A Tale of Two Organs: Hate Speech Regulation in the European Context

Clotilde Pégorier, Lecturer in Law, University of Essex

The issue of hate speech regulation has again moved in recent years to the forefront of legal and political debate in Europe. To note that questions in this area are complex, and often generate diverging opinions as to the appropriate balance between legislation and the protection of rights, is no novelty. What is striking, however, is the marked difference in the tendencies of those “natural born twins” (Gabriel Toggenburg), the EU and the Council of Europe, in their respective approaches to hate speech. How might this be explained? And what, crucially, might be the wider legislative implications at European level?

The EU and the Fight Against Online Hate Speech

First, let us consider the EU’s efforts in this context, which might here be exemplified in relation to the battle against online hate speech. In response to the problem and threat of terrorism and radicalisation, and prompted in particular by the attack in Brussels on 22 March 2016, the EU decided to intensify its work on fighting hate speech – a campaign upon which they had embarked some eight years earlier with the adoption of the Council Framework Decision 2008/913/JHA on combating certain forms and expressions of racism and xenophobia by means of criminal law. As part of its security agenda for the period 2015-2020, the Commission presented, on 14 June 2016, a communication outlining action in seven specific areas where cooperation at EU level could effectively support Member States in preventing and countering radicalisation. Alert to the ever greater role played by the internet in the dissemination of views and ideologies, the European Commission took the step of consulting IT companies with the intention of creating legislation designed to inhibit the online spread of illegal content inciting violence.

In pursuing such an initiative, the Commission was, in fact, expanding upon longer-standing awareness of the importance of preventing the spread of hate speech via media forms. As Advocate General Yves Bot concluded in his Opinion from 5 May 2011 with respect to the cases C-244/10 and C-245/10:

Member states are to ensure that television broadcasts do not contain any incitement to hatred on grounds of race, sex, religion or nationality, must be interpreted as also prohibiting broadcasts which, in attempting to justify a group classify as a ‘terrorist’ organisation by the European Union, may create reactions of animosity or rejection between communities of different ethnic or cultural origin (para 93).

In May 2016, the European Commission had, moreover, already signed an online Code of Conduct on countering illegal hate speech online with four of the biggest internet companies – namely, Twitter, Facebook, YouTube and Microsoft. The code is not legally binding yet would appear to indicate a willingness on the part of the named IT companies to support the EU’s drive to prevent online hate – a willingness that owes in some measure, no doubt, to the protections supplied by Articles 12 to 14 of the e-Commerce Directive of 8 June 2000, commonly known as the ‘safe harbour’ provisions. According to Article 12, the provider of a service cannot be held liable for any information it transmits – including hate speech – as long as it: (a) does not initiate the transmission; (b) does not select the receiver of the transmission; and (c) does not select or modify the information contained in the transmission. Article 14 limits the liability of providers of “information society services” still further when such services consist only of the “storage of information” provided by a recipient of the services. This provision only applies where the provider does not control or have knowledge of the illegal activity or information; or having gained knowledge or awareness of such illegal activity expeditiously removes or disables the links to the activity.

However we speculate on the primary motives of the IT companies, of prime significance is that they are assisting the EU in its fight against online hate speech. The Code encourages social media companies to take quick action as soon as a valid notification of online hate speech has been received, e.g. by removing or disabling access. It also underlines that, in order to combat the spread of illegal hate speech, “it is essential to ensure that relevant national laws transposing the Council Framework Decision 2008/913/JHA are fully enforced by Member States in the online as well as the in the offline environment.” With the adoption of the Council Framework Decision, the EU considered that Member states were permitted to enact criminal sanctions against anyone:

publicly condoning, denying or grossly trivialising crimes of genocide, crimes against humanity and war crimes as defined in Articles 6, 7 and 8 of the Statute of the International Criminal Court, directed against a group of persons or a member of such a group defined by reference to race, colour, religion, descent or national or ethnic origin when the conduct is carried out in a manner likely to incite to violence or hatred against such a group or a member of such a group.

Reading such provisions takes us to the heart of one of the key dilemmas at the core of current debates on hate speech – namely, the definition and understanding of the concept itself. A brief excursus on this point seems warranted here. For the question of definition remains somewhat thorny – hate speech is a term that is, at once, both over- and underdetermined. As Anne Weber puts it in her Manual on Hate Speech for the Council of Europe in 2009:

No universally accepted definition of the term “hate speech” exists, despite its frequent usage. Though most States have adopted legislation banning expressions amounting to “hate speech”, definitions differ slightly when determining what is being banned.

This is undeniably true. Yet there are international and national sources that provide useful guidance. The Council of Europe’s Committee of Ministers’ Recommendation 97(20) on “Hate Speech” defined it as follows:

[T]he term “hate speech” shall be understood as covering all forms of expression which spread, incite, promote or justify racial hatred, xenophobia, anti-Semitism or other forms of hatred based on intolerance, including: intolerance expressed by aggressive nationalism and ethnocentrism, discrimination and hostility against minorities, migrants and people of immigrant origin.

Also relevant here are the provisions of Art. 20, para. 2 of the International Covenant on Civil and Political Rights (ICPPR) of 1966, which stipulate that “any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law.” An authoritative interpretation of Art. 20, para. 2 is supplied by General Comment No. 34 by the Human Rights Committee, which reads:

What distinguishes the acts addressed in article 20 from other acts that may also be subject to limitations, is that for the acts addressed in article 20, the Covenant indicates the specific response required from the State: their prohibition by law. It is only to this extent that article 20 may be considered as lex specialis with regard to article 19 [which establishes other limitations on freedom of expression]. The acts referred to in article 20, paragraph 2, must cumulatively (a) advocate, (b) be for purposes of national, racial or religious hatred, and, (c) constitute incitement to discrimination, hostility or violence. By “advocacy” is meant public forms of expression that are intended to elicit action or response. By “hatred” is meant intense emotions of opprobrium, enmity and detestation towards a target group. “Incitement” refers to the need for the advocacy to be likely to trigger imminent acts of discrimination, hostility or violence. It would be sufficient that the incitement relate to any one of the three outcomes: discrimination, hostility or violence (para. 51).

This interpretation provides perhaps the fullest, and most useful, elucidation of hate speech – one that does most to capture its particular power to harm. Read in conjunction with modern understandings of the potential of online media to contribute to the dissemination of political views, and to generate and spread ‘hatred’, it casts particularly sharp light, moreover, on how, by enlisting the support of IT companies, the EU is taking a progressive – and legitimate – stand in trying to confront modern hate speech in one of its most threatening forms. 

The Council of Europe: The Protection of Freedom of Expression Over the Fight against (Online) Hate Speech?

