly exercised jointly by the Member States and the EU. This
judgment could have provided a welcome correction to this constitutional oversight.
If upheld on appeal, it will reinforce the need for the long overdue accession
of the EU to the ECHR. <o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;"><o:p> </o:p></p><div class="separator" style="clear: both; text-align: center;"><br /></div><br />Steve Peershttp://www.blogger.com/profile/05869161329197244113noreply@blogger.com0tag:blogger.com,1999:blog-8704899696538705849.post-82172105705806271352023-09-22T07:40:00.002-07:002023-09-22T08:40:23.208-07:00The EU General Court’s judgment in the case of WS and Others v Frontex: human rights violations at EU external borders going unpunished<p> </p><div class="separator" style="clear: both; text-align: center;"><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEjCsAFxG5CTTvemwUcriXd7UWF1G5zISbT_G97Ny8657q35D9WJdTJln26w4Y6OKF8QiSYyNv7GLIM0xGGF4Fb41QkRRXx1ppn6NtjWZ5_U3mSKhSW41VsYpHmX7zPWJwyX_MAXgIZjLkujePtohCZwAe92B0LxNPyvZsbSwAVk5gWxrtSQT2ObZcT9yvs/s500/Frontex%201.jpg" style="margin-left: 1em; margin-right: 1em;"><img border="0" data-original-height="333" data-original-width="500" height="263" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEjCsAFxG5CTTvemwUcriXd7UWF1G5zISbT_G97Ny8657q35D9WJdTJln26w4Y6OKF8QiSYyNv7GLIM0xGGF4Fb41QkRRXx1ppn6NtjWZ5_U3mSKhSW41VsYpHmX7zPWJwyX_MAXgIZjLkujePtohCZwAe92B0LxNPyvZsbSwAVk5gWxrtSQT2ObZcT9yvs/w395-h263/Frontex%201.jpg" width="395" /></a></div><br /><p></p><p class="MsoNormal" style="text-align: justify;"><br /></p><p class="MsoNormal" style="text-align: justify;"> </p>
<p class="MsoNormal" style="background: white; text-align: justify; vertical-align: baseline;"><b style="mso-bidi-font-weight: normal;"><span lang="EN-US">Francesca
Romana Partipilo</span></b><span lang="EN-US">,</span><span face=""Calibri","sans-serif"" lang="EN-US" style="color: black;"> </span><span style="mso-ansi-language: EN-GB; mso-fareast-language: EN-GB;">PhD candidate in
International Law at Sant'Anna School of Advanced Studies (Pisa)</span><span face=""Calibri","sans-serif"" style="color: black; mso-ansi-language: EN-GB; mso-fareast-font-family: "Times New Roman"; mso-fareast-language: EN-GB;"> <o:p></o:p></span></p>
<p class="MsoNormal" style="text-align: justify;"><span lang="EN-US"><o:p> </o:p></span></p>
<p class="MsoNormal" style="text-align: justify;"><b style="mso-bidi-font-weight: normal;"><span lang="EN-US">Photo credit</span></b><span lang="EN-US">: Rock Cohen,
via <a href="https://commons.wikimedia.org/wiki/File:FRONTEX_(5157508361).jpg">Wikimedia
commons</a> <o:p></o:p></span></p>
<p class="MsoNormal" style="text-align: justify;"><span lang="EN-US"><o:p>(see also <a href="http://eulawanalysis.blogspot.com/2023/09/responsibility-in-joint-returns-after.html">critique of the judgment</a>, by Melanie Fink and Jorrit Rijpma) </o:p></span></p><p class="MsoNormal" style="text-align: justify;"><span lang="EN-US"><o:p> </o:p></span></p>
<p class="MsoNormal" style="text-align: justify;"><span lang="EN-US">On the 6th of
September, the <a href="https://curia.europa.eu/jcms/upload/docs/application/pdf/2023-09/cp230133en.pdf">EU
General Court dismissed a claim</a> filed by a Syrian family who alleged to
have suffered material and non-material damages – consisting in feelings of
anguish, fear and suffering – at the hands of Frontex on the occasion of a
return operation jointly carried out by the EU agency and the Hellenic Republic
on the 20th of October 2016. <o:p></o:p></span></p>
<p class="MsoNormal" style="text-align: justify;"><span lang="EN-US"><o:p> </o:p></span></p>
<p class="MsoNormal" style="text-align: justify;"><span lang="EN-US">The case was <a href="https://www.euronews.com/my-europe/2023/09/06/syrian-refugees-lose-landmark-case-against-frontex-in-eu-general-court">filed
in 2021</a>, five years after the Syrian family was deported by plane to Turkey
from the Greek island of Kos, despite having filed a request for international
protection. The applicants, arrived on the island of Milos (Greece) on
9 October 2016 and subsequently deported to Turkey, maintained that, if
Frontex had not infringed its obligations relating to the protection of
fundamental rights in the context of joint operations – in particular the
principle of non-refoulement, the right to asylum, the prohibition of
collective expulsion, the rights of the child, the prohibition of inhuman and degrading
treatment, the right to good administration and to an effective remedy – they
would not have been unlawfully returned to Turkey and they would have obtained
the international protection to which they were entitled, given their Syrian
nationality and the situation in Syria at the material time. However, the
Luxembourg-based court decided that, since Frontex does not have the competence
to assess the merits of return decisions or applications for international
protection, the EU agency cannot be held liable for any damage related to the
return of refugees to Turkey. As explained by the EU General Court, Member
States alone are competent to assess the merits of return decisions and to
examine applications for international protection (para. 65). The judges added
that, as regards return operations, under Article 27(1)(a) and (b) and
Article 28(1) of Regulation 2016/1624, Frontex’s task is only to provide
technical and operational support to the Member States and not to enter into
the merits of return decisions. <o:p></o:p></span></p>
<p class="MsoNormal" style="text-align: justify;"><span lang="EN-US"><o:p> </o:p></span></p>
<p class="MsoNormal" style="text-align: justify;"><span lang="EN-US">At first glance,
the judgment reveals an argumentative short-circuit. Whilst the examination of
asylum applications undeniably falls outside Frontex’s competence, being attributed
by EU law to the Member States of the EU, the imperative to respect human
rights is contained in Frontex Regulation and in <a href="https://search.informit.org/doi/abs/10.3316/agispt.20200611031609">several
other documents</a> referring to the agency’s activities, thus representing a
legal obligation which is binding on the agency. The fact that Frontex lacks
the competence to examine the merits of asylum applications or return decisions
does not exempt the EU agency from the respect of migrants’ human rights. As
noted by the General Court itself (para. 63), “Regulation 2016/1624, in
particular Article 6(3) thereof, provides that [Frontex] shall contribute
to the consistent and uniform application of Union law, including the
Union acquis concerning fundamental rights, at all external borders”.
In addition, the Court stressed that “Article 34(1) of that regulation
states that the European Border and Coast Guard shall ensure the protection of
fundamental rights in the performance of its tasks under this Regulation in
accordance with relevant Union law, in particular the [Charter of Fundamental
Rights], relevant international law – including the 1951 Convention
Relating to the Status of Refugees and the 1967 Protocol thereto and
obligations on access to international protection, in particular the principle
of non-refoulement’.”<o:p></o:p></span></p>
<p class="MsoNormal" style="text-align: justify;"><span lang="EN-US"><o:p> </o:p></span></p>
<p class="MsoNormal" style="text-align: justify;"><span lang="EN-US">In addition to
the legal instruments binding Frontex to the respect of fundamental rights in
its operations, references to human rights have been incorporated into Frontex
official documents or press releases since the first years of its operations.
