H v Council: Another Court breakthrough in the Common Foreign and Security Policy

Graham Butler, PhD Fellow, Centre for Comparative and European Constitutional Studies, Faculty of Law, University of Copenhagen, Denmark

Introduction

This summer alone, the Court of Justice (‘the Court’) has issued two important decisions that will further shape the legal dimension of the Common Foreign and Security Policy (CFSP). Despite this largely intergovernmental sphere of law (the former Second Pillar) being merged into the unified ‘EU’ at the Treaty of Lisbon, the pillar’s shadow still lives on. Lasting evidence of CFSP as a separate but integrated sphere of law allow for it to be titled ‘CFSP law’, with judgments of the Court arising from interinstitutional and direct action litigation, permitting its legal development. The two judgments, Tanzania (Case C-263/14) and H v. Council (Case C-455/14 P) address different questions, and with a third, Rosneft (Case C-72/15), being delivered later in the year. This sequence of judgments demonstrates the fluidity of CFSP dynamics. In this blog post, analysis will focus on the H v. Council judgment, and specifically, given its peculiarity, the jurisdiction of the Court of Justice in CFSP.

Background

From a simple reading of the Treaties, it would be assumed that three individual articles pose problems for the Court of Justice’s jurisdiction is matters pertaining to CFSP.

Article 24(1) TEU states, ‘…The Court of Justice of the European Union shall not have jurisdiction with respect to these provisions, with the exception of its jurisdiction to monitor compliance with Article 40 of this Treaty and to review the legality of certain decisions as provided for by the second paragraph of Article 275 of the Treaty on the Functioning of the European Union.’

Article 40 TEU states, ‘The implementation of the common foreign and security policy shall not affect the application of the procedures and the extent of the powers of the institutions laid down by the Treaties for the exercise of the Union competences referred to in Articles 3 to 6 of the Treaty on the Functioning of the European Union. Similarly, the implementation of the policies listed in those Articles shall not affect the application of the procedures and the extent of the powers of the institutions laid down by the Treaties for the exercise of the Union competences under this Chapter.’

Article 275 TFEU states, ‘The Court of Justice of the European Union shall not have jurisdiction with respect to the provisions relating to the common foreign and security policy nor with respect to acts adopted on the basis of those provisions. However, the Court shall have jurisdiction to monitor compliance with Article 40 of the Treaty on European Union and to rule on proceedings, brought in accordance with the conditions laid down in the fourth paragraph of Article 263 of this Treaty, reviewing the legality of decisions providing for restrictive measures against natural or legal persons adopted by the Council on the basis of Chapter 2 of Title V of the Treaty on European Union.’

Generally therefore, it can be assumed that the there is no basis for the Court to possess jurisdiction in matters relating to CFSP, set out between Articles 21-46 TEU (‘Title V’). All relatively straightforward it would seem? Not necessarily so. In fact, the complexity of the rules, and the derogations set out are subject to varying interpretations which inevitably end up before the Court such as this case in point.

Pleadings

H v. Council (Case C-455/14 P) was an appeal of an Order by the General Court, concerning jurisdiction to rule on a staff dispute raised by an official serving the European Union Police Mission (EUPM) in Bosnia and Herzegovina (BiH). Initially, upon receipt of the case, the General Court made an Order on 10 July 2014 (Case T-271/10, H v. Council, ECLI:EU:T:2014:702) stating that the General Court had no jurisdiction on the matter given it was CFSP, thereby interpreting the Treaties provisions on lack of jurisdiction, Articles 24(1) TEU and Article 275 TFEU in a broad manner. H appealed the Order of the General Court to the Court, as H was of the view that the staffing issue within CFSP was an administrative act, and cannot be construed as to entail non-jurisdiction of the Court, notwithstanding the fact that the EUPM was formed on a CFSP legal basis. The case presented itself as another opportunity for the Court to refine what the extent of the jurisdiction of the Court is within the delicate field of CFSP.