The situation is somewhat different, however, in the case of the other main European organ, the Council of Europe, which appears to be taking a much more cautious approach. A latest manifestation of this has been in the Perinçek case, for instance, where the European Court of Human Rights (ECtHR) decided, on 15 October 2015, that Switzerland’s criminalisation of Doğu Perinçek for genocide denial constituted a violation of Article 10 of the European Convention on Human Rights (ECHR). The Court finding here was that the restriction on freedom of expression imposed by the Swiss authorities was not proportionate.

This is but the latest sign of a divergence in the attitudes and response from two European organs to the issue of hate speech, reflecting a breach within Europe with regards to the status of hate speech in relation to freedom of expression, the latter itself a fundamental notion of both the ECHR and the Charter of Fundamental Rights of the European Union (Article 11).

The prevention and prohibition of online hate speech has been on the agenda of the Council of Europe since at least 2001, when the Convention on Cybercrime was adopted. In 2003, an Additional Protocol concerning the criminalisation of acts of a racist and xenophobic nature committed through computer systems was adopted. According to this Additional Protocol:

1. Each Party shall adopt such legislative measures as may be necessary to establish the following conduct as criminal offences under its domestic law, when committed intentionally and without right: distributing or otherwise making available, through a computer system to the public, material which denies, grossly minimises, approves or justifies acts constituting genocide or crimes against humanity, as defined by international law and recognised as such by final and binding decisions of the International Military Tribunal, established by the London Agreement of 8 August 1945, or of any other international court established by relevant international instruments and whose jurisdiction is recognised by that Party. […]

In June 2016, however, at the same time that the EU Code of Conduct was adopted, the Council of Europe Secretary General, concerned about internet censorship, decided that rules for blocking and removing illegal content must be transparent and proportionate. This opinion came after his report on the state of democracy, human rights and the rule of law, based on a study conducted by the Swiss Institute of Comparative Law and identifying a number of shortcomings in some states,  became public.

In the report, the Secretary General clearly stated that:

In the majority of member states, the legal framework on blocking, filtering and removal of Internet content meets the requirements of being prescribed by law, pursuing legitimate aims and being necessary in a democratic society, in accordance with Article 10 of the Convention. Exceptions remain however, notably with regard to laws regulating hate speech and counter-terrorism (p. 33).

In view of this, one can understand why the Grand Chamber of ECtHR decided in the Perinçek case that the Swiss criminal provision was disproportionate and did not fulfil the criteria of being necessary in a democratic society. Yet Art. 261bis of the Swiss penal code provides that ‘any person who publicly denigrates or discriminates against another or a group of persons on the grounds of their race, ethnic origin or religion in a manner that violates human dignity, whether verbally, in writing or pictorially, by using gestures, through acts of aggression or by other means, or any person who on any of these grounds denies, trivialises or seeks justification for genocide or other crimes against humanity, […] is liable to a custodial sentence not exceeding three years or to a monetary penalty’. It is difficult to see how a criminal law could be much more transparent or clearer here. The decision to uphold Perinçek’s claim to a violation of Art. 10 ECHR certainly delivered a blow to the fight against hate speech at the EU level – as was duly noted by judges Spielmann (president of the Grand Chamber), Casadevall, Berro, De Gaetano, Sicilianos, Silvis and Kūris, in their joint dissenting opinion:

With regard to the finding that there was no obligation on Switzerland to criminalise the applicant’s statements (see paragraphs 258-68), we confess to having serious doubts as to the relevance of the reasoning. Can it not be maintained, on the contrary, that a (regional) custom is gradually emerging through the practice of States, the European Union (Framework Decision 2008/913/JHA) or ECRI (Policy Recommendation no. 7)? We would also note that beyond Europe, the United Nations Committee on the Elimination of Racial Discrimination has repeatedly recommended criminalising negationist discourse. Can all these developments be disregarded at a stroke by examining the case in terms of an alleged conflict of obligations? (para 10)

It thus seems that the Council of Europe is taking a retrogressive step in the fight against hate speech – both offline and online – as the laws in place regulating hate speech do not appear to be in line with the ECHR. The approach of the Council also lies in opposition to that being taken by the EU, rendering the position of EU members difficult: should they criminalise online hate speech, or should they rather grant greater weight to Art. 10 ECHR? Indeed, what if Switzerland was an EU member? By criminalising genocide denial as a form of hate speech liable to incite violence, as it initially did in the Perinçek case, Switzerland complied with the Framework Council decision. In so doing, however, it contravened Art. 10 of the ECHR and was thus found guilty of a violation by the ECtHR.

Conclusion

The question of how to square the protection of freedom of expression with the imposition of criminal sanctions for hate speech is, doubtless, one which is difficult. Yet wherever one draws the line between acceptable and unacceptable limits on freedom of expression, it seems apparent that, at the European level, the EU and the Council of Europe should be working together much more coherently in attempting to confront the issue of online (and offline) hate speech.  

To this end, the Council of Europe should liaise more closely with the EU – not least as the Secretary General, in his 2016 report, commented that:

-In addition to calling on member states to implement in full the recommendations in this report, I urge them to make clear their commitment to the European Convention on Human Rights and the Strasbourg Court. Our Convention system can never be taken for granted: it depends on the active and constructive engagement of all governments. By embedding these fundamental freedoms into the legal, political and social fabric of their nations, Europe’s leaders can build democracies which are more open and inclusive and, as a result, more secure (p.5)

In order to facilitate a more consistent approach across Europe, it seems clear that the European Court of Human Rights itself has to be prepared to allow for greater restrictions to be placed on freedom of expression, precisely as noted by the judges in their dissenting opinion in the Perinçek case. As long as the Strasbourg Court continues to permit freedom of expression to be used as a catch-all defence, it will remain extremely difficult to combat online hate speech and to develop a common European standard. Two measures thus seem necessary. Firstly, a common understanding of what hate speech is and entails should be striven for – the interpretation supplied by General Comment No. 34 by the Human Rights Committee provides useful initial orientation, not least in the manner that it explicates key notions of ‘incitement’ and ‘hatred’, and in the way that it outlines the possible effects of hate speech beyond physical violence. Secondly, there needs to be common agreement on the way in which such forms threaten democratic values – how they violate ‘the respect of the rights or reputations of others’ and may imperil ‘national security’, ‘public order’, or ‘public health or morals’, and thus constitute a legitimate restriction on freedom of expression provisions.

Barnard & Peers: chapter 9

JHA4: chapter II:6

Photo credit: European Centre for Press and Media Freedom

Detention of asylum-seekers: the first CJEU judgment

Steve Peers

One of the most controversial aspects of immigration and asylum law is the detention of migrants: people who have broken no criminal law (other than, possibly a criminal law about migration control) but who are detained during their asylum application, or pending their removal from the country. The EU has had rules on detention of irregular migrants for some time, in the Returns Directive (on the CJEU’s interpretation of those rules, see my journal article here).  But it has only recently had rules on the detention of asylum-seekers, in the second-phase Directive on the reception conditions for asylum-seekers. (The UK and Ireland have opted out of both Directives).

