Gun Control in the EU: the CJEU’s Decision on the Legality of the Revised European Firearms Directive

Niels Kirst, PhD candidate, Dublin City University

Introduction

On the 3rd of December 2019, the European Court of Justice (hereafter ‘the Court’ or ‘CJEU’) gave its final verdict on the so-called Czech firearms case. In this detailed judgment which gives guidance on the law-making in the European Union (hereafter ‘the EU’), the Court touched on many principles of EU law and refined their meaning. The European Union legislator used its legal powers for the single market (Article 114 TFEU) to adopt Directive (EU) 2017/853, amend the previous firearms Directive 91/477 and Directive 2008/51/EC, in the aftermath of terrorist attacks in Paris and Copenhagen. The initial proposal of the Commission gained steam under the Dutch presidency of the Council in 2016. Finally, the Directive undergo the Trialogue process before being approved according to the co-decision procedure by the European Parliament (hereafter ‘the Parliament’) and the Council of the European Union (hereafter ‘the Council‘). The Parliament approved the amended Directive on 14th of March 2017, while the Council followed suit on the 25th of April 2017, with only the Czech Republic, Poland and Luxembourg disagreeing. Critical voices on political participation and accountability accompanied the legislative process. 

The Czech Republic had specifically harsh aversion towards the Directive, since civilian firearm ownership has a long tradition in the Czech Republic, and the Czech government, as well as Czech civil society groups, feared severe consequences for the Czech economy and the cultural heritage. After being outvoted in Parliament and Council, the Czech Government decided to challenge the Directive at the CJEU. It was alleged a breach of the principle of conferral of powers (Article 5 (2) TEU), of the principle of proportionality (Article 5 (4) TEU), of the principle of legal certainty and protection of legitimate expectations and finally, of the principle of non-discrimination. The Czech Republic, supported by Poland and Hungary in its claim, fired full blast to protect its political interest in front of the CJEU.

Earlier this year, AG Sharpston opined that the claims by the Czech Republic are unfounded and that the Court should uphold the Directive as it stands (see my analysis of the opinion here). The most important precedents for this case were the respective claims on the legal basis against the tobacco Directives from tobacco manufactures (see British American Tobacco and Philip Morris Brands). The trade, sale and possession of tobacco in the single market is situated in a field between health protection and the commerce, whereas, the sale, trade and possession of firearms is situated in a field between security and commerce. The critical question the CJEU had to answer was if Article 114 TFEU is an appropriate legal basis for measures which in large parts tighten security standards of firearm possession, or if this impinges of the national sovereignty of the Member States.

First Plea: Breach of the Principle of Conferral of Powers

The Czech Republic based its first plea on an alleged breach of the principle of conferral of powers by the European Union legislator. The baseline of this argument purported by the Czech Republic was that the aims of the new Directive diverted significantly from the aims of the earlier Directives of 1991 and 2008. Therefore, Article 114 TFEU did not constitute an appropriate legal basis anymore. The Czech Republic emphasised that an amended Directive shall not lead to new objectives which derogate from the original legal basis (Para. 21 – 24). By moving towards the fight against terrorism with the new Directive, the European Union legislator had no mandate to adopt these changes under the umbrella of the internal market competence.

The Court went into a general discussion on the appropriate legal basis for adopting a Directive or a Regulation (para. 31 – 33). Respectively, that new legislation might have several purposes, the Court explained. However, the predominant purpose determines the appropriate legal basis of the new legislation. These clarifications were followed by a discussion on the adequate use of Article 114 TFEU (para. 34 – 40), by assessing that the fight against international terrorism is an objective of general interest for the EU (by analogy health was identified as general interest in British American Tobacco and Imperial Tobacco). Subsequently, the Court tried to answer the question, if the safety and prevention of terrorist attacks had become the predominant purpose of the amended Directive and, if therefore, the legal basis of Article 114 TFEU was not appropriate anymore.

While the Czech Republic argued that the Directive should be analysed in isolation. Parliament and Council argued that the amended Directive has to be seen in light of the two earlier Directives (Para. 41 – 45). The Court clarified that an amended Directive must always be assessed in light of its earlier versions. Therefore, Directive 91/477 and the amendments by the new Directive serve as benchmark regarding the adequate legal basis. Assessing Directive 91/477 and the amendments made by the contested Directive, the Court concluded that by ‘adjusting the balance between the free movement of goods and security guarantees, [t]he EU legislature merely adapted the rule on the possession and acquisition of firearms set out in Directive 91/477 to changes in circumstances. [emphasis added]’ (para. 53) – which the EU legislature is entitled to do in its task of safeguarding the general interests recognised by the Treaty (see also Vodafone and Others) (para. 38). 

Finally, by pointing to the assessment of the firearms Directive in Buhagiar and Others the Court found that the predominant purpose of the measures read in conjunction with the earlier Directive was still ‘the free movement of goods, approximation of laws, regulations and administrative provisions of the Member States, whilst circumscribing that freedom with safety guarantees that are suited to the nature of the goods at issue’ (para. 59). Firearms are inherently dangerous goods, not only for the user itself (as the Czech Republic argued in the oral hearing) but also for fellow citizens, therefore, safety, as general interest recognised by the Treaty, can form a purpose of a Directive under Article 114 TFEU.   

Second Plea: Breach of the Principle of Proportionality

On a different note, the Czech Republic claimed that the European Union legislator did not have sufficient information at its disposal when drafting the Directive and therefore was unable to assess the proportionality of the Directive (para. 65 – 73). This argument was mainly based upon the European Commission skipping an impact assessment before drafting the Directive. The Commission pledged to carry out an impact assessment in an interinstitutional agreement with the Parliament under Article 295 TFEU. However, when the Commission drafted the Directive, it did not have time for a careful impact assessment and instead relied on the REFIT evaluation, which was carried out earlier. The Czech Republic contested that this was insufficient.

