Can the UK opt-out of mandatory EU refugee quotas?

 

Steve Peers

In two days’ time (Wednesday May 13^th), the EU Commission is due to present a communication on a new EU immigration and asylum agenda. I’ll look at this agenda in detail later, but one key issue calls for comment already: will the UK have an opt-out from mandatory refugee quotas?

Part of the Commission paper has been leaked, and it’s clear that at least on the issue of resettlement of refugees, the current draft of the paper is more ambitious than the conclusions of EU leaders, agreed a couple of weeks ago (see my comments on their conclusions here). In particular, the Commission plans to propose mandatory rules on ‘relocation’ of asylum-seekers and ‘resettlement’ of refugees. In EU jargon, ‘relocation’ refers to those already in the EU, while ‘resettlement’ applies to those currently in non-EU countries. The first group do not necessarily have valid asylum claims, while the latter group usually have their status as refugees positively assessed before they are admitted to the territory.

According to press stories in the Guardian and the Times (the latter is paywalled) there may be a conflict with the UK as regards refugee quotas, because of a doubt that the UK can opt out of these proposals. Let’s look at this from the legal and political point of view in turn.

Legal analysis

The draft Commission plan refers to the ‘legal base’ of the relocation proposals as being Article 78(3) of the Treaty on the Functioning of the European Union (TFEU), which provides that:

3. In the event of one or more Member States being confronted by an emergency situation characterised by a sudden inflow of nationals of third countries, the Council, on a proposal from the Commission, may adopt provisional measures for the benefit of the Member State(s) concerned. It shall act after consulting the European Parliament.

Article 78(3) is part of the Justice and Home Affairs (JHA) provisions of the Treaty. All of these provisions are found in Title V of Part Three of the TFEU. But the UK has an opt-out from these JHA provisions. In particular, Article 1 of Protocol 21 of the Treaties provides that (my emphasis):

Subject to Article 3, the United Kingdom and Ireland shall not take part in the adoption by the Council of proposed measures pursuant to Title V of Part Three of the Treaty on the Functioning of the European Union.

Article 1 refers to Article 3 of the Protocol, which is the power for the UK and Ireland to opt in to proposals on a case-by-case basis if they want to. For the avoidance of doubt, Article 2 of the Protocol reiterates that (my emphasis):

In consequence of Article 1 and subject to Articles 3, 4 and 6, none of the provisions of Title V of Part Three of the Treaty on the Functioning of the European Union, no measure adopted pursuant to that Title, no provision of any international agreement concluded by the Union pursuant to that Title, and no decision of the Court of Justice interpreting any such provision or measure shall be binding upon or applicable in the United Kingdom or Ireland; and no such provision, measure or decision shall in any way affect the competences, rights and obligations of those States; and no such provision, measure or decision shall in any way affect the Community or Union acquis nor form part of Union law as they apply to the United Kingdom or Ireland.

Article 2 refers to Articles 4 and 6: these rules give the UK power to opt into a JHA measure after it’s adopted (Article 4) and make clear that if the UK opts in to a JHA act, all the rules in the Treaty (ie the CJEU’s jurisdiction) apply (Article 6).

It’s beyond doubt that the opt-out Protocol applies to all JHA measures. This is confirmed because a specific clause (Article 9) does, by way of exception, state that one JHA rule (on anti-terrorist sanctions) applies to Ireland without any opt-out. There’s a similar sort of exception in a parallel Protocol which sets out JHA opt-outs for Denmark. So by a contrario reasoning, the UK can opt out of any JHA measures. If there were any exception for Article 78(3), it would obviously appear in the Protocol.

So it seems clear enough that the UK does not have to opt in to any refugee law measure, as long as it falls within a JHA legal base. The Commission paper does not contemplate the dubious strategy of trying to propose a refugee law measure on a non-JHA legal base, in order to circumvent the UK’s opt-out.

However, there is a specific rule which applies where an EU proposal would amend existing EU legislation which the UK is already bound by. In fact, the UK is not bound by most current EU asylum legislation, but it is bound by the Dublin Regulation, which determines which Member State is responsible for the application of an asylum-seeker who is on the territory (or in the territorial waters) of a Member State.  

There seems no reason to amend the Dublin Regulation as regards any resettlement proposal, since resettlement concerns recognised refugees currently in third countries, not asylum-seekers currently on the territory of the EU Member States. However, the relocation proposal probably would have to amend the Dublin Regulation, since it would necessarily alter the current rules on which Member State is responsible for an asylum application.

The special rule applying to the cases where a JHA proposal amends a JHA act which already binds the UK is set out in Article 4a of the Protocol:

1. The provisions of this Protocol apply for the United Kingdom and Ireland also to measures proposed or adopted pursuant to Title V of Part Three of the Treaty on the Functioning of the European Union amending an existing measure by which they are bound.

So the UK opt-out continues to apply in such cases. However, there’s a catch: if the UK opts out of such proposals, it’s possible for it to be turfed out of its participation in the existing law, ie the law which the proposal seeks to amend. In this case that would mean that the UK would be turfed out of its participation in the Dublin Regulation, which results in a net allocation of asylum-seekers from the UK to other Member States.

Article 4a sets out the details of how this would work. First of all, the Council (by a qualified majority vote of participating Member States, ie without the UK’s vote), on a proposal from the Commission, decides that the revised law would be ‘inoperable’ for other Member States or the UK, if the UK doesn’t participate. That decision in effect gives the UK an ultimatum to opt in to the amending law within two months. If the UK doesn’t opt in within that period, then the original measure (ie, the current Dublin Regulation) automatically ceases to apply to the UK.  

