EU law and genetic mutations: does a recent CJEU ruling show an irrational fear of mutation?

A recent CJEU judgment has made it more complicated to develop plants which have been cross-bred by mutagenic breeding. Two contributions to the blog (from Kathleen Garnett and Felix Beck) examine the judgment from different angles.  

Confédération Paysanne & Others, Case C-528/16: GMO cabbage or plain old cabbage?

Kathleen Garnett, Consultant and writer on EU government and law

In September 2016 Stefan Jansson, professor in Plant Cell and Molecular Biology at Umeå University in Sweden sat down to a meal of cabbage and pasta, which he shared with a good friend. Prof Jansson had grown the cabbage successfully in the back of his garden in Sweden using conventional cottage-garden husbandry. He claimed it was a historic first – no one else on planet earth (to the best of his knowledge) had ever eaten a CRISPR Cas-9 cabbage. He obtained the mutagenic cabbage seed from a scientist abroad (who preferred to stay anonymous).

Two years on and Prof Jansson along with many of his colleagues in the scientific community are hugely disappointed with the European Court of Justice’s ruling on mutagenic plants, which came out on 25 July 2018. Commenting on his cabbage in Nature Jansson noted “I took a photo yesterday, and I took another after the ruling. It’s still the same plant. Yesterday it wasn’t a GMO, and now it’s a GMO. I’m a bit curious what I have to do. Do I have to remove it?”

The CJEU’s ruling in the Confédération Paysanne & Others case has led to derision within the scientific community. Some have called the decision “catastrophic”, others “absurd". In this piece I set out the exact legal reasoning of the judgment. Since this case concerns a very specific form of plant breeding technique called “mutagenesis”, I briefly explain what is meant by mutagenesis in order to place the case in context.

Background on transgenesis and mutagenesis

The two most common methods for scientist to change the DNA structure of plants through artificial means are transgenesis and mutagenesis.

Transgenesis occurs when scientists transfer a gene from one species into the genome of another species. This happens through highly sophisticated, scientific techniques, such as the use of a gene gun or through the use of soil bacteria.

Cross-breeding between species does not occur in nature. A dog cannot mate with a cat and produce off-spring because they are from a different species. Similarly, in nature an apple cannot cross-breed with a grass because of the species barrier. Species which are closely related can produce off-spring but the off-spring are infertile – as is the case with the mule.

Through transgenesis, however, bio-engineers have been able to cross the species barrier by inserting the DNA from one species into another species to produce crops with enhanced traits that are capable of replicating. Transgenic techniques (although not defined in the Directive as such) are described in Annex I A, Directive 2001/18 (the EU law on GM foods) as:

-          recombinant nucleic acid techniques involving the formation of new combination of genetic material by the insertion of nucleic acid molecules produced by whatever means outside of an organism, into any virus, bacterial plasmid or other vector system and their incorporation into a host organism in which they do not naturally occur but in which they are capable of continued propagation;

-          direct introduction into an organism of heritable material prepared outside the organism including micro-injection, macro-injection and micro-encapsulation;

-          cell fusion (including protoplast fusion) or hybridisation techniques where live cells with new combinations of heritable genetic material are formed through the fusion of two or more cells by means of methods that do not occur naturally. (emphasis added in all cases).

In the US many maize, soya-beans, corn and cotton seeds are grown using this technology. Over 40% of US agricultural land cultivates transgenesis crops. In the EU there is only one commercial variety of transgenesis crop – the Mon 819 – which was approved in 1998 before the 2001 GMO Directive. Although cultivation of GMO crops in the EU is low to non-existent the EU does, nevertheless, import huge amounts of GMO soya beans for animal feed from over-seas.

By contrast, mutagenesis does not require the transfer or insertion of foreign DNA but it can alter the genetic make-up of a living organism. Mutation is generally defined as, “a process by which the genetic information of an organism is changed in a stable manner, resulting in a mutation.” More simply put, “having the ability to cause a permanent change in an organism’s genes”.

Mutations, as some of us may remember from our school biology classes, can occur spontaneously and randomly in nature every few generations or so. Mutations can also occur spontaneously as a result of background influences such as errors in DNA replication, environmental chemicals and radiation. Since the 1960s a number of scientists have been looking to induce rapid, unnatural mutation in plants in order to improve certain plant characteristics by, for example, making citrus fruit sweeter, with fewer seeds and thinner skins as with the KinnowLS.

I would like to stress at this stage that “mutant” plant is the scientific term for these particular novel plants. It is not an attempt to use alarmist terminology for the sake of a “click-bait” headline. It is the official term used for these novel plants by scientists themselves. Indeed, the international organisation responsible for cataloguing these novel plants (the FAO/IAEA) refers to its list of mutagenic plants as “The Mutant Variety Database” with applicants asked on the registration form to list their new “mutant” variety.

Conventional mutagenesis

In 2001 mutagenesis relied on two primary methods to induce rapid, forced, plant mutation: the use of mutagenic chemicals, or the application of ionizing radiation. For the purposes of this piece I shall refer to these two specific forms of technology as “conventional” mutagenesis.

When the GMO Directive was drafted the EU opted to exempt conventional plant mutagenesis from the Directive (2001/18/EC, Annex 1 B), presumably because it was a form of technology that has been “conventionally used” and has a “long safety record” (recital 17, Directive 2001/18/EC). As the Flemish Institute for Biotechnology states, conventional, in vito, mutagenesis creates thousands of mutant plants the vast majority of which are useless in that they either show undesirable product defects or are simply non-viable. Only a few new plants bred out of conventional mutagenesis show enhanced traits. It is the latter group of mutant plants which, in 2001 were exempted from the GMO Directive. For the past 17 years those working on classical mutagenesis have placed over 46 varieties of mutant herbicide resistant sunflower and six varieties of mutant herbicide resistant rape seeds on the EU catalogue of common plant varieties without having to undergo the stringent risk assessment procedures set out in the GMO Directive.

Novel mutagenesis

In the past decade, technological advances in mutagenesis have ensured that the technology no longer relies on either mutagenic chemicals or ionising radiation to affect artificial mutation in plants. A number of novel, directed and very precise technologies have emerged in the field of mutagenesis, which include:

-          site-directed nucleases (SDN) (including ZFN-1/2/3 and CRISPR systems);

-          oligonucleotide directed mutagenesis (ODM);

-          cisgenesis;

-          RNA-dependent DNA methylation (RdDM);

-          Grafting (non-GM scion on GM rootstock);

-          reverse breeding; and

-          agro-infiltration.

An amateur gardener’s shed may have a paint brush with which to brush the pollen from one plant onto the pistil of a sexually compatible plant, producing a hybrid that carries genes from both parents. In the case of novel, directed mutagenesis, however, this would be impossible. It requires highly sophisticated scientific technique to create a novel seed using these methods. No hobby, amateur gardener would have the sophisticated equipment needed to create a CRISPR Cas-9 cabbage seed. The eye alone is unable to distinguish the difference between a CRSIPR Cas-9 cabbage on the one hand and a natural, conventional cabbage on the other – only scientists using specialized DNA profiling would be able to identify the difference. Thus, although growing plants from mutagenic seeds can be done in a traditional, conventional manner (as Prof Jansson proves) the production of the seed is all but traditional or conventional.

Questions referred to the CJEU

In 2015 a small, not-for-profit organisation Confédération Paysanne together with eight other associations concerned with the protection of the environment and the dissemination of GMO information asked the then French Prime Minister to ban the cultivation and marketing of herbicide tolerant rape varieties created through the use of classical mutagenic techniques. Advocate General Bobek summarises the applicant’s concerns as follows:

“For the Applicants the use of herbicide resistant seed varieties obtained by mutagenesis carries a risk of significant harm to the environment and to human and animal health. It leads to an accumulation of carcinogenic molecules or endocrine disruptors in cultivated plants intended for human or animal consumption. The applicants refer, moreover, to the risks of unintentional effects, such as undesired or off-target mutations on other parts of the genome. They consider that this is the result of the techniques employed when modifications of the genome takes place in vitro and for the regeneration of plants from the cells thus modified.”