The Court highlighted the broad discretion the EU legislator has in evaluating and assessing legislative measures (para. 76 – 81). Further, the Court followed the Opinion of the AG that the pledge to carry out an impact assessment in an interinstitutional agreement under Article 295 TFEU is a non-binding commitment (para. 82). The Court reasoned that not conducting an impact assessment cannot automatically lead to an infringement of the principle of proportionality. Instead, the availability of existing information can still be sufficient to have a meaningful assessment of the principle of proportionality (para. 85). After going through the different studies, which the EU legislator took into account, the Court found that these studies, among them the REFIT evaluation, enabled the legislator to make a meaningful assessment of the proportionality of the new measures (para. 87 – 92).

In the second part of its second plea, the Czech Republic contested that specific articles of the new Directive failed the proportionality test of the EU. Namely, that these measures could have been achieved by less restrictive means (para. 95 – 101). The Czech Republic criticised in its claim the complete prohibition of semi-automatic firearms, as well as the stricter requirements for deactivated and antique firearms (para. 120 and 127). Technical details of the measures which the Czech Republic contested are omitted at this point but can be found in the judgement (para. 102 – 104). The Court first clarified that the judicial review of the proportionality of legislative acts is limited, and that the Court is not in the position to substitute its assessment for that of the EU legislature (para. 118). Instead, it is for the Court to define whether the legislator 'manifestly exceeded' its broad discretion (para. 119).

After going through the technical details of the new prohibitions of certain types of semi-automatic firearms, the Court concluded by pointing out that ‘those institutions [the Council and the Parliament] do not appear to have exceeded their broad discretion’ by these prohibitions (para. 126). The Court found the same regarding the proportionality of the new measures regarding deactivated and antique firearms (para. 131). The requirement of 'manifestly inappropriate in relation to the objectives' is a high bar to reach for new legislation to be deemed disproportionate. Therefore, the Court with its limited power and capacity of review declared the new measures to fulfil proportionality test. 

In the last place, the Czech Republic claimed that the contested Directive interfered with the right to property as it is enshrined in the Charter of Fundamental Rights (hereafter ‘the Charter’) (para. 132). The Court reasoned that Article 17 of the Charter is not an absolute right and may be restricted by limitations which meet the general interest recognised by the EU or the need to protect the rights and freedoms of others (para. 134) (in regard to the ‘right to property’ see a comment on SEGRO, in which the Court discussed Article 17 of the Charter). The Court found the evidence brought forward by the Czech Republic insufficient to prove a disproportionate interference with the right to property as enshrined in the Charter. The Court concluded that a ban on semi-automatic firearms for safety reasons is in the general interest which is recognized in the last sentence of Article 17 (1) of the Charter. 

Third Plea: Breach of the Principle of Legal Certainty and of the Protection of Legitimate Expectations

In its third plea, the Czech Republic claimed that specific measures of the new Directive impinged on the principle of legal certainty and legitimate expectations (para. 140 – 143). Specifically, the time requirements of the new Directive would lead to a retroactive application and the process of entering into force of the Directive to unattainable expectations on the part of individuals. Regarding legal certainty, the Court rebutted the argument by pointing out that the classification of firearms in the new Directive are clear and precise, and do, therefore, not lead to a retroactive application (para. 149 – 151). Regarding legitimate expectations of individuals, the Court highlighted that the EU legislator fulfilled its duties by publishing the contested Directive in the Official Journal of the European Union in a timely manner. This allowed individuals to know at which point the new rules will come into force and until when they could buy which kinds of firearms (para. 153 – 156).

Fourth Plea: Breach of the Principle of Non-Discrimination

In its fourth and final plea, the Czech Republic claimed that the so-called ‘Swiss exception’ (Article 6 (6) of the contested Directive), which allows Swiss militia soldiers to keep their semi-automatic firearms after completing their service with the Swiss army constitutes a discrimination against other EU nationals (para. 159 – 161). The Court recalled the principle of equality in EU law as requiring that 'comparable situations must not be treated differently and that different situations must not be treated in the same way unless such treatment is objectively justified' (para. 164). The Court found that the Swiss Confederation and the Member States are not comparable regarding the subject matter of that derogation. The Swiss Confederation 'has the proven experience and ability to trace and monitor persons and weapons concerned, which gives reason to assume that the public security and safety objectives' will be achieved (para. 166). Finally, the Czech Republic failed to bring forward evidence that there are other states within the Schengen area which fulfil the same system of mandatory subscription and transfer of military firearms as the Swiss Confederation. Therefore, the Court rejected the plea (para. 167 – 168).

Comment

This comprehensive and very detailed judgement closes the legal challenge between the Czech Republic and the EU. Exhausting legal remedies after being outvoted in the Council has a long tradition in the EU (see for example Spain v Parliament and Council). Also, in this case, it is the recurring storyline. The Czech Republic took legal actions after being outvoted in the Council and its MEPs had not won in the Parliament. The judicial route is a logical way to go. However, the question of firearms regulation seems to be of a more political than a legal nature. 

The contested Directive certainly lays more emphasis on the security requirements for legal firearms holders. The contested Directive prohibits the possession of semi-automatic firearms within the European single market by civilian citizens. The plea of the Czech Republic focused on the outer limits of Article 114 TFEU. Is this article suitable for tightening of firearms possession, or does it fall into the area of judicial cooperation in criminal matters and must, therefore, be adopted under Article 84 TFEU? As known, from the tobacco case-law of the Court, Article 114 TFEU can be interpreted broadly. Also, in this case, the Court followed this line of reasoning, by allowing a prominent place of security as an objective of a Directive which was adopted under the single market competence of Article 114 TFEU.

The Court affirmed the legislative mandate of the EU to lower the ceiling for firearm possession in the EU. Firearms are goods which are sold and purchased on the internal market; therefore, the EU is the adequate body to regulate, and the internal market competence is sufficient to harmonise the possession of firearms in the EU. As a result, Member States have to converge and adjust in their firearm regulations (if they not already did). Some Member States already have a higher bar of firearms possessions as the one purported by the Directive, others like the Czech Republic now have to change their national laws. The consequence is that also in highly political fields, such as firearms regulation, Member States have to abide by the qualified consensus on the Council level. 

