The implementation of the EU Return Directive: The European Parliament aligns the EU expulsion policy with recommendations of UN human rights expert mechanisms

 

Izabella Majcher, PhD in International Law; Senior Legal Officer, ECRE*

*The views expressed in the post are those of the author and do not necessarily reflect the position of ECRE 

On 17 December 2020, the European Parliament (hereafter Parliament) adopted the Resolution on the implementation of the Return Directive (2008/115/EC). The Resolution is an outcome of an own-initiative procedure launched in December 2019 as a response to a failure by the European Commission (hereafter Commission) to carry out an evaluation of the implementation of the Directive. In line with the better regulation guidelines, Article 19 of the Directive provides that the Commission should report on the application of the Directive every three years, starting from 2013. However, the Commission did so only once, in 2014 (see discussion here). In fact, failing to evaluate the implementation of the Return Directive did not prevent the Commission from issuing guidance on the implementation of the Directive and even proposing a recast of the Directive. In 2017, the Commission published the Recommendation on making returns more effective when implementing the Directive and the Return Handbook, which were followed in 2018 by a proposal to recast the Directive, which was not accompanied by an impact assessment. (On the proposed recast of the Directive, see discussion here and here).

 

It is worthwhile to juxtapose the Parliament’s Resolution and the Commission’s Recommendation, since both documents are meant to instruct the Member States on how to implement the Return Directive. Technically, the Commission’s Recommendation may have a stronger legal effect, as recommendations are listed in Article 288 of the TFEU as legal acts with no binding force (non-legislative acts). However, applying Senden’s classification of the EU soft law instruments, both the Parliament’s Resolution and the Commission’s Recommendation should be considered “interpretive soft law acts,” meaning that they “restate or summarize the interpretation that should be given to Community law provisions.” Also, relying on Hanchez’s terminology, since both documents refer to a key legal instrument (namely the Return Directive) which is legally binding, both qualify as “intra-legislative soft law.” In addition, while the Commission’s Recommendation was not informed by any actual evaluation of the implementation of the Directive, the Parliament’s Resolution was based on an implementation assessment, carried out by the European Parliamentary Research Service. Also, the adoption process was highly participatory and involved a considerable proportion of the members of the Parliament. After the draft resolution was presented in the Parliament LIBE Committee in early July 2020, 240 amendments were tabled by the members of the Parliament, and the compromise text was voted in LIBE in early December. In the plenary vote on 16 December, the Resolution was adopted with 512 votes in favour, 134 against and 49 abstentions.

 

To assess the respective weights of the Parliament’s Resolution and Commission’s Recommendation, the discussion should look beyond the form of the document and analyse the content of the position of the EU institutions. In fact, the EU return policy cannot be disassociated from international law, and the implementation of the Return Directive does not exonerate EU Member States from their international human rights obligation. Chapter VIII of the UN Charter foresaw the creation of regional agencies or arrangements whose “activities are consistent with the Purposes and Principles of the United Nations.” Return/expulsion of migrants in an irregular situation is regulated by a wide array of international human rights norms and standards, in particular the prohibition of refoulement, ill-treatment and collective expulsion, the right to life, liberty, family and private life and an effective remedy, as well as the principle of the best interests of the child. These norms are laid down in international and regional conventions, which all the EU Member States are party to, in particular the International Covenant on Civil and Political Rights (ICCPR), UN Convention against Torture, UN Convention on the Rights of the Child and Council of Europe’s (CoE’s) European Convention on Human Rights (ECHR). Based on this set of international norms, the UN Special Rapporteur on the Human Rights of Migrants (SRHRM), which is an independent expert mechanism reporting to the UN General Assembly and the Human Rights Council, issued thematic recommendations on return/expulsion within his 2018 Study on the return and reintegration of migrants.

 

The objective of this blog post is to discuss the key elements of the Parliament’s Resolution by contrasting them with the Commission’s Recommendation. The discussion of the diverging position of both EU institutions on the Return Directive will be presented against the background of the relevant international norms and standards, as encapsulated in the SRHRM’s recommendations.

