The Jilin Judgment (Case C‑249/25): Can Member States Suspend Asylum Procedures During Temporary Protection, and for How Long?

 

Dr Meltem Ineli Ciger, Associate Professor of International Law, Süleyman Demirel University

Photo credit: Maksym Kozlenko, via Wikimedia Commons

On 1 October 2026, the Court of Justice delivered Case C‑249/25 (Jilin), its fourth preliminary ruling on the Council Directive 2001/55/EC (Temporary Protection Directive, ‘TPD’) since the Directive was activated for people displaced from Ukraine. It follows Joined Cases C‑244/24 and C‑290/24 Kaduna (19 December 2024), Case C‑753/23 Krasiliva (27 February 2025) and Case C‑195/25 Framholm (20 November 2025), all discussed on this blog (here, here and here). The question in Jilin is: can a Member State suspend processing of applications for international protection of temporary protection beneficiaries until temporary protection ends? The Court’s answer is no, subject to an exception for cases of ‘objective impossibility’. This post summarises the judgment and then examines what the Court left undefined. It criticises the absence of any explicit reference to international refugee law as well as the requirements of necessity and proportionality in the Court’s assessment.

·         The facts and the questions referred

UB, a Chinese national of Uyghur origin, arrived in the Netherlands on 7 March 2022 with his Ukrainian wife and their child, and applied for asylum on 13 April 2022. During the examination, the Dutch authorities found that, as the family member of a Ukrainian national who had lived in Ukraine before 24 February 2022, he qualified for temporary protection. They therefore stopped examining his asylum claim, on the basis that it could resume once temporary protection expired (para 22). Article 43a of the Dutch Aliens Act 2000 allows this: for temporary protection beneficiaries, a decision on an asylum application may be taken at any time up to six months after temporary protection ends (para 19).

UB sent a formal notice of default in January 2024 and then brought an action for failure to act. The District Court of The Hague held that the 21‑month maximum time limit had started to run when the application was lodged, ordered the Minister to decide within eight weeks. On the Minister’s appeal, the Raad van State asked the Court of Justice two questions:

(1)   Does Article 17(2) of the TPD allow Member States to suspend the examination of an application for international protection made by a temporary protection beneficiary for the duration of temporary protection?

(2)   Do the time limits in Article 31 of the Directive 2013/32/EU (Asylum Procedures Directive, ‘APD’) start or resume running only when temporary protection ends, where the application was made before or during temporary protection?

Article 17(1) of the TPD provides that ‘[p]ersons enjoying temporary protection must be able to lodge an application for asylum at any time’; paragraph 2 adds that ‘[t]he examination of any asylum application not processed before the end of the period of temporary protection shall be completed after the end of that period.’ Article 31 of the APD sets the timetable for the regular procedure. A decision must be taken within six months of the lodging of the application (Article 31(3)). That period may be extended by up to nine months where complex issues of fact or law arise, where a large number of people apply simultaneously, or where the delay is attributable to the applicant; in duly justified circumstances, it may be exceeded by a further three months. Where the situation in the country of origin is uncertain but expected to be temporary, the decision may be postponed, subject to six‑monthly reviews (Article 31(4)). ‘In any event’, the procedure must be concluded within 21 months of the lodging of the international protection application (Article 31(5) of the APD).

Under Article 4 of the TPD, temporary protection should have lasted no more than three years. In practice, the Council has repeatedly prolonged the regime for people displaced from Ukraine, most recently until 4 March 2028 (Council Implementing Decision (EU) 2026/1912). In doing so, it has turned an exceptional, time‑bound emergency response into an open‑ended EU policy (see here, here, here and here). On the Dutch reading, an asylum claim lodged in spring 2022 might not have to be decided until late 2028.

·         The judgment

The Court joined the two questions and reformulated them as whether Article 17(2) of the TPD and Article 31 of the APD preclude national authorities from ‘automatically suspending’ the examination of international protection applications lodged by temporary protection beneficiaries, so that the decision time limit does not begin or continue to run until temporary protection has ended (para 34). The Court said yes and noted that such an automatic suspension is unlawful, whilst clarifying that Member States may only temporarily defer individual examinations beyond statutory deadlines in exceptional circumstances where strictly necessary to address an objective impossibility and prevent system collapse (para 64). The judgment provides three reasons.

First, the Court held that Article 17(2) of the TPD only governs what happens to applications not processed before the end of the temporary protection period. It says nothing about whether MS can suspend asylum applications during temporary protection (para 38) (This is also in line with Skordas’ assessment here p. 1213). Temporary protection should not prejudge recognition of refugee status under the 1951 Convention (Article 3(1)); beneficiaries must be able to apply for asylum ‘at any time’ (Article 17(1)); and a person whose asylum application is rejected continues to enjoy temporary protection (Article 19(2)). The Court noted that the legislature, in light of all these provisions, therefore envisaged that asylum procedures would run during temporary protection (paras 39–41). The Court, in line with the AG opinion, reasoned that the Commission’s original proposal included an option to suspend asylum procedures during temporary protection, but Member States could not agree on it and dropped it. No such power can therefore be read into Article 17(2) by implication (paras 42–44, following points 42–45 of Advocate General Campos Sánchez‑Bordona’s Opinion).

