Friday 23 October 2020

The considerable contribution of British lawyers to EU (migration) law


Kees Groenendijk, Professor Emeritus, Radboud University Nijmegen, Netherlands.

The final sentence of press release 10/20 on the consequences of the UK’s withdrawal from the EU for the Court of Justice reads: “The Court of Justice pays tribute to the major contribution of all its former British members to European integration in general and to the case-law of the Court of Justice and the General Court in particular.” After all dramatic statements on the behaviour of British politicians during the 47 years the United Kingdom was a Member State of the EEC and the EU, it may be right to take a minute to consider the British contribution to EU law, and EU migration and free movement law in particular.

Together with their Irish colleagues, the five British judges and the five British advocates-general who were members of the Court since 1973 with their experience as practising common law lawyers unmistakably contributed to the gradual development of that Court, modelled in the 1957 Treaty of Rome after the French Conseil d’Etat, towards a more open and dynamic court. The President of the Court in his speech at the farewell ceremony for the last British judge praised the British members for their pragmatism, common sense and their inimitable sense of humour. He also recalled that the Court only after the arrival of the British and Irish judges started to cite previous case-law in its judgments “because such citations did not necessarily form part of the legal traditions of the six original Member States” – though without adopting a strict rule of stare decisis.

The British judges and advocates-general

Francis Jacobs, the longest serving advocate-general (1988-2006), in his conclusions frequently and ardently pleaded for the protection of human rights and of individual rights in Community law, even if his pleas were not always immediately accepted by the Court (Fordham I.L.J (29) 2005, p. 690-715). His handbooks contributed to Community law being taken serious in the UK and elsewhere inside and outside Europe – among others The European Convention on Human Rights (Oxford UP 1975), The Court of Justice of the European Communities (Sweet & Maxwell 1977) and The Sovereignty of Law: the European Way (Cambridge UP 2007).

The first British judge, John Mackenzie Stuart, born, advocate and judge in Scotland, served 16 years in Luxembourg. As President of the Court he stimulate the establishment of the General Court, to which part of the Court of Justice’s tasks were transferred. His successor, Gordon Slynn, previously served seven years as Advocate-General. Judge Slynn’s successor David Edward, the second Scottish judge, at the occasion of the farewell of his successor wrote an interesting and topical essay entitled “EU and the Separation of Member States” on separatist [secessionist?] movements in Catalonia, Scotland and Flanders (Fordham I.L.J. (36) 2012, p. 1-18).

The penultimate British judge, Konrad Schiemann, was born in 1937 in Berlin. He survived the RAF bombardments on that city. Shortly after the War he migrated as an orphan to family in London. His colleagues at the Court of Appeal at his appointment in the Court in 2004 asked him what for heaven’s sake he was going to do in Luxembourg. Possibly the thrust of his answer was given in a speech in 2012 under the title The EU as a Source of Inspiration: in 1957, the year the EEC-Treaty was signed and twelve years after the end of the Second World War, displaced persons were still living in camps. The last DP camp in Western Europe closed in 1959. Judge Schiemann was aware of the EU as a guarantee against the human misery and disruption of war.

Among lawyers on the continent the last British A-G, Eleanor Sharpston, is known for her original and lucid conclusions. Her conclusion in the Vethanayagam case (C-680/17) case clearly illustrated that the Court could have chosen for an interpretation of the clause on remedies in the Visa Code which would have supported the rights of many visa applicants and their effective remedy against a visa refusal rather than allow Member State to impede access to such remedy. The UK government proposed to continue Sharpston’s tenure during the transitional period after Brexit during which, there would no longer be a British judge in the Court of Justice, whilst it may still rule on references of UK courts on free movement rights of Union nationals in the UK on the basis of the Withdrawal Agreement. But Barnier, on behalf of the EU, was uncompromising [unyielding?]. After the appointment of a Greek successor on her chair by the 27 remaining Member States in September 2020, she started cases against the Council and the Member States before the General Court which within a few weeks ingloriously ended in her own Court, illustrating that divorce always hurts.