Barnard & Peers: chapter 12

JHA4: chapter II:7

Photo credit: knowledge@Wharton

Can Member States seize asylum-seekers’ assets?

Kees Groenendijk (Professor Emeritus, Radboud University Nijmegen) and Steve Peers

In recent days, several EU and non-EU countries have been in the news for taking asylum-seekers' assets upon arrival. Is this compatible with EU law? We examine first of all national practice, then the legislative history of the relevant EU rules, then reach our conclusions.  

Denmark

In November 2015 the Danish government presented among a catalogue of 34 measures to discourage people from seeking asylum in Denmark, to introduce the possibility to confiscate cash, jewellery and other assets of asylum seekers in other to make them contribute in the costs of their reception. They proposal caused heated debate after a Minister suggested that wedding rings could be also confiscated. In January the Social-Democratic Party voiced that it would only support this proposal of the centre-right minority government, only assets above 1,340 euro could be confiscated. The new law is to be voted on 26 January.

Similar practices or rules are to be found in the national law of other Member States.

Switzerland, only few asylum seekers concerned

According to Dutch newspapers, Swiss legislation requires asylum seekers who enter the country with more than 1,000 Swiss francs have report and hand over the surplus to the Swiss authorities. The rule only covers money, not other valuables such as personal jewellery. Of the 45,000 asylum seekers coming to Switzerland in 2015, only 112 had to hand in a surplus, totalling around € 150,000 that year. Not really an impressive amount. Most asylum seekers, apparently, do not carry large amounts of money, once they arrive in Western Europe. Besides, under Swiss law beneficiaries of protection with income from employment, have to pay 10% of that income to contribute to reception costs during ten years.

Germany, an old practice?

The German legislation on reception of asylum seekers, the Asylbewerberleistungsgesetz, provides, already several decades that asylum seekers can be forced to contribute from their own assets and income to the cost of their reception. Asylum seekers have to declare their assets and income. The rules for applicant for public social assistance are applicable. From the assets only 200 euro and the goods necessary for exercising a profession or employment are exempted (§ 7(5) of the law). German national TV news reported on 21 January 2016 that in Bavaria asylum seekers were asked by the police to hand over their cash in excess of €750. In Baden-Wurttemberg the threshold is €350. The federal law leaves room for difference in application between the Lander. A spokesman of the Baden-Wurttemberg minister of integration stated that although cash was taken from refugees in individual cases following police spot-checks, searches are not carried out on every refugee. He was quoted as saying "In the context of a general police check it was established that individual refugees had cash with them" and "Refugees are not being systematically searched for cash or valuables".

Netherlands, only contributions from income not from assets

The Junior Minister for Immigration recently told the press that that he was not going to follow the Danish and German example and force asylum seekers to hand over small amounts of cash and jewellery. His spokesman explained this is not on the agenda right now, since we do not expect that it will reduce the influx.” (Volkrant 23 January 2016) Already for decades asylum seekers in the Netherlands if lawfully employed (only possible after six months and until an asylum status is acquired for 24 weeks per year only) have to pay the surplus above 185 euro of his monthly income as a contribution in reception costs.

Compatible with EU law?

Are such rules and practices on seizure of assets in order to contribute in reception costs compatible with EU law, and especially with the Reception Conditions Directive 2013/33? We do not deal here with the question whether such confiscation of valuables and jewellery is compatible with Article 1 of the First Protocol and Article 8 ECHR.

The relevant provisions are to be found in Article 17(3) and (4) of the 2013 recast Reception Conditions Directive, reading:

“3.   Member States may make the provision of all or some of the material reception conditions and health care subject to the condition that applicants do not have sufficient means to have a standard of living adequate for their health and to enable their subsistence.

4.   Member States may require applicants to cover or contribute to the cost of the material reception conditions and of the health care provided for in this Directive, pursuant to the provision of paragraph 3, if the applicants have sufficient resources, for example if they have been working for a reasonable period of time.

If it transpires that an applicant had sufficient means to cover material reception conditions and health care at the time when those basic needs were being covered, Member States may ask the applicant for a refund.”

Identical provisions were already present in Article 13(3) and (4) of the original Reception Conditions Directive 2003/9. They returned unchanged in the 2013 recast of the Directive. In order to understand those provisions it may be useful to have a short look at their legislative history. The various drafts are set out in more detail in the Annex, but we will summarise them here.

Legislative history of EU rules on financial contributions by asylum seekers

The Commission in its proposal for the original 2003 Directive (COM(2001)181) inserted an Article 19 on financial contributions. Member States could require applicants who can afford to do so to contribute to the cost of their material reception conditions. The relevant decisions should be taken individually, objectively and impartially and reasons shall be given. An effective judicial remedy against such decisions should be available, making explicit reference to Article 47 EU Charter.

During the first negotiations on this Article reaction eight Member States made proposals for amendments. Six Member States proposed to refer to “the general principle of the real need of the applicant, which would lead to entitlement to material benefits” (document 11320/01, p. 33). Germany proposed that “some of the applicant's income should be protected in all cases”. That proposal only covered the asylum seeker’s income. But it implied that all the income above a certain threshold could be seized by a Member State. The Netherlands made a similar proposal linking the asylum seeker’s contribution to his income: “if the applicant has a certain income, a contribution may be asked of him to cover some or all of the costs”. Both proposals intended to regulate a possibly contribution in reception costs, but did not include the asylum seekers’ assets as an object of seizure.

In January 2002 the text of Article 19 was consolidated with two other Articles in a new Article 18, entitled ‘Financial means test’ (document 5300/02). The Dutch proposal, concerning contribution out of income from employment was included. The German proposal, implying that a Member State could seize all income above a certain fixed threshold, did not find its way in this and later versions of provisions on financial contributions by asylum seekers. During the negotiations in February 2002 this Article was considerably shortened (a.o. replacing the general means test by the condition that the applicants do not have sufficient means to cover their basic needs, and deleting the reference to income from employment) and it was renumbered Article 17 (document 6253/02). Only three Member States made suggestions: Portugal and Greece pleaded for more reduction of the reception conditions, once an asylum seeker or his family member had been allowed access to the labour market. Germany proposed to integrate Article 17 in the general Article on material reception conditions.

