Relocation of Asylum-Seekers in the EU: Law and Policy

Steve Peers

I last looked at the legal issues surrounding the refugee crisis two weeks ago, focussing on the international law dimension of the issue. But I left out the issue of relocation of asylum-seekers, pending further developments. Subsequently the EU has adopted a second, more controversial Decision on relocation of asylum-seekers within the EU this week (against the opposition of several Member States), following soon after the first Decision on this issue earlier in September. These measures are both provisional, in force for a total of two years, but there’s also a proposal for a permanent system of provisional measures. I will be looking at the relocation issue (including the pending proposal) in more detail in a report for a think-tank soon, but for now I’ll look briefly at three aspects of these measures: (a) the main content; (b) their legality, particularly since some Member States have threatened to sue to annul the second Decision; and (c) the merits of the relocation policy.

Content of the Decisions

First of all, two points about terminology. Some press reports refer to these Decisions ‘resettling’ refugees within the EU, but that’s not accurate. In both EU and international law, ‘resettlement’ refers to admitting people in need of protection from their country of origin or neighbouring countries. The EU uses the word ‘relocation’ instead, when addressing the issue of moving persons between Member States.

But that’s the process; how should we refer to the persons concerned? Technically, the most accurate term is ‘asylum-seekers’, since the relocation Decisions only apply to those who have applied for asylum but whose claim has not yet been determined. So I will use that term in this post. But since the Decisions only apply to those whose application is quite likely to succeed (more on that below), it should not be forgotten that the subsequent refugee determination procedure will likely conclude that the large majority of these asylum-seekers (but not quite all of them) are in fact refugees, or otherwise need protection. It would certainly be misleading to use the term ‘migrants’, since this word is sometimes interpreted as meaning that the people concerned have no protection need.

The first Decision

The first Decision provides for relocating asylum-seekers from Italy and Greece. It only applies to asylum-seekers who have applied for asylum in one of those States, and if that State would normally be responsible for considering the application under the Dublin rules. This will normally be the case, since the asylum-seeker will have crossed the border of Italy or Greece without authorisation. But in some cases, the Dublin rules would give priority to another Member State (if the asylum-seeker has close family there, for instance), and so in those case the Dublin rules would still apply, instead of the relocation procedure. 

The relocated asylum-seekers will be split 60/40 between Italy and Greece: 24,000 from Italy and 16,000 from Greece. They will be allocated to other Member States on the basis of optional commitments made by those other States. (The UK, Ireland and Denmark have opt-outs; see discussion of the UK opt-out here). While the intention was to relocate 40,000 people, Member States could ultimately not agree to offer that many relocation spaces, falling several thousand short (see the accompanying Resolution of Member States).

Relocation will be selective, applying only to those nationalities whose applications have over a 75% success rate in applications for international protection (refugee status, and subsidiary protection), on the basis of quarterly Eurostat statistics. On the basis of the most recent statistics, this means that only Syrians, Iraqis and Eritreans will qualify. This might change over time, however, on the basis of each new batch of statistics.

In principle, the selection of asylum-seekers to be relocated will be made by Italy and Greece, who must give ‘priority’ to those who are considered ‘vulnerable’ as defined by the EU reception conditions Directive. However, the preamble to the Decision makes clear that the ‘contact points’ of the relocating Member States (national officials) will indicate a preference for specific asylum-seekers they are willing to accept. To this end, the preamble states that ‘specific account should be given to the specific qualifications and characteristics of the applicants concerned, such as their language skills and other individual indications based on demonstrated family, cultural or social ties which could facilitate their integration into the Member State of relocation’. But this preference is not binding: the main text of the Decision states that the relocation States must accept the asylum-seekers nominated by Italy and Greece, except that they can refuse relocation ‘only where there are reasonable grounds for regarding’ an asylum-seeker as a danger to their national security or public order or where there are serious reasons for applying the exclusion provisions in the qualification Directive (concerning acts such as war crimes, terrorism and genocide).

Relocation can only apply to asylum-seekers who have already been fingerprinted pursuant to the Eurodac Regulation. This simply restates an existing EU law obligation to fingerprint everyone over 14 who applies for asylum or is found crossing the external border without permission, although that obligation is sometimes not applied in practice. Also, ‘applicants who elude the relocation procedure shall be excluded from relocation’, although this rather states the obvious.

The relocation process should usually take no more than two months after the relocating Member State has indicated how many asylum-seekers it will take. Member States of relocation will be responsible for considering the application. After relocation, asylum-seekers will not legally be able to move between Member States, in accordance with the normal Dublin rules; if they do so, the Member State of relocation must take them back. The preamble to the Decision also notes that, to deter ‘secondary movements’ Member States can limit the suspensive effect of appeals against transfers, impose reporting obligations, provide benefits in kind, and issue national entry bans. They should refrain from issuing travel documents allowing the asylum-seekers to visit other countries. There might be carrots, as well as sticks: as an incentive to stay in the Member State of relocation, the Commission has proposed that relocated asylum-seekers should be allowed to work straight away, rather than after a 9-month wait (the longest period Member States can require under the reception conditions Directive). 

As for the asylum-seekers themselves, there is no requirement that they consent to their relocation or have the power to request it. The Decision only requires Italy and Greece to inform and notify the asylum-seekers about the relocation, and the preamble states that they could only appeal against the decision if there are major human rights problems in the country to which they would be relocated. So neither the relocation itself, nor the choice of Member State that a person will be relocated to, is voluntary. It is possible, however, that the asylum-seekers left behind in Italy or Greece will be disappointed that they are not picked. There is no specific remedy for them to challenge their non-selection, although arguably to the extent that Italy and Greece select people who are not vulnerable for relocation, vulnerable persons could challenge their non-inclusion, in light of the legal obligation to select vulnerable persons as a priority.  Asylum-seekers do have the right to insist that their core family members (spouse or partner, unmarried minor children, or parents of minors) who are already on EU territory come with them to the relocated Member State.

