One Legal Fiction After Another: The Court of Justice judgment on the asylum border procedure in Joined Cases C‑50/24 to C‑56/24 (Danané)

 

 

Dr. Vasiliki Apatzidou, Associate Tutor at the University of London

 

Photo credit: Nicolas Economou, via Wikimedia Commons

 

Introduction

 

The Court’s judgment in the Danané case largely confirms the core argument made by Advocate General Emiliou in his Opinion: that the border procedure in EU asylum law (which provides for a fast-track assessment of asylum claims, with the implied legal fiction that the applicant has not entered the territory) is not exclusively attached to the physical border. In my earlier analysis of the Opinion, I argued that the Advocate General had moved towards a functional rather than pragmatic understanding of the ‘border’. According to him, procedures traditionally associated with entry control may not only take place in border facilities, but also in inland facilities if they are designated as such by national law. The Court of Justice has now broadly endorsed that logic by holding that EU law does not prohibit Member States from detaining asylum applicants during asylum border procedures in centres that are not geographically located at the border, and that such detention may continue in the same place after the expiry of the four-week period envisaged for the border procedure provided that a new legal basis for detention exists. In that sense, the original thesis still stands. However, the judgment also tries to contain the consequences of this argument through a focus on safeguards.

Summary of the Judgment

 

The joined cases arose from applications for international protection lodged at the Belgian border by third-country nationals who were refused entry and detained in the Caricole Transit Centre, a facility located inside Belgian territory but treated under national law as a place ‘at the border’ for the purposes of the border procedure. In Danané, the Court confirms that Article 43 of the recast asylum procedures Directive (APD), which sets out the current version of the border procedure, does not require border procedures to be implemented only in facilities physically located at the external border, since a border procedure may also be conducted in an inland detention centre that national law treats as a place ‘at the border’.

At the same time, once the four-week period in Article 43(2) recast APD expires, the case no longer remains within the border procedure and must continue under the regular procedure, even though the applicant may still be kept in the same facility if continued detention is separately justified under the detention grounds laid down in Directive 2013/33 (the reception conditions Directive, or RCD). The Court therefore accepts a dual classification of the same place of detention. However, this may happen only on condition that the applicant is informed of the change in legal status – it should be clear that he or she is now allowed to enter the territory – and that continued detention complies with the requirements of necessity, proportionality, individual assessment, and judicial review. It also makes clear that investigative steps already carried out during the border phase may still be relied on in the subsequent procedure, and that the examination of the application may be prioritized. Significantly, detention after the four-week limit cannot become automatic or systematic for all those who are channelled from the border to the regular procedure.

 

One Legal Fiction After Another

 

What makes Danané case especially important is that the Court relocates the decisive legal limit on the use of border procedures from geography to proper legal justification and safeguards. The judgment accepts that the same detention facility may first function as a place ‘at the border’ for the purposes of Article 43 recast APD and then, once the four-week period has expired, as a place ‘in the territory’, without any necessary change in the applicant’s physical surroundings. Instead, the Court tries to preserve a merely legal distinction between the two phases. Once the four-week period in Article 43 recast APD expires, the application no longer falls within the border procedure and his or her application will be examined under the other provisions of Directive 2013/32, while any continued detention may take place in the same facility, but must comply with the safeguards and requirements envisaged in Directive 2013/33. The Court also makes clear that detention cannot simply continue under the old border-procedure logic, that the applicant must be informed of the change in his or her legal situation, and that, where appropriate, the person must receive the document certifying their status as an asylum-seeker referred to in Article 6 of Directive 2013/33 or equivalent evidence, although in practice detained applicants often do not receive prompt documentation giving practical effect to this safeguard.

Yet the real problem is that this legal transition may leave the applicant’s position almost untouched in practice. If the same person remains in the same closed facility and under the same deprivation of liberty, the transition from border procedure to regular procedure risks becoming a legal fiction itself. That is where the judgment deserves a more critical reading. Formal entry into the territory may mean very little if it is not accompanied by adequate safeguards. The reception conditions Directive links applicant status to documentation, reception conditions, education for minors, and access to the labour market under the conditions laid down in the directive, yet the judgment says relatively little about how immediate and effective those rights must be in practice where the person remains detained. If an applicant still lacks prompt documentation, cannot effectively enjoy reception rights, and remains unable to exercise rights that normally follow from being an asylum seeker who has entered the territory and whose application is processed inside the territory under the regular procedure, then the shift from border to regular procedure serves primarily the asylum authorities, which in practice gain more time to decide while preserving continuity of control.

