Integration Requirements for family reunion: the CJEU limits Member States’ discretion

Steve Peers

Many Member States have, in recent years, required non-EU citizens who would like to join their family members in the EU to pass a form of integration test first. The EU’s family reunion Directive, which governs the position of family members who want to join non-EU citizens, expressly gives Member States the option: family members ‘may be required to comply with integration measures’. However, in the cases of the family members of refugees and highly-skilled migrants who have an EU Blue Card, the integration measures can only be applied after they come to the country.

What are the limits – if any – on Member States’ discretion to impose such requirements? The CJEU answered that question for the first time today, in its judgment in K and A.

Judgment

The Dutch government has implemented the family reunion Directive with an integration requirement: a test on Dutch language and society. There are exceptions for ‘very special individual circumstances’. Family members must pay €350 to take the course, and €110 to buy the study pack. The case concerns citizens of Nigeria and Azerbaijan who had argued that they should be exempt from the course on health grounds, but the Dutch authorities rejected their arguments. They challenged those decisions before the Dutch courts, which asked the CJEU to interpret the Directive.

The Court begins by repeating prior case law which stated that Member States must admit family members to their territory if they meet the conditions set out in the Directive. It then confirms that Member States can indeed impose an integration requirement on applicants for family reunion before entry, unless they are joining a refugee. But the Court applies prior case law by analogy (Chakroun, on the minimum resources requirement in the Directive) to insist that the ‘integration’ condition must be interpreted strictly, and that Member States cannot use it to undermine the main purpose of the Directive: facilitating family reunion.

Next, the Court invokes the principle of proportionality. In this case, it means that any integration measures must be linked to the actual purpose of facilitating family members’ integration. As in its recent P and S judgment on integration measures for long-term resident non-EU citizens (discussed here), the Court accepts that a test on the host State’s language and society is a legitimate way of ensuring integration.

However, the Court emphasises that the conditions relating to the integration requirement can’t exceed its aims. This would ‘in particular’ happen if the requirement ‘were systematically to prevent’ family reunion even though, ‘despite having failed the integration examination, they have demonstrated their willingness to pass’ it and ‘have made every effort’ to do so. The integration tests cannot be aimed at ‘filtering’ family members, but instead must actually help them integrate.

The Court went on to require Member States to consider ‘specific individual circumstances, such as the age, illiteracy, level of education, economic situation or health’ of a family member, ‘in order to dispense’ them from the integration test where those circumstances make the family member ‘unable to take or pass that examination’. Otherwise the test would create a ‘difficult obstacle’ to the family reunion right, and circumvent the requirement to make a ‘case-by-case’ decision on applications. Overall, then, Dutch law on integration measures went beyond the limits imposed by EU law (as interpreted by the Court), since the hardship clause in the Dutch law set out fewer exceptions from the integration requirement than EU law allowed.

Finally, the Court ruled (as in prior judgments on long-term residence) that the Dutch fees were too high, also forming an obstacle to the effective exercise of family reunion, in conjunction with travel costs, considering that they had to be paid also when the test was retaken.

Comments

It should be noted that the family reunion Directive doesn’t apply to the UK, Ireland or Denmark. It also doesn’t apply to the non-EU family members of EU citizens. Those people are either outside the scope of EU law (if they join an EU citizen in that citizen’s own Member State), or fall within the scope of the EU citizens’ Directive (if they join an EU citizen in a different Member State). The citizens’ Directive doesn’t allow for any integration requirement. Family members of Turkish citizens are also in a different situation: as discussed here, there is a ‘standstill’ requirement on new restrictions on their family reunion. So new integration requirements can only be introduced on public interest grounds.

Turning to the judgment, it’s no surprise that the Court upheld the validity of integration measures requirements in principle. They are expressly provided for in the legislation and there’s a sound argument that it makes sense for newcomers who aim to settle in a country to learn its language and about its society. But it’s also a potential limit on the right to family reunion.

The Court’s judgment does a good job trying to balance these conflicting principles. Although the Court unfortunately doesn’t mention the right to family life, that right nonetheless suffuses this judgment, as the Court identifies a public interest reason to restrict that right and then subjects this restriction to the principle of proportionality.  So the integration tests must be genuine, not simply an attempt to reduce numbers of new entrants. The Court even suggests that those who are genuinely willing to pass the test and made the effort to do so ought not to be denied family reunion, presumably even if they have not actually passed it.

Indeed, this is a non-exhaustive list of when the principle of proportionality applies (‘in particular’). There is a requirement to consider individual cases and again, the list of circumstances which the Court insists that Member States consider (age, illiteracy, education, finances and health) is not exhaustive (‘such as’). The Court also comes down hard again on the high fees charged to migrants by the Dutch government.

This judgment will be particularly useful to those migrants who have lower incomes and those who come from developing countries, where the level of education is not always as high. (Unlike the Advocate-General, the Court does not discuss the exception from the integration test in Dutch law for migrants from some wealthy countries). While there are good reasons to expect migrants to learn their host country’s language and to know about its culture – for both the sake of both migrants and the host country’s society – there is also a powerful argument that spouses, parents and children should be able to enjoy family life together. In significantly limiting States’ ability to insist that people pass an integration test before they can live with their loved ones, the Court has made the right choice.