Finally, other Member States have an obligation to assist Italy and Greece, while those Member States must in return establish and implement an asylum action plan. If they do not, then the Commission can suspend the Decision as regards either country. Member States relocating asylum-seekers receive a lump sum of €6000 per person from the EU budget to help with costs. The Decision applies until 17 September 2017, and covers asylum-seekers who arrived after 15 August 2015.

The second Decision

The second Decision follows the same basic template as the first Decision, but there are some key differences. First of all, it applies to 120,000 asylum-seekers, on top of the 40,000 provided for – but not fully committed – in the first Decision (the first Decision remains legally valid; it wasn’t amended or repealed by the second one).

Secondly, the numbers of relocated asylum-seekers in the second Decision is not based upon voluntary commitments by Member States, but upon specific numbers set out in an Annex to the Decision. While most Member States agreed to these numbers (the Decision needed a qualified majority vote of ministers in the Council to pass), clearly not all did: Slovakia, Romania, Hungary and the Czech Republic voted against the Decision. This means that there is a legal obligation to take these specific numbers of people.

Thirdly, the distribution of relocation is much different. Reflecting events on the ground over the summer, which has seen a much bigger influx of potential asylum-seekers into Greece, the second Decision provides for relocating 50,400 from Greece, but only 15,600 from Italy. The remaining 54,000 were meant to be relocated from Hungary, but Hungary did not want to be seen as a ‘frontline State’. So those 54,000 are ‘on ice’ for now. They will be relocated in a year’s time either from Italy and Greece on the same basis as under this Decision, or relocated on a different basis in light of changes in circumstances (subject to approval from the Council in either case).

Fourthly, Member States can request a temporary delay of 30% of their intake of asylum-seekers in ‘exceptional circumstances’, if it gives ‘duly justified reasons compatible with the fundamental values’ of the EU, such as human rights and non-discrimination. This delay can then be authorised by the Council on a proposal from the Commission. The preamble to the Decision indicates that such circumstances ‘could include, in particular’ a sudden inflow that places ‘extreme pressure’ upon even a well-prepared asylum system, or a ‘high probability’ of such an inflow.

Fifthly, the preamble contains stronger language as regards the ‘secondary movement’ of asylum-seekers. Member States can take measures as regards social benefits and remedies, and can ‘should’ detain asylum-seekers in accordance with the Returns Directive if no alternative means of preventing secondary movements are available.

Sixthly, in addition to the lump sum of €6000 per person from the EU budget for Member States of relocation, Italy and Greece will receive €500 per person to help with costs. Finally, the Decision will also apply for two years, but it will apply to all those who have arrived in Italy or Greece since the end of March this year, not just from mid-August.

Legality of the Decisions

Both decisions are based on Article 78(3) of the TFEU, which is a revised version of the ‘emergency power’ relating to immigration issues that has been in the Treaties since 1993 – but was never used until this month.

Article 78(3) reads as follows:

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.

This should be seen in the context of the purpose of Article 78(1), which states that the EU shall have:

a common policy on asylum, subsidiary protection and temporary protection with a view to offering appropriate status to any third-country national requiring international protection and ensuring compliance with the principle of non-refoulement. This policy must be in accordance with the Geneva Convention of 28 July 1951 and the Protocol of 31 January 1967 relating to the status of refugees, and other relevant treaties.

Article 78(2) specifies that the EU shall have power to adopt measures to create ‘a common European asylum system’, listing seven areas where it can act by means of the ordinary legislative procedure. (Note that the proposed permanent system for relocation would be based on Article 78(2), not Article 78(3), so the legality of that proposal raises different issues; I’m not considering that proposal here).

Several elements of Article 78(3) are obvious: there must be a Commission proposal (which there was for both decisions); the Council votes by qualified majority (this isn’t expressly mentioned in the clause, but it’s the default rule); and the European Parliament (EP) is only consulted, whereas it has its usual joint decision-making power as regards other asylum legislation. It’s implicit that Article 78(3) measures can only relate to asylum, due to the placement of this clause in Article 78. Moreover, prior to the Treaty of Lisbon, the previous version of this clause had been free-standing, and therefore applicable to all immigration and asylum issues; its placement in the asylum Article was surely no accident and must therefore be legally relevant.

The strongest legal argument against the validity of the second Decision is a procedural one. CJEU case law has always stated that where the EP has to be consulted on a measure, it must be reconsulted if the essential elements of the measure are then changed after it was initially consulted. That certainly applies here, because the removal of Hungary from the list of frontline States changed an essential element of the law. Against this, it might be argued that there is no obligation to reconsult, or a less stringent obligation to reconsult, in ‘emergency’ cases. But if the claim is successful on this point, it won’t accomplish much: the Council will only have to consult the EP again, and the CJEU might (as it often does) keep the Decision in force in the meantime, since the legal flaw is purely procedural.

As to the substance of the emergency measures power, first of all it must implicitly be consistent with Article 78(1), forming part of a ‘common’ policy, ensuring compliance with ‘non-refoulement’ and being in accordance with the Geneva Convention. The two Decisions meet those criteria; some alternative suggestions like closing the external border or returning people to unsafe countries would not.

