The CJEU and the EU’s accession to the ECHR: a clear and present danger to human rights protection

 

Steve Peers

At long last, the CJEU has today delivered its ruling regarding the EU’s accession to the European Convention on Human Rights (ECHR). It’s a complex judgment that raises many legal questions. For now, this post seeks to provide: a summary of the ruling; an assessment of the consequences of the ruling; and an initial critique of the Court’s reasoning. On the latter point, the Court’s ruling is fundamentally flawed. In short, the Court is seeking to protect the basic elements of EU law by disregarding the fundamental values upon which the Union was founded.

Background

Back in 1996, in Opinion 2/94, the CJEU ruled that as European Community law (as it then was) stood at that time, the EC could not accede to the ECHR. Only a Treaty amendment could overturn this judgment, and in 2009, the Treaty of Lisbon did just that, inserting a new provision in the Treaties that required the EU to accede to the ECHR (Article 6(2) TEU). That treaty also added a Protocol 8 to the Treaties, regulating aspects of the accession, as well as a Declaration requiring that accession to the ECHR must comply with the ‘specific characteristics’ of EU law.

 

However, these new Treaty provisions could not by themselves make the EU a contracting party to the ECHR. To obtain that outcome, it was necessary for the EU to negotiate a specific accession treaty with the Council of Europe. After a long negotiation process, this accession treaty was agreed in principle in 2013. Today’s ruling by the CJEU concerns the compatibility of that treaty with EU law.

 

Summary

At the outset, the CJEU ruled that the case was admissible (paras 144-52), even though the internal rules which will regulate the EU’s involvement in the ECHR have not yet been drafted. In fact, the CJEU said that these internal rules couldn’t be the subject-matter of the opinion, even if they had been drafted. The UK government had reportedly been very angry about the prospect of the CJEU considering these internal rules, so it should be satisfied on this issue.

 

Next, the Court made some preliminary points (paras 153-77), asserting for the first time expressly that the EU is not a state (para 156); and (in effect) that the EU system is sui generis (para 158), ie in a class by itself, without using that exact Latin phrase. Those critics of the EU who consider it to be a State, and those academics who dislike the sui generis concept, now have some words to eat.  The Court also asserted that it was important to ensure the primacy and direct effect of EU law, referring also to the EU’s goals of ‘ever closer union’.

 

The Court then ruled that the draft agreement was incompatible with EU law, for five main reasons. Firstly, it did not take account of the specific characteristics of EU law (paras 179-200), in three respects.  It did not curtail the possibility of Member States having higher human rights standards than EU law, even though the CJEU had ruled (in the Melloni judgment of 2013) that Member States could not have higher standards than the EU Charter of Rights, where the EU has fully harmonised the law. The same rule applies to the ECHR, in the Court’s view, and the draft agreement did not take account of this. Similarly, the draft agreement did not provide for the application of the rule of ‘mutual trust’ in Justice and Home Affairs (JHA) matters, which means that Member States must presume that all other Member States are ‘complying with EU law and particularly with the fundamental rights recognised by EU law’, other than in ‘exceptional circumstances’. Also, the agreement failed to rule out the possibility that when applying Protocol 16 to the Convention, which provides for national courts to send questions to the European Court of Human Rights (ECtHR) on the interpretation of the ECHR, those national courts would ask the ECtHR to rule on EU law issues, before they asked the CJEU. This would circumvent the EU’s preliminary ruling procedure.

 

Secondly, the draft accession agreement violated Article 344 TFEU, which gives the CJEU monopoly on inter-state dispute settlement regarding EU law between Member States (paras 201-14), since it failed to rule out the possible use of the ECtHR to settle such disputes instead.

 

Thirdly, the co-respondent system set up in the draft agreement, which creates a new type of procedure where both the EU and a Member State could be parties to an ECtHR case, was incompatible with EU law for three reasons (paras 215-35). The problem with this process was that: it would give the ECtHR the power to interpret EU law when assessing the admissibility of requests to apply this process; a ruling by the ECtHR on the joint responsibility of the EU and its Member States could impinge on Member State reservations to the Convention; and the ECtHR should not have the power to allocate responsibility for breach of the ECHR between the EU and Member States, since only the CJEU can rule on EU law.

