A legally binding commitment to Treaty change: is it humanly possible?

Steve Peers

Prime Minister David Cameron has already achieved some feats that some thought impossible: a cut in the EU budget, and a majority in the House of Commons for the Conservative party. But are his plans for renegotiation of the UK’s EU membership genuinely impossible for any human to achieve?

The context of this is yesterday’s confirmation that his intention in the forthcoming renegotiation is not an immediate Treaty change, but a ‘legally binding’ and ‘irreversible’ text that (apparently) commits to Treaty change. I have blogged before on the content of possible Treaty changes (see here on economic reform, and here on migration of EU citizens), but I will focus today on the form which a deal might take to satisfy Cameron’s demands.  

There is an EU history of promising Treaty amendments to its Member States. Back in 1992, the Member States’ Heads of State and Government adopted a Decision addressing Danish concerns with the Maastricht Treaty. This was later transformed into a Protocol next time the Treaties were amended (in the form of the Treaty of Amsterdam), although this was not formally promised as such when the original decision was adopted.

Then, in 2008, a similar Decision was adopted to address Irish concerns about the Treaty of Lisbon. Apart from the Decision itself, look closely at point 5 of the European Council (summit) conclusions on that date, which specify that:

‘(iii) the Decision is legally binding and will take effect on the date of entry into force of the Treaty of Lisbon; (iv) they will, at the time of the conclusion of the next accession Treaty, set out the provisions of the annexed Decision in a Protocol to be attached, in accordance with their respective constitutional requirements, to the Treaty on European Union and the Treaty on the Functioning of the European Union;’

A Protocol amending the Treaties to this effect was indeed later drawn up, and entered into force last year.

In 2009, another promise of Treaty amendment was made to the Czech Republic. This time it took the form of the full text of an agreed Treaty Protocol, along with the following text:

‘the Heads of State or Government have agreed that they will, at the time of the conclusion of the next Accession Treaty and in accordance with their respective constitutional requirements, attach the Protocol (in Annex I) to the Treaty on European Union and the Treaty on the Functioning of the European Union.’

A Protocol amending the Treaties to this effect was again drawn up, but the ratification of this Protocol did not go ahead because the Czech government withdrew its request for this amendment.

So with these precedents in mind, what would a ‘legally binding’ and ‘irreversible’ commitment to Treaty change as regards the UK look like? There are various ways it could be done, but here’s a suggestion, based on a combination of existing precedents. It would be possible to combine the Irish and the Czech approaches, and have a Decision of Heads of State and Government with an agreed Protocol attached.  The Decision could also address other issues (changes to EU secondary law) besides the planned Treaty amendment. If the Heads of State and Government agreed at the same time that the Decision was legally binding, as they did in the Irish case, that would suffice to meet one of Cameron’s criteria. The legally binding nature of the Decision could also be set out in the main text (although this wouldn’t be necessary as such to make it binding; the intention of the Heads of State and Government to this effect could be expressed separately, in a linked text, as in the Irish case).

What about ‘irreversible’? In fact the irreversibility of the commitment would be enshrined in the very nature of the Decision: a Decision of EU Heads of State and Government could only be amended by the unanimity of the Heads of State and Government which drew it up in the first place. (Note that this does not mean that the same individuals have to agree, since they are acting on behalf of States, not signing a personal contract). This could be explicitly set out in the main text of the Decision, or in a connected text, if that’s deemed to be desirable.

To reassure those who may worry that the UK government would change its mind, the European Union Act 2011 could be amended to state that the UK government could only agree to amend some or all of this particular Decision after a referendum took place. Or it would also (or additionally) be possible, by amending the same Act, to ensure that parliamentary approval (in the form either of an Act of Parliament, or a resolution in favour) would be needed before the UK government changed its position.

So in that way, the agreement would be ‘irreversible’. But would it be necessary also to build in a more specific guarantee that the intended Treaty amendment would take place? Cameron’s statement did not go that far, and a text in the form as described above would meet the criteria of being ‘legally binding’ and ‘irreversible’ from the perspective of international law. Many treaties go no further in providing for their enforceability in practice. It’s unlikely that Cameron meant more than this: he has a habit of opening his mouth before consulting lawyers. And it’s not as if he could get legal advice from the Minister of Justice – who, like his predecessor in that role, has no legal background whatsoever.

