Human Rights and National Data Retention Law: the Opinion in Tele 2 and Watson

Lorna Woods, Professor of Internet Law, University of Essex

Yesterday’s Advocate-General’s opinion concerns two references from national courts which both arose in the aftermath of the invalidation of the Data Retention Directive (Directive 2006/24) in Digital Rights Ireland dealing with whether the retention of communications data en masse complies with EU law.  The question is important for the regimes that triggered the references, but in the background is a larger question: can mass retention of data ever being human rights compliant. While the Advocate General clearly states this is possible, things may not be that straightforward.

Background

Under the Privacy and Electronic Communications Directive (Directive 2002/58), EU law guarantees the confidentiality of communications transmitted via a public electronic communications network.  Article 1(3) of that Directive limits the field of application of the directive to activities falling with the TFEU, thereby excluding matters covered by Titles V and VI of the TEU at that time (e.g. public security, defence, State security).  Even within the scope of the directive, Article 15 permits Member States to restrict the rights granted by the directive

‘when such restriction constitutes a necessary, appropriate and proportionate measure within a democratic society to safeguard national security, defence, public security, and the prevention, investigation, detection and prosecution of criminal offences or of unauthorised use of the electronic system..’.

Specifically, Member States were permitted to legislate for the retention of communications data (ie details of communications but not the content of the communication) for the population generally. The subsequent Data Retention Directive specified common maximum periods of retention and safeguards, and was implemented (in certain instances with some difficulty) by the Member States.

Following the invalidation of the Data Retention Directive, the status of Member State data retention laws was uncertain. This led both Tele2 and Watson (along with a Conservative MP, David Davis, who withdrew his name when he became a cabinet minister) to challenge their respective national data retention regimes, essentially arguing that such regimes were incompatible with the standards set down in Digital Rights Ireland. The Tele2 case concerned the Swedish legislation which implemented the Data Retention Directive. The Watson case concerned UK legislation which was implemented afterwards: the Data Retention and Investigatory Powers Act (DRIPA). Given this similarity, the cases were joined.

The Swedish reference asked whether traffic data retention laws that apply generally are compatible with EU law, and asked further questions regarding the specifics of the Swedish regime. Watson et al asked two questions: whether the reasoning in Digital Rights Ireland laid down requirements that were applicable to a national regime; and whether Articles 7 and 8 of the EU Charter of Fundamental Rights (EUCFR) established stricter requirements than Article 8 of the European Convention on Human Rights (ECHR) – the right to private life. Although the latter case concerns the UK, the Court’s will still be relevant if the UK leaves the EU because the CJEU case law provides that non-Member States’ data protection law must be very similar to EU data protection law in order to facilitate data flows (see Steve Peers’ discussion here).

Opinion of the Advocate General

The Advocate General dealt first with the question about the scope of the protection under the EUCFR.  This question the Advocate General ruled as inadmissible because it was not relevant to resolving the dispute.  In so doing, he confirmed that the obligation in Article 52 EUCFR to read the rights granted by the EUCFR in line with the interpretation of the ECHR provided a base line and not a ceiling of protection.  The EU could give a higher level of protection; indeed Article 52(3) EUCFR expressly allows for the possibility of ‘… Union law providing more extensive protection’. 

Moreover, Article 8 EUCFR, in providing a specific right to data protection, is a right that has no direct equivalent in the ECHR; the Advocate General therefore argued that the rule of consistent interpretation in Article 52(3) EUCFR does not apply to Article 8 EUCFR (Opinion, para 79). Later in the Opinion, the Advocate General also dismissed the suggestion that Digital Rights Ireland did not apply because the regime in issue in Watson et al was a national regime and not one established by the EU legislature. Articles 7, 8 and 52 EUCFR were interpreted in Digital Rights Ireland and are again at issue here: Digital Rights Ireland is therefore relevant despite the different jurisdiction of the court (paras 190-191).

The Advocate General then went on to consider whether EU law permits Member States to establish general data retention regimes.  The first question was whether Article 1(3) meant general data retention regimes were excluded from the scope of Directive 2002/58 because the sole use of the data was for the purposes of national security and other grounds mentioned in Art 1(3).  The Advocate General made three points in response:

Given that Article 15(1) specifically envisaged data retention regimes, national laws establishing  such a regime were in fact implementing Article 15(1) (para 90).

