First decision by the European Court of Human Rights on suspicion of reverse discrimination in tax matters

 

 

Dr Samira-Asmaa Allioui, Research fellow, Centre d'études internationales et européennes, Université de Strasbourg

Photo credit : Chabe10, via Wikimedia Commons

The applicants in the European Court of Human Rights judgment in Deforrey and others v France are three French nationals who allege reverse discrimination (ie, treating issues subject to EU law more favourably than issues subject to national law) in tax matters. Relying on Article 14 (right to non-discrimination) taken in conjunction with Article 1 of Protocol No. 1 to the Convention (right to property), the applicants complain about the methods used to calculate their income tax. They denounce reverse discrimination, arguing that they would have benefited from more favorable tax treatment if the capital gains on which they were taxed had been part of transactions falling within the scope of EU Directive 2009/133/EC of 19 October 2009, which concerns the taxation of mergers of companies between different Member States.

With regard to this directive, the Court of Justice of the European Union (CJEU), consulted by the French Conseil d’Etat decided that the relevant articles of this directive must be interpreted as meaning that, in the context of a securities exchange transaction, they require that the same tax treatment be applied to the capital gain relating to the securities exchanged and placed in tax deferral, as well as to the capital gain arising from the sale of the securities received in exchange, with regard to the tax rate and the application of a tax allowance to take into account the length of time the securities were held, as that which would have been applied to the capital gain that would have been realized upon the sale of the securities existing before the exchange transaction, had it not taken place.

But what if the same transaction as regards companies in the same Member State is treated worse for tax purposes? The three applicants denounce the discriminatory nature of the methods used to calculate their income tax base, claiming they are treated less favorably than taxpayers who have carried out a securities exchange transaction governed by European Union law. They maintain that their situation is comparable to that of taxpayers who have carried out a cross-border securities exchange transaction within the European Union internal market and complain of direct discrimination based on the location of the securities exchanged during the restructuring transactions and the national origin of the securities, arguing that this difference in treatment did not pursue a legitimate aim and was devoid of objective and reasonable justification.

In the present case, the Human Rights Court considers that it has been established that the alleged difference in treatment is correlated with an identifiable characteristic, drawn from the nature of the transactions carried out by the taxpayer, and more specifically, whether he carried out a cross-border exchange of securities within the European Union internal market.

The Court recalls that a State is ordinarily granted broad latitude when it comes to defining general measures in economic or social matters. Thanks to their direct knowledge of their society and its needs, national authorities are, in principle, better placed than international courts to determine what is in the public interest in economic or social matters, and the Court generally respects the State's understanding of the imperatives of public interest, unless its judgment proves to be "manifestly lacking a reasonable basis." Similarly, the Court tends to recognize a wide margin of appreciation when the situation is partly the result of individual choice. Conversely, only very compelling considerations can justify a difference in treatment based exclusively on nationality.

In this case, the Court notes, first, that the difference in treatment at issue is not based on the taxpayers' nationality, but on certain characteristics of the transactions they carried out. Second, it notes that the taxed gains result from transactions freely entered into, the taxpayers having chosen to dispose of their securities with full knowledge of the facts. Third, it observes that the difference in treatment at issue falls within the realm of taxation, this area being part of the core prerogatives of public authorities.

Regarding the existence of a “rapport raisonnable de proportionnalité” (reasonable relationship of proportionality) between the means employed and the aim sought to be achieved, the Court has already acknowledged that accession to the European Union and the specific nature of the European Union legal order could justify a difference in treatment between nationals of Member States and other categories of foreign nationals. However, it has never been called upon to rule on a situation of reverse discrimination, in which the rules of a domestic legal order are less favourable than those applicable to situations covered by European Union law. In this regard, the Court reiterates that it is not its task to replace the competent national authorities in determining what is in the public interest in economic or social matters or in assessing whether – and to what extent – ​​differences between situations that are similar in other respects justify differences in treatment. It is solely for it to determine whether any difference in treatment implemented exceeds the margin of appreciation granted to the Contracting States.

In this case, the Court notes, like the French Constitutional Council and the Council of State (Conseil d’Etat), that the domestic legal system also includes rules with similar effect. The tax deferral regimes applicable to capital gains from the exchange of securities are intended to guarantee a degree of tax neutrality for these transactions by preventing the taxpayer from being forced to sell their securities to pay the tax. Only the degree of tax neutrality of the exchange of securities transaction varies, being reinforced for situations falling within the scope of Directive 2009/133.

The Court further notes that the deduction for holding period provided for in Article 150-0 D of the French General Tax Code is intended to apply to all capital gains on securities when the conditions set out in that article are met. This text does not, in principle, exclude capital gains realized in purely domestic situations from its scope. While this allowance does not apply to capital gains carried forward prior to January 1, 2013, this is primarily an effect of the transitional provisions attached to the tax reform implemented by the Finance Acts for 2013 and 2014.

However, the Court has already observed that the implementation of economic or social reforms intended for a broad public requires determining their temporal scope, which implies excluding certain beneficiaries according to criteria that may appear arbitrary to the persons concerned; the resulting differences in treatment are the inevitable consequence of the introduction of new rules. In the Court's view, these transitional provisions do not appear arbitrary.

The Court considers that the difference in treatment at issue was based on an objective justification and was not manifestly lacking a reasonable basis. In view of all these considerations, the Court considers that the respondent State did not exceed the wide margin of appreciation available to it in this matter. Accordingly, there has been no violation of Article 14 of the Convention.

One of the four components of discrimination is that the rule at issue must establish a distinction based on a prohibited criterion. In CJEU case law, criteria are prohibited when they establish a distinction based on a cross-border element, such as the fact that the services are obtained from a provider established in another Member State. This is a preliminary question to be examined before the Court assesses comparability and the existence of a disadvantage. If the rule at issue does not establish a distinction based on a prohibited criterion, there can be no discrimination.

Despite the lack of clear guidelines on how to resolve specific cases, one thing is clear: unlike the CJEU, which consistently demonstrates concern for the functioning of the common market and the promotion of free movement in its tax discrimination cases, this is not the case for the Human Rights Court. The CJEU frequently concludes that tax policies are discriminatory because they "discourage" or "deter" cross-border economic activity. This interpretation makes sense considering that one of the explicit objectives of the EU's creation was to integrate the economies of previously independent states by removing barriers to cross-border economic activity and preventing states from erecting new ones that would prevent taxpayers from operating across borders. The problem with tax discrimination decisions, however, is that they provide little guidance on when tax policies "discourage" or "deter" the type of cross-border economic activity in question.