 

Fourth, the rules in the draft treaty on the prior involvement of CJEU before the ECtHR ruled on EU law issues were also incompatible with EU law, for two reasons (paras 236-48). They did not reserve to the EU the power to rule on whether the CJEU has already dealt with an issue, and they did not permit the CJEU to rule on the interpretation, not just the validity, of EU law.

 

Finally, the rules on the Common Foreign and Security Policy (CFSP) were incompatible with EU law (paras 249-57), because a non-EU court cannot be given the power of judicial review over EU acts, even though the CJEU has no such jurisdiction itself as regards most CFSP issues.

 

Consequences

 

First and foremost, EU accession to the ECHR obviously cannot go ahead on the basis of the current draft agreement. The Court has in effect provided a checklist of amendments to the accession agreement that would have to be made to ensure that accession is compatible with EU law. The amendments would have to deal with the following ten issues: (a) ensuring Article 53 ECHR does not give authorisation for Member States to have higher human rights standards than the EU Charter, where the EU has fully harmonised the law; (b) specifying that accession cannot impact upon the rule of mutual trust in JHA matters; (c) ensuring that any use of Protocol 16 ECHR by national courts cannot undermine the EU preliminary ruling system, presumably by ruling out the use of Protocol 16 where EU law issues are involved; (d) specifying expressly that Member States cannot bring disputes connected with EU law before the ECtHR; (e) ensuring that in the co-respondent system, the ECtHR’s assessment of admissibility does not extend to the power to interpret EU law; (f) guaranteeing that the joint responsibility of the EU and its Member States for ECHR breaches cannot impinge upon Member State reservations to the Convention; (g) preventing the ECtHR from allocating responsibility for ECHR breaches as between the EU and its Member States; (h) ensuring that only the EU institutions can rule on whether the CJEU has already dealt with an issue; (i) providing that the CJEU should be allowed to rule on the interpretation, not just the validity, of EU law, during the ‘prior involvement’ procedure; and (j) curtailing the role of the ECtHR to rule on EU foreign policy matters.

 

Any such changes to the accession agreement will have to be negotiated by all 47 of the signatories to the ECHR. The accession agreement would, if agreed, then have to be ratified by all of these States to come into force. It would also have to be agreed unanimously by the EU Council, and ratified by the European Parliament.

 

It’s hard to say in the abstract how difficult such a renegotiation will be. Suffice it to say that the compromise found in the current accession treaty was very difficult to reach, and it’s hard to imagine that the EU’s demand for a ten further amendments to that text – which would necessarily be non-negotiable – would be received happily. 

 

Some of the Court’s objections probably correspond with the intentions of the parties to the accession agreement, and it should be easy to accept amendments reflecting that. However, some of them insist on either the primacy of the EU Courts over the ECtHR, or would give priority to EU law over the substance of the rights protected by the Convention. Those amendments would be difficult to agree in principle, and it might even be doubted whether they would be compatible with the intrinsic nature of the ECHR.

 

If those amendments were indeed be incompatible with the ECHR, there would be no point wasting further time and effort on negotiating them. So it would be best for the Committee of Ministers to invoke Article 47 ECHR, which allows it to ask the ECtHR to give an advisory opinion on the interpretation of the Convention or its protocols. Arguably, this doesn’t extend to the draft accession agreement, but then that agreement in its current form would amend the ECHR; any revised agreement would likely amend the ECHR even more. The ECtHR ought to have a chance to rule on whether the CJEU’s preferred amendments to the ECHR violate the fundamentals of the Convention system.

 

Could the Court’s objections (or some of them) be met by the EU making reservations to the ECHR? According to Article 57 ECHR, reservations to the Convention are permitted, provided that they are not of a ‘general character’. The ECtHR has ruled in the past that some reservations were invalid for breaching that rule. Much legal pain would be avoided if the ECtHR ruled in advance (using the advisory procedure) on whether possible reservations by the EU would be valid. Arguably reservations relating to CFSP or JHA matters would indeed be invalid, due to their ‘general character’.