The French Prime Minister refused their request, so the applicants appealed to the French Conseil d’État. Feeling that this was a matter of EU interpretation the Conseil d’État referred the case to the CJEU asking, in summary, whether plants created as a result of novel, directed mutagenesis (i.e. those developed post 2001):

-          fall under the definition of a GMO as set out in Article 2, Directive 2001/18/EC, Article 2(2) Directive 2001/18 defines "genetically modified organism (GMO)" as “an organism, with the exception of human beings, in which the genetic material has been altered in a way that does not occur naturally by mating and/or natural recombination”;

-          are exempted from the impact assessment and traceability measures required of transgenic GMO’s in Directive 2001/18/EC; my review in this post focuses on these first two questions which have caused most controversy in the scientific community;

-          constitute GMO’s within the meaning of Article 4 of the Directive 2002/53/EC establishing a European common catalogue of agricultural plant species varieties;

-          constitute a harmonising measure prohibiting member states to all or some of the obligations laid in the GMO Directive – or do member states have some discretion to set the regime for organisms obtained by mutagenesis; and

-          fall under the precautionary principle guaranteed by Article 191 (2) [TFEU]?

Advocate General Bobek’s Opinion

In January of this year A.G. Bobek took a narrow interpretation of the GMO Directive. He agreed that novel, directed mutagenesis techniques fall under the definition of a GMO (Opinion at para 56) - but they are nevertheless exempted from the precautionary principle and the other stringent requirements set out in 2001 by virtue of the Annex I B exception (at para 56 and at para 81).

In Bobek’s opinion, the EU intended to exclude all forms of mutagenesis from the GMO Directive - past, present and future.  Bobek opined that in 2001 the EU understood that technology does not stand still and that its decision to exempt “mutagenesis” from the Directive’s obligations would apply to all future mutagenic technology regardless of novel techniques.

“The Applicants and several other interested parties have, to a great extent, relied on recital 17 to reach the conclusion that the EU legislature only intended to exempt safe mutagenesis techniques. I cannot agree. Neither the text, nor the historical context, nor the internal logic of the GMO Directive supports that proposition.” (at para 90 and at para 91).

The GMO Directive referred to transgenic GMOs only through Annex I A and as such it is only that sort of plant breeding to which the Directive applies. Had the intention in 2001 been to include all new plant breeding techniques in the Directive’s stringent obligations and requirements, the legislature would not have created the Annex I B exemption referring specifically to mutagenesis. In short, all mutagenic plants – both conventional and novel are exempt from the stringent requirements set out in the 2001 GMO Directive. As a result, mutant plants could be placed on the European catalogue of common agricultural plant varieties without the need for applying the GMO requirements set out in the Directive establishing the catalogue. In answer to the harmonisation question Bobek stated that the 2001 GMO Directive does not preclude member states from adopting measures governing mutagenesis, provided that, “in so doing they respect the overarching obligations arising from EU law.” (para 108 ff; sufice to say the CJEU agreed with this part of the Opinion).

CJEU Findings

The CJEU judgment diverged significantly from that of Bobek’s opinion. 

The CJEU ruled:

“Article 2(2) of Directive 2001/18 must be interpreted as meaning that organisms obtained by means of techniques/methods of mutagenesis constitute GMO’s within the meaning of that provision.” CJEU, Judgment, 25 July 2018, C-528/16, (para 54).

To recall, the 2001 Directive on the deliberate release into the environment of GMO’s defines a GMO as “…an organism, with the exception of human beings, in which the genetic material has been altered in a way that does not occur naturally by mating and/or natural  recombination.” Article 2 (2) Definitions 2001/18/EC.

Applying this definition to both transgenic and mutagenic techniques the CJEU rules. “…those techniques/methods alter the genetic material of an organism in a way that does not occur naturally, within the meaning of that provision. It follows that organisms obtained by means of techniques/methods of mutagenesis must be considered to be GMOs within the meaning of Article 2 (2) of Directive 2001/18”  (CJEU, para 29-30). (Emphasis added).

The CJEU further decided that although mutagenesis is not listed as a GMO in Annex I A this does not mean that novel, directed mutagenic techniques should not fall under the definition of GMO’s. The use of the word “inter-alia” in Annex I A suggests “the list of genetic modification techniques in that part is not exhaustive. Consequently, the list cannot be regarded as excluding genetic modification techniques other than those to which it specifically refers.” (CJEU, para 35).

“…only organisms obtained by means of techniques/methods of mutagenesis which have conventionally been used in a number of applications and have a long safety record are excluded from the scope of the directive.” (CJEU, para 54).

Here the CJEU turns to the Article 3(1) exemptions listed in Annex I B.

Firstly, the mutagenic exemption must be interpreted strictly. The Court here refers to its finding in Białowieża Forest (Commission v Poland) C-441/17, which itself builds upon a trail of precedent in the application of the Habitats Directive. Arguably the first in that line of authority, Case C-239/04 Commission v Portugal, at 35 simply observes the need for strict interpretation of exemptions from general protective regimes. However, it would not be far-fetched to say that the general principles of EU environmental law, in particular the principle of high level of environmental protection and the principles of prevention and precaution, play a role in that approach.

The need for strict interpretation having been established, the Court still required further guidance on how exactly that interpretation is to proceed. The wording of the provisions evidently serves as a first guidance principle. Here, the Directive is not of much help: at 43: the wording of Article 3(1) read in conjunction with the Annex does not on its own provide any conclusive guidance as to the types of techniques /methods that the EU legislature intended specifically to exclude from the scope of the Directive.

Consequently, the CJEU decides to examine the exemption contextually: ex multi: Pinckernelle, C-535/15. The context in which the exclusion is made is clarified in particular by recital 17 of the Directive, which states verbatim ‘this Directive should not apply to organisms obtained through certain techniques of genetic modification which have conventionally been used in a number of applications and have a long safety record.’ It is not at all surprising therefore that the Court does not extend the exemption to those techniques which do not so qualify: at 47: ‘the referring court is called upon to rule, in particular, on the techniques /methods of directed mutagenesis involving the use of genetic engineering which have appeared or have been mostly developed since Directive 2001/18 was adopted and in respect of which the risks for the environment or for human health have not thus far been established with certainty.

The Court further notes at para 48 that what these techniques purport to do must be taken at face value:

‘…the direct modification of the genetic material of an organism through mutagenesis makes it possible to obtain the same effects as the introduction of a foreign gene into that organism and, secondly, that the development of those new techniques/methods makes it possible to produce genetically modified varieties at a rate and in quantities quite unlike those resulting from the application of conventional methods of random mutagenesis.’ (emphasis added)

This is then where the precautionary principle firmly kicks in, again with reference to the recitals of the Directive: at 49:

…living organisms, whether released into the environment in large or small amounts for experimental purposes or as commercial products, may reproduce in the environment and cross national frontiers, thereby affecting other Member States. The effects of such releases on the environment may be irreversible. In the same vein, recital 5 of that directive states that the protection of human health and the environment requires that due attention be given to controlling risks from such releases.

At 50:

‘Furthermore, it has been emphasised, in recital 8 of that directive, that the precautionary principle was taken into account in the drafting of the directive and must also be taken into account in its implementation. Emphasis is also placed, in recital 55 of Directive 2001/18, on the need to follow closely the development and use of GMOs.’

The Court need not but repeats at 50 the perfectly logical chain of interpretation that leads to its conclusion: recital 17 explicitly justifies the exemption for mutagenesis by referring to the safety record of conventional mutagenesis. Article 4(1) emphasises the precautionary approach; such approach cannot support inclusion in the exception for new techniques/methods of mutagenesis which have appeared or have been mostly developed since Directive 2001/18 was adopted.

The impact of the Judgment

The ruling is significant for many reasons, primarily because the Directive is no longer restricted to the insertion of foreign DNA into the genome of a living species using the transgenesis technique. Any artificial modification of a plant using novel, directed mutagenesis must also apply the stringent obligations and requirements set out in Directive 2001/18.

Secondly, the terminology used in the ruling opens up the door to many unanswered legal questions. There is enough meat in this judgment to conclude that its reasoning extends not just to transgenic and mutagenic plants but to all forms of novel plant breeding techniques, which are likely to emerge in the foreseeable future.

Consider, for example, the repeated references in Confédération Paysannes to “naturally occurring”, “conventional use”, “at a rate and in quantities quite unlike those resulting from the application of conventional methods” and “long safety record”. The CJEU is at pains to point out that these are not unimportant words to be dismissed as irrelevant when determining the Annex I B exemption. Rather, the judges rule that these terminologies have deliberately and intentionally been woven into the very fabric of the 2001 Directive in order to distinguish them from novel, artificial techniques.

Along these lines, some argue, not unreasonably, that the law should apply to conventional mutagenesis itself (the very technique the Directive and this judgment does exempt) given that the use of mutagenic chemicals and ionising radiation is hardly a “naturally occurring” technique albeit in 2001 it was considered “conventional”. All of this begs the question how much Confédération Paysannes will apply to other novel plant breeding techniques which are sure to emerge in the coming years? If yes, is it even possible to define what is meant by “conventional use”?  Does conventional use refer to ten years, twenty years or five months? If the law understands what “naturally occurring” means is it possible to deduce a definition of “artificial”, “induced” and “forced” technique? All of these considerations could have wider implications on the commercialisation of the EU’s biotechnology policy in the months and years ahead.

