Immigration detention in Europe: What are the facts? A new European Migration Network Study

 

Izabella Majcher, Associate Researcher at Global Detention Project and PhD candidate in International Law at the Graduate Institute of International and Development Studies is Geneva.

 

In November, the European Migration Network (EMN) released its Focussed Study titled “The use of detention and alternatives to detention in the context of immigration policies.” It constitutes a synthesis report based on national reports from 26 countries, prepared by the EMN National Contact Points (NCPs). The countries covered by the report included 25 European Union (EU) member states (Austria, Belgium, Bulgaria, Croatia, Cyprus, Czech Republic, Estonia, Finland, France, Germany, Greece, Hungary, Ireland, Latvia, Lithuania, Luxembourg, Malta, Netherlands, Poland, Portugal, Slovak Republic, Slovenia, Spain, Sweden, and the United Kingdom) and one Schengen Associate country (Norway).

 

The aim of the study was to “identify similarities, differences and best practices with regard to the use of detention and alternatives to detention in the context of (Member) States’ immigration policies.” There are two main forms of immigration detention under EU law: pre-removal detention, which is regulated by the Returns Directive (2008/115/EC), and asylum detention, governed mainly by the Reception Conditions Directive (2003/9/EC) and its recently adopted recast (2013/33/EU). This blog post will briefly discuss the study by looking at its objectives (p. 8), namely to:

 

·         “Provide information on the scale of detention and alternatives to detention in each participating Member State and Norway by collecting statistics available on the number of third-country nationals (by category) that are subject to these measures;

 

·         Identify the categories of third-country nationals that can be subject to detention and/or provided an alternative to detention;

 

·         Compare and contrast the grounds for placing third-country nationals in detention and / or providing alternatives to detention outlined in national legal frameworks, as well as the assessment procedures and criteria used to reach decisions on detention in individual cases;

 

·         Identify and describe the different types of detention facilities and alternatives to detention available and used in (Member) States;

 

·         Collect any evidence of the way detention and alternatives to detention contribute to the effectiveness of return policies and international protection procedures.”

 

Scale of immigration detention

 

The statistical information constitutes one of the key strengths of the report. The figures on the number of migrants in detention are particularly relevant because the EU statistical office (Eurostat) does not provide them, to the contrary to, for instance, the number of non-citizens apprehended or deported.

 

For all but three countries (Cyprus, Greece, and Portugal) the report gives a total number of immigration detainees in 2013, which was 92,575. This figure is telling. However, to fully grasp the dimension of immigration detention in Europe, the figures for all the state parties to the relevant EU instruments over a few years are needed.

 

In 2013, the country which detained the highest number of non-citizens was France (including French overseas territories) (38,266), followed by Spain (9,020), Hungary (6,496), Bulgaria (6,303), and Belgium (6,285). On the other hand, the lowest number of immigration detainees was reported in Estonia (94), Slovakia (204), Latvia (221), and Lithuania (243). In terms of variations of the number of detained migrants, between 2009-2013 the highest increase was observed in Bulgaria (by more than 600 percent) and Hungary (by 226 percent). On the other hand, the greatest decrease was recorded in Slovakia (by 65 percent) and the Netherlands (by 53 percent).

 

Regrettably, few of the covered countries provided disaggregated statistics on the various categories of non-citizens among the total numbers of immigration detainees. Only nine countries provided data on the number of asylum seekers in detention and five countries on the number of pre-removal detainees. The recast of the Reception Conditions Directive contains a list of circumstances justifying detention of asylum seekers. Human rights advocates feared that this may trigger a more widespread use of detention during asylum procedures. The deadline for transposition of the recast is set for July 2015 and to date only a handful of countries have already transposed it. However in order to ascertain whether these concerns have materialized, the data on the number of asylum seekers in detention should be systematically collected already prior to the transposition of the recast.

 

Grounds for immigration detention

 

The study provides a useful overview of the most common grounds on which non-citizens can be detained under the domestic legislation of the examined countries. With respect to migrants in return proceedings, the report highlights 11 grounds laid down in legislation of the states bound by the Returns Directive (i.e. all countries covered by the study, except from the UK and Ireland). They include: the risk of absconding (22 countries), avoidance and hampering the removal process (20 countries), in order to effect the removal (14 countries), non-compliance with the alternatives to detention (12 countries), threat to national security and public order (12 countries), non-compliance with the voluntary return period (11 countries), the need to establish identity (11 countries), and reasonable grounds to believe that the person will commit a criminal offence (6 countries).

 

Amongst these grounds, only the first two are explicitly set out in the Returns Directive. The third one (to effect the removal) is also mentioned in the Directive, however as a general rationale for placing migrants in pre-removal detention. The fact that there are eight other grounds in the domestic legislation of the member states bound by the Directive, what did not entail any infringement proceedings by the European Commission, shows that, to the contrary to the stance by the Directive’s proponents, the Directive does not provide for an exhaustive list of grounds. Undoubtedly, an exhaustive enumeration of the circumstances justifying deprivation of liberty would prevent states from systematically ordering detention.

 

The report defines immigration detention as a non-punitive administrative measure (p. 8). Yet, two out of the above listed grounds appear to go beyond administrative migration-enforcement rationale. Arguably detention on account of threat to national security and public order and risk that the non-citizen will commit a criminal offence aims at deterrence or incapacitation. It is submitted here that if a migrant would indeed threaten public order, he should be subject to criminal rather than migration laws. Conflating the functions of these distinct branches of law creates confusion and feeds negative perception about migrants amongst the public.

 

In terms of detention of persons seeking international protection, the most common grounds include the need to establish the person’s identity (17 countries), the risk of absconding (16 countries), the threat to national security and public order (15 countries), suspicion of abuse of the asylum procedure (11 countries), the non-compliance with the alternatives to detention (9 countries), destroyed or forget identity documents (8 countries), and reason to believe that the persons will commit a criminal offence (7 countries).