Second, the Qualification Directive and the APD apply to all applications for international protection, and nothing excludes applicants who already enjoy temporary protection. Article 31 of the APD time limits therefore apply ‘in principle’ to them as well (paras 45–48). In the Court’s view, Article 31 already takes account of pressure on asylum systems: it allows an extension of up to nine months where large numbers apply simultaneously, a further three months in duly justified circumstances, and postponement for an uncertain situation in the country of origin, all within the 21‑month limit (paras 49–53).

Third, a general and automatic suspension is not necessary to achieve the Directive’s aims (para 54). The TPD is meant to protect asylum systems from being overwhelmed, but it is also meant to ensure that beneficiaries keep ‘a real opportunity to obtain international protection’ once their situation has been examined (para 56). An EU‑wide activation of temporary protection does not mean that every Member State faces more applications than it can handle (para 58). When temporary protection expires, the authorities would face exactly the simultaneous surge of applications that temporary protection was supposed to prevent (para 59).

Having rejected automatic or a blanket suspension, the Court nonetheless recognised an exception. The Court noted it cannot be entirely excluded that a considerable number of applications lodged by temporary protection beneficiaries over a short period will make it ‘objectively impossible’ for a Member State to decide them all within the Article 31 time limits, ‘despite all the reasonably conceivable measures to deal with such an influx’ (para 60). In that case, the State may take measures such as examining applications in phases and setting priorities. This may lead it to defer the examination of some applications temporarily, even if not every application can then be decided within the Article 31 time limits (paras 61–62). National courts must check, in each case, that a missed deadline is not the product of a general and automatic suspension and results only from measures that are necessary to deal with the objective impossibility (para 63).  

·         Analysis

1. The tension of the judgment with the logic of temporary protection

The judgment sits uneasily with how temporary protection is usually understood. Under Article 2(a) TPD, the very purpose of immediate, group‑based protection is to avoid an asylum system being overwhelmed by a mass influx (para 35). In international practice, temporary protection has generally worked by suspending individual refugee status determination.

Jilin confirms that the EU took a different path in 2001. The Member States considered a suspension power and chose not to adopt one (para 42). What they kept instead was Article 19(1), which allows States to provide that a person cannot hold temporary protection and asylum‑seeker status at the same time. The result of the Jilin is that, in EU law, temporary protection can run alongside the asylum procedure. Whether that model can actually deliver on the aim stated in Article 2(a) is a fair question. The Court answers that Article 31 APD already provides the flexibility needed (para 53).

2. An exception that leaves much to explain

The difficulty is that the Court then created an exception that it barely defines. Four questions are left open. What counts as ‘objective impossibility’? The Court requires a ‘considerable number’ of applications ‘over a short period’ and the exhaustion of ‘all the reasonably conceivable measures’, but gives no threshold, no indicators and no burden of proof. Whether a State has hired enough staff, reallocated resources or used the accelerated procedures available to it will be argued case by case before national courts.

How does the exception fit with Article 31 itself? At para 53 the Court tells us that Article 31 already reflects the legislature’s ‘due consideration’ of pressure caused by simultaneous applications, which is why automatic suspension is unnecessary. However, paras 60–62 allow those same calibrated limits to be exceeded.  

Does it reach beyond 21 months? Article 31(5) of the APD requires the procedure to be concluded ‘in any event’ within 21 months. The operative part of the judgment allows deferral ‘including by exceeding that decision‑making period’, without saying whether the 21‑month limit is included. If it is, the Court has created a judge‑made derogation from a limit the legislature described as absolute.  

For how long, and for whom? Deferral must be ‘temporary’, and concern only ‘some’ applications, but the Court sets no outer limit and gives no criteria for prioritisation. Nothing in the judgment prevents a MS from prioritising other caseloads and leaving temporary protection beneficiaries at the back of the queue, which is the outcome Jilin was meant to prevent.

The exception will also apply unevenly. Para 58 makes clear that the test is specific to each State. The relevant variable, however, is not how many temporary protection beneficiaries a Member State hosts but how many asylum applications they lodge in a short period (para 60). Can a MS hosting large numbers of Ukrainians who never apply for asylum not rely on the exception? Can only Germany, Poland or Czechia make use of this possibility? What about other MS hosting a smaller number of temporary protection beneficiaries? These are the questions, in my opinion, left open.

