Data Retention: AG opinions on the latest CJEU cases on national laws

 

Lorna Woods, Professor of Internet Law, University of Essex

 

Introduction

 

Advocate General Campos Sanchez-Bordana has handed down his opinions in three more cases (SpaceNet and Telekom Deutschland (Joined Cases C-793/19 and C-794/19), GD v Commissioner of the Garda Síochána (Case C-140/20) and VD and SR (Joined Cases C-339/20 and C-397/20)) which concern the retention of communications data, and constitute the latest instalment of a saga that started – ineffectually as far as rights-based arguments are concerned – in the unsuccessful Irish challenge to the Treaty base chosen for the Data Retention Directive (Directive 2006/24/EC) (Ireland v European Parliament and Council (Case C-301/06)). 

 

The Data Retention Directive, which provided for communications data retention, effectively within the scope of the exceptions found in Article 15 of the e-Privacy Directive (Directive 2002/58/EC) to the principle of communications confidentiality, was struck down in Digital Rights Ireland (Joined Cases C-293/12 and C-594/12) (discussed here).  Building on the principles there, a series of cases developed the constraints on what was permitted by Article 15 e-Privacy Directive, notably: Tele2 Sverige and Watson (Joined cases C-203/15 and C-698/15) (discussed here and here), La Quadrature du Net and Others (Joined cases C-511/18, C-512/18 and C-520/18) and Privacy International (Case C-623/17) (discussed here). Points of detail have been added in Ministerio Fiscal (Case C-207/16) (discussed here) and HK v Prokuratuur (Case C-746/18).  The principles underpin the data transfer cases: Schrems I and Schrems II. As well as recommending that the Court continue with its approach, maintaining the gap between it and the European Court of Human Rights, the Opinion of the Advocate General indicated a certain irritation with the national courts unwilling to apply clear principles and necessitating more Grand Chamber rulings on this topic.  In other words, not much is new here, but rather a re-iteration of the principles and distinctions on which this juriprudence has been built.

 

The Cases

 

SpaceNet and Telekom Deutschland concern the German legislation requiring internet service providers to retain communications data. Reflecting to some degree the concerns highlighted in the CJEU’s previous jurisprudence, the German law had excluded the communications data of certain help lines from the regime, the data collected was retained for a comparatively short period, and there were safeguards against misuse of the retained data. SpaceNet and Telekom Deutschland had each challenged this law on the basis of the CJEU’s jurisprudence.

 

GD v Commissioner of the Garda Síochána arises from a murder case, the prosecution of which was based on communications data retained and accessed via legislation that provided for mass retention of data. The defendant challenged the admissibility of this data arguing it was contrary to EU law requirements.

 

Joined cases VD and SR also concern criminal prosecution for financial offences, based on communications data. This time the data retention was based on national law implementing Directive 2003/6/EC, as well as Regulation 596/2014, rather than concerning the e-Privacy Directive. These rules allowed access to existing communications data held by telecommunications operators. The reference raised the question of these rules’ compliance with the fundamental rights of Article 7 and 8 EU Charter, as interpreted by the case law on the e-Privacy Directive.

 

In each case, the Advocate General suggested that the Court hold that the national laws were incompatible with Charter rights, re-iterating that the relevant provisions

‘must be interpreted as precluding national legislation which obliges providers of publicly available electronic communications services to retain traffic and location data of end users of those services on a precautionary, general and indiscriminate basis for purposes other than that of safeguarding national security in the face of a serious threat that is shown to be genuine and present or foreseeable’ (Spacenet, para 84)

 

In all three opinions, he re-stated the conditions found in La Quadrature du Net, para 128. This principle was specifically applied to investigations into insider dealing or market abuse (ie not national security) in VD and SR (para 97). In GD it added that access to such data legitimately retained must be subject to prior independent authorisation, and that the temporal effect of the ruling could not be limited (so that the ruling had prospective effect only) (GD, para 82 – see to similar effect VD and SR, para 97). The Advocate General also noted that there was a distinction between the approach of the CJEU and the European Court of Human Rights, but that the jurisprudence of that Court provided a base level and the requirements of the Charter could be higher than those of the Convention.

 

Comment

 

The jurisprudence has built on a series of, generally binary, distinctions, the most basic of which is that between EU and national competence, given that Article 4(2) TEU requires the EU to respect Member States’ essential state functions, including maintaining law and order. It specifically states:

 

“national security remains the sole responsibility of each Member State”.

 

Many Member States use data retention and the analysis of data as part of their fight against terrorism and in support of national security. On this basis it has been argued that national laws providing for such schemes fall outside the competence of the EU, and in SpaceNet a number of governments intervened to make the same argument again.  This argument in the words of the Advocate General has been “emphatically rejected” (SpaceNet, para 32), citing La Quadrature du Net, though this position is more clearly seen in Privacy International and had already been established in Tele2 Sverige and Watson (and could be seen as implicit in the distinctions employed in Ireland v European Parliament and Council). While Article 4 TEU does exclude national security from the scope of EU law, it is to be narrowly understood - applicable to the activities of intelligence agencies for the purposes of safeguarding national security. This seems to be a well-established principle and unlikely to be disturbed now, no matter the representations of the Member States.

 

Another longstanding distinction made in the case law is between content of communications and communications data (meta data), including traffic data (which seemingly also includes the subscriber name and the IMEI address of the mobile device according to Ministerio Fiscal, paras 40-42) and location data.  Mass acquisition of the content of communications goes to the essence of the right and cannot be justified. The Court has accepted that the acquisition of communications data in principle could be justified, as can be seen in Tele2 Sverge and Watson, Privacy International and La Quadrature du Net, suggesting that the intrusion cause by mass acquisition of communications data is less intrusive than knowledge of content. Whether – given the harm attributed to this collection: the possibility of creating detailed profiles on individuals – this is wholly true is debatable.  Note, however, that the Court has accepted that some sorts of data may be seen as less sensitive – notably identity and IP addresses in the context of criminal investigations.

 

The Court suggested in Ministerio Fiscal that the intrusion was less (perhaps to enable itself to justify taking a different approach from Tele2 Sverige and Watson), though it was unclear as to whether this was to do with the type of data in issue or because of the limited amount of data involved (and its severability from other data). In its ruling, the Court confirmed that access to retained data which reveals the date, time, duration and recipients of the communications, or the locations where the communications took place, must be regarded as a serious interference since that data allows precise conclusions to be drawn about the private lives of the persons concerned (para 60), suggesting it is what you can do with the data that is important rather than the amount of data.  The Court has suggested in other contexts that certain types of data are less important: see the data involved in PNR cases (Opinion 1/15, especially para 151, discussed here). In the current opinions, the Advocate General reiterated the position in La Quadrature du Net as regards IP addresses and identity (Spacenet, paras 81-82; VD and SR, para 80) but did not elaborate further.  The question about small sets of eg location data remains open. 