Barnard & Peers: chapter 26

Photo credit: vorige.nrc.nl

The Missing Piece in the European Agenda on Migration: the Temporary Protection Directive

Meltem Ineli-Ciger, PhD Candidate, University of Bristol Law School[1]

The EU’s Temporary Protection Directive entered in force in 2001 and was the first EU directive on international protection adopted after the Treaty of Amsterdam entered into force in 1999. The Temporary Protection Directive has introduced a practical and efficient framework to deal with mass influx situations by formalising and harmonising the protection standards to be introduced in mass influx situations. Yet, the Directive has so far never been implemented; the Council considered activating it when the number of asylum-seekers from Iraq and Afghanistan rose in the beginning of 2000s but no decision finally ensued (see Klug, in Further Reading). Similarly, the Directive was not implemented following the substantial influx of asylum-seekers fleeing the Arab Spring conflicts which overwhelmed the asylum capacities of the Member States at the external borders of EU (see Nascimbene and Di Pascale, in Rurther Reading). As for the recent migrant crisis in the Mediterranean, there is no mention of the Temporary protection directive in the European Agenda on Migration. This post argues that the Temporary protection directive could have been, and still can be, implemented as part of a more effective response to cope with the irregular arrival of mixed flows through Mediterranean and it should be incorporated to the EU Agenda on Migration (for the latest on that Agenda, see here).

Lack of implementation of the Directive in the past 14 years

The Temporary Protection Directive has an activation mechanism; for the Directive to be activated, in other words, for it to be implemented, the existence of a mass influx situation has to be established by Council decision adopted with a qualified majority (Art 5(1) of the Directive). The activation process of the Directive can be triggered by a Member state. Upon a State’s request, the Commission can propose activating the Directive. Nonetheless, such a proposal has to be discussed and adopted by the Council with a qualified majority vote (recital 14 and Art 5 of the Directrive). While the European Commission is the only EU organ that can submit such a proposal, and is the only organ that has the right to propose specific groups that will receive temporary protection, the Council has the exclusive authority to determine these groups (see Arenas, in Further Reading).

The Directive defines such a mass influx situation as the “arrival in the community of a large number of displaced persons, who came from a specific country or geographical area, whether the arrival in the Community was spontaneous or aided, for example through an evacuation programme” (Art 2(d)). Although the existence of a mass influx is the key for the activation of the Directive, the term ‘arrival of large number of displaced persons’, formulated to indicate the existence of mass influx, is very vague (as Arenas notes). However, the Commission proposal can be explored in order to clarify the meaning of the term ‘mass influx’. This notes:

Influx must be from the same country or geographical area […] the number of people must be substantial[…]the gradual arrival of asylum-seekers, refugees or displaced persons from a single country or region of origin cannot in itself justify the introduction of such temporary protection. However, a point may come at which the movement of people, gradual at the outset, intensifies in such a way that it becomes massive and the normal asylum system is unable to absorb the flow.

In view of this statement and taking into account that one of the initial purposes for drafting the Directive was “avoiding a total bottleneck in national asylum systems”, the inability of the national asylum system to cope with large groups of people seeking refuge is an important indicator of the existence of a mass influx situation. As seen from the Proposal, the possibility of cumulative influx is not disregarded by the Commission. Thus, the gradual arrival of persons seeking refuge to the member states when it disrupts the operation of national asylum systems can indicate the existence of a mass influx situation.

Although these conclusions can be drawn in view of Article 2 of the Directive and the Commission proposal, it should be noted that, until now, the Directive has not been activated when the asylum capacities of Greece, Italy and Malta have been overwhelmed by the arrival of asylum seekers from Iraq, Syria and North African states (see Nascimbene and Di Pascale). I believe two reasons can, so far, be identified for the non-implementation of the Directive.  The first is the difficulty in securing a qualified majority vote in the Council in the face of an influx situation which only seriously affects a limited number of Member States. A qualified majority decision is not easy to achieve when a situation seriously affects only a limited number of Member States. The second is the belief shared by many Member States that activation of the Directive may create a ‘pull factor’ for migrants seeking entry to the EU (see Klug and Ineli-Ciger). Having said that, non-implementation of the Directive so far shows that the activation of the Directive is, more than anything, a political process which depends on the agreement of the majority of the Member States.

Can the Temporary protection directive be implemented to cope with mixed flows?

Under Article 2 of the Temporary protection directive, people fleeing armed conflict, violence, and systematic human right violations are among those intended to be protected within the Directive. In addition to this, the Commission proposal refers to the Directive as a document to deal with the large-scale influx of ‘asylum seekers’. Among mixed flows, there is a substantial number of persons who would fall under the category of Article 2 of the Temporary protection directive. Thus, as long as the Council determines that arrival of the discussed mixed flows constitutes a mass influx situation, I believe there is no obstacle for the Directive to be invoked to cope with mixed flows or to protect a smaller subcategory of persons such as those fleeing armed conflict, violence and systematic human rights violations.

Do the mixed flows arriving by sea in Europe constitute a mass influx situation?

