Tuesday 30 September 2014

The Commission’s Handbook on Marriages of Convenience

 Alina Tryfonidou, Associate Professor in EU Law, School of Law, University of Reading
 On 26 September 2014, the Commission published a Handbook(‘Handbook on addressing the issue of alleged marriages of convenience between EU citizens and non-EU nationals in the context of EU law on free movement of EU citizens’) to assist Member States to take action against marriages of convenience between migrant EU citizens and third-country nationals, whilst ensuring that the rights that EU citizens derive from the EU free movement provisions are not unduly limited as a result of such action.  As explained by the Commission in its Press Release, the Handbook was prepared ‘in close cooperation with Member States following requests by a number of EU countries for support in dealing with the phenomenon’; and the guidelines emerging from it will ‘help to ensure that national authorities address this phenomenon – the extent of which varies significantly between Member States – based on the same factual and legal criteria throughout the Union’.  
The publication of the Handbook was also accompanied by a Communication from the Commission to the European Parliament and the Council, which summarises the main content of the Handbook.  As noted in the Handbook (p. 5) and the documents accompanying it, ‘[t]he Handbook is neither legally binding nor exhaustive.  It is without prejudice to existing EU law and its future development.  It is also without prejudice to the authoritative interpretation of EU law which may be given by the Court of Justice’. 

Before proceeding to examine the contents of the Handbook, I should provide some background information regarding marriages of convenience and their link with EU free movement law. 