Having said that, it would be possible, if it were deemed desirable, to go further to ensure the enforceability of the Decision. It could be provided, for instance, that the EU’s Court of Justice has jurisdiction to give binding rulings as regards all or some of the Decision. Although the Decision would not constitute EU law as such, Article 273 of the Treaty on the Functioning of the European Union specifies that Member States may agree to give the Court dispute settlement powers as regards issues related to EU law. This power has been used several times in recent years, and the CJEU took a flexible approach to using this clause in its judgment in Pringle.

The clause could be used to ensure the enforceability of commitments in the Decision, as seen in the case of the so-called fiscal compact treaty, where the Court can issue binding decisions on whether part of that treaty was breached by a Member State, and then order the imposition of fines to enforce those binding decisions.

To give an idea of what a Decision meeting all these criteria would look like, I have provided a text in the Annex, which is a new version of the text I discussed in the prior blog post on economic reform. The new points are Sections J and K, and the proposed future Protocol.

Annex I

The Heads of State or Government of the 28 Member States of the European Union, whose Governments are signatories of the Treaties,

Taking note of the concerns of the British people identified by the Prime Minister of the United Kingdom,

Desiring to address those concerns in conformity with the Treaties,

Having regard to the Conclusions of the European Council of [xx date 2016],

Have agreed on the following Decision:

Section A

Enlargement and the movement of persons

In every forthcoming enlargement of the European Union, the current Member States agree that the free movement of persons from a new Member State will be dependent on a unanimous decision of the Council, which will be taken at the latest once the income of the new Member State concerned is 75% of that of the other Member States of the European Union.

Section B

Free movement of persons and social benefits

The Heads of State and Government confirm that, in accordance with the jurisprudence of the Court of Justice of the European Union, Member States may deny benefits to nationals of other Member States who are not workers or self-employed persons.

[Further provisions addressing Cameron agenda]

Section C

Powers of national parliaments

The Heads of State and Government take note of the Commission’s firm commitment that, building upon the Protocols on national parliaments and on subsidiarity and proportionality attached to the Treaties, it will withdraw any proposal which is opposed by one-third of Member States’ parliaments.

Section D

Economic reform

The Heads of State and Government [make specific commitments as regards free trade agreements and amendments to EU legislation, or refer to such agreements and treaties which have already been agreed].  

Section E

Policing and criminal law

The Heads of State and Government reaffirm the United Kingdom’s sovereign power not to opt in to proposals for new legislation on criminal law or policing pursuant to the Protocols attached to the Treaties, and the provisions of the Treaties which require respect for the national identity and legal system of every Member State.

They confirm their strong support for the ongoing process of reform of the system established by the European Convention on Human Rights.

Section F

Reduction of EU competences

The Heads of State and Government reaffirm that In accordance with Article 48 TEU, the competences conferred upon the Union can be reduced. In accordance with Articles 2 and 4 TFEU, the European Union can choose to exercise its competences less intensively in those areas where it shares competence with its Member States.

Section G

‘Ever Closer Union’

The Heads of State and Government confirm that the commitment in the Treaties to ‘ever closer union’ has no specific legal effect. It does not require that further competences be conferred upon the Union, or that the Union must exercise its existing competences. Nor, in accordance with Section D, does it constrain the Member States from adopting Treaty amendments which reduce the Union’s competences, or constrain the Union from choosing to exercise its competences less intensively.

The concept of ‘ever closer union’ allows for different paths of integration for different countries, allowing those who want to integrate to move ahead, while respecting the wish of those who do not want to deepen any further.

Section H

Economic and Monetary Union

The Heads of State and Government confirm that the reference to the euro as the single currency in the Treaties only means that the euro is the currency of some, not all, Member States. It does not in any way prejudice the Protocols which give the United Kingdom and Denmark the possibility of not adopting the euro, or alter the rules governing the extension of the euro to other Member States.

Section I

Member States’ voting in Council

In the event that Section 3 of the [decision on voting in Council] is applied, and agreement is not found within six months, the Heads of State and government undertake that they will not vote in favour of the proposed act. They may instead consider requesting the Commission to propose enhanced cooperation as regards the proposed act, in accordance with the Treaties. In that context, they agree that this constitutes a case of ‘last resort’ in accordance Article 20(2) TEU.

Member States undertake not to vote in favour of any amendment to the [decision on voting in Council] unless all Member States are in favour of that amendment.

Member States undertake to support a request by a Member State in accordance with [Article x] of the Council rules of procedure.