Thousands die every year in the Mediterranean Sea trying to reach European shores. According to the UNHCR, “[i]n mid-April 2015, 800 people died in the largest refugee shipwreck on record, highlighting a staggering increase in refugees and migrants dying or missing at sea”, and [vii] the number of refugees and migrants arriving by sea in Europe was 219 000 in 2014 (137,000 as of June 2015). It is crucial that we acknowledge that these people are not mere economic migrants but many among those are fleeing war, violence and human rights violations. These numbers may seem insignificant compared to two million Syrians being protected in Turkey. Yet, we need to also take into account that reception and asylum capacities of Greece and Italy.

The collapse of the Greek asylum system and the consequences of this collapse are evident from the judgments in N.S  and M.S.S. v. Belgium and Greece. In one of its recent judgments (Tarakhel v. Switzerland, discussed here and here), the ECtHR decided that, although the situation in Italy is not the same as Greece, it raises serious doubts as to the current capacities of the Italian asylum system.[viii] As evident from these judgments, the lack of solidarity in the EU in addition to the unfair asylum distribution criteria provided in the Dublin Regulations have increased the asylum pressure on states including Greece, Italy and Malta and, as a result, the reception capacities and quality of protection offered in these states to asylum seekers have diminished.

States at the external borders of the Union are under constant pressure and have been seeking assistance from the EU to find solutions to these arrivals. So far, the EU has, however, not been able to formulate and implement a comprehensive plan to secure the safety of irregular migrants and refugees arriving by boat and some Member States cannot provide persons seeking refuge adequate reception conditions as prescribed by EU Law. Considering the high number of persons arriving at the shores of Italy and Greece irregularly by sea to seek refuge each month and the inadequate reception and asylum capacity of these states, can we still say there is no mass influx situation? No we cannot. In light of these points, it is possible define the ‘mixed flows’ arriving by sea in Europe as a mass influx situation.
         

The added value of implementing the Temporary protection directive to cope with the mixed flows arriving by sea in Europe

The added value of implementing the Temporary Protection Directive to cope with the irregular arrival of ‘mixed flows’ lies within its flexible eligibility criteria and its broad personal scope; its fine harmonization and formalization of the protection standards to be offered to temporarily protected persons, as well as its burden sharing mechanism.

Given the categories of persons who may fall within the scope of the Directive – i.e., refugees and persons fleeing armed conflict, violence, and human rights violations – it can be concluded that the Directive has the potential to protect a broad range of individuals coming to the EU when a mass influx situation occurs. Therefore, if the Temporary protection Directive is activated, refugees and persons fleeing armed conflict, violence and human rights violations can be protected within the Directive’s framework as a group for up to three years.

The Directive provides a temporary protection status that confers temporary residence permits, emergency health care, shelter, social benefits, education for minors as well as limited access to the labour market and a limited right to family reunification. And these entitlements suggest better protection standards compared to what asylum seekers and migrants receive at present in Greece and Italy (see MSS and Tarakhel). A substantial number of the Member States, instead of implementing temporary protection under a formalized regime, have so far opted to introduce national temporary protection statuses. A European Migration Network (EMN) Study indicates that, Austria, Belgium, Greece, Ireland, Italy, Poland and Spain grant temporary protection under national statuses. Under these national statuses, there are many discrepancies, especially in the level of rights provided to the status holders. The EMN Study also notes that, the standard of protection provided under these national temporary protection statuses has been lower than the ones prescribed by the Temporary protection directive. In the light of this, implementation of the Temporary protection Directive can improve protection that is afforded to persons fleeing armed conflict, violence and human rights violations in Europe.

On a positive note, the Temporary protection directive has its own burden sharing mechanism. Article 25 of the Directive allows for the transfer of protection beneficiaries between Member States following a voluntary offer from one of them and provided the transferees give their consent to such a transfer. Under Article 25 of the Directive, in cases when the declared capacity of a State is exceeded because of the number of persons who have arrived on its territory, the Council can take appropriate action and provide additional support to those Member States that are affected more than others. The Council is, in this respect, free to introduce any measure with regard to burden sharing. The efficiency and success of the burden sharing mechanism established under the Directive will, therefore, greatly depend on the measures that the Council adopts and how well these measures are executed by Member States. Yet, if the Council adopts measures necessary to ensure equitable burden sharing, the burden sharing mechanism of the Directive may offer a more equitable and efficient system than the Dublin system. Thus, Temporary protection directive can lead to more effective burden sharing between member states.

Conclusion

Many authors acknowledge that implementation of the Temporary protection directive could have improved and still can improve the response of the European States as well as the EU to the refugee crisis in Iraq and Syria, and implementation of the Directive could also provide better protection for Iraqis and Syrians fleeing war and violence (see Akram et al and Orchard et al). Agreeing with their view and advancing this idea,  I argue that implementation of the Temporary protection directive can help member states to more effectively cope with the ‘mixed flows’ and provide better protection for persons in need of international protection among mixed flows arriving by sea in Europe. Having said that, the Directive alone will not be able to solve all the problems related to mixed flows. However; it can be a part of the solution and provide important benefits to persons seeking refuge in the EU.