For instance, in the <a href="https://www.statewatch.org/media/documents/news/2009/jul/eu-frontex-annual-report-2008.pdf">annual
report for 2008</a>, for the first time, Frontex specified that “[f]ull respect
and promotion of fundamental rights […] is the most important corner stone of
modern European border management”. Similarly, the <a href="https://www.statewatch.org/media/documents/observatories_files/frontex_observatory/gen_rep_2009_en.pdf">2009
annual report</a> stated that “full and sincere respect of fundamental rights
is a firm and strategic choice of Frontex”. More recently, the now disgraced
former director of Frontex, Fabrice Leggeri, <a href="https://frontex.europa.eu/media-centre/news/news-release/frontex-welcomes-report-by-the-scrutiny-working-group-0AQJWY">declared</a>
that Frontex was “determined to uphold the highest standards of border control
within [its] operations [and] to further strengthen the respect of fundamental
rights in all [its] activities”.<o:p></o:p></span></p>
<p class="MsoNormal" style="text-align: justify;"><span lang="EN-US"><o:p> </o:p></span></p>
<p class="MsoNormal" style="text-align: justify;"><span lang="EN-US">In the light of
these observations, it needs to be noted that Frontex’s actions in the case of WS
and Others v Frontex could have resulted in chain (or <a href="https://academic.oup.com/ijrl/article-abstract/27/3/457/2362512">indirect)
refoulement</a>. Considering that Turkey adopts substantial <a href="https://academic.oup.com/ijrl/article-abstract/29/4/555/4810633?redirectedFrom=PDF&casa_token=Do5q9q10ejIAAAAA:Rs6DTv9rJC_F5qoME--QWzNbZ0LiKA1TMKlicwd8ARs8cB6_Y6N1IZTfT6I6s69Zt-jOlRmumIVoyN8">geographical
limitations</a> to the definition of refugee contained in the Refugee
Convention, the country may not be considered a “<a href="http://madde14.org/images/f/f9/TRSafeThirdCountry2016aBorderCrim.pdf">safe
third country</a>” where asylum claimants can effectively apply for international
protection. In fact, at the time of the ratification of the Additional Protocol
to the Refugee Convention, in 1968, Turkey <a href="https://d1wqtxts1xzle7.cloudfront.net/31191610/The_New_Draft_Law_on_Foreigners_and_International_Protection_in_Turkey-1-libre.pdf?1392247350=&response-content-disposition=inline%3B+filename%3DThe_New_Draft_Law_on_Foreigners_and_Inte.pdf&Expires=16">opted
for a geographical limitation</a> pursuant to Article 1b of the Convention,
limiting the scope of the Convention to “persons who have become refugees as a
result of events occurring in Europe”. Consequently, only asylum-seekers
fleeing “events occurring in Europe” can enjoy refugee status in Turkey. This
is confirmed by the circumstance that Turkey does not grant the status of
refugees to people fleeing the war in Syria, but only offers them a form of
temporary protection, pursuant to the Turkish <a href="https://www.unhcr.org/tr/wp-content/uploads/sites/14/2017/04/LoFIP_ENG_DGMM_revised-2017.pdf">Law
on Foreigners and International Protection</a>. <o:p></o:p></span></p>
<p class="MsoNormal" style="text-align: justify;"><span lang="EN-US"><o:p> </o:p></span></p>
<p class="MsoNormal" style="text-align: justify;"><span lang="EN-US">It should be
noted that Turkey is a signatory of the European Convention of Human Rights,
and thus legally bound by Article 3, prohibiting torture and inhuman or
degrading treatment or punishment. As well known, in <i style="mso-bidi-font-style: normal;"><a href="https://hudoc.echr.coe.int/eng#{%22itemid%22:[%22001-57619%22]}">Soering
v The United Kingdom</a></i> the ECtHR established that, pursuant to Article 3,
expulsion to torture is never permitted, even in cases where the returnee is
not an asylum-seeker or refugee. Accordingly, Article 3 ECHR could have
represented a solid legal basis for the protection of the applicants in the
case of WS and Others v Frontex, even in the absence of a formal refugee
status. Nonetheless, it should also be recalled that, in July 2016, following a
failed coup, Turkey had declared a state of emergency and submitted a formal <a href="https://www.ejiltalk.org/turkeys-derogation-from-the-echr-what-to-expect/">notice
of derogation from the ECHR</a>, under Article 15 of the ECHR. Whilst Article 3
ECHR belongs to the <a href="https://rm.coe.int/168071f08e">list of
non-derogable rights</a>, Turkey exploited the state of emergency to introduce
a series of amendments to the Law on Foreigners and International Protection,
including <a href="https://www.researchgate.net/publication/324693391_Protecting_Syrians_in_Turkey_A_Legal_Analysis">substantial
changes relating to deportation orders</a> and the suspensive effect of appeals
against such orders. As a result of the amendments introduced in 2016, a
deportation order could be issued at any time to certain applicants/holders of temporary
protection (e.g. people suspected of being supporters of a terrorist
organization or people who posed a public security threat, in the eyes of the
government). For these groups of people, the appeal procedure no longer had a
suspensive effect, therefore <a href="https://www.amnesty.org.tr/icerik/676-sayili-khk-ile-multeci-hukukunun-temel-ilkeleri-askiya-aliniyor">increasing
the risk of refoulement</a>, as noted by Amnesty International. As a
consequence, it appears evident that people forcibly expelled to Turkey in 2016
could have suffered chain (that is indirect) refoulement to their countries of
origin. Interestingly, this danger was explicitly acknowledged by the EU
General Court itself, in the paragraph of the judgment where the Court noted
that applicants feared “being returned to Syria by the Turkish authorities”
(para. 68). Finally, it <a href="https://www.europeanpapers.eu/fr/europeanforum/eu-turkey-deal-violation-or-consistency-with-international-law">has
been repeatedly noted</a> that “procedural safeguards that are in place within
the EU are not applicable to Turkey, leading to instances where the guarantees
to the right to life and prohibition against torture are denied in direct
violation of the principle of non-refoulement in the human rights context”. On
the basis of such observations, it is evident that Frontex’s return operation
was, at the very least, problematic under both EU and international law. <o:p></o:p></span></p>
<p class="MsoNormal" style="text-align: justify;"><span lang="EN-US"><o:p> </o:p></span></p>
<p class="MsoNormal" style="text-align: justify;"><span lang="EN-US">Under a
different perspective, the case of WS and Others v Frontex reveals that the
responsibility for human rights violations at EU borders may arise as a result
of joint actions of States and international organizations (or their agencies).