Section J

Treaty amendment

Within one year of the notification by the United Kingdom that the electorate of the United Kingdom has voted to remain a member of the European Union, the necessary steps shall be taken, in accordance with the Treaty on the European Union and the Treaty on the Functioning of the European Union, to incorporate the Protocol attached to this Decision into the legal framework of the European Union.

Note: This text is adapted from Article 16 of the fiscal compact treaty.

Section K

General provisions

This Decision is legally binding and will take effect on the date of its adoption, except where it provides otherwise.

It can be amended only by consensus of the Heads of State and Government.

Where a Member State considers that another Member State has failed to comply with any provision of this Decision, it may bring the matter to the Court of Justice. The judgment of the Court of Justice shall be binding on the parties to the proceedings, which shall take the necessary measures to comply with the judgment within a period to be decided by the Court of Justice.

Note: the final sub-paragraph is based on Article 8(1) of the fiscal compact treaty. It would be possible to limit the Court’s jurisdiction to certain provisions of the Decision only, as is the case in that treaty. It would also be possible to provide for fining Member States which breach a court order, as Article 8(2) of that treaty provides.

PROTOCOL ON [INSERT TITLE]

The Heads of State or Government of the 28 Member States of the European Union,

Having regard to the Conclusions of the European Council,

Have agreed on the following Protocol:

Article 1

Notwithstanding Article 45 of the Treaty on the Functioning of the European Union or any other provision of the Treaties, Member States may provide for a waiting period of up to four years for workers from another Member State to have access to work-related benefits.

Note: Cameron’s requests relating to the free movement of EU citizens might also require other Treaty amendments, as discussed here. So this is just by way of example.

Article 2

1. The Protocol on national parliaments is amended as follows:

2. The Protocol on subsidiarity and proportionality is amended as follows:

Note: Text to be inserted. This would enshrine in the Treaties the agreed changes relating to powers of national parliaments.

Article 3

The provisions of the Treaties referring to ‘ever closer union’ have no legal effect upon the United Kingdom.

Article 4

The following text shall be attached as a Protocol to the Treaty on European Union and the Treaty on the Functioning of the European Union:

“Protocol on voting in the Council of the European Union

Article 1

If members of the Council, representing (a) at least 55% of the population; or (b) at least 55% of the number of Member States necessary to constitute a blocking minority resulting from the application of the application of Article 17(4), first subparagraph of the Treaty on European Union or Article 238(2) of the Treaty on the Functioning of the European Union indicate their opposition to the Council adopting an act by qualified majority, the Council shall discuss the issue.

Article 2

If Members of the Council representing a qualified majority of Members not applying the euro as their currency, defined in accordance with Article 238(3)(b) TFEU, indicate their opposition to the Council adopting an act by qualified majority, on the grounds that it will discriminate against the financial services industry of those Member States, or create an obstacle to free movement of financial services from those Member States, the Council shall discuss the issue.

Article 3

If any Member of the Council indicates its opposition to the Council adopting an act by qualified majority, on one or more of the following grounds:

(a)    the national parliament of that Member State has expressed serious concern that the proposed act would breach the principle of subsidiarity, in accordance with the Protocol on subsidiarity and proportionality;

(b)   the proposed act would not respect Member States’ national identity, in accordance with Article 4(2) TEU;

(c)    the proposed act would severely impact, in that Member State, upon the Union’s aims of creating a highly competitive social market economy, aiming at full employment and social progress, a high level of protection of the environment, or the promotion of scientific and technological advance, as set out in Article 3(2) TEU; or

(d)   the proposed act, in the field of social policy, would not take account, in that Member State, of the diversity of national practices, or the need to maintain economic competitiveness, set out in Article 151 TFEU, or would impose a constraint that would hold back the creation and development of small and medium-sized undertakings, or affect the fundamental principles or financial equilibrium of social security systems, as set out in Article 153 TFEU,

the Council shall discuss the issue.

Article 4

The Council shall, in the course of the discussions referred to in Articles 1 to 3, do all in its power to reach, within a reasonable time and without prejudicing obligatory time limits laid down by Union law, a satisfactory solution to address concerns raised by the members of the Council referred to in Article 1.

Article 5

To this end, the President of the Council, with the assistance of the Commission and in compliance with the Rules of Procedure of the Council, shall undertake any initiative necessary to facilitate a wider basis of agreement in the Council. The members of the Council shall lend him or her their assistance.