In the light of this added value of implementing the Temporary Protection Directive to cope with the mixed flows arriving by sea in Europe, I argue that the Temporary protection directive should be part of the EU Agenda on Migration.

---

[1] This post builds on M. Ineli-Ciger, ‘Has the Temporary Protection Directive Become Obsolete? An Examination of the Directive and its Lack of Implementation in View of the Recent Asylum Crisis in the Mediterranean’ in C. Bauloz, M. Ineli-Ciger, S. Singer, V. Stayanova (eds), Seeking Asylum in the European Union: Selected Protection Issues Raised by the Second Phase of the Common Asylum System (Brill/ Martinus Nijhoff Publishers 2015) 225.

Further Reading 

A. Klug, ‘Regional developments: Europe’ in A. Zimmermann (ed) the 1951 Convention Relating to the Status of Refugees and its 1967 Protocol: A Commentary (OUP 2011)133.

B. Nascimbene, A. Di Pascale, ‘The ‘Arab Spring’ and the Extraordinary Influx of People who Arrived in North Italy from North Africa’ (2011) 13 EJML 346, 347.

N. Arenas, ‘the Concept of ‘Mass Influx of Displaced Persons’ in the European Directive Establishing the Temporary Protection System’ (2005) 7 EJIL 447.

Barnard & Peers: chapter 26
Photo credit: IOM

EU visa policy: A dash for growth?

Steve Peers

Historically, EU visa policy has principally concerned itself with controlling the risk of irregular migration and possible threats to security, balanced against EU foreign policy objectives. But in the last few years that policy has increasingly come to take account of economic growth (most notably as regards the EU tourism industry). This reorientation was launched in a Commission communication of 2012, and is already reflected in the last set of changes to the EU’s visa ‘whitelist’, which now includes trade and investment among the criteria for liberalising visas. Indeed those most recent amendments applied this policy by moving Peru and Colombia onto the visa waiver whitelist in return for signing a trade deal with the EU.

Will this policy also impact upon the EU’s visa code, which sets out the detailed rules for visa applications? Last year, the Commission proposed an overhaul of the code, alongside a parallel proposal for a ‘touring visa’ for those who wanted to stay for more than three months in the Schengen area (but for no more than three months in any one Schengen State). I have previously examined two specific issues relating to the visa code proposal: the position of EU citizens’ family members, and the possibility of developing the (implied) rules on humanitarian visas. The following analysis completes my comments (for now). It’s based on my ongoing work on the fourth edition of EU Justice and Home Affairs Law.

Visa code proposal

The proposal to overhaul the visa code keeps the basic structure of the code intact, but suggests a number of significant amendments. It doesn’t affect the issue of who does or doesn’t need a visa to visit the EU in the first place. The code only applies to States fully applying the Schengen system: 22 EU Member States (excluding the UK, Ireland, Croatia, Cyprus, Romania and Bulgaria, although the latter four States must apply it someday when they join Schengen), and four Schengen associates (Norway, Iceland, Switzerland and Liechtenstein).

It should be recalled that the CJEU has already ruled, in its judgment in Koushkaki (discussed here) that anyone who meets the criteria to obtain a Schengen visa set out in the visa code is entitled to one. The proposal wouldn’t change that case law either.

There’s a long list of proposed amendments, but the main aim of the proposal is to simplify the process of applying for a Schengen visa. So the obligation to appear in person to apply in a consulate would be dropped, except for when the applicant has to be fingerprinted for registration in the Visa Information System database (once every five years). Already only 30% of applicants appear in person, since most countries have outsourced the collection of visa application information to private companies. There would be revised rules determining which Member State consulate is responsible for each application, to make sure that each applicant will be able to apply for a visa without having to travel to a consulate in another country. Applicants could apply for a visa up to six months in advance (at present, the rules only allow them to apply up to three months in advance).

Checks on whether applicants have accommodation, means of subsistence and an intention to return would be relaxed if they were regular travellers with a ‘clean’ immigration record (this could be checked in the Visa Information System). Applicants would no longer have to obtain travel medical insurance, and Member States would have to make decisions more quickly. The rules on waiving the €60 visa application fee would become uniform, so that (for instance) there would be no fee for children under 18, researchers or diplomats. Regular travellers with a clean record would have a right to a multiple-entry visa, with a three year validity rising to five years (currently such visas might be valid for as short as six months). There would also be more possibilities to apply for visas at borders; at the moment this is a highly exceptional rule which mainly applies only to seafarers.

The European Parliament has not yet issued a draft report on either proposal, but the Council was initially unenthusiastic. A report earlier this year indicated that many Member States questioned the liberal proposed rules on multiple-entry visas, as well as the abolition of the medical insurance requirement, because of ‘large numbers of medical bills left unpaid’. Many also objected to shorter time periods for the application, and for any facilitation for EU citizens’ family members. A few opposed the proposed additional mandatory fee waivers. More recently, a redraft of part of the text shows that Member States were willing to accept the multiple-entry visa rules if the criteria were stricter, as well as some (but not all) of the fee waivers, while retaining the medical insurance requirement.