Next, several terms in Article 78(3) have to be defined: an ‘emergency situation’, a ‘sudden inflow’, a ‘provisional measure’ and the ‘benefit’ of Member States. The idea of an ‘emergency’ suggests a situation which Member States find particularly difficult to handle, and the current crisis certainly qualifies for that. Some have questioned whether the inflow is ‘sudden’, given that it has been building up for years, with the Syrian civil war starting back in 2011. But the overall numbers have clearly increased sharply in 2015; the scale of that increase surely qualifies as a ‘sudden’ inflow, even if the inflow did not start overnight.

Surely it is up to the Member States in question to determine if they will ‘benefit’ from the measures concerned; that’s why it was legally necessary to remove Hungary from the list of beneficiaries. Just because another policy might, in the view of other Member States, be preferable, doesn’t mean that the Member States concerned will not benefit. Anyway, it’s manifestly clear that Italy and Greece will benefit from having fewer asylum-seekers on their territory, as things now stand.

There’s a strong literal argument that the measures in question can only benefit Member States, as distinct from (say) Serbia – although the EU could still assist Serbia by other means. But that issue doesn’t arise, since the two Decisions are only relocating asylum-seekers from Member States. A purely consequential impact on third States (fewer people will transit Serbia) isn’t sufficient to infringe this rule.

This leaves us with the definition of ‘provisional measures’. The notion of ‘provisional’ means that it must be limited in time. Since the Treaty of Lisbon removed the previous limitation to six months, this means that measures can last for longer than that. Although there may be a legal argument that two years is too long, a period of one year (during which time a permanent system may well be agreed) is surely legal. So the most a successful claim could do here is curtail the length of the validity of the second Decision, not annul it completely. If a provisional measure is renewed, or replaced with a similar provisional measure, the ‘provisional’ nature of the powers would be infringed, but we have not got to that stage yet.   

What ‘measures’ can be adopted? Can they amend existing legislation? This is relevant because the two Decisions derogate from the Dublin rules, as any relocation system would have to do. The EP’s role has been circumvented because it was only consulted. While I previously held the view that for this reason, emergency asylum measures could not derogate from EU asylum legislation, I no longer think that’s correct. Because the Treaty refers to a ‘common’ asylum policy, it must follow that the power to adopt emergency measures would be nugatory if it couldn’t amend existing legislation.

Does the EU have power to adopt quotas of asylum-seekers? A power to adopt quota rules is ruled out under Article 79(5) TFEU in the case of those looking for work. But those limitations only apply to ‘that Article’, and the Treaty drafters chose to regulate asylum issues, including reception conditions for asylum-seekers and the status of refugees (which concern access to employment) on the basis of Article 78 instead. Indeed, as noted already, there’s no right to work for asylum-seekers on the basis of EU law unless they have been waiting nine months for a decision (although Member States can choose to be more generous if they wish), and some asylum-seekers will be too young to seek work or otherwise not seek work due to family responsibilities or illness, for example. So asylum-seekers aren’t within the scope of Article 79. Moreover, the issue of relocation quotas had been discussed several times before, to the Treaty drafters must have been aware of it. If they had wanted to rule out quotas for asylum-seekers in Article 78(3), they would therefore surely have done so expressly. Article 79(5) has an a contrario effect.

Should Article 78(3) be narrowly interpreted? The Treaty drafters chose to use broad wording, and indeed Article 80 TFEU refers broadly to the principle of solidarity and burden-sharing ('including', ie not limited to, financial support). Unlike Treaty provisions which stress the narrowness of the EU’s powers, such as the powers over health or education, Article 78 repeatedly refers to a ‘common’ or ‘uniform’ policy (there are more such references in Articles 67 and 78(2)). The Treaty drafters placed limits on the scope of the EU’s immigration policy (as we have seen already); and in the same Title of the Treaty, there are various special rules relating to competence or voting over various aspects of border controls, civil law, police cooperation, and criminal law. It’s quite striking that no comparable limits exist as regards the EU’s asylum powers. One may reasonably argue that there should be such limits, but I am not convinced that there are such limits at the moment.

Just because those powers exist, however, does not mean that they should necessarily be used. So finally I will turn to the question of whether relocation is a good idea in general, and whether it is wise to force it upon recalcitrant States – even if it is legal.

Appraising the relocation policy

In principle, the objectives of the relocation policy are entirely valid. Article 80 TFEU refers to the need for solidarity and burden-sharing among Member States as regards asylum, and this reflects also the burden-sharing principle of international law, set out in the preamble to the Geneva Convention on refugees. The numbers who have arrived in Greece and Italy in recent months are clearly unmanageable for those countries to handle alone, although it should not be forgotten that some of the (potential) asylum-seekers concerned have moved on to other Member States under their own steam in the meantime. While solidarity also can (and does) take the form of financial support and additional personnel, reception centres cannot be built overnight and officials from other Member States cannot simply become part of the Greek or Italian civil service for a while.

If anything, the relocation Decisions are insufficient. It’s clearly an overstatement to say that the EU has ‘done nothing’ to help those countries: the Decisions won’t relieve all the pressure upon Italy and Greece, but equally it should in principle relieve some of it. According to the preamble to the second Decision, it will relieve Greece and Italy of 43% of the asylum-seekers who clearly needed international protection (ie the nationalities with high success rates in asylum claims) who arrived there over July and August. But this is less impressive than it first appears, since it assumes that the further 54,000 asylum-seekers now ‘on ice’ will be relocated from those countries, whereas this is not yet certain. And while the asylum-seekers in question will be relocated over two years, the numbers referred to in the preamble arrived over two months. Although the first Decision will also relieve some pressure, the percentage of the asylum-seekers from priority countries who will arrive in Italy and Greece over the next two years who will be relocated will therefore be much less than 43%. It is even possible that the more systematic application of the obligation to fingerprint applicants will mean that Italy and Greece would end up responsible for more applicants from the priority countries than before. 

