Thursday 27 June 2024

Only one bite at the cherry: Appealing a default judgment of the General Court to the Court of Justice, and simultaneously asking the General Court under the specific remedy to set aside its own default judgment is not permitted: Eulex Kosovo v SC (Case C-785/22 P)



Antje Kunst*

* Antje Kunst is an international lawyer and barrister of Pavocat 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 the CFSP, including employment cases. She has appeared in numerous cases before both the Court of Justice and the General Court, within the Court of Justice of the European Union. She was Counsel for SC in the Eulex Kosovo case.

Photo credit: George Chernilevsky, via Wikimedia Commons



On 18 January 2024 in Eulex Kosovo v SC (Case C-785/22 P), a case that has been before the EU courts since 2017, the Court of Justice ruled that an appeal against a default judgment of the General Court is inadmissible before the Court of Justice if dual proceedings are brought to both EU courts. In other words, appealing a default judgment of the General Court to the Court of Justice, and simultaneously asking the General Court to set aside its own default judgment, is not permitted.

Until now, there was no case law on this precise type of situation, and hence, the Court of Justice’s judgment is highly significant for EU procedural law as a gap in the case law has now been closed.

Previously in October 2022, the General Court issued a default judgment in Case T-242/17 RENV, in favour of SC – a former member of contract staff of the EU Rule of Law Mission in Kosovo (Eulex Kosovo) – following the failure of Eulex Kosovo to file a defence, in this case.  The failure to file a defence occurred in referral proceedings after a successful appeal before the Court of Justice in Case C-730/18 SC v Eulex Kosovo, at a time the case was already ongoing for four years.

In November and December 2022, Eulex Kosovo filed not only for that default judgment of the General Court under Article 166 of the Rules of Procedure of the General Court (RPGC) to be set aside by the General Court itself,  but also brought appeal proceedings against that default judgment of the General Court to the Court of Justice, with the consequence that not only the General Court but also the Court of Justice became seized of the same subject matter. As a result, SC had to defend against not only an opposition in proceedings before the General Court, but also an appeal in proceedings before the Court of Justice.

Default judgment which is the subject of an application to set it aside is not a final decision

The judgment by the Court of Justice in Case C-785/22 P clarifies that it followed from its own Statute that an appeal is admissible only against a final decision of the General Court, with respect to which no other legal remedies remain open (para. 29 of the judgment). It also clarified that ‘[s]ince the exercise of such a remedy has the effect of re-opening the proceedings before the General Court, a default judgment which has been the subject of an application to set it aside cannot be regarded as a final decision, within the meaning of Article 56 of its Statute’. Consequently, it followed that an appeal brought against a default judgment which is the subject of an application to set it aside is inadmissible (paras. 31 and 32 of the judgment).

To have two bites at the cherry is not permitted

In an entirely other case, Advocate General (AG) Emiliou delivered an Opinion on the same day, i.e. in Case C-766/21 P, Parliament v Axa Assurances Luxembourg and Others stating that [p]ermitting the use of two legal remedies in parallel would be tantamount to allowing a defendant in default to have two bites at the cherry – or, to continue with the metaphor, to ride two trains at the same time’. The AG added to allow this would be against the principle of equality of arms asking the correct question: ‘how could it be permissible for a party, which had failed to participate at first instance, to nonetheless have the possibility to pursue one remedy before the General Court, and another remedy before the Court of Justice, both ultimately seeking the same outcome?’ (Para. 108, Opinion of Advocate General Emiliou, Case C‑766/21 P, European Parliament v Axa Assurances Luxembourg SA, Bâloise Assurances Luxembourg SA, La Luxembourgeoise SA, Nationale-Nederlanden Schadeverzekering Maatschappij NV, ECLI:EU:C:2024:63).

The AG in that case made another important point, in that allowing parallel proceedings could cause confusion as to the suitable remedy in a particular case and contribute to the escalation of costs for any party involved in parallel procedures (para. 109 of his Opinion).

Appeal may be admissible against a default judgment if the opposition is late

The Court of Justice in Case C-785/22 P, Eulex Kosovo v SC nonetheless stated that an appeal against a default judgment may be admissible before it if the party has not asked for the General Court to set aside its own judgment within the prescribed time limit of one month pursuant to Article 166 RPGC.

Whilst this was not the situation in Eulex Kosovo v SC, given that a request was made in time by the defendant to the General Court for itself to set aside its default judgment, the Court of Justice did state that if such a situation were to arise, such an appeal would be inadmissible during the time the default judgment is not yet final, but could be regularised, i.e. upon expiry of that time limit (para. 33 of the judgment) ‘if that legal remedy has not be exercised’. Thus, according to the Court of Justice, there is an exception to the rule if the party does not comply with the time limit to file an opposition or does not file an opposition at all, it can appeal the default judgment, once it is final, before the Court of Justice.

Unhealthy choice of legal remedies

To leave a choice of remedies to the defendant, i.e. either to pursue an application to set aside a default judgment based on Article 166 RPGC before the General Court, or an appeal against such a judgment before the Court of Justice, is problematic. It is even more problematic to allow an appeal, when the defendant does not manage to file an opposition within the stipulated time limit of the specific legal remedy under Article 166 RPGC, i.e. one month.

Specific remedy in Article 166 RPGC

In view of the considerations, AG Emiliou, fully aware of the Court’s reasoning in Case C-785/22 P, Eulex Kosovo v SC (see para. 102 of his Opinion), in his Opinion in Case  C‑766/21 P, Parliament v Axa Assurances Luxembourg and Others is entirely correct in stating that a defendant in default cannot lodge an appeal against a first-instance decision because of the requirement to make use of the specific remedy set out in Article 166 RPGC. ‘The two procedural avenues are […] not only alternatives and mutually exclusive, but also not interchangeable. […] to lodge an appeal, a party must fulfil the formal requirements outlined in Article 56 of the Statute, in essence, mandating participation at first instance. […] a defendant in default does not fulfil that criterion. Any attempt to bring a successful appeal would seem futile.’ (See paras. 101, 103 and 104 of the Opinion of AG Emiliou).

An appeal against a default judgment before the Court of Justice will regularly unduly prolong proceedings before the EU courts, with a possible referral back to the General Court due to the incomplete provisional appraisal of the facts, within the procedure for default judgments inaudita altera parte. The consequences for applicants will be an unreasonable length of adjudication of their cases before the CJEU, and of course, escalating their costs.

In order to avoid that defendants more often fail to file a defence in the initial proceedings, despite being requested to do so, the tight time limit of one month of the specific remedy set out in Article 166 RPGC must be adhered to by defendants. There should not be available another train which can be taken later, i.e. an appeal of the default judgment after two months, if the train to the General Court is missed to use the metaphor of AG Emiliou. The Court of Justice is not the correct forum to set aside a default judgment as it is bound to address points of law only. It must be left to the General Court to conduct the adversarial procedure in which the principle audi alteram partem is respected with a complete appraisal of the facts after it has not in the default procedure. (see also paras. 106 and 107 of the Opinion of AG Emiliou).

In the end, the view of Advocate General Emiliou can only be agreed with, in that ‘the procedural avenue permitting a defendant in default to submit an application to have set aside a judgment by default before the General Court is the most appropriate (rectius, the only) course of action that such a party may use in such circumstances.’

There is only one train and if missed, there is no other train.

Friday 21 June 2024

Advancing Gender Equality: The EU`s Landmark Directive 2024/1385 on Violence Against Women



Dr. Ceren Kasım, Postdoctoral Research and Teaching Fellow, University of Hildesheim, Germany

Photo credit: MesserWoland, via Wikimedia Commons




The first-ever binding European Union (EU) legal instrument to combat violence against women and domestic violence was approved on the 14th of May 2024 by the EU and has already been published in the Official Journal of the European Union. This Directive, known as Directive 2024/1385 on combating violence against women and domestic violence (Directive), marks a historic moment for equality and equal opportunities in the European Union and is a significant symbol of the EU`s dedication to achieving not only de jure but also de facto equality.