Recently, in the JN judgment, the CJEU ruled for the first time on the interpretation of these new rules. In fact, this was the Court’s very first judgment on any aspect of the second-phase legislation, although it soon gave another judgment (on the rights of people with subsidiary protection, discussed here), and other cases are pending. The Court’s ruling addresses a number of key questions of interpretation of the detention rules, but left a number of issues open.

In general, the Court has limited the prospect of detaining asylum-seekers on grounds of ‘national security or public order’, and its ruling implicitly somewhat constrains the possibilities of detaining asylum-seekers on other grounds too. But in parallel to that, the judgment strengthens the rules in the Returns Directive on the detention and expulsion of irregular migrants. And the Court’s ruling is surprisingly open to the application of human rights ‘soft law’ as a means of interpreting EU law. Overall, while not mentioning the current ‘refugee crisis’, the judgment is an implied rebuff to those who would like to resort to extensive detention of asylum-seekers as a means to address that crisis.

Background

The first phase reception conditions Directive (adopted in 2003, applicable from 2005) said little about detention of asylum-seekers. While the subsequent Returns Directive did regulate detention of irregular migrants, the CJEU made clear in Kadzoev and Arslan that those rules did not apply to asylum-seekers, because EU asylum legislation gives asylum-seekers the right to stay on the territory until a decision is made at first instance on their application, whereas the Returns Directive says that irregular migrants should be booted out as soon as possible. In Arslan, the Court clarified the relationship between the two sets of rules: an irregular migrant detained under the Returns Directive could not simply escape from detention by applying for asylum. Essentially the JN judgment returns to the same issue, and asks the Court to reconsider its position in light of the more detailed rules on detaining asylum-seekers which now apply.

So what are those rules? In the second-phase reception conditions Directive, the previous ban on detaining people solely because they have applied for asylum is retained. The Directive then provides generally for detention of asylum-seekers if ‘necessary’ after ‘an individual assessment of each case…if other less coercive alternative measures cannot be applied effectively’. Detention is permitted ‘only’ on six grounds: (a) ‘in order to determine or verify [an asylum-seeker’s] identity or nationality’; (b) to ‘determine the elements on which’ the application is based ‘which could not be obtained in the absence of detention, in particular where there is a risk of absconding’; (c) in order to decide on entry onto the territory; (d) when the asylum-seeker is detained pursuant to a planned expulsion under the Returns Directive, and there are objective grounds to show that he or she applied for asylum only to ‘delay or frustrate’ expulsion, despite having had an opportunity to access the asylum procedure; (e) ‘when protection of national security or public order so requires’; or (f) in accordance with the Dublin III Regulation on allocation of asylum-seekers between Member States, which provides for detention if there is a ‘significant risk of absconding’ before a Dublin transfer is carried out.

The grounds for detention must be ‘laid down in national law’, which must also lay down rules on alternatives to detention. There are detailed rules on procedural guarantees as regards detention, and on the conditions of detention. Those procedural guarantees and detention condition rules also apply to Dublin cases, and the Dublin Regulation moreover sets out precise rules on the length of detention. The CJEU has been asked to interpret the ground for detention in the Dublin III Regulation, in the pending Al Chodor case.

The judgment

Mr JN had made three prior applications for asylum. They were all unsuccessful, but nevertheless he was not removed from Dutch territory. Over a period of 20 years, he accrued more than twenty convictions for criminal offences. The case did not concern detention for those criminal convictions, as such detention falls outside the scope of the Directive (unless, arguably, the criminal conviction is related to immigration offences: more on that point below). Rather it concerned detention on grounds of ‘public order and national security’, which the Dutch government imposed in light of his criminal offences – but not as a penalty for them.

Obviously such detention is compatible in principle with the Directive, which expressly provides for detention on such grounds. So Mr. JN instead argued that the relevant provision in the Directive itself was invalid. It should be noted that another pending case asks the CJEU whether two other grounds for detention in the Directive are invalid: verification of identity or nationality, and determining the elements on which the application is based.

The Court began its analysis by reiterating its prior case law that the European Convention on Human Rights (ECHR), which includes rules on detention, does not bind the EU as such. Instead, it assessed the validity of the clause in the Directive in light of the EU Charter of Fundamental Rights – although this did entail some assessment of the validity of that clause in light of the ECHR as referred to in the Charter, as discussed below.

According to the Court, detention undoubtedly affects the liberty of the individual, as guaranteed by Article 6 of the Charter. So the question is whether this particular ground for detention was justified, in light of the general test for limiting Charter rights set out in Article 52(1) of the Charter. This test requires that limitations on Charter rights must: (a) be prescribed by law; (b) not infringe the essence of the right; (c) be aimed at protecting an objective of general interest, or the rights and freedoms of others; and (d) be proportionate – meaning that they are appropriate and necessary to achieve their objective.

Applying these tests, the Court first found that the possibility of detention on grounds of public policy or national security was prescribed by law, since it was set out in the Directive. It did not infringe the essence of the right to liberty, since it was based on individual conduct and applied in ‘exceptional circumstances’, circumscribed by the various general limits and guarantees relating to detention set out in the Directive. Detention on grounds of public order and national security meets a public interest, and moreover protects the right to ‘security’ of others.

The Court’s most detailed reasoning therefore concerned proportionality. Detention on public order or national security grounds was inherently ‘appropriate’ to the objective of ensuring public protection. It was ‘necessary’ for a number of reasons, which the Court elaborated in some detail. All restrictions on liberty have to be ‘strictly necessary’ and this particular ground to detain was ‘strictly circumscribed’ by the overall legal framework: detention on such grounds had to be ‘require[d]’; detention must be provided for in national law; the general limits and safeguards on detention in the Directive apply; the exception is limited by international human rights ‘soft law’; and the concepts of ‘public policy’ and ‘national security’ had to be narrowly interpreted.

The Court explored the latter two points further. As regards international human rights ‘soft law’, it noted that in the Commission’s original proposal for the Directive, it referred to a Council of Europe Recommendation on detention of asylum-seekers, as well as UNHCR guidelines on detention. It then applied some of the text of the latter guidelines: in particular detention of asylum-seekers must occur ‘only exceptionally’ in an ‘individual case’ as a ‘last resort’, where ‘necessary, reasonable and proportionate to a legitimate purpose’.

As for the detention grounds of ‘public policy’ and ‘national security’, the Court applied last year’s judgments in T and Zh and O (discussed here and here), in which it had ruled that ‘public policy’ exceptions in other EU immigration and asylum legislation had to be narrowly interpreted, consistently with the narrow definition of that exception in EU free movement law. In JN it said the same for the national security exception as regards detaining asylum-seekers, and furthermore as regards the grounds for entry bans longer than five years, as set out in the Returns Directive. So the exceptions apply only where there is a genuine criminal or security threat, not where there the authorities simply deem it expedient to detain people.