The argument the governments put forward was related to the access to the data by public authorities, the national schemes concerned the acquisition and retention of that data by private bodies – that the former might lie outside the directive did not imply that the latter also did (paras 92-94).

The approach of the Court in Ireland v Parliament and Council (Case C-301/06), which was a challenge to the Data Retention Directive as regards the Treaty provision on which it was enacted, meant that general data retention obligations ‘do not fall within the sphere of criminal law’ (para 95).

The next question was whether Article 15 of the Directive applied. The express wording of Article 15, which refers to data retention, makes clear that data retention is not per se incompatible with Directive 2002/58. The intention was rather to make any such measures subject to certain safeguards. This means that data retention can be legal provided the scheme complies with the safeguards (para 108). Indeed, following his earlier reasoning, the Advocate General rejected the argument that Article 15 is a derogation and should therefore be read restrictively.

This brings us to the question of whether sufficient safeguards are in place. Since the Advocate General took the view that in providing for general data retention regimes the Member States are implementing Article 15, such measures fall within the scope of EU law and therefore, according to Article 51 EUCFR, the Charter applies, even if rules relating to access to the data by the authorities lie outside the scope of EU law (paras 122-23).  Nonetheless, given the close link between access and retention, constraints on access are of significance in assessing the proportionality of the data retention regime.

Assessing compliance with the EUCFR requires as a first step an interference with rights protected. The Advocate General referred to Digital Rights Ireland to accept that ‘[g]eneral data retention obligations are in fact a serious interference’ with the rights to privacy (Art 7 EUCFR) and to data protection (Art. 8 EUCFR) (para 128). Justification of any such interferences must satisfy both the requirements set down in Article 15(1) Directive 2002/58 AND Article 52(1) EUCFR which sets out the circumstances in which a member State may derogate from a right guaranteed by the EUCFR (para 131). The Advocate General then identified 6 factors arising from these two obligations (para 132):

Legal basis for retention;

Observe the essence of the rights in the EUCFR (just Article 52 EUCFR, rather than Art 15 of the directive);

Pursue an objective of general interest;

Be appropriate for achieving that objective;

Be necessary to achieve that objective; and

Be proportionate within a democratic society to the pursuit of the objective.

As regards the requirement for a legal basis the Advocate General argued that the ‘quality’ considerations that are found in the ECHR jurisprudence should be expressly applied within EU law too. They must have the characteristics of accessibility, foreseeability and providing adequate protection against arbitrary interference, as well as being binding on the relevant authorities (para 150). These factual assessments fall to the national court. 

In the Opinion of the Advocate General, the ‘essence of the rights’ requirement – as understood in the light of Digital Rights Ireland – was unproblematic. The data retention regime gave no access to the content of the communication and the data held was required to be held securely. A general interest objective can also easily be shown: the fight against serious crime and protecting national security. The Advocate General, however, rejected the argument that the fight against non-serious crime and the smooth running of proceedings outside the criminal context could constitute a public interest objective. Likewise, data retention gives national authorities ‘an additional means of investigation to prevent or shed light on serious crime’ (para 177) and it is specifically useful in that general measures give the authorities the power to examine communications of persons of interest which were carried out before they were so identified. They are thus appropriate.

A measure must be necessary which means that ‘no other measure exists that would be equally appropriate and less restrictive’ (Opinion, para 185). Further, according to Digital Rights Ireland, derogations and limitations on the right of privacy apply only insofar as strictly necessary.  The first question was whether a general data retention regime can ever be necessary. The Advocate General argued that Digital Rights Ireland only ruled on a system where insufficient safeguards were in place; there is no actual statement that a general data retention scheme is not necessary. While the lack of differentiation was problematic in Digital Rights Ireland, the Court ‘did not, however, hold that that absence of differentiation meant that such obligations, in themselves, went beyond what was strictly necessary’ (Opinion, para 199).  The fact that the Court in Digital Rights Ireland examined the safeguards suggests that the Court did not view general data retention regimes as per se unlawful. (see also Schrems (Case C-362/14), para 93, cited here in para 203). On this basis the Advocate General opined:

a general data retention obligation need not invariably be regarded as, in itself, going beyond the bounds of what is strictly necessary for the purposes of fighting serious crime. However, such an obligation will invariably go beyond the bounds of what is strictly necessary if it is not accompanied by safeguards concerning access to the data, the retention period and the protection and security of the data. (para 205)

The comparison as to the effectiveness of this sort of measure with other measures must be carried out within the relevant national regime bearing in mind the possibility that generalised data retention gives of being able to ‘examine the past’ (para 208). The test to be applied, however, is not one of utility but that no other measure or combination of measures can be as effective.