Gender-based violence is prevalent in the European Union, with one in three women in the EU reporting experiences of physical and/or sexual violence. Each day, between 6 and 7 women in Europe are killed by their partner or ex-partner, resulting in an estimated total of 2300 women becoming victims of femicides every year. The structural nature of such violence is inherently connected to gender-based discrimination, serving as a central social mechanism that perpetuates women`s subordination in society. The Directive represents a step closer to gender equality in the European Union, not only through the criminalisation of many offenses but also by promising preventive, supportive, and prosecutorial measures linked with training and coordinated Europe-wide policies.




The Directive 2024/1385 is a groundbreaking legal document that aims to prevent and combat violence against women (VAW) and domestic violence. It highlights the European Union’s objectives to achieve equality between women and men, as outlined in the Treaties, including Art. 2, Art. (3)(2) TEU, Art. 8, 10, 19 TFEU, as well as Art. 21 and 23 of the Charter of Fundamental Rights, which represent the fundamental values of the EU. The Directive also aligns with the EU Gender Equality Strategy 2020-2025, which includes the objective of eliminating gender-based violence.


European women`s organisations have advocated for a European legal instrument to empower women in Europe, aiming to create a safer environment for women and girls. In a parallel development, the Directive was launched on March 8, 2022, a significant symbolic date for women's rights – International Women`s Day. Subsequently, on June 9, 2023, the Council agreed on its position regarding the proposed Directive, leading to a deal being reached among EU legislators in February 2024. The EU Parliament then adopted the directive on April 24, 2024, with 522 in favor, 27 against, and 72 abstentions, which was later adopted by the council on May 7, 2024. Finally, on May 14, 2024, the act was signed.


Moreover, a significant advancement towards gender equality in the European Union was the accession of the EU to the Council of Europe Convention on preventing and combating violence against women and domestic violence (Istanbul Convention) (IC) on October 1, 2023 – the sole binding European human rights document addressing gender-based violence. However, controversy surrounding the Istanbul Convention arose within the broader European context, with instances such as the Bulgarian Constitutional Court declaring it unconstitutional in 2018. Additionally, Polish government argued that the convention disregards religious beliefs and promotes what they term ‘gender ideology’. In 2019, the Slovakian parliament chose not to ratify the Convention, despite earlier signing it. Notably, an Opinion by the European Court of Justice (Grand Chamber) on October 6, 2021 (Opinion 1/19), paved the way for swift ratification of the Convention, allowing the Council to adopt it through a qualified majority vote. EU acceded to the Convention, handling matters falling under its exclusive competences as defined by agreed common rules related to judicial cooperation, asylum, non-refoulement, institutions, and public administration of the Union. So, it was crucial for the EU to have its own legal instrument, especially considering that some EU Member States have not ratified the Istanbul Convention.


The Directive stands as the sole European Union legal source addressing VAW and domestic violence directly. Member States now have three years to implement the provisions (Art. 49).




The Directive stands out in many aspects. Foremost, it acknowledges the shared responsibility of Member States in addressing and advocating for a comprehensive framework to effectively prevent and combat VAW and domestic violence.


This holistic approach within the Directive introduces detailed regulations and sets down rules to prevent and address VAW and domestic violence, with the aim of ensuring effectiveness and enforceability. The Directive's obligations cover four key pillars: prevention and early intervention, protection and access to justice, victim support, coordination and cooperation. In alignment with the four aims of the Istanbul Convention – prevention, protection, prosecution, and coordinated policies – the EU seeks to bolster the protection of all victims of VAW and domestic violence by establishing measures focusing on prevention, minimum guidelines for reporting, early intervention, victim protection, support, access to justice, perpetrator prosecution, training, enhanced data collection, coordinated mechanisms, and cooperation requirements.


The Directive establishes mechanisms for prevention and early intervention, as well as measures to protect and support victims, outlining the minimum rights of victims of all forms of VAW or domestic violence before, during, and for a period of time after criminal proceedings. It advocates for a comprehensive preventive approach and ensures the existence of early intervention mechanisms. It is convenient to emphasise the importance of these mechanisms going beyond basic preventive measures to include compulsory comprehensive sexuality education, consent education, and challenging negative gender norms.


The Directive mandates the provision of protection and support for victims, guaranteeing victims access to comprehensive medical care and sexual and reproductive health services. This marks the first instance where EU law imposes explicit obligations on Member States to ensure access to essential medical care for victims of sexual violence. Additionally, it ensures that victims have access to justice. Member States are required to provide training for professionals who are likely to interact with victims, including law enforcement, prosecutors, and judiciary. Moreover, the prosecution of perpetrators must be consistently ensured across all Member States. The training provided should be based on human rights, centered around the victim, and sensitive to gender, disability, and children (Art. 36).


In many respects, the Directive is determined, demanding that Member States adopt comprehensive and coordinated policies (Art. 38) and introduce national action plans (Art. 39) that should be implemented with union-level cooperation (Art. 43). These efforts should be bolstered by collaboration with non-governmental organisations (Chapter 6). Member States are urged to consider the expertise of women's organisations and women's specialist services, as crucial players in addressing all forms of VAW and offering assistance to survivors with a gender-sensitive and intersectional outlook.




In addition, the Directive establishes minimum rules specifying criminal offences and penalties related to the sexual exploitation of women and children, as well as cybercrime. In doing so, it criminalises and categorises forms of gender-based violence that were previously only acknowledged by a limited number of Member States. By taking this step, the Directive aims to standardise criminal legislation across the European Union concerning certain forms of VAW.


One key aspect is the requirement for EU countries to criminalise female genital mutilation (Art. 3) and forced marriage (Art. 4). This demonstrates the Directive`s firm stance that these issues are not merely products of cultural distinctions but are rather gender-related crimes.


Moreover, the Directive places a significant emphasis on addressing cyber-related violence. It considers the non-consensual sharing of intimate or manipulated material as a criminal offence (Art. 5), providing a safety measure to protect women, which also encompasses instances like deepfakes. Additionally, cyber stalking (Art. 6), cyber harassment (Art. 7), and cyber-incitement (Art. 8) are recognised as punishable criminal offences. The Directive also addresses issues such as cyber stalking that have previously not been adequately covered in EU legal regulations, thereby filling a legal gap and for the first time criminalising various forms of cyber violence that predominantly target and impact women due to their gender.


Furthermore, the Directive outlines a list of aggravating circumstances (Art. 11), which include offences driven by motives related to the victim`s sexual orientation, gender, colour, religion, social origin, or political beliefs, as well as actions intended to uphold or restore “honour”. It also covers crimes against public figures, journalists, or human rights defenders.




One of the most visionary aspects of the Directive is its consistent reference and emphasis on intersectional discrimination. The term ‘intersectional discrimination’, coined by Kimberle Crenshaw in the early 1990s, highlights the nature of discriminatory practices by showing how different discriminatory grounds interact with each other in a multifaceted way. The intersectional aspect of discrimination makes women more vulnerable and at a heightened risk of experiencing gender-based violence.


The Directive refers to intersectional discrimination in connection with Art. 21 of the Charter of Fundamental Rights and the referenced grounds of discrimination (Articles 16, 21, 33). With advancing technologies, Art. 21 of the Charter becomes more significant as it includes genetic features as a ground for discrimination. By acknowledging intersectional discrimination, the Directive extends its protection to the most vulnerable groups who are at risk of all forms of gender-based violence and domestic violence – including women from racial minorities, women with disabilities, individuals with different sexual orientations, gender identities, and expressions, such as transgender and non-binary individuals, sex workers, individuals with lower socio-economic status, those who are homeless, with unstable immigration status – to access improved support services. These groups are the least protected and supported in society.