For that reason, continued detention after the expiry of the time limit foreseen in Article 43 recast APD must be treated with particular rigour. In this regard, it is very important that the Court itself turns from geography to safeguards, stressing that such detention must satisfy the ordinary standards of the recast RCD: necessity, proportionality, individual assessment, and one of the exhaustively listed grounds in Article 8 of the RCD, together with judicial review under its Article 9. If those requirements are not applied strictly, the transition endorsed in Danané risks turning the strict four-week time limit (extended to 12 weeks according to the Asylum Procedures Regulation, part of the EU Asylum Pact, which applies to asylum applications starting on 12 June) of the border procedure into a merely formal threshold.

This case matters beyond the Belgian transit centre and beyond the immediate interpretation of Article 43 recast APD. As my earlier analysis already suggested, the judgment fits a broader trajectory in EU asylum law in which the border is becoming less a fixed territorial line and more a shifting legal frontier that can be reproduced inside the territory. Read alongside the Pact texts, especially the Asylum Procedures Regulation, which more openly accommodates designated inland locations and expands the operational importance of border procedures, Danané looks less like an isolated ruling and more like a bridge toward a more internalised model of border procedures, in which procedures traditionally confined to the border and justified as exceptional may increasingly be reproduced inside the territory. For that very reason, safeguards become more important than ever, as the more flexible the geography of the border, the stricter the requirements governing detention, procedural guarantees, and the legal consequences of the expiry of time limits must be.

Conclusion

The deeper concern, then, is not merely that the Court has de-geographised the border. It is that, once the border is treated primarily as a legal status rather than a territorial threshold, ‘non-entry’ itself risks becoming a legal fiction capable of sustaining restrictive forms of asylum processing well inside national territory. The Court’s answer is that this is acceptable so long as the relevant guarantees, both in the asylum procedure and the detention safeguards, are preserved.

Whether that answer is convincing will depend entirely on practice. If detention after four weeks is truly exceptional and tightly reviewed, the distinction between border procedure and regular procedure may still make sense. But if applicants remain in materially unchanged detention while the determining authority simply acquires more time to decide, Danané will stand as a case of one legal fiction after another. Especially under the Pact, where screening and border procedures are further mainstreamed, the central question is whether safeguards are strong enough to prevent exception from becoming the ordinary mode of asylum governance.

 

 

 

 

Greater Coherence for the Ne Bis in Idem Principle, at Last: The Bpost Judgment (C-117/20)

 

 

Victor Davio and Ilaria Gambardella*

 

*Victor is a PhD Researcher at the Institute for European Law, KU Leuven and Assistant in Constitutional Law at University Saint-Louis Brussels and Ilaria is Teaching Assistant and Research Associate at the Institute for European Law, KU Leuven. They are part of the RESHUFFLE research project hosted by KU Leuven under the direction of Prof. Elise Muir, and supported by the European Research Council (European Union’s Horizon 2020 research and innovation programme, grant agreement No 851621). 

 

Photo credit: Jean Housen, via Wikimedia commons

 

 

Introduction

 

On 22 March 2022, the European Court of Justice (‘the ECJ’) delivered in Grand Chamber its judgment in the bpost case (C-117/20), which brings significant developments regarding the principle of ne bis in idem as enshrined in Article 50 of the EU Charter of Fundamental Rights (‘the Charter’). On the same day, the ECJ, also in Grand Chamber, rendered its judgment in the Nordzucker case (C‑151/20) which concerned the ne bis in idem principle in the field of competition law and in which the ECJ developed a similar approach to the bpost judgment in several respects. We will refer to the Nordzucker judgement to the extent that it is relevant for the analysis.

 

These judgments, and in particular the bpost judgment which will be discussed below, constitute a step forward towards greater coherence on ne bis in idem, a principle which has been deemed ‘among the most complex legal issues involving fundamental rights’. Also known as the prohibition of double jeopardy, the ne bis in idem principle has a double rationale: on the one hand, it is a rule of criminal procedure which aims to ensure legal certainty and a fair administration of criminal justice; on the other hand, it is an individual right which seeks to protect the individual from abuses of the ius puniendi. This principle is notably relevant in the context of the so-called dual proceedings, namely where a natural or legal person is subject to both criminal and administrative proceedings for the same misconduct and the latter proceedings are criminal within the meaning of the Charter or the European Convention of Human Rights (‘the ECHR’).

 

In the European landscape, the ne bis in idem principle has been characterised by a phenomenon of double fragmentation. The first is within EU law itself: the principle has been scattered in various legal instruments and has been subject to divergent interpretations by the ECJ depending on the area concerned, including between competition law and other areas of EU law. The second is between EU law and the ECHR: over the past years, the ECJ and the ECtHR have developed different methodologies for the application of the ne bis in idem principle, which places difficulties on national judges who are bound by both sets of rules.