 

Upon the transposition of the recast Reception Conditions Directive, several states would need to adapt their domestic provisions containing circumstances justifying detention to comply with the Directive, since it sets out an exhaustive list of grounds. These grounds include: determination of the identity and nationality, determination of the elements of the asylum application that could not be obtained in the absence of detention (particularly if there is a risk of absconding), when border, return, or Dublin procedures are ongoing, and for the protection of national security and public order.

 

Review of detention

 

The report’s findings under this heading are meaningful and show how Member States participating in the Returns Directive took advantage of quite low requirements of the Directive in terms of judicial control of detention. In fact, the lack of mandatory and ex officio judicial supervision of detention appears to be one of the weaknesses of the Directive. Under the Directive, detention shall be ordered by administrative or judicial authorities. As the report shows, in most of the countries authorities which decide to arrest a migrant also carry out an initial assessment of whether grounds for detention apply. Usually these are non-judicial bodies, such as police (11 countries), migration and asylum authorities (10 countries), Interior Ministries (5 countries), and border guards (5 countries). Only in nine countries is the decision to detain ultimately taken by a court. Thus, the vast majority of the countries relied on the possibility under the Directive to task administrative bodies to order detention. In such cases, the Directive obligates states to either provide for a speedy judicial review of detention or grant the detainee the right to apply for such a review. Obviously, the latter option is less protective and often migrants would need legal assistance to be able to exercise that right. Yet, this option has been privileged by states. The data put together in this section of the report demonstrate that in 16 of the examined states, there is no automatic periodic judicial review of detention. Administrative courts are only involved following application by the detainee.

 

Places of detention

 

Both the Returns Directive and the recast Reception Conditions Directive prioritize the use of specialized detention facilities for confining immigration detainees. In July 2014, the Court of Justice of the European Union interpreted the relevant provision laid down in the Returns Directive and ruled that the absence of specialized facilities in one part of the Member State’s territory does not justify using prisons, if specialized facilities are available in other part of its territory.

 

This section of the report is confusing. The study uses the term “detention facility” when referring to specialized facilities. It provides that the use of “detention facilities” is a “consolidated practices across all (Member) States, with the exception of Ireland where third-country national are detained in prisons” (p. 28). This statement implicitly says that other countries use specialized detention facilities, but that is far from the reality. In fact, Germany, for instance, uses prisons, Greece police stations, while Austria “police detention centres,” which are a peculiar kind of facility, confining, besides immigrations detainees, also administrative detainees and criminal suspects. The report in fact classifies immigration detention sections of German prisons and Austrian “police detention centres” as specialized facilities. It also says that migrants can be detained in police and border stations in Greece for a short time. This statement seems to ignore a systematic practice by Greek authorities, confirmed by several monitoring bodies, of detaining migrants in such premises for the maximum length of detention.

 

It needs to be highlighted that the report’s findings are based on the national reports written by EMN National Contact Points (NCPs). Out of 26 NCPs which drafted the national reports, 18 are part of or work under the authority of the Ministry of Interior, three are national offices of the International Organization for Migration (IOM), while only three include academic or research institutions. The involvement of the Ministries of Interior in the drafting of at least 70 percent of the reports calls for reading with caution the positive findings flowing from these reports. In particular, in order to have a more nuanced picture of the use of immigration detention in Europe, one should gather the information from academia and relevant NGOs.

 

Alternatives to detention

 

The Returns Directive and the recast Reception Conditions Directive require states to give priority to “less coercive measures.” The study enumerates the most common non-custodial alternatives to detention, including reporting obligations (23 countries), residence restrictions (18 countries), surrender of documents (15 countries), and the release on bail (13 countries). It does not however clarify whether these alternatives to detention are solely provided for in domestic legislation of examined countries, or are also used in practice. In fact, with respect to the use of alternatives to detention the difference between theory and practice tends to be considerable. It its March 2014 Communication on Return Policy, the European Commission assessed both the legal and practical application of the alternatives to detention in 31 countries. In total, the examined countries reported 87 cases of a legal basis in their domestic legislation for an alternative to detention, comprised in the four categories enumerated in the EMN report. When looking at the practical application, out of these 87 reported domestic legal provisions on alternatives, only 32 percent has been used in practice, in 23 percent of cases there was no practical application, while for the remaining 45 percent there was no information about their use in practice.

 

Impact of detention

 

The final, but one of the key objectives of the report was to identify whether the use of detention or alternatives to detention contribute to the effectiveness of return polices and international protection procedures. The study acknowledges that the impact of detention and alternatives to detention on the effectiveness of migration procedures was difficult to measure because very little data was available to evaluate this question. It makes however a few points in this respect. It notes that the risk of absconding could be greater in case of alternatives to detention, since such a risk does not exist when person is put in detention. On the other hand, alternatives are less costly than detention. Most importantly, the report finds that in overall the impact of both detention and alternatives to detention on the ability of states to effect a return appears to be insignificant, to the contrary to other factors, like having travel documents for the person to be deported.

 

These findings invite us to make some concluding comments. Where a risk of absconding during return procedures can be minimalized by reliance on less costly alternatives to detention, but states nevertheless opt for detention, this may show that detention offers some (hidden) advantages for states. The same holds true in cases of systematic detention, for prolonged periods, of persons who cannot be deported. Arguably, despite being formally an administrative and non-punitive measure, immigration detention is sometimes used by states as a deterrent, which is a typical function of criminal incarceration. Placing migrant in detention may aim at compelling him to collaborate with authorities in view of obtaining travel documents or agreeing to return voluntarily. The use of detention for such criminal-like purposes appears to be beneficial for States, while at the same time makes non-citizens more vulnerable to abuses.