Early March 2002, the Asylum Working Party examined the amended proposal based on drafting suggestions from the Spanish Presidency (document 6906/02). Parts of the former Article 17 were now included in Article 13, apparently following German suggestion.

In April 2002 on suggestion of Germany the words “and health care” were added in par. 3 of Article 13. Moreover, the words “for example if they have been working for a reasonable period of time” were added in par. 4, re-introducing an explicit link with participation in the labour market again (document 7802/02). This version of Article 13 of the amended proposal was accepted by Coreper and by the Council in 2002 and became part of the Directive adopted with unanimity on 27 January 2003.

In addition, the 2013 recast Directive now states that Member States can refuse or withdraw benefits if asylum-seekers have ‘concealed financial resources’ (Article 20 of the 2013 Directive). The CJEU, in its CIMADE and GISTI judgment, has ruled that Article 20 sets out an exhaustive list of grounds for reducing or withdrawing benefits.

Analysis

If this legislative history is combined with the general principles of EU law and the EU Charter, we conclude:

(1) The issue of financial contributions by asylum seekers in material reception costs from their own means was been discussed repeatedly during the negotiations on the Directive.

(2) This issue was discussed repeatedly also in relation to the access of asylum seekers to the labour market in the Member State and the income derived from such employment.

(3) The Directive allows Member States to impose a means test for access to material reception conditions, but this does not entail confiscation of assets. The test is not whether the asylum seeker has more than a certain fixed amount of money or assets, but whether the asylum seeker does have sufficient means to have a standard of living adequate for his health and to enable his subsistence.

(4) Since (a) the issue of financial contributions by asylum seekers in material reception costs is covered by the directive and (b) the Directive sets out minimum standards in order to avoid second movements between Member State (recitals 7 and 8), Member States are not allowed to apply less favourable rules only more favourable rules (see recital 15); the Court of Justice repeatedly held that Member States cannot introduce other conditions than those provided for in the EU Directive or Regulation, see the judgments in Ben Alaya, Koushkaki and Air Baltic. Also, by analogy with the CIMADE and GISTI ruling, the grounds in the Directive to refuse or regulate access to benefits are surely exhaustive.

(5) Article 13(3) allows Member States to make the grant of material reception conditions and health care subject to the condition that applicants do not have sufficient means to have a standard of living adequate for their health and to enable their subsistence. It follows that such decision to exclude an asylum seeker from material reception conditions can only be made after the Member State first has established that applicants have sufficient means to have a standard of living adequate for their health and to enable their subsistence in the Member State. In accordance with the general principle of proportionality in EU law, it is questionable whether a Member State could refuse any access to the benefits system, just because an asylum-seeker has a small amount of cash or valuables. Access should only be refused where the applicant either has an ongoing alternative source of funds, or the asylum-seeker has so much wealth that he or she could live off it for a considerable period of time.

(6) Article 13(4) allows Member States to require applicants to contribute to the cost of the material reception conditions and of the health care, when the applicants have sufficient resources. The conditions of paragraph 3 explicitly apply here as well. The Commission with regard to Article 19 of its proposal rightly stated: “Decisions on applicants’ contribution should be taken individually, objectively and impartially and reasons must be given if they are negative in order to make possible their review as accurate as possible.”

While, in the final version of the Directive this clause applies to the reduction or withdrawal of benefits, not the obligation to contribute toward costs, the general principles of EU law still require that national administrative decisions linked to EU law must be fair (see the CJEU’s YS and M and S ruling on asylum procedures, discussed here; and the Mukarubega and Boudjliba judgments on the return of irregular migrants, discussed here). This means that any decision on asylum-seekers’ contributions has to be an individual decision giving reasons, taking into consideration the individual situation of each asylum seeker.

Such decisions must also comply with other general principles of Union law, in particular the principle of proportionality, which means that any confiscation of property must be necessary to achieve a genuine government end. It is hard to see how it is necessary to confiscate property when a less severe measure (delaying or curtailing benefit payments by an equivalent amount, in accordance with the rules on a means test) could achieve the same objective. Again, the principle suggests that asylum-seekers should only be required to contribute where applicants either have an ongoing alternative source of funds, or have so much wealth that they could live off it for a considerable period of time.

It must also be possible to challenge any decision made by a national authority on confiscation, in accordance with Article 47 (the right to an effective remedy) of the EU Charter of Fundamental Rights.

(7) In conclusion: a national rule allowing authorities to confiscate all means of an asylum seeker above a fixed amount, irrespective of the individual circumstance on the grounds mentioned in point 4 and 6 above is not compatible with Union law.

(8) Of course, Denmark and Switzerland are not bound by the Directive, Denmark because of its opt-out and Switzerland because it is not a Member State. Ireland opted out as well. But all other Members State are bound by Directive 2013/33 and the UK is opted in and is bound by the original Reception Conditions Directive 2003/9.

*The paragraph on Germany was amended on 27th January 2016 to add further detail.
Barnard & Peers: chapter 26

JHA4: chapter I:5

Photo: Danish police officer and asylum-seeker

Photo credit: www.channelnewsasia.com

Annex

Legislative history of Article 13(3) and (4) of Directive 2003/9 = Article 17(3) and (4) of Directive 2013/33 on financial contributions by asylum seekers in reception costs

In the Commission’s proposal for the original 2003 Directive COM(2001)181 there was a separate Article 19 reading:

Article 19

Financial contribution

1. Member States may require applicants who can afford to do so to contribute to the cost of

their material reception conditions or to cover it. Decisions to provide material reception

conditions not free of charge shall be taken individually, objectively and impartially and

reasons shall be given.

2. Member States shall ensure that applicants have the right to bring proceedings before a court against the decisions referred to in paragraph 1 and that they have access to legal assistance.