In the General Court, both the Council and the Commission said the matter was CFSP, and therefore, pursuant to the second paragraph of Article 24(1) and the first paragraph of Article 275 TFEU, that the General Court did not possess any jurisdiction over it. On this point, the General Court agreed. H disagreed, and in this appeal, set out two pleadings. The Court of Justice only dealt with the second plea – the jurisdiction of the EU judiciary in matters pertaining to CFSP. Given its findings on the second ground of appeal on jurisdiction, it said there was no need to examine the first.

Judgment in H v. Council

Following the Opinion of Advocate-General Wahl delivered in April 2016, the Court of Justice delivered its judgment in July 2016. Whilst the Advocate-General said the General Court was right by saying the Court had no jurisdiction, the Court took a contrasting outlook to them both. Meeting in Grand Chamber, the Court acknowledged that, principally, it can be assumed that the jurisdiction of the Court does not extend to the CFSP provisions of the Treaties, known as Title V, or Articles 21-46 TEU. Whilst this was the case, the Court also said the general exclusion of the Court cannot extend to all aspects of CFSP. Based on this assertion, it can be assumed that acts adopted on a CFSP legal basis may come within the Court’s jurisdiction. In this case, this was despite the EUPM being grounded on a CFSP legal basis through Article 28 TEU and Article 43(2) TEU. The issue was therefore, should administrative decisions falling within the ‘day-to-day’ sphere of operations on the ground in the EUPM constitute non-jurisdiction of the Court?

Decision 2000/906/CFSP amongst other things, set outs the staffing arrangements for the EUPM. What is clear from the Decision is that staff on the ground in EUPM are all subject to the rules and the direction of the Civilian Operation Commander. This is sensical, given that the idea of senior officials not being in central control of all staff would be an operational and logistical nightmare. On closer inspection of the Decision however, the legal positions of positions are in fact distinct, in that some are seconded from national public bodies, and others are seconded from various EU institutions, agencies, and bodies. Despite this difference, the Decision allows for the coordination of day-to-day operations to cover ‘all’ staff. This is the tool that the Court uses to prise open jurisdiction for the matter at hand. Given that acts of staff management occurs in all EU public bodies, the Court noted that the CFSP Decision on staff arrangements within EUPM is similar to those exercised in EU institutions (paragraph 54). As a result, the Court believes that the derogations imposed on the Court’s jurisdiction in both Article 24(1) TEU and Article 275 TFEU cannot prevent the Court from exercising review over staff management in EUPM, notwithstanding the fact that EUPM is provided for by a CFSP legal basis.

This interpretation by the Court of Justice is not without further justification. Reliance is placed upon a Decision governing the statute, seat and operational rules of the European Defence Agency (EDA). The Council’s Decision on the EDA, 2015/1835/CFSP, confers jurisdiction upon the Court to adjudicate on matters relating to seconded national experts. Furthermore on judicial review, the Court said, ‘…the very existence of effective judicial review [is] designed to ensure compliance with provisions of EU Law…’ (paragraph 41). This not the first time that the Court has used ‘rule of law’ considerations in justifying allowances for judicial review. In addition, the Court stated that the issue in this case was redeployment, and not secondment itself, which it says the General Court mistook. Conclusively, the ‘no jurisdiction of the Court’ articles in the Treaties for CFSP does not mean everything in a CFSP mission is beyond the Court’s reach. The Court therefore concluded that the General Court erred in taking a broad view the Court’s principally excluded position.

Analysis

The Court’s judgment in H v. Council appears to be sound. To interpret all matters relating to CFSP missions, including the administrative, procedural, and operational issues as being ‘CFSP acts’ to escape judicial oversight of the EU judicial body would have been over-interpretation of the restrictions on the Court which have been set down by the Treaties. What construes a ‘CFSP act’ has gotten smaller as a result, as the Court took a narrow construal of what a CFSP act is, and the derogations imposed on the restrictive judicial review arrangements. The Treaties distinguish between acts of foreign policy, and implementing acts. Article 40 TEU states, ‘The implementation of…[CFSP] shall not affect the application of the procedures and the extent of the powers of the institutions laid down by the Treaties for the exercise of the Union competences…’. Even though implementing acts of foreign policy, it would be erroneous to construe all decisions of various importance within CFSP as ‘CFSP acts’, thereby excluding judicial review.