Next, the Court applied its interpretation of the Directive to the facts of this case. He was detained due to his prior offences and pending expulsion order, which was attached to a ten-year entry ban. Since entry bans for longer than five years can only be issued on grounds of a ‘serious threat to public policy…public security or national security’ it followed that detention could be ordered in the same circumstances – as long as proportionality was ‘strictly observed’ and those reasons are still valid.

The Court also made clear that the pending expulsion order could not lapse during consideration of JN’s asylum application. The national case law which provided for it to lapse had to be disapplied by the national court, in order to ensure the effectiveness of the Returns Directive (ie the expulsion of irregular migrants). So Mr JN was a sort of ‘Schrodinger’s migrant’: allowed to stay on the territory while his asylum application was considered (and so subject to the detention rules in the reception conditions Directive); but also simultaneously subject to an expulsion order under the Returns Directive, which was only temporarily suspended – and which continued to justify (in part) his detention under the formally distinct set of asylum rules.

Finally, the Court concluded by looking at the position under the ECHR, in the context of the Charter. The former was relevant to the latter because Article 52(3) of the Charter says that the ‘meaning and scope’ of Charter rights which ‘correspond’ to ECHR rights is the same as those ECHR rights.  However, the Court easily dismissed the ECHR argument by pointing out that in the recent judgment of the European Court of Human Rights (ECtHR) in Nabil v Hungary, an asylum seeker could still be detained pursuant to Article 5(1)(f) of the Convention (which allows detention ‘where action is being taken with a view to deportation’) because rejection of an asylum application would entail enforcement of an expulsion order. But the Court did refer to the safeguards in other ECtHR case law: there can be ‘no element of bad faith or deception by the authorities’, and detention must be proportionate.

Comments

As the CJEU’s first proper judgment on detention of asylum-seekers, the JN ruling may become seminal. That’s not because of the facts of this particular case: with three failed asylum applications and over twenty criminal convictions to his name, the grounds to detain Mr JN are stronger than they are for many other asylum-seekers. But much of what the Court said in its judgment has potentially wider impact.

I will analyse that possible impact from five angles: (a) the ‘public policy and national security’ ground of detention; (b) the application of other grounds for detention; (c) the Court’s use of ‘soft’ human rights law; (d) the interpretation of the Returns Directive; and (e) the role of law in the development of the EU’s asylum regime more generally.

The ‘public policy and national security’ ground of detention

The Court made clear that the public policy and national security grounds for detention must be narrowly interpreted, and interpreted consistently with EU free movement law. Mr JN’s detention was justified because of his prior criminal offences in conjunction with the underlying expulsion order. But are these tests cumulative or alternative? And are they exhaustive?

The Court does not address these questions. However, the requirement to interpret these grounds consistently with EU free movement law suggests that the two tests are exhaustive. Arguably criminal offences alone could justify detention, in light of the nature of this ground for detention. But the principle of proportionality must mean that detention would be harder to justify in the absence of an expulsion decision, and that the seriousness and number of the offences are also highly relevant. (Remember that detention under the Directive is distinct from detention ordered as a result of a criminal conviction, or pre-trial detention linked to the criminal proceedings).

Conversely, it seems unlikely that an expulsion decision alone could justify detention on this ground. If that were permitted, it would be too easy for Member States to justify the detention of almost all asylum-seekers, by issuing irregular migrants with expulsion orders as soon as they are apprehended, before they can apply for asylum. This would undercut the Court’s emphasis on the exceptional nature of detention of asylum-seekers. Furthermore, the Directive has a lex specialis on detaining asylum-seekers who had been subject to expulsion orders: the ‘last-minute application’ clause. If the drafters of the Directive had intended a broader possibility to detain asylum-seekers merely because they were subject to expulsion orders, they would have drafted that clause differently.

Other grounds for detention

While most of the JN judgment focusses on the particular ‘public policy and national security’ ground for detention of asylum-seekers, some of the Court’s reasoning casts light by analogy on the validity and interpretation of the other five detention grounds.

First of all, each of the other five grounds for detention of asylum-seekers restricts their liberty, so must be also justified under Article 52(1) of the Charter. Applying the Court’s analysis in the JN judgment by analogy, each of those other five grounds is ‘prescribed by law’, at least according to the CJEU’s approach to that concept. However, the other grounds are not so closely linked to individual conduct of the person concerned, although arguably the ‘last-minute application’ and Dublin III ‘serious risk of absconding’ ground have a closer link than the others (the Dublin III Regulation refers to ‘reasons in an individual case’ to suggest that an asylum-seeker may abscond). Nor is it clear how the ‘exceptional circumstances’ concept applies to the other grounds, although they are all also subject to the general limits and guarantees relating to detention set out in the Directive.

The public interest arguments for the other grounds of detention are less obvious, although the Court could probably find them: the efficiency of the asylum system, and (as regards the entry control and ‘last-minute application’ grounds) immigration control (see the Schwarz judgment by analogy). But the restrictions on liberty are not so obviously appropriate as is the case for public policy and national security (except as regards the ‘last-minute application’ clause, provided that there was an effective opportunity to apply for asylum).

As for necessity, the Court applied the ‘strictly necessary’ rule to all deprivations of liberty. Furthermore, the other grounds for detention are also subject to the general limits and safeguards set in the Directive, and the rule that detention must be provided for in national law. However, not all of the specific features which the Court discussed in JN apply to the other grounds for detention: there is no obligation that detention on the other grounds be ‘required’, and the interpretation of those other grounds under EU law and international human rights soft law will necessarily be different. That brings us neatly to the Court’s innovative use of that soft law.

The Court’s use of ‘soft’ human rights law

First of all, the Court’s use of international human rights ‘soft law’ is remarkable in itself. It’s only taken account of such rules once before in the immigration and asylum context: the El Dridl case, where the preamble to the Returns Directive referred to a Council of Europe Recommendation on detention of irregular migrants. But in JN, the explanatory memorandum to the original proposal is enough to trigger incorporation of the soft law into the Court’s interpretation of the Directive.

It’s not clear if this may have broader implications beyond the reception conditions Directive. I’ve checked the original proposals for the other second-phase asylum laws, and none of them refer to international soft law as far as I can see. (But note that the preambles to the legislation do refer to the Geneva Convention on refugee status, as well as the UN Convention on the Rights of the Child).

However, it does have a number of implications for the interpretation of the reception conditions Directive. I have read through both ‘soft law’ measures invoked by the Court, and noted some key points where they could be useful in interpreting the Directive. For the sake of readability, I have put some of the detail in an Annex to this blog post. But here are the highlights.

The soft law gives more precise explanations for detention on grounds of determining nationality or identity, or to determine elements of the claim. A crucial point here is a detailed interpretation of Article 31 of the Geneva Convention, which states that refugees ‘coming directly’ from persecution cannot be penalised for irregular entry if they breach immigration law for ‘good cause’ and contact the host State’s authorities ‘without delay’. This is a big issue in practice.  