 

The judgment commented upon provides a welcome, albeit partial, solution to this double fragmentation. Firstly, the ECJ departs from the dichotomy between competition law and other fields of EU law, by holding that the scope of protection of ne bis in idem is the same in all fields of EU law. Secondly, the ECJ aligns its case-law on the ECtHR case-law, and in particular on the Grand Chamber judgment A and B v. Norway of 15 November 2016. There is no perfect coherence between the ECJ and ECtHR case-law, however, since the CJEU confirmed its approach developed in the Menci judgment (C-524/15) which entails that the ne bis in idem principle must be submitted to the proportionality test under Art. 52(1) Charter, as we shall see below.

 

The facts of the case

 

Bpost, the incumbent postal services provider in Belgium, offers its services to two main categories of clients: the bulk mailers, which are end consumers, and the mail preparation firms, which are consolidators. As for 2010, bpost established a new tariff system for advertising and administrative mail items based on the ‘per sender’ model. Under the new system, the discounts granted to the consolidators are calculated on the volume of mail items deposited individually by each sender and no longer on the total amount of items from all senders for which the consolidators provided their services.

 

Due to this new tariff system, bpost was fined twice. First, the Belgian Postal Regulator imposed a fine for infringement of the non-discrimination rule related to tariffs in the postal sector. It considered that the new tariff system created an unjustified difference of treatment between the two main categories of clients. The decision was annulled by the Brussels Court of Appeal in a decision which became final. Second, the Belgian Competition Authority imposed on bpost a fine on the ground of abuse of dominant position. It estimated that the new tariff had an exclusionary effect on consolidators and potential competitors. Once again, the Brussels Court of Appeal annulled the decision on the ground that it was contrary to the ne bis in idem principle. After the decision was set aside by the Court of Cassation, the case came back to the Court of appeal which, therefore, submitted a request for a preliminary ruling to the ECJ.

 

The referring court stated that the two proceedings conducted by the Belgian Postal Regulator and the Belgian Competition Authority lead both to the imposition of administrative penalties of criminal nature. However, these penalties aimed to punish different offences: in one case, the infringement of non-discrimination in the postal sector and in the other case, the infringement of competition law. In the field of competition law, three criteria are required to verify whether the ‘idem’ condition is fulfilled, namely the same facts, the same offender and the same legal interest protected. However, the latter criterion is not applied in the case law relating to other fields of EU law. Therefore, the referring court asked the ECJ whether it had to rely on the case law on the application of ne bis in idem in the field of competition law (Toshiba (C-17/10)) or rather on the line of cases related to the Menci judgement.

 

The Opinion of Advocate General Bobek

 

The starting point for Advocate General Bobek’s Opinion is that the ECJ case-law on the ne bis in idem principle is ‘marked by fragmentation and partial incoherence’ (§3) and can ‘be described as a mosaic of parallel regimes’ (§85). In a pedagogical manner, the Advocate General paints a picture of this mosaic by discussing successively the protected legal interest in EU competition law (§43-52), ne bis in idem in the area of freedom, security and justice (§53-62), the case-law of the ECtHR (§63-74) and the developments in the Menci judgment (§75-84).

 

In his view, such a situation of fragmentation is untenable for three reasons. First, because the area of competition law cannot, per se and in the abstract, be considered different from other areas of EU law and therefore be subject to a different test (§92). Secondly, because of the unpredictability of the tests since there is no rule to determine which test applies when two of the areas of application of the ne bis in idem principle overlap in a case (§93). Thirdly, because the same provision of primary law, Art. 50 of the Charter, should not have a different content depending on the area of EU law to which it is applied (§95).

 

Should the test developed by the ECJ in Menci prevail across all EU areas? According to the Advocate General, this question requires a negative answer. In his opinion, the Menci judgment is a problematic decision in that it submits the ne bis in idem principle to the Article 52 Charter test and analyses this principle in the light of proportionality. He submits that: ‘Article 50 of the Charter is a bar. If validly triggered, it prevents the other proceedings from even starting. Such a bar must be defined ex ante and normatively’ (§107). The Advocate General thus favours a procedural version of the ne bis idem principle (which prevents ex ante the introduction of new proceedings) over a substantive version of this principle (which analyses ex post the proportionality of different sanctions under Article 52 of the Charter).

 

Then, the Advocate General argues in favour of the introduction of a threefold test for the assessment of the idem for the purposes of Article 50 of the Charter. This test would be based on a triple identity: an identity (1) of the offender, (2) of the relevant facts, and (3) of the protected legal interest (§133). What should be understood as a protected legal interest? In his view, it corresponds to ‘the societal good or social value that the given legislative framework or part thereof is intended to protect and uphold’ (§136). Insofar as the ‘bis’ condition (i.e. the existence of a prior final decision) and this triple identity of idem are met, the ne bis in idem principle would preclude the introduction of new proceedings.