Further, unlike AG Bobek, who took a very narrow interpretation of the Annex I B exemption, the CJEU took a far broader approach to the questions referred to it by the Conseil d’Etat. They did so by placing greater emphasis on the Directive’s over-arching objective namely to protect human health and the environment. By focusing on the potentially “irreversible” effect of the release of a mutant plant in the environment the CJEU pulls the law on mutagenic plants – potentially all new plant breeding techniques – firmly back into the orbit of the Directive’s original intention and purpose namely to protect human health and the environment from the unforeseen effects of GMO technology through application of the precautionary principle.

Comments

It should be stressed that the ruling does not stop researchers from continuing to research new plant breeding techniques. They are, however, required to do so in a regulated, controlled environment. Nor, does the ruling end all scientific endeavour in new plant breeding techniques. The risk assessment obligations set out in the Directive are not about gut-feeling. They ensure objective, impartial and transparent scientific analysis. “The environmental risk assessment should be carried out in a scientifically sound and transparent manner based on available scientific and technical data.” (Annex II Principles for the Environmental Risk Assessment B, 2001/18/EC). Prof. Jansson’s Plant Cell and Molecular Biology Department at Umeå University in Sweden will still be able to conduct research into plant mutagenesis – but probably not in a Professor’s back garden.

What the ruling does impact on, however, is the ease with which industry can commercialise novel, mutagenic plants in the EU. I would like to re-emphasise at this point that this ruling does not block the cultivation of these plants on European Union soil. In practice however, very few GMO varieties are grown in the EU given that industry seemingly finds the obligations too stringent to invest the time, effort and money in wanting to do so. Even in cases where industry has had varieties go through the whole process, some of them have been subject to national moratoriums in application of the ‘safeguard measures’ set out in Directive 2001/18/EC.

Taking the CRISP Cas-9 cabbage grown in Prof. Jansson’s back garden as an example of the challenges facing the commercialisation of mutagenic plants in the Europe: any CRISPR Cas-9 cabbage will now be subject to notification to the national competent authority, using a standard authorisation procedure. Environmental risk assessment must be carried out, any risks must be managed, and any further growing must be subject to regular inspections from national competent authorities. Keeping the seed supplier anonymous, for instance, clearly will no longer be possible. Two days after the ruling Bayer and BASF announced that they would pursue gene-editing of plants outside of the EU.

For those wishing to commercialise novel plant breeding techniques unchecked, this ruling is indeed a set-back. For consumers in the EU, already enjoying a wide variety of fresh produce, the immediate effects of this judgment seem less pressing.

To be or not to be… a regulated GMO: The CJEU’s verdict on genome editing

Felix Beck, Doctoral candidate, University of Freiburg/Germany

The recent CJEU judgment on the regulation of genome-edited crops has been debated heatedly throughout the European Union. Many scientists and plant-breeders condemned the verdict as a “backward step” and “hostile to progress“, while GMO sceptics hail it as upholding the precautionary principle and protecting consumer choice between GMO and non-GMO products. However, the legal reasoning of the Court has so far only received little attention. While the Court was rather tight-lipped on the biggest legal issues, the ruling still yields some interesting observations.

To recall the facts of the case: On referral by the French Conseil d'Ètat, the CJEU had to decide whether crops modified with so-called “genome editing” techniques are covered by the EU’s Directive 2001/18/EC on the deliberate release of Genetically Modified Organisms (GMOs). The notion “genome editing” refers to recently-developed techniques, like CRISPR, that allow for targeted modification of the DNA of virtually any organism. This allows to activate or knock-out specific genes, for example to render a crop plant more resistant to certain herbicides or pathogens. In contrast to conventional genetic engineering, genome editing is much more precise and can be used without necessarily inserting foreign DNA into the organism. Whether organisms resulting from these techniques are subject to the protracted GMO regulation in the EU or not has been controversial for several years.

First, the Court assumed with much ado that genome edited organisms constitute GMOs in terms of Art. 2(2) of Directive 2001/18/EC. It even saw no reason to comment on the controversial question whether the notion “altered in a way that does not occur naturally”, which is used to define what constitutes a GMO, relates to the technique of genetic modification or its result. This question was not expressly presented by the referring court, which allowed the CJEU to avoid taking a clear stand. However, the Court indicated that it prefers a strictly process-oriented interpretation, which means that any technique where the genome is modified in vitro would lead to GMOs in terms of Directive 2001/18/EC.

The second and more difficult issue concerned the question whether genome edited organisms are exempted from regulation as organisms resulting from “mutagenesis”. Conventional mutagenesis techniques rely on exposing the organism to certain chemicals or ionizing radiation, which increases the occurrence of genetic mutations. Afterwards, a plant breeder has to select individuals carrying the desired traits from a large number of treated organisms. Pursuant to Art. 3 and Annex I B para. 1 of Directive 2001/18/EC, organisms bred with “mutagenesis” are perceived to constitute GMOs, but are exempted from the directive's scope. The term mutagenesis, however, is not further defined or qualified under EU law, which posed the question whether this term is to be interpreted dynamically (incorporating new mutagenesis techniques) or whether it only refers to those mutagenesis techniques that were known in 2001 when the Directive was adopted.

For the Court, the decisive argument was recital 17, which provides that the Directive “should not apply to organisms obtained through certain techniques of genetic modification which have conventionally been used in a number of applications and have a long safety record”. In the view of the Court, targeted mutagenesis techniques simply have no such long safety record and thus do not fall under the mutagenesis exemption.

In my view, this is a legitimate way of reasoning. There is a difference between the generic meaning of mutagenesis (i.e. any method that induces genetic mutations) and the legal meaning of the same term: recital 17 of Directive 2001/18/EC clearly indicates that only those techniques that were known and conventionally used when the Directive was adopted in 2001 should be exempted from its scope, i.e. conventional mutagenesis techniques relying on chemicals or radiation. Otherwise, changes in scientific nomenclature would be able to modify the scope of regulatory regimes, which would raise questions for the democratic legitimacy of such an interpretation.

Importantly, and this appears to remain difficult to grasp for non-lawyers, the Directive does not leave room for the question whether targeted mutagenesis is equally safe or even safer than conventional mutagenesis; it simply has no comparably "long" safety record. Therefore, it was reasonable for the CJEU to reject the idea of adopting a dynamic interpretation of the term mutagenesis, as Advocate General Bobek suggested in his opinion.

Unfortunately, the CJEU judges did not confine themselves to legal arguments, but also relied on very general (and unsubstantiated) allegations that the risks associated with genome editing were similar to those of conventional GM techniques (which is disputed by the vast majority of scientists), and that genome editing would lead to the development of modified organisms at higher rates and quantities (which is true, but not a risk per se). These misguided statements may make it very hard for scientists to accept that the CJEU's judgment may be okay from a purely legal viewpoint.

After all, the CJEU never was the appropriate organ to assess the risks or non-risks associated with genome editing techniques or to decide on their future regulation. This is fundamentally a matter of policy and must be dealt with by the European Union legislator. Hence, the Court should not be blamed for choosing one out of two controversial options for interpreting the Directive, but it should rather be asked why the European Union legislator has remained inactive for so long. When the European Commission proposed the first Deliberate Release Directive in 1988 and its revision that was adopted in 2001, it promised to regularly update the Directive in order to “keep pace with scientific and technological progress”. It is time for the European legislator to live up to this promise.

Art credit: John Byrne and Terry Austin, Marvel Comics

EU Closed Evidence by Stealth: Testing the Limits of Access to Justice and European Judicial Cooperation

Vigjilenca Abazi & Christina Eckes*

*Assistant professor of European law, Maastricht University and professor of European law, University of Amsterdam, respectively.

More than a ‘Procedural’ Revision

The European Union for the past few years has faced significant crises of political and economic nature. It has to deal for the first time in its 60-year history with a Member State wanting to exit from the Union; with hostility by and even trade wars with what used to be a solid transatlantic ally; and growing populist movements across Europe undermining the fundamentals of the EU construction, such as the rule of law. It is understandable that in the midst of these waves of uncertainties and challenging pressures, less attention is paid to the EU courts and the changes in how they deal with secrets, such as classified documents protecting national security.   