This ‘ultimatum’ clause dates from the Treaty of Lisbon, and has never been used. It would obviously cause considerable political friction if it were, given that the UK is attached to continuing its participation in the Dublin rules.

The new proposals might alternatively (or additionally) take the form of amendments to the current EU temporary protection Directive, which the UK also participates in. The same considerations about using the ultimatum clause would apply, except that there would not be so much political sensitivity: that Directive has never been used in practice, and the current UK government would probably not be upset about being expelled from it (this Directive dates back to 2001; the UK opted in under the previous Labour government). However, the proposals might also take the form of amendments to the EU’s Asylum and Migration Fund, which the UK participates in and would be reluctant to be expelled from (the previous coalition government opted in to it).

It should also be noted that there might be a legal argument about the use of Article 78(3), because the European Parliament (EP) would likely prefer another asylum ‘legal base’ to apply which would give it its usual power over EU legislation. But using a different asylum legal base would not alter the rules relating to the UK’s opt-out.

Political context

First and foremost, it has to be pointed out that the Commission’s proposals may not be accepted. Indeed, given the many previous failed attempts to agree EU rules on relocation and resettlement, and the obvious lack of willingness of EU leaders to commit themselves on these issues even in light of the recent migrant death toll, such proposals might well be dead on arrival. It’s clear from the wording of the Treaty that there has to be a qualified majority of Member States in the Council to approve such proposals, although the EP is only consulted.

Similarly, the UK could not be given an ultimatum as regards its participation in existing EU law unless the Commission proposes a Council decision to this end, and the Council agrees by qualified majority (without a UK vote). The EP has no role in that case. It’s far from certain that this would happen, even if the Council were enthusiastic about these Commission proposals.

In light of this, in combination with the election of a majority Conservative government committed to holding a referendum on the UK’s membership of the EU, is it really wise for the Commission to make these proposals and suggest that they might bind the UK despite its opt-out? Admittedly it’s not realistic to expect the Commission to avoid making any proposal which might cause the least offence to the UK for the many months up until the referendum date. But if it wants the UK to remain in the EU – as the Commission President says it does – it has to avoid making proposals which are liable to cause the most offence. That particularly applies to proposals relating to immigration, which is by far the most sensitive issue for the UK’s relations with the EU.

After all, if the UK leaves the EU, there would anyway be no prospect of relocating asylum-seekers here in any event. While it’s understandable that the Commission wants bold solutions to the EU’s migrant crisis, there are times when discretion is the better part of valour.

 

Barnard & Peers: chapter 26

Photo: bbc.co.uk

Is Brexit inevitable? The UK’s EU membership after the General Election

Steve Peers

The unexpected election of a Conservative majority government in the UK raises some fundamental questions about the UK’s continued membership of the European Union. As a first response to the election results, I’ll discuss here in turn the issues relating to the referendum and the renegotiation.

The Brexit referendum

What are the key issues of principle concerning the upcoming referendum?

First of all, let’s start with the obvious point: the new government will implement the Conservative party’s policy of attempting to renegotiate the UK’s membership of the European Union, followed by an in-out (‘Brexit’) referendum on the results of the referendum by the end of 2017. A government bill to this effect will likely be swiftly introduced; it will probably be similar to the Private Member’s Bill tabled on this issue in the last parliament, which was supported by the Conservative party.

Secondly, as I blogged last year, the opposition of many pro-Europeans to a referendum was both a mistake in principle, and a tactical error too. There’s clearly no point in expending any political energy on resisting a referendum any further.  The issue for the pro-EU side is now how to win the referendum.

Thirdly, the idea of trying to expand the voting franchise to cover all EU citizens living in the UK is a moot point in light of the outcome of the election. That’s simply because the Conservatives have the votes to push through (as they proposed in the prior Bill) a referendum based on the usual UK general election franchise (UK, Irish and Commonwealth citizens living in the UK, and UK citizens who have lived abroad for less than 15 years). Indeed, as I blogged earlier this year, while I sympathise with EU citizens living in the UK who would like to vote in a Brexit referendum, it would again be both wrong in principle and a tactical error to expand the franchise for that referendum.

Thirdly, there’s no particular reason to assume, as some inside and outside the EU do, that the anti-EU side will win the referendum. Rather the contrary: according to polling, support for staying in has risen in recent years, and clearly exceeds the support for leaving. That’s before any renegotiation takes place. Of course, we might not want to rely on polling so much in light of the election result - although the lead for the pro-EU side in this poll is much larger than the error in opinion polls during the general election. There’s also no good reason to consider the election result as a de facto vote for Brexit: the Conservative party was arguing for a renegotiation and referendum, not Brexit as such, and did not even get near 40% of the vote in any case. In a referendum, there is no ‘first past the post’ to distort the outcome of the public choice between multiple parties – only a straight ‘yes or no’ decision.

Renegotiation

There are three important political dynamics that will shape the debate over renegotiation of EU membership – and therefore affect the ensuring referendum – in the two and a half years to come.