 

What if the process of EU accession stalls as a result of this judgment? It’s hardly an unlikely scenario. As a matter of EU law, accession of the EU to the ECHR is an obligation: the EU ‘shall accede’ to the Convention. The EU institutions can be sued for any ‘failure to act’ to comply with their legal obligations. So arguably the Commission is under an obligation to request an amendment to its negotiation mandate, the Council is under an obligation to grant it, and the Member States are obliged to support the EU position (a breach of the latter obligation could be punished by means of infringement proceedings).

 

But a legal obligation deriving from the EU Treaties cannot bind third parties. If the ECtHR, or one or more non-EU Member States, refuse to continue with negotiations for accession on the basis of the CJEU’s demands, the EU institutions and the Member States could not be held liable for that.

 

The legal obligation to continue the accession process is, of course, distinct from the question of principle here: whether the accession process ought to continue on the basis of the CJEU opinion. I now turn to that question, as part of my assessment of the Court’s reasoning.

 

 

Comments

 

There are two categories of objections to the ECHR accession in the Court’s judgment: procedural and substantive. The former are, for the most part, much less problematic than the latter. Let’s consider them in turn.

 

The procedural objections are essentially those in points (c) to (i) in the list above, concerning: Protocol 16 ECHR and the preliminary ruling process; inter-state dispute settlement; the co-respondent procedure; the prior involvement procedure; and CFSP matters. Seven of these eight points have one thing in common: preserving the CJEU’s power to rule on EU law. The exception is point (i), because to a large extent, the CJEU has no power to rule on CFSP matters. 

 

From the point of view of substantive human rights protection, that first group of seven objections is not problematic in principle. It is reasonable for the CJEU to ensure that issues relating to EU law remain within its jurisdiction (where that jurisdiction currently exists), leaving the ECtHR jurisdiction to rule on the interpretation of the ECHR. Of course, it will be hard, if not impossible, in practice, to separate the two issues, particularly when it comes to ruling on the liability for breach of the Convention and the admissibility of the special procedures set up by the draft agreement. 

 

But that is a minor problem compared to the Court’s objections relating to CFSP, and to the substance of the ECHR. On the CFSP point, the Court’s objection is quite simply mind-boggling. Human rights breaches unfortunately occur in foreign policy operations, ranging from violations of the right to life, to arbitrary detention to human trafficking by foreign forces. The CJEU has no jurisdiction to protect, as regards most CFSP matters; but it rules that the ECtHR cannot have judicial review powers either. (Note to public international lawyers: this must mean that it would also breach EU law for Member States to bring a CFSP dispute to the ICJ).

 

This goes beyond setting a dividing line over which Court has jurisdiction to interpret EU law: to repeat, the CJEU’s position is that if it can’t have jurisdiction over CFSP, then no other international court can either. In short. since it isn’t allowed to play, it’s taking the football away from everyone else. It’s the judicial politics of the playground. But it could have serious consequences, leaving the victims of serious human rights violations without an effective remedy at international level. Or is the entire world meant to trust that the military forces from the continent that brought us the Holocaust and two World Wars would never, when acting under the EU’s aegis, commit human rights offences?

 

This brings us to the two substantive points: the need to ensure that Member States do not set higher standards within the field of EU law, and the need to protect the principle of mutual trust in JHA matters. On the first point, the Court is today extending to the ECHR its long-standing principle that the primacy of EU law prevents Member States having higher human rights standards, where EU law has fully harmonised the matters concerned. From an EU law perspective, it’s perhaps not surprising that this rule – which the Court had previously applied to the general principles of EU law (the main previous method of protecting human rights in the EU legal system) and the Charter – also applies to the ECHR. But from the perspective of international human rights law, it’s shocking: it cuts into a central principle found in all human rights treaties.