3. What is missing? The international refugee law dimension and the doctrine of derogation

The international refugee law is absent from the judgment. The TPD makes explicit reference to the 1951 Convention. Recital 10 states that temporary protection ‘should be compatible with the Member States’ international obligations as regards refugees’ and ‘must not prejudge the recognition of refugee status pursuant to the Geneva Convention’, and Article 3(1) repeats the point. All Member States are parties to the 1951 Convention and its 1967 Protocol; Article 78(1) of the TFEU requires the EU’s asylum policy to be in accordance with the 1951 Convention, and Article 18 of the Charter guarantees the right to asylum ‘with due respect for’ the Convention.

This matters because temporary protection, conceived as a short emergency response, now routinely becomes protracted. Temporary protection for people displaced from Ukraine will have lasted six years by March 2028. When protection is prolonged, suspending individual status determination can no longer be explained simply as managing an emergency. The 1951 Convention contains no general derogation clause (cf. Durieux and McAdam 2004).  One of the issues which deserved attention, in my opinion, was therefore whether a State Party to the 1951 Convention may, for years, deny people who may well be refugees access to the asylum procedure through which they can claim the Convention rights that build up with lawful and durable stay. However, one should frame such a departure from the Convention as a derogation, as a necessity under general international law or by analogy with human rights derogation clauses; any derogation must be necessary, proportionate and temporary (see, for a fuller analysis, section 2 of this article). International refugee law scholarship has examined this question in depth (cf. Edwards 2012; Durieux 2014). I argued that a genuine mass influx may justify temporarily setting aside individual procedures. It is far less clear that a suspension lasting several years can meet the requirements of necessity and proportionality under international or EU law.

The Court did not engage with any of this. Its analysis stays within the relationship between the TPD and the APD. It never addressed or took into account whether deferring asylum procedures for up to six years is compatible with the 1951 Convention, even though Recital 10 and Article 3(1) of the TPD point straight to that question. It is worth mentioning the Advocate General’s Opinion (paras 60-65), in which he relied on Article 18 and on Article 52(1) of the Charter; he came close to taking these issues into account. Ironically, the outcome of Jilin is broadly what an international law analysis would support: no automatic, open‑ended suspension. But because the Court reached it through EU asylum acquis alone, it left the exception in paras 60–63 without an explicit necessity and proportionality framework that international law would have supplied.

Conclusion

Jilin is quite a vague judgment that leaves much to be discussed, especially given the new exception it introduces to the ban on general suspension of asylum procedures. Although the Court relied on objective impossibility as a ground, it does not make clear when Member States may continue to defer the processing of international protection claims lodged by temporary protection beneficiaries.

Jilin is the CJEU’s fourth preliminary ruling on the TPD, and it repeats a pattern visible in the earlier three. The Court reads the Directive carefully on its own terms and contrasts it with another instrument of the EU acquis but engages little with the international origins of temporary protection, its relationship with the 1951 Convention and leaves unresolved the basic tension between prolonged temporary protection and Member States’ obligations under the 1951 Convention.  

The judgment will matter well beyond UB’s case. Since 12 June 2026, applications lodged after that date are governed by the Asylum Procedures Regulation (Article 35 of Regulation (EU) 2024/1348), which shortens the extension for large numbers of simultaneous applications to six months, though it does not impact the backstop 21-month time limit. Jilin’s reasoning, that the general asylum time limits apply to temporary protection beneficiaries unless the legislature provides otherwise, is likely to carry over to the new regime. The exception created by the judgment may become even more attractive to States as a result. As the Court itself warned (para 59), Member States that suspended asylum claims face the prospect of a surge of pending decisions when temporary protection ends in March 2028. Jilin requires them, to a certain albeit vague extent, to start deciding on those claims now.

New book: Disaster Displacement and International Protection in the EU

 

 

Dr. Chiara Scissa, Department of Social and Political Sciences, University of Bologna

Photo: 2026 forest fires in Fontainebleu, by Jdkxhdjj, via Wikimedia Commons

 

New book: Disaster Displacement and International Protection in the EU. Challenges, Misconceptions, and the Way Forward (Routledge, 2026)

 

Disasters trigger over three times more displacements than conflict and violence and rank among the principal drivers of displacement worldwide. Whereas other world’s regions have reached significant achievements – including Africa with the IGAD Protocol on Free Movement of Persons recognizing free movement for IGAD citizens affected by disasters, Latin America with the 2025 Inter-American Court on Human Rights’ Advisory Opinion acknowledging the applicability of international protection in disaster contexts, and the Pacific with relevant regional and bilateral initiatives on climate mobility -, this is not the case for the European Union (EU). The EU lags behind with no common protection avenue for people displaced across borders in the context of disasters, and with only three Member States - Italy, Cyprus, and Finland – that currently offer an explicit provision to that effect.