The question is then of safeguards and in particular whether the safeguards identified in paras 60-68 of Digital Rights Ireland are mandatory for all regimes. These rules concern:

Access to and use of retained data by the relevant authorities;

The period of data retention; and

The security and protection of the data while retained.

Contrary to the arguments put forward by various governments, the Advocate General argued that ‘all the safeguards described by the Court in paragraphs 60 to 68 of Digital Rights Ireland must be regarded as mandatory’ (para 221, italics in original). Firstly, the Court made no mention of the possibility of compensating for a weakness in respect of one safeguard by strengthening another. Further, such an approach would no longer give guarantees to individuals to protect them from unauthorised access to and abuse of that data: each of the aspects identified needs to be protected. Strict access controls and short retention periods are of little value if the security pertaining to retained data is weak and that data is exposed. The Advocate General noted that the European Court of Human Rights in Szabo v Hungary emphasised the importance of these safeguards, citing Digital Rights Ireland.

While the Advocate General emphasised that it is for the national courts to make that assessment, the following points were noted:

In respect of the purposes for which data is accessed, the national regimes are not sufficiently restricted (only the fight against serious crime, not crime in general, is a general objective) (para 231)

There is no prior independent review (as required by para 62 Digital Rights Ireland) which is needed because of the severity of the interference and the need to deal with sensitive cases (such as the legal profession) on a case by case basis. The Advocate General did accept that in some cases emergency procedures may be acceptable (para 237).

The retention criteria must be determined by reference to objective criteria and limited to what is strictly necessary. In Zacharov, the European Court of Human Rights accepted 6 months as being reasonable but required that data be deleted as soon as it was not needed. This obligation to delete should be found in national regimes and apply to the security services as well as the service providers (para 243).

The final question relates to proportionality, an aspect which was not considered in Digital Rights Ireland.  The test is:

‘a measure which interferes with fundamental rights may be regarded as proportionate only if the disadvantages caused are not disproportionate to the aims pursued’ (para 247).

This opens a debate about the importance of the values protected. In terms of the advantages of the system, these had been rehearsed in the discussion about necessity. As regards the disadvantages, the Advocate General referred to the Opinion in Digital Rights Ireland, paras 72-74 and noted that

‘in an individual context, a general data retention obligation will facilitate equally serious interference as targeted surveillance measures, including those which intercept the content of communications’ (para 254)

and it has the capacity to affect a large number of people. Given the number of requests for access received, the risk of abuse is not theoretical.  While it falls to the national courts to balance the advantages and disadvantages, the Advocate General emphasised that even if a regime includes all the safeguards in Digital Rights Ireland, which should be seen as the minimum, that regime could still be found to be disproportionate (para 262).

Comment

It is interesting that the Court of Appeal’s reference did not ask the Court whether DRIPA was compliant with fundamental rights in the EUCFR. Rather, the questions sought to close off that possibility – firstly by limiting the scope of the EUCFR to a particular conception of Article 8 ECHR and secondly by seeking to treat Digital Rights Ireland as a challenge to the validity of a directive as not relevant within the national field.  Although the Advocate General did not answer the first question, the reasons given for dismissing it make clear that the Court of Appeal’s approach was wrong. Indeed, it is hard to see how Art 52(3) when read in its entirety could support the argument that the EUCFR should be ‘read down’ to the level of the ECHR. The entire text of Article 52(3) follows:

In so far as this Charter contains rights which correspond to rights guaranteed by the Convention for the Protection of Human Rights and Fundamental Freedoms, the meaning and scope of those rights shall be the same as those laid down by the said Convention. This provision shall not prevent Union law providing more extensive protection.

The focus of the second question was likewise misguided. As the Advocate General pointed out, Digital Rights Ireland was based on the interpretation of the meaning of two provisions of the EUCFR, Articles 7 and 8.  They should have the same meaning wherever they are applied.