Article 6

In the event agreement is not found within six months of discussions held pursuant to Article 4, the Council shall not hold a vote on the proposed measure. A group of Member States may instead consider requesting the Commission to propose enhanced cooperation as regards the proposed act, in accordance with the Treaties. The application of this Article shall constitute a case of ‘last resort’ in accordance with Article 20(2) TEU.”

Note: this would enshrine in the Treaties the suggested changes to the rules on Council voting, discussed in the previous blog post, which would give a form of opt-out to Member States with major objections to EU proposals. These suggestions also address relations between the Eurozone and non-Eurozone countries.

Article 5

This Protocol shall be annexed to the Treaty on European Union and to the Treaty on the Functioning of the European Union.

Barnard & Peers: chapter 3

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What if a refugee allegedly supports terrorism? The CJEU judgment in T

Steve Peers

What happens if a refugee allegedly supports terrorism? The most obvious answer is that the person concerned might be excluded from getting refugee status in the first place, in accordance with Article 1.F of the Geneva (UN) Convention on Refugees, as reflected in the EU’s qualification Directive and interpreted in the CJEU’s B and D judgment of 2010. However, the situation is more complicated if the person already has refugee status, and his or her alleged support for terrorism begins or comes to light only later. This issue was addressed for the first time in today’s CJEU judgment in T.

Background

The qualification Directive offers three possible responses to a situation like this. First of all, a Member State may revoke refugee status where there are ‘reasonable grounds for regarding [a refugee] as a danger to the security of the Member State in which he or she is present’, or where the refugee was ‘convicted by a final judgment of a particularly serious crime’ so ‘constitutes a danger to the community of that Member State’. Secondly, it is possible to refoule a refugee (ie return the refugee to an unsafe country) on the same two grounds (which are also the exceptions to non-refoulement set out in the Geneva Convention), if that is not ‘prohibited’ by Member States’ international obligations. In that case, Member States may revoke or refuse to renew the refugee’s residence permit. Finally, Member States must issue refugees with a residence permit and renew it, ‘unless compelling reasons of national security or public order otherwise require’.

Also, a Member State is obliged to revoke refugee status if the refugee ‘should have been’ excluded from refugee status in the first place, but presumably this only applies where the activity justifying exclusion took place before the refugee status was granted. All of the same rules apply to the parallel status of ‘subsidiary protection’, which exists for persons who don’t qualify for refugee status but who otherwise need international protection because they are fleeing torture, the death penalty or a civil war.

Judgment

This case concerned a Turkish national who moved to Germany back in 1989 and obtained refugee status there in 1993, on the basis of his activities in support of the PKK, the Kurdish group which Turkey (and subsequently also the EU) regards as a terrorist organisation. However, those links later led to a conviction for supporting terrorism, due to his collection of money for the PKK and distribution of PKK literature. His residence permit was revoked but he retained refugee status, and he was not expelled from the country. Nevertheless, he still challenged the revocation of his residence permit.

The CJEU’s judgment considers the second and third of the two issues above: refoulement (which might lead to the loss of a residence permit) and the loss of the residence permit as such. First of all, the Court explains the relationship between these two overlapping rules. If the criteria to refoule a refugee are satisfied, a Member State can either (a) refoule the refugee; (b) expel the refugee to a safe country; or (c) allow the refugee to stay. In the event that Member States can refoule the refugee, then they can also revoke a residence permit. But conversely, if the criteria to refoule the refugee are not satisfied, then the Member State cannot withdraw a residence permit on this ground.

In that case, the Court ruled, the question arises whether the rules on granting residence permits apply. Those rules don’t expressly refer to revoking a permit which has already been issued, but the Court ruled that this possibility was implicit.

The Court then moved on to interpret the two sets of grounds for loss of a residence permit at issue in this case: the ‘reasonable grounds’ that the refugee is a security risk, and the ‘compelling reasons of national security or public order’. These concepts aren’t further defined in the Directive, and the language versions of the Directive differ. So the Court proceeded to interpret these rules in the overall context of the Directive – protecting human rights and developing a common policy. In the Court’s view, refoulement of a refugee is a ‘last resort’ in the event that there is no other option to protect national security or the public. Since it could have a ‘drastic’ impact on the refugee, it was subject to ‘rigorous conditions’.