Two years ago, in its judgment in Qurbani (discussed here), the CJEU said it would not interpret Article 31 of the Convention, unless EU legislation referred to it. Well, the preamble to the second-phase reception conditions Directive does refer to it, in the context of detention (so does the Dublin III Regulation, and EU anti-smuggling law). Since criminal penalties for irregular entry are affected by the Returns Directive (according to the CJEU’s case law), it must follow that they are also affected by EU asylum law, a fortiori because the EU legislators expressly refer to Article 31 of the Convention. 

What does this mean on the ground? While the JN judgment did not concern Article 31, the CJEU's willingness to apply the UNHCR guidelines on detention means that those guidelines could be relevant to its interpretation. First of all, those guidelines say that asylum-seekers are covered by Article 31, even if their refugee status has not yet been established. Next, the 1999 version of the guidelines say that ‘coming directly’ also covers cases where asylum-seekers travelled through other countries. The ‘good cause’ rule must be interpreted in context, and there is no strict time limit for contacting the authorities. Between them, these interpretations of Article 31 should limit asylum-seekers’ criminal convictions for irregular entry considerably. In any event, EU legislation and case law says that asylum-seekers are entitled to stay on the territory and are outside the scope of the Returns Directive since they cannot be considered irregular; subjecting them to a criminal prosecution for irregular entry would directly contradict this.

Furthermore, the soft law is relevant not only to the grounds for detention, but also alternatives to detention, judicial review of and the conditions for detention. On that latter point, it mentions the practice of religion in detention, as well as a broader measure of contact with the outside world. Asylum-seekers should have a complaints procedure concerning detention conditions. There are more details on detention of vulnerable persons.

On that point, I can never pass on an opportunity to comment on the quite obnoxious derogations permitted in the Directive, allowing Member States to waive the requirements for separate accommodation for detained families and detaining women separately from unrelated men, in ‘duly justified’ cases at the border. In light of the Charter rights to privacy, the rights of the child and the EU’s imminent signature of the Council of Europe Convention on violence against women (on which, see here), these derogations are surely either invalid or can only apply in cases of force majeure.

Interpretation of the Returns Directive

The Returns Directive says nothing explicitly on the lapse of return decisions. This judgment is the first time the CJEU has ruled on the issue. While the Court only addresses the specific point of return decisions lapsing due to an asylum application, it might be argued by analogy that the lapse of return decisions in other circumstances is also incompatible with the Returns Directive. Although Member States are allowed to set higher standards than the Returns Directive, that only applies if those standards are still ‘compatible’ with the Directive. As we saw in the Zaizoune judgment (discussed here), such higher standards cannot amount to a waiver of the obligation to return people. It’s implicit in the JN ruling that equally it’s not compatible with the Directive for return decisions to lapse as soon as an asylum application is made.

The role of law in the development of the EU’s asylum regime

The JN ruling came as the EU took further measures to reduce the numbers coming to or staying on the territory – most notably by reaching a controversial arrangement with Turkey (on which, see here). Overall, the judgment sends a clear signal that the CJEU is going to assert its legal authority to ensure that measures taken to deal with the refugee and migration crisis are compatible with human rights, in particular as regards asylum-seekers – although conversely the Court is keen to strengthen the obligation to expel those who have not established any need to stay.

More broadly, the EU’s refugee policies are obviously in a state of deep crisis. Rather than leave the issue entirely to populists at the EU or national level, it would be better for the EU ask a panel of respected international experts to recommend (quickly) how the EU, in the wider international context, should deal with the crisis. I would nominate (say) Mary Robinson, David Miliband, Madeline Albright and Carl Bildt for this task. In any event, we cannot go on as we are: the EU needs an asylum policy that is simultaneously fair, humane, realistic and coherent; but it is falling far short of that at the moment.  

Barnard & Peers: chapter 26

JHA4: chapter I:5

Photo credit: UNHCR, B. Szandelszky

Annex

Council of Europe Committee of Ministers Recommendation

Point 1 – the definition of ‘detention’ is taken implicitly from ECHR case law, and is more precise than in the Directive

Point 3 – a general provision says ‘the aim [of detention] is not to penalise asylum-seekers’. The ground of detention to determine nationality or identity is explained in more detail than under the Directive. It applies ‘in particular when asylum seekers have destroyed their travel or identity documents or used fraudulent documents in order to mislead the authorities of the host state’. The ground of detention to determine elements of the asylum claim is less detailed than under the Directive, which contains the following additional words: ‘in particular where there is a risk of absconding of the applicant’.

There is no parallel to two of the grounds for detention under the Directive: under the Dublin process (ie where there is a ‘significant risk of absconding’ during that process); and where there is an asylum application purely to forestall an expulsion decision, if the asylum-seeker had previously had an opportunity to apply for asylum. 

Point 4 – says there must be a ‘careful’ examination of the grounds for detention in individual cases, and detention shall be ‘non-arbitrary’.

Point 5 – discusses grounds for judicial review, which are not expressly mentioned in the Directive. If a maximum detention duration has not been provided for by law, the duration of the detention should form part of the review by the above-mentioned court (see the Mahdi judgment on the Returns Directive by analogy).

Point 6 – ‘Alternative and non-custodial measures…should be considered before resorting to measures of detention’. The Directive does not state this expressly.

Point 7 - Measures of detention should not constitute an obstacle to asylum seekers being able to submit and pursue their application for asylum.

Point 8 - Asylum applications from persons in detention should be prioritized for the purposes of processing. This is especially the case where a person is held in detention because of reasons resulting from the law pertaining to foreigners.

Conditions of detention

Point 15 - Detained asylum seekers should be allowed to practice their religion and to observe any special diet in accordance with their religion.

18. Asylum seekers should be allowed to contact and, wherever possible, receive visits from relatives, friends, social and religious counsellors, non-governmental organisations active in the field of human rights or in the protection of refugees or asylum seekers, and to establish communication with the outside world. Note that this is wider than Article 10(4) of the Directive.

19. Asylum seekers should be guaranteed access to a complaints mechanism concerning the conditions of detention. This issue is not mentioned in the Directive.

22. If minors are detained, they must not be held under prison-like conditions…If [placing outside detention] proves impossible, special arrangements must be made.

UNHCR guidelines

Guideline 2 - Interprets Article 31 of Geneva Convention – also referred to in preamble to the Directive. Refers also to UNHCR Executive Committee conclusions for more on when detention is ‘necessary’ under Article 31 of the Convention

Article 31 applies also to asylum-seekers, not just recognised refugees; 1999 version of conclusions: (point 4) ‘coming directly’ clause also covers cases where the asylum seeker transited through other States on way to State where they are now present. No strict time limit to the phrase ‘without delay’. ‘Good cause’ – must look at all the circumstances

Guideline 3 – must consider alternatives to detention first – same as in CoE recommendation.