However, there is a missing human rights perspective in the Directive. Neither in the Preamble nor anywhere else does the Directive acknowledge that gender-based violence is a human rights violation. This recognition is a core element of the Istanbul Convention. However, the Directive refers to VAW and domestic violence as a violation of fundamental rights and, thereby losing its connection to the most significant human rights document on VAW and domestic violence in Europe. (Compare Art. 3(a) IC to Art. 2(a) Directive 2024/1385) The Directive missed an opportunity to align closely with the Istanbul Convention's human rights approach, which would have been a groundbreaking step in addressing gender-based violence and domestic violence at the EU level.




In the Directive, a clear reference to gender and a distinction between ‘gender’ and ‘sex’ are also lacking. The Directive has an ambiguous relationship with the concept of gender. It uses the terms ‘sex’ and ‘gender’ interchangeably in most cases, leading to significant uncertainty and undermining all the progress that has been made thus far. It lacks a genuine gender perspective. Which would have allowed for an understanding of the root causes, socially structured and historically ingrained nature of violence in relation to structural inequalities, moving away from a binary understanding of sex and stereotyping.


Unlike the Istanbul Convention, the Directive does not provide a definition of gender. CEDAW has also amended its General Recommendation No. 35 by explicitly choosing the phrase ‘gender-based violence against women’, a new and more inclusive approach to addressing the issue. Gender is socially constructed, whereas sex is genetically determined. The concept of gender enables us to comprehend violence within its societal context rather than viewing it as an individual problem. Considering that the European Court of Justice also does not clearly differentiate between ‘gender’ and ‘sex’ and regrettably uses the two terms interchangeably, it would have been appropriate for the European legislative body to rectify this and bring clarity.[1] The Directive could have simply followed the footsteps of the Istanbul Convention and provided clear definitions of the term gender and distungish betwenn gender and sex.


Furthermore, the Directive uses the term ‘violence against women’ instead of gender-based violence. However, it defines ‘violence against women’ as “gender-based violence directed against a woman or a girl because she is a woman or a girl or that affect women or girls disproportionately”. (Art. 2(a)) ‘Victim’ refers to “any person, regardless of their gender, who has suffered harm directly caused by violence against women or domestic violence”. (Art. 2(c) ) Throughout the text, the directive does not clearly differentiate between ‘sex’ and ‘gender’. Although some use ‘violence against women’ and ‘gender-based violence against women’ interchangeably, there is a distinction in understanding. Gender-based violence, including violence against women, encompasses all forms of violence that disproportionately affect women and marginalised communities. Using ‘violence against women’ as an umbrella term excludes also individuals who do not fit into the category of ‘women’, such as sexual minorities and non-binary people.




In addition, other forms of violence, such as intersex genital mutilation and forced sterilisation, were ultimately not criminalised in the Directive. Intersex genital mutilation affects intersex individuals, who are one of the most discriminated groups among the LGBTI population. On the other hand, forced sterilisation is a surgical procedure that removes a person`s ability to have children without consent or under undue pressure. Women with disabilities are disproportionately subjected to forced and involuntary sterilisation. United Nations human rights instruments, mechanisms, and agencies have acknowledged that the forced sterilisation of persons with disabilities constitutes discrimination, a form of violence, torture, and other cruel, inhuman, or degrading treatment. The UN Special Rapporteur on the rights of persons with disabilities stated in 2017 that protecting the rights of persons with disabilities to make decisions about their own bodies and sexuality is crucial in the global effort to end violence, exploitation, and abuse against women. Forced sterilisation is still either permissible by law or not expressly banned in 12 out of the 27 EU Member States –Bulgaria, Cyprus, Croatia, Denmark, Estonia, Hungary, Finland, Latvia, Lithuania, Portugal, Slovakia and the Czech Republic– as reported by the European Disability Forum.




One of the continuous criticisms and demands preceding the adoption of the Directive was a common European consent-based definition of the crime of ‘rape’. Article 5 of the initial Proposal, focusing on the definition of ‘rape’ – a definition similar to the Spanish law from 2022, known as the “yes means yes” approach – was deliberated for nearly two years and was ultimately removed from the draft. This sets the Directive apart from the Istanbul Convention, which already includes a definition of rape based on the absence of consent (Art. 36 IC). Member States held varying opinions on this matter, with Italy and Greece supporting the inclusion of such a definition, while Germany and France opposed it, arguing that the EU lacked the authority to address this issue. Despite persistent demands from women's and human rights organisations, as well as many academics, the approved Directive does not provide a definition.




The Directive lacks a dedicated chapter addressing migrant women. The absence of an independent residence status, a secure status, or any status poses challenges for women, increasing their vulnerability to violence or exploitation in a variety of contexts by employers, intimate partners, or other individuals. As a result, they are less likely to report violence and abuse., limiting their access to justice and their ability to escape abusive situations, rendering them vulnerable to further abuse. Recently, the European Court of Justice in two landmark cases WS v Bulgaria (C621/21)[2] and K, L v Staatssecretaris van Justitie en Veiligheid (C-646/21) reaffrimed the status of women as a whole, including minors, and women facing domestic violence in their country of origin in particular, and women who identify themselves with the fundamental value of equality between women and men qualify as a protected ‘social group’ in reference to Istanbul Convention. While the initial proposal included provisions to ensure that no personal data about victims of abuse, including residence status, would be shared by police with immigration authorities, the final text omits these safeguards (Art. 16(5) Propsal) As stated by many human rights organisations, this approach would run counter to the EU's rules on victims' rights (Victims' Rights Directive) and data protection (General Data Protection Regulation), which mandate rights and safeguards for all individuals without discrimination. This discrepancy with the Istanbul Convention contradicts the Convention`s requirement that all women be treated equally, irrespective of their residence status.




In its preamble, the Directive highlights that VAW and domestic violence pose a threat to the fundamental values and rights of the European Union, particularly equality between women and men and non-discrimination. These forms of violence undermine women and girls' rights to equality across all aspects of life, including the world of work. The European Gender Equality Strategy 2020-2025 as well outlines key objectives, such as ending gender-based violence, challenging gender stereotypes, closing gender gaps in the labour market, achieving equal participation in various sectors of the economy, addressing gender pay and pension disparities, bridging the gender care gap, and attaining gender balance in decision-making and politics.


However, the Directive falls short in thoroughly regulating gender-based violence in the world of work. The initial Proposal in Article 4 defines ‘sexual harassment at work’ as any form of unwanted verbal, non-verbal, or physical conduct of a sexual nature that violates the victim`s dignity, particularly when creating a hostile or offensive environment. Despite efforts to include work-related violence, such provisions were rejected and are absent from the final text.


The Preamble of the Directive refers to sexual harassment at work in connection to EU non-discrimination Directives (No. 65 Preamble) and also in relation to support and protection mechanisms (No. 77 Preamble). Only Article 28 mandates that Member States ensure counselling services are accessible for victims and employers in cases of sexual harassment at work that constitute a criminal offence under national law. Article 36 states that individuals with supervisory in the workplace should receive training on recognising, preventing, and addressing sexual harassment at work. Additionally, Article 19 briefly mentions that restraining orders should prevent the perpetrator from entering the victim`s workplace but does not delve into specific scenarios. By 14 June 2032, the Commission is required to assess the need for further Union-level measures to effectively address sexual harassment and violence in the workplace (Article 45).