In contract, the mere loss of a residence permit did not lead to refoulement, and so the threshold for the application of the relevant rules was lower. The rules on loss of a residence permit ‘only’ apply where the refugee’s actions ‘cannot justify loss of refugee status, let alone the refoulement of that refugee’, and so did not ‘presuppose the existence of a particularly serious crime’.

So does support for a terrorist group meet the threshold to be one of the ‘compelling reasons of national security or public order’? The Court ruled that the concept should be interpreted consistently with the public security exceptions in the EU’s citizens’ Directive, because ‘the extent of protection a company (sic) intends to afford to its fundamental interests cannot vary according to the legal status of the person that undermines those interests.’ So terrorism is covered by that concept, and there must be a ‘genuine, present and sufficiently serious threat affecting one of the fundamental interests of society’. Moreover, the EU has listed the PKK as a terrorist group, which is a ‘strong indication’ that must be ‘taken into account’. Since the CJEU had already ruled (in B and D) that terrorist acts could lead to exclusion from refugee status, it must follow that they could equally justify revocation of a residence permit.  

But that was not the end of the matter. The national court has to go on to a second step, to consider whether the specific actions of a refugee in fact constitute support for terrorism so as to justify revocation of a residence permit. Not all forms of support for an organisation which the EU considers to be terrorist can lead to revocation of a refugee’s residence permit. As with the exclusion clause (see B and D), it was necessary to look at the individual’s behaviour, examining ‘in particular whether he himself has committed terrorist acts, whether and to what extent he was involved in planning, decision-making or directing other persons with a view to committing acts of that nature, and whether and to what extent he financed such acts or procured for other persons the means to commit them’.

In this case, Mr. T had participated in legal meetings, celebrated the Kurdish New Year and collected money for the PKK. The Court asserted that this ‘does not necessarily mean that he supported the legitimacy of terrorist activities’. Indeed, such acts ‘do not constitute, in themselves, terrorist acts’. The national court also had to consider the ‘degree of seriousness of danger’ Mr. T posed. It could take into account his criminal conviction but also had to consider that he was only sentenced to a fine. Also, the principle of proportionality (which the Court stated was not relevant when applying the exclusion clause, in B and D) was relevant here: the national court had to consider if Mr. T was still a threat to public security at the time the decision to revoke the permit was taken.

Finally, the Court ruled on the consequences of the loss of a residence permit. The person concerned retained refugee status and so was still entitled to all of the rights granted to a refugee, including access to employment, education, welfare, healthcare and housing. Although a clause in the preamble to the Directive stated that a residence permit could be made a condition of obtaining such benefits, the Court said that this clause was irrelevant since it was not reflected in the main text. Those rights could ‘only’ be restricted in accordance with the conditions in the Directive, and Member States ‘are not entitled to add restrictions not already listed there’. This was directly relevant to Mr. T, since Germany had indeed restricted his access to all of those benefits. But this is ‘incompatible’ with the Directive.

Comments

This was the first chance for the Court to rule on the status of refugees, ie the various benefits attached to refugee status, since its previous judgments on the qualification Directive have essentially concerned the definition of refugee or subsidiary protection status (or the linked issues of exclusion from or cessation of that status). Broadly speaking, the judgment does a good job clarifying the points which the Court set out to tackle – but inevitably the Court could not deal with every possible issue, and some of its answers raise further questions of their own.

First of all, the Court provides a useful clarification of the distinction between the non-refoulement rules and the rules on residence permits as such. The crucial point here is that the latter rules apply only when the former do not. While this makes the residence permit rules sound as if they have secondary importance, in fact the reverse is true. In practice, the residence permit rules are more important, since it is rarely if ever possible to refoule a refugee consistently with international obligations. This is because the case law on Article 3 of the European Convention on Human Rights (ECHR) makes clear that even if a person has done things awful enough to justify refoulement under the Geneva Convention, he or she cannot be removed to face a real risk of torture or inhuman or degrading treatment in violation of Article 3 ECHR – since that provision is not subject to any exception relating to the behaviour of the person concerned (or any other exception either). It was not necessary for the CJEU to rule on this point in the T case, since Germany was not seeking to remove him, but it would surely be willing to do so if the case arose (see the judgment in Abdida, discussed here, where the CJEU relied upon another strand of the Article 3 case law).