Tax discrimination cases raise complex questions with no readily available answers. For example, what impact do differential tax rates have on determining whether discrimination exists? These questions attract much commentary, but neither the judicial decisions themselves nor the academic commentaries on them provide answers to these fundamental questions.

It’s the end – but the moment has been prepared for: the CJEU confirms that UK citizens have lost EU citizenship

 

Professor Steve Peers, University of Essex

In today’s judgment, the CJEU has finally confirmed that UK citizens lost EU citizenship as a consequence of Brexit, following the earlier Advocate-General’s opinion, which I discussed here. (There are other pending cases on this issue – see my compilation of Brexit litigation – but there’s no reason to think that the CJEU would decide them differently).

The judgment is striking for the extent to which it dismisses arguments that British citizens have retained EU citizenship. It’s definitely the end of an era. And yet, it also contains foreshadowing of issues that will be relevant to the post-Brexit future relationship between the UK and the EU.

 

Summary of the judgment

The case concerned a UK citizen resident in France, who lost the right to vote in local elections following Brexit day (1 February 2020) as a consequence of no longer being a national of a Member State, and therefore no longer having the right to vote in local elections. She challenged her removal from the electoral roll on the grounds that she could no longer vote in the UK (as she had been abroad more than 15 years), and a French court asked the CJEU questions about the interpretation of EU law and the validity of the EU Council decision to conclude the withdrawal agreement.  In the UK citizen’s view, the loss of EU citizenship status ‘cannot be an automatic consequence of the United Kingdom’s withdrawal from the European Union’, because ‘that loss infringes the principles of legal certainty and proportionality and also constitutes discrimination between Union citizens and an infringement of her freedom of movement’.

However, the Court began by observing that ‘citizenship of the Union requires possession of the nationality of a Member State’, by reference to the Treaty provisions which say just that. In the Court’s view, ‘the authors of the Treaties thus established an inseparable and exclusive link between possession of the nationality of a Member State and not only the acquisition, but also the retention, of the status of citizen of the Union’ (emphasis added). The Court placed its prior case law holding that EU citizenship ‘is destined to be the fundamental status of nationals of the Member States’ in that context. It also noted that in the various Treaty provisions on EU citizens’ rights, ‘none of those provisions enshrines that right in favour of nationals of a third State’.

It then agreed with the Commission’s argument that there was no exception from those who moved within the EU: the exercise of free movement rights is ‘consequently, not such as to enable him or her to retain the status of citizen of the Union and all the rights attached thereto by the FEU Treaty if, following the withdrawal of his or her State of origin from the European Union, he or she no longer holds the nationality of a Member State’.

Secondly, the Court reiterated prior case law that the UK chose to leave unilaterally, ‘in accordance with its own constitutional requirements’, and that the leaving Member State is not ‘required to take its decision in concert with the other Member States or with the EU institutions’: ‘[t]he decision to withdraw is for that Member State alone to take, in accordance with its constitutional requirements, and therefore depends solely on its sovereign choice’. Having left the EU in accordance with Article 50, the UK ‘is no longer, as from’ the date of entry into force of the withdrawal agreement, ‘a Member State’. It followed that ‘as from 1 February 2020, United Kingdom nationals no longer hold the nationality of a Member State, but that of a third State’. And ‘possession of the nationality of a Member State is an essential condition for a person to be able to acquire and retain the status of citizen of the Union and to benefit fully from the rights attaching to that status. The loss of nationality of a Member State therefore entails, for the person concerned, the automatic loss of his or her status as a citizen of the Union’ (emphasis added). Being ‘nationals of a third State as from 1 February 2020’, UK citizens ‘lost the status of a citizen of the Union as from that date’, so ‘no longer enjoy’ voting rights in local elections. ‘It is irrelevant, in that regard, that United Kingdom nationals have previously exercised their right to reside in a Member State’.

Was the loss of EU citizenship disproportionate? In the Court’s view, this was ‘an automatic consequence of the sole sovereign decision taken by the United Kingdom to withdraw from the European Union’; and the 15-year rule ‘is a choice of electoral law made by that former Member State, now a third State’. There was no need to carry out an ‘individual examination’ of the loss of citizenship: here the Court distinguished Brexit from its prior case law in which it ruled that loss of EU citizenship resulting from a Member State depriving a person of its nationality in individual cases needed to be justified – as distinct from (again) ‘the automatic result of a sovereign decision made by a former Member State, under Article 50(1) TEU, to withdraw from the European Union and thus to become a third State with respect to the European Union’. So ‘case-law arising from those various judgments cannot therefore be applied to a situation such as that in the main proceedings’.

The Court then dismissed a more technical argument that the withdrawal agreement must be interpreted to mean that voting rights in local elections for British citizens were retained. (In fact, the provisions on the transition period expressly excluded the application of this right). The Court observed that the argument being made ‘would create an asymmetry between the rights conferred by that agreement on United Kingdom nationals and Union citizens’, which it ruled was ‘contrary to the purpose of that agreement’, as the preamble stated the objective of ensuring ‘mutual protection for citizens of the Union and for United Kingdom nationals who exercised their respective rights of free movement before the end of the transition period’.

Similarly, the Court noted that after the end of the transition period, the citizens’ rights Part of the withdrawal agreement (discussed here) ‘lays down…rules designed to protect, on a reciprocal and equal basis, the situation of citizens of the Union and that of United Kingdom nationals…who exercised their rights to freedom of movement before the end of the transition period.’ It stated that ‘[t]he purpose of those rules, which apply…as from the end of the transition period, is…to ensure reciprocal protection for Union citizens and United Kingdom nationals….those rules concern the rights connected with residence, the rights of employed and self-employed persons, professional qualifications and the coordination of social security systems.’ But the citizens’ rights part did not retain voting rights after the end of the transition period either. The prohibition on discrimination on grounds of nationality in the withdrawal agreement only applied to citizens’ rights listed in the agreement – which did not include voting rights. Yet again, the Court noted that the deprivation of this right followed from ‘the United Kingdom’s sovereign decision to withdraw from the European Union’. Various rights in the EU Treaties equally did not help, because (again) UK citizens ‘are no longer nationals of a Member State’.

The Court did, however, note that Member States retain a right ‘to grant, under conditions which they lay down in their national law, a right to vote and to stand as a candidate to nationals of a third State residing in their territory’. (A number of Member States and the UK have indeed to some extent retained voting rights in local elections).