 

Barnard & Peers: chapter 26

 

Photo: Amygdaleza detention centre in Greece, credit: www.metamute.org

Should consumers be expected to know foreign languages? The CJEU ruling in the Golden Balls case

 

Anna Dannreuther, Trainee, Research Department of the CJEU (All views author’s own)

In its judgment of 20 November in the case of Intra-Presse SAS v OHIM (the 'Golden Balls' case), the CJEU notably did not end the 7 year trade mark battle between the UK family-run company Golden Balls Ltd. and Intra-Presse, the French organisers of FIFA’s Ballon d’Or or European Footballer of the Year Award. In a dispute concerning the registration of the word mark ‘Golden Balls’, the eighth chamber of the CJEU sent the case back to the Office for Harmonization in the Internal Market (“OHIM”) to be decided on one of the grounds of appeal at issue in the case, and has given firm instructions on the assessment to be pursued.

Background

In 2007, Gus and Inez Bodurs of Golden Balls Ltd., sought registration of the word mark ‘Golden Balls’ as a Community Trade Mark. In 2008, Intra-Presse filed opposition proceedings against the registration in respect of their earlier registered Community Trade Mark ‘Ballon d’Or’. They did so on the grounds of Article 8(1)(b) and 8(5) of the Community Trade Mark Regulation No 40/94, now found in Regulation 207/2009.  

Under Article 8(1)(b),  the ‘confusion ground’, registration may be refused if there exists a likelihood of confusion on the part of the relevant public because of the similarity between the two trade marks and  the similarity of the goods and services covered by them.  Under Article 8(5), the ‘reputation ground’, if the later mark is similar to the earlier mark and the earlier mark has a reputation in the Community and the Member State concerned, registration can be refused even for goods and services not covered by the earlier trade mark, where such registration would take unfair advantage of, or be detrimental to the repute of the earlier trade mark.

The First Board of Appeal of the OHIM held that the two word marks were ‘extremely similar’ [para 15]. On that basis they upheld Intra-Presse’s opposition under Article 8(1)(b), and only registered Golden Balls’ mark for goods not covered by the mark ‘Ballon d’Or’, thereby dismissing Intra-Presse’s  opposition under Article 8(5).

On appeal, the General Court of the European Union found that the signs ‘Ballon d’Or’ and ‘Golden Balls’ only had a weak degree of conceptual similarity, which was not enough to offset their visual and phonetic dissimilarities [para 28] to create confusion. It also found that the signs lacked the requisite similarity for the purposes of applying Article 8(5). It thus rejected Intra-Presse’s opposition in entirety.

Intra-Presse appealed this judgment on three grounds; (i) distortion of the facts in the assessment of the abilities of the relevant public; (ii) infringement in Article 8(1)(b) of Regulation No 40/94; and (iii) infringement of Article 8(5) of Regulation No 40/94.

Judgment

As regards the first two grounds, the Court held that it had no jurisdiction to rule on appraisals of fact, as appeals to the CJEU are limited to points of law under Article 256(1) TFEU and Article 58 of the Statute of the Court of Justice of the European Union [paras 38 and 63]. It accordingly found Intra-Presse’s pleas manifestly unfounded and manifestly inadmissible respectively.

Regarding the third ground of appeal, the Court reiterated its case law, notably Ferrero v OHMI, and stated that the degree of similarity required under Article 8(1)(b) and under Article 8(5) of the Regulation is different. For the former there must be such a degree of similarity as to lead to a likelihood of confusion on the part of the relevant public. For the latter, any degree of similarity triggers an overall assessment of the possibility whether registration of the later trade mark might be detrimental to the reputation of the former. Included in this assessment is whether the former trade mark has a reputation in the Community and Member State concerned. Accordingly, the Court sent the case back to the OHIM to adjudicate afresh on these matters, taking into account the guidance given in the judgment.

Comment

Not quite the judgment that any party wanted, the case nevertheless serves as a useful reminder that the degree of similarity needed in order to establish injury under both Article 8(1)(b) and Article 8(5) is different. Notably, under Article 8(5) any degree of similarity triggers an overall assessment of whether registration of the later mark would be injurious to the earlier mark. Integral to this assessment is the earlier mark’s reputation.

Of greater interest is the parties’ argumentation concerning the linguistic capabilities of the relevant public in relation to conceptual similarity. As the Court dismissed these grounds as appraisals of fact, OHIM’s findings in this respect may be interesting. Intra-Presse argued that the General Court had erred in law by stating that prior translation of the word marks was needed before it could be recognised by the relevant public as conceptually similar.  It added that when word marks are composed of basic words in various languages understood by the public, then there is no ‘intellectual process of translation’, nor does the consumer engage in ‘prior translation’ or ‘begin by translating’ [para 57]. It asserted that the meaning of those words would be immediately understood by the relevant public, whatever its mother tongue.

This case thus raises important linguistic issues. Given the multilingual nature of citizens of the European Union, to what extent do differences in the language of the word marks affect the likelihood of confusion of the relevant public? To what extent does this take into account cultural differences, such as U.K citizens’ lesser ability to speak languages, as compared to, say, Luxembourgish citizens? Specifically, what is the degree of linguistic knowledge of the average French or British consumer? We have seen cases where conceptual similarity is established when the languages of opposing word marks are both official languages of the territory of the relevant consumer (Organismos Kypriakis Galaktokomikis Viomichanias v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM), Garmo AG, Case T-534/10, 13 June 2012[2012] E.T.M.R. 55) and where German, Finnish, Dutch, Danish and Swedish consumers are able to understand the English word ‘shark’ with prior translation (Osotspa Co. Ltd, established in Bangkok (Thailand) v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM), Case T-33/03, 9 March 2005 E.C.R. 2005 page II-00763). However, we have not seen a case where the notion of ‘prior translation’ is discussed in detail, or a case assessing the language capabilities of the francophone and anglophone public. Here’s hoping that the case rises through the ranks and we see a CJEU ruling on this imminently.
 

 

Photo credit: Daily Mail

LGBTI asylum-seekers: the CJEU sends mixed messages

 

 

Steve Peers

 

Many countries worldwide still impose severe criminal sanctions and other forms of ill treatment on people who are gay, lesbian, transgender or intersex (LGBTI). Fortunately, according to the CJEU, any non - EU citizen suffering persecution on grounds of sexual orientation can seek asylum in the EU, claiming that they are part of a 'particular social group' being persecuted, in accordance with the EU's qualification Directive.
 

