A candle in the dark: the CJEU rules against criminalising parents for smuggling their children

 

Professor Steve Peers, Royal Holloway University of London

Photo credit: Bologna, taken by Ввласенко, via Wikimedia Commons

Introduction

The world is increasingly bleak for those concerned about civil liberties, poverty or climate change – including for those concerned about the right to asylum and the rights of migrants more generally in Europe. Constraints on those rights have reached the point where a law supposedly intended to combat wicked gangs of people smugglers ended up potentially being applied to criminalise a mother who applied for asylum for assisting her little girl to enter a Member State illegally with her.

In today’s judgment in Kinsa, the Court of Justice ruled that this interpretation of EU law went too far. But there’s a twist: there’s a proposal to amend the legislation, tabled a few months after the Kinsa case was referred to the CJEU, and Member States tried to foresee the Court’s judgment, taking the opportunity to build themselves an escape route to get around it. Yet there’s a further twist here: today’s judgment implicitly appears to be aware of the Member States’ plans, and subtly attempts to block that escape route. It’s the latest move in an unstated game of cat-and-mouse between the EU legislature and judiciary. But above and beyond these games, the Court’s judgment also has broader implications for the highly controversial relationship between criminal law and immigration and asylum law.

 

Background

Current law

The current EU law on smuggling of migrants – or, more precisely, the facilitation of illegal entry or stay – is set out in two parallel linked laws adopted in 2002: a Directive setting out the prohibition on facilitating illegal entry or stay, and a Framework Decision providing for criminal offences based on the prohibition. According to the 2002 Directive, Member States must impose ‘appropriate sanctions’ on anyone who ‘intentionally assists a person who is not a national of a Member State to enter, or transit across, the territory of a Member State in breach of the laws of the State concerned on the entry or transit of aliens’ (illegal entry), and anyone ‘who, for financial gain, intentionally assists a person who is not a national of a Member State to reside within the territory of a Member State in breach of the laws of the State concerned on the residence of aliens’ (illegal stay; italics added).

While the prohibition on assisting illegal stay is subject to the requirement that such assistance must be ‘for financial gain’, the prohibition on facilitating illegal entry is not. However, the Directive goes on to say that any Member State ‘may decide not to impose sanctions’ in ‘illegal entry’ cases, ‘by applying its national law and practice for cases where the aim of the behaviour is to provide humanitarian assistance to the person concerned’.

The Framework Decision then requires Member States to penalise the facilitation of illegal entry or illegal stay (as defined in the Directive) via the  criminal law, although the level of that penalty is only set out for the most serious cases (where the offence was committed as part of an organised crime group, or ‘while endangering the lives of the persons who are the subject of the offence’). However, it includes a safeguard for asylum:

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

Proposed law

The Commission’s proposal to replace the two 2002 measures with a single Directive would make a number of changes to that law, but I’ll focus on the scope of criminalisation of assistance (for a full discussion of the proposal and the Member States’ response to it, see my analysis here).

On this point, the obligation to criminalise either illegal entry or illegal stay would be limited to ‘financial gain’ cases, and the preamble clarifies that these elements of the offence:

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

A version of the current asylum safeguard would also appear in the preamble:

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

However, this is only the Commission’s proposal. EU legislation must also be agreed by the Council (ie Member States’ representatives) and the European Parliament. According to the Council’s version, agreed last December (after the Advocate-General’s opinion in the Kinsa case, but before today’s judgment) the preamble expressly reserves the possibility for Member States to criminalise support not motivated by financial benefits (new text underlined):

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

A wholly new recital in the preamble makes the point even more clearly (italics are mine):

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

And the Commission’s proposed recital stating that family members should not themselves be criminalised, is replaced by a recital giving Member States more leeway to do just that:

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

For its part, to date the European Parliament has not yet agreed its negotiation position on the issue, although there is a draft report on the proposal that exempts humanitarian assistance from criminal liability, and is critical of criminalising family members in the preamble:

(7a) Where an individual or organisation offers assistance to migrants through actions which are selfless and from which no financial or other material benefit is derived, or which are based on the principles of humanity, neutrality, impartiality and independence, then those actions should not be criminalised. Such actions may include the carrying out of search and rescue operations in accordance with international law, assistance to family members, assistance to third-country nationals in situations of danger or distress, the provision of legal assistance, medical assistance, healthcare, housing, shelter, clothing, food and water to third-country nationals or supporting third-country nationals in asserting their rights.

However, it remains to be seen whether the majority of MEPs support the draft report.

 

The Kinsa case

The mother being prosecuted in this case came originally from the Congo, flying to Bologna, Italy from Casablanca, with an 8-year-old and a 13-year-old girl (one was her daughter; the other was her niece, who she was looking after since the girl’s own mother died). (Some of the facts are omitted from the Court’s judgment; there’s more detail in the summary of the national court reference) Although she and the children did not enter via an unsafe vessel across the Mediterranean, they all travelled on false passports, and the Italian authorities decided that she should be prosecuted for breach of the EU Directive and Framework Decision, as implemented in national law, because she assisted the girls’ entry. She subsequently applied for asylum (the fate of that application is unknown).

In the criminal case, the national court had doubts that the EU legislation or its national implementation was compatible with the EU Charter of Fundamental Rights, particularly given that there was no mandatory exclusion for humanitarian assistance. It therefore asked the CJEU if the EU legislation was invalid, or alternatively if EU law precluded Italian law’s implementation of it on this point.

According to the Advocate-General’s opinion, the EU Directive was valid, and obliged Member States to criminalise a mother in these circumstances, although Member States must impose lower penalties in such cases, due to the Charter rule on proportionality of criminal penalties.

The CJEU took a radically different view.

It began by noting that EU legislation should be interpreted in conformity with the Charter as far as possible, in effect redrafting the national court’s questions to focus on Articles 7, 18 and (added by the Court) 24 of the Charter (respectively the rights to family life and asylum and rights of the child).

Interpreting the wording of the Directive, in the Court’s view, the prohibition of assistance to illegal entry was broad; it neither expressly included or excluded its application to those who assisted the illegal entry of children they had effective custody over. But the Court rejected the application of the prohibition of assistance to such cases, for several reasons.

First of all, it was inconsistent with the objectives of the EU law, which concerned assistance to illegal immigration, not the exercise of parental responsibility.