Next, the Court turned to questions about the validity of the Council’s decision to conclude the withdrawal agreement. It confirmed prior case law that it had the jurisdiction to examine whether treaties which the EU has concluded are ‘compatible with the Treaties and with the rules of international law which, in accordance with the Treaties, are binding on the Union’, although in that context it could only rule on whether the EU decision concluding the treaty was valid, not whether the treaty itself was valid. However, the Court ruled that arguments about voting in European Parliament elections, and EU citizens voting in the UK, were irrelevant – focussing on the issue litigated in the national court (UK citizens voting in the EU).

The Court dismissed all the arguments that the decision to conclude the withdrawal agreement was invalid. Again, various Articles of the EU Treaties were not relevant, because as Article 50 says, the Treaties have ‘ceased to apply to the United Kingdom from the date of entry into force of that agreement’, therefore UK nationals ‘no longer hold, as from that date, the nationality of a Member State but that of a third State. It follows that, as from that date, they are no longer citizens of the Union.’

As for the principle of proportionality, the Court took the view that:

there is nothing in the documents before the Court to suggest that the European Union, as a contracting party to the Withdrawal Agreement, exceeded the limits of its discretion in the conduct of external relations, by not requiring that, in that agreement in general or in Article 127 thereof in particular, a right to vote and to stand as a candidate in municipal elections in the Member State of residence be provided for United Kingdom nationals who exercised their right to reside in a Member State before the end of the transition period.

It reiterated prior case law that ‘the EU institutions enjoy broad discretion in policy decisions in the conduct of external relations’ and noted that:

In the exercise of their prerogatives in that area, those institutions may enter into international agreements based, inter alia, on the principle of reciprocity and mutual advantages. Thus, they are not required to grant, unilaterally, third-country nationals rights such as the right to vote and to stand as a candidate in municipal elections in the Member State of residence, which, moreover, is reserved solely to Union citizens….

Therefore the EU Council ‘cannot be criticised for’ concluding the withdrawal agreement without ensuring a continued right to vote for UK citizens in local EU elections.  And again, the loss of a voting right in the UK under the 15-year rule was a decision by the UK, not attributable to the EU.

 

Comments

The judgment is very similar to the Advocate-General’s opinion, although it does not include the point in the opinion that Member States chose not to confer on the EU the power to determine who can become an EU citizen. I don’t think this means it’s likely that the Court would rule, if asked somehow, that the EU does have such power; its judgment implicitly suggests there’s no such power (as the judgment confirms that EU citizenship is exclusively for nationals of Member States). In any event, there’s no sign that the EU institutions and Member States have any interest in unilaterally creating some form of EU consolation citizenship for Brits. The excited suggestion of one MEP to this end is not a source of EU law.

Nor does the judgment repeat the opinion’s observation that the applicant could simply obtain French citizenship, or the explicit conclusion that the applicant had no legitimate expectation to the retention of EU citizenship (although one might conclude that the Court implicitly rejects this when it attributes the responsibility for the consequences of withdrawal to the UK).

The centre-piece of the Court’s judgment is the simple linguistic interpretation of the Treaties: EU citizenship is conferred upon nationals of Member States; the UK is no longer a Member State; therefore UK nationals are no longer citizens of the Union. The Court does not explicitly address the argument that the Treaties only provide rules on the acquisition of EU citizenship, but not its loss; but it implicitly rejects them by ruling that the loss of EU citizenship follows from the withdrawal from the EU. In my view, this line of argument is unfounded because it imports words into the Treaties that don’t exist: there’s no wording in the definition of EU citizenship in the Treaties to suggest that this is solely a rule on how that citizenship is acquired. And it’s reasonable to deduce that there’s no need for an explicit provision on the loss of EU citizenship, because Article 50 covers that ground by necessary implication. Also, a key means of how EU citizenship is acquired in practice is by accession to the EU – which the withdrawal process mirrors. So the more logical comparison is between the collective, not the individual, acquisition and loss of EU citizenship.  

Also, the Court is keen to point out that the consequences of the loss of EU citizenship follow from the UK’s sovereign decision to leave the EU. This is consistent with prior CJEU case law (see Wightman and Shindler, discussed here and here). It again points out (and some Remainers seem unwilling to accept this) that the process of leaving the EU is up to the national law of the Member State choosing to leave, with no approval from the EU required (the notion that the EU ‘shouldn’t have let the UK leave’, or should somehow consider various facts – still less wild allegations – about the process of leaving, is obviously unfounded). In this context, it is worth remembering that some on the Leave side were prone to misleading or false comments about the impact for Brits of leaving the EU: for instance, this infamous tweet by the current Prime Minister (‘Brexit will make no difference’).

The Court does knock on the head the attempt to rely on the previous case law on the loss of EU citizenship (Rottmann, Tjebbes and Wiener Landesregierung – see discussion here), because they all concern the loss of EU citizenship via means of loss of nationality of a Member State. In fact, those judgments reinforce, not contradict, the logic of today’s ruling – that there is an inextricable link between EU citizenship and nationality of a Member State.

Today’s judgment is the end of the assumption – strongly held by many – that EU citizenship is a status conferred upon individuals, not a status linked to a state’s membership of the European Union. There’s certainly an argument that EU citizenship should be based on the former approach, the wording of the Treaties (as the judgment confirms) points inescapably to the latter. Member States simply did not choose to create a status of EU citizenship independently from that of nationality of a Member State.

Finally, though, there are interesting nods to the post-Brexit future in the Court’s judgment. Although it does not mention the possible relevance of EU law on long-term resident non-EU citizens (on which, see here as regards its application to Brits, and here and here as regards proposals for reform), it goes out of its way to mention the citizens’ rights provisions of the withdrawal agreement, which now govern the position of those EU citizens who moved to the UK, and UK citizens who moved to the EU, before the end of the transition period. In this context (and other contexts), it mentions the importance of reciprocity in EU external relations – implicitly echoing the concerns of those who thought that arguments for Brits to retain EU citizenship, like some demands made by Leave supporters, sought to ‘have their cake and eat it too’. The Court also notes that the EU institutions have great political discretion in external relations. Time will tell whether, if UK/EU relations deteriorate still further, this might come to be seen as ‘the gun in the first act’.