Quite clearly, the Advocate General aims to avoid saying that mass surveillance – here in the form of general data protection rules – is per se incompatible with human rights. Indeed, one of the headline statements in the Opinion is that ‘a general data retention obligation imposed by a Member State may be compatible with the fundamental rights enshrined in EU law’ (para 7). The question then becomes about reviewing safeguards rather than saying there are some activities a member State cannot carry out.  This debate is common in this area, as the case law of the European Court of Human Rights illustrates (see Szabo, particularly the dissenting opinion).

Fine distinction abound. For example, where the Advocate General relies on the distinction between meta data and content to reaffirm that the essence of Article 7 and 8 has not been undermined.  Yet while the Advocate General tries hard to hold that general data retention may be possible, tensions creep in.  The point the Advocate General made in relation to the ‘essence of the right’ was based on the assumption that meta data collection is less intrusive than intercepting content.  In assessing the impact of a general data protection regime, the Advocate General then implies the opposite (paras 254-5). Indeed, the Advocate General quotes Advocate General Cruz Villalon in Digital Rights Ireland that such surveillance techniques allow the creation of:

‘a both faithful and exhaustive map of a large portion of a person’s conduct strictly forming part of his private life, or even a complete and accurate picture of his private identity’.

The Advocate General here concludes that:

‘the risks associated with access to communications data (or ‘metadata’) may be as great or even greater than those arising from access to the content of communications’ (para 259).

Another example relates to the scope of EU law. The Advocate General separates access to the collected data (which is about policing and security) and the acquisition and storage of data which concerns the activities of private entities. The data retention regime concerns this latter group and their activities which fall within the scope of EU law. In this the Advocate General is following the Court in the Irish judicial review action challenging the legal basis of the Data Retention Directive (the outcome of which was that it was correctly based on Article 114 TFEU).  The Advocate General having separated these two aspects at the question of scope of EU law, then glues them back together to assess the acceptability of the safeguards.

In terms of safeguards, the Advocate General resoundingly reaffirms the requirements in Digital Rights Ireland.  All of the safeguards mentioned are mandatory minima, and weakness in one area of safeguards cannot be offset by strength in another area. If the Court takes a similar line, this may have repercussions for the relevant national regimes, for example as regards the need for prior independent review (save in emergencies). Indeed, in this regard the Advocate General might be seen to going further than either European Court has.  Further, the Advocate General restricts the purposes for which general data retention may be permitted to serious crime only (contrast here, for example, the approach to Internet connect records in the Investigatory Powers Bill currently before the UK Parliament). 

Another novelty is the discussion of lawfulness. As the Advocate General noted, there has not been much express discussion of this issue by the Court of Justice, though the requirement of lawfulness is well developed in the Strasbourg case law. While this then might be seen not to be particularly new or noteworthy, the Advocate General pointed out that the law must be binding and that therefore:

‘[i]t would not be sufficient, for example, if the safeguards surrounding access to data were provided for in codes of practice or internal guidelines having no binding effect’ (para 150)

Typically, much of the detail of surveillance practice in the UK has been found in codes; as the security forces’ various practices became public many of these have been formalised as codes under the relevant legislation (see e.g. s. 71 Regulation of Investigatory Powers Act; codes available here). Historically, however, not all were publicly available, binding documents.

While the headlines may focus on the fact that general data retention may be acceptable, and the final assessment of compliance with the 6 requirements falls to the national courts, it seems that this is more a theoretical possibility than easy reality. The Advocate General goes beyond endorsing the principles in Digital Rights Ireland: even regimes which satisfy the safeguards set out in Digital Rights Ireland may still be found to be disproportionate. While Member States may not have wanted to have a checklist of safeguards imposed on them, here even following that checklist may not suffice. Of course, this opinion is not binding; while it is designed to inform the Court, the Court may come to a different conclusion. The date of the judgment has not yet been scheduled.

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Barnard & Peers: chapter 9

JHA4: chapter II:7

What Role for the European Parliament under Article 50 TEU?

Darren Harvey, PhD Candidate in Law, Darwin College, Cambridge

Introduction

Last week, Alyn Smith MEP for Scotland received a standing ovation from the European Parliament following a passionate speech in which he expressed the desire for Scotland to remain within the European family of nations: link here.