Secondly, this would contradict the right to family life (in particular the family unity of parents and children) and the rights of the child set out in the Charter (the right to protection and care, the best interests of the child, and the right of contact with parents); the latter right is also relevant to decisions addressed to adults which have major consequences for children. As the explanations to the Charter state, the UN Convention on the Rights of the Child (CRC) is relevant too; and that Convention refers to parents or guardians having the primary responsibility for children. It followed that the prohibition in EU law could not apply in these circumstances, even if the mother herself entered unlawfully.

Moreover, the Court ruled that applying the prohibition in such cases would undermine the ‘essence’ of these fundamental rights (see Article 52 of the Charter), given that a parent or guardian is simply exercising their responsibility to look after the children.

Thirdly, applying the prohibition to such case would breach the right to asylum in the Charter too; this right was relevant given the mother’s subsequent asylum application. Both the Charter and (as we have seen) the EU legislation concerned require compliance with the Refugee Convention. In particular, the Court referred to Article 31 of that Convention (also referred to explicitly in the EU legislation), which states that:

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

Similarly, the Court referred to a number of related points: the obligation set out in the Schengen Borders Code to apply that Code in accordance with human rights, the Refugee Convention, and non-refoulement; the right to submit an asylum application despite any illegal stay, after which the stay could not be considered illegal until a first-instance decision on the application; the prohibition on Member States dissuading an applicant for applying for asylum, without reasonable justification (on the last two points, referring to its judgments in Commission v Hungary (Reception of applicants for international protection), Commission v Hungary (Criminalisation of assistance to asylum seekers) and Commission v Hungary (Declaration of intention prior to an application for asylum); it’s fair to assume that the Hungarian government’s observations in the Kinsa case were unpersuasive); the EU reception conditions Directive and qualification directive refer to the best interests of the child and family unity; and the Final Act to the Refugee Convention refers to family unity of refugees too.

So, in the Court’s view, as an asylum-seeker the mother could not be prosecuted either for her own illegal entry or for accompanying her daughter and niece.  

Fourthly, the Court noted that – as the Commission, and indeed many critics of EU law in this field point out – a narrower reading of the obligation to criminalise for assisting illegal entry is confirmed by the protocol on smuggling of migrants, attached to the UN Convention on organised crime, which the EU and Member States have ratified, and which the EU legislation was intended to give effect to. The Court noted that the intention of the protocol is to criminalise the smuggling of migrants, while protecting the rights of those migrants. However, it also points out that other conduct, such as trafficking in people or sexual exploitation of children, could be criminalised.  

Finally, the Court addressed remedies. Its interpretation of the EU legislation had addressed the argument that this legislation might be invalid for breach of human rights. As for the national law, Member States could not breach fundamental rights when implementing EU law; so when transposing the 2002 Directive, they could not include conduct not covered by it, in breach of Articles 7 and 24 the Charter. In any event, the Court ruled that those provisions of the Charter were, in effect, directly effective; if a national court could not interpret national law consistently with the Charter, it would have to disapply that conflicting national law, ie the principle of supremacy/primacy (referring to Egenberger on enforcing Charter equality rights; on that judgment see here). The judgment did not comment on whether or not Article 18 of the Charter could be used in the same way.

 

Comments

There’s…a lot to unpack here. I’ll discuss in turn: the family life and rights of the child aspects of the judgment; its broader implications for asylum and immigration law; and the even broader legal and political context of the Court’s judgment.

Family life and rights of the child

The Court’s first point (distinguishing between control of irregular migration and parental responsibility) is solely connected to the parent/child relationship, but its second point (the Charter rights to family life and rights of the child, plus the CRC) is potentially broader – as there are family relationships other than the parent/child link. Although the Court’s analysis of the issues is understandably focussed on the facts of this case, there may be other circumstances where it might be relevant by analogy: assistance for other family members, or assistance from a parent already on the territory. The Court’s strong emphasis on the rights of the child aspects (covering all three paragraphs of Article 24 of the Charter, plus the CRC) could be relevant to other issues besides irregular entry; and the very strong remedy – disapplying national law in breach of Articles 7 and 24 of the Charter – could be applicable to many EU law issues inside and outside the scope of immigration or asylum law. And the Court’s ruling that this issue goes to the ‘essence’ of the rights in question makes it impossible to justify a limitation on those rights. (The Court doesn’t discuss whether or not the restriction goes to the essence of the right to asylum or not)

Having said that, the issue of humanitarian assistance goes beyond family relationships: the impulse to rescue strangers is distinct from a mother’s (or father’s) love for their child. In the context of revising the EU legislation on this issue, could the EU legislature simply leave the possible criminalisation of family support out of the law altogether – leaving Member States free to decide whether to criminalise it, untroubled by the constraints of EU law, because they would not be implementing it? Equally, could they evade those constraints as regards humanitarian assistance generally – as the Council’s negotiation position on the Commission’s proposal to amend the law seeks to do – by simply leaving the issue outside the scope of that law? With one bound, could the Member States be free?

Not so fast. While the CJEU could perhaps have confined its analysis to the family life and rights of the child points, it did not – choosing also to answer the national court’s questions about the right to asylum, and doing so in a particularly broad way.

Right to asylum

The mother’s subsequent application for asylum is crucial to the impact of this case – giving the national court the opportunity to ask about the Charter right, thus allowing the CJEU to wax lyrical about a wide swathe of EU asylum and border control law, plus the Refugee Convention.

Starting with the Convention, the Court’s willingness to refer to and apply Article 31 of the Convention – ruling out the prosecution of the mother for illegal entry even though the national court did not ask about that (it’s not even clear if she was charged for it) – is striking. The Court has perhaps forgotten that back in 2014, in the case of Qurbani (discussed here) it claimed that it had no jurisdiction to interpret Article 31 of the Convention. This was very unconvincing, given the express or implied references to that Article in EU law (in the main text of the smuggling Framework Decision and implicitly in the human rights safeguard in the borders code, both referred to in this judgment; Article 31 is also mentioned in the preambles to other EU asylum law), and its obvious relevance to criminalisation of immigration.

Having finally worked up the enthusiasm to discuss Article 31, the Court applies it without much analysis – possibly because it was not even asked about criminal penalties for the mother’s own illegal entry, or perhaps because of the other legal factors it mentioned before reaching its conclusion that she could not be prosecuted for her own illegal entry or for assisting that of the children.