In these instances, interesting questions arise regarding the rules of
attribution of conduct, the <a href="https://link.springer.com/article/10.1007/s40802-015-0015-0">content and
implementation of international responsibility</a>. In the case at hand, while Frontex
was under the legal obligation to respect the human rights of asylum-seekers
under its jurisdiction and the principle of non-refoulement, Greek authorities
had the duty to examine their application for international protection. In
fact, as recalled by the European Court of Human Rights in the case <i style="mso-bidi-font-style: normal;"><a href="https://hudoc.echr.coe.int/fre#{%22itemid%22:[%22001-147702%22]}">Sharifi
v. Italy and Greece</a></i> (appeal no. 16643/09), failure to access the asylum
procedure or any other legal remedy within the port of disembarkation
constitutes a violation of Article 4 of Protocol no.4 (enshrining the
prohibition of collective rejections). In that judgement, the Court highlighted
the link between the collective expulsions of the applicants and the fact that
they had been prevented from applying for international protection. <o:p></o:p></span></p>
<p class="MsoNormal" style="text-align: justify;"><span lang="EN-US"><o:p> </o:p></span></p>
<p class="MsoNormal" style="text-align: justify;"><span lang="EN-US">It should be
mentioned that Greece has not ratified Protocol no.4 of the ECHR and therefore
cannot be held responsible of a violation of its Article 4. Nonetheless,
although not formally bound by Protocol no.4, Greece could still be held
responsible of a violation of the Asylum Procedures Directive as well as the
Dublin Regulation III, requiring Member States to allow asylum-seekers
effective access to an asylum procedure which hinges on exhaustive and comprehensive
information, as stressed by the ECtHR in <i style="mso-bidi-font-style: normal;">Sharifi
and Others v. Italy and Greece</i> (para. 169).<o:p></o:p></span></p>
<p class="MsoNormal" style="text-align: justify;"><span lang="EN-US"><o:p> </o:p></span></p>
<p class="MsoNormal" style="text-align: justify;"><span lang="EN-US">With regard to
the issue of shared responsibility, it is interesting to note that, alongside
the complaint against Frontex before the EU General Court, the Syrian family
also filed a <a href="https://www.prakkendoliveira.nl/images/nieuws/2017/p19042017_-_echr_complaint_-_anonieme_versie_2.pdf">complaint
against the Hellenic Republic</a> before the European Court of Human Rights. In
this submission, the family alleged the violation of Articles 5(1), (2), and
(4) of the European Convention on Human Rights, Article 4, Article 3, and
Article 13 taken together with Articles 3 and 5 of the Convention. This choice was
probably motivated by the circumstance that – as stated above – Greece has not
ratified Protocol No. 4 of the ECHR. <a href="https://bnn.network/breaking-news/syrian-family-loses-eu-lawsuit-against-frontex-deportation/">Apparently</a>,
the submission resulted in a <a href="https://books.google.it/books?hl=it&lr=&id=1N1iV3-y0SQC&oi=fnd&pg=PR5&dq=friendly+settlement+echr&ots=Pv1pTES1Mr&sig=B-eTjuhdp08PWeZHg-hPK_RfvdU&redir_esc=y#v=onepage&q=friendly%20settlement%20echr&f=false">friendly
settlement</a> between the family of asylum-seekers and the Hellenic Republic,
pursuant to Article 39 of the Convention. <o:p></o:p></span></p>
<p class="MsoNormal" style="text-align: justify;"><span lang="EN-US"><o:p> </o:p></span></p>
<p class="MsoNormal" style="text-align: justify;"><span lang="EN-US">In conclusion, whilst
human rights activists hoped that the case of WS and Others v Frontex would set
an important precedent, the judgment of the General Court is both worrying and
discouraging. It appears that Frontex got away – once again – with human rights
violations. Since its creation, in fact, Frontex has received a considerable
amount of criticism. In particular, observers and <a href="https://watermark.silverchair.com/azu086.pdf?token=AQECAHi208BE49Ooan9kkhW_Ercy7Dm3ZL_9Cf3qfKAc485ysgAAA0kwggNFBgkqhkiG9w0BBwagggM2MIIDMgIBADCCAysGCSqGSIb3DQEHATAeBglghkgBZQMEAS4wEQQMwVJcMPEzKiqJuJjSAgEQgIIC_MlX5PytY52YAGBkxQLZ9OOVVE2veF7A9Ip_6dSa">legal
scholars</a> have raised questions about whether and how core fundamental
rights, particularly the right to life, the respect of human dignity, the right
to an effective remedy and the right not to be sent back to torture,
persecution and inhumane treatment (the principle of non-refoulement), are
safeguarded at <a href="https://fra.europa.eu/en/publication/2013/fundamental-rights-europes-southern-sea-borders">Europe’s
external borders</a>. In June 2021, the ONG Sea Watch <a href="https://sea-watch.org/frontex_crimes/">published a report</a> where it
maintained that “[a]erial reconnaissance enables Frontex to gather extensive
knowledge about developments in the Central Mediterranean Sea and relay
information about boats in distress to the “competent authorities” […] When
spotting a boat in the Libyan search and rescue zone, Frontex […] often only
informs the Libyan authorities […], despite NGOs or merchant vessels also being
in the vicinity. By forwarding the information to the Libyan Joint Rescue
Coordination Centre and sometimes even directly guiding the so-called Libyan
Coast Guard to the position of a boat, Frontex coordinates and facilitates the
interceptions and pullbacks of people in distress to Libya”. Regrettably, the
case of <i style="mso-bidi-font-style: normal;">WS and Others v Frontex</i> will
be remembered as just another episode in which the EU agency disregarded its
obligations and violated asylum-seekers human rights at European external
borders without incurring in legal consequences. <o:p></o:p></span></p>Steve Peershttp://www.blogger.com/profile/05869161329197244113noreply@blogger.com4tag:blogger.com,1999:blog-8704899696538705849.post-80095687496832291242023-09-14T09:08:00.002-07:002023-09-14T09:08:33.307-07:00The EU’s New Pact on Migration and Asylum: three key arguments<p> </p><div class="separator" style="clear: both; text-align: center;"><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEiPyOUcG43k9ECyAJzmVTYoIWzZMNKtjLQlmywbpaLAV68vODL1KrMJD30I0QwzGgZdRRhN6nLXwgYgjea_GVWBRkdVT_yXeihln2NJI3r04QxH68A0z4uPNKE11_l9I9HYEtgRyziw_ONwazXczhRnv9f_TmMPZBKonTxRBbo3g7Z6frFxG3h6V9PGcSs/s800/eu%20border.jpg" imageanchor="1" style="margin-left: 1em; margin-right: 1em;"><img border="0" data-original-height="531" data-original-width="800" height="273" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEiPyOUcG43k9ECyAJzmVTYoIWzZMNKtjLQlmywbpaLAV68vODL1KrMJD30I0QwzGgZdRRhN6nLXwgYgjea_GVWBRkdVT_yXeihln2NJI3r04QxH68A0z4uPNKE11_l9I9HYEtgRyziw_ONwazXczhRnv9f_TmMPZBKonTxRBbo3g7Z6frFxG3h6V9PGcSs/w412-h273/eu%20border.jpg" width="412" /></a></div><br /><p></p><br />
<p class="MsoNormal" style="text-align: justify;"><o:p> </o:p></p>
<p class="MsoNormal" style="text-align: justify;"><b style="mso-bidi-font-weight: normal;">Lilian Tsourdi</b>, Assistant Professor, University of Maastricht <o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;"><o:p> <b>*Photo credit</b>: </o:p><span style="background-color: #f8f9fa; color: #202122; text-align: left;"><span style="font-family: times;"> <a href="https://commons.wikimedia.org/wiki/File:Hungarian-Serbian_border_barrier_1.jpg">Délmagyarország/Schmidt Andrea</a></span></span></p>
<p class="MsoNormal" style="text-align: justify;"><o:p> </o:p></p>
<p class="MsoNormal" style="text-align: justify;">The <a href="https://ec.europa.eu/commission/presscorner/detail/en/ip_20_1706">New
Pact on Migration and Asylum</a> is the EU’s latest policy framework on asylum,
migration, and border management policies, and the series of <a href="https://commission.europa.eu/publications/migration-and-asylum-package-new-pact-migration-and-asylum-documents-adopted-23-september-2020_en">legislative
proposals</a> that accompany it. Its stated aim is to establish ‘seamless
migration processes and stronger governance’. Negotiations on the Pact
legislative instruments have been ongoing since September 2020. <o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;"><o:p> </o:p></p>
<p class="MsoNormal" style="text-align: justify;">The European Parliament (<a href="https://www.europarl.europa.eu/news/en/press-room/20230419IPR80906/asylum-and-migration-parliament-confirms-key-reform-mandates">April
2023</a>) and the Council of the European Union (<a href="https://www.consilium.europa.eu/en/press/press-releases/2023/06/08/migration-policy-council-reaches-agreement-on-key-asylum-and-migration-laws/">June
2023</a>) recently adopted negotiating positions on two key instruments: the
Asylum Procedures Regulation (<a href="https://data.consilium.europa.eu/doc/document/ST-10444-2023-INIT/en/pdf">APR</a>)
that reforms rules on asylum determination and related rights, and the Asylum
and Migration Management Regulation (<a href="https://data.consilium.europa.eu/doc/document/ST-10443-2023-INIT/en/pdf">AMMR)</a>
reforming the EU’s system on allocating responsibility for processing asylum
claims and establishing a solidarity mechanism. <o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;"><o:p> </o:p></p>
<p class="MsoNormal" style="text-align: justify;">This commentary develops three key
arguments: i) while not inherently negative, the Pact’s seamless migration
processes are in fact geared to externalising protection obligations thus
undermining fundamental rights; ii) the Pact instruments pay greater attention
to the policies’ administrative design and carry potential to enhance
implementation; iii) the Pact instruments contain a vision of flexible
solidarity that remains linked with pressure and misses the mark of fair
sharing.<span style="mso-spacerun: yes;"> </span><o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;"><o:p> </o:p></p>
<p class="MsoNormal" style="text-align: justify;"><o:p> </o:p></p>
<p class="MsoNormal" style="text-align: justify;"><b style="mso-bidi-font-weight: normal;">Externalization as the red thread <o:p></o:p></b></p>