 

The Court’s ruling on this point would be less problematic if it were not for its ruling on mutual trust in JHA matters. After all, if it were possible to resist removal to another Member State on human rights grounds despite the Dublin rules on asylum responsibility, or to resist the execution of a European Arrest Warrant on such grounds, then many violations of human rights in individual cases would be avoided. But the Court reiterates, in very strong terms, its established presumption that the EU is built on the principle of mutual trust in this area, which can only exceptionally be set aside. One can infer that the CJEU is seething about the ECtHR’s recent judgment in Tarakhel, which conspicuously failed to defer to the ECJEU’s poorly reasoned defence of the Dublin system in last year’s Abdullahi judgment (see discussion here).

 

On the JHA point, the Court is insisting that its own conception of the EU JHA system must prevail over human rights protection as defined by the ECtHR. The underlying theme of both of these substantive points is that the ECHR should adapt to EU law as defined by the CJEU, not the other way around.

 

Is that fundamentally justifiable? It’s striking that the ‘values’ of the EU – which are a condition for EU membership, and which could lead to suspension of a Member State in serious cases – include human rights and related principles. There’s no mention of the primacy of EU law, of mutual trust in JHA matters, or of divesting any international court from having jurisdiction over CFSP matters. Indeed, on the latter point, today’s judgment clearly shows contempt for the ‘rule of law’, another founding value mentioned in Article 2 TEU. And for JHA in particular, the Treaty drafters provided in Article 67(1) TFEU that the EU must ‘constitute an area of freedom, security and justice with respect for fundamental rights’. The Treaty doesn’t give priority to mutual trust over human rights – quite the opposite.

 

This leads me to a final point. As noted above, the EU retains a legal obligation to accede to the ECHR, and must therefore take some steps to that end. But, as a matter of principle, is it still worth advocating EU accession to the Convention?

 

Quite frankly, EU accession to the Convention, in the terms defined today by the CJEU, could only appeal to those who don’t like human rights very much. In fact, in many respects the Court’s judgment is essentially a more articulate and EU-specific version of the document recently produced by the UK’s Justice Minister, which sought changes to the law to ensure that the UK would be free to do as it wished as regards human rights issues, while (possibly) nominally remaining a signatory of the ECHR. Of course, those who dislike the ECHR tend to dislike the EU as well, so this is a narrow basis politically to go forward. In particular, those who would like to scrap the European Arrest Warrant (EAW) because of the miscarriages of justice which it sometimes produces (rather than try and prevent those miscarriages) are hardly likely to favour a process which would be specifically aimed to entrench those failings.

 

As for those of us who support human rights protection, today’s judgment is an unmitigated disaster. For the most part, human rights advocates have supported EU accession to the ECHR for many years, in order to ensure effective external control of the failings of the EU and (within the scope of EU law) its Member States as regards human rights. But today’s CJEU judgment has surgically removed that key reason for supporting accession.

 

Far from enhancing the protection of human rights within the EU legal order, the EU’s accession to the ECHR, on the terms which the CJEU insists upon, would significantly diminish it, for the EU would be compelled to ensure that it insulates itself against many human rights claims that might be brought against it.

 

So for the sake of those who are trafficked by EU-coordinated troops, who are suffering miscarriages of justice in EAW proceedings, who are being pushed back from the EU’s shores, drinking from toilets in immigration prisons, starving on the streets because Member States won’t or can’t give them housing or benefits, or drowning in a desperate attempt to reach European refuge, we now have a moral duty to reject the EU’s accession to the ECHR.

 

 

Barnard & Peers: chapter 9

Tarakhel v Switzerland: Another nail in the coffin of the Dublin system?

Professor Steve Peers, University of Essex

Introduction

Despite the EU’s purported adherence to high standards of human rights protection, the EU’s Dublin system, which allocates responsibility for each asylum-seeker’s application to a single Member State, has repeatedly run foul of human rights standards. Yesterday’s judgment of the European Court of Human Rights (‘ECtHR’, or ‘Strasbourg Court’) in Tarakhel v Switzerland, and the recent judgment of the same court in Sharifi v Italy and Greece, have further confirmed the problems in making this system compatible with ECHR obligations.