 

This possibility of profiling and its impact on users has led the Court to develop stringent conditions for the collection of data which are based on two interlinking sets of distinctions: that between general and targeted measures, and between national security and the fight against crime (with a sub-division between serious and other sorts of crime).  For all three cases, the Advocate General re-iterated the general principles established by the case law to date- though it is worth noting that he relied for preference on La Quadrature du Net (as a judgment which synthesised or summarised preceding case law), rather than other landmark cases – notably Tele2 Sverige and Watson – perhaps because (in the eyes of some) La Quadrature du Net allowed some State measures that would not seem on first glance to fall within Tele 2 Sverige and Watson – and which the Advocate General described as “supplementary qualifications” (GD, para 4). So, “general and indiscriminate retention of traffic and location data can be justified only by the objective of safeguarding national security”, which is distinct and more serious or important than the other objectives listed in Article 15 e-Privacy Directive (GD, para 36, Spacenet, para 37, VD and SR, para 75, each citing La Quadrature du Net). In sum, provided all the other conditions are satisfied, national security threats justify indiscriminate data retention, whereas serious crimes only suffice to legitimise targeted data retention.

 

Of course, this begs the question of what falls within national security for the purposes of Article 15 and what constitutes serious crime. According to Ministero Fiscal, the boundary between crime and serious crime falls to be determined by the Member States. While respecting national procedural autonomy, this might be open to manipulation or interpreted broadly (as the special, expansive definition of serious crime in the Investigatory Powers Act – when the UK was still a member of the EU – suggests). The Court in La Quadrature du Net suggested that national security

 

“encompasses the prevention and  punishment of activities capable of seriously destabilizing the fundamental constitutional, political, economic or social structures of a country and, in particular, of directly threatening society, the population or the State itself” (para 135). 

 

In VD and SR the Advocate General emphasised that the two types of measures – those aimed at safeguarding national security and those which are aimed at combatting crime – cannot have the same scope as otherwise the distinctions in La Quadrature du Net (with regard to the possibility of indiscriminate surveillance) would have no purpose and the fundamental rights protections would likely be undermined – and this is true no matter how serious the crime (VD and SR, paras 83-86).

 

As regards targeting, the Court has suggested that this need not be at the level of the individual but could relate to localities or to groups – suggestions which may raise all manner of social, political as well as technical questions (and see here, Interpol’s distinctions). As the Advocate General pointed out, it is not the responsibility of the CJEU to draft compliant regimes; this is the responsibility of the Member States.

 

La Quadrature du Net imposed conditions on national security and generalised surveillance, as well as on targeted surveillance for serious crime. In Privacy International, the CJEU restated its position that national legislation must develop objective criteria for both the acquisition of a particular dataset from a service provider and its actual use by the relevant authorities (see paras 78-81). Moreover, it seems that these conditions apply not just to traffic and location data, but also provisions regarding the preventive retention of IP addresses, subscriber information and other measures aimed at combatting serious crime. But, there are questions about the extent to which various sorts of safeguards may compensate for other weaknesses in the system (and this same question can be seen in respect of the European Court of Human Right’s jurisprudence where it blends lawfulness with safeguards and safeguards with proportionality, effectively reducing the scrutiny over acquisition in favour of control over use – an approach which does not deal with the chilling effect of Government access to and storage of data). The Advocate General here rejects this blurring of safeguards over access with control over acquisition and retention:

 

“for the Court, ‘the retention of traffic and location data constitutes, in itself … an interference with the fundamental rights to respect for private life and the protection of personal data’. In this regard ‘access to such data is a separate interference’ with those fundamental fights, irrespective of the subsequent use made of it.

 

For the present purposes it is therefore irrelevant that the data protection arrangements for retained data provided for in the German legislation (a) provide effective safeguards to protect those data; (b) place rigorous and effective limits on access conditions, restricting the circle of people who can access the data; and (c) allow the retained data to be used solely for the purposes of investigating serious offences and preventing specific risks to life or a person’s freedom or to the security of the state.

 

The truly decisive element is that, … , the retention obligation at issue is not in itself subject to any specific conditions.” (paras 74-76)

 

Limited retention periods constitute another such safeguard; as the German Government argued in Spacenet, it means that less detailed profiles might be drawn – and in this seems similar to the approach of the Advocate General in HK v Prokuratuur (para 82). While the Court agreed that the period of data retention was a relevant factor in determining the severity of the intrusion, however, it took the view that traffic and location data are generally sensitive because they allow for far-reaching conclusions about private life and that therefore should only be permitted in relation to serious crime (and presumably the protection of national security).  The Advocate General noted in Spacenet that a limited retention period cannot justify a general retention requirement (in relation to crime) (para 66). Moreover, the time period must be considered alongside the quantity of data retained and the techniques available for analysis (Spacenet, para 70).

 

While acquisition, storage and access of data constitute different infringements (and real-time access may give rise to different levels of intrusion from analysis of historic data), there are questions about the links between them. If retention may be justified only for serious crime, presumably access is likewise limited (the Court did not discuss this point in Ministerio Fiscal). This link was discussed in VD and SR. The legislation permitted access to existing records, but did not provide a basis for storage in the first instance. While the French Government argued that the market manipulation legislation implicitly allowed for data retention, the Advocate General argued that these existing records “can only be ‘lawfully existing records’, that is to say those compiled in accordance with Directive 2002/58” (VD and SR, para 62, emphasis in original).

This makes clear that matters pertaining to communications confidentiality are not easily to be displaced. In any event, even if such ‘implicit authorisation’ were to be accepted, “such retention would be subject to the same conditions as would necessarily apply if it were based on any other EU legislative provision”. That is, all EU legislation must comply with the requirements of the EU Charter and the Court’s interpretation of the requirements of Article 7 and 8, arising in the context of the e-Privacy Directive, do not apply to Article 7 and 8 only in the context of that directive but more generally. This recognition is important given the increasing acquisition of data by the private sector and its sharing with the public sector with the aim of delivery of public services of all kinds. For this reason, the requirement of approval of access requests by an independent body (seen also in GD in the context of the e-Privacy Directive) also arose in relation to the insider dealing and market manipulation legislation (para 95).  We might see in this the beginnings of a general approach to constraining state surveillance activities; it will be interesting to see the extent to which the Court pulls through concerns about profiling from this group of cases through to, for example, PNR.  There is a new reference pending challenging the broad nature of PNR data collected in Directive 2016/681/EU (Ligue des droits humans (Case C-817/19) – the hearing for this case is discussed here). The next question is where the boundary is between concerns about profiling in the context of national security and combatting crime, and profiling to support data-driven public service delivery more generally. This distinction does not yet seem to have been considered.