In the bpost case, the Advocate General suggests that the triple identity, subject to verification by the referring court, has not been met, in particular in view of a difference in the protected legal interest. While the Belgian postal regulator fined bpost in order to avoid discrimination and ensure the transparency of the internal market for postal services, the Belgian Competition Authority sanctioned bpost’s anti-competitive practices (§160-162). The aim pursued by the two regulators was therefore different.

 

The judgment of the ECJ

 

The ECJ starts its reasoning by reminding that the ne bis in idem is a fundamental principle of EU law which is now enshrined in Article 50 of the Charter. The principle, which corresponds to that provided in Article 4 Protocol 7 ECHR, prohibits a duplication of proceedings or penalties of a criminal nature for the same acts and against the same person (§23).

 

The application of the ne bis in idem principle is subject to a twofold condition: (1) there must be a prior final decision as to the merits of the case (the ‘bis’ condition) and (2) the prior decision or the subsequent proceedings must concern the same facts (the ‘idem’ condition). The identity of material facts is the criterion to assess the existence of the same offence and is defined by the ECJ as ‘a set of concrete circumstances stemming from events which are, in essence, the same, in that they involve the same perpetrator and are inextricably linked together in time and space’ (§37). The ECJ adds that, for the purpose of establishing the existence of the same offence, the legal interest protected is not relevant, ‘in so far as the scope of the protection conferred by Article 50 cannot vary from one field of law to another’ (§34-35). Therefore, the ECJ explicitly rejects the condition of the legal interest protected which was traditionally only required in the field of competition law (Toshiba (C-17/10)). In doing so, the ECJ accepts the suggestion of Advocate General Bobek to harmonise its case law on the application of the ne bis in idem principle. The ECJ had been already invited in the past to depart from the different approach to the application of the ne bis in idem in competition law by both AG Kokott in Toshiba (§ 114-118) and AG Wahl in Powszechny (§45).

 

Subsequently, the ECJ clarifies that when the two conditions are met, the duplication of proceedings or penalties does not constitute a violation, but a limitation of the fundamental rights guaranteed by Article 50 of the Charter. On that point, the ECJ rejects the suggestion of the Advocate General to consider the ne bis in idem ‘as a bar’. Hence, a limitation to the ne bis in idem principle might be justified according to Article 52(1) of the Charter if the duplication of proceedings is aimed to protect distinct legitimate objectives and does not exceed what is appropriate and necessary in order to obtain these objectives. The ECJ affirms that ‘the the fact that two sets of proceedings are pursuing distinct objectives of general interest which it is legitimate to protect cumulatively can be taken into account, in an analysis of the proportionality of the duplication of proceedings and penalties, as a factor that would justify that duplication, provided that those proceedings are complementary and that the additional burden which that duplication represents can accordingly be justified by the two objectives pursued’ (§49). In this paragraph, as it will be stressed in the comments below, the Court heavily relies on the ECHR case-law (A and B v Norway).

 

Regarding the circumstances of the case, the ECJ recognises that the two proceedings pursue two distinct legitimate objectives which are, in one case, the liberalisation of the internal market for postal services and, in the other case, the protection of a fair competition on the market. The ECJ leaves to the national authorities to ascertain whether the duplication of proceedings was justified in the specific case. In conclusion, according to the ECJ, Article 50 Charter does not preclude the duplication of proceedings in circumstances such as those of the case, provided that a series of circumstances are respected, which is an evaluation that belongs to the referring Court.

 

Comments 

 

A salient feature of the ECJ’s judgment in the bpost case is that it brings more coherence and consistency to the ne bis in idem principle, which was marked by its high degree of fragmentation. It does so, first and foremost, by harmonising its application within EU law itself, by holding that the scope of protection of the ne bis in idem principle enshrined in Article 50 of the Charter is the same in all areas of EU law, unless otherwise provided by EU law (see also Nordzucker, §40). In doing so, the ECJ set aside the dichotomy between competition law and other areas of EU law, the former having historically been the subject of separate case law as to the application of the ne bis in idem principle (Toshiba (C-17/10) and Slovak Telekom (C-857/19)).

 

Furthermore, the ECJ further develops a common understanding of the ne bis in idem principle at a pan-European level by aligning its approach on the ECtHR case-law. That the ECJ relies on the latter case-law may not come as a surprise in the light of Article 52(3) of the Charter, according to which the Charter rights shall have the same meaning and scope as those of the corresponding rights guaranteed by the ECHR. Since Article 50 corresponds to Article 4 of Protocol No 7 to the ECHR, its meaning and scope must be similar to those established by the ECHR. The explanations to the Charter indicate that the meaning and the scope of the guaranteed rights are determined not only by the text of the ECHR and its Protocols, but also by the ECtHR case-law.