Grounds for detention (i) to prevent absconding (matches Dublin III Regulation to some extent); (ii) manifestly unfounded or abusive claims (no match with Directive); (iii) to verify identity or security; no reference to nationality (so not as complete a correspondence as CJEU suggests); (iv) elements of the claim – explained in detail ‘within the context of a preliminary interview' (with further clarification); (v) public health (no match in the Directive); (vi) national security; or (vii) a 'last minute' application to frustrate expulsion (no match in the Directive) 

Point (d) of Article 8(3) of the Directive doesn’t appear here; ‘procedure to enter the territory’ does not apply.

General rule – cannot use detention as a deterrent, or to dissuade continuing with claims; not punitive or disciplinary, or for breach of rules at reception centres or camps.

Guideline 4.3 – more detailed rules on alternatives to detention than in Article 8(4) of the Directive.

Guideline 5 - detention cannot be discriminatory

Guideline 6 - there must be time limits on detention

Guideline 7(iv) – right of asylum-seeker or lawyer to attend hearing re review of detention; 7(v) – authorities have burden of proof re detention; 7(vi) not an obstacle to pursue the asylum application (as in CoE recommendation).  

Guideline 8 – like CoE Recommendation: religious diet, wider access to outside world; more details on basic necessities than in Directive (ie ‘dignity’); no prison uniforms or shackling; also refers to complaints procedure (like CoE Recommendation) but goes into further detail than that Recommendation

Guideline 9 – more details on vulnerable persons than in Art 11(1) of the Directive

Is the new Council of Europe treaty on match-fixing compatible with EU internal market law?

Tom Serby, Senior Lecturer in Law, Anglia Law School, Anglia Ruskin University

There is a growing epidemic of betting related match fixing in sport. To address it, the Council of Europe recently opened for signature a Convention on the Manipulation of Sports Competitions. However, Malta has asked the CJEU to rule on whether this treaty offends against the rules of the internal market, specifically freedom to provide services. This legal challenge highlights the difficulty in obtaining international agreement on how best to fight the match fixing.

The first 15 countries, including Russia and Germany, as well as six other EU Member States (Bulgaria, Denmark, Finland, Greece, Lithuania and Netherlands) signed up to the Convention as soon as it was open for signature, on September 18^th 2014; Malta’s is a lone voice in opposition. UEFA and the IOC (the Olympic movement) back the Convention but the associations of regulated European bookmakers are more guarded, sharing some of Malta’s concerns.

Match fixing, which the Convention addresses, has moved up the agenda for sports governing bodies, national governments and the the European Commission (which has funded various studies into it), in the wake of the scandals over the last decade which have affected in particular, but not only, the sports of football and cricket.

The growth in betting related match fixing, (or “spot fixing” where an event within a match is fixed rather than the overall result), is well known to anyone with only a passing interest in sport. The rise in this corrupt “manipulation” of sport, where athletes take bribes to underperform in order to facilitate winning on betting, has been fuelled by the huge rise in both licensed and unlicensed online gambling. INTERPOL investigations have proved that much of the fixing is at the behest of international (particularly from Asia where betting is often illegal) criminal gangs and is used for Money laundering purposes.  The infamous Calcioscommesse football scandal for instance, was financed out of Singapore, the corruptors acted in Italy, bets were placed all over Asia, and money proceeds were laundered through Panama.

Manipulation or fixing is very difficult to detect, and thus to prevent, as it crosses jurisdictions and is largely the result of online activity. Sports governing bodies have acknowledged that, while they have a role to play by tightening up their Codes of Ethics and Disciplinary procedures and introducing Integrity Units to investigate any suspected malpractice by athletes, they cannot on their own eradicate the problem without governmental support.

Under the Lisbon Treaty and TFEU Art 165 the EU has a role in promoting sport which specifically falls short of law harmonization. Under what has become known as the doctrine of the “specificity” of sport the CJEU will only interfere in the internal rules and regulations laid down by sporting federations in so much as they have an economic impact. So famously, in the Bosman ruling, the Court ruled as unlawful (under the internal market freedom of movement provisions) UEFA’s then transfer rules which restricted, on the basis of a player’s nationality, football clubs signing players from other EU Member States.

Malta’s complaint in regard of the Convention is brought under Article 218 TFEU, which is a special jurisdiction allowing the CJEU to rule if an envisaged treaty (ie not in force for the EU yet) is compatible with EU law or not. The object of the Convention is to establish international cooperation in terms of defining unlawful manipulation of sports competitions (ie corrupt betting related fixing) and in the investigation and prevention of fixing.

A key provision of the Convention is at Article 3 (5)(a) which defines "illegal sports betting" as "all sports betting activity whose type or operator is not allowed under the applicable law of the jurisdiction where the consumer is located".  The Convention prescribes at Article 11 website blocking and a ban on advertising to enforce the restriction on illegal betting. In other words, a betting operator licensed in say Malta, could be prohibited from going about its business in another EU state, say Poland, if Polish law proscribes some of the betting methods which in Malta are perfectly legal; thereby constituting a classic impediment to an internal market.

In Poland gambling is legal, and indeed is a source of important public revenue being relatively highly taxed; however, unusually for the EU, online gambling is illegal.  In practice blocking of foreign websites is not enforced and many Poles therefore work round this restriction on online gambling.

In Malta, on the other hand, betting operators are highly prized as economic entities and both regulation and tax are very light on betting companies in order to stimulate an important part of the economy for this, the smallest EU member state. Not unreasonably the Maltese argue that the Convention exceeds the ambit of EU competence by introducing regulations on gambling which is not a settled matter in the EU. Moreover, Malta will argue that any unduly restrictive provisions which drive gamblers into the unregulated market are counter-productive, since it is widely acknowledged that it is the unregulated betting market that is the source of much of the match fixing problem.

Malta’s case is that the definition of “illegal betting” is discriminatory under TFEU Art 18, and unlawful under articles 49 (freedom of establishment) and article 56 (freedom to provide services); and it is expected that Malta will argue before the Court that while they accept that the regulation on illegal gambling is in pursuit of a justifiable public policy aim (the eradication of match fixing), attacking gambling which is licensed in one EU State but not another, is not a proportionate means of achieving the aim given the evidence that unlicensed as opposed to licensed gambling is primarily the source of match fixing.

The complex and voluminous case law on the Court of Justice on this issue (most recently reiterated in Pfleger) makes clear that Member States have a great deal of discretion to regulate gambling. However, that discretion is not unlimited, and there are circumstances in which gambling regulation can constitute a disproportionate restriction of internal market rights.

There are two possible outcomes of this litigation. First of all, if the CJEU rules that the relevant rules in the Convention are incompatible with EU internal market law, neither the EU nor the Member States will be able to ratify it. Secondly, if the Court rules that there is no breach of internal market law, it will probably indicate in detail how to interpret the relevant provisions of the Convention in order to ensure compatibility with EU law. In that case, the opinion of the CJEU will of course inform the manner in which the Convention is implemented in Member States. 