Given that individuals spend a significant part of their lives in the workplace and the relationship of work to socio-economic rights, an inclusive and comprehensive approach to addressing violence at work will have an emancipatory and empowering impact on women`s rights in the European Union. This approach should involve third-party violence and harassment at work, encompassing gender-based violence as well as domestic violence, whether in employment, occupation, or self-employment. However, the Directive falls short in this regard.




In conclusion, the Directive represents a significant advancement in promoting gender equality within the European Union. It recognises the shared responsibility of Member States in addressing violence against women and domestic violence, advocating for a comprehensive framework to effectively prevent and combat such issues. By criminalising offences that were previously overlooked in EU Member States and establishing minimum standards that Member States can exceed, the Directive serves as a robust legal instrument. It takes a holistic approach, providing detailed regulations and guidelines spanning from prevention and early intervention to protection, access to justice, victim support, and coordination and cooperation.


While the Directive is a positive step forward, it falls short of the initial Proposal's ambition, lacking a clear gender perspective and specific regulations on certain forms of violence, particularly in the context of the world of work. Nevertheless, the Directive is poised to bring about significant changes in the legal norms of Member States and pave the way for a cultural shift in understanding and addressing gender inequality that persists in EU countries. This milestone should be celebrated, while also acknowledging that there is still much work to be done to enhance legal safeguards in preventing and eradicating gender-based violence and domestic violence.

[1] Endres de Oliveira, Pauline / Kasım, Ceren, „Die Relevanz der Istanbul-Konvention für den flüchtlingsrechtlichen Schutz von Frauen in der EU. Das EuGH-Urteil in der Rechtssache WS gegen Bulgarien“, NVwZ 7/2024, 1.4.2024, p. 486-490.

[2] Endres de Oliveira, Pauline / Kasım, Ceren, „Die Relevanz der Istanbul-Konvention für den flüchtlingsrechtlichen Schutz von Frauen in der EU. Das EuGH-Urteil in der Rechtssache WS gegen Bulgarien“, NVwZ 7/2024, 1.4.2024, p. 486-490.

Wednesday 19 June 2024

Article 43 of the EU Data Act from a Research Perspective



Author: Maryna Manteghi, PhD researcher, University of Turku, Finland.


Photo credit: rjcastillo, via Wikimedia commons




The new EU Data Act Regulation, which constitutes one of the essential elements of the European strategy for data, entered into force on 11 January 2024 and will become applicable in September 2025. The Regulation aims to remove barriers to data access for consumers and businesses to ensure an optimal and fair data allocation in society. The Data Act focuses on facilitating access to and use of large amounts of digital data, especially collected/generated by sensors and machines in the Internet of Things (IoT) environment. To unlock the data held and controlled by a few actors, the Regulation reviews inter alia the relevance of the Database Directive in the data-driven society without expressly amending the Directive.


In particular, Article 43 of the Data Act provides that the sui generis protection granted to the maker of a database, who has made a substantial investment in either the obtaining, verification or presentation of the contents of the database (Article 7 (1) of the Database Directive) “shall not apply when data is obtained from or generated by a connected product or related service”. The Data Act defines a “connected product” as “an item that obtains, generates or collects data concerning its use or environment and that is able to communicate product data via an electronic communications service, physical connection or on-device access, and whose primary function is not the storing, processing or transmission of data” (Article 2 (5) of the Data Act) and a “related service” as a “digital service, other than an electronic communications service, including software, which is connected with the product at the time of the purchase, rent or lease in such a way that its absence would prevent the connected product from performing one or more of its functions” (Article 2 (6) of the Data Act).


Article 43 of the Data Act (see also Recital 112) excludes databases containing machine-generated data from protection under the sui generis regime to safeguard the rights of users to access, use and share such data (Articles 4 and 5 of the Data Act). Even though the provision could harness excessive IP protection over particular types of databases, some aspects could require further clarification to ensure fair access and use of data in the digital age (see Manteghi).


The Potential Limitations of Article 43 of the Data Act in the Context of Scientific Research


When looking at Article 43 of the Data Act from the perspective of research, some concerns may be raised. The exclusion of databases made of machine-generated data from the sui generis protection in Article 43 of the Data Act would not automatically guarantee researchers the right to access and use such databases. Database holders could block or restrict access to their databases through contractual agreements or the application of technological protection measures (TPMs) (e.g., password, robots.txt file etc). Even though Recital 5 in the preamble indicates that the Regulation aims to prevent “the exploitation of contractual imbalances that hinder fair access to and use of data”, the provision refers only to third parties’ rights and data sharing agreements leaving the relevance of these limitations to the sui generis database right unclear. Another concern relates to the use of mixed databases consisting of data falling within the scope of the Data Act and so-called derived or inferred data excluded from the scope of the Regulation (see Recital 15 of the Data Act preamble).


For instance, researchers doing research on databases containing data collected by e.g., health monitoring devices would be required to obtain authorisation to access and use databases containing information derived from collected data (e.g., statistical data) through licensing or other lawful means. Put simply, the latter type of databases could be covered by the sui generis protection, thereby researchers would need to obtain authorization from database holders if the research requires (permanent or temporary) copying of the whole or of a substantial part of the contents of that database (see Article 7 (1) of the Database Directive). However, researchers may find it challenging to determine which data is covered by the Regulation and which is not. The exclusion of derived or inferred data from the scope of Article 43 is not well-grounded as such data could satisfy the requirements needed to qualify as machine-generated data within the meaning of Recital 15 of the Data Act preamble. In particular, the provision requires that such data should “represent the digitalization of user actions and events” and be “valuable to the user and support innovation and the development of digital and other services protecting the environment, health and the circular economy”.


Another issue is that the Regulation aims to facilitate the accessibility of machine-generated data by users, trade and business persons and, where there is an exceptional need to access such data, by public sector bodies without a particular focus on scientific research (Article 1 of the Data Act). In this sense, researchers could benefit from the provisions allowing users to share machine-generated data with third parties (Article 5 of the Data Act) as “third party” also covers research organizations or not-for-profit organizations (Recital 33 of the Data Act). Moreover, researchers may rely on Article 14 of the Data Act which obliges data holders, in cases of exceptional need, to make machine-generated data available to public sector bodies as research organisations could also be organised as public sector bodies (see Recital 63 of the Data Act preamble).


Research organizations are allowed to share such data with “individuals or organizations in view of carrying out scientific research” (Article 21 (1) (a)) providing that such actors “act either on a not-for-profit basis or in the context of a public-interest mission recognized by the State” (Article 21 (2) and Recital 76 of the Data Act preamble). In this sense, for instance, independent individual researchers or private research institutions, conducting research in the framework of public-private partnerships, could not secure even indirect access to databases made of machine-generated data as it is in practice, difficult to distinguish between commercial and non-commercial activities within these collaborations (see Manteghi pp. 38, 43).


Concluding Remarks


To sum up, Article 43 of the Data Act could be refined so that it would be clear that the provision cannot be overridden by a contract or TPMs at the expense of users’ rights to ensure better access and utilisation of machine-generated data. Moreover, to ensure efficient and broad access to and use of machine-generated raw data collections for research purposes it is necessary to explicitly address the needs of researchers by including them among beneficiaries of the provision. Further, the inclusion of so-called derived or inferred data in the scope of the Data Act would enhance data availability and its integrity for research purposes. The suggested remedies, if adopted, could ensure a research-friendly regime and thus strengthen the research power of the EU at a global level.



Tuesday 18 June 2024

Recent asylum case law of the CJEU: Distinction, Integration or Extension from 'Mainstream' EU law?