In fact, the Tarakhel judgment goes further than the prior judgments, which had merely exposed the lack of sufficient human rights protection in the EU legislation, as applied by Member States. Rather, it is now clear that the approach of the Court of Justice of the European Union (CJEU) in interpreting the Dublin rules is also incompatible with the ECHR.

Background

The Dublin rules initially appeared as part of the Schengen Convention, which bound only certain Member States. They were then set out in the form of the Dublin Convention, signed in 1990. This Convention was replaced by an EC Regulation (known as the ‘Dublin II Regulation’) from 2003. That Regulation was in turn replaced by the Dublin III Regulation, adopted in 2013, which applies to all applications made after 1 January 2014. Furthermore, the Dublin rules have been extended to the non-EU countries associated with the Schengen system, by means of treaties with Norway and Iceland on the one hand, and Switzerland and Liechtenstein on the other.

The previous leading cases on the compatibility of the Dublin regime with human rights were (for the Strasbourg court) the 2011 judgment in MSS v Belgium and Greece, and (for the CJEU) the judgment in NS, delivered later that same year. In MSS, the ECtHR ruled that Greece had violated Article 3 ECHR (the ban on torture or other inhuman or degrading treatment) in three ways: its treatment of the Afghan asylum-seeker in question in detention; its failure to secure adequate living conditions for him after release from detention; and its highly deficient asylum procedure. The evidence of these violations was found in numerous reports by NGOs and international bodies. The Court also ruled that Belgium had violated Article 3 ECHR because it had returned the same asylum-seeker to Greece (in accordance with the Dublin rules), even though it must have known of the situation there. For good measure, the Court also ruled that Belgium had violated Article 13 ECHR (the right to an effective remedy), since Belgium did not provide for sufficient reviews of the merits in cases such as this one.

Subsequently, the CJEU ruled in NS that asylum-seekers could not be returned to Greece, pursuant to the Dublin rules, because of systematic deficiencies in the asylum system in that country. Removals in such cases would constitute a breach of Article 4 of the EU Charter of Fundamental Rights (the equivalent of Article 3 ECHR). However, the Court distinguished such major breaches of fundamental rights from minor violations of EU or international rules relating to refugees, which would not require Member States to refrain from applying the Dublin rules.

Before the ECtHR could rule in Tarakhel, the CJEU clarified its position in its judgment in Abdullahi, delivered late in 2013. The Court started out by emphasising the presumption that all EU Member States protected human rights, noting that there was now second-phase legislation establishing the Common European Asylum System. It then characterised the Dublin rules as essentially regulating the relationship between Member States, referring in particular to the optional ‘sovereignty’ and ‘humanitarian’ clauses in the Dublin II Regulation, as well as the possibility of conciliation or separate arrangements between Member States. It followed that when two Member States agreed which of them was the Member State of first authorised entry (triggering responsibility under the Dublin rules), an asylum-seeker could ‘only’ challenge that decision by ‘pleading systemic deficiencies in the asylum procedure and in the conditions for the reception of applicants for asylum’ in the Member State which was deemed responsible for the asylum application.

Finally, the recent Sharifi judgment of the Strasbourg Court established that Italy’s interception of asylum-seekers from Greece in the Adriatic, and their forced return to Greece, violated Article 3 ECHR as well as the ban on collective expulsions in the Fourth Protocol to the ECHR. In doing so, it confirmed a key corollary of the MSS ruling: Member States breach the ECHR if they stop asylum-seekers fleeing an unsafe country directly from crossing their borders. Although the rules on freedom to travel for third-country nationals in the Schengen Convention do not give asylum-seekers the right to move between Schengen States (unless, improbably, they have a visa or residence permit, or the visa requirement is waived for their country of origin), the ECHR nevertheless gives asylum-seekers the freedom to travel between Schengen countries (or any States) in such circumstances. Also, the right to move to another country extends beyond the three-month time limit on intra-Schengen travel, since asylum-seekers can in principle stay until their claim is finally rejected.