Notwithstanding the environment in which missions like EUPM operate, the Council’s argument that an operational issue in the context of security and defence should fall outside the EU judicature is not particularly strong. The Council has basically shot itself in the foot as a result of the EDA Decision last year. Perhaps without realising the full ramifications of Council Decision 2015/1835/CFSP in 2015, it is now having a spill-over effect. The Council itself trampled over its own arguments by granting the Court jurisdiction within one CFSP Decision on the EDA in 2015, but then trying to claim that it does not have the same adjudication powers within another early CFSP Decision on the EUPM. This argument wasn’t sustainable, which the Council would have realised when the Court likely queried the matter during oral hearing.

Conclusion

H v. Council is another case in a series of breakthroughs for the Court of Justice in CFSP. Just because a measure is concluded on a CFSP legal basis does not de-facto exclude the Court. The Court can use secondary Union law, a CFSP Decision, to prise open the jurisdictional bounds imposed on the former Second Pillar. The Mauritius (Case C-658/11) and Tanzania (Case C-263/14) cases have demonstrated that the Court has been strong on institutional procedure, and it is notable that the Court has opened up its jurisdiction in CFSP once again, without making use of Article 40 TEU – its ‘border policing’ provisions between CFSP and non-CFSP. The outcome of this case meant firstly, the General Court’s order finding of no jurisdiction has been set aside. The Statute of the Court (Article 61) permits it to send back cases to the General Court, for which it will be bound now on points of law that have been issued by the Court. Hence, the Court has bounced the issue back to the General Court to decide the case on matters of substance, now that its jurisdiction has been affirmed.

The forthcoming Rosneft judgment (Case C-72/15, Rosneft Oil Company OJSC v. Her Majesty’s Treasury and Others), a preliminary reference dealing with, amongst other things, the Court’s jurisdiction in CFSP, will be decided by the Court later this year, and will be keenly watched. (See discussion of the opinion in that case here). As time goes on, the two differing legal regimes of CFSP and non-CFSP on EU external action will continue, unless ‘splitting’ begins to become more commonplace, where EU measures are decided upon a dual legal basis. Until such a time when these issues of EU constitutional law are ironed out, the Court will continue to be asked detailed intricate questions about its jurisdiction in CFSP.

Barnard & Peers: chapter 10, chapter 24

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'Safe countries of origin': Assessing the new proposal

Steve Peers

Among the large number of new initiatives taken by the EU Commission regarding immigration and asylum last week, three of them are proposals for binding measures: a second temporary measure relocating asylum-seekers; a permanent system of relocation for asylum-seekers; and a Regulation setting out a common list of ‘safe countries of origin’ – which would consist of the Western Balkans countries and Turkey. I will be commenting on the relocation proposals in future, but for now I want to examine the ‘safe country of origin’ rules.

It should be noted that the UK, Ireland and Denmark have an opt-out from all of these measures, and the European Parliament (EP) is only consulted on the temporary relocation proposal. However, the EP has its usual joint decision-making role on the proposals for a permanent relocation system, and for the ‘safe country of origin’ list.

Background: the ‘safe country of origin’ idea

Two central misconceptions about the ‘safe country of origin’ concept must be dispelled at the outset. First of all, designating a country as a ‘safe country of origin’ doesn’t mean that all asylum applications from that country’s citizens are automatically refused. Rather it creates a presumption of safety – but that presumption is rebuttable.  It will likely be harder to rebut that assumption, since such applications are usually fast-tracked (more on the details below). But it is not absolutely impossible.

Secondly, the ‘safe country of origin’ concept is different from a ‘safe third country’ concept. A ‘safe country of origin’ is a country where its own citizens are generally not persecuted, whereas a ‘safe third country’ is a country where an asylum-seeker who came from a different country should (in the view of the country applying that rule) have applied for asylum instead.

The two rules have different consequences: the ‘safe country of origin’ rule goes to the heart of the definition of refugee, because it concerns the treatment of the asylum-seeker in the country of origin. But the ‘safe third country’ rule doesn’t address the question of whether the asylum-seeker was safe in the country of origin: it simply asserts that the asylum seeker should have applied for asylum somewhere else. It’s for that other State to decide whether or not the asylum-seeker has sufficient grounds to be considered a refugee, or to get another form of protection. For that reason, EU asylum law classifies the ‘safe third country’ rule as a rule determining the admissibility of an asylum application, not its merits.