 

1) Effectiveness of return

Since the wake of the so-called refugee crisis, the Commission has measured the effectiveness of the return policy based on merely the return rate (i.e. the proportion of return decisions issued in a given year to the number of returns in that year). The return rate rhetoric has dominated the Commission’s statements since then and the annual number of returns, considered insufficient by the Commission, led the Commission to propose policy and legal instruments that restrict the human rights guarantees and include disproportionate focus on return (including the recent Pact on Migration and Asylum). Conversely, the Parliament brings a much-needed broader perspective of effectiveness of the Return Directive. According to the Parliament, the effectiveness of the Return Directive should be measured not only by referring to the return rate but also by considering the sustainability of returns, implementing fundamental right safeguards, respecting the procedural guarantees and measuring the effectiveness of voluntary returns (§ 4). Further, the Parliament recognises that return rate is not a precise indicator. In fact, some states issue more than one return decision to a person and to people whose whereabouts are unknown, return decisions are not withdrawn if the return does not take place, and some people return voluntarily without their return being registered (§ 3).

 

2) Applicability of the Directive in border settings  

Article 2(2)(a) of the Directive allows states to not apply the Directive to people who are refused entry in accordance with Article 14 of the Schengen Borders Code (SBC),  who have been apprehended/intercepted “in connection with the irregular crossing” of the external borders and who have not subsequently obtained a right to stay. Although people subject to this derogation are to be ensured several safeguards enumerated in Article 4(4) of the Directive, this derogation raises several concerns. First, states may interpret the notion “in connection with” the irregular border crossing in a broad manner (although the ruling of the Court of Justice of the EU (CJEU) in Affum provides a narrow reading on this provision); second, it allows parallel procedures (based on either the Directive or SBC), which reduce legal certainty; and last, it risks limiting protective safeguards in the border context. According to the Commission, states should make use of the derogation under Article 2(2)(a) when this can provide for more effective procedure (§ 8). However, effectiveness cannot be equated with deficient procedures, and the Parliament stresses that this clause may lead to diminished safeguards compared to the regular return procedure and, therefore, urges states to apply the Directive to border situations (§ 21).

 

3) Return decision

Under Article 6(1) of the Directive, states should issue a return decision to any person in an irregular situation, without prejudice to a few exceptions. Under international human rights law, the key bars to return are the principle of non-refoulement and the right to family and private life. Articles 12 and 13 of the Directive spell out procedural guarantees and remedies for the persons concerned, which in all cases need to comply with the right to an effective remedy under the ICCPR and ECHR.

 

The principle of non-refoulement. According to the Commission, states should not assess the risk of breach of the principle of non-refoulement, if it has already been assessed in other procedures, the assessment is final, and there is no change in the person’s situation (§ 12(d)). Yet, under Article 5 of the Directive, states should respect the principle of non-refoulement when implementing the Directive, and the Parliament recalls that the principle of non-refoulement is binding on states in all circumstances (§ 19). The “other procedures” referred to by the Commission are typically asylum procedures, which commonly assess whether the person qualifies for refugee or subsidiary protection status, as defined under the Qualification Directive. Both protection statutes are narrower than the absolute protection from refoulement under the Return Directive. So, asylum procedure cannot substitute for assessing the risk of refoulement prior to or within the return procedure.

 

Return of unaccompanied children. The SRHRM stresses that children should be returned only when the return has been proved to be in their best interests through an appropriate procedure before a competent authority and with proper representation of the child (§ 92(d)). By virtue of Article 5 of the Directive, when implementing the Directive, states should take due account of the child’s best interests. The Commission supports returning unaccompanied children. It highlights that the prohibition to issue return decisions to unaccompanied children, which exists in the national legislation of several Member States, can create unintended consequences for irregular immigration, inciting unaccompanied children to embark on perilous journeys in order to reach the EU (recital 22). However, according to the Parliament, unaccompanied children should not be returned unless it can be demonstrated that it is in the child’s best interests (§ 18). (See now the CJEU’s recent judgment on applying the Directive to unaccompanied minors).

 

Effective remedy. Under Article 13 of the Directive, the person should be afforded an effective remedy to appeal against the return decision before competent authorities. In this context, according to the Commission, states should allow the shortest possible time-lines for lodging appeals against return decisions (§ 12(b)). On the contrary, noting differences between states regarding the time-limits of appeal, the Parliament reminds states to guarantee the right to an effective remedy (§ 20). Indeed, in the Strasbourg jurisprudence, the right to an effective remedy under Article 13 of the ECHR requires that the person has sufficient time to appeal against the return decision.