In this book, I interrogate the asymmetry between the magnitude of the phenomenon and the poverty of the legal response in the EU, and argue that the protection gap is not attributable to a lacuna in positive law, but to the defective application and interpretation of norms already in force and restrictive asylum policies. The right path to follow would, in my opinion, not lie in the codification of a new status for the so-called “climate refugees”, a category I do not endorse, but the principled, evolutive application and interpretation of existing norms that already bind the Union and its Member States.

Central to the book is the identification of three compounding challenges that have so far contributed to hindering the recognition of protection in the context of disaster displacement in the EU: 1) the misconceptualization of disasters in legal and policy instruments; the rigid application and (sometimes controversial) interpretation of international protection norms; and 3) the deterrence paradigm increasingly endorsed by the EU and its Member States to curb access to asylum.

The first challenge: Misconceptualization of disasters.

A first major challenge, which is persistently present in relevant legal and operational EU disaster frameworks from the very outset to the latest developments in this area, concerns the reference to “natural disasters” as part of the definition. This formulation does not only contradict scientific evidence and established scholarly work in the field of disaster studies, according to which disasters are the product of hazards in combination with the social environment in which they unfold, but also undermines asylum claims based on, or associated with, disaster displacement. Indeed, where a disaster is perceived as something purely natural, and hence beyond human control, it risks creating a fictitious separation between situations attributable to human actions and those perceived as naturally occurring. Seen as the manifestations of the uncontrollable forces of nature, disasters can therefore hardly fall within the net of protection. Likewise, the attribution of State’s responsibility in disaster contexts, and the related failure to protect, is hardly explored.

The second challenge: Misinterpretation of refugee law tenets.

Closely related to the misconceptualization of disasters is the second identified challenge, namely the issue of rigid, and sometimes controversial, application and interpretation of international protection norms in the context of disaster displacement. From a careful and in-depth literature review and case law analysis, available in Chapter 2, what stems is that disaster-related asylum claims have been often, and hastily, dismissed. Respectively, refugee status is denied in this context on some recurring grounds: disasters do not amount to persecution; they disclose no nexus to a Convention ground; they do not discriminate and produce no individual harm; they cannot constitute actors of persecution; and have no intention to persecute. These propositions recur in the Commission’s own documents (2013; 2022) and in the jurisprudence of the Member States. As for subsidiary protection, this is frequently set aside due to the fact that the harm stemming from disasters is not explicitly listed among the components of serious harm pursuant to Article 15 of the Qualification Directive (now Qualification Regulation). In addition, the requirement for serious harm to stem from an intentional act or omission, which was first coined by the EU Court of Justice in M’Bodj (2014) but has no place either in EU asylum law or in the 1951 Refugee Convention, has already led national asylum judges to dismiss subsidiary protection claims. In Italy and France, for example, the combination of misconceptions surrounding the notion of disasters and challenges in applying a principled interpretation of serious harm led national courts to swiftly dismiss disaster displacement-related claims, reserving short paragraphs or even just one sentence of their judicial analysis to explain the exclusion of disaster displacement from subsidiary protection.

Finally, the book looks at the internal protection alternative (IPA) for people displaced in the context of disasters as a further protection tenet subject to fragmented and inconsistent practices among the Member States. In Austria, the relevance of disasters in the IPA assessment seems to depend on the claimant’s country of origin and the judge adjudicating the case instead of the severity of the disaster and its human rights implications on the applicant. In Nordic countries, disasters seem to have almost never been taken into account by competent authorities in the context of an IPA assessment. Hence, disasters’ integration into the IPA assessment is far from being standardized in the EU, which means that the decision on the availability of internal relocation in the claimant’s country of origin is a bit of a lottery with severe repercussions on asylum seekers coming from disaster-prone countries.

The third challenge: the logic of deterrence.

Before actually writing the book, in that phase where concepts and words are chaotically appearing on paper together with some random arrows in the attempt to make sense of everything, I realized that the first two challenges identified showed why disaster displacement is hardly recognized as a legitimate ground for protection. But that was the last stage of a complicated and often incomplete process. Actually, for people displaced in the context of disasters, it is extremely hard to even reach and get the chance to stay in the territory of the EU Member States to seek protection. This is because disasters themselves can hinder people’s arrival at destination. This is the case of thousands of migrants crossing the Mediterranean Sea in the attempt to reach Italy, who have drowned because of extreme weather events, including storms and cyclones. Likewise, asylum seekers attempting to reach the EU through the Balkan route are exposed to drowning in rivers as well as to freezing temperatures along the way and extreme cold weather deaths from hypothermia. In doing so, disasters can interact with deterrence policies preventing arrivals. Italy’s efforts to stop disembarkations in addition to disasters, which make the sea crossing perilous and relief operations unfea­sible, claimed the life of 380 people in January 2026.

At the same time, disasters can interact with deterrence policies aimed at curbing access to the asylum procedure.