Professor Steve Peers, Royal Holloway University of London

Photo credit: Luxofluxo, via Wikimedia Commons



While attention has been focussed on the overhaul of EU law on asylum – which I have analysed in an upcoming article, reflected in an 8-part series of blog posts, starting here – the CJEU has been delivering a number of judgments on important asylum law issues. There have been no fewer than ten asylum law judgments since the start of the year, including five in June alone. The following blog post is an overview of these judgments, and also discusses recent Advocates-General opinions in pending asylum cases. Also, to give an idea of future developments, it discusses whether the new EU asylum laws would change the outcome of recent judgments, and other asylum cases pending before the CJEU are listed in an annex. Finally, this blog post develops a framework for analysis of the extent to which EU asylum law fits within the application of EU law more generally: is it distinguished from the ‘mainstream’, integrated into it, or used to build upon it?  


Qualification for asylum

Interpreting the Directive on qualification for refugee or subsidiary protection status, recent judgments have included, first the first time, two rulings on women qualifying for refugee status because of issues specific to being women. (Of course it is also possible for women to qualify for refugee status due to persecution on other grounds, such as their religion or political opinion).

The first of these judgments, back in January (Case C-621/21; see analysis of the earlier Advocate-General’s opinion by Dr Maja Grundler here), concerned the position of women facing domestic violence. First of all, the Court ruled that women in general could constitute a ‘particular social group’ being persecuted under the Refugee Convention (which defines refugees as people who are outside their country of origin who have a well-founded fear of being persecuted on grounds of race, religion, nationality, political opinion or membership of a particular social group, and who are unable or unwilling to return to that country due to this fear – a definition enshrined in, and elaborated upon, in the EU Directive).  The Court stated that interpretation of EU law had to take account of both the UN Convention on Elimination of Discrimination Against Women – which all Member States were party to, although the EU is not – as well as the Istanbul Convention on violence against women – which the EU is party to, although some Member States are not. The latter Convention in particular requires asylum law to be interpreted in a gender-sensitive manner.

Applying this principle, the Court found that women in general shared an ‘innate characteristic’, thus satisfying the first of the two cumulative grounds to be considered a ‘particular social group’, according to the wording of the Directive.  The first ground could also be satisfied by sharing ‘a common background that cannot be changed’, or ‘a characteristic or belief that is so fundamental to identity or conscience that a person should not be forced to renounce it’; the Court ruled that women who shared an ‘additional common feature’ could also meet the first part of the definition by meeting one of those criteria, or by sharing another innate characteristic – giving the example of ‘a particular family background’ as a ‘common background that cannot be changed’. In particular, the court stated that ‘women who have escaped from a forced marriage’, or married women who ‘have left their homes’ met that test.

Women in general also met the second part of the test set out in the Directive to be considered a ‘particular social group’, namely having a ‘distinct identity’, due to being perceived as different by others, ‘in particular because of social, moral or legal norms in their country of origin’. So did specific groups of women who ‘share an additional common characteristic, such as’ those mentioned by the court (ie family background), ‘where the social, moral or legal norms in their country of origin have the result that those women, on account of that common characteristic, are perceived as being different by the surrounding society’.  The rest of society may, in this context, be either the whole country concerned, or some part of it. Discrimination or persecution against the group (whether women as a whole, or women who refuse or end forced marriages) may also be relevant to defining that group.

Next, the Court ruled that there was a link between persecution and the Convention ground of ‘particular social group’ (as required by the Directive) either where the act of persecution took place on that ground, regardless of whether the failure to protect women was motivated by that ground, or whether the failure to protect was motivated by that ground, but the mistreatment was not.

Finally, the Court ruled that women in this situation could qualify for subsidiary protection if they did not qualify for refugee status – given that the risk of death or torture or other inhuman or degrading treatment (two of the three grounds for subsidiary protection) could emanate not only from the State but also from private actors. So a real risk of ‘honour killing’ could justify a subsidiary protection claim, as could a real risk of torture et al falling short of death.

The second judgment, issued more recently (Case C-646/21: see the further analysis of this judgment by Türkan Ertuna Lagrand and Salvo Nicolosi), concerns the position of women who are supporters of equality between men and women as recognised in European countries. In the Court’s view, building on its first judgment on women and refugee status, they could also be recognised as a ‘particular social group’. They met the first part of the relevant test to define ‘particular social group’ (as discussed above) because the importance of equality in daily life as regards matters such as choice of partner and economic independence meant that support for the principle was ‘a characteristic or belief that is so fundamental to identity or conscience that a person should not be forced to renounce it’. Moreover, staying in a Member State while they forged their belief in equality as part of their identity meant that they had a ‘common background that cannot be changed’. They also met the second part of the test, as it is possible that the surrounding society (which again, need not be the entire country) would regard them as having a distinct identity. There was no need (although it was possible) for their belief to have a religious or political link.

This judgment also pointed out that persecution could take the form of violence against women due to their gender – again taking account of the Istanbul Convention. Member States could not make the applicant solely responsible for supplying evidence about the situation in the country of origin, and (taking account of UNHCR guidance) had to gather evidence about the particular situation of women themselves. The Court also pointed out that, applying previous case law to these facts, becoming convinced of equality principles while on the territory could not be regarded as an abusive manufacturing of an asylum claim (see the next case discussed in this blog post), and that women could not be expected to hide their beliefs in gender equality when returning to their country of origin. In light of the age of the applicants, the Court also elaborated for the first time upon the requirements to take into account the ‘best interests of the child’ when assessing asylum applications, taking account of a General Comment by the UN Committee on the Rights of the Child.

Finally, the assessment of an application had to apply the same criteria regardless of whether it was a repeat application or not (see also another recent judgment – Case C-563/22). And while the uncertainty about the right to stay in the country was not a factor in assessing asylum claims, the possibility that long-term stay had strengthened the belief in equality between men and women had to be taken into account.  

The Court of Justice has also recently ruled (Case C-222/22) for the first time on obtaining refugee (or subsidiary protection) status sur place – ie, where the basis for the claim for refugee or subsidiary protection status is events that happened since the asylum-seeker left their country of origin. (For example, think of a coup that takes place while a national of that country is studying abroad, or working abroad as a diplomat appointed by the deposed government).  The Qualification Directive provides for an optional exception for Member States in this context: they ‘may determine that’ an asylum seeker while files a repeat application ‘shall not normally be granted refugee status if the risk of persecution is based on circumstances which the applicant has created by his or her own decision since leaving the country of origin’, although this is ‘[w]ithout prejudice’ to the Refugee Convention.

This case concerned a repeat application following a religious conversion. The Court pointed out that the word ‘normally’ implied that refugee status could still be obtained in some cases, and noted that sur place applications did not necessarily have to be based on opinions or beliefs held by the asylum-seeker in the country of origin. As an exception from the general rule, the prospect of refusing refugee status had to be interpreted narrowly, and could only refer to cases where an ‘abusive intent’ by the asylum-seeker had led to a ‘manufactured’ application. This intent could only be established by a thorough individual assessment; Member States could neither skip such an assessment nor create a presumption that all such applications fell within the scope of the exception, which the asylum-seeker would have to rebut. In this case, if the asylum-seeker had genuinely converted, then this ruled out any abusive intent. As for the requirement to apply the exception ‘[w]ithout prejudice’ to the Refugee Convention, the court ruled that this meant that the applicant could still rely on the provisions of the Convention which could not be subject to reservation – including the basic right of non-refoulement (ie not being sent to an unsafe country).

Next, a judgment last week (Case C-563/22) added to the case law on the distinct position of Palestinian refugees – who are subject to specific rules in the Refugee Convention, which are cross-referenced in the qualification Directive. Article 1.D of the Convention states that it ‘shall not apply to persons who are at present receiving…protection or assistance’ from UN bodies other than the UN High Commissioner for Refugees. In practice, this only covers Palestinians receiving support from the UNRWA. However, Article 1.D goes on to say that ‘[w]hen such protection or assistance has ceased for any reason’, without an overall settlement of those persons’ position in accordance with UN General Assembly resolutions, ‘those persons shall ipso facto be entitled to the benefits of this Convention’.