But let’s look at the Article 31 issues in this case. The Court obviously (and surely correctly) assumes that criminalisation of illegal entry constitutes a ‘penalty’ for the purposes of Article 31; the definition of ‘penalty’ is an issue as regards other restrictions following illegal entry, though. The Court also assumes that asylum-seekers – not only recognised refugees – are covered by Article 31.  Another key issue in the interpretation of Article 31 is the meaning of ‘coming directly’: here, the summary of the facts indicates that the family originated in Congo but flew to Italy from Morocco, and the details of their travel to Morocco are not mentioned. Arguably the Court has implicitly accepted that an asylum-seeker must still be regarded as ‘coming directly’ even though they went through an intermediary country, but does this only apply if direct flights were unavailable? (We don’t know if they were). Or if the asylum-seeker only transited there, or the stay was otherwise brief? Perhaps the story of refugees trapped in Casablanca, desperately trying to obtain documentation to travel further abroad, would be a good idea for a film.

Whether the mother’s life or freedom was threatened on Convention grounds is the issue to be decided in her substantive asylum application (she’s fleeing domestic violence, which was the subject of an important CJEU judgment last year). She’s certainly present without authorisation, and appears to have presented herself to the authorities without delay (although this may be more of an issue in other cases). Arguably, seeking asylum is in itself a ‘good cause’ for illegal entry or presence, although national interior ministries might well contest that. And the Court does not even mention Article 31(2) of the Convention, on restrictions on movement or possible movement to other countries – although these issues might arise in relation to detention cases (the mother was only detained for one day), or ‘safe third country’ arguments.

This detailed analysis of Article 31 may be begging the question, though, because, as mentioned already, the Court also mentioned a series of other legal factors in its assessment of possible criminal penalties. So presumably Article 31 is not the only issue to be taken into account in such cases, and the finer points of interpreting it sit alongside other issues to be interpreted (the borders code human rights safeguard; the legality of an asylum-seeker’s stay until the first instance decision, which is explicitly set out in EU asylum procedures law; and the prohibition of dissuading asylum applications). And while the Court does mention family unity and the rights of the child in this context, most of the points it makes here are relevant to any asylum application, and also to other types of assistance to asylum-seekers (cf the Court’s reference to the previous judgment against Hungary for criminalising assistance to asylum-seekers). The Court seems to have taken the opportunity arising from this specific case to reach some very general findings about criminalisation and border control in the context of asylum.

All of this encourages national courts to send the EU court further questions to clarify these points, in an environment where asylum-seekers’ access to the territory and the asylum procedure is often very difficult on the ground. But what about the EU legislature?

As noted already, the Member States’ negotiation position on the proposed new Directive on smuggling of persons takes the issue of family assistance in particular, and humanitarian assistance in general, outside the scope of the smuggling law, leaving it up to Member States to determine whether to criminalise such forms of assistance or not. But on the face of it, the Court’s judgment has thwarted this cunning plan – at least in cases where the assistance is offered to, or by, an asylum seeker. For the Court has linked its interpretation also to the Schengen Borders Code (where the human rights safeguard was untouched by amendments last year), (implicitly) the asylum procedures law, the reception conditions directive, and the qualification law – along with the Refugee Convention. So even if Member States win the battle on this point as regards the smuggling of migrants law, the Court has opened four more fronts – and its rulings on the point not only interpret secondary law, but also largely link that interpretation to EU primary law (the Charter, plus the quasi-primary law of the Refugee Convention – linked to the Charter and the EU Treaties). 

Nor could the Member States argue that the future Directive sets minimum standards only, leaving them free to criminalise what they want above that level, because the Kinsa judgment insists that the EU Charter constrains Member States' implementation of the law regardless.

The legislative mouse seems to have been caught by the judicial cat.

Finally, the Court’s interpretation of the UN Protocol is unhelpful for the border control industrial complex too. The Court is correct to point out that the protocol only requires the criminalisation of smuggling in the context of organised crime, although the judgment exaggerates the extent to which the protocol protects migrants’ rights. Again, these are general points not limited to family assistance, or even humanitarian assistance more generally; they could equally apply to criminalising the migrants as such.   

The broader context

Trying to fire a legal weapon devised to combat organised crime at the desperate mother and aunt of two young girls offers us a moment of rare moral clarity. The facts in this case are so sympathetic that the ruling in her favour may not be as controversial as if the facts had been somewhat different. Nevertheless, the CJEU eschewed the opportunity to limit its judgment to such compassionate cases, instead providing fuel for much more general legal challenges to border controls on human rights grounds, even apparently undercutting an attempt to legislate an escape from EU law constraints.

And the Court is surely well aware of the political environment in which it delivered its judgment. Even setting aside the assault on immigration and asylum rights across the Atlantic, the judgment comes shortly after a group of Member States’ leaders delivered a broadside against the case law of the European Court of Human Rights in immigration cases. The CJEU is a different court, but it’s unlikely that these leaders are too thrilled with its asylum and immigration case law either. Yet its response to this broadside was not to surrender and prepare to be boarded. It was to fire back.  

It’s not certain what the full scope of this judgment is; it’s unlikely that every CJEU migration judgment will be as liberal; and it’s possible that Member States may find a way to circumvent this judgment anyway – perhaps by simply ignoring it, as they do with pushbacks. But the judgment is at least a sign that all is not yet lost. In an increasingly dystopian world, it is at least a flicker of hope.

Further reading - for a comparative law angle, the Supreme Court of Canada's R v Appulonappa judgment 

Does the Court of Justice of the European Union Respect the Limits of EU Competence?

 

 

Vilija Vėlyvytė, British Academy Post-Doctoral Fellow, Somerville College, University of Oxford

 

Photo credit: civarmy, by wikipedia

 

My new book, ‘Judicial Authority in EU Internal Market Law: Implications for the Balance of Competences and Powers’ (Hart Publishing 2022), examines how the Court of Justice of the European Union expands EU competences through the interpretation of EU internal market law.