First of all, a key issue will be the relationship between David Cameron and the rest of his party, most notably the large Eurosceptic chunk of it. Cameron’s decision to promise a renegotiation and a referendum, and then to make immigration from the EU such a key feature of the renegotiation, was prompted by demands from his backbenchers and concerns about losing Tory votes to UKIP. The latter concern will surely now go on the back burner issue as a result of the general election; but could the former issue become more important? With a small majority, is Cameron now even more at the beck and call of his back-benchers?

The key issue here is whether Cameron will continue to respond to Eurosceptic demands to harden his negotiation position (or not to give any ground on the position he has already set out), or whether he will (on this issue at least) feel less pressure than before. After all, he has answered his internal party critics by winning a majority in the House of Commons – and he has less pressure on him as a result of his intention to retire by the end of this parliament. A crucial question here is whether he could count on other parties’ support, if necessary, in the event of a rebellion by his own Eurosceptic backbenchers.

There’s an important point of principle here. Not only does the Conservative party have a democratic mandate to hold a renegotiation and a referendum: it also has a mandate to hold that renegotiation on the terms that Cameron has already set out. Some Eurosceptics believe that the UK could demand any renegotiation terms it liked from the rest of the EU, and automatically get them. But the lack of enthusiasm from other Member States for Cameron’s demands so far suggests that the Conservative party’s demands are already at (if not beyond) the limits of what other Member States could be willing to accept. Those Eurosceptics who feel that his current renegotiation demands are not enough should join the pro-Brexit camp openly and honestly, instead of trying to trick Cameron into making unrealistic demands in the hope that other Member States’ rejection of them would compel Cameron to give up on renegotiation and campaign for Brexit himself.

Secondly, a key issue is what other Member States now do following the general election result. There seemed to be little interest in discussing the renegotiation requests before, but that was understandable for two obvious reasons. First of all, because of the pending general election: why start to renegotiate with someone who might soon lose office? Secondly, because (and this was widely misunderstood) the British government never requested a renegotiation; it was Conservative party policy only. In the absence of agreement on Cameron’s strategy from the Liberal Democrats, the UK government as such never requested a renegotiation.

Both those obstacles to talks have now been removed. The question is whether other Member States are now inclined to respond to the requests for renegotiation or not. The response of key Member States like Germany, and traditional friends of the UK like the Netherlands and Ireland, will be crucial. While some Member States may think ‘this is too politically difficult for us’ or ‘if you don’t like the EU, just go away’, this would be a mistake. As a net contributor to the EU budget and a net importer of goods from the EU, it would be foolish for other Member States to refuse to negotiate at all – although as I said already, that does not mean that the UK can expect the rest of the EU to accept any and all renegotiation demands it might wish to make.

The renegotiation process will raise some important legal questions about the form and substance that renegotiation will take. I have blogged about some of these points earlier, and will be coming back to them over the months ahead.

Thirdly, the role of other political parties in the UK will be crucial. As I already mentioned, Cameron might need their support in the event of a rebellion by Eurosceptic backbenchers. Tempting as it might be to cause trouble for Cameron, it’s not in the interests of pro-EU parties to jeopardise the UK’s EU membership, which they support. Because the Conservative party has a majority, other parties will have no direct influence on the renegotiation as such. But they have an indirect importance, because of their key role in ensuring a Yes vote in the Brexit referendum. This can hardly be secured by Tory votes alone, given that the party attracts under 40% of the vote, including many anti-EU voters.

This has implications for the content of the renegotiation. Many Tories would love to see a renewed opt-out from the social chapter; but many voters on the left might reject staying in the EU on that basis (even if it could be negotiated with other Member States). Anything beyond a modest curtailment of the EU’s working time Directive (for instance, overturning the wacky CJEU case law counting doctors’ sleep as ‘working time’) could risk an anti-EU vote.

Furthermore, this means that pro-EU opposition parties will have to share a platform with (some) Tories – even though we can be certain that after two years of Tory government there will be utter loathing of that idea. But a ‘no’ to the EU will not force the Tory government out, or even cause Cameron to resign (it’s widely assumed that he would resign as Tory leader shortly after the Brexit vote anyway). And the most fervent supporters of the free movement of EU citizens will have to accept that some curtailment of free movement rights is an inevitable consequence of the renegotiation. Without it, there will soon be no free movement between the UK and EU at all.

As for the anti-EU parties (mainly UKIP and a big chunk of the Tories, with a smattering of politicians from other parties), the key issue will be whether they can sell a coherent and plausible alternative to the UK’s EU membership. This is another issue which I will come back to, since it raises many legal issues. But suffice it to say that the simplest alternative to EU membership (the European Economic Area) is unattractive to Eurosceptics because it still provides for free movement of people. Any other alternative will entail a negotiation of a new agreement with the other Member States. But the anti-EU side will not only have to agree a common view on what this would entail, but also convince the public that other Member States will necessarily accept it. Compare to the Scottish independence referendum last year, where the SNP government was able put forward a single detailed plan on what independence would look like (I doubt that the various Eurosceptics could easily agree on the equivalent) but could not then (as I blogged at the time) convince enough Scottish voters that the remaining UK would agree to it. This may prove to be the Achilles heel of the anti-EU side.

Finally, a more general point. The result of the general election is undoubtedly a great shock and disappointment to non-Tories like myself. But the prospect of a Brexit referendum offers us a chance to fight (alongside pro-EU Tories) for important things we believe in, well before the next general election: employment rights, environmental and consumer protection, human rights, animal welfare, openness to the outside world and economic prosperity through trade in goods and services and free movement of people.  Let's try to light this candle, not simply curse the darkness.