Previous case law had already discussed the circumstances in which it could be concluded that assistance from the UNRWA had ceased for particular Palestinians, with the consequence that they would immediately be entitled to the benefits of the Refugee Convention (and, transposing this into EU law, to refugee status under the qualification Directive). The recent judgment – the questions in which were addressed by a national court to the CJEU before October 7th 2023 and its aftermath – examines again when UNRWA is unable to offer protection, in particular as regards Gaza. (This judgment is separate from the pending ICJ case alleging breaches of the Genocide Convention, and from the requests for ICC warrants as regards Hamas and Israeli leaders).

Applying that prior case law, the most recent judgment confirms that the conditions in Gaza – both before and after October 7 2023 – could be considered as circumstances in which UNRWA protection or assistance has ceased, for reasons other than the will of the asylum-seeker, in particular because of a ‘personal state of serious insecurity, taking into account, where applicable, his or her state of vulnerability, and that UNRWA finds itself, for whatever reason, including by reason of the general situation prevailing in that sector, unable to ensure dignified living conditions and minimum security for that stateless person, taking into account, where applicable, the specific needs linked to his or her state of vulnerability’. The national authorities had to consider whether ‘the impossibility, for whatever reason, to receive UNRWA’s protection or assistance places that stateless person at real risk of being exposed to living conditions which do not ensure that, under UNRWA’s mission, his or her essential needs in terms of health, education and subsistence are met, taking into account, where applicable, his or her specific essential needs due to his or her belonging to a group of people being characterised by a reason of vulnerability, such as age.’

The Court also referred to a UNHCR position paper on returns to Gaza from 2022, which ‘in view of the indications of serious violations and abuses of internationally recognised human rights and humanitarian law, as well as the continuing instability in that sector, the HCR is said to have called on States to allow all civilians fleeing the Gaza Strip to enter their territories and respect the principle of non-refoulement. The HCR expressly emphasises that the situation in that sector may constitute an objective reason for Palestinian refugees to leave it, explaining therefore that UNRWA’s protection or assistance must be considered to have ceased for them.’ Since then, the Court noted that ‘both the living conditions in the Gaza Strip and UNRWA’s capacity to fulfil its mission have experienced an unprecedented deterioration due to the consequences of the events of 7 October 2023.’

Finally, a recent Advocate-General’s opinion concerned integration of refugees after obtaining refugee status from a Member State (the Keren case – Case C-158/23). In the Advocate-General’s view, it was open to Member States to make such courses compulsory – although the fines or other penalties for not attending or completing the courses must remain proportionate.  


Asylum procedures

The starting point of the asylum procedure in the EU’s asylum procedures Directive is the right of access to the procedure, which has been the subject of many important judgments. Last week, it was an important part of a judgment (Case C-123/22) fining Hungary for failure to comply with a previous judgment (Case C-808/18) on asylum law. While Hungary had closed the transit zones that were partly at issue in that judgment, it had maintained restrictions on applying for asylum; the Court also ruled that Hungary had still limited the right of asylum-seekers to stay pending appeal, as required by the Directive, and was still in breach of a number of provisions of the Returns Directive.

As a penalty for non-compliance with the prior judgment, the Court fined Hungary €200 million as a lump sum – a wholly unprecedented amount – as well as €1 million/day (also higher than usual) for continued non-compliance after the latest judgment. The latter sum was divided between penalties for non-compliance with asylum law (€900,000 day) and non-compliance with the Returns Directive (€100,000 day). The size of the sum – far more than the Commission had requested – was justified by the exceptionally serious nature of the breach, based on the importance of the rights at issue for the people concerned (taking account of the Charter, the Refugee Convention and the ECHR), the effect of transferring obligations to other Member States (taking account of the principle of solidarity in EU law, especially in asylum and immigration), the repeated breaches of EU law in this field (the Court also referred to its judgments in Cases C-715/17, C-718/17 and C-719/17 on relocation, C-821/19 on criminalising assistance to asylum-seekers, and C-823/21 on access to the territory), and the failure to cooperate with the Commission (Hungary had made no effort to comply with the prior judgment other than closing the transit zones, and had attempted to stall compliance by asking its constitutional court to rule; but the Court reiterated the primacy of EU law).

The procedures Directive includes several grounds of inadmissibility of asylum claims, including (optionally) another Member State having granted international protection. But the previous case law of the CJEU (for instance, Ibrahim) recognises that it might nevertheless exceptionally be possible to claim protection status in a second Member State in such cases, due to severe human rights problems in the first Member State. In such cases, does the second Member State have to mutually recognise the prior positive decision of the first Member State? Today’s new judgment (Case C-753/22) addressed this issue for the first time.

In the Court’s view, Article 78 TFEU, which provides for the power for the EU political bodies to adopt legislation to create ‘a uniform status of asylum…valid throughout the Union’, does not itself create an independent mutual recognition obligation for Member States. Rather it creates a power to legislate to that effect – but this power has not yet been exercised. In principle, therefore, the Syrian woman in this case, who had been recognised as a refugee by Greece, nevertheless had to convince the German authorities that she was entitled to refugee status (the latter authorities had rejected her application, but had agreed that she was entitled to subsidiary protection status). While Member States could exercise their power (under current EU asylum law) to set higher standards than the minimum set out in EU law, including mutual recognition of other Member States’ grant of status, Germany had not chosen to do so.

However, while the first Member State’s grant of refugee status was not binding on the second Member State, it was not wholly irrelevant either: the Court said when assessing an application for refugee status, the latter State’s authorities had to contact the first Member State’s authorities, and take into account the first Member State’s decision, considering that the logic of the Common European Asylum System was to ensure harmonised interpretation of asylum law.

This judgment is closely linked to a second judgment today, in Case C-352/22. In this case, Italy had recognised a Turkish man as a refugee; he subsequently moved to Germany (the Court did not state on what basis), after which Turkey had sent an extradition request to Germany for him.  Although the procedures Directive provides that asylum-seekers have the right to remain on the territory until the first instance decision is taken on their application, this is subject to very narrow exceptions, including extradition to a non-EU country – provided that the authorities are satisfied that there is no direct or indirect refoulement in breach of international or EU law (there is also a right to stay in principle when appealing a refusal of an asylum application, but in that case the exceptions are broader). Of course, the Turkish man in this case was no longer an asylum-seeker, but a recognised refugee – so the Court observed that a recognised refugee was entitled to non-refoulement protection under the Qualification Directive. This extended, in effect, also to Member States other than the one which granted refugee status, in conjunction with Articles 18 and 19 of the Charter (which concern the right to asylum and protection from non-refoulement). In the Court’s view, extradition could not be granted unless the first Member State decided to withdraw refugee status, subject to the EU law rules and procedures on that point – although the second Member State could contact that Member State with a view to obtaining further information about that person’s refugee status, possibly suggesting that status should be withdrawn.  

Another ground of inadmissibility (in this case, mandatory) is a repeat application for asylum. A recent judgment (Case C-216/22) adds to the case law on this issue. While the procedures Directive obliges Member States to find repeat applications inadmissible, there is an exception to that obligation where the repeat application raises ‘new elements or findings’ that ‘significantly add to the likelihood’ of qualifying for international protection. In this case, a Syrian man who had been refused refugee status (although granted subsidiary protection) in Germany made a fresh application for refugee status, arguing that a CJEU judgment delivered in the meantime, concerning asylum law and conscientious objection (Case C-238/19), was a ‘new element’ that meant that his repeat application should be admissible.