Are the two groups of countries the same? Not necessarily. It may sound odd to say that a country can be ‘safe’ in one context, but not ‘safe’ in another. But let’s put it another way: can we imagine that a State might treat its own citizens reasonably well, but treat asylum-seekers badly? I’ll return below to the question of whether some of the key Western Balkans states can in fact be considered ‘safe third countries’ as well as ‘safe countries of origin’.

Even before EU asylum law was first adopted, some countries had their own national version of the ‘safe country of origin’ concept. The first-phase EU asylum procedures Directive, adopted in 2005, put in place a minimum degree of harmonization for the concept. It specified (in an Annex) that these were countries where there was:

“generally and consistently no persecution as defined in Article 9 of Directive 2004/83/EC [the first-phase qualification Directive, defining refugee and subsidiary protection status], no torture or inhuman or degrading treatment or punishment and no threat by reason of indiscriminate violence in situations of international or internal armed conflict.

In making this assessment, account shall be taken, inter alia, of the extent to which protection is provided against persecution or mistreatment by: (a) the relevant laws and regulations of the country and the manner in which they are applied; (b) observance of the rights and freedoms laid down in the European Convention for the Protection of Human Rights and Fundamental Freedoms and/or the International Covenant for Civil and Political Rights and/or the Convention against Torture, in particular the rights from which derogation cannot be made under Article 15(2) of the said European Convention; (c) respect of the non-refoulement principle according to the Geneva Convention; (d) provision for a system of effective remedies against violations of these rights and freedoms.”

The Directive also allowed Member States to designate part of a country as safe, or to maintain pre-existing national rules which had a lower standard. It also specified that to apply a ‘safe country of origin’ rule, Member States had to ‘have regard to the legal situation, the application of the law and the general political circumstances in the third country concerned’. Their ‘assessment of whether a country is a safe country of origin’ had to ‘be based on a range of sources of information, including in particular information from other Member States, the UNHCR, the Council of Europe and other relevant international organisations’.

As noted above, the list could only create a presumption of safety. More precisely, the Directive stated that the presumption could only apply if the asylum-seeker ‘has not submitted any serious grounds for considering the country not to be a safe country of origin in his/her particular circumstances and in terms of his/her qualification as a refugee in accordance with Directive 2004/83/EC’. Member States were also obliged to ‘lay down in national legislation further rules and modalities for the application of the safe country of origin concept’.

The Directive allowed (but did not require) ‘safe country of origin’ applications to be fast-tracked. In that case, while all the basic procedural rights still applied in principle, Member States had an option to skip a personal interview, and there were deadlines for decision-making and appeals in national law which made it much harder for applicants to make their case. It was more likely that appeals would not have suspensive effect (allowing the asylum-seeker to stay on the territory during the appeal) in such cases.

At the last minute while negotiating this Directive, a group of larger Member States decided it would be a good idea to have a common list of ‘safe countries of origin’ – over ten years ahead of the Commission’s recent proposal. But they then squabbled for 18 months over which States should be on this common list (EU asylum law decision-making then had to be unanimous). They eventually gave up agreeing the list straight away, but left a clause in the Directive allowing for the possibility of adopting a common list in future. That clause was in turn challenged successfully by the EP before the CJEU; the Court struck down the clause on the grounds that any such common list could only be adopted by means of a legislative or ‘comitology’ procedure, not the ad hoc procedure that the Council had made up.

When it came to the second-phase procedures Directive, which was adopted in 2013 and has applied to all asylum applications made since July 20 2015, there was no interest in returning to the concept of a common list. The basic criteria for designating a ‘safe country of origin’ remain the same, but the possibilities of keeping pre-existing lower standards, or of designating part of a country as ‘safe’, were dropped. (However, it’s still possible, under the qualification Directive, to argue that an asylum-seeker could have fled to safety within his or her own country). The safeguards for individuals to rebut the presumption were retained. It’s still possible to fast-track a ‘safe country of origin’ application, but the option to skip the personal interview was dropped. Finally, although the second-phase Directive now allows applicants in principle to stay pending the outcome of an appeal, it’s also possible for Member States to derogate from this rule in ‘safe country of origin’ cases (as well as some others), as long as the applicant has the right to challenge his or her removal before a court first.