 

Barnard & Peers: chapter 9

JHA4: chapter II:7

Photo credit: EFF-Graphics, via Wikicommons

The Own Resources Decision as an Ultra Vires Act or a Violation of Constitutional Identity? An analysis of possible procedural scenarios

Benedikt Riedl, research assistant, lecturer and PhD candidate, LMU Munich

On March 26, 2021, the German Federal Constitutional Court (GCC) held that the Own Resources Resolution Ratification Act (ERatG) must not be executed by the Federal President for the time being.

The extent to which the Own Resources Decision could be an ultra vires act or a violation of the constitutional identity of the German Basic Law has already been presented on the Verfassungsblog and the European Law Blog. Since public interest in the outcome and furthest possible course of the proceedings is high, this article will also present the possible procedural scenarios.

Two possible ultra vires acts and a possible identity violation

First, however, the three most important substantive problems should be summarised once again. The Own Resources System could be an ultra vires act in two respects. Additionally, there is a connecting factor that could be seen as a violation of constitutional identity. Those who have already read the posts from the Verfassungsblog and the European Law Blog can skip straight to the heading "Third Problem: Violation of the overall budgetary responsibility of the German Bundestag".

Background: Own Resources Decision and Next Generation EU

The subject of the summary proceedings is the Own Resources Decision Ratification Act. This is the German law approving the financing of the European Union until 2027. It is the legal basis for the entry into force of the current Own Resources Decision of the European Union of December 14, 2020. The Own Resources Decisions of the European Union are based on Article 311 (3) TFEU and, in addition to other revenue, serve to finance the EU budget. The current Own Resources Decision enables the European Commission in Article 5 (1a) to take out loans of up to 750 billion euros with a term of up to 38 years. With these funds, the European Union intends to temporarily use 750 billion euros within the framework of its NextGenerationEU economic stimulus package to repair the immediate economic and social damage caused by the Corona pandemic. The most important instrument in this stimulus package is the Recovery and Resilience Facility, which will provide 627.5 billion euros in loans and grants to support reforms and investments in the countries of the European Union. Implementation of the economic stimulus packages by the European Union is only possible once all Member States have ratified the Own Resources Decision (Article 311 (3) sentence 3 TFEU).

The German Bundestag approved the Own Resources Ratification Act on March 25, 2021. The vote was preceded by a heated debate, during which the Minister of State at the Federal Foreign Office described the Own Resources System "as a necessary and overdue step towards a fiscal union".

Ultra vires review and identity review

The central question under EU law is whether the Own Resources Decision and the authorisation to incur debt violate the Treaties. If this is the case, this could constitute an ultra vires act of the European Union. The central question under german constitutional law is whether the Own Resources System affects the limits set by the overall budgetary responsibility of the German Bundestag and be incompatible with Art. 79 (3) of the Basic Law.

First, the question arises as to why a Member State‘s constitutional court can decide on this question of EU law at all. The starting point is the primacy of application of Union law over any national law – including constitutional law – which is recognised today by both the GCC and the ECJ. However, since its Costa/E.N.E.L. ruling, the ECJ has assumed an unconditional primacy of application, which follows from the special nature of Union law as a new, independent legal order. In contrast, the GCC, like all other European constitutional and supreme courts, does not derive the primacy of application from Union law itself but assumes primacy by virtue of the constitutional authorisation of the Member States.

Ultra vires review (i.e., review of authority by a constitutional court of a Member State), refers to whether the EU institutions have exceeded their authority in a sufficiently qualified and structurally significant manner. Several European constitutional and supreme courts have already declared Union acts to be ultra vires (e.g. Cohn-Bendit ruling in France, Holubec ruling in the Czech Republic, Ajos ruling in Denmark (also discussed here), PSPP ruling in Germany). In the specific case, the question is whether the Own Resources Decision is manifestly in violation of the Treaties. As far as the question of the legal basis is concerned, it can be assumed that the constitutional complaint will not be successful. The situation is different, however, concerning the questions of earmarking and liability risk.

First Problem: Sufficient legal basis and earmarking?

It is undisputed that Article 311 (3) TFEU is the legal basis under Union law for the European Own Resources Decision of 14.12.2020. According to this, the Council, acting unanimously in accordance with the special legislative procedure and after consulting the European Parliament, adopted a decision setting forth provisions governing the Union's own resources. However, according to Article 311 (3) sentence 2 TFEU, only the Union’s own resources can be introduced. The applicants argue that borrowed funds are not the Union‘s own resources. However, according to the wording of the contracts, only the Union’s own funds (own resources) and no external funds (external resources) could be raised. This is a very restrictive literal argument based on the differentiation between debt and equity capital in business economics. The ECJ, with its strongly teleologically oriented case law guided by the idea of effet utile, will most likely not follow this line of argument. Instead, it will probably endorse a broad understanding of “own resources“. Should the GCC follow the applicant's argumentation, a referral to the ECJ would be necessary in any case. There is no acte clair that would make a referral unnecessary.

However, the earmarking of the Own Resources Decision and the regulation establishing the Corona Reconstruction Fund is also important. According to Article 122 (1) and (2) TFEU, the European Union can take action with concrete measures using binding legal acts, for example, to grant a Member State financial assistance under certain conditions in the event of serious supply bottlenecks, natural disasters, or extraordinary events. The above-mentioned instruments of Union law within the framework of the NextGenerationEU economic stimulus packages and the Recovery and Resilience Facility are explicitly based on this provision. The critical point here is whether the economic stimulus packages are only aimed at overcoming the immediate consequences of Covid-19. Only if they remain limited to this exceptional case and comply with the narrow earmarking can they be based on the exceptional provision of Article 122 TFEU, which is to be interpreted narrowly in principle.

A system of “own resources“, which in this respect not only serves as a reconstruction programme but spills over into many other subject areas, would be difficult to reconcile with Article 122 TFEU. Germany, for example, plans to use 37% of the European Union's allocations for climate protection and 20% for digitisation (BT-Drucksache 19/27838). While the use of funds for digitisation can be directly related to the Corona emergency due to the lockdown consequences and the limited possibilities of direct contacts between people, this is not the case for the use of funds for climate protection. It is not apparent why by far the largest share of Corona aid should be spent on climate protection, which has no connection to the Corona pandemic. On the contrary, if the pandemic has any "positive" effects, they have to do with the world climate. Of course, investments in climate protection can also create jobs. But it is doubtful whether this is still sufficiently directly related to combating the Corona consequences. For this reason alone, the GCC will also take a very close look at the earmarking of the European Union's Own Resources Decision. Here, the constitutional complaint has a realistic chance of success.