Overall, then, taking into account the numbers of asylum-seekers not subject to the Decisions because they are not from a priority country, the two Decisions are likely to prove insufficient. This can be addressed in practice by further such Decisions (or the proposed new permanent system for addressing these issues) in the near future.

The question of whether it is possible to reduce the numbers of asylum-seekers who arrive at the EU’s external borders in the first place is outside the scope of my analysis here – although this will ultimately determine whether a mass influx continues to occur in the years to come. 

As for the details of the Decisions, there are two particularly controversial issues: the role of asylum-seekers, and the wisdom of enforcing quotas upon unwilling Member States. On the first point, it is problematic to compel asylum-seekers to move to a country that they do not wish to be in, since this has already proved unworkable in the original Dublin context. It would have been preferable at least to give asylum-seekers the opportunity to express a (non-binding) preference (with reasons) for particular Member State, or perhaps a list of several preferred Member States. That would increase the likelihood that asylum-seekers will stay put, since they are would be in a Member States where they prefer to be. It will also increase the likelihood that they will integrate into the host State once obtaining protection status (as most people subject to the Decisions will), given that they may prefer particular destinations because they have extended family members, friends or acquaintances there. But it will probably not be possible to respect every asylum-seeker’s preferred destination – or every asylum-seeker who wants to relocate.

In the absence of any attempt to consider the asylum-seekers’ preferences, Member States instead fell back upon the idea of punishing them if they make secondary movements. Although the Dublin system has notably not worked well at ensuring that asylum-seekers always remain in the State which is responsible for their application, it has worked better when asylum-seekers have been fingerprinted, so that it is easy to ascertain the responsible Member State; and relocation under the Decisions will only be possible for those who have been fingerprinted. While the Decisions correctly state that asylum-seekers who make secondary movements have to be taken back (pursuant to the Dublin Regulation), the preamble to the second Decision wrongly claims that they could be detained pursuant to the Returns Directive. In fact, since that Directive doesn’t apply to asylum-seekers (see the CJEU rulings in Kadzoev and Arslan), the narrower grounds for detention in the Dublin Regulation would apply instead, if the person concerned applies for asylum.

It’s also not clear exactly what benefits sanctions and remedies restrictions could be legally applied to asylum-seekers who don’t stay in the Member State of relocation, beyond the possibility of limiting the suspensive effect of a legal challenge. As regards benefits, the CJEU ruled in Cimade and GISTI that benefits must still be paid to asylum-seekers even if they have moved to another Member State (by that Member State), until the point when they are transferred back to the responsible Member State under the Dublin rules. This is now reflected in the preamble to the Dublin III Regulation. It might prove more fruitful to take up the Commission’s suggestion of allowing relocated asylum-seekers to work at an earlier date.

On the second point, historically calls for asylum burden-sharing have relied upon moral suasion, not legal imposition. The relocation process will in any event be difficult to carry out if the outvoted Member States refuse to cooperate with it. (It’s not clear if they will suspend their commitments under the first Decision too – although note that Hungary made no such commitments in the first place). The Commission can begin infringement proceedings for non-cooperation, but this will take time, and the Member States in question might prefer to pay a fine (the sanction for non-compliance with a CJEU infringement ruling) than cooperate with relocation.

While the recalcitrant Member States’ objections to burden-sharing are not very convincing, more efforts should have been made to offer them an alternative. The original suggestion of a financial contribution to alleviate the costs of the Member States with the biggest burden was dropped, since it was (wrongly) perceived as a sanction, rather than as an alternate type of burden-sharing. Perhaps a better idea would have been to offer the option of assisting the neighbouring countries hosting Syrians, Iraqis and Eritreans, either by resettling more people directly from those countries or by making bigger financial contributions to those countries (and thereby reducing ‘push’ factors). Either option could have indirectly relieved the burden on Greece or Italy.

Finally, to what extent can the outvoted Member States (or others) reduce their obligations under the Decisions? As we have seen, the second Decision allows them to reduce their intake temporarily, if the Council approves. They must have good reasons, in particular relating to reception capacity. Given the exceptional nature of the rule, it is hard to see how other reasons can easily be accepted; certainly paranoia cannot. And the grounds for the request must be compatible with EU values, so Islamophobia is equally an impermissible ground too.

Barnard & Peers: chapter 26

Photo credit: Istvan Zsiros

American Mass Surveillance of EU citizens: Is the End Nigh?

Steve Peers

*This blog post is dedicated to the memory of the great privacy campaigner Caspar Bowden, who passed away recently. What a tragedy he did not leave to see the developments in this case. To continue his work, you can donate to the Caspar Bowden Legacy Fund here.

A brilliant university student takes on the hidebound establishment – and ultimately wins spectacularly. That was Mark Zuckerberg, founding Facebook, in 2002. But it could be Max Schrems, taking on Zuckerberg and Facebook, in the near future – if the Court of Justice decides to follow the Advocate-General’s opinion in the Schrems case, released today.

In fact, Facebook is only a conduit in this case: Schrems’ real targets are the US government (for requiring Facebook and other Internet companies to hand over personal data to intelligence agencies), as well as the EU Commission and the Irish data protection authority for going along with this. In the Advocate-General’s opinion, the Commission’s decision to allow EU citizens’ data to be subject to mass surveillance in the US is invalid, and the national data protection authorities in the EU must investigate these flows of data and prohibit them if necessary. The case has the potential to change much of the way that American Internet giants operate, and to complicate relations between the US and the EU in this field.

Background

There’s more about the background to this litigation here, and Simon McGarr has summarised the CJEU hearing in this case here. But I’ll summarise the basics of the case again here briefly.