The Commission proposal

The Commission suggests that all Western Balkans states and Turkey be listed as ‘safe countries of origin’. This would apply nearly immediately (twenty days after publication of the Regulation). Member States would still have the option to list other countries as ‘safe countries of origin’ pursuant to the procedures Directive, which would only be amended in order to insert cross-references to the new Regulation. The individual safeguard (the possibility of rebutting the presumption) would remain. Member States would not explicitly be required to fast-track applications from these countries as a consequence, but it’s likely that most or all of them would.

The Commission has made this proposal because there has been a sharp increase in the number of asylum-seekers from the Western Balkans in the last couple of years, and there has been a high rate of refusals of applications from these countries. Further evidence of concern about this issue is a report from the European Asylum Support Office (EASO) on applications from the Western Balkans, recently updated here, and the conclusions of the JHA Council in July, which urged all Member States to consider listing Western Balkans states as ‘safe countries of origin’. However, it’s obvious that this concern did not extend to applications from Turkish nationals; the idea of including Turkey on the list of ‘safe countries of origin’ emanates from the Commission.

Are these countries actually ‘safe’? That’s the million-dollar question. The Commission answers it in part by generally assessing the existence of human rights protections in the national legal order. It also quotes statistics about the success rate of asylum applications, and the number of times that the country concerned has been condemned by the European Court of Human Rights in 2014 for breaches of human rights. For comparison’s sake, here are those statistics in one place:

Albania: 4/150 ECHR applications; 7.8% asylum success rate, or 1040 successful applications

Bosnia: 5/1196 ECHR applications; 4.6% asylum success rate, or 330 successful applications

FYROM (Macedonia): 6/502 ECHR applications; 0.9% asylum success rate, or 70 successful applications

Kosovo: not party to ECHR; 6.3% asylum success rate, or 830 successful applications

Montenegro: 1/447 ECHR applications; 3.0% asylum success rate, or 40 successful applications

Serbia: 16/11490 ECHR applications; 1.8% asylum success rate, or 400 successful applications

Turkey: 94/2899 ECHR applications; 23.1% asylum success rate, or 310 successful applications

It’s obvious at first sight that one of these States is not like the others. Turkey has over five times the number of ECHR breaches as the next-highest State (Serbia). This can arguably be accounted for by Turkey’s bigger size – although in fact there are more ECHR applications against Serbia, so the gap in the rate of breaching the ECHR is even bigger in percentage terms.  More significantly (because not every breach of the ECHR is an indication of persecution), the rate of successful asylum claims from Turkish nationals is three times the rate of the next-highest State (Albania). Moreover, the number of asylum claims from Turkey (just over 1000 in the whole year) does not indicate a systemic problem.

It follows that Turkey manifestly does not belong on the common list of countries which all Member States can consider ‘safe’. In fact, it probably doesn’t belong on any Member State’s national list either. Indeed, Turkey isn’t on any national list, according to the recent report on EU asylum policy from AIDA, a database on asylum policy (see page 78). Leaving Turkey off the list does not mean that its application for EU membership should be shelved: the EU should make clear that this process is a long one during which would-be Member States can improve their human rights records.

As for the other countries on the proposed list, the Western Balkans States indeed have an overall low rate of successful applications, as well as a high number of applications (Turkey has neither). According to the EASO report, only 4% of applications out of nearly 100,000 were successful in 2014. In the context of very high pressure on many Member States’ asylum systems as a whole, it’s easy to see why the idea of a common list makes sense in terms of efficiency.

But there is a need to balance efficiency with humanity: the statistics show that there are still thousands of applicants from these States who demonstrated a genuine need for protection. The Commission’s explanatory memorandum notes that in all the States concerned, there was persecution on LGBTI grounds, as well as persecution in some States against Roma, women or children (among others). So the best way forward is to strengthen the individual safeguards to ensure that those with genuine needs for protection don’t have their application simply ignored. I have suggested some amendments to this effect in the Annex.