Photo: Garry Knight, via Wikimedia commons

 

Data Retention: AG opinions on the latest CJEU cases on national laws

 

Lorna Woods, Professor of Internet Law, University of Essex

 

Introduction

 

Advocate General Campos Sanchez-Bordana has handed down his opinions in three more cases (SpaceNet and Telekom Deutschland (Joined Cases C-793/19 and C-794/19), GD v Commissioner of the Garda Síochána (Case C-140/20) and VD and SR (Joined Cases C-339/20 and C-397/20)) which concern the retention of communications data, and constitute the latest instalment of a saga that started – ineffectually as far as rights-based arguments are concerned – in the unsuccessful Irish challenge to the Treaty base chosen for the Data Retention Directive (Directive 2006/24/EC) (Ireland v European Parliament and Council (Case C-301/06)). 

 

The Data Retention Directive, which provided for communications data retention, effectively within the scope of the exceptions found in Article 15 of the e-Privacy Directive (Directive 2002/58/EC) to the principle of communications confidentiality, was struck down in Digital Rights Ireland (Joined Cases C-293/12 and C-594/12) (discussed here).  Building on the principles there, a series of cases developed the constraints on what was permitted by Article 15 e-Privacy Directive, notably: Tele2 Sverige and Watson (Joined cases C-203/15 and C-698/15) (discussed here and here), La Quadrature du Net and Others (Joined cases C-511/18, C-512/18 and C-520/18) and Privacy International (Case C-623/17) (discussed here). Points of detail have been added in Ministerio Fiscal (Case C-207/16) (discussed here) and HK v Prokuratuur (Case C-746/18).  The principles underpin the data transfer cases: Schrems I and Schrems II. As well as recommending that the Court continue with its approach, maintaining the gap between it and the European Court of Human Rights, the Opinion of the Advocate General indicated a certain irritation with the national courts unwilling to apply clear principles and necessitating more Grand Chamber rulings on this topic.  In other words, not much is new here, but rather a re-iteration of the principles and distinctions on which this juriprudence has been built.

 

The Cases

 

SpaceNet and Telekom Deutschland concern the German legislation requiring internet service providers to retain communications data. Reflecting to some degree the concerns highlighted in the CJEU’s previous jurisprudence, the German law had excluded the communications data of certain help lines from the regime, the data collected was retained for a comparatively short period, and there were safeguards against misuse of the retained data. SpaceNet and Telekom Deutschland had each challenged this law on the basis of the CJEU’s jurisprudence.

 

GD v Commissioner of the Garda Síochána arises from a murder case, the prosecution of which was based on communications data retained and accessed via legislation that provided for mass retention of data. The defendant challenged the admissibility of this data arguing it was contrary to EU law requirements.

 

Joined cases VD and SR also concern criminal prosecution for financial offences, based on communications data. This time the data retention was based on national law implementing Directive 2003/6/EC, as well as Regulation 596/2014, rather than concerning the e-Privacy Directive. These rules allowed access to existing communications data held by telecommunications operators. The reference raised the question of these rules’ compliance with the fundamental rights of Article 7 and 8 EU Charter, as interpreted by the case law on the e-Privacy Directive.

 

In each case, the Advocate General suggested that the Court hold that the national laws were incompatible with Charter rights, re-iterating that the relevant provisions

‘must be interpreted as precluding national legislation which obliges providers of publicly available electronic communications services to retain traffic and location data of end users of those services on a precautionary, general and indiscriminate basis for purposes other than that of safeguarding national security in the face of a serious threat that is shown to be genuine and present or foreseeable’ (Spacenet, para 84)

 

In all three opinions, he re-stated the conditions found in La Quadrature du Net, para 128. This principle was specifically applied to investigations into insider dealing or market abuse (ie not national security) in VD and SR (para 97). In GD it added that access to such data legitimately retained must be subject to prior independent authorisation, and that the temporal effect of the ruling could not be limited (so that the ruling had prospective effect only) (GD, para 82 – see to similar effect VD and SR, para 97). The Advocate General also noted that there was a distinction between the approach of the CJEU and the European Court of Human Rights, but that the jurisprudence of that Court provided a base level and the requirements of the Charter could be higher than those of the Convention.

 

Comment

 

The jurisprudence has built on a series of, generally binary, distinctions, the most basic of which is that between EU and national competence, given that Article 4(2) TEU requires the EU to respect Member States’ essential state functions, including maintaining law and order. It specifically states:

 

“national security remains the sole responsibility of each Member State”.

 

Many Member States use data retention and the analysis of data as part of their fight against terrorism and in support of national security. On this basis it has been argued that national laws providing for such schemes fall outside the competence of the EU, and in SpaceNet a number of governments intervened to make the same argument again.  This argument in the words of the Advocate General has been “emphatically rejected” (SpaceNet, para 32), citing La Quadrature du Net, though this position is more clearly seen in Privacy International and had already been established in Tele2 Sverige and Watson (and could be seen as implicit in the distinctions employed in Ireland v European Parliament and Council). While Article 4 TEU does exclude national security from the scope of EU law, it is to be narrowly understood - applicable to the activities of intelligence agencies for the purposes of safeguarding national security. This seems to be a well-established principle and unlikely to be disturbed now, no matter the representations of the Member States.

 

Another longstanding distinction made in the case law is between content of communications and communications data (meta data), including traffic data (which seemingly also includes the subscriber name and the IMEI address of the mobile device according to Ministerio Fiscal, paras 40-42) and location data.  Mass acquisition of the content of communications goes to the essence of the right and cannot be justified. The Court has accepted that the acquisition of communications data in principle could be justified, as can be seen in Tele2 Sverge and Watson, Privacy International and La Quadrature du Net, suggesting that the intrusion cause by mass acquisition of communications data is less intrusive than knowledge of content. Whether – given the harm attributed to this collection: the possibility of creating detailed profiles on individuals – this is wholly true is debatable.  Note, however, that the Court has accepted that some sorts of data may be seen as less sensitive – notably identity and IP addresses in the context of criminal investigations.

 

The Court suggested in Ministerio Fiscal that the intrusion was less (perhaps to enable itself to justify taking a different approach from Tele2 Sverige and Watson), though it was unclear as to whether this was to do with the type of data in issue or because of the limited amount of data involved (and its severability from other data). In its ruling, the Court confirmed that access to retained data which reveals the date, time, duration and recipients of the communications, or the locations where the communications took place, must be regarded as a serious interference since that data allows precise conclusions to be drawn about the private lives of the persons concerned (para 60), suggesting it is what you can do with the data that is important rather than the amount of data.  The Court has suggested in other contexts that certain types of data are less important: see the data involved in PNR cases (Opinion 1/15, especially para 151, discussed here). In the current opinions, the Advocate General reiterated the position in La Quadrature du Net as regards IP addresses and identity (Spacenet, paras 81-82; VD and SR, para 80) but did not elaborate further.  The question about small sets of eg location data remains open. 