Max Schrems is an Austrian Facebook user who was disturbed by Edward Snowden’s revelations about mass surveillance by US intelligence agencies. Since such mass surveillance is put into effect by imposing obligations to cooperate upon Internet companies, he wanted to complain about Facebook’s transfers of his personal data to the USA. Since Facebook’s European operations are registered in Ireland, he had to bring his complaints to the Irish data protection authority.

The legal regime applicable to such transfers of personal data is the ‘Safe Harbour’ agreement between the EU and the USA, agreed in 2000 – before the creation of Facebook and some other modern Internet giants, and indeed before the 9/11 terrorist attacks which prompted the mass surveillance. This agreement was put into effect in the EU by a decision of the Commission, which used the power conferred by the EU’s current data protection Directive to declare that transfers of personal data to the USA received an ‘adequate level of protection’ there.

The primary means of enforcing the arrangement was self-certification of the companies concerned (not all transfers to the USA fall within the scope of the Safe Harbour decision), enforced by the US authorities.  But it was also possible (not mandatory) for the national data protection authorities which enforce EU data protection law to suspend transfers of personal data, if the US authorities or enforcement system have found a breach of the rules, or on the following further list of limited grounds set out in the decision:

there is a substantial likelihood that the Principles are being violated; there is a reasonable basis for believing that the enforcement mechanism concerned is not taking or will not take adequate and timely steps to settle the case at issue; the continuing transfer would create an imminent risk of grave harm to data subjects; and the competent authorities in the Member State have made reasonable efforts under the circumstances to provide the organisation with notice and an opportunity to respond.

In fact, Irish law prevents the national authorities from taking up this option. So the national data protection authority effectively refused to consider Schrems’ complaint. He challenged that decision before the Irish High Court, which doubted that this system was compatible with EU law (or indeed the Irish constitution). So that court asked the CJEU to rule on whether national data protection authorities (DPAs) should have the power to prevent data transfers in cases like these.

The Opinion

The Advocate-General first of all answers the question which the Irish court asks, and then goes on to examine whether the Safe Harbour decision is in fact valid. I’ll address those two issues in turn.

In the Advocate-General’s view, national data protection authorities have to be able to consider claims that flows of personal data to third countries are not compatible with EU data protection laws, even if the Commission has adopted a decision declaring that they are. This stems from the powers and independence of those authorities, read in light of the EU Charter of Fundamental Rights, which expressly refers to DPAs’ role and independence. (On the recent CJEU case law on DPA independence, see discussion here). It’s worth noting that the new EU data protection law under negotiation, the data protection Regulation, will likely confirm and even enhance the powers and independence of DPAs. (More on that aspect of the proposed Regulation here).

On the second point, the opinion assesses whether the Safe Harbour Decision correctly decided that there was an ‘adequate level of protection’ for personal data in the USA. Crucially, it argues that this assessment is dynamic: it must take account of the protection of personal data now, not just when the Decision was adopted back in 2000.

As for the meaning of an ‘adequate level of protection’, the opinion argues that this means that third countries must ensure standards ‘essentially equivalent to that afforded by the Directive, even though the manner in which that protection is implemented may differ from that’ within the EU, due to the importance of protecting human rights within the EU. The assessment of third-country standards must examine both the content of those standards and their enforcement, which entailed ‘adequate guarantees and a sufficient control mechanism’, so there was no ‘lower level of protection than processing within the European Union’. Within the EU, the essential method of guaranteeing data protection rights was independent DPAs.

Applying these principles, the opinion accepts that personal data transferred to the USA by Facebook is subject to ‘mass and indiscriminate surveillance and interception’ by intelligence agencies, and that EU citizens have ‘no effective right to be heard’ in such cases. These findings necessarily mean that the Safe Harbour decision was invalid for breach of the Charter and the data protection Directive.

More particularly, the derogation for the national security rules of US law set out in the Safe Harbour principles was too general, and so the implementation of this derogation was ‘not limited to what is strictly necessary’. EU citizens had no remedy against breaches of the ‘purpose limitation’ principle in the US either, and there should be an ‘independent control mechanism suitable for preventing the breaches of the right to privacy’.

The opinion then assesses the dispute from the perspective of the EU Charter of Rights. It first concludes that the transfer of the personal data in question constitutes interference with the right to private life. As in last year’s Digital Rights Ireland judgment (discussed here), on the validity of the EU’s data retention directive, the interference with rights was ‘particularly serious, given the large numbers of users concerned and the quantities of data transferred’. In fact, due to the secret nature of access to the data, the interference was ‘extremely serious’. The Advocate-General was also concerned about the lack of information about the surveillance for EU citizens, and the lack of an effective remedy, which breaches Article 47 of the Charter.

However, interference with these fundamental rights can be justified according to Article 52(1) of the Charter, as long as the interference is ‘provided for by law’, ‘respect[s] the essence’ of the right, satisfies the ‘principle of proportionality’ and is ‘necessary’ to ‘genuinely meet objectives of general interest recognized by’ the EU ‘or the need to protect the rights and freedoms of others’.  

In the Advocate-General’s view, the US law does not respect the ‘essence’ of the Charter rights, since it extends to the content of the communications. (In contrast, the data collected pursuant to the data retention Directive which the CJEU struck down last year concerned only information on the use of phones and the Internet, not the content of phone calls and Facebook posts et al). On the same basis, he objected to the ‘broad wording’ of the relevant derogations on national security grounds, which did not clearly define the ‘legitimate interests’ at stake. Therefore, the derogation did not comply with the Charter, ‘since it does not pursue an objective of general interest defined with sufficient precision’. Moreover, it was too easy under the rules to escape the limitation that the derogation should only apply when ‘strictly necessary’.