The Court's prior case-law (the X, Y and Z judgment of 2013) further clarifies that they do not have to keep their sexuality hidden in their country of origin in order to claim refugee status. But the mere existence of criminal law prohibitions in the country of origin doesn't necessarily mean that LGBTI asylum-seekers are being persecuted: the crucial question is whether such laws are actually being enforced.
 

Before getting to the issue of persecution, though, how can the authorities check whether asylum-seekers are gay or lesbian in the first place? In today's judgment in A, B and C, the CJEU rules out the most obnoxious forms of procedures to determine sexual orientation, but still leaves some leeway for dubious behaviour by national authorities.
 

The judgment
 

Asked by a Dutch court to clarify what national authorities can do to establish the sexual orientation of asylum seekers, the CJEU begins by stating that a mere self declaration by the asylum seeker is not sufficient. This is only the starting point of the assessment.
 

Although EU legislation does not address the issue of the credibility of asylum seekers in much detail, the CJEU states that the process of determining credibility must be consistent with the EU Charter of Fundamental Rights. In principle, the same rules apply to all categories of asylum seekers, but they can be adapted to particular groups.
 

First of all, the CJEU states that questions 'based on stereotypical notions may be useful' to national authorities. But they cannot base their decisions purely on such notions, and the asylum seeker's inability to answer such questions cannot mean that he or she has no credibility.
 

Secondly, the CJEU rules against detailed questioning about asylum seekers' sex life, on the grounds that this would breach Article 7 of the Charter (the right to privacy). (On the questions which are asked in practice, see Colin Yeo's earlier post on the Free Movement blog).
 

Thirdly, the CJEU rules that LGBTI asylum-seekers should not perform sex acts, produce films of their sexual activities or undergo medical testing to prove their orientation. This would breach Article 1 of the Charter (the right to human dignity) as well as Article 7.
 

Finally, the CJEU rules that Member States cannot assume that LGBTI asylum-seekers lack credibility simply because they didn't raise the issue of their sexuality as soon as possible, in light of the sensitivity of the topic. However, the Court does not rule on some additional procedural issues considered in the Opinion of the Advocate-General.
 

Comments
 

The Court's judgment frees LGBTI asylum-seekers from many particularly obnoxious forms of testing and questioning. In particular, it frees them from phallometric testing. The Court didn't mention the details of this process, but suffice it to say that it involves examining men's physical reaction to viewing pornography. The judgment should have added that this process is also a breach of Article 4 of the Charter, as a form of degrading treatment.
 

As for producing films or engaging in sex acts, the Court was right to rule out implicitly the possible waiver of privacy rights on the grounds that other asylum-seekers would be pressured to do the same thing.
 

The ruling also usefully clarified that LGBTI asylum-seekers do not need to declare their sexual orientation as soon as possible. This takes account of the social reality for people who have just fled countries where their personal identity is taboo.
 

On the other hand, today's judgment is unhelpful to the extent that it refers to the possibility of 'useful stereotypes' when questioning LGBTI asylum-seekers. Although the Court only refers in this context to questions about the existence of NGOs supporting LGBTI individuals, many other stereotypes exist. The Court ruling might be interpreted to endorse assumptions that (for instance) gay men don't like sports, or that lesbians have short hair. Such stereotypes might be only mildly annoying on a day - to - day basis. But if they are used in order to reject an asylum claim, they could be fatal to the person concerned.
 

Admittedly, the Court rules out relying on the answers to such questions as the sole basis for denying asylum. Nor is it possible to decide that an asylum seeker who can't answer such questions has no credibility. But it is still possible that an asylum seeker will lose credibility if he or she gives the 'wrong' answer to these questions; and those answers can form part of the assessment of credibility.

More broadly, the Court's approach fails to take sufficient account of the wide diversity of the expression of human sexual identity, especially in countries where homosexuality is taboo.
 

While some questions relating to LGBTI asylum-seekers' credibility must be acceptable, given that the Court ruled out self - declaration as an automatic route to establish such credibility, the Court could surely have found a better form of words than 'useful stereotypes'. It could, for instance, have endorsed the relevant UNHCR guidelines discussed in the Advocate-General’s opinion.

Although there are many positive aspects of today's judgment, the CJEU's unjustified aversion to human rights soft law may cause problems for many LGBTI asylum-seekers in practice.

Barnard and Peers: chapter 26

The UK opts back in to the European Arrest Warrant - and other EU criminal law

 

Steve Peers

After much controversy, the UK today completed the process of opting out of EU criminal law measures adopted before the entry into force of the Treaty of Lisbon, and opting back in to some of them. This blog post looks as the legal framework for this process and the consequences of opting back in. It’s an updated version of a previous Statewatch analysis written this summer.

The Legal Framework

 

Before the entry into force of the Treaty of Lisbon, the UK was a full participant in almost all EU policing and criminal law measures. The exception was a small part of those measures ‘building on the Schengen acquis’, ie measures set out in, or amending, implementing or closely related to the Schengen Convention on the abolition of border controls. Most of those Schengen-related criminal law and policing measures applied to the UK from the start of 2005, except for the rules on cross-border hot pursuit by police officers (which the UK did not opt into) and the rules on the Schengen Information System (SIS) database (because the UK wanted to wait until a second-generation SIS was operational first, and this didn’t happen until 2013).

The Treaty of Lisbon changed the legal framework for the adoption of EU policing and criminal law, applying to this field the normal jurisdiction of the Court of Justice of the European Union (CJEU) and, for the most part, the ordinary legislative procedure of the EU, which entails joint powers for the European Parliament and no vetoes for Member States in the Council.

The UK would only agree to these major changes in return for two forms of opt-out. The first opt-out relates to policing and criminal law measures adopted after the entry into force of the Treaty of Lisbon. This opt-out allows the UK to decide on a case-by-case basis, after each proposal is made, whether it seeks to opt in or out. If the UK initially decides to opt-out, it can always seek to opt in again (needing the Commission’s approval) at any time after the measure is adopted.