Second Problem: Violation of the prohibition of mutual liability?

Moreover, a violation of Article 310 and Article 125 TFEU by the Own Resources Decision and the legal acts implementing the NextGenerationEU reconstruction fund is not unlikely. From these norms follows the Union principle that the Member States act autonomously in their fiscal policy and must not mutually assume responsibility for their respective liabilities. Article 125 (1) TFEU contains the so-called "no bailout clause" in this respect. According to this, financial equalisation between the Member States is prohibited in Union law. Neither is the Union liable for the liabilities of Member States nor are Member States liable for the liabilities of other Member States.

The possible liability volume and the liability period are very critical here. Due to the long duration of the loans, future federal parliaments will be bound to the Own Resources Decision until 2058. No one will seriously assume that regular and recurring waves of crises will not occur in Europe until the last repayment instalment in 2058. New aid packages will also be put together in the next crises, as has always happened in the recent past. In this respect, the Own Resources Decision could mark the European Union's first step toward a fiscal union. The Corona emergency could be exploited to make a fiscal union inevitable through the normative power of the de facto. Instead of going down the path of amending the Treaties, the Member States and the EU seem to be attempting to form a fiscal union within the framework of budget planning.

The decisive question is whether Germany alone would be fully liable for 750 billion euros if necessary. If there are insufficient safeguards in the European Union's own resources system, a violation of Article 125 TFEU is inevitable. Finally, the lack of economic transparency in the procurement of funds is also problematic. Where and how will the European Union raise 750 billion euros in debt? Which institutions will provide the loans? Does the European Commission have a free hand in this?

A closer look at the Own Resources Decision can provide some answers, at least for the time being.

Article 9 (4) and (5) of the Own Resources Decision initially appear reassuring. It follows that if there are insufficient EU budgetary resources to repay the debt, the European Commission will first make up this financing shortfall by active treasury management and, if necessary, by recourse to short-term financing on the money market. Only if these possibilities are not sufficient can the Commission, as a last resort, require the Member States to make the shortfall provisionally available in proportion to their respective contribution to the EU budget. This proportionate interim financing seems to exclude, at least formally, liability according to the motto "one is liable for all".

The same pro rata provision of funds applies if a Member State cannot meet its share of the debt repayment. The defaulting Member State remains obliged to pay its financing share of the debt repayment. It can be concluded that this is not an assumption of liability in the true sense of the term, as funding from the remaining Member States is only temporary and not final. Legally, the defaulting Member State remains responsible and liable for its share of the financing and must pay it as soon as possible. It is a fact, however, that some Member States may not be able to make these payments.

However, Article 9 (6) of the Own Resources Decision reveals through several references (Article 6and Article 3 (1) and (2) the enormous extent of the liability risk for each member state. Currently, according to Article 3(1) of the Own Resources Decision, the total amount of “own resources“ available to the Union for annual appropriations for payments must not exceed 1.40% of the sum of the gross national income of all Member States. In the future, from 2028, according to Article 6, the annual “own resources“ ceiling will be raised by a further 0.6 percentage points until 2058. This may sound like little, but in reality, it is much more. This is confirmed by the following example calculation for Germany. According to the Federal Statistical Office (Destatis), the gross national income in Germany in 2020 was 3,427 billion euros. This would result in a liability sum for Germany of 0.6% of the gross national income with 20.5 billion euros (exemplary for the year 2020) per year. According to Art. 5, the borrowing of 750 billion euros is at 2018 prices and is subject to a fixed deflator of 2% per year. Therefore, a total debt of the European Union of up to €820 billion must be expected by 2026. With a repayment term of 31 years (from 2028 to 2058), the liability sum for a member state like Germany could amount to up to 770 billion euros in the worst case. This would effectively lead to a fiscal union.

Third Problem: Violation of the overall budgetary responsibility of the German Bundestag

However, even if the new Own Resources System of the European Union is in order under European law, the German Ratification Act must not violate the constitutional identity of the German Basic Law. Also European Union legal acts are to be reviewed against the standard of the Basic Law if this is indispensably required to monitor the preservation of Germany's constitutional identity, which is guaranteed by Article 23 (1) sentence 3 in conjunction with Article 79 (3) of the Basic Law. And here, too, the constitutional complaint likely has good prospects of success.

The GCC anchors the protection of the overall budgetary responsibility of the German Bundestag directly in Article 79 (3) of the Basic Law. The unalterable core area of the principle of democracy is violated if the German Bundestag is deprived of its parliamentary budgetary responsibility by a measure of the European Union to the extent that it or future federal parliaments can no longer exercise the budgetary right on their own responsibility. This also includes the prohibition to be jointly liable for the decisions of third parties with consequences that are difficult to calculate.

The question of the violation of the overall budgetary responsibility of the German Bundestag is strongly related to the second problem. Here, too, the question is whether Germany is exposed to incalculable liability risks. In the ESM ruling, the GCC had decided that the principle of democracy is only respected if the Bundestag remains the place where decisions on revenues and expenditures are made on its own responsibility. This decision also deals with international and European liabilities. In this ruling, the GCC had not assumed a violation of budgetary responsibility because the payment obligations assumed with the ESM Treaty did not exceed €190 billion, and liability beyond this was excluded by a joint declaration of the ESM members that was binding under international law.

Accordingly, one possible safeguard that the GCC could demand in the case of the Own Resources System ist he adoption of a protocol declaration that excludes the obligation to make additional contributions to repay the EU debt incurred under the Recovery and Resilience Facility.

An analysis of possible procedural scenarios

Starting point: Hanging decision

The decision of the GCC of March 26, 2021, is a so-called "hanging decision" (i.e., the decision only applies provisionally until the GCC has decided on the application for a temporary injunction). This is, therefore, "urgent preliminary legal protection " for particularly urgent cases where there is a threat of a fait accompli up until a decision is made on the urgent application. However, this also means that the decision of March 26, 2021, has not even been the penultimate word in this matter. The decisions on the preliminary legal protection and, in particular, on the merits of the case, are still pending. It will therefore take even longer for the court to decide on the constitutionality of the Own Resources Ratification Act.

So far, three things are still pending: (1) The statement of reasons for the hanging order. The GCC's order so far only states "The statement of reasons will be submitted later". (2) The preliminary legal decision on the urgent appeal. (3) The decision on the constitutional complaint on the merits.

First procedural problem: When will the statement of reasons be submitted?