 

4) Regularisation

According to the SRHRM, states should offer protection from return to people who do not qualify for refugee and are in need of human rights protection. The SRHRM favours regularisation channels for people who have established ties in the host country or who would face rights violations upon return (§ 90). Under Article 6(4) of the Directive, states may grant a residence permit to a person in an irregular situation. Using this provision to regularise the stay of non-returnable people would end protracted limbo situations, which defeat effectiveness of the return policy and are likely to lead to breaches of fundamental rights. Yet, in its Handbook, the Commission stresses that states are not obliged to grant a permit to non-returnable people but may decide to do so under Article 6(4) (p. 138–139). On the other hand, the Parliament encourages states to expand the use of this provision. The Parliament has expressed its concern over the failure of states to issue a temporary residence permit where return has proven not to be possible, which often leaves unreturnable migrants unable to access their fundamental rights. The Parliament underlines that granting residence permits to non-returnable people could remove them from administrative limbo, reduce risk of labour exploitation, prevent protracted irregular stay and, ultimately, facilitate their social inclusion and contribution to society (§ 23).

 

5) Mandatory (“voluntary”) departure

Article 7 of the Directive lays down a general rule that the person should be provided with the possibility to leave on his/her own rather than being deported, which is called voluntary departure (referred elsewhere as mandatory departure, as this measure is not genuinely voluntary). According to the SRHRM, states should facilitate voluntary return (§ 88). Voluntary departure should be prioritised also under the EU law principle of proportionality, as restated in the CJEU’s ruling in Zh. and O. (discussed here).

 

Time-period for departure. Pursuant to Article 7(1)-(2) of the Directive, as a general rule, the period for voluntary departure should be between 7 and 30 days and can be extended in specific circumstances of the case. The Commission instructs states to provide for the shortest possible period for voluntary departure and grant a period longer than 7 days only when the person actively cooperates with the return process (§ 18 and 20). However, the Commission’s stance finds no support in the provisions of the Article 7 of the Directive. Crucially, an overly short period for voluntary departure may stripe such return of any voluntariness and ultimately reduce the uptake of voluntary departure programmes and defeat one of the key objectives of the Commission’s upcoming Strategy on Voluntary Return and Reintegration. Recalling the language of Article 7(1)-(2), the Parliament welcomes the provisions in several states that allow for extensions of the period of departure beyond 30 days (§ 12-13).

 

Refusal of voluntary departure. Under Article 7(4) of the Directive, states may refrain from offering the period for voluntary departure or may grant a duration shorter than a week in one of the following three circumstances: if the person’s application was dismissed as manifestly unfounded or fraudulent, the person represents a risk of absconding or the person threatens public policy or public/national security. The Commission entirely misreads Article 7(4) and notes that in those three circumstances, no period for voluntary departure should be granted (§ 21). For its part, the Parliament reminds that the three circumstances under Article 7(4) are exceptions (§ 12). As such, the Parliament’s position aligns with the CJEU’s ruling in Zh. and O., where the Court found that the three circumstances are exceptions to the general rule of granting a voluntary departure period and should be narrowly interpreted.

 

6) Detention

Under Article 15 of the Directive, states may detain a person subject to the return procedure to prepare return, unless other sufficient but less coercive measures can be applied effectively, if the person represents a risk of absconding or avoids/hampers the return process. This provision further sets out various detention safeguards, which in any case should be applied in accordance with the requirements stemming from the right to liberty under the ICCPR and ECHR.

 

Use of detention. The Commission prioritises detention. In the Commission’s view, detention can be an essential element to enhance the effectiveness of the EU return system (recital 16) and states should use detention to effectively ensure removals (§ 10(a)). Conversely, the Parliament brings the interpretation of Article 15 of the Directive in line with the international human rights law by stressing that detention must remain a measure of last resort, be necessary, reasonable and proportional to the objectives to be achieved, and be based on an assessment of the individual circumstances of the case (§ 30). These safeguards have been restated by the UN Working Group on Arbitrary Detention (WGAD) in its 2018 Revised deliberation no. 5 on deprivation of liberty of migrants, and the Parliament could have referred to this document.