 

*This post is linked to research for my forthcoming book from Hart Publishing – Brexit: The Legal Framework for Withdrawal from the EU or Renegotiation of EU Membership

 

Barnard & Peers: chapter 2

Image: ConservativeHome.com

Irreconcilable Differences? Divorce and departure of EU citizens under the Citizens’ Directive

 

Steve Peers

What happens when a marriage between an EU citizen (who has moved to another Member State) and a non-EU citizen ends, after the EU citizen has already left that Member State? The EU Citizens’ Directive contains rules on both issues (divorce and departure), but those rules appear to conflict with each other nearly as much as divorcing couples do. An Advocate-General’s opinion today in the important case of Singh addresses these issues (there is a reference pending from the UK on these issues also). But unfortunately, this opinion is fundamentally flawed, and the Court of Justice should take an entirely different approach than the one which the Advocate-General recommends.

Background

EU free movement legislation, in the form of the Citizens’ Directive, gives EU citizens the right (subject to certain conditions) to move to another Member State, joined or accompanied by their spouse and other specified family members. But what happens if that marriage ends? According to the CJEU case law beginning with Diatta, a ‘spouse’ remains a spouse (and therefore still entitled to derived free movement rights, if that spouse is a non-EU citizen) even if the couple in question is separated, up until the date when the divorce becomes final. After the divorce, the Court ruled in case law starting with Baumbast that since the Regulation on free movement of workers gives the children of EU workers (or former workers) a right of access to education, they were entitled to stay on the territory to exercise that right, and the non-EU parent who cared for that child had a right to stay too (regardless of any divorce from the EU citizen), otherwise the child’s right would be ineffective.

Other cases where a marriage between an EU citizen and a non-EU citizen end are regulated by the citizens’ Directive. Article 12(2) of that Directive provides for the non-EU family members to retain residence rights in some cases if the citizen dies. Article 12(3) provides for the non-EU family members to retain residence rights if there are children left behind who are still studying, where the EU citizen dies or leaves the host Member State. Article 13(2) then specifies the right to remain of non-EU family members, in the event of divorce or end of a registered partnership. There are four alternative possibilities for retaining the right of residence in this case. The first possibility allows the right to be retained if the marriage or partnership has lasted at least three years, including at least one in the host Member State, ‘prior to the initiation of the divorce or annulment proceedings or termination of the registered partnership’. (After five years’ legal residence, the non-EU family members obtain permanent residence status; the complications arise in the period beforehand).

The Singh case, referred from the Irish courts, concerns three divorcing couples. In each case, the EU citizen first of all departed Ireland, leaving the non-EU spouse behind, and then initiated divorce proceedings.  So in a case involving both a departure and a divorce, what rules govern the situation?

The opinion

The Advocate-General states that Article 12(3) of the Directive sets out an exhaustive list of cases where a non-EU family member can retain residence rights after an EU citizen leaves the host Member State (presumably leaving aside the Regulation on free movement of workers, which is only relevant when there are also children involved). Conversely, the Advocate-General believes that Article 13 ‘is intended, in principle, to apply only to cases where both spouses are still residing in the host State until the time of the divorce’. If the EU legislature had wanted to create an exception to the rules on departure for cases relating to divorce, it would have done so expressly.  So Article 13 can only apply where a divorce claim is made before the EU citizen leaves the host Member State. Articles 12 and 13 can only be applied together in the cases referred to in Article 12(3), ie where the EU citizen has departed and there are children in education. This analysis is supported for reasons of legal certainty: it cannot be clear when an EU citizen departs that a marriage will end in divorce or not.

Therefore, in the Advocate-General’s view, once an EU citizen departs from that State without first initiating divorce proceedings, the non-EU citizen left behind loses the right to reside under EU law. On the other hand, if the divorce proceedings are initiated before the EU citizen leaves that Member State, then Article 13(2) applies and the non-EU ex-spouses will retain a right to stay if they meet the other conditions set out there. She admits the inequity in distinguishing between these two cases. However, problems could be avoided if the non-EU citizen accompanied the EU citizen, or began divorce proceedings in the host Member State before the EU citizen left.

She also rejects any relevance of the right to family life and private life referred to in Article 7 of the EU Charter of Fundamental Rights, since there is no family life to protect any longer in the case of a divorce. However, the Charter would protect the position of a non-EU spouse in an ‘intact’ marriage with an EU citizen who had moved to another Member State.

Finally, the opinion confirms prior case law to the effect that an EU citizen can also rely on resources provided by his or her non-EU family member in order to qualify for free movement rights.

Comments

With great respect, this opinion is highly problematic. The starting point is an over-literal interpretation of the relationship between the rules on departure and divorce in the EU citizens’ Directive. This leads the Advocate-General to suggest an interpretation which fails to take account of the consequences of her argument, and leads to results which were surely not intended by the EU legislature.

Let’s start with the purportedly literal interpretation of the Directive. In fact, there is nothing in the wording of Article 12(3) (like the words ‘only’ or ‘except where’) that clearly indicate that it sets out an exhaustive list of cases where non-EU citizens get to stay despite the EU citizens’ departure. We can turn the Advocate-General’s argument on its head here: if the EU legislature had wanted to create an exception to the rules on divorce for cases relating to departure, it would have done so expressly. Anyway, two of the four grounds for obtaining legal residence in the event of divorce (access to children and custody of children) will usually cross over with the grounds to remain after departure referred to in Article 12(3). If Article 12(3) were the only ground for the right to stay after departure, the reference to these cases in Article 13(2) is therefore largely redundant.