 

This possibility of profiling and its impact on users has led the Court to develop stringent conditions for the collection of data which are based on two interlinking sets of distinctions: that between general and targeted measures, and between national security and the fight against crime (with a sub-division between serious and other sorts of crime).  For all three cases, the Advocate General re-iterated the general principles established by the case law to date- though it is worth noting that he relied for preference on La Quadrature du Net (as a judgment which synthesised or summarised preceding case law), rather than other landmark cases – notably Tele2 Sverige and Watson – perhaps because (in the eyes of some) La Quadrature du Net allowed some State measures that would not seem on first glance to fall within Tele 2 Sverige and Watson – and which the Advocate General described as “supplementary qualifications” (GD, para 4). So, “general and indiscriminate retention of traffic and location data can be justified only by the objective of safeguarding national security”, which is distinct and more serious or important than the other objectives listed in Article 15 e-Privacy Directive (GD, para 36, Spacenet, para 37, VD and SR, para 75, each citing La Quadrature du Net). In sum, provided all the other conditions are satisfied, national security threats justify indiscriminate data retention, whereas serious crimes only suffice to legitimise targeted data retention.

 

Of course, this begs the question of what falls within national security for the purposes of Article 15 and what constitutes serious crime. According to Ministero Fiscal, the boundary between crime and serious crime falls to be determined by the Member States. While respecting national procedural autonomy, this might be open to manipulation or interpreted broadly (as the special, expansive definition of serious crime in the Investigatory Powers Act – when the UK was still a member of the EU – suggests). The Court in La Quadrature du Net suggested that national security

 

“encompasses the prevention and  punishment of activities capable of seriously destabilizing the fundamental constitutional, political, economic or social structures of a country and, in particular, of directly threatening society, the population or the State itself” (para 135). 

 

In VD and SR the Advocate General emphasised that the two types of measures – those aimed at safeguarding national security and those which are aimed at combatting crime – cannot have the same scope as otherwise the distinctions in La Quadrature du Net (with regard to the possibility of indiscriminate surveillance) would have no purpose and the fundamental rights protections would likely be undermined – and this is true no matter how serious the crime (VD and SR, paras 83-86).

 

As regards targeting, the Court has suggested that this need not be at the level of the individual but could relate to localities or to groups – suggestions which may raise all manner of social, political as well as technical questions (and see here, Interpol’s distinctions). As the Advocate General pointed out, it is not the responsibility of the CJEU to draft compliant regimes; this is the responsibility of the Member States.

 

La Quadrature du Net imposed conditions on national security and generalised surveillance, as well as on targeted surveillance for serious crime. In Privacy International, the CJEU restated its position that national legislation must develop objective criteria for both the acquisition of a particular dataset from a service provider and its actual use by the relevant authorities (see paras 78-81). Moreover, it seems that these conditions apply not just to traffic and location data, but also provisions regarding the preventive retention of IP addresses, subscriber information and other measures aimed at combatting serious crime. But, there are questions about the extent to which various sorts of safeguards may compensate for other weaknesses in the system (and this same question can be seen in respect of the European Court of Human Right’s jurisprudence where it blends lawfulness with safeguards and safeguards with proportionality, effectively reducing the scrutiny over acquisition in favour of control over use – an approach which does not deal with the chilling effect of Government access to and storage of data). The Advocate General here rejects this blurring of safeguards over access with control over acquisition and retention:

 

“for the Court, ‘the retention of traffic and location data constitutes, in itself … an interference with the fundamental rights to respect for private life and the protection of personal data’. In this regard ‘access to such data is a separate interference’ with those fundamental fights, irrespective of the subsequent use made of it.

 

For the present purposes it is therefore irrelevant that the data protection arrangements for retained data provided for in the German legislation (a) provide effective safeguards to protect those data; (b) place rigorous and effective limits on access conditions, restricting the circle of people who can access the data; and (c) allow the retained data to be used solely for the purposes of investigating serious offences and preventing specific risks to life or a person’s freedom or to the security of the state.

 

The truly decisive element is that, … , the retention obligation at issue is not in itself subject to any specific conditions.” (paras 74-76)

 

Limited retention periods constitute another such safeguard; as the German Government argued in Spacenet, it means that less detailed profiles might be drawn – and in this seems similar to the approach of the Advocate General in HK v Prokuratuur (para 82). While the Court agreed that the period of data retention was a relevant factor in determining the severity of the intrusion, however, it took the view that traffic and location data are generally sensitive because they allow for far-reaching conclusions about private life and that therefore should only be permitted in relation to serious crime (and presumably the protection of national security).  The Advocate General noted in Spacenet that a limited retention period cannot justify a general retention requirement (in relation to crime) (para 66). Moreover, the time period must be considered alongside the quantity of data retained and the techniques available for analysis (Spacenet, para 70).

 

While acquisition, storage and access of data constitute different infringements (and real-time access may give rise to different levels of intrusion from analysis of historic data), there are questions about the links between them. If retention may be justified only for serious crime, presumably access is likewise limited (the Court did not discuss this point in Ministerio Fiscal). This link was discussed in VD and SR. The legislation permitted access to existing records, but did not provide a basis for storage in the first instance. While the French Government argued that the market manipulation legislation implicitly allowed for data retention, the Advocate General argued that these existing records “can only be ‘lawfully existing records’, that is to say those compiled in accordance with Directive 2002/58” (VD and SR, para 62, emphasis in original).

This makes clear that matters pertaining to communications confidentiality are not easily to be displaced. In any event, even if such ‘implicit authorisation’ were to be accepted, “such retention would be subject to the same conditions as would necessarily apply if it were based on any other EU legislative provision”. That is, all EU legislation must comply with the requirements of the EU Charter and the Court’s interpretation of the requirements of Article 7 and 8, arising in the context of the e-Privacy Directive, do not apply to Article 7 and 8 only in the context of that directive but more generally. This recognition is important given the increasing acquisition of data by the private sector and its sharing with the public sector with the aim of delivery of public services of all kinds. For this reason, the requirement of approval of access requests by an independent body (seen also in GD in the context of the e-Privacy Directive) also arose in relation to the insider dealing and market manipulation legislation (para 95).  We might see in this the beginnings of a general approach to constraining state surveillance activities; it will be interesting to see the extent to which the Court pulls through concerns about profiling from this group of cases through to, for example, PNR.  There is a new reference pending challenging the broad nature of PNR data collected in Directive 2016/681/EU (Ligue des droits humans (Case C-817/19) – the hearing for this case is discussed here). The next question is where the boundary is between concerns about profiling in the context of national security and combatting crime, and profiling to support data-driven public service delivery more generally. This distinction does not yet seem to have been considered.