 

Much has been written about the EU’s so-called ‘competence creep’, describing the extension of EU competence (or power) to regulate the internal market into the areas in which the EU has not been granted explicit competence to act, such as public health, social security, and others. That discussion criticizes the EU legislature – Commission, Council and Parliament acting together – for failure to respect the limits of EU competence and the Court for failure to police those limits. Yet it largely overlooks a related, and equally important, question: does the Court itself observe the limits of EU competence in the interpretation of the rules of the internal market laid down in the Treaties? This question lies at the heart of my new book. The inquiry conducted in the book exposes the scale of the problem of the EU’s competence creep and demonstrates that the exercise by the Court of its interpretative authority is its major, and often dominant, cause.

 

The limits of EU competence are governed by the principles of conferral, subsidiarity and proportionality. Whilst the principle of conferral defines the scope of EU competence, the principles of subsidiarity and proportionality limit its exercise. The book examines to what extent the Court observes these principles in the interpretation of EU free movement rules. It argues that the Court’s observance of the three principles has been inconsistent, thereby creating constitutional tensions in the EU’s relationship with the Member States and upsetting the institutional balance of powers between the EU legislature and judiciary.

 

Observance of Conferral in Free Movement Case Law

 

According to the principle of conferral (Art 5(2) TEU), the EU can act only within the scope of the competences that Member States have conferred upon it in the Treaties. The Treaties contain a list of EU competences, dividing them into exclusive, shared and supplementary (see here). Notably, the EU does not have any real powers in the areas belonging to its supplementary competences, such as, for example, healthcare, education and, for the most part, social policy. Its action in these areas is limited to the adoption of measures of a recommendatory character.

 

The phrasing of the principle of conferral in the Treaties suggests that there is a clear line as to what the EU can and cannot do. But in reality this is far from true. In the way conferral is interpreted by the Court, it allows the EU to interfere into the areas that in principle fall outside the scope of its competences to the extent that such interference stems from the exercise of a competence that has been conferred upon the EU. For instance, the EU has not been granted competence to legislate in the area of public health. Yet it can enact such legislation as long as it contributes to the functioning of the internal market (see Tobacco Advertising II judgment, concerning the validity of EU directive on the advertising and sponsorship of tobacco products).

 

EU legislation aside, Member States must comply with the rules of the internal market laid down in the Treaties in all areas, regardless of whether these belong to EU or Member State scope of competence. So, for example, Member States retain the competence to regulate the exercise of collective labour rights, namely the right to collective bargaining and right to strike. However, they must regulate these rights in a way that does not violate the EU’s economic freedoms – freedom of establishment and of provision of services in particular (see Viking and Laval judgments).

 

The book argues that if conferral is to have a meaningful normative function in EU law, there needs to be a limit to how far EU internal market law can encroach into the areas of competence that should in principle be exempted from any binding interference on behalf of the EU. In the context of the judicial interpretation of free movement law, that limit lies in the conditions that trigger the application of free movement law. These are the conditions that have to be satisfied for the matter to fall within the scope of free movement. For instance, in order to benefit from the EU’s economic freedoms, the activities in question have to be of an economic, as opposed to social, nature and the challenged national law or practice has to constitute a restriction on those activities.

 

When interpreting the meaning of these conditions in a given case, the Court should adopt a systemic approach, contextualising them in the requirements of the principle of conferral. This presupposes a judicial interpretation of the concepts of ‘economic activity’ and ‘restriction’ that balances the objectives of the internal market inherent in these concepts with the concerns relating to the protection of national competence and regulatory autonomy. Such balancing exercise should be performed whenever free movement law collides with policy areas that are constitutionally sensitive from the EU law point of view. As a consequence, activities which have some economic features but are otherwise heavily regulated at the national level in the interests of social policy and solidarity, would fall outside the scope of the economic freedoms. A prominent example of such activities is the provision of public healthcare and education services.

 

Having conducted an inquiry into free movement case law involving three sensitive areas of national policy – healthcare, education and collective labour law, the book finds that the Court has systematically failed to engage in any meaningful reflection of competence concerns in the interpretation of the scope of free movement rules. This practice places the Court in tension with the principle of conferral.

 

The case law has also diminished the effectiveness of the legislative dimension of the principle of conferral. Specifically, it has opened up the possibility for matters that had been reserved to the regulatory prerogative of the Member States to be addressed at the EU’s legislative level through the functionally broad provisions of the Treaties (legal bases) dedicated to the regulation of the internal market. For instance, by holding that the provision of public healthcare is an economic activity, the Court sent a signal to the EU legislature that healthcare, as a service, could be legitimately legislated on under Art 59 or Art 114 TFEU. This enabled the adoption of EU Directive on Patients’ Rights, which governs access to cross-border healthcare, notwithstanding that EU-wide harmonisation in the area of public health is excluded by Art 168 TFEU.

 

Observance of Subsidiarity and Proportionality in Free Movement Case Law

 

The principles of subsidiarity (Art 5(3) TEU) and proportionality (Art 5(4) TEU) govern the exercise of EU competences. Subsidiarity applies to the areas of competence that are shared between the EU and Member States. It sets out the conditions under which the competence concerned should be exercised by the EU rather than Member States. Essentially, it stipulates that policy decisions should be taken at the level of the Member States unless action at the EU level could be more effective. Proportionality, on the other hand, controls the intensity of EU action. It limits intervention by the EU to what is necessary in light of the objectives pursued.

 

The book demonstrates that both principles are designed to protect national regulatory autonomy in politically sensitive areas of EU action, but they do so in slightly different ways. If subsidiarity is primarily concerned with the protection of the scope of national regulatory autonomy, proportionality ensures that EU regulatory intervention does not intrude excessively into the various values and interests protected via the exercise of national regulatory autonomy.

 

How do the principles of subsidiarity and proportionality manifest themselves in the judicial interpretation of the Treaties? They do at the stage of the judicial inquiry into the justification of national measures restrictive of free movement. The degree to which restrictive measures can be justified depends on the standard of judicial review employed by the Court. Accordingly, the standard of judicial review determines the space left for domestic regulatory action in the situation concerned. It thus affects both the scope of national regulatory autonomy (subsidiarity) and the interests protected within its exercise (proportionality). So, for example, when free movement law is construed to require that trade unions employ the ‘least restrictive’ means in negotiations with foreign businesses, this inhibits their autonomy to regulate the terms and conditions of employment as well as their ability to protect workers’ interests. This implicates both subsidiarity and proportionality.