 

Yet, what is singular about the bpost case is the extent to which the ECJ draws on the latter case-law. While the ECJ had referred to the ECtHR case-law in its Menci judgment (Menci, §61), the ECJ relies on the latter case-law in a more explicit and clear manner. Notably, the ECJ embraces the concept of ‘coherent whole’ developed in the ECtHR A and B v. Norway judgment. Repeating almost identically the wording of the latter’s judgment (A and B v. Norway, §121), the ECJ considers that: ‘public authorities can legitimately choose complementary legal responses to certain conduct that is harmful to society through different procedures forming a coherent whole so as to address different aspects of the social problem involved, provided that the accumulated legal responses do not represent an excessive burden for the individual concerned’ (bpost, §49). Furthermore, in order to determine whether the duplication of procedures and sanctions pursuing distinct legitimate aims is strictly necessary, the CJEU identifies a series of factors largely inspired by the case-law of the ECtHR, namely that (1) there are clear and precise rules making it possible to predict which acts or omissions are liable to be subject to a duplication of proceedings and penalties and that there will be coordination between the different authorities; that (2) the two sets of proceedings have been conducted in a manner that is sufficiently coordinated and within a proximate timeframe; and that (3) any penalty that may have been imposed in the proceedings that were first in time was taken into account in the assessment of the second penalty burden (bpost, §51; compare with A and B v. Norway, §132-134).

 

In spite of the increasing convergence between the case-law of the ECJ and the ECHR, some differences still persist regarding the scope of the principle and the methodology adopted by the two European Courts when they apply the ne bis in idem principle.

 

First, regarding the scope, in the ECHR context the ne bis in idem applies only within the jurisdiction of one Member State, while under EU law it also applies between several Member States. In other words, at EU level, the ne bis in idem principle has developed from a domestic to a transnational level. This is also attested by the Nordzucker case, which concerns two proceedings before two national competition authorities of different Member States.

Second, the two Courts still adopt a slightly different methodological approach to achieve the same result. On the one hand the ECHR only recognises the possibility of a duplication of proceedings when the two proceedings are complementary to each other, so that they can be considered ‘as a whole’, i.e. as one single set of proceedings. In principle, no exceptions and limitations to the principle are possible. On the other hand, in bpost the ECJ explicitly confirms that a duality of proceedings is accepted and refers to the concept of ‘coherent whole’.  However, the duplication of proceedings is considered by the ECJ as a limitation of the principle of ne bis in idem which is subject to the Article 52(1) Charter test and the fulfilment of a series of conditions that are shaped on the ECHR case-law.

 

Overall, the bpost judgment can be seen as a positive development for the ne bis in idem principle in Europe. It is an important step out of the ne bis idem maze, so to speak. It contributes to greater coherence and clarity regarding this principle, which has long been difficult to grasp for EU (fundamental rights) lawyers. In doing so, this judgment also eases the work of national courts which are at the intersection of at least three fundamental rights legal systems, namely the ECHR, EU fundamental rights and national fundamental rights, and whose role should be facilitated by the ECJ and the ECtHR in view of the increasing complexity of human rights in Europe.

 

 

Who has jurisdiction over Facebook Ireland? The CJEU rules on the GDPR 'one stop shop'

 

 

Lorna Woods, Professor of Internet Law, University of Essex

 

Introduction

 

This recent CJEU judgment concerns the one stop shop in the GDPR and the way that very large corporations that have operations in most if not all Member States are regulated.  Facebook has its European headquarters in Ireland so that the Irish Data Protection Commissioner (DPC) is ‘lead authority’ – that is, the DPC has primary responsibility for regulating Facebook under the GDPR.  There have been some concerns about how this one stop shop has been working, especially since some of the larger companies have tended to establish themselves in the same, small Member State. The one stop shop mechanism relies on trust between the Member States, but different Member States have varying degrees of enthusiasm for the enforcement of data protection and also have different levels of money to throw at the issue. As is the case with other one-stop shop mechanisms in other legislation, there are exceptions or ways for other affected regulators to be involved. This case is about the space left to those other regulators.