This immediately brings to mind a further aspect of the debate surrounding the UK’s position regarding the Article 50 TEU withdrawal process which, to my mind at least, has not been given full consideration to date; namely, the need for consent of the European Parliament before any withdrawal agreement may be completed.

The relevant paragraph of Article 50 reads as follows:

2. A Member State which decides to withdraw shall notify the European Council of its intention. In the light of the guidelines provided by the European Council, the Union shall negotiate and conclude an agreement with that State, setting out the arrangements for its withdrawal, taking account of the framework for its future relationship with the Union. That agreement shall be negotiated in accordance with Article 218(3) of the Treaty on the Functioning of the European Union. It shall be concluded on behalf of the Union by the Council, acting by a qualified majority, after obtaining the consent of the European Parliament.

Leaving to one side the question of how the Article 50 process may be triggered in accordance with the UK’s domestic constitutional requirements (under Article 50(1)), it is clear from Article 50(3) TEU that once notification to withdraw has been made, the Treaties shall cease to apply to the State in question from the date of entry into force of the withdrawal agreement or, failing that, two years after the notification referred to in paragraph 2. In other words, the two-year clock starts ticking from the moment notification is made by the UK of its intention to leave the EU, unless of course the European Council votes unanimously with the UK to extend this period, or the UK withdraws the notification (if that is even possible; Article 50 is silent on this point).

This means that, should no deal be reached within the two-year period and should no unanimous agreement be reached in the European Council to extend the negotiations (a distinct possibility in my view), it is clear that the UK’s membership of the EU would simply come to an end.

However, in the event that a deal is reached, not only will its entry into force be dependent upon a qualified majority vote in favour in the Council, but also, and crucially, prior to such a vote taking place, the consent of the European Parliament is first required.

This raises two questions: first, how does the European Parliament give or withhold its consent? And second, what happens if that consent is not forthcoming?

Giving Consent

Turning to the first of these questions, the default decision-making rule for the European Parliament is set down in Article 231 TFEU which provides: ‘Save as otherwise provided in the Treaties, the European Parliament shall act by a majority of the votes cast. The Rules of Procedure shall determine the quorum.’ According to Rule 168(2) of the European Parliament’s Rules of Procedure ‘A quorum shall exist when one third of the component Members of Parliament are present in the Chamber.’

Given that Article 50 TEU is silent on this issue, the default rule in Article 231 TFEU would appear to apply. However, Article 82 of the European Parliament’s Rules of Procedure, entitled “Withdrawal Agreements” provides: ‘If a Member State decides, pursuant to Article 50 of the Treaty on European Union, to withdraw from the Union, the matter shall be referred to the committee responsible. Rule 81 shall apply mutatis mutandis. Parliament shall decide on consent to an agreement on the withdrawal by a majority of the votes cast.’

It therefore appears to be the case that the default quorum rules in Article 168(2) Rules of Procedure apply. This means that, should the full European Parliamentary chamber vote on the UK’s withdrawal agreement (which seems likely), a simple majority of votes cast shall determine the Parliament’s position.

However, unlike the rule for accession treaties set down in Article 49 TEU which requires Parliamentary consent by a majority of its component members: i.e. a number of votes greater than one half of the European Parliament’s total number of MEPs; Article 50 TEU merely requires a majority vote of at least one third of the total number of MEPs.

In other words, provided that more than one third of the total members of the European Parliament turn up to vote on any future withdrawal agreement, a simple majority of votes cast shall be sufficient to determine the European Parliament’s position.

Withholding Consent

What happens if the European Parliament withholds its consent from the UK’s withdrawal agreement? According to Article 50(2) TEU the answer appears clear: without European Parliament’s consent, there can be no move to a qualified majority vote in the Council and thus the withdrawal agreement cannot be concluded. Should this consent be withheld for the duration of the two-year period running from the moment the UK signals its intention to withdraw, it seems that the UK would once again be facing the prospect of having its EU membership come to an end without a deal.

Alternatively, should a deal be reached within the two-year period but the European Parliament signals its intention to withhold consent, it is conceivable that this may prompt a move to extend the negotiating period via a unanimous vote of the European Council and, in so doing, perhaps provide the European Parliament scope to have some input into the substance of the withdrawal agreement.