What prima facie may seem merely as a procedural change, introduced by a revision of the Rules of Procedure in 2015, in how EU courts should handle confidential information, has a severe impact on the right of access to justice, European judicial cooperation, and EU counter-terrorist measures – all of which have been largely out of public focus and debate.

For the first time in the history of the EU courts, the reliance on closed evidence, i.e. evidence that is not disclosed to the applicant, is allowed. This restricts the ability of the individual to defend herself to an extent that is contrary to established guarantees of the right of access to justice both under EU law and under the European Convention on Human Rights (ECHR).

This revision of procedural rules took place mostly behind closed doors. When attempts were made by human rights groups to express concerns for the revisions, they were met with a rejection letter by at the time President of the General Court for any ‘interference’.

Drawing from a recent publication on closed evidence, below we explain the implications of closed evidence for the right of access to justice and European judicial cooperation.

An Unlawful Limit of Access to Justice

The right of access to justice is protected under all constitutional orders of the Member States, the EU Charter of Fundamental Rights and the ECHR. Under all these legal orders, limitations to access to justice must be justified and can only be justified if they meet certain requirements. One essential requirement is that the gist of the secret information that is used against the individual must be disclosed to her, in order to allow the individual to defend herself and rebut the accusations brought by the other party. However, Article 105(8) of the Rules of Procedure of the General Court allows under certain circumstances full secrecy and complete lack of disclosure of the confidential material to the applicant. For example, if the Council relies on confidential information in its arguments and the Court is convinced about the sensitive nature of these files, the Court will base its assessment on these arguments without disclosing the information to the applicant. Not even a summary is disclosed to the applicant and this marks a clear departure from the Court’s previous case law.

Some constraints however apply to the Court when considering closed evidence: first, the Court may take into account the confidential information only if it is essential for the decision in the case; second, the Court must confine itself to information that is strictly necessary; and third, in its final judgment the Court must take into account that the applicant has not been able to make their views known on the closed evidence against them. Although these constraints are necessary they do not compensate for the fact that not even the gist of closed evidence was disclosed to the applicant, which is a requirement in the case law of the ECtHR.  

The fact that the EU procedure for closed evidence does not comply with the case law of the ECtHR may leave the Member States in a difficult legal position. Member States are bound by the ECHR under international law. If they followed the EU closed evidence procedure they would infringe their duty under ECtHR to disclose in all cases at least the gist of the incriminatory information. This would in turn negatively affect the relations and trust between the Strasbourg and Luxembourg courts. 

Trust and Judicial Cooperation

The EU closed evidence procedure may add to the tensions in European judicial cooperation, both in the relation between national courts and EU courts as well as between EU courts and the ECtHR.

Sharing official secrets requires a high level of trust. Especially in issues of national security, sharing secrets among Member States or between them and the EU institutions has been a challenge, to say the least. In fact, this lack of trust and lack of sharing of information by national authorities with the Court, was what led to the revision of the procedural rules in the first place. The Court was continuously annulling EU restrictive measures against terrorist suspects (EU counter-terrorist sanctions) by the Council when it was not receiving access to the confidential or even classified information on the basis of which the sanctions were (presumably) adopted.

Whilst the General Court may gain (a bit of) Member States’ trust by having security procedures in place, the EU closed evidence procedure could strain trust relations between national courts and EU courts. The use of closed evidence is not permitted in most Member States. If the EU courts use the closed evidence procedure in a manner that does not comply with the ECtHR, it would not be a surprise if national constitutional courts stepped in to ensure fundamental rights, resulting in even greater tensions and power struggles.  

Furthermore, whereas the ECtHR would not be able to rule directly on an EU’s act as the EU is not a party to the ECHR, it could still send a strong message to the EU courts to reconsider the EU closed evidence procedure by ordering Member States to comply with the gist requirement. How the EU courts would respond to such a message could be a new test to the limits of judicial cooperation in Europe, but also the legitimacy of the EU closed evidence procedure, as well as ultimately the EU itself.     

Public Debate about Security & Secrecy 

With the increased EU involvement with security issues, including the military, classic tensions between the rule-of-law demands for transparency and accountability on the one hand and the need for confidentiality on the other will only grow in the EU. How should the EU resolve this tension?    

EU courts carry out important checks on (national) executive power. The case law on the sanctions regime illustrates that EU courts can – to some extent – constrain executive power, including in an area in which judicial review traditionally allows for great discretion of executive actors. It is hence of outmost importance that the EU courts continue to conduct a rigorous review of the exercise of executive powers in matters of security. The EU closed evidence procedure is not a step in that direction and should be reconsidered. Whatever precise way is chosen to resolve the tension between confidentiality and transparency, it must comply with the ECHR as interpreted by the ECtHR.

Moreover, the EU should not continue to treat these salient discussions on security and secrecy as a mere matter of ‘procedure’. Rather, the EU must establish an open debate and have public deliberations on how to reconcile openness and secrecy, especially when EU fundamental rights are directly affected in order to accommodate security rationales. Ultimately, the most important legitimating factor for the EU as a security and human rights actor is the trust of EU citizens in how the EU defends human rights and their security interests. Procedural talks behind closed doors are hardly the way to gain public trust.   

Barnard & Peers: chapter 10

Photo credit: canestrinilex

The CJEU and the rule of law in Poland: Note on the Polish Supreme Court preliminary ruling request of 2 August 2018

Alicja Sikora, Chair EU Law, Jagiellonian University

As Eugene Ionesco put it, you can only predict things after they have happened (Rhinoceros, 1959).

On Thursday the Polish Supreme Court submitted to the European Court of Justice a preliminary ruling request under Article 267 TFEU. While doing so it also suspended the application of a Polish law forcing the early retirement of Supreme Court justices who are above 65 years old, including the President of the Supreme Court whose mandate is guaranteed by the Polish Constitution. This is a challenge to the Polish government’s changes to the judiciary, on the grounds that it violates the rule of law.

There were many preliminary ruling requests in the course of the history of EU law from van Gend den Loos, Costa/Enel, Nold, Francovich, Defrenne, Akerberg Fransson, Melloni, Pringle, Gauweiler and many others which shaped a ‘constitutional order of States’. Judicial dialogue established under Article 267 TFEU has been a cornerstone for the development of the EU legal order.

Thursday’s request might, however, not constitute just a major doctrinal novelty. The Polish Supreme Court stepped into the path of active claim for rule of law, which is not only a common principle to Member States, but also expression of the axiology on which EU is founded as expressed in Article 2 TEU. Polish judges seek advice which will in a way sans precedent engage the Court of Justice in the legal and political battle for independent justice in Poland. It is a symbolic proof of how much Europe is needed and how crucial and fragile the enforcement of common values turns to be.

The Court of Justice has already prepared the foundations of such action in recent cases such as C-64/16, Associação Sindical dos Juízes Portugueses (on the independence of Portuguese judges in the context of austerity, discussed here) and C‑216/18 PPU, LM (on the recognition of Polish European Arrest Warrants in light of rule of law concerns), where Article 19 TEU (which sets out the basics of the CJEU’s role) was linked to the protection of the rule of law. Consequently, it is, according to the Court, for the national courts and tribunals and the Court of Justice to ensure the full application of EU law in all Member States and judicial protection of the rights of individuals under that law. It follows that every Member State must ensure that the bodies which, as ‘courts or tribunals’ within the meaning of EU law, meet the requirements of effective judicial protection, which include, in particular, the independence and impartiality of those courts.

In the present case, the Polish Supreme Court referred to the Court of Justice five questions which relate mostly to the interpretation of the principle of judicial independence in the light of EU primary law (Articles 2, 4(3), 19 (1) TEU as well as Article 47 of the Charter of Fundamental Rights). Other questions focus on the interpretation of Directive 2000/78, which includes the principle of non-discrimination based on age. The referring judges also applied for the application of the expedited treatment of the case under Article 105 of the Rules of Procedure of the Court of Justice.

Unsurprisingly, it is the suspension of the application of the national law which caused fierce criticism of the highest Polish authorities. Yet, Polish Court acted in perfect conformity with the classic case-law of the Court concerning interim measures (Factortame, Zukerfabrick, Atlanta) whereby national courts suspend application of a national measure which represents a risk of breach of EU law, pending the decision of the CJEU clarifying whether there is a conflict between national law and EU law (or, in some cases, on whether an EU law being challenged in the national courts is invalid).

The underlying question is whether the CJEU is willing to address the rule of law dispute in Poland directly, via use of the preliminary ruling procedure, or leave the issue to the EU’s political authorities, which are considering warning or sanctioning Poland under the process set out in Article 7 TEU. The Polish Supreme Court is potentially opening a new chapter in the enforcement of EU law and values.