Touring visa proposal

Currently a number of Member States have separate deals with third states such as the USA or New Zealand, allowing the nationals of those States to add together a series of short stays in individual Schengen States. But this only applies to a fairly limited number of third countries. The Commission proposal would simplify this system, replacing it with a common Schengen-wide approach. It estimates that while only about 120,000 people would benefit from this proposal, they are relatively ‘big spenders’, and so the net benefit to the EU economy would be €1 billion.

A touring visa could be issued for up to one year, with a possible further extension to two years. It would also apply to the citizens of countries like the USA who did not normally need short-term visas, since their planned total stay in the Schengen area with a touring visa would exceed the normal limit which would usually apply (90 days in a 180-day period). The EU’s Visa Information System database would apply, except that non-visa nationals like Americans would not have to give fingerprints. Also, the normal visa code rules (as amended by the separate proposals) would apply, with derogations. For instance, there would be no applications at borders; the first Member State the touring visa applicant would enter would be competent for the whole application; and sickness insurance would be required.

Again, the Council shows limited enthusiasm for this proposal, with some Member States preferring to maintain their bilateral deals and some concerned about security risks.

Comments

Overall, the Commission’s proposals have much to recommend them. They would ease the hassle that many would-be visitors face when they apply to come to the EU: cutting the costs for families and researchers, ensuring that an application could be made more easily, and streamlining the process considerably for frequent visitors who have shown that they can be trusted.

The proposals would benefit the EU economy, too, if the Commission’s estimates are correct. On top of the estimated €1 billion boost to the economy from the touring visa proposal, the accompanying Commission paper on visa policy suggests that the economic boost from the changes to the main visa code may be between €4 to €12 billion, with 80,000 jobs created.

So it is striking that these proposals have not impressed Member States much, with some suggesting that costs would increase from the visa code proposal. It is hard to see how the costs to consulates would increase overall, since there would be fewer visa applications to process in light of the longer validity of multiple-entry visas. However, it is possible that the cost would increase for some Member States individually, if those Member States become responsible (under the revised rules) for a greater share of visa applications. If any Member State has to incur considerable extra costs processing applications for applicants who won’t spend much time on its territory, it would be reasonable to consider compensating that Member State for those costs out of the EU budget, or arranging for bilateral compensation from the Member States which the applicants mainly go on to visit. As for unpaid medical bills, the Commission argues that such bills aren’t run up entirely by visitors with Schengen visas.

While that particular point about cost (to a different part of national budgets) may possibly have some merit, the objections against facilitating travel for EU citizens’ family members have none. Such facilitation is anyway an obligation under the EU citizens’Directive; all that the Commission’s proposals do is spell out what that entails, for the sake of legal certainty. And there can be no valid objection about irregular migration risks as regards core family members, given that EU citizens have the right to move to another Member State with those members of their family.

Time will tell, when the European Parliament develops its response to these proposals and begins to negotiate with the Council, whether the personal and economic benefits of the Commission’s proposal can survive the objections of national interior ministries. Much may depend on whether other ministries (foreign and economics) intervene to ensure that there is a broader perspective on what modern visa legislation should seek to do.

Barnard & Peers: chapter 26

No more "Faber" fortunae suae: the EU consumer’s status after Faber v Hazet

Luigi Lonardo, PhD candidate, King's College London

Background

Are buyers of retail goods "consumers" even when they do not claim this status? According to the findings of the First Chamber of the Court of Justice in case C-497/13 Faber the answer is yes.- Purchasers are consumers, whether they know it or not,provided they conclude the contract not for business or professional reasons.

The Court has ruled that a national judge is required to investigate on its own motion whether, in relation to a contract, the purchaser is a 'consumer'. Therefore, the protection of EU consumer law applies independently from the party's reliance on this status. Moreover, if a lack of conformity in a product becomes apparent within six months from the delivery, this is presumed to have existed at the time of delivery. The conclusions reached by the Court are in line with the high standard of consumer protection in EU law and confirm the case law which tends to lighten the burden of proof of the consumer. This should come as good news for millions of European purchasers. However, the Court could have adopted a more nuanced approach that would have led to a more balanced outcome.

The Court was asked to interpret Directive 1999/44 on consumer goods and related guarantees ("the Directive"). In particular, it was asked to interpret Article 5(2), which grants Member States freedom to provide that, in order to benefit from his rights, the consumer must inform the seller of a lack of conformity of the goods within two months from discovering it, and Article 5(3), which provides that any such lack of conformity which becomes apparent within six months of delivery of the goods shall be presumed to have existed at the time of delivery - and the presumption can be rebutted.

The facts of the case

In May 2008 Faber bought from Hazet garage a second-hand car which, in September of the same year, caught fire and was completely destroyed. In January 2009, Ms Faber informed by telephone the seller’s garage that she was holding it liable. It is disputed if Faber had informed Hazet garage of the accident before this date. The seller denied liability.

Ms Faber therefore started proceedings against Hazet garage. Two facts are noteworthy: Faber did not rely on her consumer status, and at this stage a technical investigation to ascertain the cause of the fire could not take place as the car had been scrapped in the meantime. The Dutch court rejected Faber's claims on the grounds that she only informed Hazet more than three months after the accident – too late, under Dutch law (Article 7:23 Netherlands civil code). 