In light of this, the role of the European Parliament is not to be taken lightly in the months and years that follow - not least because national governments will have much less control over their MEPs than their representatives in the European Council and the Council.

Furthermore, whereas Article 50 (4) TEU makes it clear that for the purposes of Article 50 (2) and 50 (3) the member of the European Council or of the Council representing the withdrawing Member State shall not participate in the discussions of the European Council or Council or in decisions concerning it, nothing is said about the MEPs of the withdrawing state. Will the UK’s MEPs be involved in the vote to give consent to the withdrawal agreement prior to moving to Qualified Majority Voting in the Council?

To my mind this brings an additional and as yet largely unexplored question to the table regarding the role that Scotland (and perhaps Northern Ireland) can play in the Article 50 withdrawal process. Whilst it may not be possible as a matter of UK domestic law for the devolved governments to block Brexit (see Mark Elliott’s post), there would appear to be scope for Scottish and Irish MEPs to begin building alliances across the European Parliament to withhold consent from any future withdrawal agreement lest their interests be protected. The great risk with this, of course, is that the European Parliament withholds consent, no extension to the negotiations is agreed in the European Council, and Scotland, with the rest of the UK, leaves the EU with nothing.

The above is of course speculative in nature and much negotiating lies ahead before we begin to build up a clearer picture of what any future UK-EU relationship will look like. Following last week’s standing ovation in the European Parliament for a MEP who is a member of the Scottish National Party, however, the European Parliament may yet prove to be a key player in how that future relationship takes shape.

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More on the horizontal direct effect of the principle of nondiscrimination on the ground of age: Dansk Industries (DI)

Giovanni Zaccaroni, Ph.D (University of Bologna), Junior lawyer FratiniVergano 

In the recent DI case, the Court of Justice has added another chapter to the saga of the difference between the extents of the application of the rights arising from Directive 2000/78/EC on non-discrimination and the general principle of non-discrimination on the ground of age in employment (the Directive also prohibits discrimination in employment on grounds of religion, disability and sexual orientation).

The previous chapters were the notorious cases Mangold and Kucukdeveci, in which the Court dealt with the question of the application of the duty not to discriminate against a person on the ground of his age, which was denied by the national legislation in those cases. The Court faced the issue of the application of the obligation of non-discrimination arising from EU secondary legislation to cases involving two private parties. As it is widely known, there is a case law of the Court of Justice (the Marshall and Dominguez case law) pointing out that directives are not applicable to private parties’ litigation (the horizontal direct effect), as these legal acts cannot establish obligations on individuals, but only on States. In general, the Court has always solved the issue (as in Mangold and Kucukdeveci) declaring the applicability to horizontal litigation of the principle of non-discrimination. In other cases, the Court (as perhaps in Deckmyn) the Court has ordered the national Court to interpret the national legislation in a way which is not contrary to EU law, assuring “the uniform interpretation of EU law”.

This however stays at odd with the fact that general principles should have, according to the doctrine of international law, only an interpretative value, and should not be able to convey rights. How this can be possible, considering that the directive itself is not applicable, and the ratio is precisely to leave to Member states a certain margin of discretion in the application of EU law? And how it is possible to draw a clear distinction between the uniform interpretation of EU law, the application of directives, and the application of the principle of non-discrimination? The answer to the question leads to two different reflections.

The uniform interpretation of the obligation of non-discrimination

The first pertains to the uniform interpretation of the obligations of non-discrimination established in the Treaties and of the effet utile of those provisions. The uniform interpretation and the effet utile of the obligations of non-discrimination have the scope of avoiding that Member States invoke in an instrumental way the limits to the application of European Union law in order to avoid the implementation of its obligations. This was the case in Dansk Industry, where the legislation of the Member state did not provide to the applicant the indemnity for early termination of the working relationship. The worker was at the same time eligible, at the moment of the termination of the contract, for the retirement pension (having reached the age of 60).

In that case, the national judge argued that it was not possible (and this was the reason for the question for preliminary ruling) to apply the directive to the private party litigation. First, because this was contrary to the legitimate expectation of the employer, who, when refusing the indemnity for early termination, was relying on the national legislation in force. Secondly because, as that judge maintained, there is always the possibility to raise an action for damages in the appropriate court in order to obtain the proper compensation from the Member State. Accordingly, the judge wanted to know if it was appropriate to invoke the principle of non-discrimination and not apply the national legislation, given that the principle can be retained as having the same scope of application (if not wider) of the directive.