The Explanatory Memorandum to this Article 19 read:

“This Article concerns the financial contribution applicants for asylum may be asked to

provide if they are provided with material reception conditions.

(1) This paragraph allows Member States to require applicants who can afford it to contribute

to the cost of their material reception conditions. The purpose is to meet the Council’s

concern regarding the requirement of “inadequate” resources of the applicants for

asylum. In any case Member States should ensure that applicants for asylum have the

possibility of being housed as even applicants with sufficient financial means might find

it impossible to find suitable housing. Decisions on applicants’ contribution should be

taken individually, objectively and impartially and reasons must be given if they are

negative in order to make possible their review as accurate as possible.

(2) In conformity with the Charter of fundamental rights (Article 47) and in line with the

case law of the Court of Justice, this paragraph ensures that the decisions taken according

to paragraph 1 can be reviewed by a judicial body (including an administrative judicial

body such as the Conseil d’Etat in France) at least in the last instance.”

The first reaction of Member States on this Article was in document 11320/01, p. 33:

“D/E/NL/P/S and UK: reference should be made to the general principle of the real

need of the applicant, which would lead to entitlement to material benefits.

D: some of the applicant's income should be protected in all cases.

NL: stipulate that if the applicant has a certain income, a contribution may be asked of him

to cover some or all of the costs.

D and UK: establish a general principle laying down that Member States may decide

whether or not the applicant requires material benefits.

L and A: make provision for the case in which an applicant is invited to stay in the territory

of a Member State by a national who, if applicable, has served as guarantor for the purpose

of obtaining a tourist visa. In this case, it should be possible to call on the national to

contribute to the costs.

A: reservation on the second sentence in that it creates an obligation to notify these

decisions in writing.

3 A and S: reservation on the financial aspects of legal assistance.

D and UK: a general provision on forms of appeal at the beginning of the Directive should

be sufficient.

In January 2002 the text of Article 19 was consolidated in a new Article 18, consolidating several provisions of the proposal (document 5300/02):

“Article 18 (consolidating Articles 14 bis, 15(4) and 19)

Financial means test

1. Member States may make the grant of all or some of the material reception conditions,

as well as the requirement that applicants and their accompanying family members

cover or contribute to the cost thereof, subject to a financial means test of applicants and

their accompanying family members in accordance with the provisions of this Article.

2. Member States may also reduce or withdraw material reception conditions within a

reasonable period after applicants or their accompanying family members commence an

employment activity in accordance with Article 13, applying the test established in

paragraph 1.

3. Applicants and their accompanying family members may be subject to one or more of

the measures provided for in paragraphs 1 and 2 when it is confirmed that they have

sufficient means.

4. Decisions under this Article shall be taken individually, objectively and impartially and

reasons shall be given.”

In February 2002 this Article was considerably shortened (a.o. deleting the means test and the reference to income from employment) and renumbered as Article 17, reading together with the footnote by Member States and the Commission (document 6253/02):

“Article 17 (formerly 18)1

Financial means criteria

1. Member States may make the grant of all or some of the material reception conditions subject to the condition that applicants do not have sufficient means to cover their basic needs.

2. If it transpires that an applicant had sufficient means to cover these basic needs at the time

when material reception conditions were being provided, then Member States may ask these

to refund.2

3. Decisions under this Article shall be taken individually, objectively and impartially and

reasons shall be given. 3

1 D : this provision should be placed at the end of Article 15.

2 P, supported by EL, suggested adding the following :

"3. Member States may also reduce or withdraw material reception conditions within a

reasonable period after applicants and their accompanying family members have been

allowed access to the labour market in accordance with Article 13, applying the test

established in paragraph 1.

4. In the cases referred to in paragraph 3, if they are not financially independent, Member

States shall grant them the food allowance mentioned in Article 8 and access to basic

social care."

(present paragraph 3 would become 5).

3 Cion : reinsert a paragraph which was included in 12839/01 ASILE 49 (former

Article 14A(6)) :

"Member States shall ensure that before the decisions referred to in paragraph 2 are notified to

the applicants for asylum [and their accompanying family members] the other Articles of

Chapter III of this Directive are applied".

At its meeting on 5 and 6 March 2002, the Asylum Working Party examined the amended proposal based on drafting suggestions from the Spanish Presidency, document 6906/02. Parts of the former Article 17 were now included in Article 13, apparently following the suggestion made before by Germany with regard to that former Article 17.

Article 13

General rules1

1. Member States shall ensure that material reception conditions are available to applicants when they make their application.

2. Member States shall make provisions on material reception conditions to ensure a standard of living adequate for the health and the well-being of applicants.

Member States shall ensure that standard of living is met in the specific situation of persons

who have special needs, in accordance with Article 17, as well as in relation to the situation of

persons who are in detention.

3. Member States may make the grant of all or some of the material reception conditions subject to the condition that applicants do not have sufficient means to have a standard of living adequate for their health and well-being.2

4. Member States may require applicants to cover or contribute to the cost of the material

reception conditions and of the health care provided for in this Directive, pursuant to the

provision of paragraph 3, when the applicants have sufficient resources.

5. Material reception conditions may be provided in kind, or in the form of financial allowances or vouchers or in a combination of these provisions.

Where Member States provide material reception conditions in the form of allowances or

vouchers, their amount shall be set in accordance with the principles set for in this Article.

1 A : a general rule providing for exceptions to be applied by Member States in extraordinary

situations should be introduced.

2 B, D, F and P : the term "well-being" is s too vague and should be defined.

NL, S, UK : say "to enable their subsistence" instead of "to have a standard of living adequate

for their health and well-being".

In April 2002 on suggestion of Germany the words “and health care” were added in par. 3. Besides the words “for example if they have been working for a reasonable period of time” were added in par. 4, introducing an explicit link with participation in the labour market again (document 7802/02).