As is well-known, Member State nationals – who, since 1993 (with the entry into force of the Maastricht Treaty), are, also, Union citizens – are entitled to the right to move and reside freely within the EU.  This right is bestowed by a number of different provisions (collectively referred to as ‘the free movement of persons provisions’) which are now found in the FEU Treaty, and is further elucidated in secondary legislation and, in particular, Directive 2004/38.  Although this was (and still is) nowhere reflected in the Treaties, it has always been recognised that in order to ensure that Union citizens are not deterred from exercising the above right, they must be ‘guaranteed’ that its exercise will not lead to loss of the right to live with their family members or, more broadly, to a disturbance to the smooth functioning of their family life.  Thus, family reunification rights have been considered a necessary accompaniment to the right to move and reside in the territory of another Member State derived from the Treaty.
For this purpose, since the 1960s, secondary legislation has provided for automatic family reunification rights for migrant Member State nationals, something which has proved particularly beneficial in situations involving migrant Union citizens with third-country national family members, since the latter can, as a result, join the former in the host Member State without having to undergo a prior individual assessment of their situation, which is (normally, i.e. in case EU law does not apply) required by Member State immigration rules.  Family reunification rights for migrant Union citizens are now found in Directive 2004/38, which provides, inter alia, that migrant Union citizens are entitled to be accompanied or joined in the host State by their ‘spouse’, which clearly covers both third-country national spouses as well as spouses holding the nationality of a Member State (Article 2(2)(a) of Directive 2004/38). 
The EU legislature and the ECJ have been aware of the danger of abuse of EU free movement rights, and, in the particular context of family reunification rights, of the danger that third-country nationals may enter into marriages of convenience with Union citizens, in order to bypass national immigration rules by activating the full gamut of rights that EU law grants to the family members of migrant Union citizens. Hence, Article 35 of the Directive provides that ‘Member States may adopt the necessary measures to refuse, terminate or withdraw any right conferred by this Directive in the case of abuse of rights or fraud, such as marriages of convenience.  Any such measure shall be proportionate and subject to the procedural safeguards provided for in Articles 30 and 31’.  The above provision, nonetheless, merely recognises that Member States can adopt measures to tackle marriages of convenience and it does not explain what this really means or what it may entail. 
Initially, the EU provided only limited guidance as regards marriages of convenience and how these could best be tackled by Member States.  In particular, in 2009, in its Communication to the European Parliament and Council ‘on guidance for better transposition and application of Directive 2004/38/EC on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States’, the Commission provided a clarification of the notions of ‘marriages of convenience’ and other forms of abuse and fraud for the purposes of Article 35 of the 2004 Directive (see Section 4 of the Communication). However, it did not provide clear and detailed guidance as to how Member States should deal with the above without acting contrary to EU law. 
For this purpose, in 2012, the Justice and Home Affairs Council agreed that a handbook was necessary to provide detailed guidelines for Member States detailing how best to respond to the phenomenon of marriages of convenience (‘EU action on migratory pressures – A Strategic Response’).  Moreover, in November 2013, the Commission in its Communication‘Free movement of EU citizens and their families: Five actions to make a difference’, set out five actions to help implement EU rules on free movement within EU member States, and, as a response to the Justice and Home Affairs conclusions in 2012, one of these actions was ‘helping Member States fight marriages of convenience’.  Accordingly, it was agreed that the Commission, together with Member States, should prepare a handbook providing guidelines for the purpose of tackling marriages of convenience.
This is what led to the adoption of the Handbook under examination which, as explained by the Commission, offers ‘national authorities operational guidance to assist them in effectively detecting and investigating suspected cases of marriages of convenience.’ (p. 3 of the Communication accompanying the Handbook).
The Handbook – a 47-pages-long document – is divided into four sections: 1. Introduction; 2. Definitions; 3. Applicable legal framework; 4. Operational measures within national remit.
In Section 1, the Commission sets out the background to the Handbook – what made it necessary to prepare the Handbook and what is its aim – and limits its scope of application to situations involving EU citizens who ‘reside with their third-country national spouse in a Member State other than that of their nationality, or reside in the Member State of their nationality after having exercised their right to free movement notably by residing in another Member State’ (i.e. marriages of convenience within the meaning of Directive 2004/38, plus so-called ‘Surinder Singh’ cases of people who move to another Member State then return to their home State, to which the same rules apply). It  thereby excluding marriages of convenience between two EU citizens and between two third-country nationals, or situations which are purely internal to a Member State, ie where no-one has exercised their right to move to another Member State (p. 5 of the Handbook). 
As explained, the Handbook seeks to ‘assist Member States in tackling suspected marriages of convenience from the specific perspective of EU citizens’ right to free movement’.  It is stressed that since actions taken by national authorities when tackling abusive practices such as marriages of convenience are derogations from a fundamental freedom – free movement – they may only take place on a case-by-case basis and if they are non-discriminatory, justified and proportionate, if they comply with the procedural safeguards laid down in Articles 30 and 31 of Directive 2004/38, and if they do not breach any of the fundamental rights protected under EU law; a point which is analysed in more detail in Section 3 of the Handbook, which is devoted to a detailed explanation of each of the above requirements.
Section 2 then proceeds to provide definitions of the main terms used in the Handbook and, in particular, it provides guidance for distinguishing between genuine marriages and marriages of convenience, and between abuse and fraud.  After explaining the meaning of ‘marriage of convenience’ for the purposes of the Handbook (‘a marriage contracted for the sole purpose of conferring a right of free movement and residence under EU law on free movement of EU citizens to a spouse who would otherwise not have such a right’), the document summarises the constitutive elements of abuse, explaining that in detecting a marriage of convenience, ‘the focus must be on the intention of the relationship on which the right of residence is founded rather than on the outward reflection of the relationship’.  The section then provides examples of different types of genuine marriages (arranged marriages, proxy marriages, consular marriages) and marriages of convenience (‘standard’ marriages of convenience, marriages by deception, forced marriages, bogus marriages), and refers to the EU rules which apply in case the marriages of convenience include elements of trafficking in human beings.
Section 3 proceeds to describe the applicable legal framework.  It begins by explaining that an incorrect decision restricting free movement rights on grounds of abuse may have an important negative impact on the rights and well-being of EU citizens and their families who have genuinely made use of their right to free movement.  Accordingly, the aim of section 3 is, firstly, to help ‘national authorities to identify all the factors and rules that must be taken into account when wanting to take any measure to prevent or tackle abuse, in particular the EU rules on free movement and fundamental rights’, as laid down in the FEU Treaty and the EU Charter of Fundamental Rights, respectively, but also other important instruments of European and international law that need to be taken into account, such as the ECHR,UDHR, ICCPR, UNCRC; and, secondly, ‘to draw the attention of national authorities to the fact that any formal decision taken by national authorities in relation to marriages of convenience has to comply with a number of procedural safeguards’.  The section, also, deals with the issues of evidential burden and the burden of proof, the latter clearly resting on the national authorities which need to prove that the marriage is of convenience. 
The final section – Section 4 – ‘reflects practices distilled from national practices across the Member States’ and ‘should serve as a toolbox of solutions allowing Member States to set up tailored operational schemes fitting their specific needs and available resources’.  It begins by explaining the reasons and motivations behind marriages of convenience and then proceeds to analyse the hints that could trigger the launch of an investigation by national authorities – it is, nonetheless, underlined that ‘hints of abuse may only trigger an open-ended investigation, with no pre-determined outcome’ (p. 33). 
However, the Commission has been alert to the danger of considering a genuine couple as abusers and, hence, in this section it describes an approach that should be followed by national authorities in order to minimise the danger of considering a genuine couple as abusers (the ‘presumption of innocence’ and the ‘double-lock safeguard’), and provides a list of hints of abuse (i.e. certain behaviour traits that abusive couples are much more likely to present than genuine ones), which is divided into ‘several groups corresponding to inherent stages of “the life cycle” of marriages of convenience’ (p. 36). 
This section concludes with an analysis of the law-enforcement techniques and tools which can be used to tackle marriages of convenience (simultaneous interviews and questionnaires, document and background checks, inspections and community-based checks), encouraging, in particular, ‘reinforced cross-border cooperation and sharing of best practices in this area between competent national authorities’ (p. 41), which can be significantly facilitated by two EU agencies (Europol and Eurojust) as well as the European Commission itself.  It is highlighted that the techniques and tools presented in this section, must be compliant with the applicable procedures and safeguards and must respect fundamental rights, most prominently the right to private life.
There is no doubt that the Handbook is a well thought-out and carefully drafted document, which seems capable of serving well the purpose for which it was published, this being to assist Member States in their effort to eradicate the phenomenon of marriages of convenience in a balanced way.  It is clear that its drafters sought to ensure that in their fight against abuse and fraud in situations involving migrant Union citizens, national authorities will restrict the free movement rights of the latter as little as possible. 
Moreover, the Handbook – postdating the Treaty recognition of the binding nature of the EU Charter of Fundamental Rights – constantly highlights the importance of ensuring that Member States do not engage in any violations of fundamental (human) rights – as these are protected under the Charter but, also, under international instruments, such as the ECHR and the ICCPR – when investigating, proving and responding to a finding of a marriage of convenience.  Accordingly, the Commission should be commended for drawing the attention of the Member States to the need to maintain throughout all stages of tackling with a marriage of convenience a balance between, on the one hand, the right to free movement that Union citizens derive from EU law and the need to safeguard the protection of the fundamental human rights of any persons involved in a suspected case of marriage of convenience and, on the other, the ability of the Member States to ensure the effective enforcement of their immigration policies and the prevention and eradication of any abusive practices which by-pass national immigration rules and procedures.
It is still early days for judging the success and effectiveness of the document, given that it was only published last week.  However, one point of criticism can already be made and this is about its limited scope. 
It is true that different considerations apply in situations involving couples comprised of a (migrant) Union citizen and a third-country national (which are covered by the Handbook), on the one hand, and migrant or non-moving couples comprised of two Union citizens or of two third-country nationals (which are not covered by the Handbook), on the other; in fact, different considerations apply, also, among the different types of couples that fall outside the scope of the Handbook.  Yet, in all cases involving suspected marriages of convenience and the question of how Member States should respond to them, the same safeguards regarding the protection of fundamental human rights and fundamental principles need to be in place. 
In fact, as can be noticed from a careful perusal of the Handbook, its drafters appear to be mostly concerned with safeguarding fundamental human rights and with ensuring that Member States are aware of the need to comply with certain procedural requirements which derive, in their turn, from the need to protect human rights and fundamental procedural requirements, rather than to ensure the protection of the right to free movement, which is what differentiates the category of couples that falls within the scope of the Handbook from (almost all) the other couples that are excluded from its scope. 
Accordingly, it would make more sense, in my view, to draft a Handbook which would apply in all situations which fall within the scope of EU law and which involve Member State authorities tackling marriages of convenience.  The drafters would, clearly, be able to add some separate sections in order to make provision for the different considerations that need to be taken into account in relation to certain matters.  Such an approach would provide a clearer framework for Member States to tackle marriages of convenience and would remove the need for the drafting of similar documents covering the other categories of couples in the future.  Such a wholesome approach to the provision of guidelines with respect to the Member States’ response to marriages of convenience would not be entirely unprecedented, given that the Council issued in 1997 a Resolution on measures to be adopted to combat marriages of convenience, which was applicable both to couples comprised of a Union citizen (migrant or non-moving) and a third-country national and couples comprised of two third-country nationals.