As the Convention is the first multinational treaty aimed at harmonizing different states’ fight against betting related sports corruption, the Court’s ruling is eagerly anticipated.  Watch this space……

Barnard & Peers: chapter 14, chapter 16, chapter 24

Copyright: anything left of Member States’ external competence?

Lorna Woods and Steve Peers

The extent of broadcasters’ rights is near the top of a long list of controversial issues arising from the law of copyright. Equally controversial is the extent of the EU’s exclusive external competence, which (where it exists) prevents Member States from signing treaties and (usually) means that they do not have a veto in the Council over the treaty concerned. These two issues came together in the recent CJEU judgment in Case C-114/12 Commission v Council, which concerned the EU’s competence to negotiate the Council of Europe’s draft treaty on the rights of broadcasting organisations.

Background

The regime covering mass electronic distribution of audiovisual works is complex, reflecting the traditionally national nature of broadcasting markets and the layered nature of intellectual property rights in audiovisual works.  In addition to the content-based rights, which are often assigned or licensed to the broadcaster, the broadcaster has rights in the signal itself (broadcasters’ neighbouring rights). These rights are found in a number of international treaties, including TRIPS. Similar rights relating to control over the fixation of the signal, as well as the making available of the signal to the public were contained in a number of directives variously implemented in the Member States, in particular Directive 2006/115/EC on Rental and Lending Rights (codifying  Directive 92/100) and Directive 93/83/EEC Satellite and Cable Directive, now codified  as Directive 2006/116). These rules have tended to be technologically specific and while Directive 2001/29 (the InfoSoc Directive) confirmed broadcasters’ rights whether wireless or cable technology was used, questions remained, notably the issue of identifying where the activity of ‘making available’ or ‘communicating to the public’ is taking place, especially in an Internet age.

There has been considerable litigation on these directives and how they operate in a new technical environment. Clearly something needed to be done and broadcasters have for some time been lobbying for change. Against this background, the Council of Europe agreed to start work on a Convention that protected broadcasters’ neighbouring rights.  According to a 2010 report, the aim of the Convention was to agree on a set of exclusive rights of broadcasting organisations, such as the right of fixation the right of reproduction, the right of retransmission, the right of making available to the public, the right of communication to the public and the right of distribution, in technologically neutral terms. Other issues were also to be discussed: the protection of pre-broadcast programme-carrying signals, the term of protection, the need for a non-exhaustive list of limitations and exceptions, the enforcement of rights and obligations concerning technological measures and rights-management information.

As for the EU’s role in these talks, the Council and Member States’ representatives adopted a single joint Decision authorising the joint participation of the EU and its Member States in the negotiations for a Convention. While the EU position would be represented by the Commission, the Member States’ collective position (if they could reach one) would be represented by the Council Presidency. If Member States could not reach a collective position on matters falling within their competence, they would negotiate individually.

The Commission disagreed with the Council’s decision on both substantive and procedural grounds, and so brought an annulment action before the Court of Justice.

Judgment

First of all, the Court quickly dismissed any doubt that the action was admissible. Even though the act in question had been adopted by the Member States alongside the Council, the Council was ‘involved’ in the entire Decision because it was both conferring and receiving power pursuant to it.

As to the substance, the Court agreed with the Commission that the envisaged treaty fell within the scope of the EU’s exclusive external competence. This was the first case in which the Court interpreted Article 3(2) TFEU (added by the Treaty of Lisbon), which provides that the EU has exclusive competence to conclude an international agreement where ‘its conclusion is provided for in a legislative act of the Union or is necessary to enable the Union to exercise its internal competence, or in so far as its conclusion may affect common rules or alter their scope’

.  

The last of the three categories mentioned in Article 3(2) is similar to the classic exposition of the EU’s exclusive external competence in the ERTA judgment, although some academic opinion has suggested that the Treaty drafters have not adequately synthesized the judgment. On the other hand, some Member States intervening in support of the Council in this case suggested that the TFEU provision narrows the EU’s exclusive external competence, in particular in light of the Protocol to the Treaties on shared competences, which was also added by the Treaty of Lisbon.

However, the Court stated simply that the Treaty provision meant the same thing as the ERTA judgment, as elaborated in the subsequent case law of the CJEU. The Protocol on shared competences was irrelevant, since it only referred to Article 2(2) TFEU, which defines the EU’s shared internal competences.

The Court then summarised the key aspects of the ERTA case law: it is not necessary for the international treaty and the EU legislation concerned to overlap fully; it may be sufficient that the area concerned is ‘largely covered’ by EU rules; and it is irrelevant that there is no contradiction between the treaty concerned and the internal EU rules. To show whether external competence was exclusive on this basis, there had to be a ’specific analysis of the relationship between’ the relevant international treaty and EU legislation. The Court added that the party alleging that competence was exclusive had the burden of proving it.

Applying these principles to the facts of the case, the Court summarised the relevant EU legislation (the five Directives referred to above), stating that the intellectual property rights concerned ‘are the subject, in EU law, of a harmonised legal framework which seeks, in particular, to ensure the proper functioning of the internal market’, which integrated technological, digital and information society developments, and which had ‘established a regime with high and homogeneous protection’ for broadcasters as regards their broadcasts.  It was irrelevant that this harmonisation appeared in different EU measures, which also regulated other intellectual property rights.

So the area of law to be compared as between EU law and the planned treaty was the neighbouring rights of broadcasters. On this point, while there were some differences between the existing EU rules and the planned treaty, any new rules on the planned treaty were liable to have a significant impact upon the EU acquis. In particular, the Court distinguished its prior case law which had held that external competence was shared when the EU set minimum standards, on the grounds that in this area EU legislation simply limited its scope instead. Since the new treaty might extend the scope of the EU rules, its subject-matter fell within the scope of the EU’s external competence. And on several points, the Court did not believe there was enough evidence to support the claims of the Council and some Member States that issues not covered by the EU acquis at all would be inserted into the future treaty.

For example, one particular issue relates to the protection of signals prior to their broadcast to the public – usually this occurs when one broadcaster transmits a signal to another. This issue is not currently covered by the EU rules. If the decision was taken to protect these signals, this protection could be provided in a number of ways.  The Court highlighted one option – the extension of the term ‘broadcasts’ to cover pre-broadcast signals would have horizontal effects through the regulatory system, and therefore impact on the EU acquis.  The other possible mechanisms noted (the introduction of sui generis legal protection of pre-broadcast signals or the application of the provisions dealing with ‘technical measures’ to the pre broadcast signals) would not have such an effect. The Court emphasized that in the absence of any reference to these approaches in the Council of Europe preparatory documents ‘those approaches seem, at this stage, to be hypothetical and cannot therefore be relevant to determining the exclusive or shared nature of the competence of the European Union in the present case’ (para 99).