We can only guess as to when the GCC will submit the reasons for its hanging decision. There have been no previous constitutional rulings on the matter. At the administrative court level, there have already been several hanging decisions. However, not much can be deduced from these that would apply to the constitutional summary proceedings. This is because these requirements do not apply without restriction to interim legal protection in constitutional complaint proceedings. In any case, it cannot be ruled out that the GCC will only submit its statement of reasons with the decision on the preliminary legal protection itself. 

Second procedural problem: Preliminary legal protection

In the meantime, the GCC will be able to clarify the open legal and factual questions concerning any safeguard mechanisms of the European Union's Own Resources System and how funds are raised, at least to the extent that a preliminary decision will be possible within the framework of a weighing of consequences. A preliminary injunction would be in effect for six months and could be renewed. The standard of review is different than in the main proceedings. It is about a weighing of consequences: "the consequences that would arise if the preliminary injunction were not issued but the application in the principal proceedings were successful must be balanced against the disadvantages that would arise if the preliminary injunction sought were issued but the application in the principal proceedings were unsuccessful". This also takes into account the public interest and the interests of third parties. Nonetheless, a preliminary injunction cannot be considered if principal proceedings are inadmissible or manifestly unfounded from the outset. The fact that the hanging decision was issued indicates that the emergency application has a chance of success and is not manifestly futile.

It will also be interesting to see how long it will take the court to issue a decision on preliminary legal protection. In the ESM proceedings, the GCC ruled on the interim injunction within three months after the oral hearing. Since the ESM proceedings also dealt with liability risks for the Federal Republic of Germany, it could be similar in this case. Likewise, a decision on the interim proceedings now pending could take just under three months.

Third procedural problem: Possible question for referral to the ECJ

The GCC will likely refer one or more questions to the ECJ. These would concern the substantive problems addressed above. Through the referral question, the GCC could persuade the ECJ to safeguard and contain the Own Resources Decision under European law.

In para. 118 of the PSPP judgment, the GCC stated the following: "Where an ultra vires review or an identity review raises questions regarding the validity or interpretation of a measure taken by institutions, bodies, offices and agencies of the European Union, the Federal Constitutional Court, in principle, bases its review on the understanding and the assessment of such a measure as put forward by the CJEU. However, this no longer applies where the interpretation of the Treaties is simply not comprehensible and thus objectively arbitrary (see paras. 112 and 113). "

This means that the GCC will generally accept the interpretation of the ECJ after a question of referral unless this is " simply not comprehensible ". The reason for this is the division of tasks between the courts. The ECJ is responsible for interpreting Union law, while the GCC interprets the GG (which, however, also includes Article 23 (1) sentence 2 in conjunction with Article 79 (3) in conjunction with Article 20 (1) and (2) of the Basic Law). This harsh choice of words is thus nothing other than a broad standard of review by the GCC. It serves to protect the ECJ's monopoly of interpretation of Union law.

Fourth procedural problem: Decision on the merits of the case

Two questions are then decisive for the likelihood of the decision on the merits: (1) Will the GCC refer the question to the ECJ? (2) If so, how will the ECJ answer the question?

If the GCC does not submit a question for referral to the ECJ, it is highly unlikely that there will be a further decision on the main case to the detriment of the Own Resources System. The reason for this is that since its Honeywell decision, the GCC has only interpreted the ultra vires control in a way that is friendly to European law, which includes a prior referral to the ECJ.

Should the GCC refer the matter to the ECJ, which seems likely, it will rely on its decision. The more convincing the justification of the interpretation of European law turns out to be and the sooner it limits the liability of the Member States, the less likely it is that the GCC will activate ultra vires review or identity review.

As a result, it is up to the ECJ to avoid an ultra vires decision or activation of identity control by providing a convincing answer and ensuring liability barriers. This is how interaction within the European constitutional court network functions. As long as the democratic feedback of the EU at least also happens via the Member States, an interplay between court actors of both levels (EU, Member States) is also necessary as a procedural safeguard.

 

Photo credit: Ronald Kunze, via Wikicommons Media

CJEU: European Arrest Warrants and independence of public prosecutors

Julia Burchett, PhD candidate at the Université libre de Bruxelles and the University of Grenoble

Introduction

The European Arrest Warrant, regularly presented as “the flagship” of EU criminal law, is in practice one of the most used mechanisms (if not the most used) of judicial cooperation in criminal matters. It consists of a simplified cross-border judicial surrender procedure for the purpose of prosecuting or executing a custodial sentence or detention order, thus replacing the traditional cooperation system involving political authorities from the Member States.

On 27 May 2019, the European Court of Justice (ECJ) provided further clarifications to the long-standing question regarding the definition of a « judicial authority » competent to issue an EAW, and ruled on the independence required to be regarded as such under EU law. It brought an answer to the doubt concerning the capacity of the Public Prosecutor’s Offices of the Member States to issue EAWs, a doubt raised notably by the opinion of Advocate General Campos Sánchez-Bordona in the Özçelik case in 2016 (C-453/16 PPU, para 45).

In two separate judgments, the Court distinguishes the German public prosecutor’s offices, which do not provide a sufficient guarantee of independence from the executive for the purpose of issuing a European Arrest Warrant (Joined Cases C-508/18 and C-82/19 PPU), from the Prosecutor General of Lithuania, which provides such a guarantee (Case C-509/18).

Legal question raised

The cases were brought before the ECJ by the Irish Courts after three defendants challenged the validity of the EAWs issued against them. They argued that the Public Prosecutor’s offices in Germany (in Lübeck and in Zwickau) and the Lithuanian Prosecutor General cannot be regarded as a ‘judicial authority’ within the meaning of Article 6(1) of the EAW Framework Decision, in so far as they do not enjoy sufficient independence from the executive power.

After discussing the main issues raised in the Court’s judgments, this contribution will address briefly their consequences, in particular for the German State, and the EU area of Criminal Justice.

Summary of the Court’s reasoning

The Court starts its judgment by preliminary remarks emphasizing the crucial function of the principle of mutual recognition, on which is based the EAW. Considered as a ‘cornerstone’ of the Area of Freedom, Security and Justice (AFSJ), the principle of mutual recognition is itself grounded on mutual trust, which lies on the assumption that all the Member States comply with EU law, in particular with fundamental rights recognized by EU law. While stressing the fundamental importance of these two principles and their implications within the context of the execution of an EAW, the Court states that “the principle of mutual recognition proceeds from the assumption that only European arrest warrants, within the meaning of Article 1(1) of Framework Decision 2002/584 must be executed in accordance with the provisions of that decision”. In other words, since an EAW is a judicial decision, only EAWs validly issued by a judicial authority should be executed.

The Court then proceeds in two steps to determine whether the authorities at stake may be regarded as a ‘judicial authorities’ for the purpose of issuing an EAW.