Barnard & Peers: chapter 6, chapter 9

Photo credit: France 24

Brexit must do no harm to health: including by securing adequate medical professional qualifications rules

Professor Tamara Hervey, University of Sheffield*

A Leave.EU tweet on 3 August 2018 claims that “EU regulations currently prevent doctors from qualifying before five years of training. Just one of countless examples of EU “market building” that do nothing of the sort, instead causing disruption and impairing UK policymakers.” It’s citing Health Minister Steve Barclay, and a ‘Westmonster’ blog.

This is yet another example of pro-Brexit propaganda that sounds beguilingly simple and obvious but turns out to be nothing of the sort.

It is so for four main reasons:

First: It is wrong about the causal relationships between EU law and current UK practice. It forgets that the UK has been a powerful and influential member state of the EU for decades. As such, the UK has had important influences on the way EU law is in this area – as in many other areas. Current UK law on medical qualifications does indeed comply with EU law. But effects of EU law on routes to medical qualification are limited, and mainly indirect. The vast majority of the detailed contents of medical curricula are determined nationally. The length of time it takes to qualify for a particular medical profession differs in different EU member states.

It’s true that doctors qualifying in the EU need to undergo a certain agreed amount of training: the UK agreed those rules as an EU member state. If the UK wanted to make changes to the rules on medical qualifications as a member of the EU it could.  Indeed, the UK already did, particularly in the reforms that led to the new EU laws adopted in 2005.

So there’s no new opportunity here, at least not in the sense implied in the minister’s statements.

Second: This kind of statement vastly over-simplifies rules about qualifications of different types of medical professionals. EU rules about doctors are on one model, where there is a set amount of time and a broad brush agreement on the content of what they need to learn in order to qualify. This isn’t the case for other medical professionals.  For them, there is significantly more control by the home state, subject to the obligation to recognise equivalent qualifications from other EU countries (and the corresponding duty of other EU countries to recognise UK qualifications). The UK – along with every EU Member State – is permitted to check linguistic competency of medical professionals working in the UK.

Third: The statement assumes that quicker is better and cheaper. There is a good reason that it takes time to qualify as a medical professional: medical professionals affect people’s health, dignity and lives. Less well qualified medical professionals might not necessarily be cheaper for the NHS longer term. I hardly need to elaborate further here, surely?

Fourth: The idea that we could gain a ‘Brexit benefit’ from shortening qualification periods for medical professionals is wrong about who our doctors and other health professionals are, and about how medical practice, and bio-science more generally, works in today’s world. Bio-medical science is an international career. The UK does well, at the moment, in attracting professionals from other EU states to the UK. If we depart from alignment with EU qualifications, then we lose an important group of collaborators, and people who could work in the UK as medical professionals.

It is inconceivable that the UK could be ‘self sufficient’ in medical professionals – the numbers just do not add up – as the Nuffield Trust has convincingly shown in its detailed research.

Even if UK were to invest an unprecedented amount in educating medical professionals – and bear in mind that there is no commitment whatsoever from this, or any other, government to attempt to do so – it still wouldn’t give us access to the international collaborations that we currently participate in through the EU.

In short, this kind of misinformation that seems too good to be true is just that: too good to be true.

Parliament (both Commons and Lords) is concerned about any worsening of health post-Brexit and will seek to hold the government to account. The current government itself agreed in the debates on the EU (Withdrawal) Bill that Brexit should ‘do no harm’ to health. These kinds of statements about supposed ‘Brexit benefits’ need to be carefully scrutinized against that standard.

*Reblogged from A Blended Life blog

Barnard & Peers: chapter 27

Photo credit: Royal Bournemouth Hospital

Is Data Protection Coming Home? The CJEU on data protection law and Jehovah’s Witnesses – and political canvassing?

Professor Steve Peers, University of Essex

You’re in the shower, and the doorbell rings. It might be the Amazon delivery you were expecting, with your daughter’s present – and it’s her birthday tomorrow. You leap out of the shower and dash wetly down the stairs to open the door in time. But it’s only a couple of Jehovah’s Witnesses.

After responding to their entreaties in much the same way that Boris Johnson responds to business, you close the door, and think no more about them. Yet they are still thinking about you. In order to focus more effectively on who to bother about God again, they keep a record of each household they visit, with categories of (say) “Believer”, “Unbeliever”, or (if you couldn’t find a towel) “Satanist”.

It’s not just religious enthusiasts who might knock on your door and gather personal data, of course. There are also businesses, charities and political canvassers. For the Brexit Referendum, I joined the local Labour party to knock on doors in the leafy London Borough of Remainey. If I recall correctly, we kept records of voters in the categories of “Remain”, “Leave”, “didn’t say” and “absent”. (It seems the Labour party has stopped using the category of “Bigoted Woman”).

These activities are of interest not just to preachers or spin doctors, but also data protection authorities. But does data protection law apply at all to such door-knocking? The CJEU answered that question yesterday, in a new judgment answering questions raised in a dispute between the Finnish data protection board and Jehovah’s Witnesses.

Facts

The Finnish data protection board had ordered the Jehovah’s Witnesses to stop processing personal data unless they complied with Finland’s version of the EU’s data protection Directive (since replaced by the infamous GDPR). The board asserted that both the religious community and its members were “data controllers” with liability for the correct application of data protection law. A lower court agreed with the legal challenge brought by the Jehovah’s Witnesses, but on appeal a court asked the CJEU to interpret the relevant provisions of EU law.

In practise, the Jehovah’s Witnesses take records (names, addresses, religion, family status) of their meetings with householders. There’s also a list (perhaps a rather longer one) of those who would like the Jehovah’s Witnesses never to darken their door again. The dispute concerned the main list: did it fall within the scope of EU law at all, or was it rather outside the scope of that law because of the “household exception” or the non-exhaustive security exception to it, or because the notes were too disorganised to form part of a “filing system”. Furthermore, if the Directive did apply, were both the community and its individual members data controllers?

Judgment

The CJEU began by asserting that the exception for state security and similar areas did not apply to Jehovah’s Witnesses, as that exception could only apply to acts of the State. Secondly, the household exception did not apply either, because following prior case law on home security cameras (discussed here), that exception did not apply to activity directed outward from the household. While proselytisation was covered by the EU Charter of Rights as an aspect of freedom of religion, that did not mean that door-knocking fell within the household exception.

Next, was the note-taking part of a “filing system”? The Court ruled that the Directive “broadly defined” this notion: the requirement that the data be “structured according to specific criteria” is “simply intended to enable personal data to be easily retrieved” (para 57). No data sheets, specific lists, or other method of processing personal data was necessary to show the existence of a “filing system”. In this case, it was sufficient that the data was structured according to the Jehovah’s Witnesses’ criteria for a “filing system” to be present.

Finally, are there multiple data controllers here? Following its recent judgment on Facebook fan pages (discussed here), the CJEU reiterated a “broad definition” of that concept, although that did not mean that every data controller had equal responsibility, or had to have access to the data to be a controller. In this case, the coordination of its members’ activity by the Jehovah’s Witnesses community made them both responsible for the data processing. This conclusion wasn’t affected by the Treaty provision on the autonomy of religious bodies, following the recent judgment on discrimination law and religious bodies (discussed here).  In effect, such autonomy does not grant them a general exemption from EU law. Compliance with that law is, in effect, one more cross for them to bear.

Comments

It makes sense that the household exception does not apply to Jehovah’s Witnesses, given that in practice many homeowners either do not open their doors to the eager evangelists, or slam the doors in their faces if they do. It’s also striking that the Court takes a broad definition of “filing systems”. That’s consistent with its broad interpretation of the scope of EU data protection law in many cases, and its interpretation of “data controller” reiterated here; but UK data protection lawers will be aware that it contrasts with the narrower definition of “filing systems” in UK case law. The Court’s emphasis on joint responsibility of data controllers echoes its recent judgment on Facebook and friends, as noted above.

That leads us to the broader implications of the judgment: its potential impact on politics. There’s no reason to doubt that the judgment applies equally to political canvassing, as the collection of data and relationship with householders is similar, and the Charter protection for freedom of expression would by analogy not protect parties from the application of data protection law either. The insistence on joint responsibility of data controllers poses a possible complication for door-knockers of either type: they must be aware not only of the inspiring words of Jesus Christ or Jeremy Corbyn, but also the infinitely drier text of the GDPR, a prospect which surely enthuses not the many, but the (very, very) few.