 

Detention of children. The Commission encourages states to detain children. According to the Commission, states should not preclude in their national legislation the possibility to detain children, when this is “strictly necessary” to ensure removal, if states are not able to ensure alternatives to detention that can be applied effectively to ensure removal (§ 14). On the contrary, the Parliament agrees with the UN Committee on the Rights of the Child (CRC) that children should never be detained for immigration purposes, as detention can never be justified in children’s best interests. However, the Parliament further calls on the Member States to provide adequate, humane and non-custodial alternatives to detention (§ 34), which is an unfortunate demand. In this context, the UN CRC and UN Migrant Workers Committee, in their 2017 Joint general comment on State obligations regarding the human rights of children in the context of international migration, which the Parliament is implicitly referring to, do not recommend that states place children in alternatives to detention. Rather, the Committees call upon states to place unaccompanied children in alternative care structures and children with families in non-custodial facilities (§ 11-13). Likewise, in its 2020 recommendations on ending immigration detention of children, the SRHRM urges states to end child immigration detention and provide for adequate alternative care and reception for children, which implies that children are to be under child protection authorities, rather than immigration authorities (which typically manage alternatives to detention) (§ 86). The position of the UN expert mechanisms is premised upon the norm of non-detention of children. If children should not be detained and should enjoy the right to liberty, they should not be placed in alternatives to detention either, as these measures apply to people whose detention is lawful but not necessary and proportionate.

 

Length of detention. Under Article 15(5)-(6), detention can last up to 6 months and is extendable to 18 months in two circumstances. The EU institutions disagree when it comes to correlation between the length of detention and the possibility to remove the person. For the Commission, the maximum length of detention used by several states is significantly shorter than the one allowed under Article 15(5)-(6) of the Directive and precludes effective removals (recital 17). According to the Commission, states should introduce the maximum periods for detention under Article 15(5)-(6) in their domestic law (§ 10(b)). On the other hand, stressing that detention must last for the shortest time possible, the Parliament notes that states should not automatically resort to the maximum period permissible under the Directive. It reiterates that longer detention does not automatically increase the possibility of return and is generally more costly than alternatives to detention (§ 30-31).

 

7) Entry ban

According to Article 11 of the Directive, the return decision should be accompanied by an entry ban if the person has not received a period for voluntary departure or has not left the country within that period. In other cases, the imposition of an entry ban is optional. The entry ban prevents the person’s legal return to the whole Schengen area for up to five years, or longer in the case of a serious threat to public policy or public/national security. Although not explicitly provided in the Directive, an entry ban is subject to the principle of proportionality, which was restated by the CJEU in Zh. and O.; hence, it should be based on an individual assessment and imposed as a last resort.

 

Imposition and withdrawal of entry ban. In its Return Handbook, the Commission underlines that the Directive obliges states to issue an entry ban in two aforementioned circumstances (p. 125). On the other hand, the Parliament reiterates that an entry ban should not be automatically applied but should instead be based on an individual assessment (§ 17 and 25). Under Article 11(3) of the Directive, states may refrain from issuing, withdraw or suspend an entry ban for humanitarian or other reasons. In this regard, the Parliament recognises disproportionate consequences of an entry ban, in particular for families and children, and welcomes the practice by some states of exempting children from this measure. Stressing that children’s interests should also be a primary consideration when deciding on entry ban of their parents, the Parliament calls on states to ensure family reunification and respect for the right to family life, including by refraining from imposing entry bans (§ 27). Further, as the situation of a person may change during the period of an entry ban, the Parliament recommends that states lift the entry ban where the need for international protection arises and provide for effective procedures to this effect (§ 25).

 

Entry ban alongside voluntary departure. In its Return Handbook, the Commission asserts that an entry ban may be imposed even if the person departed voluntarily but encourages states to manage this measure in a way that incentivises voluntary departure (p. 125). For its part, the Parliament stresses that enforcing entry bans alongside voluntary departure may reduce an incentive to comply with a return decision and increase the risk of absconding. At least, as the Parliament notes, states should use the provisions of the Directive to allow for the entry ban to be lifted where the person can demonstrate to have left the territory of the state (§ 24 and 26).