The CJEU confirmed its prior case law which said that its own judgments could be a ‘new element’ justifying the admissibility of a repeat application (see Joined Cases C-924/19 and C-925/19), clarifying that this could be the case for any of its judgments, not just those holding that national law was in breach of EU law – although the Court observed that its prior judgment would have to be relevant to significantly increasing the likelihood of obtaining international protection, as the Directive requires. But the Court stated that the failure to raise the issue earlier was not the ‘fault’ of the asylum-seeker (an important point because the Directive provides that Member States can optionally require this as a condition for the repeat application being inadmissible).

This judgment also addressed appeals, confirming the prior case law that Member States are not obliged to let courts, in the event of a successful appeal against the refusal of status, substitute their decision for the administration’s – provided that the administration, when making a fresh decision after their previous refusal being quashed by the courts, was bound by the court judgment (on the remedy if the administration fails to do so, see Torubarov).

Another ground of inadmissibility (in this case optional for Member States) is that the applicant arguably should have applied in a ‘safe third country’ before reaching the EU (for a map of national lists of such countries, see here). The Directive sets out criteria for defining a ‘safe third country’ (on which, see the recent Irish High Court judgment discussed here), and also requires both a ‘connection’ with that country and that the application must be considered on the merits if the non-EU country concerned does not allow the asylum-seeker to enter. A new Advocate-General’s opinion (Case C-134/23) examines the last point, given that Turkey does not readmit asylum-seekers from Greece. The national court asked if this prevented Turkey from being listed as a ‘safe third country’ in the first place, or had effect only at the point of deciding on the admissibility of the application or enforcement of the asylum-seeker’s removal.

In the Advocate-General’s view, the certain refusal of readmission (which he contrasted with the prospect that readmission might be uncertain) did not prevent a country from being listed as a ‘safe third country’, since the Directive did not require the readmission issue to be a factor when the listed was made. Instead, the rule applied first when inadmissibility was considered: a Member State could not hold an application inadmissible on ‘safe third country’ grounds where it was certain, at that time, that the application would be refused. On the other hand, if it was ‘likely’ or ‘plausible’ that the asylum-seeker would be readmitted, then the authorities could decide that the case was inadmissible. In the latter case, authorities would subsequently have to ‘verify’ readmission ‘in practice’; but if the asylum-seeker was then not readmitted in practice at the time of enforcement, the Member State ‘may not enforce’ the inadmissibility decision, and would have to consider the application on the merits. This interpretation was justified both by the objective of efficient procession of asylum applications (if the refusal to readmit was certain, adopting an inadmissibility decision which could not be enforced would be wasting time), and by its consistency with the newly adopted asylum procedures Regulation.

Finally, a recent Advocate-General’s opinion (Case C-406/22) concerned the ‘safe country of origin’ rules, which are currently an option for Member States (for a map of national lists, see here). These rules provide that an application for asylum can be fast-tracked on the merits because that country can be presumed safe, due to meeting the criteria set out in the Directive. According to the Advocate-General, in a case concerning the Czech government’s designation of part of Moldova as a ‘safe country of origin’, Moldova’s emergency derogation from the ECHR on the basis of Article 15 ECHR did not as such prevent it from being designated as a ‘safe country of origin’ – although the derogation was a factor to consider when assessing whether human rights were generally upheld in that country. However, the Advocate-General argued that it was illegal, under the current law, to designate only part of a country of origin as ‘safe’ – even if, as in the case of Moldova, the territorial distinction was based on which part of a country was effectively controlled (or not) by its government. Finally, as regards appeals, the opinion argues that courts hearing an appeal must raise the question of legality of designations of ‘safe countries of origin’ of their own motion.   



The equivalent of ‘safe third country’ rules within the EU is the EU’s Dublin rules on responsibility for asylum applications, currently set out in the Dublin III Regulation. There are two recent judgments on the Regulation.

First of all, a judgment in February (Case C-392/22) applied the human rights exception to the Dublin rules – previously used to prevent transfers to Member States where the asylum system had collapsed, or which did not have adequate support for the asylum-seekers in question – for the first time to the issue of ‘pushbacks’, ie illegal returns to non-EU countries without considering asylum applications. According to the Court, pushbacks were a breach of EU law, as they did not give asylum-seekers an effective opportunity to apply for asylum, as required by the asylum procedures Directive. They may also be a breach of the principle of non-refoulement guaranteed by the Charter and the Refugee Convention, if the asylum seeker was pushed back to an unsafe country. Automatic detention at border posts was also a breach of EU law.

However, it did not necessarily follow that the human rights clause in the Regulation prevented transfers in such cases. There needs to be a systemic flaw resulting in a real risk of torture or other inhuman or degrading treatment, with the two parts of that test being considered separately. The Court confirmed that a ‘systemic’ risk had to apply to the entire asylum system or certain groups of applicants, clarifying that those crossing from Belarus into Poland could be such a group. As for the risk of torture et al, the national court had to examine whether there would be a ‘real risk’ after a transfer of being ‘taken to the border between Poland and Belarus and of being subjected there to a pushback to Belarus, possibly after being detained at a border control post, and, secondly, whether such measures or such practices would expose him to a situation of extreme material poverty that would not allow him to meet his most basic needs, such as, inter alia, food, personal hygiene and a place to live, and that would undermine his physical or mental health or put him in a state of degradation incompatible with human dignity, placing him in a situation of such gravity that it may be equated with inhuman or degrading treatment’ (following prior case law on the latter point). The risk would have to be assessed at the time of transfer, not as of when the asylum seeker ‘originally entered the territory of that Member State’.

The Court also opined on the evidence needed to establish a Charter risk, ruling that the national authorities had to consider both evidence submitted by the asylum-seeker and any evidence they could obtain on their own motion. But it was possible, as noted in prior case law, to seek to obtain individual guarantees from the other Member State about the treatment of the asylum seeker following any transfer.  

Secondly, a judgment in April (Case C-359/22) reaffirmed the Court’s case law on the ‘sovereignty clause’, a provision in the Dublin III Regulation that allows a Member State to take responsibility for an asylum-seeker even if their asylum application is not the responsibility of that Member State under the Dublin rules. The judgment confirmed that asylum-seekers did not have an EU law right to bring a legal challenge against a Member State’s decision not to exercise that option, because it was wholly discretionary. Nor did the EU Charter confer a right to challenge such decisions, or to suspend their implementation. And the time limit to carry out a transfer runs from the time another Member State accepts it or an appeal with suspensive effect is rejected, not from the date of refusal to trigger the sovereignty clause.


Impact of new EU asylum law

Would the recent judgments and Advocates-General opinions be decided the same way under the revised EU asylum laws, mostly applicable from June and July 2026? Taking the judgments and opinions in turn, there is no significant change to the definition of ‘particular social group’ under the 2024 Qualification Regulation (Member States will be obliged to apply both parts of the definition of ‘particular social group’, but then the Court’s judgments examine both parts anyway). Nor does that Regulation alter the approach to the special position of Palestinian refugees. However, the exception on sur place asylum applications is different, so the recent judgment on the exception cannot simply be applied without modification (see detailed discussion in my article on the new asylum laws). As for integration conditions, the 2024 Regulation sets out more details than the current Directive, but is consistent with the recent opinion: Member States can make integration courses compulsory but they must in principle be free of charge; fees can be charged as a derogation, but only if beneficiaries of international protection have the means and are not being placed under an ‘unreasonable burden’.

For asylum procedures, the new Procedures Regulation will retain a slightly different rule on access to the procedure (see also recital 13 in the preamble), as well as most of the right to stay pending appeal, so Hungary would still be in breach of the provisions concerned if it does not comply with the Court’s recent judgment.