 

The Court has been inconsistent in its observance of the principles of subsidiarity and proportionality across the policy areas studied in the book.

 

In three of the four areas – healthcare, education and collective labour law, the Court has employed a high standard of review of national measures, focused on the test of necessity. This approach is well illustrated by the Bressol judgment. The case concerned Belgian measures restricting foreign students’ access to some of the oversubscribed medical programmes. For context, in some of these programmes foreign students (mainly French) would make up more than 80% of the class. This situation raised concerns about the potential shortage of health specialists in Belgium and, more broadly, about the financial sustainability of the country’s higher education system, which was based on free and open access. The Court held that in order to be justified, government measures had to be appropriate and proportionate. Notably, the assessment of proportionality had to take into account the possibility that the government might have been able to achieve its regulatory goals with less restrictive means. Finally, the government was required to provide ‘an objective, detailed analysis, supported by figures, … capable of demonstrating, with solid and consistent data, that there [were] genuine risks to public health’ (para 71).

 

Essentially, the Court’s reasoning made clear that the Belgian higher education policy could only be pursued by employing measures that did not restrict the free movement of students in the EU.

 

This approach can be contrasted with the one employed by the Court in the gambling case law. Governments often limit access to their gambling markets for foreign operators, often by monopolising the operation of gambling. (This keeps the revenues derived from gambling within national borders.) The Court’s review of these types of measures is highly deferential. It is grounded in respect for national regulatory autonomy in the gambling sector. In that connection, the Court holds that Member States are entitled to a margin of appreciation, or discretion, when regulating gambling activities. Accordingly, ‘it is for those authorities to consider whether, in the context of the aim pursued, it is necessary to prohibit activities of that kind, totally or partially, or only to restrict them and to lay down more or less rigorous procedures for controlling them’ (see Zenatti judgment, para 33).

 

As a result, governments are allowed to bar foreign operators from entering their gambling markets as long as such restrictions are consistent with the regulatory objectives pursued.

 

The book ultimately argues that discrepancies in the standard of judicial review employed in relation to the areas under study – healthcare, education and collective labour law, on the one hand, and gambling, on the other – cannot be justified considering their comparable political and social sensitivity. Rather, these discrepancies indicate that the Court has been unfairly selective in its observance of the principles of subsidiarity and proportionality in the free movement case law.  

 

Judicial Reasoning Reform

 

In light of its findings, the book advances a proposition aimed at restoring the balance of competences within the EU and thus easing the tensions created by the case law. Specifically, it proposes that the principles of subsidiarity and proportionality should be reinforced into EU-level judicial practice concerning the areas of national policy which are in principle reserved to Member State competence. In practice, this would require the Court to employ, in relation to those areas, a set of techniques of judicial interpretation – already to be found in the Court’s wider case law – that are aimed at lowering the standard of judicial review. These techniques are the margin of appreciation, the ‘fair balance’ approach and exemption from the scope of EU law.

 

The proposed reform would ensure that the exercise by the Court of EU judicial authority through the interpretation of internal market law respects the limits of EU competences.

 

The Jurisprudence of Constitutional Conflict in the European Union (OUP 2022)

 

 

Ana Bobić, Référendaire at the Court of Justice of the European Union

 

Photo credit: Antoine Montulé, via Wikicommons

 

 

It has been almost 60 years since the Court of Justice introduced the principle of primacy of EU law, but it still continually triggers debates on the nature of the EU’s constitutional order. The penetration of Union law and its peculiarities into national constitutional orders has originally created a relationship of unease between the Court of Justice and national courts with constitutional jurisdiction. The Court of Justice, convinced in the utmost value of effectiveness of Union law, is expecting all national courts to share its zeal. National courts performing constitutional review, however, tend to prioritise their respective constitutions. The main objective of my new book was thus to determine the actual application of the principle of primacy of EU law by constitutional adjudicators in the European Union, through a mutual feedback loop of contestation with the Court of Justice. The book enriches our knowledge of the incidences of, and reasons for, constitutional clashes between the European Court of Justice and national constitutional courts in the application and enforcement of EU law.

 

The conundrum faced by national courts performing constitutional review is multi-faceted and depends on the national constitutional setting in which they operate. I have thus created and used the judicial triangle as a visual representation of changes in power relations between courts over time. As I show, the judicial triangle is always unbalanced at individual points of conflict: at times in favour of the Court of Justice and its privileged relationship to ordinary national courts; at other times in favour of national constitutional courts and their authority over the national judiciary. In this context, heterarchy, as the guiding scheme of judicial interactions, becomes visible when all the imbalanced judicial triangles are regarded in aggregate. For this purpose, this book conducts an in-depth analysis of constitutional conflict across different areas of law and over time (Chapters 5 to 7). Such an approach then enables us to see the resulting judicial triangles from all case studies, which are analysed jointly in the conclusions (Chapters 8 and 9). This allowed me to paint a distinctly nuanced picture of power relations among the courts under analysis.

 

In so doing, I have relied upon the framework of constitutional pluralism, arguing it is both descriptively and normatively relevant for the web of relations in the European judicial space. Descriptively, it is characterised as a system in which we can observe a parallel operation of different constitutional sites claiming ultimate authority. These sites regularly engage in conflict, which is resolved incrementally through the auto-correct function, sustained in turn by the application of sincere cooperation and mutual respect. The actors in the system are in a relationship of heterarchy as they continually change their ranking over time. Normatively, constitutional pluralism is comprised of a shared core codified in Article 2 TEU, representing the minimum requirements for Union membership. The emergence of constitutional conflict in this constellation is a regular and desirable feature of the system that promotes a dynamic development of law and sets in place checks and balances between different sites of constitutional authority. However, when constitutional conflict reaches such extremes that the basic values from Article 2 TEU are no longer respected, even in their most minimalist interpretation, without any trace of sincere cooperation and mutual respect, we are speaking of destructive conflict that can only be resolved jointly by political and legal means. I have offered a broad-brush empirical illustration of the descriptive and normative propositions of the theory in Chapters 3 and 4.