 

Facts

 

In 2015 the Belgian Privacy Commissioner (subsequently the Data Protection Authority) sought an injunction in the Belgian courts against Facebook Belgium with the objective of ending alleged infringements of data protection laws by Facebook through the collection and use of information on the browsing behaviour of Belgian internet users, whether or not  they  were  Facebook  account  holders,  by  means  of  various  technologies,  such  as  cookies, plug-ins (like or share buttons) or pixels. The matter ended up in the Hof van beroep te Brussel (an appeal court) which was uncertain as to the effect of the one stop shop in the GDPR on the competence to the Belgian Data Protection Authority to bring action against Facebook Belgium. So while Article 55(1) GDPR establishes the principle that each national regulatory authority is competent to carry out its role as regards its own national territory, Article 56(1) states:

 

the supervisory authority of the main establishment or of the single establishment of the controller or processor shall be competent to act as lead supervisory authority for the cross-border processing carried out by that controller or processor.

 

Judgment

 

The central question concerned the circumstances in which, given the one stop shop established by Article 56(1) GDPR, a supervisory authority could take action in relation to specific instances of processing. In this, the Court emphasised two underpinning considerations: that the high level of data protection applied across the EU; and that the one stop shop depended on the process for cooperation laid down in Article 60.

 

While Article 60 envisages that it is the responsibility of the lead authority to adopt decisions in relation to cross-border processing, and that position is the general rule, there are exceptions found in Articles 56(2) (matter only affecting its own territory) and Article 66 (urgency procedure). The Court noted, however, that the exercise of these provisions “must be compatible with the need for sincere and effective cooperation with the lead supervisory authority” as set [para 60] – but this obligation applies also to the lead authority - so that it cannot eschew dialogue with those other authorities [para 63]. Specifically, any  relevant  and  reasoned  objection  made  by  one  of  the  other  supervisory  authorities has the effect of blocking, at least temporarily, the adoption of the draft decision of the lead supervisory authority.

 

In terms of the protection of fundamental rights, the Court noted this allocation of responsibilities is compatible with the Charter. It noted that:

 

the use of the ‘one-stop shop’ mechanism cannot under any circumstances have the consequence that a national supervisory authority, in particular the lead supervisory authority, does not assume the responsibility incumbent on it under Regulation 2016/679 to contribute to providing effective protection of natural persons from infringements of their fundamental rights as recalled in the preceding paragraph of the present judgment, as otherwise that consequence might encourage the practice of forum shopping, particularly by data controllers, designed to circumvent those fundamental rights and the practical application of the provisions of that regulation that give effect to those rights [para 68].

 

The Court noted that legal action by a regulatory authority could not be completely excluded- for example when the lead supervisory authority has not responded to a request for information (see Article 61(8) GDPR), where there is an urgent need for the adoption of final measures (Article 66(2) GDPR), or where the matter is referred for consideration by the European Data Protection Board (EDPB) (Article 64(2) GDPR). In this instance, the Belgian DPA asked the DPC to respond to its request for mutual assistance as expeditiously as possible, but no response was given.

 

The Court also addressed the question of whether the data controller must have a ‘main establishment’ in the territory of that other regulator, concluding that there was no such prerequisite [para 84]. A third question asked whether the non-lead supervisory would be limited as to which body to sue – that is, whether it can take action against the main establishment of the controller or against the establishment that is located in its own Member State. In the national proceedings in this case, the litigation was brought against Facebook Belgium although the headquarters of the Facebook group is situated in Ireland and Facebook Ireland is the sole controller with respect to the collection and processing of personal data throughout the European Union. Facebook Belgium was set up to sell advertising in Belgium but also to lobby the EU institutions. The Court determined that the non-lead regulatory authority may take action with respect to the main establishment of the controller located in that authority’s own Member State but also with respect to another establishment of that controller, provided that the object of the legal proceedings is data processing  carried out in the context of the activities of that establishment and that that authority is competent to exercise that power [para 96].

 

A fourth question addressed the impact of the change in regime from the Data Protection Directive (which did not have a one stop shop) and the GDPR. The Court distinguished between actions brought before the date the GDPR became applicable and actions after that date. As regards the first situation, such legal action may be continued (on the basis of the Directive); for other actions the GDPR rules apply – and this allows such a regulatory authority to take action where one of the exceptions applies.

 

The Court held that Article 58(5) GDPR (on the power of data protection authorities to bring legal proceedings) has direct effect, so that the relevant authorities may rely on the provision even when it has not been specifically implemented in the national legal system.

 

Comment

 

This seems to be a balanced judgment in which the Court aims to reconcile competing pressures.  It has re-emphasised the one stop shop, but is aware of the unevenness of resources and alive to the risk of forum shopping against that background.  One of the key elements of this judgment is the Court’s emphasis on the obligation to cooperate, which applies to lead authority and other authorities alike. Nonetheless, while the lead regulator must be given the chance to act, lead regulators cannot choose to ignore the importunate demands of other national regulators – whether for lack of resources, or other reasons (eg a different assessment as to what’s important).  The significance of this comes down to the concerns about the effectiveness of the DPC (especially bearing in mind the size of the companies under the DPC’s jurisdiction).  Against this background, the judgment will probably be welcomed by privacy advocates. Whether it is equally good from the perspective of data controllers, at least those based in Ireland, seems far less likely. What is potentially problematic from the perspective of the data controller is the greater unpredictability of the data protection regime. This may be less about fragmenting standards (especially if the decision is referred to the EDPB) but about where enforcement actions may start; this agenda may not rest entirely in the hands of the lead authority.