 

8) Post-return monitoring

Following several reports of abuses and ill-treatment that people face upon return, the UN Committee against Torture, CoE Parliamentary Assembly, academia and civil society called for carrying out post-return monitoring. According to the SRHRM, no one should be returned without proper oversight by an independent post-return human rights monitoring mechanism (§ 89). In its Return Handbook, the Commission asserts that forced return monitoring that states should ensure under Article 8(6) of the Directive does not extend to post-return monitoring and does not cover the period following reception of the returnee in the destination country (p. 119). Conversely, the Parliament urges the Commission to establish a post-return monitoring mechanism to understand the fate of returned people, facilitate the exchange of good practices among the Member States on post-return monitoring and allocate sufficient funding for this purpose (§ 35).

 

Concluding thoughts

The Parliament’s Resolution is a useful guidance on how Member States should implement the Return Directive. It is based on the premise that the Directive has a double objective, namely effective return and compliance with fundamental rights. The Parliament makes clear that the effectiveness should be measured not only by means of return rate but also by assessing the sustainability of return and human rights compliance. The Resolution demonstrates that it is possible to combine human rights compliance and effectiveness, which currently is unheard of from many Member States and EU leaders.

 

On several points, the Resolution clearly contrasts with the Commission’s Recommendation, as it reminds states that they are bound to respect the principle of non-refoulement at any stage of the return process; unaccompanied children should not be returned unless it is proved to be in their best interests; the length of the period for voluntary departure should be adequate; detention is a last resort measure; children should not be detained; and an entry ban should not be systematically imposed. In addition, the Parliament proposes other crucial safeguards, notably regularisation of non-returnable people and a post-return monitoring mechanism. The Parliament also advocates for applying the Directive in a border context, which would help increase legal certainty and respect for fundamental rights within the recently proposed border return procedure in the Commission’s proposal for the Asylum Procedures Regulation (discussed here and here). Several problematic elements of the Commission’s Recommendation discussed here have been later included in the draft recast of the Directive and have prompted concerns by the FRA, academia and civil society. Hence, the Resolution is timely as it can herald the Parliament’s position in the upcoming trilogue negotiations.  

 

Beyond the realm of EU law and policy, with the Resolution, the Parliament brought the EU return policy in alignment with the international norms and standards on return/expulsion, recapitulated in the 2018 SRHRM’s recommendations. The Parliament’s implicit reference to the General Comment by the UN CRC is welcome, and it is hoped that EU institutions will begin to explicitly acknowledge other relevant UN standards, notably WGAD’s deliberation on immigration detention and SRHRM’s thematic recommendations. Moreover, the Resolution may reverse the trend whereby the EU attempts to curtail protective safeguards in international (prohibition on child detention in the Global Compact on Migration) and regional (stronger rules in the CoE’s European rules on immigration detention) instruments in the area of irregular migration. Ultimately, these standards are premised upon treaties that are binding on the EU Member States, regardless of the provisions of EU legislation. It is time for the EU to clearly restate and show its respect for the human rights of people in an irregular situation if it wishes to be an authoritative and credible voice when condemning violations of migrants’ rights in other world regions, as it commonly does.  

 

Barnard & Peers: chapter 26

JHA4: chapter I:7

Photo credit: David Iliff, via Wikimedia commons

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

Enforcement Priorities Paper on Article 102 TFEU: Is a Title Enough to Overtake Constitutional Rules and Fundamental Rule-of-Law Principles?

Konstantinos Sidiropoulos

DPhil Candidate at University of Oxford – Prof Steve Weatherill

Foundation for Education and European culture scholar

Introduction

There has been an intense debate around the optimal standard regarding abuse of dominance control in the EU. In an attempt to address the multiple complaints against the approach adopted to unilateral conduct control, in the early 2000s, the European Commission initiated a review of the law and practice of the relevant provision (see the EAGCP Report and the Discussion Paper). The recurring objective of the review was to inject more economic thinking into the enforcement of what is now Article 102 TFEU (see e.g. here and here). In this context, the ‘traditional form-based analysis’ of the EU Courts was contrasted to a allegedly superior ‘more economic approach’ to abuse of dominance.

In December 2008, the Commission adopted a guidance paper declaring its enforcement priorities when dealing with exclusionary abuses under Article 102 TFEU (‘Enforcement Priorities Paper’). This represents the culmination of the debate that crystalised the Commission’s modern approach to abuse of dominance control.

Legal Status

The Enforcement Priorities Paper is a soft law instrument of sui generis nature which is said to operate as a statement of prosecutorial discretion. The said paper is of sui generis nature with regard to both its form and its substance.