   

In the unusual event that refoulement might be possible, the CJEU’s ruling leaves some questions to ponder. It refers to the possible removal of a refugee to a safe third country. Presumably the criteria to determine the meaning of that concept are those in the asylum procedures Directive. It is also possible that the Court would be willing to rule on the interpretation of Article 32 of the Geneva Convention – which regulates the substance and procedure of the expulsion of refugees to safe countries (if the refugees are legally resident) – in this context. The CJEU might also be called upon to elaborate further what it means by saying that refoulement is a ‘last resort’ in the event that no other alternatives are available.

   

As for the main thrust of the Court’s ruling, on the ‘compelling reasons’ exception to the grant of residence permits, it is striking that the Court continues its recent trend of applying its case law on the EU citizens’ Directive to the ‘public policy’ clauses in EU immigration and asylum law. It did the same thing just a few weeks ago as regards the voluntary departure rules in the EU Returns Directive (see the Zh and O judgment, discussed here), and the broad wording of its judgment in T on this point suggests that all public policy clauses (they appear in swathes of EU legislation in this area) should have the same meaning. Having said that, the Court clearly accepts that the threshold for refoulement of a refugee is higher than for the normal public policy exception.

The Court also borrows most of its prior reasoning on the exclusion clause (with the addition of a proportionality element) to make clear that broad support of a group which the EU considers to be terrorist is not enough: there must be an active participation in violent acts or the funding of those acts. Presumably there must be a direct link with the funding of those acts, since the Court finds that Mr. T’s participation in collecting money for the PKK generally is not enough. Implicitly the Court shows little sympathy with recent EU and national moves against ‘radicalisation’ of Islamic communities (as very broadly defined), and it makes no reference to the Council of Europe measure (reflected in EU legislation) which criminalises ‘public provocation’ of terrorism. But nor does it refer to the countervailing case law of the European Court of Human Rights on freedom of speech, which requires States to allow the free expression of radical political beliefs and allows limits on that expression only where there is a direct incitement to commit violent acts. Nevertheless, the Court’s approach fits squarely into that latter line of case law.

Finally, the Court’s ruling on the consequences of loss of a residence permit are highly relevant, especially in Germany and any other Member States which do indeed make the receipt of benefits, access to employment et al dependent upon holding a residence permit. In effect, the judgment means that for many refugees the loss of a residence permit, even if justified, will have no real impact on their day-to-day life. It will only have an impact as regards journeys within the Schengen area (since holding a residence permit or long-stay visa is a condition of freedom to travel), or travels to non-Schengen and non-EU countries (since the criteria to revoke a residence permit also apply to the travel documents which refugees obtain from their host States in lieu of passports). It would also have an impact upon those refugees who do not yet have family living with them, since the EU’s family reunion Directive requires a third-country national to have a residence permit as a condition for family reunion. But that doesn’t matter to Mr. T, since he is already surrounded by his very large family in Germany.  

Barnard & Peers: chapter 26

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The Extraterritorial Reach of EU Animal Welfare Rules

By Jessica Lawrence, PhD student, VU University Amsterdam

In an interesting judgment in Zuchtvieh-Transport, the CJEU has ruled that Regulation 1/2005 on the protection of animals during transport applies outside of EU borders to transport taking place in third states, if that transport began on EU territory. This is a novel ruling that is expected to have important positive impacts on animal welfare. However, it can also be seen as an example of the CJEU’s tendency in recent years to read the EU’s jurisdiction expansively, stretching traditional international law notions of ‘territorial jurisdiction’ to permit the regulation of conduct taking place in third states.

Facts and Judgment

The case at hand concerns the refusal of Stadt Kempten, a municipality in Bavaria (Germany), to issue an export permit to animal transport company Zuchtvieh-Export. In 2012, Zuchtvieh-Export planned to transport 62 cattle from Kempten to Andijan (Uzbekistan), a journey of some 7000 km. The trip would take approximately 9 days, during which time only two 24-hour long rest stops were planned. During these rest stops, the cattle would be fed and watered, but not unloaded. Stadt Kempten refused customs clearance for the cattle because this schedule was not in accordance with the provisions of Regulation 1/2005, which sets EU standards for animal welfare during transport.

Zuchtvieh-Export objected to this decision, and filed a claim at the Bayerischer Verwaltungsgerichtshof (Higher Administrative Court, Bavaria). During its proceedings, that court asked the CJEU for a preliminary ruling on the question whether, with respect to animal transport involving a long journey that begins in the EU but ends far outside of its borders, Regulation 1/2005 applies only to the portion of the transport taking place within the EU, or also to those parts of the transport taking place outside of EU territory.