 

Photo credit: Niamfrifruli, via Wikimedia Commons

Family reunion,the rights of the child and effective remedies: latest CJEU judgment

Professor Steve Peers, University of Essex

For parents of teenagers, it’s always later than you think, and time is forever slipping through your fingers. But imagine what it’s like for parents who can never live with their children, due to the arbitrary viciousness of immigration law. A first step unseen. A first word unheard. A school play unwitnessed. And even if the immigrant parent moves heaven and earth to comply with the conditions for family reunion in immigration law, it’s possible that just as the children might be able to join their parents, time runs out for their application because they come of age – leaving only the unbearable emptiness of a nest that was never full.

Family reunion for non-EU families in the EU is governed by the EU’s family reunion Directive, which provides for admission of children who are not at the age of majority. But what if an application is made before the child reaches that age, but is decided later?

Two years back, the Court of Justice decided such a case as regards an unaccompanied minor with refugee status, who turned 18 just after applying for asylum: the A and S judgment, discussed here. The Court ruled that as long as an asylum seeker applied for asylum before turning 18, the special rules in the Directive which provide for obligations to admit the parents of unaccompanied minor refugees still apply (assuming, of course, that refugee status was granted). However, that left open the question of what approach to take to other family reunion applications, where there is no such special rule, and in any event the date of an application for asylum would be irrelevant. (While the Directive does apply to refugee parents, it doesn’t logically follow from A and S that the date of their application for asylum should be decisive).

The recent judgment in BMM has addressed this issue – taking a humane approach to the issue of what happens when a child comes of age during the application process.

The basic EU rules on family reunion

The EU’s family reunion Directive sets minimum standards, so states can be more generous if they wish. It mainly concerns reunion of spouses and minor children with a non-EU sponsor; admission of further family members is optional in most cases. It does not apply to the UK, Ireland and Denmark. However, it will apply to family reunion of UK citizens in the EU (besides those living in Ireland and Denmark) after the post-Brexit transition period, when the UK is no longer covered by EU free movement law, unless (a) they are covered by the withdrawal agreement, if the sponsor moved before the end of the transition period (see discussion here), or (b) EU free movement law still applies, because the UK citizen is a family member of an EU citizen who has moved between Member States; or (c) national law only applies, because the UK citizen is a family member of an EU citizen who has not moved between Member States (a French citizen in France, for instance).

The standard rules in the Directive require that: the sponsor has a residence permit valid for at least one year, and has “reasonable prospects” of obtaining permanent residence; the family members must reside outside the territory when the application is made (although Member States can derogate from that rule); “public policy, public security or public health” are grounds for rejection; conditions relating to accommodation, sickness insurance and “stable and regular resources” may be imposed; Member States may require “integration measures”; and there can be a waiting period of two years of lawful stay of the sponsor before family reunion takes place.

There are also exclusions from the scope of the Directive. It does not apply at all to: asylum seekers; persons with temporary protection; persons with subsidiary protection on the basis of national or international law; and, as noted above, family members of EU citizens (whether they have moved within the EU or not). Implicitly it does not apply to irregular migrants, since by definition they do not have a residence permit with the prospect of long-term residence, until and unless Member States decide to regularise their status.  Member States can choose to extend the Directive to those categories of persons (except those covered by free movement law) if they wish. 

Member States can set lower standards than the Directive, where it allows for such derogations, although this is subject to detailed conditions. These derogations exist as regards: children over 12, who arrive separately from the rest of the family; minimum ages for the sponsor or spouse; children over 15; and a waiting period of three years.

The Court of Justice has ruled on the Directive several other times, as regards: its validity in light of human rights concerns (EP v Council); its application to dual EU/non-EU citizens (O and S); the sufficient resources condition (Chakroun and Khachab); the minimum age of spouses (Noorzia, discussed here); integration conditions (K and A, discussed here, and K); the application of the Directive by analogy to family reunion with “home State” EU citizens (C and A) and persons with subsidiary protection (K and B, discussed here); loss of a residence permit due to fraud which the family member was unaware of (YZ and others); documentation in refugee cases (E); the public policy exception (GS and VG); the definition of dependent family members of refugees (TB); and the consequences of a late decision by the administration (X).