But while we know that EU data protection law applies to such activities, and that responsibility is shared, we don’t know how to apply the law in such cases, as the Court wasn’t asked. (The earlier ruling on home security cameras similarly leaves such possible questions unanswered). On what grounds can the data be processed? Must homeowners give their consent to the processing for specific reasons? One can imagine that those who are already reluctant to discuss their faith with Jehovah’s Witnesses will be even more reluctant to discuss the minutiae of data protection consent with them too. Can the legitimate interest of evangelists or political canvassers justify the processing of data? Or can a statute validly regulate this issue? (One suspects that politicians will be particularly keen to find time to legislate to justify their own activities, if necessary).

The judgment – combined with the recent Facebook fan page judgment – might also have implications not only at the low-tech end of political canvassing, but at the high-tech end too. Today sees the publication of the UK Information Commissioner’s report into allegations of breaches of data protection law during the Brexit referendum, including also allegations about Facebook’s work with Cambridge Analytica. The ICO also published suggestions on data protection law and the democratic process. (See also the recent publications from the Electoral Commission and an Independent Commission on Referendums). Traditionally it’s been easier to address concern about the fairness of political processes because people wear red or blue rosettes when knocking on the door, or parties identity themselves in political literature or broadcasting. It’s far harder where online political messaging is questionably funded, poorly regulated (particularly as regarding funding limits and foreign funding) and frequently dishonest.  Recent judgments and regulatory efforts are baby steps towards addressing these essential concerns.

Photo credit: JW.org

Revising EU visa policy

Professor Steve Peers

Back in 2014, the Commission proposed a revamp of EU visa policy (concerning short-term visit visas), in the form of a proposal to revise the EU’s visa code. This proposal ultimately failed, because the EU Parliament and Council could not agree on whether it should include “safe passage” visas for those needing protection or not. Now the Commission is trying again, focussing this time on security concerns, rather than economic growth.

Background

The rules for issuing short-term visas are set out in the Visa Code, adopted in 2009. The CJEU has clarified some key points of the Code, ruling that: in effect it creates a right to a visa if the conditions are satisfied, although Member States have flexibility over how to apply those conditions (Koushkaki, discussed here); there must be a possibility of judicial review as part of the appeal process (El-Hassani); and “safe passage” visas are not covered by the Code (X and X).

The Code concerns “Schengen visas”, ie visas which allow travel across the entire Schengen area. As such it applies to the EU countries fully applying the Schengen rules (all Member States except the UK, Ireland, Croatia, Cyprus, Romania and Bulgaria) as well as the non-EU Schengen associates: Norway, Iceland, Switzerland and Liechtenstein.

The list of non-EU countries whose citizens do (or do not) need a visa to visit the Schengen area is set out in a separate visa list Regulation (the plans for visa waivers for Turkey and Kosovo are on hold). EU policy is to waive visa requirements for nearby countries, subject to a (loosely-enforced) requirement for reciprocity, so it is likely that UK citizens will not need a visa to visit the EU after Brexit. However, EU legislation to set up a “travel authorisation” system, about to be adopted (see discussion here), will apply to all non-EU countries with a visa waiver but without a free movement agreement with the EU. As things stand, this law will apply to the UK, unless some special exemption is requested and agreed. A travel authorisation is similar to a visa in that it requires a prior authorisation to travel, but will cost less and be valid for much longer.

2014 proposals

As noted above, the ill-fated 2014 proposal to amend the visa code was focussed on economic issues, in particular aiming to facilitate tourism. A parallel proposal for a “touring visa” would have provided for an extended stay for those visiting multiple Member States for a longer period, as part of an orchestra or circus, for instance. (I discussed the details of both proposals here). The 2014 proposal also included provisions on facilitating the travel of EU citizens’ non-EU family members (discussed here), and, as noted already, it was an opportunity to argue for explicit “safe passage” rules to be added to the rules (as discussed here).

2018 proposal

The Commission withdrew both 2014 proposals in light of the negotiation deadlock, and tabled a revised visa code proposal in March 2018. (It did not try to revive the “touring visa” proposal). This was met with much interest in the Council, which adopted a negotiation position on the proposal already by June 2018. The European Parliament is taking a more leisurely approach, so has no position yet. (Note that the Commission has also suggested a revision of the law governing the related database, the Visa Information System, which would, among other things, provide for fingerprinting 6-year-old visa applicants, and extend that system to apply to long-stay visas and residence permits). 

The Commission’s 2018 communication on visa policy is a good overview of the purposes of the recent proposal. In addition to the main focus on security – which takes the form of penalties for non-EU countries that do not cooperate with the EU on readmission policy – it contains a limited number of simplifications for legitimate travellers. The Commission has dropped the proposals to simplify travel for EU citizens’ family members, and has made more suggestions to simplify the rules on multiple entry visas as compared to 2018.

The Council’s position

Compared to the Commission’s proposal, the Council has reserved for itself the power to punish countries that do not cooperate with the EU on readmission (by raising visa fees, requiring more documents, and slowing down processing times), following a diplomatic process in which the EU will threaten these sanctions if no cooperation is forthcoming. (It’s already EU policy to link treaties simplifying the issue of visas to readmission treaties, but this policy will now become unilateral, and take the form of sticks, rather than carrots).

On other issues, it will be possible for travellers to apply for a visa six months in advance, rather than three. The Council rejected the Commission’s proposal to let NGOs apply for visas on behalf of their staff. The visa application fee will rise from €60 to €80, and from €35 to €40 for 6-12 year olds. The Commission will have the power to revise the fee every three years. Member States’ option to waive the fee for diplomats is dropped. The new “punishment” clause will raise the visa application fee to €120 or €160 for travellers from countries that are judged not to cooperate on migration.

Multiple entry visas lasting for one, two or five years will be available, based on prior lawful use of a visa. The Council dropped the Commission’s proposal to refer to judicial review in the event of an appeal against refusal of a visa, but this cannot change the legal obligation to provide for such a review, since the CJEU ruling on this issue (El-Hassani, noted above) based this obligation on EU primary law: the EU Charter of Fundamental Rights.  The Commission proposal to issue visas at the border in order to encourage tourism has been dropped by the Council, and the current law’s possibilities of having “co-location” and “common application centres” are dropped, as they have been overtaken by events – the trend of outsourcing the visa application process to private entities. As a partial substitute, the revisions will simplify the rules which apply when one Member State represents another one for visa applications.

Comments

It remains to be seen whether the European Parliament will go along with these amendments, or whether it will seek to retain some of the simplification of travel rules which the Commission initially proposed in 2014, for instance for EU citizens’ family members. (Such rules, if agreed, will only briefly be helpful for UK citizens’ non-EU family members, before the end of the post-Brexit transition period).  The Parliament might also try to address the “safe passage” issue again, and it has traditional concerns about limiting fee increases for vulnerable groups like children. The visa code amendments might be linked in practice to the proposals to turn the Visa Information System into an even bigger Panopticon.

However, some version of the readmission punishment clauses are likely to go through, as they are part of the EU arsenal of stricter migration control policies (along with greater internal and external border checks, an expanded Frontex border control body, and agreements with countries like Turkey to control and take back asylum seekers and migrants). Whether they will be effective remains to be seen; there will presumably still be ‘carrots’ from the EU-Africa funds offered to States which cooperate with the EU’s increasing attempts at “remote control” of migration. Whether the new policy will work in practice, or – even if they do work – satisfy those voters who already remain angry despite hugely reduced migration flows, equally remains to be seen. 

Barnard & Peers: chapter 26

JHA4: chapter II:4

Photo credit: schengenvisainfo.com

“Dear Colleague, Are You Independent Enough?” The Fate of the Principle of Mutual Trust in Case of Systemic Deficiencies in a Member State’s System of Justice

By Cecilia Rizcallah*

*Research Fellow at the Belgian National Fund For Scientific Research (F.R.S.-FNRS). The author wishes to thank Pr. S. Van Drooghenbroeck. The usual disclaimer applies.

Advocate General Tanchev delivered, a few days ago, his opinion in the case C-216/18 PPU concerning a set of European Arrest Warrants (EAWs) issued against LM, suspected of drug trafficking, by the Polish Authorities. The case concerns a reference for a preliminary ruling made by the Irish High Court, which questions the European Court of Justice (ECJ) on the obligation to execute a EAW when the “conditions in the issuing Member State are incompatible with the fundamental right to a fair trial because the system of justice itself in the issuing Member State is no longer operating under the rule of law”.