<p class="MsoNormal" style="text-align: justify;"><o:p> </o:p></p>
<p class="MsoNormal" style="text-align: justify;">Creating seamless migration
processes is not inherently negative. This approach acknowledges the intricate
links between different policies at the operational level, especially at border
areas. The UNHCR had voiced the need for swift identification at the external
borders, differentiation between categories of persons making up mixed flows,
and referral to an appropriate procedure, as early as 2007 through its
so-called <a href="https://www.unhcr.org/what-we-do/protect-human-rights/asylum-and-migration/10-point-plan-action">Ten
Point Plan</a>. <o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;"><o:p> </o:p></p>
<p class="MsoNormal" style="text-align: justify;">Nonetheless, the Pact’s seamless
migration processes are in fact geared to externalising protection obligations
thus undermining fundamental rights. First, the Pact instruments establish accelerated
screening, asylum, and return procedures at the external borders with curtailed
procedural guarantees. Combined with logistic constraints (e.g. facilities,
access to counsel) they risk <a href="https://www.europeanpapers.eu/en/e-journal/eu-shifting-borders-reconsidered-externalisation-constitutionalisation-administrative-integration">undermining
migrants’ (procedural) rights</a>. The instruments also blur the lines between
deprivation of liberty and restrictions to the freedom of movement and could
lead to the propagation of widespread de facto detention. <o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;"><o:p> </o:p></p>
<p class="MsoNormal" style="text-align: justify;">Next, the latest negotiating
position of the Council on asylum procedures expands <a href="https://verfassungsblog.de/human-rights-violations-to-deflect-refugees/">the
use and scope</a> of the safe third country concept. Where third counties have
either not ratified the 1951 Refugee Convention or retain a geographical
limitation to its scope (the latter is the case for Turkey for example) the APR
introduces the notion of having access to effective protection instead as part
of the third country safety assessment. The provisions contain minimal guarantees
to ascertain what effective protection entails, which establish standards below
those foreseen by the 1951 Refugee Convention. <span style="mso-spacerun: yes;"> </span><o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;"><o:p> </o:p></p>
<p class="MsoNormal" style="text-align: justify;">In parallel, migration management
has been streamlined in the EU’s external relations affecting areas such as
development and trade. One way the EU is establishing these linkages is through
making access to funding for non-EU countries conditional to cooperation on
migration management objectives. The <a href="https://ec.europa.eu/commission/presscorner/detail/en/ip_23_3887">‘deal’
with Tunisia</a> spearheaded by the EU, Italy, and the Netherlands is the most
recent illustration. <o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;"><o:p> </o:p></p>
<p class="MsoNormal" style="text-align: justify;"><b style="mso-bidi-font-weight: normal;">A greater attention to the system’s governance<o:p></o:p></b></p>
<p class="MsoNormal" style="text-align: justify;"><o:p> </o:p></p>
<p class="MsoNormal" style="text-align: justify;">One of the main ills of the EU’s asylum
policy is its lack of attention <a href="https://www.cambridge.org/core/books/abs/eu-law-in-populist-times/emerging-architecture-of-eu-asylum-policy/0103FD1814DD6E91930DAAA9172DE2E3">to
the administrative dimension</a>. The current administrative design allocates
the vast majority of operationalisation obligations – including financial ones
– to Member States with different levels of economic development and different
conceptualisations of welfare. <o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;"><o:p> </o:p></p>
<p class="MsoNormal" style="text-align: justify;">The Pact instruments recognise,
more adequately than previously, the policies’ implementation dimensions. The
Council positions on the AMMR and the APR highlight the opportunities generated
through EU funding and EU agencies to implement policy. Nonetheless, the Pact
instruments <a href="https://www.nomos-elibrary.de/10.5771/9783748931164-113.pdf">fail to
adequately regulate</a> the implications of agency involvement in
implementation, while the current design of the EU budget (Multi-Annual
Framework 2021-2027) precludes the existence of truly <a href="https://geopolitique.eu/en/articles/solidarity-deficit-refugee-protection-backsliding-and-eus-shifting-borders-the-future-of-asylum-in-the-eu/">structural
forms of EU funding</a>. <o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;"><o:p> </o:p></p>
<p class="MsoNormal" style="text-align: justify;">Next, the AMMR and APR provide a
structured approach to define Member States’ relative capacities and to
apportion responsibilities in some areas (e.g. implementing border procedures)
on this basis. The triggering of solidarity measures is also linked with quantitative
and qualitative indicators that, overall, seem to be well suited to provide a
holistic picture and assess relative pressure. <o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;"><o:p> </o:p></p>
<p class="MsoNormal" style="text-align: justify;">Finally, the Council negotiating
position on the AMMR foresees new permanent governance mechanisms, such as annual
High Level EU Migration and Technical Level EU Migration fora that are meant to
play pivotal roles in animating inter-state solidarity through pledges. Such
permanent structures, mirroring UN level processes, seem more apt to establish
effective and predictable inter-state cooperation compared to ad hoc bargaining
and <a href="https://journals.sagepub.com/doi/abs/10.1177/1023263X17742801?journalCode=maaa">emergency-driven
responses</a>.<span style="mso-spacerun: yes;"> </span><o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;"><span style="mso-spacerun: yes;"> </span><span style="mso-spacerun: yes;"> </span><o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;"><b style="mso-bidi-font-weight: normal;">An inadequate vision on solidarity <o:p></o:p></b></p>
<p class="MsoNormal" style="text-align: justify;"><o:p> </o:p></p>
<p class="MsoNormal" style="text-align: justify;">The AMMR largely keeps intact the
basic premises of the <a href="https://eur-lex.europa.eu/legal-content/en/ALL/?uri=celex%3A32013R0604">current
‘Dublin system’</a>, EU’s responsibility allocation system. In brief, Dublin
allocates responsibility to the state primarily ‘responsible’ for the person’s
presence in the EU. In practice, this should mean the state of first irregular
entry to the EU territory is responsible. However, states have sought to evade
their Dublin responsibility (by not registering asylum applications for
example) and asylum seekers move clandestinely through the EU and evade Dublin
procedures.<o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;"><o:p> </o:p></p>
<p class="MsoNormal" style="text-align: justify;">To counter this, the AMMR Council
negotiating position aims for a more predictable operationalisation of
inter-state solidarity through annual Member State pledges. Nonetheless, solidarity
measures, gathered under the framework of a so-called Solidarity Pool, are
still meant to be triggered in situations of pressure. <o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;"><o:p> </o:p></p>
<p class="MsoNormal" style="text-align: justify;">The Solidarity Pool will consist
of i) relocations (i.e. organised intra-EU transfers) of asylum seekers or
recently recognised beneficiaries of international protection or of migrants
under a return obligation; ii) direct financial contributions provided by
Member States aimed either at boosting Member State or third country capacities
in the areas of asylum, migration, or border management; iii) alternative
contributions such as capacity building, staff support, equipment etc. All these
contributions are meant to be ‘considered of equal value’. <o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;"><o:p> </o:p></p>
<p class="MsoNormal" style="text-align: justify;">In breaking with the past,
solidarity has a mandatory character in the sense that Member States are to annually
contribute their fair share that will be calculated through a formula that
takes to account their population size (50% weighting) and their total GDP (50%
weighting). Nonetheless, to appease Member States that <a href="https://eur-lex.europa.eu/legal-content/en/ALL/?uri=celex%3A32013R0604">opposed
relocation</a>, the Pact instruments foresee that Member States retain full
discretion in choosing between the types of solidarity measures they will
contribute. <o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;"><o:p> </o:p></p>
<p class="MsoNormal" style="text-align: justify;">Overall, the Pact’s approach is
likely to miss the mark on fair sharing. While creating permanent governance
structures, the Pact continues to link the activation of solidarity with
pressure. Thus, instead of establishing structural fair sharing, solidarity
remains a palliative solution. Next, it is unlikely that capacity building
activities in third states, or sharing of personnel and equipment, will be considered
by the benefitting Member States as having equivalent impact on the ground as
people sharing. <o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;"><o:p> </o:p></p>
<p class="MsoNormal" style="text-align: justify;"><b style="mso-bidi-font-weight: normal;">The Long and Winding Road Ahead <o:p></o:p></b></p>
<p class="MsoNormal" style="text-align: justify;"><o:p> </o:p></p>
<p class="MsoNormal" style="text-align: justify;">June 2023 saw one of the <a href="https://www.theguardian.com/world/2023/jun/15/greece-shipwreck-disaster-exposes-europes-deadly-failure">deadliest
shipwrecks</a> involving migrants seeking to reach the EU’s shores with more
than 500 persons missing and presumed dead off the coast of Pylos in Greece.