As for the argument based on legal certainty, applying a rule based on ‘departure’ of an EU citizen simply does not create any such certainty either. The Advocate-General herself argues for an exception where a marriage is intact despite a cross-border separation, but how can we know if that is the case?  How long a period in another Member State is necessary to count as a ‘departure’? What if the EU citizen decides to come back to the host State? What about cases where the EU citizen steps outside for the proverbial pack of cigarettes – and then goes missing?

Furthermore, the substance of the Advocate-General’s own argument is legally unclear. She mostly refers generally to the departure on an EU citizen from a Member State taking precedence over the rules on divorce set out in Article 13(2). But at one point, she makes a distinction based on whether the divorce application was filed before or after the EU citizen left the host Member State. Which is it? It’s a crucial distinction, because for the other three categories of cases where non-EU citizens retain residence rights despite a divorce (custody of children, access to children, domestic violence), there’s no reference to when the divorce proceedings were initiated. Anyway, her acceptance that the timing of the application for divorce might be relevant for the interpretation of the rules on departure undercuts her basic argument that Article 12(3) constitutes the only basis for non-EU citizens retaining a right of residence following the EU citizen’s departure.

What about the Advocate-General’s suggested solutions? It would be highly awkward, to say the least, to expect the estranged non-EU spouse to accompany his or her family member to another Member State, even though (according to the CJEU’s case law) they would not have to live under the same roof in that country. In any event, the family member would not have a right (under EU law) to accompany an EU citizen who moved to a third country (besides those covered by EU free movement rules: the EEA states and Switzerland). And it would be outrageous to conclude that the estranged non-EU spouse should follow an EU citizen in domestic violence cases.

The Advocate-General doesn’t mention the possibility that the non-EU family member could obtain rights under the EU’s long-term residence Directive, by adding periods of prior legal stay in that Member State to the time spent as the family member of an EU citizen. But not all non-EU citizens have had such a period of prior legal stay; and that Directive anyway does not apply to the UK, Ireland and Denmark.

The prospect of the non-EU spouse bringing divorce proceedings first depends on the interpretation of the EU’s rules on civil jurisdiction, which give jurisdiction to the courts of the Member State where one or both spouses are ‘habitually resident’. But that term is not defined in the Regulation, and so it might be argued that the courts of the host State, at least in some cases, will not have jurisdiction. Anyway, it is not unreasonable to expect the non-EU citizen concerned to devote his or her efforts to saving the marriage – and it’s even possible that he or she is unaware of the problems in it (where an EU citizen is having an affair, for instance).  Also, for the reasons already set out, this possibility should logically only apply where the Directive refers to the initiation of divorce proceedings. But that would mean that bringing proceedings first could not benefit those with custody of children, access rights to children or domestic violence issues.

Finally, it should be noted that the Advocate-General’s interpretation of the EU Charter analysis is simply wrong: Article 7 (which corresponds to Article 8 of the ECHR) does not apply only as regards family life, but also private life. This includes all the relationships which a foreigner has built up in a State, even if he or she no longer has family members there: see the Slivenko judgment, for instance.

So what is the correct approach to this issue? Admittedly, the Directive is very unclear about the relationship between divorce and departure. But the rules on divorce would lose much of their effet utile if they ceased to apply simply because the EU citizen left the country – particularly given that the whole point of EU law in this field is to promote such free movement in the first place. The best way to reconcile the two sets of rules is to rule Article 13(2) can confer a right of residence where a divorce application has been lodged within a reasonable period after the EU citizen has left the country. That’s undeniably vague. But the Directive is full of vague rules, such as the need to assess whether there is a reasonable prospect of finding employment, or to apply a case-by-case assessment of those convicted or crimes or applying for social assistance. And, as pointed out above, the Advocate-General’s alternative of relying upon the amorphous concept of ‘departure’ isn’t any more precise anyway.

 

Picture credit: salon.com

Barnard & Peers: chapter 13

Cheerleading or judging? The CJEU upholds the EU's unitary patent system

Steve Peers

Two new CJEU judgments (here and here) have today upheld the legality of the EU rules on the unitary patent. To what extent are the Court's reasons convincing and coherent?

Background

The background to today’s rulings was summarised in my previous blog post, on the Advocate-General’s opinion. Suffice it to say that: the EU has tried for decades to agree on patent rules, and the Treaty of Lisbon created a specific legal base for the adoption of EU intellectual property rules (Article 118 TFEU). The main rules are to be adopted by the ordinary legislative procedure (qualified majority voting in Council, joint power for the European Parliament), but the languages rules, which apply in this case to translations of the patent (or patent claims), must still be agreed by unanimity.

Since Member States could not reach the required unanimity on the patent translation rules, most Member States agreed to apply the process of ‘enhanced cooperation’, ie adopting EU legislation that applied to some Member States, but not others. This entailed a two-step procedure: authorisation of enhanced cooperation by the Council (by a qualified majority vote of all Member States), and then the adoption of the legislation to implement enhanced cooperation, with only the participating Member States voting. Spain and Italy challenged the initial authorisation (adopted in 2011) regarding patents, but the CJEU ruled against them in 2013. The two Regulations implementing enhanced cooperation in this area were adopted, in the meantime, at the end of 2012, concerning the substantive rules governing a ‘unitary patent’ and the language rules.  Spain (this time without Italy) challenged these measures in turn; those two challenges are the subject of today’s judgment.