This version of Article 13 of the amended proposal was accepted by Coreper and by the Council. It became part of the Directive adopted on 27 January 2003

The Slovak Challenge to the Asylum-Seekers’ Relocation Decision: A Balancing Act

Zuzana Vikarska, Post-graduate research student, University of Oxford*

*This post is written in the author's academic capacity and does not represent the view of any of her past, present or future employers

On Wednesday 2 December, Slovakia filed an action for annulment to the Court of Justice (pending case C-643/15), challenging the legality of the Asylum-Seekers Relocation Decision (“the contested decision”) adopted on 22 September 2015. Just one day later, on Thursday 3 December, Hungary did the same (pending case C-647/15).

Steve Peers has already discussed some of the (anticipated) legal arguments against the validity of the challenged EU measure in his recent blog-post. In the following post, I briefly discuss the arguments on which the Slovak government’s case rests and I explore whether they are likely to succeed before the Court of Justice. Unfortunately, I do not have access to the full text of the Slovak action, nor to the arguments of the Hungarian government. I am therefore only commenting on the summary of the six arguments, which has been published on the webpage of the Slovak Ministry of Justice.

1. Division of competences and institutional balance

“First plea in law, alleging breach of Article 68 TFEU, as well as Article 13(2) TEU and the principle of institutional balance: The Council by adopting the contested decision exceeding the previous guideline of the European Council, being therefore in contradiction to the mandate of the latter, infringed Article 68 TFEU as well as Article 13(2) TEU and the principle of institutional balance.”

In its first claim, the Slovak government argues that the measure was adopted in contradiction to the guidelines set by the European Council, an institution made up of heads of state and government (as distinct from the Council, made up of national ministers),  whose role is to “define the general political directions and priorities” of the Union (Article 15 TEU), as well as to “define the strategic guidelines for legislative and operational planning within the area of freedom, security and justice” (Article 68 TFEU). Let us therefore have a look at the “strategic guidelines” determined by the European Council in its most recent meetings.

On 23 April 2015, the European Council stated that there was a need to “consider options for organising emergency relocation between all Member States on a voluntary basis” and to “set up a first voluntary pilot project on resettlement across the EU, offering places to persons qualifying for protection.” Furthermore, at its meeting of 25 and 26 June, the European Council agreed on “the temporary and exceptional relocation over two years from the frontline Member States Italy and Greece to other Member States of 40.000 persons in clear need of international protection, in which all Member States (except the UK) will participate,” as well as “the rapid adoption by the Council of a Decision to this effect; to that end, all Member States will agree by consensus by the end of July on the distribution of such persons, reflecting the specific situations of Member States.” No particular conclusions have been adopted as to the 120.000 further asylum-seekers whose situation forms the subject matter of the contested relocation decision.

a. European Council promising “that no quota would be adopted”?

In his recent explanation of this first plea, the Slovak Prime Minister said that the European Council had allegedly “stated that no quota would be adopted” and that the Council of Ministers had disrespected this agreement. Having read the conclusions of the European Council summarised above, the Prime Minister’s statement seems to be rather inaccurate. The Council has not acted contrary to the European Council’s conclusions, which makes the first part of the first claim moot.

Hypothetically, however, if there truly was a clear conflict between the conclusions of the European Council and the actions of the EU lawmakers (the Commission, the Parliament, and the Council), such situation could indeed raise some interesting questions concerning the institutional balance in the Union. What if the European Council had expressed a clear consensus that relocation of asylum-seekers was an undesirable, or even unacceptable way of addressing the current crisis, and despite such consensus, the Commission would subsequently propose a relocation measure (like the one adopted on 22 September), which would be passed by the Council and the Parliament?

It is necessary to realise that the conclusions of the European Council are endowed by political, rather than legal significance (see Article 15(1) TEU). That being said, if the Commission acted in direct opposition to the “general political directions” (Art 15 TEU) and “strategic guidelines” (Art 68 TFEU) adopted by the European Council, such action could violate the principle of institutional balance, since it would deprive the European Council’s decisions and conclusions of any effect. This shows that although the European Council’s conclusions are not legally binding, they should be endowed with political significance, therefore requiring the Commission either to act in line with them, or to provide an elaborate and politically acceptable explanation of any other action.

Still, this analysis remains hypothetical, since the quotations above suggest that the draft of the contested decision did not disrespect any of the political directions outlined by the European Council in the past couple of months.

b. European Council requiring that the vote in the Council be unanimous?

The second interesting question concerns the European Council’s wish that the relocation decision be reached by consensus, as expressed in the conclusions of 25 and 26 June. It is important to point out that this wish only concerned the first 40,000 asylum-seekers, and therefore remains irrelevant for the validity of the contested decision. That makes the second part of the first argument moot as well. However, let us see (once again, hypothetically) whether the European Council could, by its (political) decision, require a different threshold for adopting a decision in the Council, in contrast with the (legal) threshold required by the Treaties.

What happens if the procedure envisaged by Article 78(3) TFEU requires a qualified majority vote in the Council (which it does), while the European Council imposes a requirement of a unanimous vote? While the Treaties remain silent about a change of procedures from QMV to unanimity, they do include a provision governing a move in the opposite direction: from unanimity to QMV. Pursuant to Article 48(7) TEU, “where [TFEU] or Title V of [TEU] provides for the Council to act by unanimity in a given area or case, the European Council may adopt a decision authorising the Council to act by a qualified majority in that area or in that case.” A change from unanimity to QMV is therefore possible, but it comes with significant procedural guarantees, such as obtaining the consent of the European Parliament and giving national parliaments 6 months to block such action. It follows that changes of Treaty voting mechanisms require more than just a unanimous decision of the European Council. Furthermore, while a change from unanimity to QMV is at least foreseen by the Treaties, a change in the opposite direction is not. That leads to a conclusion that such an instruction given by the European Council would only have political significance, but would remain legally irrelevant.

Therefore, even if the requirement of a unanimous vote extended to all legal measures adopted under Article 78(3) TFEU, quod non, I hold the opinion that such an agreement would remain a gentlemen’s agreement, rather than a legally binding requirement. Therefore, the second part of the first plea put forward by the Slovak government does not seem to offer a good reason for the annulment of the contested decision, either.