The Regulation will also retain the non-refoulement protection against exercising the extradition exception to an asylum-seeker’s right to remain on the territory awaiting a first instance decision; the qualification Regulation will likewise retain (more straightforward) non-refoulement protection for those with refugee or subsidiary protection status (although the rules on withdrawal of status will change somewhat). The inadmissibility rules in the procedures Regulation still provide for optional inadmissibility for those asylum seekers who have international protection from another Member State. But the exception to this rule was always solely a creation of the Court’s case law, based on the Charter. None of the new EU laws provide for recognition of international protection status conferred by another Member State. In light of all this, there is no reason to think that the Court’s new judgments on the issues of mutual recognition and extradition will be overruled. It might be argued, though, that in light of the additional harmonisation of law brought about by the new legislation, a prior grant of refugee or subsidiary protection status by another Member State must be even more taken into account in the event of an application in a second Member State.

As for repeat applications, there are some changes (the ‘fault’ test is now mandatory, and an option for Member States to allow other reasons for considering a repeat application has been dropped) but the core of the rule (mandatory inadmissibility; exception for ‘new elements’) remains intact, so again the Court’s recent judgment (which explicitly addressed the ‘fault’ test anyway) should still be relevant. The relevant provision on appeals has not been changed either. 

For ‘safe third countries’, the Regulation includes a slightly reworded rule about readmission to the non-EU country deemed ‘safe’; and as noted above, the Advocate-General expressly aligns his opinion interpreting the current Directive with the wording of the Regulation on this point. On the other hand, the ‘safe country of origin’ rule is amended in the Regulation to allow the designation of only parts of countries – so the position set out in the recent Advocate-General’s opinion would be different, as the Advocate-General notes. (There is no reason why the other aspects of that opinion would be different).

Finally, as for the replacement for Dublin, the ‘AMMR’ or ‘RAMM’ Regulation, there are minor changes to the human rights and sovereignty clauses – but nothing so significant that it would change the Court’s recent judgments.



Despite its voluminous prior case law on asylum, much of the Court’s recent asylum case law breaks new ground. In fact, it is striking that it breaks new ground in particular in three areas linked to the core of EU law: mutual recognition, sex equality, and enforcement of EU law. Interestingly, the Court takes three different approaches to the links between EU asylum law and these three basic principles.

On mutual recognition, the Court takes what might be called a ‘distinction’ approach: keeping asylum law separate from the way in which the EU law principle more commonly applies. The Court passes up the opportunity to extend this basic EU law principle to the grant of refugee (or, implicitly, subsidiary protection status) by another Member State, in effect distinguishing this area of law from internal market law (and also the law on civil and criminal judicial cooperation). In comparison to internal market law, for example, it could be said that refugees who move between Member States have less protection in this context than, for instance, alcohol (Cassis), chocolate bars (Mars), or margarine (Rau) – reinforcing the bias of EU law towards protection of economic interests. This is so even though EU asylum law (and indeed international law) provides for far more underlying harmonisation of the law than many of the areas of the internal market where mutual recognition applies.

Having said that, though, the Treaty wording is different – referring to a power to adopt mutual recognition rules, rather than an obligation to ensure free movement – and in any event, today’s judgments do not reject any legal effect of the grant of refugee status by another Member State. There is not only an obligation for the second Member State to take the first Member State’s grant of status into account, if a fresh asylum application is lodged in the second Member State, but also the second Member State must give effect to the most fundamental aspect of refugee law – non-refoulement – until and unless the first Member State withdraws refugee status. And given the Court’s reference to non-refoulment generally, this should protect refugees not only against extradition, but also against expulsion or any other form of removal to their State of origin.

In contrast to mutual recognition, the Court’s approach to sex equality and asylum law could be described as an ‘integration’ approach: attempting to integrate asylum law into the mainstream of the application of the EU law principle (like sexual orientation equality previously). The Court’s second judgment on this issue in particular explicitly links the interpretation of EU asylum law to the sex equality rights in the Charter; and its reference to women’s identity including choices as regards work outside the home implicitly links to a well-known massive area of EU law. In fact its first judgment also now implicitly links to subsequent EU legislation on violence against women.

Of course, issues specific to asylum law remain: again like LGBT cases, attention may now turn to the definition of persecution, and to the credibility of asylum claims on this ground. An asylum-seeker who believes that a woman needs a man like a fish needs the Common Fisheries Policy is not likely to succeed. More seriously, the Court’s delinking of sex equality grounds with religion grounds may be a precursor of what is to come: authorities might argue that women can only succeed on this ground if they denounce religion and dress differently, for instance. And the case law on offensive questions and psychological tests in LGBT asylum cases may turn out to be relevant by analogy.

On enforcement of EU law, the Court’s approach could be described as an ‘extension’ of the EU law principle: further developing the case law on how fines against Member States for non-compliance with prior judgments work (for an analysis of previous case law on this issue, see the European Law Review article I co-authored with Marios Costa). The judgment against Hungary in effect sets out a new category of ‘extraordinarily serious’ cases in which vastly higher fines could be imposed. Although the criteria offered are necessarily specific to asylum law, they could arguably be adapted to other areas of EU law – for instance a particularly serious infringement of free movement rights, or exceptional damage to the environment (many of the cases on fines for non-compliance concern environmental law).

Finally, one striking feature of the recent case law is that it retains a broadly liberal approach to the interpretation and enforcement of EU asylum law. Nothing new, you might say; but by the judgments delivered in June, it is clear that the Court is maintaining its liberal approach despite the adoption of more restrictive asylum legislation by the EU’s political institutions. Even the arguably more restrictive interpretations have liberal elements: the Court requires both parts of the ‘particular social group’ test to be fulfilled (as the qualification Directive requires), but interprets them both generously; the Court leaves it to the EU political bodies to require the mutual recognition of refugee decisions (as the Treaty suggests), but gives an EU-wide non-refoulement effect to each Member State’s decisions. One key question in the years to come is whether the Court assumes the traditional position of centrist deference to right wing populism in this field – or whether it says no pasaran.


Annex - other pending cases


Cases C-608/22 and C-609/22 – Afghan women – AG opinion of 9 Nov 2023 – see analysis of the opinion in a blog post by Türkan Ertuna Lagrand and Salvo Nicolosi 

Case C-747/22 – access to benefits

Case C-217/23 Laghman – ‘particular social group’ – blood feud

Case C-352/23 Changu – national protection status

Case C-454/23 – revocation of refugee status on security grounds

Case C-63/24 Galte – exclusion clause



Case C-123/23 Khan Yunis – inadmissibility – repeat application following a negative decision by another Member State – AG opinion due 27 June 2024

Case C-202/23Baabda – see Khan Yunis

Case C-288/23 El Baheer – inadmissibility – repeat application following a positive decision by another Member State

Case C-551/23 Cassen – mutual recognition of asylum decisions

Case C-610/23 Al Nasiria – appeals

Case C-656/23 Karaman – access to the territory – relevance to date of residence permit

Case C-662/23 Izmir – six-month deadline to decide on applications

Cases C-50/24, C-51/24, C-52/24, C-53/24, C-54/24, C-55/24, C-56/24 – border procedure



Case C-560/23 Tang – time limits for transfer

Case C-790/23 Qassioun – prior rejection in Denmark

Case C-185/24 Tudmur – human rights clause – Italian suspension of transfers


Reception conditions

Case C-97/24 – damages for breach of the Directive

Cases C-104/24 and C-105/24 – alternatives to detention

Case C-184/24 Sidi Bouzid – withdrawal of benefits


Temporary Protection

Case C-753/23 Kraslivamovement between Member States

Case C-244/24 Kaduna status of non-Ukrainians

Case C-290/24 Abkez – ditto