The EU legislation on this issue is closely linked to two international treaties. First of all, the European Patent Convention, agreed in 1973, which binds all EU Member States and a number of non-Member States, and which sets up a legal framework for registering a patent in a number of European countries, by means of an application to the European Patent Office which it established. This results in a ‘European patent’, but the legal title concerned is not genuinely uniform, but depends on the national law of each of the countries where the patent is registered. The point of the EU legislation is to create a form of European patent that will have uniform existence in all of the participating Member States, also reducing the costs of translation that would otherwise apply.

The second treaty concerned is a treaty among Member States creating a Unified Patent Court, in order to reduce the costs of litigation concerning European patents and the planned unitary patent. (Although the CJEU had objected to aspects of these plans in its Opinion 1/09, Member States believe that they have addressed the Court’s concerns). That treaty will come into force once thirteen Member States, including France, Germany and the UK, have ratified it. So far six Member States have, including France. The application of the EU’s unitary patent law is dependent upon this treaty coming into force, and the unitary patents will only be valid in Member States which have ratified the treaty (all Member States except Spain, Poland and Croatia have signed it; all Member States except Spain, Italy and Croatia participate in the Regulations).

The judgments

Spain’s legal arguments against the two EU Regulations differed somewhat. As regards the main Regulation, Spain argued that it was invalid because it created a unitary patent dependent upon the acts of the European Patent Office, whose acts are not subject to judicial review. Secondly, the Regulation did not create ‘uniform protection’ within the meaning of Article 118 TFEU. Thirdly, there is a ‘misuse of power’, ie enhanced cooperation was used for a purpose other than the Treaties allow for. Next, the Regulation breached the rules concerning the conferral of implementing power upon the Commission, because it gives power to the Member States to decide on issues such as renewal fees.

As regards the languages Regulation, Spain argued that the special status of the French, English and German languages set out in that Regulation was discriminatory. Also, it argues that there is no legal power for the EU to regulate language issues in the event of a dispute, as the Regulation does, and that the Regulation violates the principle of legal certainty.

In both cases, Spain argued that the rules on adopting implementing measures were invalid, since powers to implement EU law were granted to a non-EU body, the European Patent Office. Also, it argued that making the application of the Regulations dependent upon the ratification of the treaty creating the unified patent court breached the principle of the autonomy of EU law.

The CJEU has rejected all of these arguments. In its view, the main Regulation doesn’t violate the rule of law, since it simply takes the form of a ‘special agreement’ as provided for in the EPC. Secondly, the Court said that Article 118 TFEU was the correct legal base for the legislation, since it established a system of uniform protection for unitary patents. It did not matter that it referred to national law as regards some issues, since Article 118 does not require the EU to fully harmonise the particular intellectual property right at issue, and at least this provided for more harmonisation than the EPC, which is in effect a bundle of national patents. Thirdly, there was no ‘misuse of power’, since the Regulation did not secretly aim at a purpose other than its purported end. Next, it was acceptable for the Regulation to confer upon Member States the power (acting via their participation in the EPO) to implement its rules, since the EU Treaties only require implementing powers to be conferred upon the conditions where ‘uniform’ implementing measures were required. Nor did the Regulation violate the ‘Meroni principle’ of an impermissible delegation of discretionary powers. Finally, the Spanish government’s challenges relating to the unified patent court treaty were inadmissible, and its challenge to the rules on the timing of the application of the Regulation were rejected on the merits. The Court ruled that the EU is free to defer application of EU legislation until preparatory steps have been taken, and that limiting the application of the Regulation to those Member States which have ratified the unified patent court treaty was acceptable, since it only affected a few provisions of the Regulation.

As for the languages Regulation, the CJEU ruled that while it was discriminatory in principle to confine translations to three languages only, there was no rule of EU law that all EU languages have to be equally valid as regards all issues linked to EU law. The discrimination as regards languages could be justified by the need for reducing costs and therefore encouraging innovation. It was appropriate to use the three languages already used by the EPO, in light of the link between the EPO and the EU system, and the EU law was not disproportionate, in light of the rules in the Regulation designed to address the concerns of patent holders using other languages. The Court also ruled that the entire Regulation fell within the scope of the ‘legal base’ relating to languages issues, and that there was no breach of the principle of legal certainty.

Comments

The CJEU did not really rule on any of the many interesting questions about the substantive grounds governing the implementation of enhanced cooperation, simply because Spain did not raise them. However, the argument relating to discrimination touches indirectly upon those issues.

Parts of the Court’s ruling are convincing, particularly as regards the possibility of delaying the entry into force of EU laws to wait for other developments, the ‘legal certainty’ issues relating to the languages Regulation and the legal base issue regarding the same Regulation. However, with respect, some of its reasoning was only partially convincing. The Court’s case for using a limited number of languages is sensible only if one accepts its underlying premise that the unitary patent system will have the overall impact of enhancing innovation. Many critics of the patent system argue that it does the reverse, by giving an overly lengthy monopoly to the patent-holders. To be fair, though, it would be too much to expect the Court to enter into this argument, particularly since Spain did not raise it.