2. Legislative vs. non-legislative acts

“Second plea in law, alleging breach of Article 10(1 and 2) TEU, Article 13(2) TEU, Article 78(3) TFEU, Article 3 and 4 of the Protocol (No.1) and Article 6 and 7 of the Protocol (No.2), as well as the principles of legal certainty, representative democracy and institutional balance: Such kind of act as the contested decision cannot be adopted on the basis of Article 78(3) TFEU. Regarding its content, the contested decision is in fact of a legislative character and should therefore be adopted by legislative procedure, which, however, is not foreseen in Article 78(3) TFEU. By adopting the contested decision on the basis of Article 78(3) TFEU, the Council not only breached the latter, but it also interfered with the rights of national parliaments and the European parliament.”

This second plea opens a very interesting question of the nature of “legislative acts” in EU law: what does a measure need in order to be “of a legislative character”? The Slovak government seems to invoke a material understanding of a legislative act, suggesting that some things are too important to be governed by a non-legislative act. This, however, is not how EU law seems to work. The concept of a legislative act seems to be a formal one, as follows from Article 289(3) TFEU: “Legal acts adopted by legislative procedure shall constitute legislative acts.”

Although EU law surely doesn’t work with a material concept of “legislative acts”, it remains unclear what a legislative act really is. Two formal interpretations are still feasible: a narrow textual one and a procedural one.

According to a narrow textual interpretation, favoured e.g. by Lenaerts, by Craig & De Burca, as well as by Advocate-General Kokott in her opinion in C-583/11 Inuit Tapiriit Kanatami, the (non-) legislative nature of an act depends on one and only factor: whether its legal basis refers to a “legislative procedure” in its wording or not. Pursuant to this interpretation, an asylum measure adopted under Article 78(3) TFEU will be a non-legislative act, while a measure on diplomatic protection adopted under Article 23(2) TFEU will be a legislative act, although the procedure of their adoption is exactly the same: a proposal from the Commission and a qualified majority vote by the Council, after consulting the European Parliament. This interpretation seems to be supported by Article 289(2) TFEU, which states that special legislative procedure is only used “in the specific cases provided for by the Treaties,” which simply isn’t the case for measures adopted under Article 78(3) TFEU. Another argument for this narrow textual interpretation is the practical functioning of the EU institutions: Eur-Lex categorises the contested decision as an “NLE”, which stands for “non-legislative procedure”. On a practical level, this textual interpretation thus seems to be a well-established one.

The third thinkable alternative is a procedural interpretation (that seems to be preferred e.g. by Chalmers), according to which an act is to be labelled as “legislative” if both the Council and the Parliament are involved in its adoption, no matter whether the specific legal basis speaks of a “legislative procedure” or not. There are in fact a number of solid arguments for this broader interpretation of legislative acts. Firstly, Article 289(3) TFEU (technically) does not say anything about the nature of acts that are not adopted by a legislative procedure. In the terminology of formal logic, Article 289(3) is an implication; therefore, turning it around (and stating that “legal acts not adopted by legislative procedure shall constitute non-legislative acts”) would be a logical flaw. Secondly, the endorsement of the textual interpretation would lead to a situation where entire areas of EU law (such as competition law!) would not contain any legislative measures whatsoever, which is rather curious. Thirdly, the textual interpretation would have vast consequences for the procedural standing of non-privileged applicants under Article 263(4) TFEU who would be able to challenge a much broader category of acts without having to establish individual concern. Fourthly, if we were to link the legislative nature of a measure with its democratic legitimation, the procedural interpretation would make much more sense than the textual one. Yet, despite all these arguments (and despite the hopes of some academics, as well as practitioners), it seems that (at least at present), the narrow textual interpretation of “legislative acts” seems to prevail.

Be that as it may, both the narrow textual interpretation and the procedural interpretation are formal in their nature. It makes no sense to claim that the measure at stake is “of a legislative character” and that Article 78(3) TFEU is therefore not a correct legal basis for such measure, if it cannot lead to the adoption of a legislative act. The conditions of the said article have been fulfilled both materially (emergency situation, sudden inflow of third country nationals, benefit to the Member States concerned) and procedurally (proposal from the Commission, consulting the Parliament, QMV in the Council). Therefore, the second plea of the Slovak government seems to be unfounded as well.

3. Procedural conditions in case the contested decision is indeed a legislative act

“Third plea in law, alleging breach of essential procedural requirements governing the legislative procedure, established in Article 16(8) TEU, Article 15(2) TFEU,  Article 78(3) TFEU, Article 4 of the Protocol (No.1) and  Article 6 and 7(1 and 2) of the Protocol (No.2), as well as Article 10(1 and 2) TEU, Article 13(2) TEU and the principles of representative democracy, institutional balance and sound administration: If the Court of Justice contrary to the submissions of the Slovak Republic within the second plea in law came to the conclusion that the contested decision was adopted by legislative procedure (quod non), the Slovak Republic in the alternative alleges the breach of essential procedural requirements, established in Article 16(8) TEU, Article 15(2) TFEU,  Article 78(3) TFEU, Article 3 and 4 of the Protocol (No.1) and  Article 6 and 7 (1 and 2) of the Protocol (No.2), as well as Article 10(1 and 2) TEU, Article 13(2) TEU and the principles of representative democracy, institutional balance and sound administration. In particular, the requirement of public discussion and voting within the Council was not respected, the participation of national parliaments in the process of adopting the contested decision was limited and the requirement of consultation of the European parliament was breached.”

This is where the distinction between a textual and a procedural reading of “legislative acts” becomes relevant. If the Court endorses the narrow textual reading of the concept (which is, in my opinion, more probable), then the classification of the contested decision as a non-legislative act will be confirmed and the procedural guarantees invoked by the Slovak government will be inapplicable. Yet, should the Court wish to reassess the notion of “legislative acts” and change it to a procedural one, then the contested decision will have to be seen as a legislative act that has not fulfilled the requirements listed above, namely public voting in the Council (Article 16(8) TEU) and participation of national parliaments (Protocols 1 and 2), which would lead to its annulment.