The Gerechtshof (Regional Court of Appeal) Arnhem-Leeuwarden, before which the dispute was brought on appeal, decided to refer questions to the Court of Justice for a preliminary ruling.

The questions referred and the judgment

Following the opinion of Advocate General Sharpston, the Court dealt with the seven questions asked by the referring court by dividing them into two sets:

1.      Can a national court examine by its own motion whether a purchaser is a consumer?

2.      When and how should the consumer's duty to inform the seller of a lack of conformity of the goods be exercised?

As a preliminary remark, it is noticed that the Court expressed its views on the Directive even though the dispute in the main proceeding was between private parties. It did so because national Courts are required to interpret domestic law in the light and purpose of the "applicable directive" (para 33). In the present case, the Dutch law was a direct implementation of Directive 1999/44.

1.      A court can inquire the consumer status ex officio

In the contract at issue, the Dutch judges were in doubt on the provisions applicable, because it was not known whether it was concluded with a consumer. The Court ruled that the status of consumer can be examined by the national court on its own motion even though the party has not relied on that status (para 48). What's more, this status can be declared by a court even in appeal proceedings where the purchaser had not raised any complaint against the judgment of the court of first instance.

The Court considered that "in the absence of harmonisation of procedural rules, the detailed procedural rules governing actions for safeguarding an individual’s rights under EU law are a matter for the domestic legal order of the Member States, provided, however, that they are no less favourable than those governing similar domestic actions (principle of equivalence) and do not make it in practice impossible or excessively difficult to exercise the rights conferred on consumers by EU law (principle of effectiveness)". It reasoned as follows.

On the principle of equivalence (para 38): the ordinary task of judges is to assign a legal classification to the situation brought before them. This, the Court argues, is not in itself the exercise of a discretion, but simply the legal reasoning of a judge. Since Dutch courts are required to classify matters of law and facts eg according to procedural rules, the same should happen for the definitions of EU law (para 39). The principle of effectiveness would only need to be considered if there was no principle of equivalence. However, the Court expresses its view on it (para 41). It refers to the established principle that national law must ensure that it is not too difficult for EU citizens to exercise the rights conferred on consumers by EU law. This principle is justified, in the Court's view, "on the idea that the consumer is in a weak position vis à vis the seller or supplier".

2.      Provisions on communications and burden of proof of the consumer

The Court then analysed Article 5(3) of the Directive: lack of conformity of a product is presumed when it becomes apparent within six months of the delivery. The Court considered that the system of liability established by the Directive is necessary because it would be impossible for the consumer to prove that a lack of conformity existed at the time of delivery (para 54). Hence, "[i]n view of the nature and importance of the public interest underlying the protection which Article 5(3) of Directive 1999/44 confers on consumers, that provision must be regarded (…) as a rule of public policy. It follows that where, under its domestic legal system, it has a discretion as to whether to apply such a rule of its own motion, the national court must of its own motion apply any provision of its domestic law which transposes Article 5(3)" (para 56).

Furthermore, it is asked what the purchaser has to prove when the lack of conformity is communicated within two months. In light of the travaux préparatoires of the Directive, the provision that the consumer must inform the seller of the lack of conformity ‘does not establish a strict obligation to carry out a detailed inspection of the good’. Furthermore, crucially, "[t]he consumer is required to prove only that the lack of conformity exists. He is not required to prove the cause of that lack of conformity or to establish that its origin is attributable to the seller" (par 70).

  

Comments

·         Is the consumer so weak?

Nowhere does the Directive say that judges can establish on their own motion whether the directive applies a case pending before them. The Court based its decision to allow national judges to establish on their own motion the status of consumer also on the principle of effectiveness. That is, the assumed weakness of consumers (see para 59 of the AG opinion), as affirmed in the case law on various consumer directives (Mostaza Claro, Rampion and Gordard). However, in Duarte Hueros AG Kokott introduced a sensible distinction. One issue is the consumer at the stage of bargaining: at this time he or she deserves protection. After the conclusion of the contract, it is a different issue: here there is no particular reason to consider the consumer as the weaker party anymore. This view is of particular interest because it is extremely equilibrated. Possibly, since it is more nuanced, it is even to be preferred to the reasoning of the court. It would avoid oversimplifying the position of the consumer and would lead to different conclusions.

AG Sharpston, who shares Kokott's view that "the two sets of consumers are not in the same position" (para 60),  argues nonetheless that the consumer is weaker even after the contract is concluded because there is asymmetry of information. In other words, it is easier for the seller to prove the cause of a lack of conformity. Therefore a rule of public policy that creates the obligation to investigate is justified. Moreover, she adds, the rationale also applies any time there is the need to protect a weaker party (eg in case of workers). The Court did address this possible distinction, but limited itself to acknowledging that "In a field in which, in a number of Member States, the rules of procedure allow individuals to represent themselves before the courts, there would be a real risk that the consumer, particularly because of a lack of awareness, would not be able to satisfy" the requirements of claiming consumer status. While this argument may be appealing, it is a policy choice that is rather sweeping: first, not in all Member States it is possible for individuals to represent themselves in matter of consumer law. Second, if this is the ratio, why is there no difference when the individual is actually assisted by a lawyer, as the referring Dutch court had expressly asked?