Barnard & Peers: chapter 13, chapter 16

Mr. Avramopolous goes to Brussels: thoughts on the EP hearing of the new Migration Commissioner

Steve Peers

During his marathon three-hour hearing today in the European Parliament, the designated Commissioner for migration and home affairs, Dimitris Avramopolous, repeatedly stated his adherence to liberal principles. He strongly supported the continuation of the Schengen system, a liberal approach to asylum and legal migration, and freedom of movement for EU citizens. What was lacking was further detail on how his principles would be put into practice, and how the different aspects of EU policy in this area fit together.

Let’s take legal migration first. The would-be Commissioner supported not only a revision of the existing Blue Card rules on highly-skilled migration, but also a more comprehensive overhaul of EU rules on legal migration. Indeed, he explicitly supported an EU system for legal migration resembling the liberal regimes of Canada and Australia.

Yet he did not give a timetable for suggesting reforms in this area, even though the Commission has recently produced a report on the problems with the implementation of the Blue Card system, and the potential reforms of this system can easily be identified. (For an example of what an EU immigration code might look like, see my Statewatch analysis on this issue).  

He stated repeatedly that he believed that more liberal rules on legal migration would help to solve the problem of migrants’ loss of life en route to the EU, and reduce irregular migration more generally. But it’s hard to believe that Member States would give legal status to all of these would-be migrants. It should be recalled that, in accordance with Article 79(5) TFEU, Member States in any event retain competence to decide on the numbers of economic  migrants coming from third countries.

As for asylum law, he appeared to believe that the implementation of the second phase of the Common European Asylum System (in July 2015), as well as EU legislation on legal migration, would be sufficient to secure mutual recognition for refugee decisions in the EU.  But the existing EU rules only allow refugees and persons with subsidiary protection to move between Member States once they have qualified as long-term residents. To do this, they have to reside legally in a Member State for at least five years, and meet other conditions as well. If they do then move between Member States, their protection status does not in fact travel with them (except if they are moving between the small number of States which have ratified a Council of Europe Convention on this issue).

These limited possibilities for persons with international protection to move between Member States do not come anywhere near to satisfying the principles of ‘solidarity, solidarity and solidarity’ which he referred to as regards EU asylum law. Further solidarity could only be assured by redistributing more persons with international protection, as well as asylum-seekers, between Member States. On the latter point, he did at least promise to review the EU’s problematic Dublin system on the responsibility for asylum-seekers. However, as with the last review, it will surely prove difficult to convince richer Member States to change the responsibility rules.