Only the ‘national security’ exception was sufficiently precise to be regarded as an objective of general interest under the Charter, but it is still necessary to examine the ‘proportionality’ of the interference. This was a case (like Digital Rights Ireland) where the EU legislature’s discretion was limited, due to the importance of the rights concerned and the extent of interference with them. The opinion then focusses on whether the transfer of data is ‘strictly necessary’, and concludes that it is not: the US agencies have access to the personal data of ‘all persons using electronic communications services, without any requirement that the persons concerned represent a threat to national security’.

Crucially, the opinion concludes that ‘[s]uch mass, indiscriminate surveillance is inherently disproportionate and constitutes an unwarranted interference’ with Charter rights. The Advocate-General agreed that since the EU and the Member States cannot adopt legislation allowing for mass surveillance, non-EU countries ‘cannot in any circumstances’ be considered to ensure an ‘adequate level of protection’ of personal data if they permit it either.

Furthermore, there were not sufficient guarantees for protection of the data. Following the Digital Rights Ireland judgment, which stressed the crucial importance of such guarantees, the US system was not sufficient. The Federal Trade Commission could not examine breach of data protection laws for non-commercial purposes by government security agencies, and nor could specialist dispute resolution bodies. In general, the US lacks an independent supervisory authority, which is essential from the EU’s perspective, and the Safe Harbour decision was deficient for not requiring one to be set up. A third country cannot be considered to have ‘an adequate level of protection’ without it. Furthermore, only US citizens and residents had access to the judicial system for challenging US surveillance, and EU citizens cannot obtain remedies for access to or correction of data (among other things).  

So the Commission should have suspended the Safe Harbour decision. Its own reports suggested that the national security derogation was being breached, without sufficient safeguards for EU citizens. While the Commission is negotiating revisions to that agreement with the USA, that is not sufficient: it must be possible for the national supervisory authority to stop data transfers in the meantime.

Comments

The Advocate-General’s analysis of the first point (the requirement that DPAs must be able to stop data flows if there is a breach of EU data protection laws) is self-evidently correct. In the absence of a mechanism to hear complaints on this issue and to provide for an effective remedy, the standards set out in the Directive could too easily be breached. Having insisted that the DPAs must be fiercely independent of national governments, the CJEU should not now accept that they can be turned into the tame poodles of the Commission.

On the other hand, his analysis of the second point (the validity of the Safe Harbour Decision) is more problematic – although he clearly arrives at the correct conclusion. With respect, there are several flaws in his reasoning. Although EU law requires strong and independent DPAs within the EU to ensure data protection rights, there is more than one way to skin this particular cat. The data protection Directive notably does not expressly require that third countries have independent DPAs. While effective remedies are of course essential to ensure that data protection law (likely any other law) is actually enforced in practice, those remedies do not necessarily have to entail an independent DPA. They could also be ensured by an independent judiciary. After all, Americans are a litigious bunch; Europeans could join them in the courts. But having said that, it is clear that in national security cases like this one, EU citizens have neither an administrative nor a judicial remedy worth the name in the USA. So the right to an effective remedy in the Charter has been breached; and it is self-evident that processing information from Facebook interferes with privacy rights.

Is that limitation of rights justified, however? Here the Advocate-General has muddled up several different aspects of the limitation rules. For one thing, the precision of the law limiting rights and the public interest which it seeks to protect are too separate things. In other words, the public interest does not have to be defined precisely; but the law which limits rights in order to protect the public interest has to be. So the opinion is right to say that national security is a public interest which can justify limitation of rights in principle, but it fails to undertake an examination of the precision of the rules limiting those rights. As such, it omits to examine some key questions: should the precision of the law limiting rights be assessed as regards the EU law, the US law, or both?  Should the US law be held to the same standards of clarity, foreseeability and accessibility as European states’ laws must be, according to the ECHR jurisprudence?

Next, it’s quite unconvincing to say that processing the content of communications interferes with the ‘essence’ of the privacy and data protection rights. The ECHR case law and the EU’s e-privacy directive expressly allow for interception of the content of communications in specific cases, subject to strict safeguards. So it’s those two aspects of the US law which are problematic: its nature as mass surveillance, plus the inadequate safeguards.

On these vital points, the analysis in the opinion is correct. The CJEU’s ruling in Digital Rights Ireland suggests, in my view, that mass surveillance is inherently a problem, regardless of the safeguards in place to limit its abuse. This is manifestly the Advocate-General’s approach in this case; and the USA obviously has in place mass surveillance well in excess of the EU’s data retention law. The opinion is also right to argue that EU rules banning mass surveillance apply to the Member States too, as I discuss here. But even if this interpretation is incorrect, and mass surveillance is only a problem if there are weak safeguards, then the Safe Harbour decision still violates the Charter, due to the lack of accessible safeguards for EU citizens as discussed above. Hopefully, the Court of Justice will confirm whether mass surveillance is intrinsically problematic or not: it is a key issue for Member States retaining data by way of derogation from the e-privacy Directive, for the validity of EU treaties (and EU legislation) on specific issues such as retaining passenger data (see discussion here of a pending case), and for the renegotiation of the Safe Harbour agreement itself.

This brings us neatly to the consequences of the CJEU’s forthcoming judgment (if it follows the opinion) for EU/US relations. Since the opinion is based in large part upon the EU Charter of Rights, which is primary EU law, it can’t be circumvented simply by amending the data protection Directive (on the proposed new rules on external transfers under the planned Regulation, see discussion here). Instead, the USA must, at the very least, ensure that adequate remedies for EU citizens and residents are in place in national security cases, and that either a judicial or administrative system is in place to enforce in practice all rights which are supposed to be guaranteed by the Safe Harbour certification. Facebook and others might consider moving the data processing of EU residents to the EU, but it’s hard to see how this could work for any EU resident with (for instance) Facebook friends living in the USA. Surely in such cases processing of the EU data in the USA is unavoidable.