From a formal perspective, it is a ‘novel instrument’ in that it has not been adopted in the form of a Notice or of Guidelines, but as a Communication containing ‘guidance on enforcement priorities’. This is neither a legal act envisaged in Article 288 TFEU nor an instrument recognised by the case-law as containing ‘rules of practice’ (see e.g. Dansk Rørindustri at para 209). Inevitably, this raises doubts as to whether the Priorities Paper may be taken into consideration pursuant to the Grimaldi judgment (para 18). 

            The Priorities Paper is also a novelty from a substantive perspective. Its content is said to be about enforcement priorities, and not about substantive guidelines, i.e. it allegedly explains where the Commission will focus its resources rather than interpreting the law (paras 2-3). This label is due to the fact that the Commission was restricted by the EU Courts’ jurisprudence in its attempt to evolve its policy with regard to Article 102 TFEU. Producing substantive guidelines was not an attractive option, because this would mean that it could do no more than describe the current state of the law (see the European Parliament’s report at points K, L and N), and this would stand at odds with the Commission’s economics-based agenda. Under these circumstances, the adoption of a document that would claim to set enforcement priorities was seen as a wise way for the Commission to suggest that the existing law is unsatisfactory, while not directly challenging the interpretation of the jurisprudence.

At a superficial level, the constitutional question of whether the Commission has the authority to indicate ex ante which categories of practices it will prioritise when enforcing Article 102 TFEU was answered in the affirmative, by virtue of the judgment in Automec, where the GC held that ‘setting priorities within the limits prescribed by the law […]  is an inherent feature’ of the Commission’s administrative activity (para 77). Nevertheless, Automec cannot be regarded as an authority for the adoption of the Enforcement Priorities Paper for two reasons. To start with, its title is misleading because nothing is really prioritised. The Priorities Paper is drafted as substantive guidelines and mentions all the categories of exclusionary conduct that have been found to be abusive in the jurisprudence. Additionally, the recognition by the EU Courts of the Commission’s discretion to prioritise cases is not unlimited.  Above all, the Commission must act within the limits prescribed by the law; it must respect, inter alia, the interpretation given to Article 102 TFEU by the CJEU, since the latter is entrusted with the monopoly in the interpretation of EU law by virtue of Article 19(1) TEU in conjunction with Articles 267(3) and 344 TFEU. In this connection, the Priorities Paper is inconsistent with the case-law in several respects.

Consequently, the Priorities Paper is not about setting priorities in the way that it is understood in Automec; it is about providing substantive guidelines. Neither the caveat in para 3 of the Priorities Paper which states that it ‘is not intended to constitute a statement of the law’ nor the title of the document may affect this conclusion. Moreover, the attempt by certain distinguished lawyers in the Commission to reshape the objective of the Commission’s review, arguing that the case-law and the Priorities Paper do not overlap (see e.g. here at p. 7), is not persuasive.

Even so, the Priorities Paper is deprived of legally binding force. Nonetheless, it could be argued that, being a soft law instrument, it stipulates ‘rules of conduct which are designed to produce external effects’ according to the Archer Daniels Midland judgment (para 91). These effects comprise two interrelated aspects, namely that they operate as instructions on the Commission’s administrative practice, and that the Commission cannot depart from these soft rules in an individual case without giving reasons for doing so. However, two aspects of the Priorities Paper prevent it from producing the legal effects of all other soft law instruments. First of all, it departs from the case-law. For such a non-binding text to produce legal effects, not only must it be in conformity with primary and secondary EU law (see e.g. Dansk Rørindustri at para 252), but it must also be consistent with established jurisprudence (see e.g. Dansk Rørindustri at para 261).

Secondly, the CJEU recognises legal effects to soft law instruments only to the extent that this serves the promotion of the protection of legitimate expectation and the principles of equal treatment and legal certainty (see e.g. Dansk Rørindustri at para 211). The Priorities Paper however does not produce legitimate expectations and is unable to serve the principles of equality and legal certainty. To start with, it cannot give rise to legitimate expectations, since it does not give precise assurances that a firm’s conduct will go unpunished if it does not fall within the scope of its provisions (para 3). Reliance on the principle of the protection of legitimate expectations is unacceptable if no precise assurances are given by the authorities that they will act in a particular way (see e.g. the GC’s judgment in Intel at paras 161-166). In addition, a dominant firm cannot invoke the right of equal treatment to protest that the Commission did not focus its resources on pursuing another’s firm exclusionary behaviour, because the announcement that intervention against certain practices will be an enforcement priority does not imply the lawfulness of other behaviours that have been found to infringe Article 102 TFEU according to the case-law. Finally, the Priorities Paper fails to serve the principle of legal certainty; if anything, it has led to more confusion than clarity.     