Similarly, the Court’s argument that the Meroni principle was not infringed is sensible enough – if one accepts its separate conclusion that the main Regulation validly conferred implementing powers upon Member States. But that conclusion brings us to the chain of contradictions in the Court’s reasoning. For the powers that Member States will exercise when implementing the unitary patent Regulations will not result in divergent approaches in each country’s individual national laws, as is normally the case when Member States are left with the powers to implement EU law in practice. Rather, they must exercise their powers collectively, to adopt uniform rules regarding the unitary patent, within the context of the EPO. Indeed, the Court’s other conclusions insist upon the uniform nature of that patent. This points us inexorably toward the conclusion that uniform rules to implement the Regulations were necessary – which means (according to the Treaties) that such powers ought to have been conferred upon the Commission.

For the same reasons, the Court’s dismissal of the argument against limiting the application of the main Regulation to those Member States which have ratified the unified patent court treaty is unconvincing. The Court is indeed right to say that this limitation affects only a few provisions of the Regulation – but these are the provisions relating to the uniform nature of the patent, which the Court relied on so heavily when it defended the legal base of this Regulation.

This stress on the uniform nature of the patent also contradicts the first part of the Court’s reasoning on the main Regulation, which deferred to the EPC system and argued rather that EU law did not alter that system at all. The Court did not adequately answer the argument that the EU lacked power to do this, and entirely side-stepped the important argument that the EPO should be subject to judicial review. This contrasts with the Court’s famous insistence in Kadi upon the need for adequate review of international bodies whose acts impact upon the EU legal order.

In the Court’s view, the unitary patent system is valid because it largely refers back to the EPO system, and also because it does not. With respect, the Court is trying to have its cake and eat it too. A better argument would have been to embrace the hybrid nature of the system rather than run away from it. After all, the drafters of the Treaty of Lisbon were well aware of the existence of the EPO. In light of the discussions on a possible EU patent which were underway when that Treaty’s predecessor (the Constitutional Treaty) was drawn up, a hybrid solution based on a combination of the EPO and EU law was presumably exactly what the Treaty drafters were aiming to facilitate when they added Article 118 TFEU to the Treaties.  

Whether the Treaty drafters ought to have intended this is, of course, another question. But the best place for a debate about the fundamental merits of intellectual property protection is the political arena, not the courts. While today’s judgments confirm the legal validity of the EU’s unitary patent system, and enable it to go forward in the near future (after several more ratifications of the patent court treaty), their circular and contradictory reasoning suggests that the Court simply wanted to approve the patent system regardless of the legal arguments against. But this approach to judicial analysis could ultimately hinder, rather than bolster, the broader legitimacy of the unitary patent system.

The Returns Directive and the Expulsion of Migrants in an Irregular Situation in Spain

Dr Diego Acosta Arcarazo, Lecturer in Law, University of Bristol

Dr Andrea Romano, Research Assistant, La Sapienza University of Rome.

In a much expected ruling delivered on 23 April in Case C-38/14 Zaizoune, the CJEU apparently left without validity the Spanish legal architecture by which undocumented non-EU (third country) migrants could be subject to a fine, rather than be expelled as a result of their irregular situation. Below, we will briefly explain the Spanish legal system as well as the rationale by the Court in declaring it in breach of EU law, notably its limited analysis of Article 4(3) of the EU’s Returns Directive, which grants Member States the right to adopt or maintain more favourable provisions provided those provisions are compatible with that Directive.

The Case

Mr Zaizoune, a third-country national irregularly residing in Spain, received an expulsion order in October 2011. Mr Zaizoune brought an action against that decision and requested that such expulsion order should be replaced with a fine. Indeed, based on the Spanish legislation, which had been adopted in 2009 before the deadline for implementing the Directive had expired, and which followed consistent jurisprudence from the Spanish Supreme Tribunal, migrants in an irregular situation had to be subject to a fine as the only sanction as a general rule. Expulsion was indeed only possible when aggravating circumstances beyond the mere irregular stay were present, and only after having regard to the principle of proportionality, the degree of fault, the harm caused and the risk arising from the offence and its effects. In other words, irregular stay was, as a general rule, not considered to be of sufficient gravity to order expulsion from the territory.

However, we find here an instance of the dichotomy, that the American scholar Motomura has marvellously depicted in the US case, between immigration law in theory and immigration law in action or practice. Indeed, the fine was the first step for expelling an individual. Such person was told not only that he had to pay a fine but also that he had the obligation to voluntarily leave Spain or to attempt to regularize his status. Such regularization was only possible after having paid the fine, but paying the such fine did not excuse the person from being expelled if he had not been able to regularize.

The reasons for this system may be traced back to the Spanish immigration policy. Spain received a large number of third-country nationals in the first decade of this century. There were very few legal routes to migrate to Spain but this was coupled with a generous regularization policy well represented by the “arraigo” (settlement) figure. Arraigo allows an undocumented third-country national to request a residence permit after having resided for three years in Spain if some conditions are fulfilled out of which the most important one is to have a job offer. A scheme of fines fit well with this system where numerous third-country nationals could obtain a residence permit after having worked for a number of years in Spain.

The Court does not obviously enter into discussing these internal issues and concludes that the Directive precludes the Spanish provision providing for the fines as an alternative to expulsion, since it is likely to jeopardise the achievement of the objectives pursued by the Directive, notably the removal of the third-country national concerned, and, therefore, deprive it of its effectiveness (paras 39 and 41).