4. Repeated consultation by the European Parliament

“Fourth plea in law, alleging breach of essential procedural requirements, established in Article 78(3) TFEU and Article 293 TFEU, as well as Article 10(1 and 2) TEU, Article 13(2) TEU and the principles of representative democracy, institutional balance and sound administration: Before adopting the contested decision, the Council substantially amended the proposal of the Commission in several ways. When doing that, the Council breached essential procedural requirements, established in Article 78(3) TFEU and Article 293 TFEU, as well as Article 10(1 and 2) TEU, Article 13(2) TEU and the principles of representative democracy, institutional balance and sound administration. It is because the European parliament was not properly consulted and the Council did not decide on the amendments of the Commission’s proposal unanimously.”

This fourth point has already been addressed by Steve Peers in his recent post and I agree that this indeed seems to be the strongest procedural argument against the validity of the contested decision. The original Commission draft concerned not just Italy and Greece, but also Hungary, which in the final version of the contested decision refused to be included in the group of external border States. As argued by Steve, this is a change of an essential element, which probably should have been subjected to a repeated consultation by the European Parliament. Possibly, the emergency nature of the contested decision could serve as an argument against an obligation to re-consult, which is, admittedly, a rather weak argument. However, as Steve has already argued, even if this argument were to succeed, it would only lead to a procedural redress (meaning that the outcome would be the same even if the European Parliament were to be re-consulted) while the contested decision would probably remain in force in the meantime. It therefore seems that the fourth plea will not suffice either to have the contested decision annulled.

5. The ‘provisional’ nature of the contested decision

“Fifth plea in law, alleging breach of Article 78(3) TFEU by not fulfilling the conditions for its applicability: In the alternative to the second plea in law, the Slovak Republic argues that there was a breach of Article 78(3) TFEU because the conditions for its applicability, which concern the provisional character of the measures adopted, as well as the emergency situation caused by a sudden inflow of nationals of third countries, were not fulfilled.”

The fifth plea can be seen from two points of view again: on the one hand, “the provisional character of the measures” can be assessed from a formal viewpoint, looking at the time period for which the measure remains applicable. On the other hand, the plea invites the Court to assess whether the EU finds itself in an “emergency situation”, facing a “sudden inflow” of migrants, which opens up a more substantive analysis of the contested measure.

As for the more formal part of the argument, the provisional character of the measures could be derived from the fact that the contested decision is limited in time - it only applies until 26 September 2017. Is a provision that remains applicable for two years “provisional” enough? The pre-Lisbon version of this provision was Article 64(2) TEC, which limited the duration of such provisional measures to six months. Compared to this past requirement, two years seem to be quite long. On the other hand, the current wording of the Treaties imposes no time limit whatsoever, so two years cannot be seen as a priori illegal. (Yet, this will be very similar to the data retention case: if 6 months are fine and 2 years are too much, how do we feel about one year? The criteria for assessment are not clear.) Still, the contested decision’s provisional character could also be derived from the fact that it only applies to those asylum-seekers who are already present on the European Union territory or who are likely to come in the very near future, while a long-term, sustainable solution is being sought by a legislative proposal, which is currently in the legislative process and which will presumably take quite some time.

As for the more substantive analysis, it is rather difficult to predict what criteria will be chosen by the Court to assess whether the EU really finds itself in an emergency situation. The current migrant crisis is undoubtedly one of the most serious crises that the EU has faced in the past couple of decades, but it remains to be seen how the Court tackles the interpretation of the notions in Article 78(3) TFEU.

6. Principle of proportionality

“Sixth plea in law, alleging breach of the principle of proportionality: The contested decision is manifestly incompatible with the principle of proportionality, as it is manifestly neither suitable nor necessary to achieve the desired end.”

The principle of proportionality can certainly serve as a very strong argument – it can open the door for a thorough assessment of the very core of any measure by the Court of Justice. Obviously, this assessment is much more likely to be political than legal, with the Court enjoying very wide discretion in balancing the values at stake. It is a huge pity that the Slovak government has not worked out this sixth plea in more detail, since any chance of success of this action is potentially hidden in this last argument. The action could have put forward an argument that the contested measure is not suitable to reach the desired aim (i.e. to relieve the burden borne by the external border states and to show “solidarity and fair sharing of responsibility between the Member States,” as outlined in the decision’s preamble), since relocating people is too difficult and their further movement is too unpredictable. Furthermore, under the heading of necessity, it could have been argued that a less restrictive measure could have been adopted in order to solve the problem, such as denying entry to migrants (although that could violate the basic principles of EU law, particularly EU asylum law), triggering the regime of the Temporary Protection Directive, or other forms of help (e.g. financial, material or personal help) to the affected states. Last but not least, the proportionality argument could have been coupled with other quasi-political arguments, such as a claim under the national identity clause in Article 4(2) TEU.

It can be concluded that the Slovak government has missed a great chance to actually make a point under the sixth plea, since a mere claim of manifest incompatibility with the principle of proportionality does not give the Court anything to build on. That being said, if the Court wants to annul the measure, it can always use this plea to build a strong argumentation under the principle of proportionality.

Conclusion

Based on the analysis above, it seems to me that the first three pleas have almost no chance of success (unless the Court decides to reinvent a new understanding of “legislative acts”), the fourth and the fifth pleas raise interesting issues that could lead to minor interferences, such as the need to re-consult the Parliament, a limitation of the contested decision’s application to a shorter period of time, or a very narrow interpretation of the concepts of “emergency situation” or “sudden influx of migrants”. The sixth plea, however, opens Pandora’s box and invites the Court to exercise broad discretion in its assessment of the current solution to the migration crisis. While proportionality leaves most scope for the creativity of the Court, it is hard to see it replacing its own judgment for the judgment of the Member States, especially in a situation where good, plausible alternatives are quite hard to find.

Barnard & Peers: chapter 3, chapter 5, chapter 26

JHA4: chapter I.5

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