Unfortunately, such unnecessary loss of life is being normalized with <a href="https://missingmigrants.iom.int/region/mediterranean">IOM reporting</a> over
27,500 missing migrants in the Mediterranean alone since 2014. Action to reform
the EU’s migration policies is imperative.<span style="mso-spacerun: yes;">
</span><span style="mso-spacerun: yes;"> </span><o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;"><o:p> </o:p></p>
<p class="MsoNormal" style="text-align: justify;">EU official cycles hailed the
Council’s early June negotiating position as a<a href="https://ec.europa.eu/commission/presscorner/detail/en/statement_23_3183">
breakthrough</a>. The timing of the forthcoming European Parliament elections,
scheduled for June 2024, generates additional impetus for the EU’s
co-legislators to reach compromise positions in the next months. Nevertheless,
political rifts remain intense with Poland and Hungary <a href="https://www.politico.eu/article/euco-council-eu-viktor-orban-charles-michel-hungary-poland-migration-mutiny-eu-summit-deadlocks/">blocking
a joint political statement</a> of Heads of State on migration during the late
June 2023 European Council meeting. <o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;"><o:p> </o:p></p>
<p class="MsoNormal" style="text-align: justify;">What promise do the Pact
instruments carry? They pay greater attention to policy implementation,
governance structures, and the operationalisation of solidarity. Nevertheless,
by prioritizing externalization, and by seeking to appease a limited number of
Member States that seem to <a href="https://kluwerlawonline.com/journalarticle/Common+Market+Law+Review/58.6/COLA2021113">oppose
(inter-state solidarity</a> in) migration, they are likely to undermine
migrants’ fundamental rights, while missing the mark on fair-sharing. A reform
that will fail to deliver results, risks <a href="https://www.epc.eu/content/PDF/2023/EUMigrationPact_DP_v3.pdf">enhancing
polarization</a> in migration matters. <o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;"><o:p> </o:p></p>
<p class="MsoNormal" style="text-align: justify;">Legislative developments in the
EU echo the UK’s recently adopted <a href="https://ukandeu.ac.uk/explainers/the-illegal-migration-bill/">Illegal
Migration Act</a>. They testify to Europe’s increasingly defensive policy
stance in migration. It is to be hoped that future policy will eventually aim
at <a href="https://www.epc.eu/content/PDF/2023/Funding_the_EUs_external_migration_policy_DP.pdf">mutually
beneficial partnerships</a> with third countries, migrant, and local
populations that move beyond Eurocentric frames to meaningfully address the
different components of migration processes and aim at co-development.<span style="mso-spacerun: yes;"> </span><o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;"><o:p> </o:p></p>
<p class="MsoNormal" style="text-align: justify;"><o:p> </o:p></p><div class="separator" style="clear: both; text-align: center;"><br /></div><br />Steve Peershttp://www.blogger.com/profile/05869161329197244113noreply@blogger.com0tag:blogger.com,1999:blog-8704899696538705849.post-87109507113734470752023-08-02T12:57:00.000-07:002023-08-02T12:57:05.338-07:00The risk of circumvention of EU sanctions through the immediate family of leading businesspersons and the CJEU’s case law<p> </p><div class="separator" style="clear: both; text-align: center;"><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEhgSLgVMpMUKhnJl78WMF1_Gry52ajKXK-vkrvPNjYJ0f6N2tf9fKhdqg_TGuO_ol21L-SC0uFNdWjq7quQzVtUEvAgbsVTcQG4adzwEzvqesqYNOkF13ciyKNHeBzhmXf-Tx0OWQ3nabAxTAbv7AMPssQIxrKZQvTJUbCdAZvkIgbjxqmSR-XNNVXjX00/s800/russia.jpg" imageanchor="1" style="margin-left: 1em; margin-right: 1em;"><img border="0" data-original-height="533" data-original-width="800" height="262" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEhgSLgVMpMUKhnJl78WMF1_Gry52ajKXK-vkrvPNjYJ0f6N2tf9fKhdqg_TGuO_ol21L-SC0uFNdWjq7quQzVtUEvAgbsVTcQG4adzwEzvqesqYNOkF13ciyKNHeBzhmXf-Tx0OWQ3nabAxTAbv7AMPssQIxrKZQvTJUbCdAZvkIgbjxqmSR-XNNVXjX00/w393-h262/russia.jpg" width="393" /></a></div><br /><p class="MsoNormal" style="text-align: justify;"><br /></p>
<p class="MsoNormal" style="text-align: justify;"><span lang="DE"><o:p> </o:p></span></p>
<p class="MsoNormal" style="text-align: justify;"><span style="font-family: helvetica;"><b style="mso-bidi-font-weight: normal;"><span lang="DE">Antje Kunst</span></b><span lang="DE">*<o:p></o:p></span></span></p>
<p class="MsoNormal" style="text-align: justify;"><span lang="DE"><span style="font-family: helvetica;">*Antje Kunst is
an international lawyer and barrister of Pavocat Chambers, admitted to the bar
of England and Wales and the Bar of Berlin advising and representing
individuals in a wide range of matters related to the CFSP ranging from EU
employment cases to EU and international sanctions against individuals.<o:p></o:p></span></span></p>
<p class="MsoNormal" style="text-align: justify;"><span lang="DE"><span style="font-family: helvetica;">***Comments of academic
researcher of the University of Luxembourg, Ms. Francesca Finelli were
gratefully received. All views contained in this article, however, remain those
of the author alone.<o:p></o:p></span></span></p>
<p class="MsoNormal" style="text-align: justify;"><span style="font-family: helvetica;"><b style="mso-bidi-font-weight: normal;"><span lang="DE">Photo credit</span></b><span lang="DE">: W Bulach, via <a href="https://commons.wikimedia.org/wiki/File:00_0623_Red_Square_in_Moscow.jpg">Wikimedia
Commons</a><o:p></o:p></span></span></p>
<p class="MsoNormal" style="text-align: justify;"><span lang="DE"><o:p><span style="font-family: helvetica;"> </span></o:p></span></p>
<p class="MsoNormal" style="text-align: justify;"><span lang="DE"><span style="font-family: helvetica;">The inclusion of
family members in the categories of persons covered by EU targeted sanctions against
Russia has been justified, in the Council’s view, for maximising the
effectiveness of those sanctions. The inclusion of family members of leading
businesspersons aims to prevent the circumvention of EU targeted sanctions (in
the forms of asset freeze) by the transfer of assets between targeted leading businesspersons
and their immediate family. <o:p></o:p></span></span></p>
<p class="MsoNormal" style="text-align: justify;"><b style="mso-bidi-font-weight: normal;"><span lang="DE"><span style="font-family: helvetica;">Updating the EU sanctions regime against Russian
businesspersons<o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="text-align: justify;"><span lang="DE"><o:p><span style="font-family: helvetica;"> </span></o:p></span></p>
<p class="MsoNormal" style="text-align: justify;"><span style="font-family: helvetica;"><span lang="DE">The EU's targeted sanctions against Russia's economic
elites introduced on 5 June 2023 a short but significant amendment to its
current sanctions regime. It extended the scope of the sanctions regime through
<a href="https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=uriserv%3AOJ.L_.2023.146.01.0020.01.ENG&toc=OJ%3AL%3A2023%3A146%3ATOC">Council
Decision (CFSP) 2023/1094</a> </span>(‘Council decision of 5 June 2023’)<span lang="DE"> to permit the designation of immediate family members of leading
Russian businesspersons operating in Russia. There are in other words now EU