 

Next, to corroborate these theoretical claims, I explore in great detail the three areas of constitutional conflict – ultra vires review, identity review, and fundamental rights review. The aim of this part of the book is to provide a detailed and nuanced analysis of the way the Court of Justice has expanded the self-referential system of the Treaties; the different limits that constitutional adjudicators have placed on the principle of primacy as a result; what possible solutions they envisage in the event of a constitutional conflict; and whether such solutions pertain to a constructive or destructive interpretation of the shared normative core codified in Article 2 TEU. In all three areas of review, it was possible conclusively to state that a heterarchical constellation is more conducive to cooperation, mutual respect and the will to avoid conflict. The role of national constitutional adjudicators is to keep the Court of Justice in check and control its jurisprudence in a constructive manner, and vice versa.  

 

In ultra vires review (Chapter 5), not only have Member States announced they will police the transfer of competences from the national to the EU level, but have also found individual decisions of the Court of Justice outside the Treaty mandate. Yet, in all those cases, the finding was based on previously established standards of competence control, the Court of Justice was first involved through the preliminary reference procedure, and ultra vires review was an option available only to courts performing constitutional review, rather than ordinary courts.

 

In identity review (Chapter 6), constitutional adjudicators on the national level are consistently re-emphasising their prerogative to protect the constitutional core (the Portuguese and Italian constitutional courts have both recently included the constitutional identity discourse into their jurisprudence, whereas the Belgian Cour Constitutionnelle introduced constitutional core limits to the operation of the principle of primacy). Identity review on the EU level showed that the Court of Justice defers to the national level to define the content of their specific constitutional values with wide discretion and confines its role to ensuring a common denominator for the protection of such values through the proportionality test. This area of review has further shown that without the application of sincere cooperation and mutual respect, constitutional courts that are under the control of the executive may stretch constitutional identity beyond recognition and descend into destructive conflict. The usefulness of the auto-correct function in accommodating constitutional conflict stops here: judicial interactions in destructive conflict only legitimise the captured courts' decisions, while allowing them free reign in malforming the rule of law according to the needs of authoritative tendencies of the executive. Destructive conflict thus demands joint political and legal action at both EU and national levels.

 

Finally, in fundamental rights review (Chapter 7), national constitutional adjudicators enforced substantive limits to the principle of primacy, grounded in a satisfactory level of fundamental rights protection. The Court of Justice has reacted by subscribing to the imperative of fundamental rights protection at the EU level. Through the incremental development of jurisprudence, the landscape of fundamental rights protection has improved considerably due to the jurisprudence of constitutional conflict (for example, the Court of Justice's decisions in Aranyosi and Căldăraru and C.K. as well as the annulment of the Data Retention Directive).

 

When we flip through the illustrations of all the judicial triangles presented and analysed in the book (Chapter 8), what emerges is an animation of power relations permanently shifting between the Court of Justice and national courts performing constitutional review. Such a system is complex and its operation regularly causes headaches, either for the Court of Justice or for national constitutional courts, but most commonly for legal academics trying to make sense of judicial interactions and the broader ramifications for the character of the EU’s constitutional space. It is clear that the courts under analysis often disagree. Yet, the way these disagreements have been playing out in practice tells us that they form a delicate equilibrium, built incrementally over a long period of time, which allowed them to remain predominantly constructive. Ultimately, constitutional conflict is here to stay. With many a procedural and substantive tool analysed in this book, the courts I analysed can, and predominantly do, keep it constructive, to the benefit of the EU’s constitutional order.

 

 

Final courts’ obligations to refer questions: the CJEU clarifies CILFIT

Daniel Sarmiento, Professor of EU Law at the University Complutense of Madrid*

Last week I published a post on Schipani v Italy, where I suggested that the Strasbourg court (the European Court of Human Rights) was becoming much stricter with national supreme courts’ duties to make preliminary references to the Luxembourg court (the CJEU) than the CJEU itself. I pointed at this paradox with a reference to CILFIT, hinting that this judgment had probably been a source of judicial rebelliousness and that the Court of Justice was not doing much about it.

I am very happy to say that the Court of Justice has now proved me wrong.

In a landmark judgment delivered in the case of Ferreira da Silva, that Court, for the very first time in history, stated that a supreme court had breached its duty to make a preliminary reference under article 267.3 TFEU. After many years in which CILFIT seemed to be an open invitation to national courts of last instance to do as they saw fit when deciding whether to make a reference or not, the acte claire doctrine has finally taken a bite.

I must admit that the facts of the case made it difficult for the Court to reach a different outcome. The Portuguese Supreme Court had clearly misapplied a long-standing case-law of the Court of Justice on transfers of business and acquired rights of workers, using a criteria of interpretation that had been openly rejected by the Court in the past. In this regard, the Portuguese Supreme Court had obviously not complied with the CILFIT criteria. But, as you all know, the CILFIT criteria are so broad and, at the same time, so exhaustive and difficult to comply with, that maybe all Supreme Courts of the EU have every now and then breached Article 267.3 TFEU. So why has the Court of Justice now decided to become a strict guardian of the acte claire doctrine?

The triggering factor in Ferreira Silva seems to be the fact that there had been strong contradictions between the courts of different Member States. It appears that there were also considerable contradictions in the interpretation of Directive 2001/23 (concerning the rights of workers when a business is transferred) in Portugal among first instance courts, but the Court of Justice stated that such circumstance was not enough to entail a breach of Article 267.3 TFEU. What seems to be important for the Court is the combination of national conflicting decisions and other conflicting decisions among other Member States that have resulted in preliminary references to the Court. In the Court’s own words:

“43. However, so far as the area under consideration in the present case is concerned and as is clear from paragraphs 24 to 27 of this judgment, the question as to how the concept of a ‘transfer of a business’ should be interpreted has given rise to a great deal of uncertainty on the part of many national courts and tribunals which, as a consequence, have found it necessary to make a reference to the Court of Justice. That uncertainty shows not only that there are difficulties of interpretation, but also that there is a risk of divergences in judicial decisions within the European Union.

44. It follows that, in circumstances such as those of the case before the referring court, which are characterised both by conflicting lines of case-law at national level regarding the concept of a ‘transfer of a business’ within the meaning of Directive 2001/23 and by the fact that that concept frequently gives rise to difficulties of interpretation in the various Member States, a national court or tribunal against whose decisions there is no judicial remedy under national law must comply with its obligation to make a reference to the Court, in order to avert the risk of an incorrect interpretation of EU law.”