A broad interpretation of the notion of ‘judicial authority’

The first step consists of clarifying the scope of the notion of ‘judicial authority’. In this respect, the Court has already ruled in a trilogy of cases in 2016 (discussed here) that issuing Member States do not have absolute discretion, as the term requires an autonomous and uniform interpretation throughout the European Union.

As the ECJ has already stated in the 2016 judgments in Poltorak (C-452/16 PPU, para 33) and Kovalkovas (C-477/16 PPU, para 34), the words “judicial authority” must not be interpreted strictly as referring only to the judges or courts of a Member State, but as encompassing more broadly “the authorities participating in the administration of criminal justice in that Member State”, such as Hungarian prosecutors (Özçelik Case C-453/16 PPU). This broad interpretation is supported by the rationale of the EAW which aims to facilitate free movement of judicial decisions, including those prior to judgment, in respect of the conduct of criminal proceedings.

In view of the functions performed by the prosecutors in these three cases, the Court considers that this criterion is easily fulfilled, as the authorities in question play an essential role in the conduct of criminal proceedings in their respective Member State.

A strict interpretation of the requirement of independence

What is more controversial is the second requirement that the issuing judicial authority must act independently from the executive power when issuing an EAW. Pursuant to the principle of separation of powers, this fundamental requirement aims to ensure that the rule of law prevails and that the fundamental rights of the person requested are protected effectively, in the absence of any political considerations. In the 2018 LM case (C-216/18 PPU), discussed here, the ECJ has already highlighted the importance of judicial independence within the context of EAW, this is particularly important insofar as such mechanism allows for deprivation of liberty of the person concerned.

Thus, the Court, relying on EU applicable protection standards, examines whether the authorities at issue are capable to afford a sufficient level of judicial protection in issuing a EAW.

In this respect, the Court recalls that the EAW mechanism is based on a dual level of protection of procedural rights and fundamental rights, referring to another 2016 judgment about the distinction between national arrest warrants and EAWs (Bob-Dogi C-241/15, para 56). It requires effective judicial protection of the right of the person concerned to be granted at the moment a national arrest warrant is made and at the stage when an EAW is issued. While it is the responsibility of the ‘issuing judicial authority’ to guarantee that second level of protection, the Court requires it to be able to exercise its responsibilities objectively and independently. “That independence requires that there are statutory rules and an institutional framework capable of guaranteeing that the issuing judicial authority is not exposed, when adopting a decision to issue an arrest warrant, to any risk of being subject, inter alia, to an instruction in a specific case from the executive”. It logically follows that an organ from the executive cannot be designated as an issuing judicial authority (Kovalkovas C-477/16 PPU, para 48).

The Court proceeds to test those requirements against the situation of the German and Lithuanian public prosecutors’ offices. This stage marks the distinction between the two judgments. In the case of the two German EAWs (C-508/18 and C-82/19 PPU), German public prosecutors’ offices do not meet the requirement to act independently from the executive in issuing an EAW. This is part of the German prosecution hierarchical structure in which the Minister for Justice has an external power to issue instructions to the prosecuting authorities in question, which may have a direct bearing on a decision to issue an EAW. Despite the arguments put forward by the German government that such power of instruction is circumscribed by German law, these guarantees are considered insufficient by the Luxembourg Court. As a result of this strict interpretation, German public prosecutors will no longer be allowed to issue EAWs until a reform is made. In contrast, concerning the Lithuanian EAW case, the General Prosecutor of Lithuania is considered to offer sufficient guarantees of independence from the executive in carrying out his duties of issuing an EAW.

Commentary

With these judgments, the CJEU further develops its jurisprudence regarding the functioning of the EAW in an Area of Criminal Justice, in which mutual trust must not be confused with “blind” trust. As evidence by recent cases (LM C-216/18 PPU ; Joined Cases C-404/15 and C-659/15 PPU Aranyosi and Căldăraru, also discussed here and clarified by the 2018 judgment in ML), a more balanced approach between the fundamental rights of the person to be surrendered and the EU’s goal to guarantee free movement of judicial decisions seems to be taken by the Court, an orientation that appears to be confirmed by these cases.

Beyond the impact upon the individuals concerned by EAWs, the Court’s decisions are contributing significantly to clarifying the notion of “judicial authority” and to giving it an autonomous EU definition. Firstly, in line with its previous rulings, it confirms that this notion may extend beyond courts to include Public Prosecutor’s Offices, thus taking an opposite view from that expressed by the opinion of Advocate General Campos Sánchez-Bordona (joined cases OG C-508/18 and PI C-82/19 PPU, para 51). Secondly, in relation to EU fundamental rights protection standards, it clarifies the guarantees arising from the role of an “issuing judicial authority”, namely the requirement of independence.

Although this is a notable step towards effective judicial protection, it involves new issues to consider for the competent authorities of the Member States. It implies that executing authorities receiving EAWs will have to verify whether the issuing authorities qualify as independent judicial authorities, within the meaning of the ECJ case-law, prior deciding on the surrender of the requested person. The European Judicial Network (EJN) website has already made information available for this purpose based on answers provided by some EU Member States (Austria, Denmark, Germany, Italy, Sweden). As stated in a note issued by the German delegation concerning the consequences of the ECJ’s judgment, “Germany will adjust the proceedings to issue a European Arrest Warrant. From now on, European Arrest Warrants will only be issued by the courts. This can be achieved without changing the existing laws.” While consequences to be given to the lack of independence of prosecutors remain to be seen, the German delegation asked and suggested that the other Member States “decide, whether an existing European Arrest Warrant that has been issued and signed by a German prosecutor could be accepted as grounds for keeping a person in detention according to Article 12 of Council Framework Decision 2002/584/JHA. In such cases, the German court responsible for issuing a European Arrest Warrant would be required to assess within a very short-time frame whether the requirements for issuing a warrant are fulfilled”. A first and second series of notes from other Member States have followed.

Thus, these judgments will have a crucial impact, not only in Germany, but also beyond, affecting the EU area of criminal justice as a whole.  It implies a need to evaluate and eventually reform the organization of the criminal justice system in certain Member States.

Barnard & Peers : chapter 26

JHA4 : chapter II :3

Photo credit : Qantara.de

The Case of the Administrative Arrangement on Asylum-Seekers between Greece and Germany: A tale of “paraDublin activity”?

Stathis Poularakis, Legal advisor - Advocacy Officer Médecins du Monde – Greece*

* Reblogged from the EDAL blog. An earlier version of this article was published in Greek on immigration.gr blog. The views and opinions expressed in this article are those of the author and do not necessarily reflect the official policy or position of Médecins du Monde – Greece. Special thanks go to Evangelia Tzironi, PhD Candidate at the Law School of the National and Kapodistrian University of Athens for proofreading the article.