legal acts in place which allow for the adoption of EU sanctions against the
sons and daughters, spouses and parents of Russian oligarchs based on the
autonomous designation criterion of immediate family members of leading Russian
businesspersons operating in Russia. (In 2015 the Council introduced the
‘leading businessperson operating in Syria’ as an autonomous general listing
criterion. See <a href="https://eur-lex.europa.eu/eli/dec/2022/329/oj"><span lang="EN-GB" style="mso-ansi-language: EN-GB;">Council Decision (CFSP) 2022/329</span></a>
and Council <a href="https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:32022R0330">Regulation
(EU) 2022/330</a> of 25 February 2022 on the criterion of ‘leading
businesspersons’.) Family members of Russian leading businesspersons have been
put on the lists since early 2022 but under different grounds.<o:p></o:p></span></span></p>
<p class="MsoNormal" style="text-align: justify;"><span style="font-family: helvetica;"><span lang="DE">The Council’s reason
for the recent amendment, undoubtedly owing to the initial rulings on Russian
sanctions from the General Court in recent months (</span>Case T-743/22 R, <i>Nikita
Dmitrievich<a href="https://curia.europa.eu/juris/document/document.jsf?text=&docid=270836&pageIndex=0&doclang=en&mode=req&dir=&occ=first&part=1&cid=4629788">
Mazepin v Council</a></i>, Order of 1 March 2023 and Case T-212/22, <i><a href="https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A62022TJ0212">Violetta
Prigozhina v Council</a></i>, ECLI:EU:T:2023:104<span lang="DE">), is that
‘leading Russian businesspersons have engaged in a systematic practice of
distributing their funds and assets amongst their immediate family members and other
persons, often in order to hide their assets, to circumvent the restrictive
measures and to maintain control over the resources available to them’ (</span>Recital 5 of
Council Decision 2023/1094 <span style="mso-spacerun: yes;"> </span>of 5 June
2023)<span lang="DE">. <o:p></o:p></span></span></p>
<p class="MsoNormal" style="text-align: justify;"><span lang="DE"><span style="font-family: helvetica;">The amendment was
prompted, in particular by the successful annulment of the listing in Case T-212/22,
<i style="mso-bidi-font-style: normal;">Prigozhina</i>, which was initiated by the
mother of the head of the Wagner Group. In that case, the General Court emphasized
that in a legal framework such as the Syrian sanctions regime (after 2015: see <a href="https://eur-lex.europa.eu/eli/dec/2015/1836/oj/eng">Council Decision
(CFSP) 2015/1836</a> of 12 October 2015 and <a href="https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:32015R1828">Council
Regulation (EU) 2015/1828</a> of 12 October 2015), the family link with ‘certain
families’ may be sufficient to include the name of the persons on the lists at
issue. In <i style="mso-bidi-font-style: normal;">Prigozhina</i> however, so the
General Court, the EU legal acts setting out the framework for EU sanctions as
a result of the invasion of Ukraine by Russia, did not refer to the members of ‘certain
families’. That is why the Council had not established the risk of
circumvention (para. 105 of the judgment). Another main reason was that the
Council could not prove a sufficient ‘association’ with the primary target
beyond mere family ties.<o:p></o:p></span></span></p>
<p class="MsoNormal" style="text-align: justify;"><b style="mso-bidi-font-weight: normal;"><span lang="DE"><span style="font-family: helvetica;">The curious nature of words<o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="text-align: justify;"><span lang="DE"><span style="font-family: helvetica;">With this most
recent amendment of the framework in June 2023, the chosen wording is of
particular note. It refers to the possibility of the inclusion of immediate
family members of leading businesspersons operating in Russia, even if the
question is what exactly immediate family members are. Also, the Council does
not refer to members of ‘certain families’ as it previously did as regard
sanctions taken against Syria. Rather, the Council’s wording vis-à-vis Russia it
appears to imply a presumption of circumvention through immediate family members
of leading businesspersons operating in Russia.<o:p></o:p></span></span></p>
<p class="MsoNormal" style="text-align: justify;"><span style="font-family: helvetica;"><span lang="DE">In the Syrian
sanctions framework since 2015, the EU legal acts have explicitly provided for
the freezing of funds of ‘leading businesspersons operating in Syria’ and ‘members
of the Assad families or Makhlouf’, as well as persons ‘associated with them’ (Council
Decision (CFSP) 2015/1836 and Regulation (EU) 2015/1828). In this context, presumptions
are used (by the Council) and accepted by the CJEU (see for example C‑458/17 P,
<i style="mso-bidi-font-style: normal;"><a href="https://eur-lex.europa.eu/legal-content/en/TXT/?uri=CELEX:62017CJ0458">Rami
Makhlouf v Council</a></i>, ECLI:EU:C:2018:441, para. 91, Case T‑186/19, <i style="mso-bidi-font-style: normal;"><a href="https://curia.europa.eu/juris/liste.jsf?num=T-186/19&language=EN">Zubedi
v Council</a></i>, ECLI:EU:T:2020:317 para. 72; Case T‑256/19, <i style="mso-bidi-font-style: normal;"><a href="https://curia.europa.eu/juris/liste.jsf?language=en&td=ALL&num=T-256/19">Bashar
Assi v Council</a></i>, ECLI:EU:T:2021:818 para. 166) that individuals
falling under these categories benefit from the sanctioned regime in order inter
alia ‘to avoid the risk of circumvention of restrictive measures through family
members’ (</span>Recital 7 of Council Decision (CFSP) 2015/1836<span lang="DE">).<span style="mso-spacerun: yes;"> </span><o:p></o:p></span></span></p>
<p class="MsoNormal" style="text-align: justify;"><b style="mso-bidi-font-weight: normal;"><span lang="DE"><span style="font-family: helvetica;">Testing the presumption of circumvention<o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="text-align: justify;"><span style="font-family: helvetica;"><span lang="DE">The question,
therefore, is whether the Court of Justice – on appeal from a raft of judgments
that the General Court will continue to deliver in the immediate future, in the
context of the Russian sanction regime – would accept a (new) rebuttable
presumption of circumvention (s</span>ee Case T-5/17 <i><a href="https://curia.europa.eu/juris/liste.jsf?num=T-5/17&language=EN">Sharif<span style="font-style: normal;"> v </span>Council</a></i>, EU:T:2019:216, para. 86<span lang="DE">), i.e., that the Council can legitimately
presume leading businesspersons operating in Russia will transfer assets within
their immediate family to circumvent EU sanctions (s</span>ee paras. 103–110 of that judgment).<span lang="DE"><o:p></o:p></span></span></p>
<p class="MsoNormal" style="text-align: justify;"><span style="font-family: helvetica;"><span lang="DE">There is no
reference to ‘certain families’ in the EU sanctions legal framework as was the
case in the Syrian sanctions regime. Thus, the Court of Justice might not so easily
accept a presumption of circumvention based on a sole family link (taken in
consideration the Court of Justice’s <i style="mso-bidi-font-style: normal;"><a href="https://curia.europa.eu/juris/liste.jsf?num=C-376/10&language=EN">Tay
Za</a> </i>reasoning, and the Advocate General’s Opinion). It is only if the
Council could provide solid evidence that there is indeed a ‘systematic