Mr. Avramopolous opposed the notion of a ‘Fortress Europe’, objecting to ‘push-backs’ at the external borders and distancing himself from a fence built at the Greek/Turkish border by a government which he was a minister in. Although he supported a review of the mandate of Frontex, the EU’s border agency, apparently to include search and rescue issues, he did not suggest any concrete measures to supervise Member States’ operational activities at the external borders in the absence of Frontex coordination.

He did support the idea of humanitarian visas to ensure that protection-seekers could enter the EU without having to undertake unsafe journeys. But his specific proposal to this end was rather utopian. His idea to appoint staff in EU delegations in third countries to consider asylum applications is attractive in principle, but would be difficult to implement in practice. In order to put the plan into effect, it would be necessary both to reconceive the nature of the EU’s external delegations, and to give EU bodies, rather than the Member States alone, a role in taking decisions concerning visas and asylum in individual cases.

The easier course, which could be implemented immediately without such additional legal and political complications, would be to provide explicitly in EU legislation for an obligation for Member States to issue humanitarian visas to asylum-seekers in their external consulates. Arguably, the EU’s current visa code already implicitly contains such an obligation. The negotiations on the current proposal to revise the visa code offer an opportunity to set out this rule explicitly in EU law.

Overall, then, the would-be Commissioner cannot be faulted on his commitment to the basic principles which would underlie a liberal immigration policy for the EU. But his understanding of the practical details and the overall coherence of the policy is clearly a work in progress.

Barnard & Peers: chapter 25, chapter 26

Posting third-country workers within the EU: the ECJ squares the circle

Amedeo ArenaAssistant Professor of European Law - University of Naples "Federico II" School of Law

Judgment of the court (Second Chamber) of 11 September 2014, Essent Energie Productie BV v. Minister van SocialeZaken en Werkgelegenheid, Case C-91/13.

The ECJ has repeatedly held that, unlike workers from EU Member States, Turkish nationals are not entitled to freedom of movement within the European Union but can rely only on certain rights in the territory of the host Member State alone (Savas, para 59; Derin, para 66). The Essent judgment provides a recent and clear illustration of how, under certain circumstances, the EU internal market freedoms can be relied upon to overcome those limitations and, indirectly, to broaden the freedom of movement of Turkish and other third-country nationals.

Facts and legal background

Under Netherlands legislation, an employer is prohibited from having work carried out in the Netherlands by a foreign national who does not hold a work permit.

Essent, a company established in the Netherlands, had scaffolding at one of its branches in that Member State erected by a number of workers from Turkey and other non-EU countries. Essent, however, did not hire those workers: it entrusted the construction work to BIS, another Netherlands-based company, which in turn requested Ekinci, a company incorporated in Germany, to post the above workers to the Netherlands for the duration of the construction work.

As the Netherlands authorities had issued no work permit for the purposes of that posting, the Netherland Minister fined Essent EUR 264 000 for infringing Netherlands labour law.

In the ensuing litigation before the Netherlands Raad van State, two provisions came into play: Article 41(1) of the 1970 Additional Protocol to the EEC-Turkey Association Agreement and Article 13 of Decision no. 1/80 of the Association Council of 19 September 1980. Both are standstill clauses, prohibiting, respectively, new restrictions on the conditions of access to employment and on the freedom to provide services between Turkey and EU Member States. The Netherlands court thus resolved to stay proceedings and to seek guidance from the ECJ as to the interpretation of those provisions.

The Judgment

The ECJ first examined whether Article 41(1) of the Additional Protocol and Article 13 of Decision No 1/80 applied to a situation such as the one at issue in the main proceedings. After recalling that such provisions are directly applicable and can be relied upon to have incompatible national legislation set aside, the Court stressed that those provisions confer rights to Turkish nationals “in the territory of the host Member State alone”. In casu, the Court considered that the host Member State was Germany, where the Turkish workers were legally resident and employed, rather than the Netherlands, where the above workers were temporarily posted and whose labour market they had no intention to enter. Accordingly, the ECJ ruled that Article 13 of Decision 1/80 was not applicable to the present case.

The Court reached the same conclusion with reference to Article 41(1) of the Additional protocol. While a Turkish undertaking providing a service in a Member State could rely upon that provision, no such service provision occurred between Turkey and the Netherlands in the present case. The only link with Turkey was the presence of Turkish nationals among the workers posted by Ekinci to the Netherlands, a connecting element that the ECJ regarded as “not sufficient” to trigger the applicability of Article 41(1) of the Additional protocol.

The Court then turned to Articles 56 and 57 TFEU, which secure the freedom to provide services within the EU. It is worth noticing that the order for reference contained no preliminary question concerning those provisions, yet the Court considered that their interpretation could be useful to the referring court in adjudicating on the case pending before it.

Recalling Advocate General Bot’s Opinion, the Court noted that the posting of workers between undertakings established in different Member states (in this case Ekinci and BIS) fell within the scope of the free movement of services, in spite of the fact that some of those workers were not Union citizens. The Court also found that Articles 56 and 57 TFEU could be invoked not only by the recipient (BIS), but also by the end user of that service (Essent).

On those premises, the ECJ considered that the Netherlands work permit requirement, and the related administrative burdens, impeded the making available of foreign workers to a user undertaking established in the Netherlands by a service-providing undertaking established in another Member State.