The book presents emblematic examples of EU-led deterrence policies and how they interact with disasters following Gammeltoft-Hansen and Tan’s categorization. These include development cooperation, accelerated procedures based on the safe country notion, and externalization agreements. All these examples corroborate that deterrence makes it harder, if not totally unlikely, not only for disasters to be recognized, but even identified as a cause of displacement. On the contrary, deterrence policies are contributing to perpetuating its invisibility in asylum adjudication. Indeed, the result of ongoing, and progressively more restrictive, asylum pol­icies at the Union and national levels is the continued lack of attention toward disaster displacement in asylum adjudication, thus making their exclusion from protection a persistent issue.

Concluding remarks.

My aim with this book is twofold and only time will tell me if I somehow managed to get closer to it. On the one hand, I hope to make more students interested in this topic, which fascinates me and deserves further attention, especially from young and fresh minds. On the other hand, I sincerely hope this book will reach in one way or another policymakers and decisionmakers across the world, and especially in the EU, as all the described challenges have to do with decisions made at the political and judicial level. This book explains why the persistent use of the term “natural disaster” in legal texts should be definitely abandoned, describes the risks associated with superficial asylum adjudication, and warns against the alarming combination of disasters with deterrence policies for people seeking protection. May those entrusted with making, enforcing, and interpreting the law find meaningful insight within these pages - ever mindful that abstract policy carries concrete, and often indelible, consequences for human lives.

 

Download the open-access version here.

Purchase a hard copy here.

 

Fumbling towards Ecstasy? Canada as an associate member of the EU

 

Professor Steve Peers, Law School, Royal Holloway, University of London

Photo credit: Martin St-Amant, via Wikipedia Commons

“Living next to [the United States] is in some ways like sleeping with an elephant. No matter how friendly and even-tempered is the beast, if I can call it that, one is affected by every twitch and grunt.”

-          Pierre Trudeau, former Prime Minister of Canada

 

Introduction

Can Canada become an ‘associate member’ of the EU? What might that mean, and how might a process to this end work? There are few details yet, but this blog post explores the broad parameters of the law and politics of such a possibility.

The Legal Framework

Canada is not seeking to be a Member State of the EU – a process governed by Article 49 TEU. Nor is it seeking to sign an association agreement – as referred to in Article 217 TFEU. Rather the status under discussion is that of ‘associate member’ – a concept not referred to in the EU Treaties.

However, the absence of an explicit reference to such a concept does rule out an agreement to create such a thing. EU external relations law is replete with the creation of new categories of relationship to address the political priorities of the day, such as ‘Euro-Mediterranean Agreements’, ‘Europe Agreements’ and ‘Partnership and Cooperation Agreements’, to name just some.

In fact, the absence of a formal concept of ‘associate member’ leaves the EU and Canada free to innovate both the procedure and content of their relationship. Instead of being bound by the ‘staircase’ metaphor that came to dominate EU/UK post-Brexit relations, Canada and the EU can just take the elevator – although the underlying trade-off (greater market access in return for greater alignment with the EU) is likely to remain in some form.

Unlike membership or association, the ‘associate member’ concept does not necessarily even imply a treaty; Canada and the EU can simply declare the existence of such a status at the upcoming summit. Associate membership is an unidentified legal object; but it can still be a definite political outcome.

Nevertheless, both the EU and Canada have said that they expect something concrete to develop from deepening their relationship, even if it does not have the title of ‘associate member’. Let’s look at what each of them has recently said.

Issues for negotiation

In her State of the Union speech, the EU Commission President Ursula von der Leyen stated:

We will move from CETA to an Alliance for the Future to create a common prosperity and economic security space. We will work on intelligent manufacturing. We will create a tech alliance. We will integrate defence industrial bases. We will make the Arctic a flagship joint project. We will work on energy, critical minerals and batteries. On AI, quantum, cyber and economic security.

(CETA is the existing EU/Canada free trade agreement).

In his speech to the European Parliament, Canadian Prime Minister Mark Carney said:

Canada and Europe should secure our strategic autonomy through deep cooperation in the full range of strategic capabilities, including critical minerals, defence industrial capacity, AI and compute, energy security, space, and payments.

We should move toward seamless, digital trade in non-agricultural goods and a wide range of services.

We should deepen our people-to-people ties, allowing our youth to live, work and study where they want on either side of the Atlantic.

Canadian membership of Erasmus+ can give your students, and ours, more opportunity to learn at some of the world’s top universities, to broaden their horizons, and to build lasting ties that will sustain our alliance for the future.

Canadian membership of the next generation of Horizon would allow us to pool resources, cooperate on frontier technologies, and leverage our world-class research institutes and universities.

Yesterday, President von der Leyen announced a “new European Corporation on Critical Raw Materials” to obtain and stockpile the material needed for electric cars, chips and batteries, clean technology, and defence. Canada has deposits of over 34 critical minerals, and we are among the top producers of the 10 most essential for the world’s energy transition. Our alliance can help fill Europe’s need for reliable supply, Canada’s need for advanced processing capabilities, and our common objective to build complete value chains.