practice of distributing their and assets amongst their immediate family
members’ (s</span>ee Recital 5 of Council Decision of 5 June 2023<span lang="DE">),
that the Court of Justice might accept the Council’s rationale, accounting for
fundamental rights too. <o:p></o:p></span></span></p>
<p class="MsoNormal" style="text-align: justify;"><span style="font-family: helvetica;"><span lang="DE">This information of
a ‘systematic practice’ of circumvention might be in the Council’s possession, but
it might not be possible to disclose the evidence based on its classified
nature. The alternative is disclosing classified evidence, which the Council
may be reluctant to do. The Court of Justice’s closed evidence procedure (</span>under Article 105
of the <a href="https://curia.europa.eu/jcms/jcms/Jo2_7040/en/">General Court’s
Rules of Procedure</a><span lang="DE">), introduced as a possibility for
use in restrictive measures cases, to date, remains inactive, and has never
been utilised.<o:p></o:p></span></span></p>
<p class="MsoNormal" style="text-align: justify;"><b style="mso-bidi-font-weight: normal;"><span lang="DE"><span style="font-family: helvetica;">“Associated”<o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="text-align: justify;"><span style="font-family: helvetica;"><span lang="DE">Immediate family
members have been included in EU sanctions lists since early 2022 as ‘associated’
with leading Russian businesspersons in their individual statements of reasons.
In <i style="mso-bidi-font-style: normal;">Prigozhina</i>, the Council was not
able to establish ‘(economic) association’ of the mother of the chief of the
Wagner Group at the time the measures were adopted, and sufficiently link her to
her son, the primary target, and the Russian government. Thus, the General Court
relied on its established case law of <i style="mso-bidi-font-style: normal;">Tay
Za</i> regarding an ‘association’ which considers a mere family tie to the
primary target, a business leader, associated with the government not
sufficient. That said, the General Court in <i style="mso-bidi-font-style: normal;">Prigozhina</i>
ruled that there is a ‘non-negligible risk’ that individuals providing support
to the government, e.g., leading businesspersons, might exert pressure on individuals
associated with them, e.g., their family members, in order to circumvent the
effect of the measures to which they are subject (</span>para. 105 of the <i>Prigozhina</i>
judgment. See also <i><a href="https://curia.europa.eu/juris/liste.jsf?language=en&td=ALL&num=T-296/20">Amer
Foz v Council</a></i>, Case T-296/20 ECLI:EU:T:2022:298, paras. 174 and 176, <i><a href="https://curia.europa.eu/juris/liste.jsf?nat=or&mat=or&pcs=Oor&jur=C%2CT%2CF&num=t-540%252F19&for=&jge=&dates=&language=en&pro=&cit=none%252CC%252CCJ%252CR%252C2008E%252C%252C%252C%252C%252C%252C%252C%252C%252C%252Ctrue%252Cfalse%252Cfalse&oqp=&td=%3BALL&avg=&lg=&page=1&cid=136155">Sharif
v Council</a></i>, <span lang="DE"><a href="http://publications.europa.eu/resource/ecli/ECLI%3AEU%3AT%3A2021%3A220"><span lang="EN-GB" style="color: windowtext; text-decoration: none;">T-540/19</span></a></span>, not published, <span lang="DE"><a href="http://publications.europa.eu/resource/ecli/ECLI%3AEU%3AT%3A2021%3A220"><span lang="EN-GB" style="color: windowtext; text-decoration: none;">EU:T:2021:220</span></a></span>, paragraph <span lang="DE"><a href="http://publications.europa.eu/resource/ecli/ECLI%3AEU%3AT%3A2021%3A220#point159"><span lang="EN-GB" style="color: windowtext; text-decoration: none;">159</span></a></span>, and, by analogy, judgment of 4 September 2015, <i><a href="https://curia.europa.eu/juris/liste.jsf?language=en&num=T-577/12">NIOC
and Others v Council</a></i>, <span lang="DE"><a href="http://publications.europa.eu/resource/ecli/ECLI%3AEU%3AT%3A2015%3A596"><span lang="EN-GB" style="color: windowtext; text-decoration: none;">T-577/12</span></a></span>, not published, <span lang="DE"><a href="http://publications.europa.eu/resource/ecli/ECLI%3AEU%3AT%3A2015%3A596"><span lang="EN-GB" style="color: windowtext; text-decoration: none;">EU:T:2015:596</span></a></span>, para. <span lang="DE"><a href="http://publications.europa.eu/resource/ecli/ECLI%3AEU%3AT%3A2015%3A596#point139"><span lang="EN-GB" style="color: windowtext; text-decoration: none;">139</span></a>). <span style="mso-spacerun: yes;"> </span><o:p></o:p></span></span></p>
<p class="MsoNormal" style="text-align: justify;"><b style="mso-bidi-font-weight: normal;"><span lang="DE"><span style="font-family: helvetica;">Businesspersons vs rulers<o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="text-align: justify;"><span lang="DE"><span style="font-family: helvetica;">Generally speaking,
the case law of the Court on the legality of family members’ designations is
characterized by two main approaches. Regarding family members of leading
businesspersons, their designation would be annulled if based on the sole
ground that the family member also benefits from the economic policies of the government
(<i style="mso-bidi-font-style: normal;">Tay Za</i> approach). Regarding the
family members of rulers of a third country, their designation would be lawful
by a presumed connection between the individual and the (targeted) regime (<i style="mso-bidi-font-style: normal;">Al Assad</i> approach). The case law has
been though at times inconsistent. For a broader analysis on circumvention of
EU restrictive measures, see Francesa Finelli, <a href="https://kluwerlawonline.com/journalarticle/Common+Market+Law+Review/60.3/COLA2023050">‘Countering
Circumvention of Restrictive Measures: The EU Response’</a>.<o:p></o:p></span></span></p>
<p class="MsoNormal" style="text-align: justify;"><span lang="DE"><span style="font-family: helvetica;">In <i style="mso-bidi-font-style: normal;"><a href="https://curia.europa.eu/juris/liste.jsf?num=T-202/12&language=EN">Al-Assad</a></i>,
another Syrian ‘immediate family member’ case (concerning the President’s sister),
the Court of Justice found that the presumed risk of circumvention was ‘quite
obvious’ between leaders of a state and their immediate family members. It also
observed that, if the EU sanctions in question targeted only the
leaders of the Syrian regime, the objectives pursued <a name="ctx273">by</a> the
Council could have been frustrated as the leaders can ‘easily circumvent’
those <a name="ctx274">measures</a> <a name="ctx275">by</a> means of
their relatives and associates. <o:p></o:p></span></span></p>
<p class="MsoNormal" style="text-align: justify;"><span style="font-family: helvetica;"><span lang="DE">The <i style="mso-bidi-font-style: normal;">Al-Assad</i> approach has generally not been
followed by the CJEU in the case of immediate family members of leading
business persons (see <i style="mso-bidi-font-style: normal;">Tay Za</i>) but
only in cases of ‘immediate family members’ of rulers of a third country (see Butler,
G 2023, <a href="https://portal.findresearcher.sdu.dk/en/publications/of-rulers-relatives-and-businesspersons-the-imposition-of-eu-rest">'Of
Rulers, Relatives, and Businesspersons: The Imposition of EU Restrictive
Measures through Sanctions on Family Members'</a>, Legal Issues of
Economic Integration, vol. 50, no. 4</span><span class="cf01"><span style="line-height: 107%;">)</span></span><span lang="DE">. The rationale is