In mid-August 2018, Germany, Greece and Spain agreed on the sketchy details of the initial migration compromise deal that was reached on the sidelines of the EU Summit in Brussels in late June 2018. In this context, the Ministers on Migration of Germany and Greece reaffirmed their commitment by exchange of letters, to work towards common European solutions and to avoid any unilateral measure with respect to migration and asylum.  

In particular, both countries underlined their support for concluding the revision of the Common European Asylum System by end of 2018 “with the aim of achieving the goal of fair sharing of responsibility and solidarity”. In the event of a crisis – defined as a situation where asylum applications have surpassed a certain percentage e.g. 140% of a State’s fair share of asylum applications based on objective criteria (total population and GDP) – Germany committed to support Greece in the Council (of the European Union), especially on the adoption of additional support measures at European Union level. Germany agrees also that further supportive and development measures need to be adopted on the five Greek islands of Eastern Aegean, where the hotspot approach is implemented, in order to assist local communities. Finally, Germany affirms its commitment to increase the human resource capacity in Greece, through the EU Asylum Support Office (EASO), with the aim to strengthen the asylum system.

The final operational details of the aforementioned political agreement were annexed to the letters, under the Title “Administrative Arrangement”. This blog post aims to outline the key points of this “Arrangement”, to examine its legal nature arguing that argue that this document is a bilateral treaty whose scope extends beyond the Dublin Regulation, and to critically assess its impact on the EU asylum policy.

The content of the Administrative Arrangement

The Administrative Agreement is comprised of 15 articles and divided into three sections. The first part includes arrangements for the readmission to Greece of persons identified in the context of temporary checks at the German-Austrian border, having previously applied for asylum in Greece. The second part includes provisions for concluding pending Dublin cases of family reunification from Greece to Germany, and finally, the third section includes provisions on the review of the implementation of the "agreement", the mutual dispute settlement and beginning and ending of the aforementioned cooperation between the two countries.

In particular, under the "Administrative Arrangement", the following are agreed:

Germany will return to Greece, any adult third-country national who has been identified during a check at the German-Austrian border and wishes to apply for international protection if he/she has already applied for asylum in Greece i.e. when an entry in Eurodac (the EU system of exchanging fingerprints of asylum-seekers) indicates that the person has already requested protection in Greece, and such entry is dated from July 1st, 2017 onwards. Unaccompanied children (under the age of 18) at the time of the identification are excluded from readmission to Greece.

The German Authorities will provide notification of the refusal of entry to the Greek responsible authority using the form annexed to the Agreement via fax or email. The return should be initiated no more than 48 hours after the person has been apprehended, unless the Greek side objects to the return within six hours from the automatic confirmation of the receipt of the notification of the refusal of entry, demonstrating why the conditions of the administrative agreement have not been met. Within 7 days of the readmission, if the Greek authorities demonstrate that the above conditions had not been met (refusal of entry in error), Germany will readmit the person concerned without delay.

Germany commits to swiftly concluding family reunifications from Greece in the framework of the Dublin III Regulation by the end of 2018, with respect to “take charge” requests already accepted by the German Dublin Unit before 1 August 2018. It should be noted that due to the high number of Dublin transfers from Greece to Germany over the last year, asylum seekers entitled to be transferred to Germany under the relevant provisions of the Dublin III Regulation, were “blocked” in Greece for periods exceeding the six-month deadline provided by art. 29 of the Regulation. Germany also undertakes to examine all pending “take charge” requests that have been submitted before 1 August 2018 that have not been examined yet within two months of the beginning of the cooperation between the two parties based on this Administrative Agreement. The number of people to be transferred from Greece to Germany is capped at 600 people per month and family reunifications should be completed by December 2018.

At the same time, the German authorities will examine and reply "without undue delay" to all requests for re-examination submitted before 1 August 2018. To this end, the Greek authorities will provide a relevant sortable list with case numbers and submission dates. Passports and ID cards, marriage and birth certificates, family booklets, as well as the transcript of the interview with the person concerned, will be considered as evidence, when submitted in relation to a currently pending request for re-examination. These documents will be submitted in their original language. A translation in English will be also submitted, if available. It is explicitly envisaged that the submission of documentation in its original language (without translation) may not be used as a justification for rejecting the request for re-examination.

The cooperation between the two countries based on the Administrative Arrangement starts from the day of its acceptance by the Greek Minister on Migration Policy (dated 18.8.2018). The two parties will review the implementation of the agreement on a three-month basis. Each Party may withdraw from the Agreement by notifying the other Party in writing at least three weeks in advance. Lastly, it is explicitly envisaged that the agreement will discontinue upon entry into force of the revised Common European Asylum System.

"Administrative Arrangement" or international treaty?

The first issue raised by this so-called "Administrative Arrangement" concerns its actual legal nature.

Based on the public statements made so far and the title given to the document, it could be argued that the latter could be understood to be an informal non-treaty instrument - an arrangement on operational issues and actions in line with EU law. According to this argument this text seems to be in conformity with Article 36 of the Dublin III Regulation, which stipulates that Member States may, on a bilateral basis, establish administrative arrangements between themselves concerning the practical details of the implementation of this Regulation, in order to facilitate its application and increase its effectiveness. Such arrangements may relate to exchanges of liaison officers and the simplification of the procedures and shortening of the time limits relating to transmission and the examination of requests to take charge or take back applicants.

However, taking as a point of departure that negotiating States have the autonomy to choose between complex or simplified forms of express consent to be bound by a treaty (in the present case by exchange of instruments under Article 13 of the Vienna Convention on the Law of Treaties (VCLT), and given its content, it could also be argued that the “Agreement” could be perceived as an international treaty concluded in simplified form. This agreement in fact sets forth the “technical” modalities of the earlier political agreement between Chancellor Merkel and Prime Minister Tsipras in Brussels last June, in the sidelines of the EU Summit. International treaties in simplified form are concluded without the need for ratification by the State, nor the consent of the parliament. They are usually signed by Ministers or any other body authorized under national law and are related to technical or administrative issues of cooperation, military pacts concluded on a battlefield or arrangements for the application of a binding (“typical”) international treaty.

 

In order to draw a safe conclusion on the nature of the “administrative arrangement”, all the circumstances around the exchange of letters should be meticulously examined. “Treaty” means an international agreement concluded between States in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation (Article 2(1)(a) of the VCLT). Whatever its designation (convention, accord, protocol, exchange of letters, agreed memorandum, memorandum of understanding), the intention of negotiating parties to create binding legal obligations marks the difference between treaties and informal instruments. To wit, even an exchange of letters could be considered as an international treaty.