In his farewell address the last British judge, Christopher Vadja, son of a Hungarian (refugee?) father and a German mother, reminded that the UK soon after it joined the EU recognized the important role of the Court of Justice for the development of EU law. The judgment in Defrenne v. SABENA (C-43/75) where the Court held the clause on equal pay for men and women in the EEC-Treaty to be directly applicable, provided an early lesson. Between 1973 and 2016 (the year of the Brexit referendum) the UK intervened in 281 cases in support of one of the parties and presented observations in 718 preliminary references from other Member States, more than any other Member State. “This policy of active engagement with the Court was to the benefit not just of the UK, the Court and the development of European law generally but also of many generations of English barristers, including myself, who were instructed to represent the UK.” One could add that his UK tradition contrasts with the practice of other States entrusting only a limited group of government officials with the representation in Luxembourg, thus restricting the distribution of knowledge of Union law among their national bar.

Until the mid-1990s during the oral hearings the lawyers would read out their pleadings and then go home. The experience of the last British judge in the General Court: “I recollect sad hearings from the old times in Luxembourg when days of preparation and hours of pleadings elicited not a single question.” (….) “[UK] judges are accustomed to test propositions verbally by asking provocative questions.” The British members stimulated their colleagues to put question to the parties. That tradition did not end with the departure of the UK: see a report on the Grand Chamber hearing on 12 October 2020 in the reference by a Dutch court on the independence of Polish courts and the European Arrest Warrant (C-354/20 PPU and C-412/20 PPU).

Judge Vadja also pointed to the limited public access to the hearings of the Court the hearing of the Wightman case on the question whether a Member State had the right to unilaterally revoke its Article 50 notification to withdraw from the EU a maximum of 300 persons could be present in the Grand Salle in Luxembourg. He contrasted this with the 300,000 persons who viewed the first day of the proceedings before the UK Supreme Court on that court’s live stream of the first Miller case on the equally important question whether the Article 50 notification required parliamentary approval and the more than 12 million views of the hearing before the UK Supreme Court of the second Miller case on the prorogation of the UK Parliament. Implicitly, he stressed the importance of the adage ‘Justice should be seen to be done’. Judge Vadja concluded his comparison with: “For my part, I look forward to the day when I can watch my former colleagues in action from the comfort of a sofa anywhere in the world.”

Common law principles, common history and current practice in Luxembourg

The President of the General Court in his address to his departing British colleague Ian Forrester stressed the important contribution of the common lawyers in the court in emphasising  the need for due process and procedural fairness. In his words: “Due process should prevail, even in terrorist cases. As Ian told us repeatedly, due process not only serves the cause of the defendant, but also the interest of the administration, for the very simple reason that procedural safeguards lead to better decision making. (…)  [T]he common law tradition adds a specific procedural dimension to the concept of fairness: the executive is a party before the judge as any other party. There is no reason why public authorities should, as a rule, benefit from privileged procedural positions, either as an appellant or as a defendant. This also applies when it comes to issues like access to evidence used in court proceedings.”

Judge Forrester, also from Scotland, started his farewell address with a short history lesson in French:

“Je vais vous parler de l’histoire, du droit européen, et de notre cour.  Mon père est né en 1899 et a fait l’entrainement d’un officier d’artillerie mais n’a jamais été déployé en France.  Un oncle a servi en Gallipoli.  Un cousin est mort en Birmanie. Une histoire familiale assez typique.  Nous avons tous rencontré ceux aujourd’hui fort âgés qui ont des témoignages étonnants de guerre et de conflit.  Deux juges de la Cour de Justice ont constaté qu’ils s’opposaient lors de la même bataille en Italie pendant notre dernière guerre civile européenne.  L’ancêtre d’un autre juge était soldat dans la bataille de Waterloo.  Un collègue me disait juste après le référendum en 2016 que ses deux grands-pères étaient soldats sur les deux côtés lors de la Bataille de la Somme.  Robert Schumann, fondateur, est né en Alsace-Lorraine, soldat allemand pendant la première guerre, français pendant la deuxième. Les guerres ont marqué notre continent.”