explained by Advocate General Mengozzi in his Opinion in <i style="mso-bidi-font-style: normal;">Tay Za</i> with three circles of targeted individuals, which has been
accepted by the CJEU. In the Syrian sanctions case of <i style="mso-bidi-font-style: normal;">Foz</i>, the CJEU <span style="mso-spacerun: yes;"> </span>accepted the
presumption of a real risk of circumvention, in a case of an immediate family
member of a leading business person operating in Syria case.<span style="mso-spacerun: yes;"> </span>The Court of Justice ruled in that case that
it is reasonable to presume a ‘real risk of circumvention’ if a family member
has close business and family ties with a designated individual, even when the
designated person is a leading businessperson and not a political leader in
Syria. Moreover, it found that family ties may pose a real risk of
circumvention of EU restrictive measures, irrespective of the role of the
designated individual in the targeted regime (s</span>ee Finelli, ‘Countering Circumvention
of Restrictive Measures: The EU Response’<span lang="DE">). <o:p></o:p></span></span></p>
<p class="MsoNormal" style="text-align: justify;"><b style="mso-bidi-font-weight: normal;"><span lang="DE"><span style="font-family: helvetica;">The relevance of presumptions<o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="text-align: justify;"><span lang="DE"><span style="font-family: helvetica;">Generally, the CJEU
has accepted indirect evidence such as rebuttable presumptions in view of the
difficulties encountered by the Council to find direct evidence (see para 46 <i style="mso-bidi-font-style: normal;"><a href="https://curia.europa.eu/juris/liste.jsf?num=C-605/13&language=EN">Anbouba
v Council</a></i>, C-605/13 P, ECLI:EU:C:2015:248) for the fact than an
individual like an immediate family member of a primary target supports a
regime or benefits from it. In Syrian sanctions cases, since 2015, the Council
consistently relied on and the Court of Justice accepted rebuttable
presumptions rather than evidence that they have engaged in prohibited conduct.
Their designation presupposes the personal link between them and the already
designated individuals, and ultimately the third country’s regime targeted. <o:p></o:p></span></span></p>
<p class="MsoNormal" style="text-align: justify;"><span style="font-family: helvetica;"><span lang="DE">Consistent case law
of the Court of Justice provides that the use of presumptions is only permitted
on the condition that (i) those presumptions have been provided for by the
measures at issue, (ii) are consistent with the objective of the legislation at
issue, (iii) proportionate to the aim pursued by the EU, (iv) rebuttable and
(vi) safeguard rights of defence are safeguarded (see </span>Case T‑714/20, <i><a href="https://curia.europa.eu/juris/liste.jsf?language=en&td=ALL&num=T-714/20">Ovsyannikov<span style="font-style: normal;"> v </span>Council</a></i>, ECLI:EU:T:2022:674<span lang="DE">).<o:p></o:p></span></span></p>
<p class="MsoNormal" style="text-align: justify;"><span lang="DE"><span style="font-family: helvetica;">The Council will
need to establish that the inclusion of immediate family members of Russian
business leaders is proportionate to the pursued aim of inter alia preventing
circumvention of the sanctions imposed. <o:p></o:p></span></span></p>
<p class="MsoNormal" style="text-align: justify;"><span style="font-family: helvetica;"><span lang="DE">At the moment it is
unclear whether the Court implied in the case of <i style="mso-bidi-font-style: normal;">Prigozhina</i> that the ‘real risk of circumvention’ through family
members can only be invoked in the context of EU sanctions against Syria (see </span>Finelli,
‘Countering Circumvention of Restrictive Measures: The EU Response’)<span lang="DE">. The established case law of <i style="mso-bidi-font-style: normal;">Tay-Za</i>
provides there can be no presumption that leading businesspersons with links
and association to a governing regime are using their family members for
circumventing EU sanctions (see Butler, 'Of Rulers, Relatives, and
Businesspersons’).<o:p></o:p></span></span></p>
<p class="MsoNormal" style="text-align: justify;"><span lang="DE"><span style="font-family: helvetica;">The Court of
Justice has accepted presumptions if they are rebuttable, but rebuttals for
targeted individuals are immensely difficult and have not been successful in
most Syrian sanctions cases before the Court of Justice since the presumptions
were introduced (see the <i style="mso-bidi-font-style: normal;">Zubedi</i> and <i style="mso-bidi-font-style: normal;">Bashar Assi</i> judgments). <o:p></o:p></span></span></p>
<p class="MsoNormal" style="text-align: justify;"><span lang="DE"><span style="font-family: helvetica;">The family member
would have to demonstrate to the Council that s/he has dissociated himself from
a parent, child – the primary target – and that s/he does not pose a real risk
of circumvention of the restrictive measures. Rebuttals may be possible based
on evidence that immediate family members do not assist the primary target to
have access or continue controlling the assets.<span style="mso-spacerun: yes;">
</span>A difficult task.<o:p></o:p></span></span></p>
<p class="MsoNormal" style="text-align: justify;"><b style="mso-bidi-font-weight: normal;"><span lang="DE"><span style="font-family: helvetica;">The risk of circumventing EU sanctions<o:p></o:p></span></span></b></p>
<p class="MsoNormal" style="text-align: justify;"><span lang="DE"><span style="font-family: helvetica;">The risk of
circumvention is considerable in the case of leading businesspersons operating
in Russia and their immediate family and the Court of Justice might well opt in
developing its case law further for the Russian sanctions context instead of
simply continue applying its <i style="mso-bidi-font-style: normal;">Tay-Za</i>
case law. Similarly, as in the <i style="mso-bidi-font-style: normal;"><a href="https://curia.europa.eu/juris/liste.jsf?language=en&td=ALL&num=T-125/22">RT
France</a></i> case, it might opt for an exceptional reasoning due to
exceptional circumstances. It might even apply its case law on the immediate
family of rulers, rather than on the immediate family of leading
businesspersons, finding that in certain exceptional cases leading
businesspersons are comparable to rulers in the Russian context. <o:p></o:p></span></span></p>
<p class="MsoNormal" style="text-align: justify;"><span style="font-family: helvetica;"><span lang="DE">A balance will have
to be struck by the Court of Justice between the fundamental rights of the
targeted immediate family members, who might pose no risk of circumvention
whatsoever and the difficult task to rebut presumptions, on the one hand, and
the importance of the effectiveness of targeted sanctions against Russia,
accounting for the Council’s ability in certain cases to rely on presumptions
on the other hand (f</span>or the reasons it set out in its case law (e.g.,
in <i>Anbouba v Council</i>, para. 46</span><span lang="DE"><span style="font-family: helvetica;">). A general blunt presumption of
circumvention of sanctions in cases of immediate family members of leading
businesspersons operating in Russia is unlikely to be accepted by the Court of
Justice. </span><o:p></o:p></span></p>Steve Peershttp://www.blogger.com/profile/05869161329197244113noreply@blogger.com0