Another interesting aspect of the case is that the main proceedings concerned an action for damages against the Portuguese State, as a result of the judgment of the Supreme Court that breached Directive 2001/23. In this regard, the Court of Justice was faced with Portuguese damages law, according to which an action for damages against the State can only be inadmissible if the decision that caused the loss or damage has not been set aside. According to the Court, this requirement makes it too difficult to claim damages and thus breaches the principle of effectiveness.

Following the precedent of Traghetti del Mediterraneo, the Court has taken the chance to strike out another burdensome procedural rule whose main task is to keep the courts safe from damages actions. But in Ferreira da Silva the Court has gone even further: it has not only challenged a Supreme Court for the way in which it has handled EU Law and its duty to make a reference, but it has also, all in one decision, removed another brick in the wall that protect national courts from intrusive (but sometimes rightful) litigants invoking EU Law.

I believe this is very good news and this judgment should be welcome by all EU lawyers. The situation in some Member States, particularly in courts of last instance handling requests to make references, had become troublesome. Every EU lawyer with experience in the bar knows this. In Ferreira da Silva it seems that the Court has finally taken measures and it has sent a clear message to its national counterparts. The facts of the case make it easy for the Court to justifiy this decision, so national judges can hardly complain for having to cope with too stringent an interpretation of Article 267.3 TFEU. The Court has made a wise move and has chosen the right case to do it.

Ferreira da Silva was not rendered by the Grand Chamber, but maybe that makes sense. After all, the Court has simply implemented its previous consolidated case-law, which had been reaffirmed many times by the Grand Chamber. And furthermore, seeing Koen Lenaerts sitting in this five-judge chamber is a sign that the judgment can be as good and solid as a Grand Chamber decision.

Barnard & Peers: chapter 10

*This post previously appeared on the Despite our Differences blog

Photo credit: www.lapsi-project.eu

Opinion 2/13 on EU accession to the ECHR: looking for the silver lining

Catherine Barnard, Trinity College, Cambridge

Introduction

Opinion 2/13 is a judgment for lawyers, not politicians, albeit one with major political ramifications. It engages in a detailed legal analysis of the relevant provisions of the Draft Accession Agreement (DAA), as well as key principles of EU law. This does not always make it an easy read. Others have helpfully explained the Opinion (see the Editorial comments in (2015) 52 Common Market Law Review 1); a number have been have been highly critical of it (eg Douglas-Scott, Peers, Lock). I want to see whether it is possible to adopt a more positive reading of the Opinion. My remarks focus on three points:

·         Was there a failure to see the wood for the trees in the negotiations?

·         Was Opinion 2/13 really a case of judicial vanity?

·         What are the effects of Opinion 2/13 on relations between the CJEU and the European Court of Human Rights?

Was there a failure to see the wood for the trees in the negotiations?

The submissions of the Member States and the AG’s Opinion focused on the content of the Draft Accession Agreement: are the various clauses of the agreement compatible with EU law? But I think the Court felt that the focus on the nuts and bolts of the DAA meant that the negotiators failed to look at the bigger picture, namely (1) that the EU is not a state; and (2) that EU law has special characteristics (the language of Article 1 of Protocol 8[1]) which had not been sufficiently accommodated by the DAA.

In other words, the DAA focused on the state of the soft furnishings of the house – the carpets and curtains - rather than on the structural soundness of the entire edifice. But the Court was much more concerned with the edifice rather than the soft furnishings. This is why it devoted a substantial part of its Opinion (paragraphs 153-177) to identifying the ‘specific characteristics’ of EU law which it thought risked being undermined by accession to the ECHR. It identified these specific characteristics as supremacy, direct effect, conferral of powers, institutional structure[2], as well as the principle of mutual trust[3] and fundamental rights (why so far down the list?).[4] The Court also emphasised the importance of the autonomy of EU law - that is its autonomy from both the laws of the Member States and international law.[5] The Court said that the autonomy of EU law, together with its specific characteristics, were preserved by the judicial system intended to ensure consistency and uniformity in the interpretation of EU law.[6] And the key to this system is the Article 267 TFEU preliminary reference procedure.[7] It was against this backcloth, said the Court, that the DAA had to be considered.

Having set out its stall, the Court was, I think, trying to indicate that anything in – or about - the Accession agreement which jeopardised this core contravened EU law. Putting it another way, the discussion in paragraphs 153-177 was not put there simply to teach EU lawyers to suck EU eggs; these paragraphs are integral to the logic that followed. They provided the context for the Court to consider not just the points raised by the Member States in their submissions but also the bigger constitutional picture.

This broader constitutional context also helps to explain the focus on the three substantive issues: Article 53, mutual trust and Protocol No. 16 which had featured little in the submissions and the AG’s Opinion. At first sight, it is particularly surprising that Protocol No. 16 was considered at all. It allows national courts of last resort of states signed up to the Protocol to make ‘references’ to the European Court of Human Rights for an interpretation of the Convention.[8] It was concluded after the DAA had been agreed and it has not yet been brought into force. Yet the mere existence of Protocol 16 gave the Court the opportunity to express its views on the centrality of Article 267 TFEU to the EU system and how the reference procedure might be undermined.

In other words, for the Court, the EU’s team negotiating the DAA had failed to consider this important constitutional ‘wood’, focusing too much on the ‘trees’. Addressing the concerns about the potential infringement of Article 267 TFEU, together with the issues raised about Article 53 TFEU, the principle of mutual trust and Protocol No 16, was essential before accession could take place.

Was Opinion 2/13 a case of judicial vanity?

Critics of Opinion 2/13 argue that the Court of Justice was determined to protect its supremacy at all costs. Despite the fact that all intervening Member States, the AG (with reservations), and the Presidents’ joint communication indicated support for the DAA, the Court cussedly did the opposite. Even if this narrative is correct (which I doubt - see below), I actually think there would be some justification for the Court refusing to surrender itself so absolutely to the control of a ‘higher’ court. Compared to the US Supreme Court, it is still a teenager as a court. It continues to deal with threats to its supremacy from the Constitutional Courts of the Member States. It has, more or less, successfully held off those challenges. It certainly saw off a challenge to its supremacy from the power of the UN in Kadi I.[9] There, its identification of the autonomy of EU law was largely welcomed: David was seeing off Goliath. The situation is different now. The CJEU has now assumed Goliath-like proportions. Autonomy may now be mistaken for hubris, arrogance, disdain for its sister court. However, to the Court of Justice, subordination to a ‘higher’ court might suggest the Court is not invincible. It has always been very sensitive to this possibility.