Moreover, arguably it would not be sufficient for the forthcoming EU/US trade and investment agreement (known as ‘TTIP’) to provide for a qualified exemption for EU data protection law, along the lines of the WTO’s GATS. Only a complete immunity of EU data protection law from the TTIP – and any other EU trade and investment agreements – would be compatible with the Charter. Otherwise, companies like Facebook and Google might try to invoke the controversial investor dispute settlement system (ISDS) every time a judgment like Google Spain or (possibly) Schrems cost them money.

Barnard and Peers: chapter 9

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Where do we stand on the reform of the EU’s Court System? On a reform as short-sighted as the attempts to force through its adoption

Alberto Alemanno, Jean Monnet Professor of EU Law, HEC Paris

Laurent Pech, Jean Monnet Professor of EU Public Law, Middlesex University London

1. Background

To ‘reinforce the efficiency of justice at EU level’, the Court of Justice of the EU suggested in 2011 the appointment of 12 extra judges at its lower instance court, the General Court (GC), before eventually requesting a total of 9 new judges in 2013. However, following persistent disagreements between the Member States on how to rotate the appointments between themselves, this request was removed from a package of reforms to the Statute of the CJEU aimed at tackling the growing workload. The Court of Justice eventually proposed in October 2014 to double the number of judges working at the GC, from 28 (one for Member State) to 56 (two per Member State). To reduce the economic burden, which would ensue from the proposed reform, it also recommended abolishing the Civil Service Tribunal (CST) and ‘upgrading’ its 7 judges to the General Court. For more on the background, see here.

In a previous post, we questioned both the diagnosis and the solutions proposed by the CJEU. We offered the view that the ‘real challenge facing the Court today is more qualitative than quantitative in nature’ and called for ‘a broader reflection in the context of a more evidence-based and inclusive framework.’

In a follow-up post, our colleague Steve Peers argued that the lack of a proper discussion on the merits of the reform and attempts to silence critics would most likely damage the Court’s authority. He further suggested a compromise solution which would consist of the EP agreeing to the Court’s proposal with a sunset clause, according to which the new extra GC judges would serve one term only at the end of which a full impact assessment of whether the need for extra judges is required.

To pre-empt any suspicion of potential conflicts of interest in an EU ‘ecosystem’ which is not characterised by watertight bulkheads between the legislative and judicial branches, we would now be tempted to propose the adoption of an additional clause. In other words, the actors involved in the adoption of the Court’s proposal, who would be eligible to be among the new judges (e.g. MEPs, European Parliament and Council officials), would commit not to take up those positions.

No actor involved in the ongoing legislative process has however shown visible interest in discussing clauses of this nature. Indeed, for all intent and purposes, the Court’s proposal to double the number of GC judges and abolish the CST has secured the quasi-unanimous support of the Council, with only the UK voting against it on the grounds that the new proposal is not a proportionate way to deal with the GC’s backlog (Belgium and the Netherlands also abstained). Interestingly, the UK Minister for Europe stated last March that ‘[o]ther Member States also expressed doubts that this was the best way to address this problem, or that all these judges are actually needed. Nevertheless, after four years of negotiations, many Member States and the EU institutions have concluded that this is the least bad proposal on the table, and that it will break the deadlock and improve the capacity of the General Court.’

Be that as it may, the Council’s position, which was formally adopted on 23 June, unreservedly accepts the CJEU’s diagnosis and solutions, and is now currently examined by the European Parliament.

In this post, we outline the serious concerns recently voiced by the European Parliament’s Rapporteur, Mr Antonio Marinho e Pinto, before outlining our own concerns with respect to how the debate (or lack thereof) is being conducted at the European Parliament.

2. The Rapporteur’s Case Against the CJEU’s Proposal

In the explanatory statement, which follows the text of the draft European Parliament legislative resolution on the Council position at first reading, the Rapporteur makes clear his strong opposition to the proposal to double the number of GC judges and offers a number of solid arguments in support of this view. These arguments are summarised below.

The Rapporteur first expresses doubts about why 28 new judges and the abolition of the CST are suddenly required when the Court of Justice itself suggested in 2013 that 9 new GC judges were sufficient to address the steady increase in the number of cases before the GC over the years.

Secondly, the CJEU’s proposal is presented as showing ‘deep contempt for European taxpayers’ money’ and amounting to a frivolous increase in spending at a time of widespread austerity and a general commitment by EU institutions to reduce employee numbers by around 5 %.

Thirdly, the proposal defended by the CJEU would undermine the prestige of the CJEU itself by suggesting that we should appoint judges in the same way that EU commissioners are appointed. It is further suggested that the priority should instead be to reform the appointment system of EU judges with the view of appointing them for a longer but single term of nine years (as opposed to a renewable term of 6-year) and ensuring more equal gender representation on the bench.

Fourthly, the report argues that the amended request by the CJEU to amend its Statute via a simple letter addressed to the Italian Presidency of the Council was put forward in October 2014 is in breach of relevant procedural rules. Notwithstanding the doubtful appropriateness of presenting an amended proposal via a mere letter, the report stresses that a new legislative procedure ought to have been initiated as what is being now discussed (the appointment of 28 new judges and the abolition of an existing EU court) is of a significantly different nature.

Fifthly, the lack of any impact assessment, which never materialised despite the CJEU’s previous commitment to undertake one, combined with the lack of consultation of relevant institutions (for instance, the European Commission’s opinion was prepared when the proposal was to increase the number of GC judges by 12), suggests that this reform has been rushed through with no attention being paid to ensuring both internal and external transparency and due regard to relevant procedural obligations.