Canada can contribute LNG and hydrogen at large scale to support Europe’s energy security including by developing and leveraging new port infrastructure in the High North and on our East Coast. We, in turn, can benefit from your leadership in many clean energy technologies.

We can pool new sovereign compute capacity and build more secure broadband connections between Europe and Asia via our common geography.

Canada and Europe can join forces to develop AI safety protocols, coordinate common standards, and strengthen transparency, all while developing applications so our governments and companies can serve our citizens better. 

Canada and Europe should also consider exploring an integrated market for financial services to broaden choice and reduce costs for our citizens, improve access to capital for our companies while maintaining our world-leading financial resilience.

Comparing the two, we can see that there are more details offered on the Canadian side. There are several points in common: energy, defence industries, critical minerals, AI and computing. But it is notable that Carney raises two issues not mentioned on the EU side: financial services and youth mobility.

There is no inherent reason why the various issues for further cooperation all have to addressed in a single treaty. Some of them might be addressed better by commercial negotiations between companies (supported by governments/the EU on each side), and some might be addressed by non-binding ‘soft law’ encouraging developments. The EU tends to prefer single overarching treaties, but has compromised on this goal with Switzerland (settling for a common institutional framework for some EU/Swiss treaties), and the UK (there is a single treaty, but with different rules for different parts of it; it is effectively several separate treaties wearing a single trenchcoat). Further EU/Canada developments could follow either model.   

On one issue in particular – youth mobility – the obvious parallel is with EU/UK relations, where the EU seeks to negotiate its first youth mobility treaty (EU Member States have a number of such arrangements already, including agreements with Canada). Since the UK/EU negotiations have not concluded yet, there is no final template which could just be copied; and in any event, there is no reason for such arrangements to be identical (the UK’s youth mobility schemes differ greatly). Despite the existence of schemes between Canada and many Member States already, there could be added value in extending these schemes for longer than one year, or (as the EU has demanded from the UK) agreeing equal treatment in tuition fees.

It is possible that individual future treaties between the EU and Canada will raise legal issues on both sides: tuition fees, for instance, could fall within provincial jurisdiction on the Canadian side, and the EU courts have twice been asked already about the compatibility of EU/Canada treaties with EU law – the investment provisions of the EU/Canada free trade agreement, and the data protection rules in the EU/Canada passenger name records treaty.  (The various processes for referring issues to the Supreme Court of Canada to resolve their constitutionality broadly resemble the process of asking the CJEU to rule on whether planned treaties are compatible with EU law, set out in Article 218 TFEU).

However, one striking feature of EU external relations is that despite their legal complexity, the EU usually gets to where it wants to go in the end, even if (as with the EU/Canada passenger name records treaty) a planned treaty has to be amended to be compatible with EU law. (Member States do not have a veto on all treaties with non-EU countries; this depends on their subject-matter, and economic issues such as trade are subject mostly to qualified majority voting. Nor do Member States always have to be parties to treaties alongside the EU).

The broader context

Although neither the Commission President nor the Canadian Prime Minister mentioned the elephant by name, the underlying dynamic of the EU and Canada seeking a closer relationship is the current administration of the United States – which is far from friendly or even-tempered towards Canada, the EU, or most of the rest of the world (other than Putin’s Russia and North Korea). But despite the silence, the listeners to the speeches in the European Parliament – and the broader audience outside – knew exactly who was being referred to. As a great Canadian once sang, everybody knows that the dice are loaded. And yet, Trump might still manage to bankrupt another casino.

There’s a historical resonance to this conflict too. Growing up in Canada, I was never far from a War of 1812 battlefield; studying Canadian history, it is striking how much of the basic foundations of the Canadian state developed as a reaction to threats from the United States. In recent decades, characterised by alliance and friendship between the two countries, this history of conflict began to look ancient, but now the old threats are new again. Donald Trump has never met an ally he didn’t hate.

Further development of EU/Canada relations might face legal and political complications; after all, several Member States have still not ratified CETA (it’s being applied provisionally). But any differences of opinion will not result in the EU threatening annexation or economic coercion, renaming lakes, or posting violent memes about Canada on social media. Both sides are free to develop their relationships elsewhere (as they are doing). And if Trump – as threatened – imposes tariffs against the EU as a result of its friendship with Canada, the EU can quickly retaliate.

As for less aggressive partners, it’s not clear just how close Canada’s relations with the EU might become, for instance compared to Norway, Switzerland or the UK. The plans seem to fall short of full participation in the internal market or free movement of people. On youth mobility in particular, though, it’s possible that Canada might leapfrog the UK, given the slow pace of UK/EU talks. As another great Canadian once sang, this would be ironic indeed: the good advice that the UK just didn’t take on Brexit.