 

Barnard & Peers: chapter 9

JHA4: chapter II:7

Photo credit: EFF-Graphics, via Wikicommons

Prisoner voting: now a matter of EU law

Jo Shaw, Salvesen Chair of European Institutions

Article 39(2) of the Charter of Fundamental Rights provides:

‘Members of the European Parliament shall be elected by direct universal suffrage in a free and secret ballot.’

In its brief and rather low key judgment in Delvigne (Case C-650/13; ECLI:EU:C:2015:648), which was handed down on 6 October 2015, the Grand Chamber of the Court of Justice has put flesh on the bones of this provision. It concluded that national measures taken to determine who is entitled to vote in European Parliament elections fall within the scope of EU law as they must be considered to be implementing EU law within the meaning of Article 51(1) of the Charter of Fundamental Rights. Consequently, Article 39(2) is applicable in such a situation, as are other Charter Rights. The Court’s judgment follows the recommendations of Advocate General Villalon’s Opinion (ECLI:EU:C:2015:363), albeit with much more laconic reasoning and without reference to the ECHR or Strasbourg case law.

The CJEU reviewed certain French rules depriving the applicant of his civic rights, including the right to vote and to stand for election. This sanction was imposed, by operation of law, consequent upon the applicant’s conviction for a serious crime and his receipt of a custodial sentence. However, the Court concluded that measures depriving a person who has been convicted of a serious crime of the right to vote on an indefinite basis were not precluded by Article 39(2) CFR. The Court did not refer to the European Convention on Human Rights and Fundamental Freedoms, or the well-known prisoner voting case law of the European Court of Human Rights. But it did discuss the need for any limitations on the right to vote to be proportionate, in the sense of pursuing a legitimate aim of general interest and of taking into account the nature and gravity of the criminal offence committed and the duration of the penalty imposed. The Court further held that there was no infringement of Article 49 CFR regarding the non-retroactivity of criminal sanctions. This part of the case will not be discussed further in this blog.

Prior to Delvigne, the only significant excursion by the Court of Justice into the field of European Parliament voting rights was in 2006. In Spain v UK (Gibraltar), the Court rejected an argument led by Spain that the scope of the franchise for European Parliament elections was determined by EU law. This precluded a challenge brought by Spain against the UK’s decision to include Commonwealth citizens within the Gibraltar franchise, when extending the scope of European Parliament elections to that territory pursuant to the Court of Human Rights judgment in Matthews. The same point about Articles 1(3) and 8 of the 1976 Act on Direct Elections not expressly or precisely defining who are entitled to vote in EP elections was repeated in Eman and Sevinger (Aruba), decided on the same day. Moreover, the Court in Eman and Sevinger expressly stated that the provisions on citizenship in what was then Part Two of the EC Treaty do not confer an ‘unconditional right to vote and to stand as a candidate in elections to the European Parliament’ on citizens of the Union (para. 52). The Court highlighted that the citizenship provisions in Part Two were aimed at guaranteeing access to the vote for those EU citizens resident outside the state of which they were nationals. The Court also went on to state that nothing precluded Member States using the criterion of residence in order to determine who had the right to vote, relying in that respect on ECHR case law. However, the Court did conclude that an equal treatment issue arose in the circumstances of the case, because of the difference in approach under Netherlands law for two groups of Netherlands nationals, who were not resident in the metropolitan Netherlands. Those resident in Aruba could not vote, and yet those in third countries could vote. This difference in treatment (under the general equal treatment principle) needed to be justified.

The judgment in Delvigne draws on the groundwork laid down in Eman and Sevinger, in its application of the proportionality principle to scrutinise national arrangements on prisoner voting. The applicant was convicted of a serious crime in 1988 and given a custodial sentence of 12 years. By operation of the law then applicable, that sentence also entailed the loss of his civic rights, as he had been convicted of a serious offence. Subsequently, new Criminal Code provisions abolished the ancillary penalty of loss of civic rights by operation of law, and laid down that a total or partial deprivation of civic rights must be the subject of a court ruling, and may not exceed ten years in the case of conviction for a serious offence. However, Delvigne himself was not affected by the provisions of the new Criminal Code, as his deprivation of rights resulted from a criminal conviction that became final before the new Criminal Code entered into force. In the French courts, he contested a decision to remove his name from the electoral register in the district in which he was residing, an act which prevented him voting in the 2014 European Parliament elections, arguing this was contrary to EU law. To assist its deliberations, the French court referred a series of questions to the Court of Justice.

The French government (backed by interveners Spain and the UK) contested the jurisdiction of the Court, arguing that there was no connection to EU law given that it lies within the competence of Member States to determine who can vote in European Parliament elections. The Court noted that EU law is applicable, under Article 51 CFR, only where Member States are implementing EU law. Citing Gibraltar and Eman and Sevinger, the Court acknowledged (para. 31) that the Act on Direct Elections does not expressly and precisely determine who are to be entitled to vote in EP elections. However, in exercising that competence, Member States are bound ‘by the obligation set out in Article 1(3) of the 1976 Act, read in conjunction with Article 14(3) TEU, to ensure that the election of Members of the European Parliament is by direct universal suffrage and free and secret’, a point which was supported by the European Commission, the European Parliament and the German Government in their observations. This creates the connection to EU law.

The words ‘direct universal suffrage’ have been present in EU primary law for more than 50 years, as they were included in the original Treaty of Rome, admittedly as an aspiration for direct elections to be held to the European Parliament. For nearly 40 years (since the 1976 Act on Direct Elections), the aspiration has been given concrete form, through a procedure to ensure that the citizens of the Member States elect the members of the European Parliament. Since the Matthews case before the ECtHR, it has also been clear that the EP is a legislature vis-à-vis those citizens, and thus that the elections are subject to the overarching norm of universal suffrage set out Article 3 of Protocol 1 ECHR. This is reinforced by Article 14(3) TEU which adopts the same words as Article 39(2) CFR. Why has it taken so long to establish that in principle Member States’ franchise rules in respect of the holding of European Parliament elections are subject to universal suffrage norms within the framework of EU law (as opposed to by reference to the ECHR alone, as per Matthews)? Perhaps the arrival of the Charter of Rights has made a difference. And yet the texts are precisely the same. As the Court observed (para. 44):

As regards Article 39(2) of the Charter, it is apparent from the considerations in paragraph 41 of the present judgment that this constitutes the expression in the Charter of the right of Union citizens to vote in elections to the European Parliament in accordance with Article 14(3) TEU and Article 1(3) of the 1976 Act.