The Tarakhel judgment

Yesterday’s judgment concerned a family of eight Afghans, who entered the EU by crossing the Italian border first. This made Italy responsible for their applications under the Dublin rules. However, the family soon left the asylum-seekers’ reception centre which they were assigned to in Italy, on the grounds that conditions there were inadequate for families. They moved to Austria, which triggered the Dublin rules, asking Italy to take charge of them. Italy agreed, but before their transfer to Italy could be carried out, they moved on to Switzerland. That country in turn asked Italy to take charge of the family; Italy tacitly accepted.

However, they challenged their removal to Italy on the grounds that their treatment in that country, if they were removed there, would violate Article 3 ECHR. They lost their case in the Swiss courts, so asked the ECtHR to rule that their removal to Italy would constitute a breach of Article 3, as well as Article 8 ECHR (the right to family life). They also alleged a breach of Article 13.

The ECtHR rejected the Article 13 claim on the merits, since the Swiss courts had examined the merits of their legal arguments and they were allowed to stay on Swiss territory in the meantime. It held that it was not necessary to examine the Article 8 argument. Most importantly, by a majority of 14-3, it found that there was a breach of Article 3 ECHR.

Yet there are important differences between the MSS judgment and the Tarakhel judgment. Yesterday’s judgment does not state that Italy’s asylum system has effectively collapsed, as was the case in Greece. In particular, there were no allegations in Tarakhel relating to flaws in Italy’s asylum procedures, or as regards detention. The argument instead was solely about living conditions in Italian detention centres.

The ECtHR began by reiterating its case law from MSS about reception conditions for asylum-seekers. While Article 3 ECHR did not guarantee a home or financial assistance, in cases involving EU Member States the Court took account of their specific obligations in that respect under the EU’s reception conditions Directive. Also asylum-seekers were an ‘underprivileged and vulnerable group’, and it was possible that extreme poverty could raise issues under Article 3. The Court also referred to other prior case law on the need to ensure that child asylum-seekers, who were in a position of ‘extreme vulnerability’, enjoyed ‘protection and humanitarian assistance’.

Next, the Court reiterated the usual rule that Article 3 prevents removal if ‘substantial grounds have been shown for believing’ that there is a ‘real risk’ of treatment contrary to Article 3 in the state of destination. The same rule could be used to rebut the assumption that countries applying the Dublin system were all safe. In this context, the ECtHR referred to the CJEU’s ‘systemic deficiencies’ test set out in the judgment in NS, but made no reference to the ruling in Abdullahi that this was the ‘only’ ground for challenging the application of the Dublin rules. However, the ECtHR also ‘notes’ the recent EM judgment of the UK Supreme Court, which expressly stated that ‘systemic deficiencies’ were not the only ground for such challenges. Overall, the Court stated that these tests had to be applied by examining ‘the applicant’s individual situation in light of the overall situation prevailing’ in the state of destination.

Applying these rules to this case, the applicants had made three complaints about the situation of the Italian reception system. The first complaint, about the slowness of identification procedures, was dismissed out of hand, since the applicants had in fact been identified quickly. As for the second complaint, the Court accepted the evidence that there were not enough places for all asylum applicants. Thirdly, as for the reception conditions within the available facilities, a number of problems had been identified by the UNHCR and the Council of Europe’s Human Rights Commissioner.

Taken as a whole, then, the Court ruled that the ‘current situation in Italy can in no way be compared to the situation in Greece at the time of the MSS judgment’, where only a small fraction of asylum-seekers could be accommodated and ‘the conditions of the most extreme poverty…existed on a large scale’. So there could not be ‘a bar to all removals of asylum seekers to that country’. Having said that, the Court accepted that there was some risk that asylum-seekers might not get accommodation, or that the accommodation would be inadequate.

As for the individual position of the applicants, that was not comparable to the facts of the MSS case either.  The family in this case were taken care of immediately by the Italian government, rather than detained and then left to fend for themselves. But again, having said that, the Court was concerned that, in light of the vulnerability of asylum-seekers, and children in particular, there was no guarantee of (adequate) accommodation for families seeking asylum in Italy. So Switzerland could not send the family to Italy unless they obtained sufficient assurances on this point. This alone constituted a breach of Article 3 ECHR.