·         A high standard of consumer protection is ensured because the consumer only has to prove the existence of the lack of conformity

The consumer has very little to prove indeed: only the existence of a lack of conformity, not the causes, nor that such a lack is imputable to the seller. Of course, the presumption can be rebutted but this means that the onus is on the seller/supplier. While the Court assumed that the European Union legislator decided to apportion the burden of proof in these terms for solid reasons, it is questionable whether the continuous extensive interpretation given by the CJEU will preserve the fair apportionment provided for by the consumer Directives. Indeed in a recent judgment, Boston Scientific, the Court had already reached a similar conclusion of presumption of defect. Even though that case was about defective products (not any general lack of conformity) and more specifically about medical devices implantable in the human body, the outcome is the same. The high standard of protection is therefore ensured – possibly at the expense of the sellers/producers- by lightening the burden of proof for the consumer. The risk of the conveyance, then, is on the producer or seller/supplier[1].

  

A further element is worth noting: some European Union legal systems foresee the opportunity of a technical report to ascertain, for example, the causes of defects or lack of conformity in products. If the consumer does not need to prove these, however there is no need to summon an expert- ie to pay for its work. Legal action will therefore be smoother and easier to start.

Conclusion

The Decision reaffirms the high level of consumer protection in EU Law which the Court has expressed in its recent case law. In particular, the Court has found that a court is required to investigate on its own motion whether a purchases is a consumer, independently from him or her relying on this status. Therefore EU consumer law automatically applies to the buyer who purchases goods for private use – on the ground that the purchaser is a "weak" party, worthy of protection.. As explained in Faber, for example, these rights imply that a consumer should simply inform the seller of the lack of conformity of a product within two months of its discovery- the communication needs not to be burdensome for the consumer. Moreover, as far as the burden of proof, the consumer is only required to prove the existence of the lack of conformity of a good that is has purchased, if this lack appears within six months from delivery.

Photo credit: Daily Telegraph

Barnard & Peers: chapter 23

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[1]               See Maria Castellaneta, "The company shall pay for the damages occurred within 6 months", Il Sole 24 Ore, Friday 5^th June, 46.

“Don’t mention the extra judges!” When CJEU reform turns into farce

Steve Peers

The classic British comedy Fawlty Towers derived its humour from the doomed attempts of the ill-tempered hotel owner Basil Fawlty to control the uncontrollable situations that developed around him, often taking out his frustrations on his waiter, Manuel. No one would seriously suggest emulating Basil Fawlty’s management style. But nevertheless, the debate over the reform of the Court of Justice is increasingly resembling a Fawlty Towers episode.

Let’s review. After several previous failed attempts at reforming the EU judicial system, the Court of Justice suggested that the lower EU court (the General Court) should have double the number of judges – two per Member State, instead of one. The EU’s civil service tribunal (with seven judges) would close down, merged into the General Court. The senior Court of Justice would retain one judge per Member State. For the background, further details and arguments in favour, see my earlier blog post.

This proposal was opposed by many staff in the General Court. So four General Court judges appeared before the European Parliament to object to this plan (let’s call them, collectively, ‘Manuel’). For discussion of Manuel’s counter-arguments, see the recent blog post by Professors Pech and Alemanno; and for Manuel's written argument itself, see here.

Very recently the proposal was formally adopted by the Council. But it still has to be agreed with the European Parliament (EP), and some Members of the European Parliament (MEPs) appear to have great misgivings, fuelled by the dissenting judges. Cue an angry response by the CJEU’s President Skouris (let’s call him ‘Basil’). As documented by Duncan Robinson in the Financial Times, he complained that the EP was willing to listen to the rebels, and threatened retaliation against the dissenting judge. Manuel might soon get whacked by that frying pan.  

With the greatest respect, there are profound problems with Skouris’ approach. First and foremost, his response has become the story (it’s also been covered elsewhere). This diverts attention from the pros and cons of the argument for CJEU reform. I’m not criticising the journalists – it’s their job to report on his response, and he should have anticipated the effect it would have. Also, now that his response has become the story, it gives the impression that the proposal is a greedy grab for money by the judges. In fact. as I pointed out in my earlier post, the CJEU had previously suggested fewer extra judges. It only asked for doubling the number in despair, when it became clear that Member States could not agree on a more modest number, due to national egotism.

Secondly, Skouris’ angry letters give the impression that the CJEU is an authoritarian institution. Certainly, any ordinary employer would not take kindly to public criticism of its policy by its staff. For instance, if (entirely hypothetically) I had objections to the management of the University of Essex, I would not air them in a public forum. But the CJEU is a public body, in a political system whose legitimacy is clearly fragile. These attempts to silence dissent surely damage the Court’s authority more than the dissent itself would. Anyway, they gave that dissent far more publicity than it would otherwise have had (the well-known 'Streisand effect').

Thirdly, by attacking the dissenters instead of countering their arguments, it gives the impression that there is no good argument in favour of the Court’s proposals, since the brave truth-tellers are being silenced. And in tactical terms, it’s particularly hard to see how attacking the very MEPs whom Skouris needs to convince to support his proposals will win them round.