A closer look on the actual content of the "Arrangement" suggests that this is not just an informal international non-binding agreement or arrangement on technical details of cooperation between the two Parties for the implementation of the Dublin Regulation, but rather a legal instrument setting forth “new” binding rules whose scope moves beyond the obligations established under the Dublin III Regulation.

In fact, the first part of the “Arrangement” contains clauses that are usually included in readmission agreements. No such an agreement has been ever signed between Germany and Greece. In particular, the clauses of the Arrangement lay down, among others, the specific conditions for readmission, the competent authorities of each State, the procedure to be followed, the responsible State in terms of costs etc. A standard template form is also included so as to facilitate the return. In reality, the “Arrangement” does not establish simplified and streamlined procedure for “Dublin transfers” (the wording “transfer” in not used in the text) but rather a fast-track readmission procedure for persons refused entry at the German-Austrian borders, likewise in any other case of an irregular migrant refused an entry in Germany. 

Another crucial element regarding the legal nature of this “Arrangement” lies with the specific clauses on family reunification that undoubtedly enumerate commitments to which the Parties have consented and their intention to create legal rights and obligations that go beyond those already provided for in the "Dublin III” Regulation. Namely, assuming the obligation to accept a transfer of an asylum seeker from Greece to Germany upon expiry of the 6 months’ time-limit under Article 29 of the Regulation – where the respondent MS is relieved of its obligations to take charge or to take back the person concerned – is a “new” obligation for Germany enshrined in the "Administrative Arrangement".

The same also applies for the obligation to re-examine all rejected requests for “take charge”. To avoid any confusion, one should make a clear distinction between the potential responsibility of Germany for the infringement of the time-limits and conditions laid down in the Dublin III Regulation, e.g. for breaching EU law, and the legal obligation of Germany to actually accept transfers for which its responsibility has already ceased under “Dublin”. These obligations are now explicitly assumed by the aforementioned "Administrative Arrangement".

It is worth mentioning that last year the competent Ministers of Greece and Germany had reached to a similar informal arrangement by which Dublin transfers to Germany were capped at 70 persons per month for a certain period of time. This informal agreement, however, was rather a "gentleman's agreement" between the two states without creating clear binding obligations for both parties. In any case, the conformity of this agreement to the Dublin Regulation is open to discussion, since the Dublin Regulation does not foresee such caps on relevant transfers for administrative convenience reasons.

Finally, one could hardly argue that during Merkel and Tsipras΄ meeting in Brussels, where a common political agreement was reached on migration, the two leaders concluded a formal treaty under international law with the subsequent "administrative arrangement” serving as a treaty in a simplified form, laying down modalities for the application of the treaty concluded by the two heads of state.

For all these reasons, the "administrative arrangement" should not be considered as a "gentlemen's agreement", nor as an administrative arrangement under Article 36 Dublin III Regulation but rather as a binding bilateral treaty whose provisions establish obligations that go beyond the scope of obligations established under the Dublin III Regulation. The agreement thus is governed by international law; an international treaty between Greece and Germany. This contravenes EU law which does not allow legislation at national level or bi/multilateral inter-se agreements in policy areas of shared competence, to the extent that the EU has exercised its competence, as it did through the adoption of the Dublin III Regulation (see TFEU Art 2(2); TEU Art. 4(3), third indent, and Protocol 25 to the TFEU). 

Dublin revisited or further violation of EU law?  A glimpse into the future of EU asylum policy

Another key point of concern is the impact of this bilateral agreement on EU’s asylum policy.

Could this “Administrative Arrangement” be seen as a new, enhanced and adapted to current developments, version of the Dublin rules, that is to say a bilateral agreement between two Member States that aims at strengthening the Dublin rules and principles or just another agreement beyond the scope of Dublin Regulation governed by international law?

One could argue that such bilateral agreements are rather symbolic in nature. They indicate that compromises at European Union level are feasible. As talks on the revision of the Dublin III Regulation stall, the establishment of interim measures among those Member States willing to move ahead collectively at European Union level (“enhanced cooperation”) seems indeed to be the only possible way to actually make progress in this area. However, that enhanced cooperation should to be done under the framework of EU law, i.e. following the procedures of EU law and not bilaterally as an inter-se agreement.

But is this "administrative arrangement" actually such a measure of European Union cooperation? Although the responsible Ministers expressly commit to continue working towards common European Union solutions and avoiding unilateral measures in relation to asylum and migration, this agreement is in fact just another – deeper – derogation from/violation of the European Union acquis. In fact, through such agreements, Germany cooperates with Member States serving as a key point of entry in EU by creating a “Quasi-Dublin” system / a Dublin-like system creating obligations that go beyond the scope of the Dublin III Regulation (i.e. extension beyond the 12 month period for the responsibility for irregular entry) and limitations that are not foreseen in the Regulation (such as caps on the numbers of transfers under the family reunion clauses). A system which, on the one hand, follows the general philosophy of the Dublin Regulation (application of the first country of entry criterion), but, on the other hand, is "free" from all “obstacles” that could jeopardize swift returns – namely clauses and safeguards provided for asylum seekers by the Dublin Regulation, such as family unity criteria, right to appeal against the application of Dublin criteria and deadline to appeal against the transfer decision etc.

Undoubtedly, Southern Member States serving as the main gateways to Europe for third country nationals are in absolute need of European Union solutions on the basis of solidarity and fair responsibility sharing. In this context, the revision of the Dublin III Regulation and the introduction of a permanent allocation mechanism among European Union states is a key issue for Greece. One can hardly wonder why Germany would then be interested in reforming the Dublin Regulation if a more flexible "Quasi-Dublin" system- tailored to its needs- has already being established. Bilateral agreements, such as this, with one of the most prestigious EU countries, could draw away any possibility of a positive revision of the Dublin Regulation for Southern Member States in the near future.

In any case, this "administrative arrangement" marks an alarming development in the context of Greece’s migration policy. To date, Greece has signed and ratified a number of agreements on the readmission of persons irregularly entering or staying in its territory. For all these agreements, the usual process of concluding international treaties was followed: Signing of an agreement, protocol, or treaty and its ratification by the Parliament, according to Article 36 of the Greek Constitution. On the contrary, in the present case, it is the first time that a readmission agreement is concluded by Greece through an exchange of letters between Ministers. Though such an agreement is totally valid and binding under international law, the fact that it not only deals with international relations and migration policy but ultimately with human rights, is concluded away from parliamentary scrutiny and procedures – without even being published in the Government Gazette – raises important concerns on transparency and the rule of law.

Barnard & Peers: chapter 26

JHA4: chapter I:5

Photo credit: Fortune