Interestingly, the majority judgment makes no reference to the alternative possibility of asylum-seekers obtaining private family housing at the expense of the State, which the CJEU developed in its recent Saciri judgment on the reception conditions Directive.

Comments

With great respect, there are many flaws with the CJEU’s judgment in Abdullahi. That judgment confuses Regulations (directly applicable in national legal systems) with Conventions (essentially governing relations between States). It places undue reliance on provisions of the Dublin II Regulation which were never applied in practice (conciliation) or were irrelevant to the case at hand (separate arrangements between Member States). It ignores the CJEU’s own case law on the ability to challenge Member States’ application of the Dublin II rules as regards unaccompanied minors (MA), humanitarian situations (K) or withdrawn applications (Kastrati). Its scope is unclear: does it only apply when Member States agree that the criterion regarding irregular entry is applicable, or in other cases as well? In any event, the judgment needs to be rethought in light of the Dublin III Regulation, which considerably expanded the procedural rights of asylum-seekers in the Dublin context. Why do that, if they can only challenge their transfer if there is a complete breakdown in the asylum system of the State responsible for their application?

But the most fundamental flaw in the Abdullahi judgment is exactly that: the CJEU’s statement that at least in some cases, the determination of the responsible Member State can ‘only’ be challenged if there are ‘systemic deficiencies’ in the asylum system of that State. Is that statement still correct after Tarakhel?

Certainly the statement is wrong if the CJEU meant (as it appeared to say) that both the asylum procedure and the reception conditions systems have to have failed in the responsible Member State, before a transfer to that State can be challenged. In Tarakhel, there is no issue raised regarding the asylum procedure in Italy. More generally, the Italian reception system is not in complete breakdown: the Tarakhel family faces neither extreme poverty nor vile detention conditions, but merely some risk that accommodation will either not be available or that it will be somewhat unpleasant. Accordingly, the Swiss obligations are nuanced: there is no ban on transfers, merely a procedural obligation to make arrangements with the Italian authorities.

It isn’t clear whether Tarakhel abandons the CJEU’s assumption that only ‘systemic deficiencies’ in the asylum system of a responsible State can justify a challenge to a Dublin transfer, or whether the judgment merely modifies the notion of ‘systemic deficiencies’ considerably, lowering the threshold for its application. On the first hypothesis, ‘systemic deficiencies’ are just one example of a situation that could lead to rebuttal of the assumption that another Dublin State is safe. Uncertainty about adequate reception conditions for families is another. But surely this cannot be an exhaustive list.

On the second hypothesis, a ‘systemic deficiency’ would not exist only where an asylum system had entirely collapsed, but where some particular aspect of the system was malfunctioning regularly to some extent. By analogy, a car needs to be fixed not only when the brakes entirely fail to work, but also when the windshield wipers occasionally malfunction. The risk is far greater in the first case, but the second case shouldn’t be ignored either. Again, the problems in Tarakhel cannot be the only example of a flaw in the asylum system of a responsible Member State that needs to be fixed before asylum-seekers can be transferred there.

There isn’t much difference between these two possible interpretations of Tarakhel. Although the first interpretation is in principle more open-ended than the second one, it shouldn’t take too much imagination to argue that any particular problem an asylum-seeker might face in the responsible Member State is ‘systematic’ in this very broad sense. The second interpretation does give the CJEU more leeway to back down from its head-banging judgment in Abdullahi, and explain that this was also what it had meant by ‘systemic deficiencies’ all along.

Of course, given the strong insistence on the efficiency of the Dublin system in the Abdullahi judgment, this is obviously not what the Court had meant at the time. Yet the clear message from the Tarakhel case is that there is not a simple binary distinction between cases when all Dublin transfers should stop, on the one hand, and cases when all Dublin transfers should go ahead at full speed, on the other. Instead, like a traffic light, yesterday’s judgment creates an intermediate category of cases in which national administrations must proceed with caution. This will undoubtedly make the Dublin system more costly and complex to administer, but that is often the only way to ensure that human rights are protected effectively.  

Barnard & Peers:  chapter 9, chapter 26