Furthermore, the proposal could go further in ensuring harmonisation, in two ways. First of all, in light of the length of procedures referred to in the EASO report, it could introduce deadlines to decide on applications and appeals from the nationals of the countries concerned, subject to two procedural safeguards: setting out a minimum time to appeal as well as a maximum time, and exempting those who have submitted some evidence to rebut the presumption from any fast-track process.

Secondly, as we say in English, what’s sauce for the goose is sauce for the gander. Greater harmonisation in the interest of the efficiency of asylum systems should be balanced with greater harmonisation to ensure that Member States do not breach the EU’s minimum standards, and to ensure that the standards themselves do not breach human rights law. I have therefore suggested amendments in the Annex to that effect, so that the Commission can overrule Member States which have applied the concept of ‘safe third country’ or ‘safe country of origin’ to cases where it is clearly not justified. (It would still be possible for national courts to overturn such decisions too). Such decisions are also likely to divert asylum applicants toward Member States other than the one which would be responsible for their application, distort recognition rates of asylum-seekers, and risk harm for the persons concerned. In particular, the AIDA report raises questions about whether Serbia could be considered a ‘safe third country’, and concludes that ‘international asylum standards are not currently met in FYROM’.

Annex

Proposed amendments to the asylum procedures Directive

Amend Article 25(6)(a)(i):

“the applicant comes from a country which satisfies the criteria to be considered a safe country of origin within the meaning of this Directive, except where Article 36(3) applies”

This exempts genuine claims by unaccompanied minors from the countries concerned from being fast-tracked (new text underlined).

Amend Article 25(6)(a)(ii):

“the applicant comes from a country which satisfies the criteria to be considered a safe country of origin within the meaning of this Directive, except where Article 36(3) applies”

This exempts genuine claims by unaccompanied minors from the countries concerned from being rejected in a special border procedure (new text underlined).

Amend Article 31(8)(b):

“the applicant is from a safe country of origin within the meaning of this Directive, except where Article 36(3) applies”

This exempts genuine claims from the countries concerned from being fast-tracked in general (new text underlined).

Add a new Article 31(10):

“In the case of an application made by a national of a country listed in the Annex to Regulation xxx/2015, they shall decide on the application within three months of the decision to apply the ‘safe country of origin’ concept, unless the applicant has submitted evidence that he or she is part of a group that faces persecution or serious harm pursuant to Article 36(3)”.

This fast-tracks a decision, except for ‘safeguard’ cases.

Add a new Article 36(3):

“Member States shall not make a decision to apply the ‘safe country of origin’ concept to an application until they have considered all evidence submitted by the applicant, including any evidence that the applicant is part of a group that faces persecution or serious harm according to the sources of information referred to in Article 37(3).”

Article 39 should be repealed

The idea of a ‘super-safe third country’ from which applications are not considered at all is incompatible with human rights law.

New Article 39:

“If a Member State has listed a third country as a ‘safe country of origin’ pursuant to Article 37 and Annex I, or a ‘safe third country’ pursuant to Article 38, but an organisation concerned with the protection of human rights submits evidence to the Commission that the designation is not compliant with the relevant criteria, the Commission shall examine the issue. It may also examine such an issue on its own initiative.

The Commission shall inform the relevant Member State, and ask it for its observations. Within one month of the start of the assessment, the Commission shall decide on the compatibility of the Member State’s decision with the criteria in this Directive. If the Commission’s view is negative, the Member State shall withdraw the relevant measure.”

This sets out controls of Member State abuse of the ‘safe’ country concepts. 

Add a new sub-paragraph to Article 46(4):

“In the case of an application made by a national of a country listed in the Annex to Regulation xxx/2015, Member States shall set a time limit of between one week and one month to lodge an appeal. Member States shall decide on the appeal within three months, unless the applicant has submitted evidence that he or she is part of a group that faces persecution or serious harm pursuant to Article 36(3)”.

This fast-tracks an appeal, except for ‘safeguard’ cases.

Add the following words to the end of Article 46(6)(a):

“…or Article 36(3)”.

This ensures a right to stay during an appeal for ‘safeguard’ cases.

Barnard & Peers: chapter 26

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