This problem isn’t limited to Skouris alone. After publishing the arguments of Pech and Alemanno, this blog received an anonymous comment which mixed snide personal comments about one of those authors with a reasonable counter-argument against their critique (I don’t know whether or not the commenter is linked to the Court). I didn’t publish that comment at the time because of the nasty personal comments. After some thought, I have decided to extract the more reasonable part of those comments and present them here, so that we can move back to debating the merits.

“[redacted] 1) The four arguments in favour of the reform (as summarised by Steve Peers) are dismissed as not empirically substantiated. But if something is self-evident why do we need empirical data (and which ones by the way?). Do we need empirical data to show us that a two-tier judicial system is SIMPLER than a three-tier system with obscure procedures such as the exceptional review procedure? Do we need empirical data to show us that it is wiser to have preliminary references and appeals in the jurisdiction of the same court? Do we need more empirical data to prove that the nomination of judges to a specialised tribunal is more complex than the one for the GC [General Court]?

 
2) The claim of a top down approach is not substantiated. Certainly the press and some GC insiders may have claimed that. [personal comment redacted]

a) the internal debate over the GC reform started in 2009 

b) at the initiative of the GC

c) was debated by a bilateral committee (CJ and GC) for almost two years

d) The President and Vice-President of the CJ went repeatedly to the GC's plenary to discuss this matter

e) That the caseload of the GC increased by 48 % between the GC's first proposal (2011) and the amended 2014 proposal.

[redacted] 

3) It is wrong to claim that IP cases represent 30% of the GC's workload. It is 30 % of the GC's CASELOAD. There is a huge difference between caseload and workload. One competition or State aid case is equivalent to 10 or 20 trademark cases...

4) The arguments about quality clearly imply that judges and référendaires at the GC are not up to the task. This raised some questions though which are left unanswered:

a) How is that substantiated? How have you assessed the lack of competence that you allege exists? 
b) Why is the quality of judges and référendaires a problem only at the GC? Nomination and référendaire hiring practices are identical at the CJ and the GC...

c) How on earth can we be talking about an EPSO competition for référendaires? Aren't you aware of EPSO's inefficiencies? [redacted]

5) Some of the article's recommendations have a lot of merit. However, they require a lot of time (or even Treaty change) to be implemented. The GC's backlog is here now!!! In order to bring the pending cases to a reasonable level of 800 the GC must produce 100 more judgments than the incoming cases per year FOR 6-7 years in a row. It has never managed to do so in the last 15 years notwithstanding the fact that its judges and staff (according to my information) are working at their limits. So...we have to ask ourselves...is there another viable solution apart from the one proposed by the CJUE?” 

The way forward

In many Fawlty Towers episodes, there’s a point where Basil’s long-suffering wife mollifies the people offended by his conduct. Let me assume that role here (just call me ‘Sybil’). Otherwise I fear that the process of reform might soon come to an abrupt halt – and we will all have to witness the judicial equivalent of Basil Fawlty whacking a broken-down car with a tree.

'Manuel’s' key claim, ie the counter-argument against 'Basil’s' argument for doubling the number of judges, is that 80% of the General Court’s backlog has now been eliminated. This is not substantiated by any statistics, and it’s not clear what they define as a 'backlog'. I wonder if the EP pressed the dissenting judges on this point, or simply lauded them as the Edward Snowdens of Luxembourg. Certainly it’s clear that a very large number of cases are still being lodged at the General Court. And even if that Court is catching up with its case load, there’s an argument that more judges might be able to reduce decision-making times further still.

The Pech and Alemanno argument for more specialised courts might be fine in theory, but it’s clearly not feasible in the real world. This approach has been tried and failed: Member States have paralysed the Civil Service Tribunal by not appointing fresh judges to it, due to a spat about rotation of judges between Member States. That’s petty and surely illegal – but it’s an unavoidable fact. There’s no point hoping that national egos will go away; they won’t.

But there is much to the Pech and Alemanno argument (made also by lawyers practicing before the Court, such as Tom de la Mare) that more effective management of cases could address a lot of the Court’s problems.

So I suggest a compromise. The EP should agree to the Court’s proposal – with a sunset clause. Let’s appoint one set of extra judges for each Member State. In principle, they will serve one term only. (They could stay on to replace the other judge from that Member State, if he or she leaves). A couple of years before the first term of the first batch of extra judges expires, there could be a full impact assessment of whether there still need to be extra judges. This would also consider whether the Court has taken other effective steps to manage its workload (which should be a condition of getting the extra judges), and measure whether they have proven to be as effective as some claim that they could be.

Conclusion

“Don’t mention the extra judges!” (I did once, but I think I got away with it). More seriously, I get the distinct impression that the argument about the Court is being affected by a lot of personality politics. I’m not a current or former insider in the Court or the Parliament (or anywhere else), so I have no ego in this race. But I urge  everyone involved to  leave their egos at the door, and I believe that a reasonable compromise between the different opinions – the validity of which has been obscured by the overreaction to some of them – is possible along the lines I suggest.

Barnard & Peers: chapter 10