Sixthly, the EU Treaties provide for the creation of specialist courts and therefore rather than abolishing the CST - in the absence of any legal basis for doing so - the possibility of creating new specialist courts, in particular for trademarks and patents, should be explored. Judicial reform should not in any event be devised on the basis of the Council’s inability to make judicial appointments and ‘force reality to adapt to [the Council’s] ossified ways of working.’

Seventhly, the issue of compensation for possible delays with GC decisions is dismissed as ‘pure smoke and mirrors’, as the Strasbourg Court itself ‘takes the view that the right to compensation for delays in justice arises only when there is a delay of more than five years’, which is far from being the situation at the GC.

Last but not least, it is submitted that ‘the figures provided by the CJEU on the outstanding GC cases and the average duration of these cases are contradicted by the figures provided by the President and by the GC judges during their hearing before the Legal Affairs Committee in Strasbourg, at the invitation of the rapporteur.’ (This issue alone should call in our view closer scrutiny and a genuine public debate on the proposed reform).

3. The Rapporteur’s Proposal 

In the light of the reasons set out above, the rapporteur suggests to reject the CJEU’s proposal and to consider instead the adoption of an alternative reform package, which would consist of the following elements:

-          The appointment of more staff at the Registry and in the translation services;

-          The appointment of 19 more legal secretaries (référendaires);

-          The appointment of up to 12 new judges at the GC but only ‘if the Court of Justice furnishes detailed evidence showing it to be objectively necessary in the light of the trend in the caseload for the General Court in 2015’;

-          The setting up of a committee of experts to analyse the advantages and disadvantages of creating a new court specialising in trademarks, patents and intellectual property.

-          The establishment by Parliament and the Council of a joint committee of experts to analyse the overall workings of the CJEU and make suggestions to improve its functioning and legitimacy by looking for instance into the recruitment of judges through open tender from amongst law professors of repute and judges from the high courts of each Member State; the appointment of each judge for a single term of nine years only; new rules to guarantee gender parity in the recruitment of judges;

-          The monitoring of the EU courts by the European Committee for the Efficiency of Justice (CEPEJ) on the same terms as the courts of the Member States of the Council of Europe.

4.  Procedural concerns

Rather than explaining why the diagnosis and set of solutions suggested above seem to us a more promising avenue than the solutions put forward by the CJEU and supported by the Council, we shall use this post to express a number of concerns with respect to how the ongoing legislative procedure is conducted.

First of all, we regret the lack of any rigorous and open data collection on the root causes justifying this reform as well as the absence of any prospective analysis of its impact (see e.g. here and here).

Secondly, we observe that the CJEU appears to be engaged in a subtle yet unorthodox lobbying process (as recently reported in the press here). This raises a number of questions with respect to the Court’s understanding of the principle of institutional balance and that of loyal cooperation. It would appear more appropriate for the Court – the guardian of the EU legal order – to confine its joint advocacy to the public domain rather than seeking to be directly involved in the legislative process via informal ‘quadrilogue’ meetings. Thus, one would expect the Court to systematically inform the public when its members visit other EU institutions to discuss pending legislative matters and, to say the least, report on the outcome of any such discussions.

But is not only the Court’s behaviour that raises concerns. The European Parliament’s action also calls for attention. In particular its JURI committee responsible for the dossier owes the public an explanation for a number of procedural glitches that have characterised the parliamentary discussion of the reform, including those listed below:  

-          Why was Pinto’s report presented on 15 September to the JURI Committee by an MEP belonging not only to another political group but also coming from Luxembourg, the very country which hosts the CJEU and stands to benefit most from any additional resources granted to it?

-          Was the now temporary appointment of the MEP from Luxembourg as Rapporteur the outcome of a foiled attempt to dismiss Pinto in violation of the Parliament’s procedural rules and conventions as reported here?

-          What is the explanation for the absence of any translation of the Explanatory Report (originally written in Portuguese) on the day Pinto’s draft recommendation and suggested amendments were to be debated on September 15?

-          Why is the documentation and correspondence (i.e. ‘Annexes’) mentioned at the very end of the Explanatory Report still not available?

The absence of any translated version of the Annexes is particularly prejudicial to a well-informed parliamentary debate. The MEPs – whose amendments are expected by 23 September – are deprived of the opportunity to consult a GC document, which, according to the rapporteur might question the need for the proposed reform by offering facts and figures contradicting those presented by the CJEU.

When analysed together, the sum of these elements suggests a pattern of procedural irregularities whose only aim seems to be the speedy adoption of the reform. More troublingly, it may also be construed as a joint advocacy strategy designed to systematically eliminate any opportunity for a public, well informed and evidence-based debate.

When it comes to a reform carrying constitutional implications and having at its centre the operation of the ‘supreme court of the land’, one might expect more attention to be paid not only to the merits but also to the forms.   

5. Conclusions

The proposal, which is now being examined by the European Parliament, bears little resemblance to the 2011 proposal on the basis of which the current legislative process was initiated. This calls into serious question not only the procedural legality but also the legitimacy of the whole reform process.  

We are not surprised to see strong institutional and individual support for the Court’s proposal within the EU’s legal epistemic community.  Don’t we – lawyers – all have more to win than to lose from the multiplication of top judicial posts?

Be that as it may, we suspect that should this reform go through (as it appears likely), damaging evidence might yet come to light and the authority and legitimacy of relevant EU institutions will be further undermined at a time where they have little to spare.  

This is why the strategy that has accompanied and will eventually secure the adoption of such reform may be said to be as short-sighted as the reform itself.

Barnard & Peers: chapter 10

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