Article 39(2) appears, therefore, to add no additional substantive heft to the principles of universal suffrage compared to the pre-Charter situation. However, the explanations relating to the Charter do make it clear that Article 39(2) takes over the basic principles of the electoral system in a democratic state. This is presumably a reference to ECHR case law on Article 3 of Protocol 1. And it is perhaps the clear articulation of the scope of EU law as relating to situations where Member States are implementing EU law contained in Article 51 CFR that prompts the CJEU into a clearer holding that franchise restrictions are subject to the basic principles of EU law than one finds in Eman and Sevinger. The result is the same, but the route taken is much more elegant. So in that respect the Charter does help the Court of Justice to put itself in the position to cast its eye over the French prisoner voting rules.

The resolution of the substantive issues in the case by the CJEU is very brief. As any ban on prisoners voting is a restriction on a fundamental right protected by the Charter (the right to vote in EP elections), it needs to be assessed as a limitation under Article 52(1) CFR. The CJEU quotes the conditions under which limitations on the exercise of rights are permissible: they must be provided for by law, they must respect the essence of those rights and freedoms and, subject to the principle of proportionality, they must be necessary and genuinely meet objectives of general interest recognized by the European Union or the need to protect the rights and freedoms of others (para. 46).

It was clear that the ban is provided for by French law (and indeed in a later part of the judgment not discussed here, the Court concluded that the approach taken by the French legislature to maintaining the voting ban in respect of those whose sentence had already become final before the entry into force of the new law was not contrary to Article 49 CFR). Second, excluding certain persons under certain conditions, on account of their conduct, does not affect the essence of the right (para. 48). Finally, and perhaps crucially for those who were waiting for this case from the side of the UK, with its fraught debate on prisoner voting, the Court stated that ‘a limitation such as that at issue in the main proceedings is proportionate in so far as it takes into account the nature and gravity of the criminal offence committed and the duration of the penalty’ (para. 49). And that was pretty much all the Court had to say on the matter. It chose to decide the proportionality issue itself, rather than referring this back to the national court. The Court noted the French observations that Delvigne was made subject to a deprivation of civic rights as a result of being sentenced to a term of 12 years’ imprisonment for a serious crime, and that he also had the possibility of applying for and obtaining a court order lifting the sanction.

As a case on the Charter of Rights, Delvigne does not break new ground although it does provide helpful clarifications, especially when one looks at the Advocate General’s Opinion. As has been argued previously, it follows quite naturally from Eman and Sevinger and from text of Article 39(2) CFR that the Court would conclude that domestic limitations upon the European Parliament elections franchise would fall within the scope of EU law, and that as such they would be subject to a proportionality test. The value of the case is that it makes the point explicit, whereas the challenge after Eman and Sevinger was to figure out from the Court’s judgment what exactly was the link with EU law that gave the Court jurisdiction to examine the character of the Dutch state’s policies on external voting in EP elections and to find them to be, in effect, arbitrary in character (by applying the general Aristotelian principle of equal treatment). Indeed, it would have been better if the Court in Eman and Sevinger had followed the Advocate General at that time (see paras. 69-71 of the Opinion), and concluded that there is (has always been since direct elections?) a freestanding (but obviously not unlimited) ‘right to vote’ in EP elections on the part of EU citizens. Part of the problem has been that this right to vote (as an expression of universal suffrage in a democratic context) has often been confused with the right on the part of non-national EU citizens in the Member State of residence (which is an expression of the importance that EU law attaches to the integration of migrant EU citizens in their host state, so that they do not in fact lose rights as a result of mobility). In Delvigne, the Court carefully separated the two and made it clear that Article 39(1) CFR, which corresponds to Article 20(2)(b) TFEU, does not apply in a case such as this. Of course, that does not resolve precisely what mix of Articles 39(1) and 39(2), plus associated TFEU provisions, might apply to a case involving a non-national EU citizen prisoner subject to a voting ban in respect of EP elections in the host state, as arose in the UK in the case of Teshome v The Lord President of the Council ([2014] EWHC 1468).

The major difficulty with the judgment in Delvigne is that unlike the Advocate General, the Court gives no clue as to whether it has read the case law of the European Court of Human Rights on Article 3 of Protocol 1, and thus how it feels that the tests and standards which it applies based on Article 52 stacks up against the approach taken to contracting state discretion on prisoner voting in cases such as Hirst v United Kingdom (No 2) (2005) 42 EHRR 849 and Scoppola v Italy (No 3) (2012) 56 EHRR 663. The AG’s conclusion was the legislation such as that at issue in Delvigne was not precluded by Article 39(2) CFR ‘provided always that it does not prescribe general, indefinite and automatic deprivation of the right to vote, without a sufficiently accessible possibility of review, the latter particularly being a matter which it is for the national court to establish.’ This sticks close to the ECHR rubric.

It is beyond the scope of this blog to discuss in detail the fraught political process, the interactions between domestic case law and Strasbourg case law, and the tentative steps taken within the UK Parliament in the form of the Draft Voting Eligibility Bill to find a compromise between Strasbourg and what appears to be the mainstream political opinion in the UK political elite that giving the right to vote to prisoners is somehow abhorrent. The twists and turns of this narrative are presented in full in a regularly updated House of Common Standard Note, which provides a handy timeline. Prisoner voting has become, in the UK, a lightning rod conducting fears about an over-interventionist Court of Human Rights, generally underspecified worries that somehow the Human Rights Act overprotects the human rights of those ‘less deserving’ of those rights, and ongoing sensitivities about the proper province of the courts, including the domestic courts, and the legislature in relation to such matters. The domestic courts have sought to avoid conflict by making it clear that they have nothing more to say on the issue of prisoner voting in relation to the ECHR, and that they will not design a scheme in compliance with the ECHR even if Parliament refuses to act. Some judges, such as Lord Sumption in the Supreme Court in Chester and McGeoch, have been critical of the Strasbourg approach.