As no harmonisation had been achieved in the area, the ECJ turned to the issue of possible justifications for the Netherlands measure. Whilst the Court acknowledged that the Netherlands Government’s desire to avoid disturbances on the labour market constituted an overriding reason in the public interest, it noted that posted workers do not seek to gain access to the host State labour market, as they return to their country of residence as soon as their work is over.

The Court also averred that Member States are entitled to check that an undertaking established in another Member State which posts foreign workers to its territory is not availing itself of the freedom to provide services for a purpose other than the performance of the service concerned. Nonetheless, the ECJ considered that the Netherlands work permit requirement was disproportionate to that aim, which could also be achieved through less-restrictive means. For instance, the service-providing undertaking could be required to show the Netherlands authorities that the situation of the workers concerned is lawful as regards matters such as residence, work permit and social coverage in the Member State in which that undertaking employs them. Similarly, the service-providing undertaking could be required to report beforehand to the Netherlands authorities the presence of posted workers, the anticipated duration of their presence and the provision of services justifying the posting.

Accordingly, the ECJ held that Articles 56 and 57 TFEU must be interpreted as precluding national legislation under which, when non-EU workers are posted by an undertaking established in a Member State to a user undertaking established in another Member State, such making available is conditional upon the latter Member State issuing work permits to those workers.

The present ruling highlights the somewhat peculiar situation of Turkish workers posted from one Member State to another in the aftermath of the ECJ ruling in Abatay. Those individuals can rely on Article 13 of Decision 1/80 against the Member State into whose labour market they seek to integrate through the pursuit of uninterrupted employment, but cannot invoke that provision against the Member State where they are posted for limited periods of time. By the same token, while a Turkish undertaking providing services in a Member State, as well as the Turkish employees of that undertaking, can invoke Article 41(1) of the Additional Protocol against that Member State, an EU undertaking employing Turkish nationals cannot rely on that provision to challenge national measures that restrict the movement of its Turkish employees.

In view of these incongruences and of the obvious trade-restrictive effects of the Netherlands work permit requirement, the ECJ’s willingness to expand the scope of the preliminary ruling to include Articles 56 and 57 TFEU is unsurprising. However, not too long ago, in Vicoplus, the ECJ had ruled that the freedom to provide services, read in connection with the 2003 Act of Accession, was no bar to the application of the Netherlands work permit requirement to Polish workers posted to the Netherlands during the transitional period provided in the Act of Accession. While AG Bot devoted several paragraphs of his Opinion to distinguish the factual and legal background in Vicoplus from that of the instant case, it is regrettable that the ECJ did not take the opportunity to account for what might be perceived as differential treatment between Turkish and Polish posted workers.

The ECJ only referred to Vicoplus to support its finding that the posting of workers between Ekinci and BIS, two undertakings established in different Member States, fell within the scope of the freedom to provide services. Neither Ekinci nor BIS, however, sought to rely on that freedom. Could Essent invoke Articles 56 and 57 TFEU against Netherlands labour legislation, even though that undertaking was not the direct recipient of the service?

In its Opinion, AG Bot first observed that, since the freedom to provide services pursues the public interest objective of establishing an internal market, persons “other than service providers and recipients” who, none the less, “have a material connection with a person who has that status” should be able to invoke that freedom against domestic restrictive measures. The Court had taken a  similar approach in respect of the free movement of workers in Las: “Article 45 TFEU may be relied on not only by workers themselves, but also by their employers. In order to be truly effective, the right of workers to be engaged and employed without discrimination necessarily entails as a corollary the employer’s entitlement to engage them in accordance with the rules governing freedom of movement for workers” (para 18).

The Advocate General then relied on an interesting twist of the abuse of rights doctrine. Since nowadays it is common to witness chains of several intermediaries between the principal contractor and the employees, to prevent circumvention of the work permit requirement, Netherlands legislation has adopted a broad notion of employer, making the principal contractor responsible for obtaining work permits for non-EU workers employed by its subcontractors. However, AG Bot argued that, to prevent circumvention of the ban on restrictions on the freedom to provide services, just as the principal contractor’s liability under national labour legislation expands, so should its ability to rely on Article 56 and 57 TFEU.

Unfortunately, the ECJ made no reference to the first argument, which could have provided some clarifications on the ability to invoke fundamental freedoms by persons who do not fall within the scope of such freedoms but have “a material connection” with others who did. In cases such as Carpenter and, more recently, Dogan, the ECJ had taken a different approach, by focusing on the impact on service providers of national measures (e.g. deportation orders, immigration requirements) addressed to persons connected to that provider (e.g. their spouses).

The ECJ, instead, only ran an abridged, three-paragraph version of AG Bot’s anti-circumvention argument, and found that, if Essent were denied the possibility of relying on Article 56 and 57 TFEU, the Netherlands could obstruct the freedom to provide services by enforcing its work permit requirement against the principal contractor. It is worth noticing that in earlier rulings the ECJ had relied on the abuse of rights argument to achieve the opposite result: to narrow the scope of EU provisions in cases where the conditions required to invoke those provisions had been artificially created contrary to the objectives pursued by EU law (Emsland-Stärke, paras 52-53).