However, I am not sure that the narrative of judicial vanity is correct. After all the Court does expressly concede that EU law - and the Court of Justice - are subjecting themselves to external review.[10] It points out that:

 It is admittedly inherent in the very concept of external control that, on the one hand, the interpretation of the ECHR provided by the ECtHR would, under international law, be binding on the EU and its institutions, including the Court of Justice, and that, on the other, the interpretation by the Court of Justice of a right recognised by the ECHR would not be binding on the control mechanisms provided for by the ECHR, particularly the ECtHR, as Article 3(6) of the draft agreement provides and as is stated in paragraph 68 of the draft explanatory report.

The Court also recognises that there is an obligation on the EU to accede to the Convention. However, I think the structure of paragraphs 160-162 is telling. The emphasis is not on the obligation to accede under Article 6(2) TEU, first sentence. Rather, the Court emphasises that accession is subject to limitations: accession must ‘not affect the Union’s competences as defined in the Treaties’ (Article 6(2) TEU, second sentence), nor must it interfere with the specific characteristics of the EU (Protocol 8, protocols being of equal value to the Treaties). As the Court put it at paragraph 164:

 For the purposes of that review, it must be noted that, as is apparent from paragraphs 160 to 162 above, the conditions to which accession is subject under the Treaties are intended, particularly, to ensure that accession does not affect the specific characteristics of the EU and EU law.

This is a subtle change in emphasis but an important one. Yes, Article 6(2), first sentence, suggests an absolute obligation to accede. However, when viewed through the lens of Protocol 8 and the second sentence of Article 6(2) TEU, the Treaty provided not an absolute obligation to accede but a conditional one.[11] I think this is the line the Court took.

What are the effects of the Opinion on relations with the ECtHR?

For proponents of the thesis of CJEU vanity, the effect of the Opinion on relations with the ECtHR is disastrous. The fact that the Opinion came out just before Christmas – not a bad time to bury bad news – might support the idea that the Court of Justice had something to hide.

Again, a closer look at the judgment might refute, at least in part, this allegation. First, at no point did the Court criticise the European Court of Human Rights or its case law; its ire seems to have been directed at the EU’s negotiating team.

Second, as Peers has helpfully digested, the Court has clearly identified areas for improvement. It has thus provided a drafting ‘shopping list’ for the EU’s (new?) negotiating team. Some of these items are relatively straightforward to address. Some, especially those concerning the CFSP, mutual trust,[12] Article 53 and Protocol 16, may not be. And the logistics of renegotiating the DAA in the face of a number of intransigent states both in the EU and outside, gives considerable pause for thought.

But the fact is that the Court of Justice did not close the door on EU accession to the ECHR. Leaving it ajar, yes, but not slamming the door shut completely. And the Court of Human Rights is a sensitive institution. While its first reaction might be disappointment (see the President’s remarks on the opening of the judicial year), judicial comity will lead the judiciary in both Courts to engage – probably privately – with each other.

Conclusions

A number of commentators have been tremendously critical of the Court’s decision. Their disappointment is understandable. There was so much hope associated with accession. The effect of Opinion 2/13 is to stymie these hopes. One reading of the Opinion is that the Court did this to deliver a body blow to the ECtHR and to (re)assert the CJEU’s own supremacy. In this case the judgment is very much a political one dressed up in lawyers’ clothing. Another reading is that the Court was focused on (re)asserting the specific features of EU law, which it felt had not been adequately recognised in the negotiation process. In this case the judgment is very much a legal one.

But there may be a silver-lining. The Court of Justice has put down a marker that it thinks that it can ‘do’ human rights. It may now have to prove this. There may be more decisions like Abdida,[13] delivered by the Grand Chamber on the same day as Opinion 2/13 (discussed by Peers), where the Court adopts a pro-human rights line (sweetened by numerous references to the case law of the European Court of Human Rights). Politically this may be very important, not only to start the process of bridge building with the Court of Human Rights, but also to send out a message to its own (troublesome) constitutional courts. For what is sauce to the (CJEU) goose is also sauce for the gander of the national constitutional courts.

 

These remarks were first delivered to a seminar organised by CELS, Faculty of Law, University of Cambridge, 4 February 2015.

 

Barnard & Peers: chapter 9

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[1] ‘The agreement relating to the accession of the Union to the European Convention on the Protection of Human Rights and Fundamental Freedoms (hereinafter referred to as the "European Convention") provided for in Article 6(2) of the Treaty on European Union shall make provision for preserving the specific characteristics of the Union and Union law, in particular with regard to: (a) the specific arrangements for the Union's possible participation in the control bodies of the European Convention;(b) the mechanisms necessary to ensure that proceedings by non-Member States and individual applications are correctly addressed to Member States and/or the Union as appropriate.’

[2] Paras. 165-6.

[3] Para. 168. See also K. Lenaerts, ‘The Principle of Mutual Recognition in the Area of Freedom, Security and Justice’, The Fourth Annual Sir Jeremy Lever Lecture, All Souls College Oxford, 30 Jan. 2015.

[4] Para. 169.

[5] Para. 170.

[6] Para. 174.

[7] Para. 176. See also Opinion 1/09, ECLI:EU:C:2011:123.

[8] Art. 1 says ‘Highest courts and tribunals of a High Contracting Party, as specified in accordance with Article 10, may request the Court to give advisory opinions on questions of principle relating to the interpretation or application of the rights and freedoms defined in the Convention or the protocols thereto.’

[9] Kadi and Al Barakaat International Foundation v Council and Commission, C‑402/05 P and C‑415/05 P, EU:C:2008:461.

[10] Para. 182-5.

[11] For hints of that view, see Discussion document of the Court of Justice of the European Union on certain aspects of the accession of the European Union to the European Convention for the protection of Human Rights and Fundamental freedoms, May 2010, paras. 4-5

[12] See further A. Kornezow, ‘The Area of Freedom, Security and Justice in the Light of the EU Accession to the ECHR—Is the Break-up Inevitable?’ (2012-13) 12 CYELS 227.

[13] Case C-562/13 ECLI:EU:C:2014:2453.