 

The second form of opt-out takes the form of a ‘block’ opt-out for those measures adopted before the entry into force of the Treaty of Lisbon. This was intrinsically linked to a five-year transition period concerning those measures, which is applicable to all Member States. That transitional period finally expired today.

 

This second opt-out is set out in Article 10 of Protocol 36 to the Treaties, which is set out in full in the Annex. The Article states first of all that the normal powers of the Court of Justice of the European Union (CJEU) and the Commission did not apply for five years after the entry into force of the Treaty of Lisbon, to pre-Lisbon third pillar measures. This meant that the Commission did not have power to bring infringement procedures against Member States to the CJEU regarding these laws until today.

Nor did the CJEU have jurisdiction over questions from national courts concerning EU law in this area, except where Member States had chosen to opt in to this jurisdiction (18 Member States opted in, and the Court delivered a number of judgments in this field). Also, the transitional rules cease to apply to an act which is amended after the Treaty of Lisbon comes into force, and a number of such acts were indeed amended.

Secondly, Article 10 of Protocol 36 set out a potential opt-out for the UK (but not for any other Member States) at the end of this five-year period. If the UK notified the Council by 1 June 2014, all the pre-Lisbon third pillar acts ceased to apply to it as of 1 December 2014, unless those acts have been amended and the UK has opted in to those amended measures. In this event, the Council could decide the ‘necessary consequential and transitional arrangements’, and could also decide that the UK has to ‘bear the direct financial consequences, if any, necessarily and unavoidably incurred’ as a result. In both cases, the Council acts by a qualified majority vote on a proposal from the Commission. The UK does not participate in the first of these measures (consequential arrangements), but would participate in the second (financial consequences).

Thirdly, the UK can seek to opt back into to some of the measures it has opted out of ‘at any time afterwards’. If it does so, then the rules for opting into Justice and Home Affairs measures in either the Protocol on the Schengen acquis or the Protocol on Title V (JHA measures) apply. In practice, that means that the Council, acting unanimously, decides on re-admission of the UK to measures building on the Schengen acquis (ie measures set out in, or amending, implementing or closely related to the Schengen Convention on the abolition of border controls), while the Commission (with no role for the Council, unless the Commission refuses the UK’s request) decides on readmission of the UK to pre-Lisbon third pillar measures which do not build on the Schengen acquis. The Protocol concludes by stating that in such a case, the EU institutions and the UK ‘shall seek to re-establish the widest possible measure of participating of the [UK] in the acquis of the Union in the area of freedom, security and justice, without seriously affecting the practical operability of the various parts thereof, while respecting their coherence’.

 

The block opt-out in practice

 

The UK government indicated in 2012 that it was inclined to invoke the block opt-out, and then seek to opt in to a number of measures. In 2013, it officially invoked the block opt-out (well before the deadline of 1 June 2014), and indicated the 35 measures which it wished to opt back into. Informal negotiations then took place between the UK, the Council and the Commission, in particular during the Greek Council Presidency in the first half of 2014. The discussions were complicated somewhat by the UK’s request to begin participation in the second-generation SIS (known as SIS II) shortly before 1 December 2014, along with its request to amend the rules relating to SIS II alerts on the European Arrest Warrants in accordance with new EU legislation. Ultimately, the UK’s attempts to start applying the SIS this autumn were rejected, and it remains to be seen when it will begin to apply the system.

These negotiations were ultimately successful, and the Council Decision and Commission decision on the UK’s opt back in were adopted and published today.  The Council Decision amends the original Council Decision admitting the UK to participate in parts of the Schengen acquis, as well as the later Council Decision putting part of the Schengen acquis into force in the UK. The Council has published a codified text of the amended Decisions.

The crucial substantive point here is that the UK will continue to be committed to participating in the Schengen Information System, which provides for exchange of information on European Arrest Warrants, wanted persons and missing objects. It will also continue to be bound by the main criminal law and police cooperation provisions of the Schengen acquis.

As for the other measures, the Commission Decision approves the UK’s opt back in to almost all of the EU measures on mutual recognition in criminal matters (most notably the European Arrest Warrant), the creation of EU agencies (Europol, Eurojust) and exchange of information or databases, with a few exceptions: the Framework Decisions on mutual recognition of probation and parole decisions and the so-called ‘Prum’ Decisions on cross-border exchange of information on DNA, licence plate information and fingerprints.

On the latter issues, the transitional Decision (adopted last week) requires the UK to consider opting back in to the Prum Decisions by the end of 2015. If it does not do so, the financial consequences Decision (also adopted last week) requires the UK to pay back the money it received from the EU budget to prepare for putting the Prum rules into force. The UK agreed informally to consider opt back in to the Framework Decision on mutual recognition of probation and parole measures later. It will fall to the next UK government to decide on these issues (the next general election will be in May 2015), and it will always be open to the UK government to opt back in to more measures if it wishes.

There was some negotiation on the lists of measures which the UK sought to opt out of. As regards the Council Decision, one measure on the operational functioning of the SIS was added to the list. The Commission’s Decision included a decision to opt in to three measures implementing the Europol Decision, as well as the Decision establishing the European Judicial Network. These additional measures which the UK agreed to opt in to are essentially technical, except for the European Judicial Network, which the UK government believes is essentially a useless talking shop.

Also, it should be noted that some pre-Lisbon measures were amended while discussions were going on, in particular the EU’s Convention on mutual assistance in criminal matters and its amending Protocol. The UK did not want to opt back in to these measures, but this objection is now moot, since the UK participates in the EU Directive on the European Investigation Order (discussed here), which has replaced some of the corresponding provisions of those measures. So this means that it continues to participate in the Convention and Protocol, without having to opt back in.