Once the ECJ established a link between Essent and the freedom to provide services, the fate of the work permit requirement as a precondition for the posting of non-EU workers to the Netherlands was sealed. The conditions, deadlines and administrative burden involved in obtaining the work permit obviously hindered the making available of workers on a cross border basis. The ECJ rejected the Netherlands government’s argument that the measure was designed to avoid disturbances on its labour market, noting that posted workers do not seek to gain access to that market, “as they return to their country of origin or residence after the completion of their work”. The Court then conceded that a Member State may check that an undertaking established in another Member State which posts to its territory workers from a non-member country is not availing itself of the freedom to provide services for a purpose other than the performance of the service concerned, but engaged in a merciless proportionality assessment of the measure and provided not one, but two less restrictive alternatives to achieve the same aim.

Finally, it is worth highlighting that, unlike recent rulings (such as Dogan) that exclusively concern Turkish nationals, since neither Article 41(1) of the Additional Protocol nor Article 13 of Decision no. 1/80 were found to be applicable, the Essent holding applies to the posting of workers that are nationals of any non-EU country between undertakings established in different Member States.

Barnard & Peers: chapter 14

Monday 29 September 2014

Questions for the would-be home affairs and justice Commissioners

Steve Peers, Emilio de Capitani and Henri Labayle

The would-be Commissioners for immigration and home affairs and Justice will shortly be questioned by Members of the European Parliament (MEPs) in hearings, to determine whether the EP should vote to confirm them in office. MEPs have already asked some written questions and the would-be Commissioners have replied. Since most of the written questions were not very searching (except for a couple of questions on data protection issues), the Commissioners did not reply in much detail.

However, the hearings are an opportunity for MEPs to ascertain the Commissioners’ plans, and to secure important political commitments, in these fields. To that end, we have therefore suggested a number of oral questions which MEPs should ask in the hearings. 

Immigration and asylum

The Commission consider that migration policy should be framed by the (non binding) objectives of the global approach to migration (GAMM) and relations with third countries should be dealt with by “Mobility Partnership” which are more diplomatic declarations than binding acts. Would you propose a binding legal basis for treaties with the countries concerned, grounded on Articles 77, 78 and 79 of the TFEU?

What actions will the Commission take to ensure that EU legislation in this field is fully and correctly implemented by the Member States?

Will the Commission propose an immediate amendment to the EU visa code, to confirm that Member States are obliged to give humanitarian visas to those who need them and who apply at Member States' consulates in third countries?

When will the Commission propose EU legislation to guarantee mutual recognition of Member States' decisions regarding international protection, including the transfer of protection?

When will the Commission make proposals for a framework for sharing responsibility for asylum-seekers and persons who have been granted international protection, starting with those who have applied outside the territory of the Member States?

Will the Commission propose an immigration code, and what will its main contents be?

The Court of Justice has recognised that search and rescue obligations are interlinked with external borders surveillance (Case C-355/10). The EU adopted rules in this field which governing only border control coordinated by Frontex. Do you intend to propose that such rules should apply to all Member States’ border controls as a general rule, by formally amending the Schengen Borders Code ?

What immediate and longer-term steps will the Commission take to address the death toll of migrants crossing the Mediterranean?

Will the Commission propose to amend the EU legislation on facilitation of unauthorised entry to confirm that anyone who saves migrants from death or injury during a border crossing, or who otherwise acts from humanitarian motives, is exempt from prosecution?

Internal Security and Police cooperation

Measures against terrorism and transnational crime were until now mainly taken under the vague framework of “operational cooperation”. Will the Commission propose a clear legal basis for the Internal Security Strategy and transforming the so called “Policy Cycle” in a transparent and legally binding framework where European and national interventions are clearly framed? Will you propose relevant amendments to the Europol legislative proposal which make reference to the policy cycle without framing it? Which initiatives will you take  to implement the principle of subsidiarity and proportionality as foreseen by the Treaty, and to ensure that the Charter must be taken in account also for police cooperation so that the European and national parliaments as well as the Court of Justice could verify that these principles have been complied with ?

According to Protocol 36 (the transitional protocol attached to the Treaty of Lisbon), all measures dealing with police cooperation adopted before the entry into force of that Treaty will fall under the jurisdiction of the Commission and of the Court from 1 December 2014. Some of them are outdated and should be repealed or substantially modified to take in account the post-Lisbon legal and institutional framework (role of the Charter, co-responsibility of the EP, role of the national Parliaments). In several cases where EU measures limit dramatically fundamental rights sunset clauses should be inserted in the basic acts. However nothing about this is written in your statement nor in the previous Commission’s REFIT exercise. Could it be a priority or do you believe that Lisbon Treaty did not change the situation in your domain of competence?

Will your legislative programme also be grounded on the Treaty legal basis of judicial cooperation in criminal matters ? If so, how will you frame the relations with the Commissioner in charge of these aspects ?

Schengen cooperation has been until now the most successful case of cooperation between the Member States and has been recently upgraded by launching SIS II and EUROSUR. The notion of integrated border management in Article 77 TFEU is progressively taking shape but no substantial improvement happens in the role of the European and National parliament. Other similar initiatives like PRUM and Swedish initiatives have been developed following the principle of availability. Do you plan further initiatives here?