Context of the case

This case emerges in the context of the “rule of law crisis”, resulting from recent reforms threatening EU’s founding values in some Member states including, among others, Poland. The Venice Commission together with other organisations have indeed observed the existence of serious breaches of the rule of law, notably due to the reform of its judiciary which highly undermines its independency. Ensuing this crisis and the lack of improvement of the situation in Poland, the Commission issued, in December 2017, a reasoned proposal in accordance with Article 7(1) TEU proposing to the Council to assert the existence of a clear risk of a serious breach of the rule of law in Poland.

No concrete action has yet been taken pursuant to this opinion, notably because of the heavy conditions laid down in Article 7 and the lack of other proper tools to react to such events. Brussels has thus until now been unable to offer a collective and efficient response to this crisis and the first consequences on EU integration begin to pop up.  The ECJ in that respect ruled two weeks ago that Poland had breached the Railway Safety Directive (Directive 2001/14/EC) because of the lack of independency of its investigating body of railway undertakings and infrastructures. It is now the turn of the mechanism of the EAW to face the difficulties triggered by the rule of law crisis in one of the Member States.

As a reminder, the European Arrest Warrant mechanism, enshrined in the Council Framework Decision of 13 June 2002 (hereafter the Framework decision), relies upon the principle of mutual trust, which presumes the respect by all the Member States of EU founding values listed in Article 2 TEU, including the rule of law and human rights. This presumption justifies the quasi-automaticity of the execution of EAWs, and prevents in principle the control of the respect of fundamental rights by the executing Member State. The executing national authority has to “trust” the admissibility of EAWs issued by its peers.

According to the settled case-law of the ECJ, the grounds for non-execution of a EAW are exhaustively listed in the Framework Decision and must be restrictively construed because of the principle of mutual trust. Yet, fundamental rights are not explicitly included among the grounds for refusal in the Framework decision. Relying upon the principle of mutual trust and for the sake of the EAW mechanism’s effectiveness, the ECJ has long been reluctant to allow national courts to control the respect of fundamental rights when requested to execute a EAW.

A first breach was nevertheless opened by the Aranyosi and Căldăraru judgment (discussed here), where the ECJ considered that, in very exceptional circumstances, the execution of a EAW may be postponed when the individual would face a real risk of inhuman or degrading treatment in the issuing Member State in case of surrender because of the detention conditions in this country. It developed a two-step approach to determine the existence of such risk: first, the executing authority must be “in possession of evidence of a real risk of inhuman or degrading treatment of individuals detained in the issuing Member State” (§89)  and, “whenever the existence of such a risk is identified, it is then necessary that the executing judicial authority make a further assessment, specific and precise, of whether there are substantial grounds to believe that the individual concerned will be exposed to that risk because of the conditions for his detention envisaged in the issuing Member State” (§92).

According to the Court, the requested authority must, to that end, “request of the judicial authority of the issuing Member State that there be provided as a matter of urgency all necessary supplementary information on the conditions in which it is envisaged that the individual concerned will be detained in that Member State” pursuant to Article 15(2) of the Framework Decision (§95).

The question in C-216/18 PPU

The question posed in Case C-216/18 was whether the rule of law crisis and the systemic deficiencies in the Polish judicial system could justify the refusal of execution of a EAW issued by this Member State. More precisely, the Irish judge asked the ECJ whether the Aranyosi and Căldăraru double test leading to the suspension of EAWs’ execution should apply in case of systemic breach of the rule of law.  This case thus appears to be an occasion to the ECJ to provide some of the missing pieces in the puzzle of tolerated limitations to the principle of mutual trust.

Unlike the Aranyosi and Căldăraru case, the question raised in the case C-216/18 concerns structural deficiencies in a Member State’s system of justice and risk of breaches of a non-absolute right, the right to a fair trial (Article 47 of the Charter). Sensitive issues are moreover at stake, in relation to the controversial reforms adopted in Poland. Political reactions have not been slow in coming.

The Advocate General’s opinion

A few days ago, the Advocate General Tanchev issued its opinion which, in a nutshell, pleads for the adoption of the Aranyosi and Căldăraru double test in the case at hand. The Advocate General started its reasoning by differentiating the assessment that should, according to him, be applied in the present case and the one that should be carried out by the Council under Article 7(1) TEU. Indeed, “the referring court asks the Court of Justice whether, in order for it to be required to postpone the execution of a European arrest warrant, it is sufficient for it to find that ‘conditions in the issuing Member State are incompatible with the fundamental right to a fair trial because the system of justice itself [of that Member State] is no longer operating under the rule of law” (§39).

The Court is therefore, according to the Advocate General, not asked about the consequences of breach of the value constituted by the rule of law, but about consequences of breach of the right to a fair trial. By this statement, the Advocate General offers an appealing way-out allowing the ECJ not to generally pronounce itself generally on the current sensitive political issue of the rule of law crisis in Poland. This finding moreover seems in compliance with the will of the treaties, Article 269 TFEU excluding the competence of the ECJ to rule on the legality of the acts adopted under Article 7 TEU, except for procedural concerns.

In the opinion of the Advocate General, different consequences must moreover be triggered from the activation of Article 7 and from the Aranyosi and Căldăraru judgement. On the one hand, the finding, in a specific case, of the existence of a real risk of breach of the prohibition of inhuman or degrading treatment obliges the executing judicial authority to postpone the execution of the EAW at issue. On the other hand, the suspension of the whole EAW system in respect of a Member State may only occur if the Council so decides, pursuant Article 7 (3) TEU, on the basis of the existence of a breach, and not of a mere risk of breach, of EU founding values (recital 10 of the Framework decision).

After these preliminary observations, the Advocate General continued its reasoning by  sketching out the way the Aranyosi and Căldăraru test should be applied in the case at hand. First, he addressed the question of the possibility to postpone the execution of a EAW for protecting non-absolute rights. According to him, the fact that only limitations on the principle of mutual trust have hitherto been accepted in the light of Article 4 of the Charter does not precludes a similar conclusion when other rights, such as the right to a fair trial, are at stake (§58). Nevertheless, given the importance of the principle of mutual trust, “it is not sufficient that there is a real risk of breach of the second paragraph of Article 47 of the Charter in the issuing Member State” (emphasis added, the Advocate General interestingly did not use the word “restriction” but “breach”).

The postponing of an EAW may only occur when there exists a “real risk of breach not of the right to a fair trial but of the essence of that right” (§76) amounting to “a flagrant denial of justice” (§80). Having regard to the independence of the judiciary, the Advocate General underlined that “the lack of independence and impartiality of a tribunal can be regarded as amounting to a flagrant denial of justice only if it is so serious that it destroys the fairness of the trial” (§93). Assessing the existence of such risk, the executing judicial authority must “rely on information which is objective, reliable, specific and properly updated on the conditions prevailing in the issuing Member State, and which demonstrates that there are deficiencies affecting the Polish system of justice” (§95), such as the Venice Commission’s reports or the Commission’s reasoned opinion.

Yet, in the Advocate General’s opinion, such finding is however not sufficient for deciding the postponing of a EAW. The executing judicial authority must, moreover, ascertain that “in the case in point”, the individual concerned will be exposed to that risk (§104), by examining the particular circumstances relating either to that person or to the offence (113). It should notably be ascertained whether the individual is a “political opponent or whether he is a member of a social or ethnic group that is discriminated against” and/or if “the offence for which the individual concerned is being prosecuted is political in nature or whether the powers that be have made public declarations concerning that offence or its punishment” (§113). The burden of proof shall lie on the individual concerned (§115). In the assessment of the individual risks faced by the requested person, the executing judge must moreover request, from the issuing judicial authority, all necessary supplementary information on the basis of Article 15(2) of the Framework Decision “concerning, first, legislation adopted after the Commission’s reasoned proposal and the opinions of the Venice Commission and, second, the particular features relating to the individual concerned and to the nature of the offence that would be liable to expose him to the real risk of flagrant denial of justice identified” (§128).  Eventually and “in the light of the information obtained” the executing judicial authority must execute the warrant if it considers that the person subject to the EAW does not run a real risk of suffering a flagrant denial of justice in the issuing Member State or, on the contrary, postpone its execution if such risk exist (§§130 – 131).

Comments

In spite of current events attesting the serious endangerment of EU founding values in several Member States, the Advocate General’s opinion sounds like a plea for the safeguard at any price of a – yet no longer existing –  trust between Member States. It calls for a few comments. 