However, the UK government withdrew its request to participate in two measures (a Decision on a hate-crime network, and a Decision on special police intervention units) during the discussions. This decision may well have been taken so that the government can still claim that it is only opting back in to a total of 35 measures.

It should also be noted that the UK’s opt back in to some of the pre-Lisbon measures concerned could be very short-lived, since there are proposals to replace these measures which the UK has opted out of, but which have not yet been agreed. This is the case particularly with Europol and Eurojust. Negotiations are further advanced on the Europol proposal (see discussion here), where it looks as if the UK’s concerns may have been addressed, with the consequence that the UK would opt in to the future Europol Regulation after its adoption. However, it is too early to say if the UK might eventually opt in to the future Eurojust Regulation.

Other transitional issues

Finally, the EU institutions have tried to clarify the new legal position which applies from today. They have published in the EU Official Journal a list of ‘Lisbonised’ measures, ie pre-Lisbon third pillar acts which have been amended since the Treaty of Lisbon entered into force. There is also a list of acts which have just ceased to apply to the UK.

Following an analysis of which pre-Lisbon measures could now be considered obsolete, and which therefore could be repealed. just last week the Commission made three proposals to repeal 24 pre-Lisbon acts. I’ll come back to these proposals in the near future – but suffice it to say that they don’t go nearly far enough to simplify the very complex legal framework that applies in this area.

Further on the issue of transparency, it would be useful to have a list of post-Lisbon measures which apply to the UK. It would not unduly task the Council and/or Commission to make the effort to publish online a constantly updated list of the measures which do or not apply to the UK (as well as Ireland and Denmark, which also have opt-outs), so that the public and practitioners in the UK and elsewhere can easily discover which EU laws in this field apply to the UK, and which do not.

 
 Annex

Protocol 36, Article 10

1. As a transitional measure, and with respect to acts of the Union in the field of police cooperation and judicial cooperation in criminal matters which have been adopted before the entry into force of the Treaty of Lisbon, the powers of the institutions shall be the following at the date of entry into force of that Treaty: the powers of the Commission under Article 258 of the Treaty on the Functioning of the European Union shall not be applicable and the powers of the Court of Justice of the European Union under Title VI of the Treaty on European Union, in the version in force before the entry into force of the Treaty of Lisbon, shall remain the same, including where they have been accepted under Article 35(2) of the said Treaty on European Union.

 

2. The amendment of an act referred to in paragraph 1 shall entail the applicability of the powers of the institutions referred to in that paragraph as set out in the Treaties with respect to the amended act for those Member States to which that amended act shall apply.

3. In any case, the transitional measure mentioned in paragraph 1 shall cease to have effect five years after the date of entry into force of the Treaty of Lisbon.

4. At the latest six months before the expiry of the transitional period referred to in paragraph 3, the United Kingdom may notify to the Council that it does not accept, with respect to the acts referred to in paragraph 1, the powers of the institutions referred to in paragraph 1 as set out in the Treaties. In case the United Kingdom has made that notification, all acts referred to in paragraph 1 shall cease to apply to it as from the date of expiry of the transitional period referred to in paragraph 3. This subparagraph shall not apply with respect to the amended acts which are applicable to the United Kingdom as referred to in paragraph 2.

5. The Council, acting by a qualified majority on a proposal from the Commission, shall determine the necessary consequential and transitional arrangements. The United Kingdom shall not participate in the adoption of this decision. A qualified majority of the Council shall be defined in accordance with Article 238(3)(a) of the Treaty on the Functioning of the European Union.

The Council, acting by a qualified majority on a proposal from the Commission, may also adopt a decision determining that the United Kingdom shall bear the direct financial consequences, if any, necessarily and unavoidably incurred as a result of the cessation of its participation in those acts.

6. The United Kingdom may, at any time afterwards, notify the Council of its wish to participate in acts which have ceased to apply to it pursuant to paragraph 4, first subparagraph. In that case, the relevant provisions of the Protocol on the Schengen acquis integrated into the framework of the European Union or of the Protocol on the position of the United Kingdom and Ireland in respect of the area of freedom, security and justice, as the case may be, shall apply. The powers of the institutions with regard to those acts shall be those set out in the Treaties. When acting under the relevant Protocols, the Union institutions and the United Kingdom shall seek to re­establish the widest possible measure of participation of the United Kingdom in the acquis of the Union in the area of freedom, security and justice without seriously affecting the practical operability of the various parts thereof, while respecting their coherence.

 

 

Barnard & Peers: chapter 25

The Cameron express: could there be a ‘fast-track’ Treaty amendment on the free movement of workers?

 

Steve Peers

For EU law geeks, the Treaty amendment process is the World Cup, the general election and the second coming of the Millennium Falcon rolled into one. Following the Treaty of Lisbon, it seemed unlikely that there would be another significant Treaty amendment for years. But following David Cameron’s demand to renegotiate EU free movement rules (which was echoed to a lesser extent by the UK Labour party), it has become rather more likely.

So we must move on to the next question: what type of Treaty amendment would it be?  Before the Treaty of Lisbon, there was only one form of Treaty amendment set out in Article 48 of the Treaty on European Union (TEU). However, it was also possible to amend the Treaty by means of accession treaties, and there were sundry forms of minor Treaty amendment (such as amendments to the EU Court’s Statute) scattered around the rest of the Treaties.

Since the Treaty of Lisbon came into force five years ago today, this situation is considerably more complicated. The previous Treaty amendment process has been revised, and there are two variations of it; it’s now called the ‘ordinary revision procedure’. There are two entirely new ‘simplified revision procedures’. Furthermore, there are additional possibilities for minor Treaty amendment scattered around the rest of the Treaties, and it’s still possible to amend the Treaties via means of an accession treaty.

These distinctions are important because if Cameron’s plans could be put into place by using a simplified revision procedure, the process would be speeded up at EU level – although not necessarily at national level.

The changes were so fascinating that, in an explosion of EU law geekiness, I took over 100 pages to analyse them in an article for the Yearbook of European Law. I won’t subject you to all of my analysis there, but it’s the basis for my following comments on which Treaty amendment process would apply to Cameron’s reforms.