For instance, in light of the recent UK case where a convicted murderer moved from one Member State to another, do you intend to propose the exchange of criminal records concerning the most serious crimes by a Member State’s nationals (murder, rape, grievous bodily harm) if those nationals are no longer imprisoned?

Will the Commission propose a police code that recasts EU legislation in this field?

When does the Commission intend to submit a legislative proposal implementing Article 75 of the TFEU dealing with freezing assets of terrorists ?

Justice Commissioner

According to CJEU (Melloni, Radu judgments) the principle of primacy of EU law covers also sensitive domains such as judicial cooperation in criminal matters. It is then important that the EU legislation is set at the highest possible standards of protection of fundamental rights so that by implementing the EU legislation the current level of protection at national level will not be lowered. Do you agree that all future EU legislative proposals on criminal law should make also reference to the possible impact on national law and always permit the possibility of higher national standards as referred to by art. 53 of the Charter ?

Will the Commission commit to propose to amend the Framework Decision on the European Arrest Warrant and other pre-Lisbon measures on mutual recognition in criminal matters, to ensure that there is the same level of protection of fundamental rights as guaranteed in the recent Directive on the European Investigation Order?

When will the Commission propose a measure to ensure adequate protection for suspects as regards pre-trial detention in criminal proceedings in the Member States?

Will the Commission submit further legislative measures to improve the suspect's procedural guarantees?

Fundamental rights protection is meaningless without effective ways to obtain a judicial redress at national or EU level. Will you submit a legislative proposal upgrading the 2013 Commission Recommendation on collective redress mechanisms so that citizens and companies can enforce the rights granted to them under EU law where these have been infringed?

How will the Commission act to ensure that Member States fully and correctly apply EU legislation on the protection of victims' and suspects' rights in criminal proceedings?

OLAF, EUROJUST and EPPO will deal under different perspectives with the problem of protection of EU financial interests. Has the time come to simplify the institutional machinery, for instance by merging OLAF with EPPO ?

Several EU measures such as the Framework decision on terrorism restrict individual freedoms. In these cases should the EU legislation (as well as delegated and implementing acts) should not embody sunset clauses, as it the case for the US legislation (see the Patriot Act)?

Will the Commission commit to propose to the Council that any EU treaty on sharing personal data with third countries will be suspended if, in the view of the European Parliament following an independent review, in practice there is no adequate level of protection of the relevant personal data in that third country?

According to the current and envisaged legislation it will be a Commission’s role to assess the adequacy of data protection in third countries. Do you agree that such evaluation should be done as delegated act as it requires a high level of discretion on the Commission side ?
DIGITAL AGENDA (together with Commissioner Oettinger and VP Ansip)

You will work with Candidate Commissioner Oettinger on the digital agenda who made reference to an ambitious legislative programme soon to be adopted to implement the European Digital Agenda. The EU Treaties offer several legal bases to accomplish such an objective even if the EU is still lacking a comprehensive and consistent legislative strategy which could give specific expression to fundamental rights as defined by the Charter of fundamental rights.

For this reason the Court of Justice has recently annulled the Directive on data retention. However the same fate could occur to other EU legislative measures planned or in negotiation which do not meet the high standards required by the Charter and to avoid challenges from national Courts.

To avoid these risks will you be available to design and implement with your other colleagues in the future Commission (Oettinger Timmermans, and Ansip) a legislative strategy which could become an European "Marco Civil" as the one recently adopted by Brazil ?

The Court of Justice has defined in its data retention ruling very strict criteria to be followed when collecting personal data for security purposes. Even the Council legal service seems to consider that the current EU-US agreements on TFTP and PNR do not fit with these criteria. What do you intend to do at the next Transatlantic summit? Will you notify the US authorities that the agreements should be profoundly revised?

When will the Commission respond to the CJEU ruling on the invalidity of the data retention Directive? Will it propose a new EU Directive which is compliant with the judgment? Does the Commission believe that the Directive still allows for mass surveillance? Will the Commission pursue infringement action against Member States whose legislation is not in compliance with the criteria set out in the judgment?

Barnard & Peers: chapter 25, chapter 26

Saturday 27 September 2014

Free movement of murderers? EU law aspects of the Alice Gross case

Steve Peers

As British readers of this blog will know, a potential suspect in the disappearance of teenager Alice Gross from her London home is a Latvian man, Arnis Zalkalns, who had a previous conviction for murder in Latvia before moving to the UK. He is now missing and could potentially be in Latvia.

This raises obvious questions: how could a convicted murderer move to the UK, without being stopped or detected? And what could now be done to get hold of Mr. Zalkalns? More broadly, are there any lessons here about measures which the EU could adopt in the future, and/or about how the EU laws currently in force could be applied?

Free movement rules

First of all, how could a convicted murderer move to the UK? He had served his (absurdly short) sentence under Latvian law, so was not a fugitive from justice. But that doesn’t mean that he had the right to move to the UK, or any other Member State. Although UKIP leader Nigel Farage has claimed that ‘We can’t stop people like this entering the country’, this is simply not the case.