How the New Appeal Filtering Mechanism in the EU Courts Affects Judicial Review of CSDP Missions

 

Antje Kunst*

Photo credit: Lucalupe, via WikimediaCommons

 

Introduction

In 2024, a new procedural requirement was introduced whereby appeals against General Court judgments delivered in proceedings brought under Article 272 TFEU (jurisdiction to rule on arbitration clauses in contracts concluded by or on behalf of the EU), are subject to an appeal filtering mechanism established by Article 58a of the Statute of the CJEU.

Since 1 September 2024, parties seeking to appeal a General Court judgment in an action brought under Article 272 TFEU must demonstrate that their appeal raises ‘an issue that is significant with respect to the unity, consistency, or development of Union law’. By contrast, no such admissibility requirement applies to appeals against judgments of the General Court in actions brought under Article 263 TFEU (actions for annulment), which may be pursued by staff seconded to Common Security and Defence Policy (CSDP) missions or in actions brought under Article 270 TFEU (staff cases).

The implications of the appeal filtering mechanism are particularly significant for staff serving in CSDP missions as contracted staff. In the absence of a EU Staff Regulations framework comparable to that applicable to ordinary EU civil servants, such staff cannot bring employment-related disputes under Article 270 TFEU. Instead, they must rely on an arbitration clause contained in their employment contracts, with Article 272 TFEU providing the procedural basis for bringing such disputes before the EU courts.

This blog argues that extending the Article 58a appeal filter to cases brought under Article 272 TFEU does more than reduce the workload of the Court of Justice. The reform further restricts, for contracted staff serving in CSDP missions the opportunities to obtain judicial review by the Court of Justice, in an area where access to judicial review is already subject to constraints, including those arising from Article 275  TFEU and Article 24(1) TEU.

The amendment therefore raises a broader constitutional question: can the  objective of reducing the Court’s workload legitimately come at the expense of effective judicial protection and meaningful access to judicial remedies for contracted staff serving in CSDP missions? The reform also raises concerns about equal treatment. It creates a distinction between, on the one hand ordinary EU civil servants and seconded staff serving in CSDP missions who have the possibility of appealing to the Court of Justice, and, on the other hand, contracted staff, who are denied equivalent access to appellate review.

Key Aspects of the New Requirement

Pursuant to the 2024 amendment to Article 58a of the Statute an appeal against the General Court in proceedings concerning ‘the performance of a contract containing an arbitration clause, within the meaning of Article 272 of the [TFEU]’ may proceed only if the Court of Justice first grants leave to appeal.

The admissibility threshold for appeals by contracted staff serving in CSDP missions is demanding. An appellant must demonstrate that the appeal raises ‘an issue that is significant with respect to the unity, consistency or development of Union law’. It is therefore no longer sufficient to argue that the General Court committed an error in its interpretation of the law or assessment of the facts in the individual case. Instead, the appellant must establish that the issue extends the interests of the individual litigant and demonstrate why its resolution matters for the EU legal order as a whole.

The appeal therefore requires a form of ‘second-level’ justification: first, the appellant must identify alleged errors of law in the judgment, second, and critically, the appellant must explain why that error raises an issue significant for the unity, consistency or development of Union law. (see the Court Order of 29 April 2025 in SC v Eulex Kosovo (Case C-881/24), the first case to which the new appeal filter was applied). In this respect the test is comparable to the approach of the UK Supreme Court which filters appeals according to whether they raise an ‘arguable point of law of general public importance’.

The Court of Justice determines whether the conditions laid down in Article 58a of the Statute are satisfied by means of a reasoned order rather than a judgment. Where leave to appeal is refused, the judgment of the General Court becomes final, thereby bringing the litigation to an end without substantive review by the Court of Justice.

What raises a wider issue?

In employment disputes involving contracted staff of CSDP missions, appellants must identify a legal issue that extends beyond the particular employment relationship or factual circumstances of the CSDP mission concerned. This requirement may be met where an appeal raises, for example, a question  of EU law that could affect numerous contracted staff across different CSDP missions; where existing case-law is uncertain or inconsistent; or where clarification by the Court of Justice would contribute to  a coherent and consistent body of EU law applicable to all staff serving in the Union.

An appellant might be able to convince the Court that its interpretation of a fundamental right in a CSDP employment dispute could have implications beyond that specific context and provide guidance for future disputes in other areas of EU  law, such as EU restrictive measures, public procurement, competition or migration and asylum.  This may include disputes involving other EU bodies, missions or other actors subject to EU law. (see in this respect paras. 22 and 24 of the Court Order 29 April 2025 in SC v Eulex Kosovo (Case C-881/24))

Furthermore, an appellant might be able to successfully argue that the case raises a question of principle concerning the scope of the Court’s jurisdiction under Articles 24 (1) TEU and 275 TFEU, in particular whether and to what extent the Common Foreign Security Policy (CFSP) limitations on judicial review apply to employment-related decisions in CSDP missions. This question could have implications beyond the individual dispute, including for comparable cases involving other CSDP missions, EU bodies, or categories of EU personnel. It could also have broader implications for the principle of effective judicial protection under EU law, particularly where the contested measure affects fundamental rights or other rights protected by EU law.