Having ruled in favour of the Commission on its substantive argument, the Court ruled that it was not necessary to decide on the three alternative procedural arguments which the Commission had made: such a ‘hybrid’ decision of the Council and Member States was not permitted by EU law; the Council had wrongly voted by unanimity, not qualified majority; and the Council had breached the principle of sincere cooperation. The first two of these arguments had been accepted by Advocate General Sharpston in her Opinion (she thought the final argument was superfluous). However, unlike the Court, she had ruled against the Commission on the substantive point, on the basis that the Commission had argued that all of the provisions of the draft Convention were closely linked to EU law, but had failed to prove this on the facts.

Comments

First of all, as regards the admissibility of this action, the Court’s ruling is convincing as regards the Council conferring power on Commission, but arguably not as regards Member States conferring power on the Council (since it would be operating outside the EU framework in that context), and certainly not as regards Member States conferring power on Member States. The better argument for the admissibility of this action is that if the Council and Member States adopt a hybrid decision like this one, their action is indissociable. Put another way, if the Council and Member States act together in this way, there’s joint and several admissibility.

Secondly, as for the procedural points not addressed by the judgment, the Advocate-General’s opinion is not convincing. Since mixed agreements, ie agreements ratified by both the EU and its Member States, are a common feature of EU law, then there should no problem with the idea that a decision relating to negotiations on those agreements could in principle be a hybrid decision. Conceptually, that’s no different from the nature of the final mixed agreement.

As for the substantive competence issues, first of all it’s important that the Court clarified the point that ERTA and the case law elaborating upon it are still applicable to Article 3(2) TFEU, in light of the doubt which some had expressed on this point. The judgment is presumably relevant by analogy to the first two grounds for exclusive competence listed in Article 3(2) TFEU (where competence is provided for in a legislative act of the Union or is necessary to enable the Union to exercise its internal competence). At the very least, it must follow that the Protocol on shared competence is also irrelevant to those two other grounds, since as the Court rightly said, that Protocol only refers to Article 2(2) TFEU.

Despite this important clarification, the application of the ERTA judgment itself remains complex and seems highly fact dependent in each case, arguably making the prediction of outcome difficult. Here, it is notable that the Court and the Advocate General came to different conclusions in determining the key question of whether the conclusion of the Convention affects common rules or alters their scope (Article 3(2) TFEU).  The Advocate General and the Court both stated that the burden of proof was on the Commission to show that exclusive competence had been established. As a corollary it seems the default position is shared competence. To quote the Advocate General:

if the analysis of the Convention and EU rules on the basis of the information presently available shows that in at least one respect Member States retain competence, the Commission’s plea must be rejected. [para 143]

While the Court accepted this allocation of the burden of proof, it is when we get to the specifics that differences emerge as can be seen in a couple of examples. Article 8(3) of Directive 2006/115 states:

Member States shall provide for broadcasting organisations the exclusive right to authorise or prohibit the rebroadcasting of their broadcasts by wireless means, as well as the communication to the public of their broadcasts if such communication is made in places accessible to the public against payment of an entrance fee.

The Advocate General analyses the matter as follows: ‘Thus, EU law does not yet regulate ‘at least’ the right of retransmission by wire or cable, whereas the Convention might do so and the Member States are currently authorised to provide for it in their own jurisdiction’ [para AG 150].  The Court accepts the same point but draws a very different conclusion from it – that the proposed Convention, by regulating areas currently outside EU competence, in itself might have an impact on EU law. The Court does not explain how, merely adopting the Commission’s position [92]. The fact that broadcasters are already partially covered by EU law does not seem to address the point.  So, the Opinion seems more logical on this point.

In a number of the aspects of the Convention under consideration, the question of whether there was impact would be affected by the approach finally taken by the negotiators. For example, the scope of the Convention would depend on its definition. While EU law does not have a definition of the term ‘broadcasting organisations’ there would be some confluence with the rights-holders under the various directives. The impact on EU law is therefore uncertain.  The Advocate General concluded cautiously:

If the definition in the Convention creates an absolute category that is wider than broadcasting organisations that are rightholders under the said directives, the creation of that category might possibly limit the European Union’s freedom to decide on its own definition. That may not be the case if the definition in the Convention were non-exhaustive and did not offer protection to entities other than existing rightholders under EU law. [AG 156]

While in this case it was necessary to finally determine the point as to whether there is impact on EU law or not, this then begs the question of what to do in such a circumstance – do we assume that if there is a possible interpretation that could affect EU law then the text is satisfied, or is a higher standard of proof required?

The difference on this point can be seen in the respective approaches of the Advocate General and the Court to pre-broadcast signals. It is clear that currently EU law does not require the protection of such signals and that the Convention proposed to afford protection to such signals. Given the early stages of negotiations, it is unclear what sort of mechanism was likely. Some possibilities might utilise techniques found in the existing legal framework (for example extending the definitions, or applying the technical measures rules to pre-broadcast signals). Since such an approach would have an impact on EU law, then that would bring the issue within the exclusive competence of the EU – appoint on which the Advocate General and the Court agreed.

Another mechanism exists – the development of a sui generis right – which would not have this effect. Here the Advocate General suggested that in such a situation there would be no exclusive competence. In stark contrast, the Court dismissed other approaches (including the sui generis right) as hypothetical, and therefore focussed only on the approach that would trigger exclusive EU competence [para 99].  No reason was given as to why the other approaches were more hypothetical than the approach the Court selected.  So while the Court and the Advocate General agree on the principles, they differ in the application of those principles, and it seems that the Court has tended to favour assessments that point towards exclusive competence.

Finally, what are the broader implications of the judgment? The Court of Justice has already ruled (in the Daiichi Sankyo judgment) that the WTO's TRIPs agreement falls within the scope of the EU exclusive external competence over the common commercial (external trade) policy (CCP), which was extended to cover trade-related intellectual property fully by the Treaty of Lisbon. It has also ruled that a Council of Europe treaty relating to enforcement of audiovisual service providers’ rights falls within the scope of the same competence, in light of the full extension of the CCP to services by the same Treaty. Usually, the Member States have no veto as regards CCP matters.

Now it seems that treaties relating to many other aspects of intellectual property can fall within the scope of the EU’s exclusive external competence, due to the exercise of the EU’s powers to adopt internal market legislation. Again, this means that Member States usually lose their veto. This effect is not absolute, given that the recent Marrakesh treaty on copyright exceptions for the blind and the Beijing treaty on audiovisual performances are both mixed agreements (see the list of signatories for the former and latter treaties respectively). However, the power of the EU (and the Commission in particular) in this field is demonstrated by the Commission’s veto of a planned Council of Europe treaty on cross-border broadcasting, at a late stage of negotiations.

More broadly, the Court’s pro-EU application of the test for exclusive competence suggests that it would be easier to find such exclusivity in other areas which the EU has only partly regulated, such as consumer law or immigration law. The broadcasting rights judgment may, in time, prove to be nearly as important as the ERTA judgment which it reconfirms and elaborates upon.

Barnard & Peers: chapter 14, chapter 24