Legal framework

There’s no accession to the EU planned for the next five years. So even if an accession treaty could address David Cameron’s renegotiation demands (and I don’t think it could), that prospect is irrelevant, since they couldn’t be addressed by this route before the deadline he has set for a referendum on the UK’s membership of the EU (end of 2017). The minor Treaty amendment processes aren’t relevant to any of his renegotiation demands either.

That leaves us with the ordinary revision procedure and the two simplified revision procedures set out in Article 48 TEU. These have been discussed in posts on other blogs over the weekend, in particular the 'Boiling the Frog' blog. I’ll respond below to some of the points made there.

The ordinary revision procedure requires a ‘Convention’ to be called, consisting of representatives of national parliaments, Member State governments, the European Parliament and the Commission. The Convention meets for a while (the details have to be worked out on a case-by-case basis) and recommends Treaty amendments. An Inter-Governmental Conference (IGC) of Member State representatives then convenes to consider the proposed amendments. If the IGC reaches agreement by the ‘common accord’ (ie the positive support) of all Member States, then the resulting Treaty amendment must be ‘ratified by all Member States, in accordance with their respective constitutional requirements’.

As a variation on this procedure, it’s possible to skip the Convention stage if a simple majority (15/28) Member State governments think that it’s unnecessary, in light of the limited extent of the proposed amendments. But an (inevitably short) IGC and Treaty ratification process is still necessary. If governments want to skip the Convention stage, they must convince the European Parliament to consent to it.

What about the two simplified procedures? The first simplified procedure, set out in Article 48(6) TEU, is the only one that might be relevant to Cameron’s proposed amendments. It provides that a Decision to amend the treaties can be adopted by the ‘European Council’, ie the EU body consisting of Heads of State and Government (Cameron, Merkel, et al), acting unanimously. This Decision then has to be ‘approved by all Member States, in accordance with their respective constitutional requirements’. This procedure applies to amendments of ‘all of part of Part Three’ of the Treaty on the Functioning of the European Union (TFEU), the second of the two main Treaties establishing the EU (more below on what’s in Part Three of the TFEU). This process ‘shall not increase the competences conferred on’ the EU.

The second simplified procedure, set out in Article 48(7), provides for a shift away from unanimous voting of Member States to qualified majority voting, or for changes in the type of legislative procedure, as regards most (but not all) of the two main EU Treaties. Again, the decision concerned would be adopted by the European Council, acting unanimously. But instead of ratification or approval by national parliaments, the Decision could be adopted if no national parliament objected within six months.

Obviously the second procedure couldn’t apply to Cameron’s proposed amendments, since increasing qualified majority voting in the EU is the last thing on his mind. This means that the curtailed role for national parliaments in the second procedure would not apply to the amendments which Cameron is seeking. The Boiling the Frog blog post gets this point wrong.

Since the entry into force of the Treaty of Lisbon, Article 48 has been used four times for Treaty amendments. (There’s also been an accession treaty and some minor Treaty amendments). The ordinary revision procedure was used on three occasions, as regards: a Protocol increasing the number of Members of the European Parliament temporarily; a Protocol on the concerns of the Irish people about the Treaty of Lisbon; and a Protocol limiting the effect of the EU Charter of Fundamental Rights in the Czech Republic.  The first of these Protocols entered into force in 2011; the second Protocol is still being ratified; and the ratification of the third Protocol stopped after a new Czech government withdrew its request, because it no longer wanted to limit the effect of the Charter.

The other Treaty amendment was based on Article 48(6). It consisted of a Decision adding a single paragraph to the TFEU in order to provide for Member States to adopt a treaty establishing a European Stabilisation Mechanism (ESM), ie a bailout fund for Eurozone Member States. This Decision entered into force in 2013.

The key questions about the possible use of the simplified Treaty amendment procedure set out in Article 48(6) for Cameron’s suggested changes are twofold. Firstly, how much easier is it to use than the usual Treaty amendment process? And secondly, when exactly can it be used? I’ll address these procedural and substantive questions in turn.

Procedural simplification

The simplified procedure doesn’t require a Convention to discuss the Treaty amendments. Furthermore, it allows a Convention to be skipped without the European Parliament’s consent; the Parliament only gets to be consulted on the Treaty amendment. There’s no IGC either, although inevitably there is some discussion among Member States, within the framework of the European Council, about the text which the European Council should adopt.

What about transparency? The last few IGCs have been fairly transparent, but when the European Council drew up an Article 48(6) amendment in 2010, no drafts of the Decision were published, and the European Council staff simply ignored my requests for access to the documents. Let’s hope this obnoxious attitude wouldn’t be applied to future cases. For a starting point, it was illegal to ignore my requests for access, since the EU’s access to documents rules apply to documents of the European Council. Furthermore,  while those rules allow for access to be refused in the interest of the institution’s decision-making efficiency, that interest can be overridden in the greater public interest. Obviously the public interest in scrutinising and debating planned Treaty amendments should take precedence.

While it's been suggested that a European Council Decision can be quietly adopted and presented as a fait accompli, that isn’t legally accurate or politically realistic. On the legal side, Article 48(6) expressly makes clear that the Decision will have to be ratified at national level. For the UK, if Cameron is doing the negotiating, that would also necessarily mean that the Conservative party either had obtained a majority at the next election or had done a deal with one or more parties to allow it to govern. In the scenario, an Act of Parliament providing for a ‘Brexit’ referendum would surely be on the statute books by the time the renegotiation of membership takes place.  

In the event of a Labour (or Labour-dominated) government, there would be no commitment to a Brexit referendum (unless that party changes its current policy). So the Treaty amendment in question would be subject to the European Union Act 2011, which requires an Act of Parliament for its ratification (see s. 3 of that Act; such a Treaty amendment is not among the list of changes which would require a referendum, according to s. 4 of that Act).