As well as the special rules for refugee family reunion set out in the original Directive, subsequent EU legislation contains more favourable rules for the family reunion of other groups of non-EU citizens: holders of an EU Blue Card for highly-skilled workers (discussed here); intra-corporate transferees (discussed here); and researchers (discussed here). The proposal to amend the Blue Card law (discussed here) would enhance these rules further.

The judgment

The sponsor in the MBB case is a citizen of Guinea with refugee status – although the case concerns the general rules in the Directive, rather than the special rules on applications by refugees. Applications for family reunion with the sponsor’s three children were rejected, and the sponsor challenged those rejections in court. The first instance court refused to consider the legal challenges, on the grounds that the children were now grown up. On appeal, the appellate court decided to ask the CJEU questions about the interpretation of EU law in the circumstances, given the differences between the position of unaccompanied minor refugees in the AS case and the general rules in the Directive.

According to the CJEU, while the Directive left it to Member States to determine the age of majority as regards the general rules on applications (it’s set at 18 where the applicant is an unaccompanied minor refugee), it does not refer to national law as regards when to determine when that condition is satisfied. Member States should not have any discretion on the latter point, because EU law should have a uniform interpretation when it does not refer to national law, taking account of the context and objective of the legislation. The objective of this law is ‘to promote family reunification’, and it respects fundamental rights, including the right to family life and the rights of the child (to maintain a relationship with parents) in the EU Charter of Rights. So the Directive ‘must be interpreted and applied in the light of’ the Charter, including the best interests of the child.

If applications ‘timed out’ once a child became an adult, national authorities and courts might be tempted to run down the clock, ‘and could thus act in a way which would jeopardise the very rights of those minors to family reunification’, following the A and S judgment. Indeed, in this case, it took three years and nine months for the first instance court to rule; and ‘such processing times do not appear to be exceptional in Belgium’: the Belgian Government admitted that the average court waiting time is three years, and this case ‘had not been regarded as a priority by that court’ despite the ages of the children concerned. So using the date of the administrative decision would not be in accordance with the best interests of the child. Nor would applicants be treated equally, since the success of their application would be determined by how fast the administration or court decided the application.

Next, the Court ruled on a remedies point. Did the right to bring a legal challenge to a rejection, interpreted in light of the right to an effective remedy in the Charter, mean that a national court cannot simply dismiss a claim as inadmissible purely because a child ‘has reached majority in the course of the court proceedings’?

The Court ruled this out. In its view, the child still had an interest in proceedings, since the application had to take account of the age of the child at the time when the application was made. While there was no time limit for the court to give its ruling, and Member States have ‘some discretion’ as regards rules on legal challenges to rejections of an application for family reunion, Member States are still required to comply with the Charter right to an effective remedy before a tribunal. This meant that legal challenges must be ‘effective and real’. Therefore they ‘cannot be dismissed as inadmissible solely on the ground that the child concerned has reached majority in the course of the court proceedings’.

Comments

Both the substantive and procedural elements of the Court’s judgment give strong protection to family life. Its unqualified ruling that the age of the child when the application is made is decisive will guarantee that parents of teenagers cannot lose the right to family reunion purely because of national administrative or judicial tardiness. This compensates somewhat for the Court’s own decision in X, which failed to provide for an effective remedy (the automatic grant of a residence permit) in the event of a late decision on a family reunion application by the administration.

On that point, the Court’s insistence on effective remedies in the context of this Directive is relevant above and beyond the issue of timing out applications by children. The confirmation that the Charter applies to effective remedies in the context of family reunion is not surprising in light of other recent judgments (on asylum law and on visa applications, for instance), but it is always useful to put to rest any doubt on the issue. This principle has general application – so, for instance, strict time limits, or limitations on the scope of judicial review or the remedies which courts can order, could be challenged as a violation of the Charter, in any family reunion case within the scope of the Directive, not just those involving children. Again, the Court has reaffirmed its interpretation of EU law based on a rights-based reasoning, rather than the control-based approach taken by many Member States and the EU institutions during the supposed “migration crisis”.

More broadly, the Court’s reaffirmation of the importance of the rights of the child when interpreting the legislation could be relevant to interpreting other aspects of the family reunion law, as well as many other EU immigration and asylum laws: for instance, the returns Directive, the asylum procedures Directive, the reception conditions Directive, and the Dublin rules on responsibility for asylum seekers. (Note that conversely, EU criminal law legislation on child suspects’ rights – discussed here – does explicitly address this issue, setting out rules on this point similar to the Court’s family reunion judgments in its Article 2(3)).

Barnard & Peers: chapter 26

JHA law: chapter I:5, I:6

Photo credit: Ackah law