Indeed, for many observers and members of the political and indeed legal elite, prisoner voting offers the ideal opportunity to ‘stand up to Europe’, and to insist that human rights should receive a uniquely ‘British’ interpretation. Unfortunately, it now seems impossible to have a measured policy debate on the matter of prisoner voting in the UK and the anomalies thrown up by the current system, although the joint committee of the two Houses of Parliament charged with looking after the issue of prisoner voting whilst it remains in the long grass into which it has been kicked by successive governments has done a good job of holding a consultation and producing a balanced report making some useful compromise suggestions about how to bring UK law into line with what Hirst (No. 2) and Scoppola (No. 3) appear to require. Nothing further has happened, and the UK Government continues to send regular letters to Strasbourg, indicating that it is waiting for this, or that judgment, to appear – most recently Delvigne itself before doing anything further. At least one influential legal commentator has called on the Minister of Justice Michael Gove, who has shown himself to be somewhat more liberal-minded than many had expected in his relatively new political role, to seize the opportunity of this case to lead on legislation giving at least some prisoners the right to vote. The Draft Voting Eligibility Bill may now indeed be retrieved from the long grass and given further consideration, although no parliamentary time has been set aside. Meanwhile, opponents of prisoner voting continue to bring forward private members bills before the Houses of Parliament to reinforce the current position. Liberal voices arguing that Strasbourg does not go far enough can only look on and hope for a radical change in the political wind.

The judgment was not generally received with hostility in the UK. Much of the newspaper commentary seemed to assume that it would make no difference to the UK position, largely because of a misreading of the CJEU’s acceptance that the particular ban put in place by France was in and of itself proportionate, and because they went little further than reading the formal part of the judgment, which reads:

Article 39(2) [CFR]…must be interpreted as not precluding legislation of a Member State…which excludes, by operation of law, from those entitled to vote in elections to the European Parliament persons who, like the applicant in the main proceedings, were convicted of a serious crime…’

This seems at first sight to be more of an endorsement of states’ rights than it really is. In fact, the judgment leaves many issues open for the UK courts to face as they receive the next wave of prisoner voting rights applications, taking advantage of the new EU law flank opened up by Delvigne, assuming political inaction continues. Indeed, legal commentary has been much more alive to the implications. Most obviously, it poses a direct challenge to the conclusions of the Supreme Court in the 2013 case of Chester and McGeoch that it was not possible to make an argument grounded in EU law to support a case brought in the domestic courts seeking a remedy in respect of the exclusion of prisoners in UK jails excluded from EP voting rights. Lord Mance’s lengthy consideration of the issue of EU law raised by the applicants, in which he relied upon a contorted interpretation of Eman and Sevinger according to which it was the EU law right given to non-national EU citizens which somehow triggered the jurisdictional link in that case rather than freestanding protection of universal suffrage in EP elections, led him to conclude that EU law was not applicable. His reasoning is worth quoting in detail:

The Court of Justice [in Eman and Sevinger] did not therefore endorse Advocate General Tizzano’s broad approach, or import the Strasbourg jurisprudence into the general provisions of Community and Union law referring to voting in European Parliamentary elections. There was good reason for this. Eligibility to vote is under the Treaties and the 1976 Act a matter for national Parliaments, one of considerable national interest. There is no sign that the European Commission has ever sought to involve itself in or take issue with voting eligibility in Member States or specifically with the restrictions on prisoner voting which apply in a number of such States. The Strasbourg jurisprudence operates as the relevant control, albeit one that has itself proved in some respects controversial. It would not only unnecessarily duplicate that control at the European Community or Union level, it could also lead to further conflict and uncertainty.

Once again, in Delvigne, the Court has declined to refer to the Strasbourg case law, but even so the proportionality test it has applied within the field of EU law may present a minefield for national courts, which must now open up their domestic prisoner voting rules for scrutiny. Is it proportionate simply to make the ban match the sentence (as opposed to a ban which can continue beyond the sentence, but is subject to review, as is the case in France), or does proportionality implicitly require the seriousness of the crime to be taken into account? It is hard to imagine that these matters can be fleshed out without reference to the Strasbourg case law, where they have been most fully canvassed. The judgment of Lady Hale in Chester and McGeoch provides perhaps the most overt sympathy on the part of the UK judiciary towards the Strasbourg position that the UK’s comprehensive ban approach is simply too lacking in nuance to satisfy the standard under Article 3 of Protocol 1 as articulated in Hirst (No. 2) and modulated in Scoppola (No. 3). Applying a custody threshold does not clearly articulate the aim that disenfranchisement – not in and of itself illegitimate – seeks to promote, and clearly custody thresholds, shifting over time, will make the question of whether any particular person convicted of any particular crime can vote in any given election to some degree arbitrary. The Supreme Court will undoubtedly have to return to these issues, taking guidance from the CJEU ruling in Delvigne and applying it to the UK context. Given the refusal to make a reference on the issue of scope in Chester and McGeoch, the Supreme Court probably will not want to make a reference on the issue of proportionality. But given the uncertainties that Delvigne leaves standing, it would probably be a useful opportunity for the Court of Justice to put a little more flesh on the bones of the proportionality test that it has articulated. But it may be that the CJEU would be as unwilling a recipient of such a reference as the Supreme Court would be a generator.

Moreover, now that the issue of a freestanding right to vote in EU law as a reflection of the principle of universal suffrage which underpins democratic elections to the European Parliament seems settled, other limitations on the franchise may be challenged before the national courts in the UK and elsewhere, including external voting restrictions and restrictions on voters deemed to lack capacity by reason of disability. The Brexit referendum franchise in the UK may perhaps also be subject to challenge based on this argument.

Finally, once any or all of these issues are settled, there will remain the tricky question of remedies in the domestic legal order, which the EU law route opens up in ways that the cases in the UK based on the Human Rights Act and Strasbourg case law do not, by virtue of the supremacy of EU law and the relationship between the EU legal order and the national legal order. Two options are likely to be discussed in detail, namely the disapplication of the domestic rules and the possibility of damages for state liability. Anticipating that he might be wrong on the issue of the scope of EU law, Lord Mance already addressed these pre-emptively in Chester and McGeoch. He argued that even if he were wrong about the issue of the scope of EU law, it would be simply impossible for a national court to disapply UK law because there would be no way of ‘reading down’ the Representation of the People Act 1983, which contains the voting ban, without putting in place positive action including an administrative process to allow some prisoners to exercise their right to vote, if the ban applied in their particular case was deemed disproportionate. But applying proportionality to such a blanket ban is indeed a tricky issue. Consistent with his approach to interpreting EU law in such a way as to maximize national discretion, Lord Mance also interpreted the Francovich principles regarding state liability so as to suggest that in any event there could have been no successful action for damages.

Barnard & Peers: chapter 9, chapter 3

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