            All in all, the Priorities Paper has no particular legal status. It has no binding legal force, and cannot produce any legal effects either, because it does not serve the enforcement of any of the general principles of EU law. Therefore, neither the Automec judgment nor the Grimaldi judgment may act as authorities for the Priorities Paper to be taken into consideration, since it does not meet the requirements laid down in either of them.

Practical Significance

Despite the fact that the Priorities Paper lacks legal status, it may still be of decisive practical significance. In fact, the tension between its content and the case-law may be irrelevant for the undertakings and their legal advisers when deciding to consult it. This is because it indicates the Commission’s threshold for intervention. From a practical standpoint, if the Commission decides to pursue cases on the basis of a particular test, companies and their legal advisers would immediately attempt to understand it and bring themselves into line with it.

            Nevertheless, the practical significance of the Priorities Paper is obscured for several reasons. First, there are few bright-line rules. The principles are subject to significant exceptions, which are not sufficiently explained. Second, the paper provides no safe-harbours, which in turn reduces the overall level of guidance that it provides. Third, the purpose of guidelines is to enhance transparency and accountability, provide a clarification of the law, ensure consistency of enforcement and increase legal certainty (see e.g. Tréfilunion SA v Commission at para 142). This purpose was disregarded by the Priorities Paper, which is couched in terms of theoretical economics with minimal awareness of the practical consequences for companies. Finally, the Commission itself does not comply with its ‘guidance’ (see the Intel decision).

Compatibility with the Principle of Loyal Cooperation

The principle of loyal cooperation lies at the heart of the European integration process, and the CJEU has from an early stage recognised it as being a general principle of Union law (see e.g. the ERTA judgment at para 87). The principle governs the entire Union competence, including competition policy (see e.g. Case C-344/98 Masterfoods at para 56). Moreover, as the post-Lisbon Treaty formulation emphasises, the principle of loyal cooperation has a mutual nature (Article 4(3)(a) TEU), and governs both the relations of the Member States with the EU institutions, and the relations between the various EU institutions (Article 13 TEU).

The adoption of the Priorities Paper, as well as its content, run counter to both these manifestations of the principle of loyal cooperation.

Loyalty Between the EU Institutions

To the extent that the Commission’s new approach to abusive exclusionary conduct is incompatible with the case-law, the Commission disregarded its duty of loyalty toward the CJEU. By derogating from established jurisprudence by means of guidelines, the Commission exceeded the limits of the powers conferred on it by the Treaties. Thus, it did not practise mutual sincere cooperation as required by Article 13(2) TEU. Additionally, the choice of the Commission to name the document ‘enforcement priorities’ aggravates its infringement, in the sense that it was a manœuvre aiming at relaxing the tension between the approach adopted in the Priorities Paper and the one followed in the case-law.

Likewise, the Commission disregarded the principle of sincere cooperation as regards its relations with the Council. Specifically, the Commission’s Priorities Paper functionally amended the framework of Article 102 TFEU in several respects, thus circumventing the Council’s legislative responsibility in the area of competition law (Articles 103(1) in conjunction with 289(2) and (3) and 290(1)(b) TFEU). The Commission requires delegated authority to adopt acts in this area, which may only concern non-essential issues (Article 290(2) TFEU). Otherwise, the Commission acts ultra vires, contrary to Article 17 TEU, which sets out its responsibilities. In this context, the Commission also breached the principle of institutional balance.

Loyalty Between EU Institutions and Member States

The Commission also violated the duty of sincere cooperation in the context of its relations with the Member States. This is so, despite the fact that the Commission states in the Frequently Asked Questions accompanying the initial adoption of the Priorities Paper that the said paper has been discussed extensively with the NCAs (question 9).