On the political side, if David Cameron secured a Treaty amendment and said he would not hold a Brexit referendum after all, he would not remain as Conservative party leader for more than 24 hours.  Anyway, since the referendum Act would presumably be on the books already, it’s hard to imagine a scenario in which a Conservative-dominated House of Commons would vote to rescind it. Equally, the Labour party says that it supports the European Union Act 2011, and if it has enough votes in the House of Commons to form a government, it should probably have enough votes to pass an Act of Parliament approving the Treaty amendment.

It’s often thought that all Treaty amendments require referendums in some other Member States, at least in Ireland. But that isn’t the case: the post-Lisbon Treaty amendments mentioned above didn’t require one. The crucial issue, according to Irish constitutional case law (see the Crotty case), is whether there is a fundamental change in the basis of Irish participation in the EU. It might be argued that a cut back in the rights of free movement of workers would constitute such a change; but the favourable immigration status of Irish people in the UK derives originally from UK domestic law, not the EU Treaties. On the other hand, an amendment to the Treaties would leave more flexibility for the UK to change that domestic law if it wished to.

Substantive issues

As a reminder, Article 48(6) can only be used if a Treaty amendment would revise Part Three of the TFEU, and would not increase the EU’s competences. Part Three of the TFEU is the biggest part of that Treaty, and sets out the main rules on the internal market, along with other EU internal policies on issues such as Justice and Home Affairs and the environment. Obviously, this means that the Treaty amendment could not be used to amend the separate TEU Treaty, or to amend the other six Parts of the TFEU.

What do these two legal constraints mean exactly? An interesting feature of Article 48(6) is that the CJEU has jurisdiction to rule on whether the European Council Decisions are valid or not. That’s because these particular Treaty amendments take the form of decisions of an EU institution, whereas the ordinary revision procedure results in acts of the Member States. The CJEU can rule on the validity of the former, but not the latter.

Challenges to the European Council Decision could come from the European Parliament (which might want to argue that the ordinary revision procedure should have been used), or via the national courts, which would send a question on validity to the CJEU. The latter process was indeed invoked when the Article 48(6) process was used before. In the case of Pringle, the CJEU was asked (among other things) whether the Treaty amendment relating to the ESM treaty was valid.

According to the Court, it was; and its judgment gives us some insight into the limits of Article 48(6). First of all, the Court assessed whether the Treaty amendment only amended Part Three TFEU. Formally speaking, that was an easy question to answer, since the amendment took the form of a new paragraph added to Article 136 TFEU concerning economic and monetary policy, and Article 136 is within Part Three. But the CJEU went further than that, and examined whether there was an indirect amendment to other provisions of the Treaties. This is surely the right approach, because otherwise it would be possible for an amendment placed in Part Three of the TFEU to limit the scope of an EU competence described in Part One of the TFEU, or to alter the Treaty amendment procedure as set out in the TEU (a separate Treaty).  

The importance of this point is that it could crop up again in respect of Cameron’s planned Treaty amendment. It could be argued, for instance, that a limit on EU workers’ rights might take the form only of an amendment to Article 45 TFEU (which sets out the basic rules on free movement of workers), it might impact upon the rules on EU citizenship and non-discrimination, which are set out in Part Two of the TFEU. Arguably, it might also impact upon the objectives of the EU, which include the free movement of workers, as set out in Article 3 TEU. Someone might also argue that it violates the EU Charter of Rights, which is separate from the Treaties but has the same legal value.

Furthermore, it’s clear that Cameron still wants to make changes to EU law besides the free movement rules. He confirmed this in his speech, when he said that he stood by every word of his Bloomberg speech of January 2013. The other changes he wants, such as a weakening of the ‘ever closer union’ rule and some changes relating to EU regulation, might not require a Treaty amendment, as I suggested earlier this year. But if Cameron did seek one, that would be problematic. The ‘ever closer union’ rule appears in the preamble, and Article 48(6) TEU cannot be used to amend the preamble either directly or indirectly. Arguably, any curtailment of the ‘ever closer union’ rule affects the entirety of the Treaties anyway. It would be easier to use Article 48(6)TEU as regards regulation issues, since the rules on the internal market and employment policy both appear in Part Three TFEU. But again it might be argued that such amendments have an indirect impact upon the objectives set out in Article 3 TEU, or the Charter.

What if the amendments took the form of a Protocol? Arguably Article 48(6) cannot be used to add, amend or repeal a Protocol, even if the content of that Protocol relates only to Part Three TFEU. The reason for this interpretation is that Protocols are attached to the entirety of both of the main EU Treaties, rather than to any Part of the TFEU as such.

That still leaves the issue of increasing EU competences. In Pringle, the CJEU ruled that the relevant Treaty amendment was acceptable on this point, since it simply confirmed the existence of competences that the Member States already had. Applying this to Cameron’s planned Treaty amendments, they could probably not take the form of permitting the EU institutions to pass legislation to curtail the free movement rules, since that might be described as a new competence for the EU, given that the institutions would be able to provide for more limits than they can at the moment.

So the amendments would have to take the form of a new power for the Member States to curtail workers’ free movement rights. In principle this should be acceptable legally, since the prohibition on increasing EU competences set out in Article 48(6) surely implies that this process can be used to decrease such competences. But remember, in Pringle, the CJEU stressed that the Treaty amendment was acceptable because it confirmed existing powers of Member States. The amendments to the rules on the free movement of workers would be giving Member States new powers. While this also seems to fall within the scope of Article 48(6), the CJEU sometimes takes unusual approaches to the interpretation of Treaty rules.

Conclusion

A simplified Treaty amendment for Cameron’s free movement plans is possible, but only if they remain tightly restricted to amending rules set out in Part Three TFEU, provide for powers for Member States (rather than the EU institutions), and (probably) do not take the form of a Protocol. In any event, there would likely be a legal challenge, either from those who do not like the proposed changes or who think they do not go far enough (or both). It’s possible that they would survive such a legal challenge, but it might be politically unhelpful.

Barnard & Peers: chapter 2