The CJEU came down firmly on the side of extraterritorial application, stating unambiguously that Regulation 1/2005 “does not subject the transport of animals with a point of departure within the territory of the European Union and a destination in a third country to any particular approval scheme, different from that applicable to transport taking place within the European Union” (para. 47). The only nod the Court makes to the limits of EU authority is the following:

“Should it nevertheless be the case that the law or administrative practice of a third country through which the transport will transit verifiably and definitely precludes full compliance with the technical rules of [Regulation 1/2005], the margin of discretion conferred on the competent authority of the place of departure empowers it to accept realistic planning for transport which, in the light inter alia of the means of transport used and the journey arrangements made, indicates that the planned transport will safeguard the welfare of the animals at a level equivalent to those technical rules.” (para. 54)

In finding that Regulation 1/2005 also applies to those parts of animal transport taking place outside of the EU, the Court went against the opinion of Advocate General Bot. The AG was indeed of the opinion that the scope of the Regulation was limited to the EU, and that applying it to transport outside of EU borders would essentially deputize the authorities of other countries, requiring them to “check to ensure compliance with the rules laid down by the regulation” (AG’s opinion, para. 54). As Advocate General Bot pointed out, this would be inconsistent with the rules regarding the transport of animals into the EU, according to which transit companies must meet EU animal welfare standards only once they enter EU territory (AG’s opinion, para. 82).

Comment

It is particularly interesting to see Zuchtvieh in light of the Court’s other recent case law on the extraterritorial application of EU rules. Traditionally speaking, international law frowns upon extraterritorial regulation, instead deferring to state sovereignty and its corollary, the principle of non-interference in the affairs of other states. Extraterritorial rules are thus only permissible where there is a solid jurisdictional reason for enacting them (for example, because the actors involved are nationals, or the behaviour abroad has domestic territorial effects). In recent years, however, the CJEU has seemed quite willing to use the ambiguity inherent in these jurisdictional terms to permit the application of EU rules that have legislative effects in third states. It has justified the application of such rules outside its borders using what Joanne Scott has helpfully termed “territorial extension”: the practice of using a (potentially quite limited) territorial connection with the EU to justify the regulation of conduct taking place in third states.

In the Air Transport Association case, for example, an association of American air transport companies challenged the EU’s decision to apply its carbon emissions trading scheme to emissions by non-EU planes that took place outside European territory, if those flights landed in the EU. The CJEU found that this was permissible, and should not be seen as violating the prohibition of extraterritorial regulation under customary international law. (ATA para. 157). In the Court’s view, the emissions trading scheme was not ‘extraterritorial’, because it was applied only at airports within EU jurisdiction—regardless of any effects on extraterritorial behaviour. For other examples of broad readings of regulatory jurisdiction by the CJEU, one might look to earlier cases such as Minin, Poulsen, and Ebony Maritime.

Similarly, in Zuchtvieh, the CJEU found that there was no extraterritorial regulation because the permit for transporting the animals in question was issued within the EU. While Advocate General Bot expressed his concern regarding the effects such an interpretation would have on the conduct of transporters and customs officials in third states, the CJEU clearly did not find these issues relevant to its determination.

The Zuchtvieh ruling is expected to have positive effects on animal welfare, improving conditions for the millions of animals transported from the EU to third states every year. In addition to these concrete effects, however, the judgment also demonstrates the increasing tendency of the CJEU to expand the permissible reach of EU legislation to conduct taking place on third state territory.

It remains to be seen whether this trend will continue, and at what point the CJEU will consider that the extraterritorial reach of EU law has reached its limit. One may indeed question the impact of this case on the so-called ‘external dimension’ of EU law, which is one of the key concerns nowadays for EU policy-makers. Is the EU entitled to export its rules/values/fundamental rights standards to other countries? At what point does ‘territorial extension’ become an illegal or illegitimate exercise of EU authority? EU ‘territorial extension’ definitely encounters quite some resistance from the international community. Despite the CJEU’s approval of the emissions trading scheme in Air Transport Association, for example, international backlash against the rule was so strong that the EU agreed to suspend its operation so long as international negotiations on a more global rule were underway. Although Zuchtvieh has thus far not generated a similar protest, it does change the standard international legal conversation about jurisdiction, pushing an expanded understanding of who can and should regulate the behaviour of cross-border economic activities.

Originally published on EU LAW BLOG

Barnard & Peers: chapter 24

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