Judge Vadja used the occasion of his departure to give outsiders a look in the kitchen in Luxembourg. In an extensive interview he gave an insight in the work of a judge and the processing of cases inside the Court of Justice from the distribution of cases till the drafting of a judgment, including useful advice for lawyers pleading before the Court.

The amicus curiae and the independence of Polish judges

Less than two months after Brexit, the Court of Justice was confronted with the typical Anglo-Saxon legal concept of the amicus curiae, the expert outsider who upon request of the judge or on his own initiative provides the judge with relevant information for making her decision. In the ECtHR, which from its inception had more common law influence, the amicus curiae has a considerable history, codified in rules on third party intervention in Article 36(2) ECHR and Article 44(3) of the ECtHR Rules of Procedure. UNHCR, Amnesty International and Human Rights Watch, among others, regularly act as amicus curiae in proceedings in Strasbourg.

In the closed system of participants in proceedings before the Court of Justice the amicus curiae until recently was unknown. Its absence forces UNHCR to publish its observations on questions of interpretation of EU asylum instruments pending before the Court of Justice in notices distributed on the internet and in that way reaching the Court – or alternatively, produced as an annex to the observations of the lawyer of the asylum seeker (see fn 13 of the AG’s conclusion in Diakité, C-285/19).

The Grand Chamber of the Court in its judgment of 26 March 2020 in two joined references by Polish courts on the serious threats to the independence of judges in Poland, summarizes the main points of three letters of the Polish Ombudsman to the Court. The Ombudsman, who was not a party in those cases, in his letters pointed among others to the recent Muzzle Law, which considerably strengthens the new disciplinary regime for judges. That law was introduced with the aim to nullify the effet of the AK and others judgment of the Court of 19 November 2019 on the lack of independence of  new disciplinary chamber (“Chamber of Extraordinary Control and Public Affairs”) of the Polish Supreme Court. The Ombudsman referred to  the A-G’s conclusion that the Court did not have sufficient factual and legal material to enable it to rule on those requests. He described the growing number of disciplinary proceedings and administrative measures and the adoption of disciplinary measures against judges. Further, the Ombudsman informed the Court of Justice that the Polish National Prosecutor recently brought an action before the disciplinary chamber of the Supreme Court to waive immunity for the judge who made the reference for a preliminary ruling in one of the joined cases.

The Court of Justice noted that its Statute and Rules of Procedure do not provide for the interested parties referred to in Article 23 of the Statute to submit observations in response to the A-G’s Opinion. But it also observed that the Court “may at any time, after hearing the Advocate General, order the reopening of the oral procedure in accordance with Article 83 of its Rules of Procedure, in particular if it considers that it lacks sufficient information, or where a party has, after the close of that part of the procedure, submitted a new fact which is of such a nature as to have a decisive influence on the decision of the Court, or where the case must be decided on the basis of an argument which has not been debated between the interested persons.” The Court concluded that in this case it had sufficient information and that the new facts relied on by the Ombudsman “are not of such a nature as to have a decisive influence on the decision which the Court is called upon to give” (paras 27-30 of the judgment). The Court held the two references inadmissible because interpretation of the EU law provisions concerned was not necessary for deciding the disputes in the main procedures. After reaching that conclusion, however, the Court extensively reasoned that not being exposed to disciplinary proceedings or measures for bringing a matter before the Court, which is exclusively within their jurisdiction, constitutes a guarantee that is essential to judicial independence (paras 54-59 of the judgment).

Even, if the information provided by the Ombudsman did not have “decisive influence” on the outcome of the case, apparently, the Court considered that information to be relevant. The reference to Article 83 of the Rules of Procedure may well be the first step in the direction of the amicus curiae in Luxembourg. A month later, in April 2020, the Court of Justice ordered Poland to suspend pending disciplinary cases and stop bringing new case before the disciplinary chamber (C-791/19). That order was ignored by the Polish authorities and the disciplinary chamber.