This is because of the parallel competence that the Commission, the NCAs and the national courts share as regards the application of Article 102 TFEU (Articles 4-6 of Regulation No 1/2003), which entails that they must apply the relevant rule in close cooperation in order to avoid inconsistent and/or contradictory decisions (Articles 11(1) and 15 of Regulation No 1/2003). As such, in principle, NCAs and national courts must take the Priorities Paper into account (see Grimaldi at paras 18-19; Commission Notice at para 8). Yet, they must respect the EU Courts’ case-law pursuant to the principle of supremacy of EU law. Therefore, NCAs and national courts may take into account the Priorities Paper exclusively to the extent that its approach is in conformity with the CJEU’s jurisprudence. As if that situation were not complicated enough, the hybrid approach that the Commission follows in its post-Priorities Paper decisional practice further perplexes things, since NCAs and national courts cannot take decisions running counter to Commission decisions (see Article 16 and recital 22 of Regulation No 1/2003). This state of uncertainty endangers the uniform application of Article 102 TFEU at the national level.

Compliance with Fundamental Rule-of-Law Principles: Analysis of Rebates as an Example

Even more disturbing is the content of the Enforcement Priorities Paper, which at times does not integrate economic and legal analyses in a manner that would ensure compliance with fundamental rule-of-law principles, such as the legal certainty and the nullum crimen, nulla poena sine lege principles (Article 49 CFREU; Article 7 ECHR). The observance of these principles is of utmost importance in the context of the enforcement of Article 102 TFEU, which is performed through fines that may be skyrocketing, as was the case in Intel.

            The Priorities Paper’s approach to rebates granted by dominant firms offers a prime example of this (see paras 37-45). The ‘as-efficient competitor’ test (‘AECT’) advocated in that paper for the assessment of rebates is the epitome of a purely theoretical economic tool; although it is a sophisticated test which is grounded on robust economics, it cannot have any practical functionality (for a list of objections against this test, see here). In other words, it is a perfect test on paper that makes perfect sense with perfect numbers. The problem, however, is that there is no such thing as perfect numbers.

            For instance, this test requires a dominant firm to estimate ex ante the units that its client would potentially purchase from its competitors. The only possible way to do this is to ask its client, who is very likely to mislead the dominant firm. Similarly, under the test proposed by the Priorities Paper, a dominant firm must evaluate ex ante the pricing and range of products that a competitor has the capacity to produce. This depends on information on rivals’ costs and sales, which the dominant firm cannot be expected to possess. Furthermore, the AECT is assuming a single competitor and a single customer. But what if the dominant firm has, for example, thirty competitors; is the dominant firm required to conduct this complex analysis thirty times for each of its clients? This would be an impossible task. Hence, this test can only operate in retrospect and with access to confidential information. It is an unworkable test for a company that attempts to self-assess its practices.

            It appears that the Commission, in its zeal for injecting more economic analysis into the enforcement of Article 102 TFEU, was oblivious to the absurdity of bestowing a self-standing role for economics in the interpretation of this provision. Indeed, any argument in favour of a more economic approach to abuse of dominance is vulnerable insofar as it is not properly integrated with legal reasoning. In this connection, legal reasoning is, by definition, about categorical thinking, and hence, formal. Only formal rules can ensure that Article 102 TFEU will be enforced properly in light of its goal, namely the maintenance of effective competition within the internal market. Indeed, effective competition can only exist if the players in the market act in an environment where they can assess in advance and at reasonable cost whether their conduct violates Article 102 TFEU.

            All in all, no matter how theoretically sound the economic arguments for using the AECT may be, this test is not appropriate for the assessment of rebates under Article 102 TFEU. This is, inter alia, because the test fails to guarantee the observance of fundamental legal principles.

Conclusion

Overall, the Enforcement Priorities Paper is flawed, both constitutionally and as a matter of substance. Constitutionally, the Commission does not have carte blanche as regards the interpretation of Article 102 TFEU; that is, the Commission is constitutionally incompetent to alter the interpretation given to the law by the CJEU. Thus, the Commission, by adopting the Priorities Paper, acted outside its remit and breached a plethora of general principles of EU law. Moreover, the Priorities Paper’s approach to rebates illustrates that its substantive analysis is incompatible with fundamental rule-of-law principles. In this connection, the selected title cannot remedy or conceal these deficiencies. It seems to me that keeping the Priorities Paper alive would be akin to contempt of the CJEU and would cause unnecessary confusion.

Barnard & Peers: chapter 17 

Photo credit: http://ec.europa.eu/competition/court/antitrust.html