Comment

Since the adoption of the Directive, the Court has repeatedly ruled on the incompatibility between EU law and national law on return-related issues, where the latter provided for more restrictive rules. The CJEU clearly stated in El Dridi that “the Directive does not allow those States to apply stricter standards in the area that it governs” (par. 33).

In contrast, in Zaizoune the Court had to interpret the notion of the possibility of Member States adopting “more favourable provisions” than the Returns Directive, as permitted by Article 4 (2) and (3) of the Directive.

Labour law is an area where similar “more favourable provision” clauses have raised major concerns for the Court. Several rulings deal with the possibility for Member States to set higher standards for workers than EU employment legislation, and in some of these cases the Court has allowed them to do so.

For example, in Merino Gomez, the CJEU affirmed that number of days of leave for women who had taken maternity leave could be higher than those laid down in the relevant directive, since the latter only provides for minimum standards (par. 42-45). A similar rationale was also adopted in other cases such as Dominguez (paras 47-48) or Neidel (par. 35).

Probably a less linear attitude to the more favourable clause characterizes the case-law on migration and asylum law. In B and D the Court allowed a Member State to grant protection on the basis of its constitutional law in favour of a person excluded from the refugee status provided for by Directive 2004/83, the so-called “qualification Directive” that defines eligibility for refugee and subsidiary protection status in the EU. However, the Court excluded the application of the “more favourable provision” clause in that Directive in order to grant the persons concerned refugee status in accordance with the Directive, as the Directive required persons in the situation of the applicants to be excluded from refugee status (par.  113-121). Like the Returns Directive, the qualification Directive (and other EU asylum laws) only allow Member States to apply more favourable provisions that are compatible with the Directive. It should be noted that EU law on legal migration allows Member States to have more favourable standards without such a compatibility requirement.

A restrictive approach as regards “more favourable” rules for obtaining refugee and subsidiary protection status can again be found in the recent M’Bodj case, discussed further here. Here, the Court held that a person suffering from a serious illness cannot be eligible for subsidiary protection based on the more favourable provision clause (art. 3, Directive 2004/83), as this situation “has no connection with the rationale of international protection” (par. 44).

Furthermore, the interpretation of the more favourable provision clause has also been problematic in the area of free movement of EU citizens: in Ziolkowski, Advocate-General Bot argued that as art. 37 of the EU citizens’ directive provides for more favourable national provisions, residence periods of a Union citizen in a hosting Member State, on the basis of a residence permit issued under national law, are to be counted in order to obtain a permanent residence right (par. 46-49 and 58). This argument was however rejected by the Court (par. 48-50).

As far as migration law is concerned, in the recent Tahir case, the Court adopted a systematic reading and dismissed the literal interpretation of the applicant, who claimed the right to obtain a long-term residents’ EU residence permit on the basis that according to national legislation the requisite of an uninterrupted residence of 5 years was not explicitly required for family members of a TCN already holding such a long-term residence permit (par. 38-44). In both Ziolkowski and Tahir we see a refusal by the Court to incorporate those more favourable rules into the system of the Directive rather than a limit per se on the ability of Member States to have more favourable provisions.

As it can be seen, systematizing EU case law on more favourable national provisions is a hard task.  In Zaizoune, the Court could have explained more fully the reasons why Spain could not rely on Article 4(3) and given more details about the contrast between Spanish law and the Directive´s effectiveness. In particular, the Court´s appraisal of effet utile seems inconsistent with its earlier case-law (El Dridi, par. 31, 38, 42; Achughbabian, par. 42). The CJEU only mentions these cases to refer to the removal´s mandate and avoids mentioning that the directive also aims at ensuring guarantees and fundamental rights for migrants.

The CJEU provides for a narrow and literal reading of the Directive where any national provisions not leading to return are inconsistent with it. With respect, an alternative reading of Chapter II of the Directive, entitled termination of illegal stay, could have accepted more favourable provisions, such as those at play in the Spanish case, where the national legislation provides for a permanent mechanism of regularization which will indeed potentially lead to the termination of such legal stay. The Court could have then adopted a more nuanced interpretation, by stating that the Spanish law would be inconsistent with the directive where the person concerned could not regularize his status, something for the national court to assess in each scenario.

Spain will not now be able to impose a fine as an alternative to expulsion. It will however also have to make sure that the period for voluntary departure, which as a general rule has to be granted to any individual issued with a return decision, is effectively put into place. Indeed, this is not always the case in the Spanish practice. During such period for voluntary departure, which can be extended (according to the Directive) beyond 30 days taking into account the specific circumstance of the individual case, the person concerned could avail himself of the possibility to regularize his status through arraigo and have the return decision withdrawn in line with Article 6(4) of the Directive, which allows Member States to regularize irregular migrants. This alternative will respect the Returns Directive but will also allow the individuals concerned an opportunity to regularize and avoid expulsion. It will also take into account the particular circumstances of a Member State where a large number of undocumented migrants are those who fell into irregularity. In other words, these are individuals who, having resided for a number of years in Spain, could not renew their temporary permits due to, for example, having lost their jobs. This alternative will also require careful judicial oversight and good lawyering involved and will almost mirror the previous system while also respecting the Directive. It will also tackle the ongoing challenge of those third-country nationals who cannot be removed, a situation which not only arises in Spain but also in the other 24 Member States (all except the UK, Ireland and Denmark) bound by the Directive.

[See also: Steve Peers' journal article on the CJEU case law on humane treatment of irregular migrants under the Directive.]

Barnard & Peers: chapter 26

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