Tenacious negotiators

At the Hohenheimer Tage zum Migrationsrecht, the annual meeting of German immigration, I often heard German friends complain about the tenacious  UK lawyers in the Council Working Groups during the negotiations on free movement, social rights or some of the asylum instruments. My standard reply was that the UK negotiators may be persistent, but once an EU instrument is adopted, the UK, generally, applied it far better than the Member State who simply copy past the instrument in their national law and leave every else unchanged in practice.

A sad example of this persistent negotiating is the reduction of the protection against expulsion of Union citizens on public order grounds. In 2004 the Council unanimously agreed to reinforce that protection in the Articles 27 and 28 of Directive 2004/38, adopted on the day before the accession of ten new Member States to the Union. Since 2008, the UK repeatedly pleaded in the EU Council of Ministers to give Member States more room for expulsion after a criminal conviction. Sometimes other West-European Member States joined this British plea (see Council document 15903/08 of 8 November 2008 and Council document 10313/13 of 31 May 2013). Each time such proposals met with opposition from the Commission and got insufficient support in the Council.

In the 2016 pre-Brexit-referendum-deal between PM Cameron and the European Council (discussed here), that Council agreed and the Commission promised to propose a considerable ‘softening’ of the public order clauses in Directive 2004/38, in case the UK remained in the EU. Finally, the UK achieved its aim during the Brexit negotiations. For EU nationals in the UK and for British nationals in the EU with residence rights under the EU-UK Withdrawal Agreement the protection against expulsion on public other grounds will be reduced to the level of the national legislation for conduct occurred after 2020 (Article 20 of the withdrawal agreement: see discussion here). This full renationalisation clearly limits the acquired rights of the millions of Union citizens who used their free movement rights to and from the UK before 2021. 

British courts, lawyers and legal academics

The references by British courts made an important contribution to the development of the rules on free movement of Union citizens. A quarter of all CJEU judgments in that field in 2008-2019 were given in answer to preliminary references by British judges. Especially, their questions concerning the right of permanent residence provide for in Directive 2004/38 (Dias, Alarape, Onuekwere and Lounes, discussed here) and on the admission of durable but unregistered partners of Union citizens (Rahman, Banger and S.M., discussed here) have produced some clarity and focus attention in several Member States on their rights. A bill implementing the last three judgments is currently pending in the German Bundestag. Almost half of the judgments of the Court of Justice concerning the rights of third-country national family members of EU citizens were given in answer to questions from British courts (V. Passalacqua, Legal mobilisation and the construction of EU migration law, Florence 2020, diss EUI, p. 8).  

Many of those questions originated in the minds of active UK lawyers, supported by their Immigration Law Practitioners’ Association (ILPA). Their activities also resulted in the provision on self-employed Turkish citizens in the EEC-Turkey association law were taken seriously (in Savas, Tum & Dari and Tural Oguz) by the Court and, subsequently in Member States. The AIRE Centre (Advice on Individual Rights in Europa) demonstrated how an NGO can stimulate test cases in Luxembourg. Since 1993, this London based organisation provided legal assistance and acted as party, intervenor or amicus curiae in more than hundred cases on human rights or migration before both European courts (for instance, the AIRE Centre acted as amicus curiae in the case on the border gate around Melilla, which resulted in ECtHR 13 February 2020, app. 8675/15 (N.D. and N.T. v. Spain), see point 100 and 160-163), and among those are ten cases before the Court of Justice on free movement or on Dublin since 2010.

Leading handbooks on EU migration law or on the EU Charter of Fundamental Rights written or edited by UK academics such as Cathryn Costello, Elspeth Guild and Steve Peers, will be gratefully used by lawyers and judges in the EU long after Brexit. The influence of almost five decades of membership of the same legal order cannot be brushed away, however gladly some politician would desire.

The greater the scope of the level playing field agreed in the future agreements between the EU and the UK, the greater the chance that EU law will remain a voluntary or compulsory subject at British law faculties, if only because people, businesses and institutions in the UK will continue to have to deal EU law rules. It will be for the lawyers in the remaining Member States to honour and profit from the contributions of their British colleagues, until the time is right for a new rapprochement.

Photo credit: Unlock


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