Rationale for an appeal filter related to decisions of Boards of Appeal

The appeal filtering mechanism was first introduced in 2019 for appeals brought before the Court of Justice against judgments of the General Court concerning decisions of the Boards of Appeal (BoAs) of certain EU offices and agencies.

The EU legislature focussed primarily on the EU agencies with powers over intellectual property rights, plant variety rights, chemicals regulation and aviation safety (EUIPO, CPVO, ECHA and EASA). The rationale was that decisions in these areas had already undergone administrative review by a specialised BoA and judicial review by the General Court, while a significant number of appeals were manifestly inadmissible or unfounded (see here).

In practice, this admissibility requirement has constituted a substantial threshold, with the Court of Justice permitting only a limited number of appeals to proceed beyond the initial filtering stage.

Rationale for an appeal filter related to Article 272 TFEU disputes

The 2024 extension of the Article 58a filtering mechanism to appeals concerning Article 272 disputes was justified primarily by considerations of judicial efficiency. The legislator’s rationale was that such disputes most frequently require the General Court to apply, to the substance of the dispute, the national law to which the arbitration clause refers. (see here) Such appeals would generally be less likely to raise issues of EU law.

A CSDP employment dispute is an atypical Article 272 TFEU dispute

A CSDP employment dispute will rarely require the application of national law (see  JF v EUCAP Somalia) and is not a typical Article 272 TFEU dispute. Disputes involving contracted staff of CSDP missions often involve mission-specific instruments, such as Standard Operating Procedures (SOPs) and Operation Plans (OPLANs), as well as the analogous application of certain provisions of the EU Staff Regulations (see the judgment in Montanari v Eucap Sahel Niger). They may also involve the application of general principles of EU law and fundamental rights to contractual disputes (see JF v EUCAP Somalia), as well as questions concerning the scope of the Court of Justice’s jurisdiction in the CFSP context (see H v Council and Others, even if a seconded CSDP staff case ). This makes it particularly important to ensure that restrictions on access to an appeal before the Court of Justice do not prevent the development of authoritative guidance on questions affecting 1300 civilian staff working in CSDP missions, especially since only contracted staff, and not their seconded colleagues, are required to seek permission to appeal when challenging General Court judgments.

Where the EU Staff Regulations do not apply to such staff, the case law has established that the applicable legal framework derives primarily from the employment contract and mission specific instruments such as SOPs, supplemented, where relevant, by the analogous application of certain provisions of the EU Staff Regulations as well as certain general principles of EU law and the Charter of Fundamental Rights, as illustrated by JF v EUCAP Somalia.

Precisely because the legal framework governing CSDP contracted staff remains fragmented and continues to evolve, there is a strong argument that effective appellate review is of particular importance in this area.

Moreover, an appeal to the Court of Justice is not necessarily merely a second level of review. It may provide an important opportunity for the Court to give authoritative clarification of unresolved jurisdictional and constitutional questions concerning the scope of judicial protection in the CFSP context.

Conclusion

The appeal-filtering mechanism introduced by Article 58a of the Statute of the Court of Justice places international contracted staff serving in CSDP missions at a significant disadvantage compared with other categories of EU personnel in terms of access to appellate judicial review. EU staff subject to the EU Staff Regulations may bring claims under Article 270 TFEU, while seconded CSDP staff can bring actions under Article 263 TFEU. By contrast, international contracted staff whose disputes fall under Article 272 TFEU face an additional – and potentially insurmountable – hurdle when challenging a General Court judgment before the Court of Justice.

This disadvantage is all the more significant because the legal framework governing employment within CSDP missions remains fragmented and continues to develop. Restricting access to the Court of Justice therefore risks limiting not only the right of individuals to effective judicial protection, but also the development of a coherent and authoritative body of case law on employment within CSDP missions.

The Court of Justice can do little to remedy the disadvantage created by Article 58a of the Statute itself; addressing this issue is a matter for the EU legislature that should not be delayed.

 

*Antje Kunst is an international lawyer and barrister of Garden Court North Chambers, admitted to the Bar of England and Wales, and the Bar of Berlin, advising and representing individuals in a wide range of matters related to fundamental rights within the CFSP and other fields including staff cases. She has appeared in numerous cases before both the Court of Justice and the General Court of the Court of Justice of the European Union.  She acted as Counsel for JF in JF v EUCAP Somalia, Case 194/20. She represents SC in SC v Eulex Kosovo, Case C-881/22, and obtained the Court Order of 29 April 2025.