The starting point here is the EU’s citizenship Directive, which governs the free movement of EU citizens between Member States. Free movement is not unlimited. Among other things, the Directive provides that free movement can be denied on grounds of ‘public policy, public security or public health’. This applies to entry, exit and stay in a country. The law states that a criminal conviction cannot automatically justify blocking free movement rights, but there is a proportionality test to be applied on a case-by-case basis.

Given that murder is the most serious crime, and that Mr. Zalkalns’ conviction was quite recent, there is obviously an extremely strong case that he could have been refused entry. If he challenged the refusal, it’s hard to imagine that any British court, or the Court of Justice of the European Union (CJEU), would have been sympathetic.

So why wasn’t he refused entry? Presumably because the UK authorities weren’t aware of his murder conviction. There are EU laws on the sharing of criminal records, but they applied only from 2012, some time after he entered the country. In any case, they wouldn’t have helped, since they only oblige the Latvian authorities to inform the UK about any convictions of British citizens in that country.

The deputy Prime Minister, Nick Clegg, has claimed that the limited exchange of criminal records information between EU countries could ‘easily be fixed’.  In fact, the history of building criminal or immigration databases or information exchange systems, either within the UK or the EU as a whole, shows that they are difficult and expensive to establish and operate. But it might be possible to focus on sharing information on a very limited number of the most serious criminal convictions, such as murder and rape, and only as regards persons who were not imprisoned. (People still in jail can obviously not exercise free movement rights).   

It’s not clear if Mr. Zalkalns was on parole from the Latvian system. If so, he presumably breached his parole by leaving the country, and the Latvians should have issued a European Arrest Warrant to get hold of him. Moreover, there’s an EU law in place for transferring probation and parole decisions between Member States. It’s mainly aimed at cases where (for instance) a British tourist has been convicted in Latvia, and wants to return to the UK to serve his or her probation or parole period. The EU could think about revising this law to fully cover cases like Mr. Zalkalns too.

But even if the EU did that, there’s a problem. The UK simply doesn’t want to apply this law: it has failed to do so by the deadline of 2011 (Latvia has applied it), and is going to opt out of its obligations as of December 1st this year. I have warned before that the UK government’s intention to opt out of some EU criminal law legislation might put public safety at risk. This case is a preview of the sorts of problems that might arise.

There’s another aspect to this case worth mentioning. Mr. Zalkalns was arrested in 2009 in the UK, for indecent assault on another teenage girl. This could have been an opportunity for the UK police to send an inquiry to the Latvian authorities (under the EU’s rules on mutual assistance in criminal matters) for any further information about Mr. Zalkalns, on the grounds that it might have helped their investigation into that case. That would have uncovered his criminal record, which would then have been grounds for expulsion from the country.

Is the lesson from this case that (as Nigel Farage suggests) the UK should leave the EU, to ensure that criminals don’t enter the country? Of course, only a small minority of EU citizens are criminals. UKIP’s own plans call for the admission of 50,000 foreign workers  a year into the UK. Presumably they would also allow in at least a few tourists, students and family members.  And as I pointed out yesterday, their plans regarding asylum would backfire, leading to more asylum-seekers in the UK, not fewer. Furthermore, leaving the EU would mean leaving all the rules currently in place to deal with cross-border criminality, which were applied for instance in the Jeremy Forrest case involving another teenage girl.

European Arrest Warrant

If Mr. Zalkalns is now in Latvia, could the UK authorities issue a European arrest warrant (EAW) to get hold of him? They have been reluctant to do so, on the grounds that an EAW can only be issued where prosecution is certain. According to the UK's Extradition Act, the authorities in the UK can send a European Arrest Warrant (EAW) to another Member State, to ask them to arrest a person and send him back to the UK, as long as 'there are reasonable grounds for believing that the person has committed an offence' which is serious enough to ask for extradition. Also, the police must also have issued an arrest warrant for the same person in the UK. From the information available to the public, it looks as if the police could make the case that there are reasonable grounds to suggest that Mr. Zalkalns might have committed an offence. In any case, it's surely worth a try to see if the Latvian authorities would accept an EAW.  

However, the EU legislation on the European Arrest Warrant uses different words. It says instead that an EAW can only be issued 'for the purposes of conducting a criminal prosecution'. However, it's arguable that arresting someone that the police reasonably believe is a potential suspect in a case is part of 'conducting' a  prosecution, even if at the end of the day the prosecution of that suspect might not go ahead if (for example) he turns out to have a good alibi when questioned. It should also be recalled that the other language versions of the EU law, which are equally valid with the English version, might also point in a more flexible direction, given the nature of other countries' criminal justice systems. 

In any event, the UK authorities could, as an alternative, send a ‘mutual assistance’ request to the Latvians to obtain Mr. Zalkalns for questioning, on the grounds, even if he is not necessarily going to be charged immediately, he may have evidence which could be relevant to the case. In future, the European Investigation Order will speed up this sort of enquiry.

In conclusion, it appears that there are lessons in this case both for the EU and the UK. The EU could supplement its existing rules with a system for exchange of information on the most serious criminal convictions and strengthen , As for the UK, the authorities let pass a number of prior and current opportunities to get hold of Mr. Zalkalns, find out about his criminal record or question him to obtain evidence; and the idea of opting out of the EU rules on the transfer of probation and parole decisions needs to be rethought.

Barnard & Peers: chapter 13, chapter 25