First, the Advocate General pleads for distinguishing the examination of the existence of a rule of law crisis which systematically threatens the independence of the Polish judiciary and the assessment of the respect of the right to a fair trial in Poland. It is true that both procedures differ from their nature, one being political the other judicial as well from their object, one concerning the serious and persistent breach of the EU’s founding values and the other the right to a fair trial. Nevertheless, the risks in terms of Human rights in the case at hand precisely result from the systemic violation of the value of the rule of law. The alleged risks do not consist in a punctual breach of the right to a fair trial in relation to the specific case at hand, but in structural deficiencies in the Polish judicial system presenting risks for the fairness of its trials. If both assessments differ in their nature, their object must, in our view, not be addressed in isolation. According to the Advocate General, both procedures do also trigger different consequences. It is only if the Council observes the breach – and not the mere existence of a risk of breach – of EU founding values that the EAW mechanism could possibly be suspended. This finding suggests low likelihood that the EAW procedure would ever be suspended given the inefficiency of the Article 7 procedure, attested by recent events, as well as the poor probability to reach the required unanimity at the Council.  

Secondly, the systemic character of the judicial system’s deficiencies does not suffice in the view of the Advocate General to justify the non-execution of Polish EAWs.  Relying upon the ruling in Aranyosi and Căldăraru, he considers that a refusal to surrender an individual may only occur when (i) there exists a risk of breach of the right to a fair trial’s essential content amounting to a flagrant denial of justice and (ii) the requested person individually faces the risk to be subject to this breach.  In relation to the first condition, the Advocate General thus clearly gives priority to the principle of mutual trust over the protection of fundamental rights, since not any breach of these rights could compromise in his view the execution of a EAW. This finding contrasts with the ECJ’s ruling in Tupikas, where it held that “the principles of mutual trust and recognition on which that Framework Decision is based must not in any way undermine the fundamental rights guaranteed to the persons concerned” (emphasis added), as well as the Framework Decision’s preamble, which underlines that it respects fundamental freedoms.

The Advocate General refers to the ECtHR case law about extradition procedures in order to reach this conclusion. The ECtHR indeed several times relied upon the “flagrant denial of justice” concept in order to determine the responsibility of a Contracting Party which indirectly enabled or gave effect to the breach of important components of fundamental freedoms by third parties (see, for instance, ECtHR 26 June 1992, Drozd and Janousek v. France and Spain, § 110,). Nevertheless, it is worth nothing that the case-law on this issue is not consistent, as shown by the judgment in Pellegrini v Italy where the fact that the judgment was rendered by a third party – the Vatican –  justified, according to this to the ECHR, a full control of the respect of Article 6 by the executing Italian judge.

Moreover, this test was only used in regard to extradition procedures with third States, based on the reasoning that “the Convention does not govern the actions of States not Parties to it, nor does it purport to be a means of requiring the Contracting States to impose Convention standards on other States” (ECtHR 7 July 1989, Soering v. United Kingdom, § 86). Yet, the case at hand concerns the cooperation between two Member States of the Council of Europe and moreover, of the European Union. Moreover, one should wonder why violations (not mere restrictions) of Article 47 of the Charter must, for the sake of the principle of mutual trust, be accepted in the EU while this principle is precisely founded on the presumption of compliance, by all Member States, with fundamental rights as enshrined in the Charter. The ECtHR seems nevertheless to consent to the principle of mutual trust in its Avotins judgement (discussed here), at least as long as Member States are “empowered to conduct a review commensurated with the gravity of any serious allegation of a violation of fundamental rights in the State of origin, in order to ensure that the protection of those rights is not manifestly deficient” (ECtHR 23 May 2016, Avotins v. Latvia, §114). This case did not concern the EAW mechanism but the mutual recognition in civil proceedings, where guarantees contained in Article 6 apply less stringently than to criminal proceedings.  

As far as the second condition is concerned, the Advocate General requires the maintenance of an individual assessment consisting in first, the examination of the nature of the alleged offence and the individual’s profile and, secondly, in an exchange of information between the issuing the executing authority. He moreover considers that the burden of the proof of the risk lies on the requested individual. This is maybe the most critical part of the opinion.  First, regarding  the object of this assessment. The executing judge would indeed be required to postpone the execution of a EAW, according to the Advocate General, “only where it finds not only that there is a real risk of flagrant denial of justice on account of deficiencies affecting the system of justice of the issuing Member State but also that the individual concerned will be exposed to that risk”.

It must in that regard consider notably the nature of the alleged offence as well as the profile of the person subject to the EAW, and especially, whether he is a political opponent or whether he is a member of a social or ethnic group that is discriminated against in the issuing country (§113). Yet, the possibility to refuse to surrender persons convicted for political offences has been especially removed from the Convention on Extradition between Member States of the European Union concluded in 1996 – when replaced by the Framework decision (see discussion here). Furthermore, requesting the individual to demonstrate the lack of independence of the tribunal in his or her specific case seems to disregard the traditional case law of the ECHR, according to which serious doubts that an individual will not benefit from a fair trial by an independent and impartial tribunal may lead to a violation of Article 6 of the ECHR (ECtHR, 25 July 2002, Sovtransavto Holding v. Ukraine, §78).

In this way, the mere existence of mechanisms enabling the executive branch of a State to influence court proceedings, even if they have not been effectively used in the case at hand, suffice, in the view of the ECtHR, to find a breach of the right to a fair trial (ECtHR, 19 April 1994, Van De Hurk v. The Netherlands, §50 and ECtHR, 25 July 2002, Sovtransavto Holding v. Ukraine, §§ 77 and 80). The approach proposed by the Advocate General also contravenes the “doctrine of appearance” (ECtHR, 17 January 1970, Delcourt v Belgium, §31 and Kress v France, 7 June 2001, §81), usually adopted by the ECtHR, which attaches great importance to “appearances and to the increased sensitivity of the public to the fair administration of justice” (ECtHR, 30 October 1991, Borgers v. Belgium, §24).

Indeed, according to this doctrine, “justice must not only be done, it must also seem to be done”, and “importance should be given to the confidence which the courts in a democratic society must inspire in the public and above all, as far as criminal proceedings are concerned, in the accused” (ECtHR, 9 June 1998 Incal v. Turkey, §71). Speculations about the effective independent character of a tribunal in a specific case should thus not be needed when important deficiencies in the rule of law such as those at issue exist.  The inadequacy of such test is furthermore strengthened by the way the requested judge should determine the existence of a risk of breach of the right to a fair trial. The opinion indeed proposes to require from the executing authority, before deciding upon the execution of the EAW, “to ask the necessary information to that end to the issuing judge”. One may indeed wonder how a judge - whose independence is challenged – would provide reliable information on…his or her own independence!

New playground, new rules of the game?

The principle of mutual trust constitutes an important tool of EU integration, used both in the internal market and in the Area of freedom, security and justice. In relation to the EAW system, it enables effective and smooth criminal cooperation between Member States without the merging of their national criminal systems of justice nor uniformisation of their national criminal law. Nevertheless, this principle was developed on the presumption that only democratic systems, respecting EU’s founding values including fundamental rights were involved. The importance of the respect of the rule of law was in that sense recently recalled by the ECJ in its case law Associação Sindical dos Juízes Portugueses (ECJ, 27 February 2018, discussed here). One must however note the lack of discipline of some Member States to comply with this value, despite numerous diplomatic attempts to stop the crisis. Should we nevertheless maintain the obligation for Member States to trust in each other’s system of justice notwithstanding these events?

The principle of mutual trust, of fundamental importance to EU law, relies upon the presumption that Member States share and respect a set of common values (ECJ, 18 December 2014 Opinion 2/13, §168). Firmly upholding this principle while its foundations are undermined seems problematic. Once the playground has changed, shall the initial rules of the game be kept? Besides being as such problematic for the State concerned by the crisis, imposing mutual trust to other States entails an important risk of contagion in all the European Union since national judgments are mutually recognised. In addition, one should bear in mind the rights at stake, which include the right of judicial protection rightly referred to as “the right to have right”.  This right furthermore amounts to, according to the ECJ, the essence of the rule of law (ECJ, 27 February 2018, Associação Sindical dos Juízes Portugueses, §36).

Admittedly, the current “rule of law crisis” constitutes first and foremost a political issue that has to be dealt with by political bodies such as the Council as provided by Article 7 TEU. Nonetheless, the ECJ must ensure the respect of EU law and, in particular, of the Charter of Fundamental Rights which is part of primary law. When construing the Framework Decision, the Court shall therefore – at least theoretically – ensure the respect of EU Fundamental Rights and in particular of the right to an effective judicial protection. In our view, the principle of mutual trust, being it a fundamental principle, shall not justify restrictions to fundamental rights that do not respect the conditions laid down in Article 52 of the Charter which not only requires the respect of the essential content of fundamental rights, but, also, a more general proportionality assessment.

Barnard & Peers: chapter 9

JHA4 : chapter II :3

Photo credit : Human Rights Watch