The Court, as well as the Advocate General, answered that the national judge was right in considering the Directive as such was not applicable, given that the case involved litigation between private parties. However, the Court also maintained that the national judge has always the duty to interpret national law in a way that it is consistent with the directive. In this case, clearly, this was not possible, as there was legislation in force that explicitly excluded the right to indemnity for those workers already entitled to retirement pension. The Court said that while it is not possible to apply the national legislation according to EU law, then the national judge should rely, without asking the Court of Justice permission, on the obligation arising from the principle of non-discrimination on the ground of age in order to disapply the national provision which is discriminatory.

It is most likely the first time in which the Court state in such a clear way the difference between the application of uniform interpretation and the application of the general principles. In cases as Mangold and Kucukdeveci, the Court referred to the general principle, giving the impression that the Directive and the general principle were very similar in scope and binding force, leaving an open inconsistency between the solution provided and its Marshall and Dominguez case law.

In this DI judgment, however, the Court makes a step further. The Court holds that the principle of non-discrimination is applicable as long as the directive is not applicable, providing it with a subsidiary direct effect. Many scholars were already theorizing the existence of such a subsidiary direct effect (and the President of the CJEU, Lenaerts, clarified that in his article: The principle of equal treatment and the European Court of Justice, Il Diritto dell’Unione Europea, 461–482) but this theoretical construction was not substantiated by the legal reasoning of the Court. Now it is clear that, even if the directive establishing the obligation of non-discrimination is not applicable, then the principle can be applied.

The singular importance of the principle of non-discrimination

The reason for this application is to be found in the second point discussed by the Court, which is what makes this case particularly important. The principle of non-discrimination (on the ground of age) has been explicitly declared by the Court as an example of a justiciable rule in AMS. On the other hand, in the same case the Court ruled that the principle of collective action contained in Article 27 of the Charter of Fundamental Rights of the European Union did not create free-standing rights in a similar way.

But why is the non-discrimination principle to be considered so important that it can be triggered when other principles do not enjoy the same privilege? Moreover, why this is done in a way which gives to the Court of Justice a formidable weapon to require national courts to disapply the national provision even in cases in which the EU legal act (the Directive) has been conceived to leave to Member States a wide margin of discretion?

The reason is the importance of the principle of non-discrimination, which takes inspiration from the equality principles embodied in the various national constitutions. This principle is even more important for the history of the process of the European Union integration, up to the point that it is not simply a general principle (which is, by the way, an extremely important legal instrument) but that it is a structural and fundamental principle, which informs the whole European Union action. Under this perspective it is easy to imagine how many of the international agreements the EU has already negotiated or it is about to negotiate (as TTIP or the EU-Turkey Joint Statement on migration) can be challenged in front of the Court. It is, for instance, quite easy to predict what will be the fate of provisions who allow for the mutual recognition or the presumption of compliance of EU-US standards in the free movement of services or of workers, or of provisions which favor a specific category of migrants against all the others.

In all these cases it is not just the Court of Justice which has the power to disapply the EU provision which discriminates against the specific category of people, but every single EU national court as regards national provisions. This conclusion, which can sound obvious to many of the EU law geeks, it is not easily understood at national level, as many courts (understandably) don’t feel  confident in exercising what in practice is a “diffuse control of constitutionality” (i.e. the compliance of national and EU legislation with a parameter which lies at the top of the hierarchy of the sources of law).

Conclusion

The Court of Justice, with its interpretation of the notion of general principles, has provided the national courts with an extremely effective weapon that confers on each single national judge the power to be the guardian of the unwritten EU constitution. However, there are still many open questions arising in the mind of a lawyer forged in the tradition of codification: should we imply that the same importance is to be accorded to all the different grounds of discrimination included in the Charter (more than 14) or listed in the Treaty (Article 19 TFEU)? This is not an easy question and, for the supporter of consistency as a fundamental legal argument in the reasoning of the Court, should bring to the conclusion that at the present date there is a “differentiation” in the application of the equality principle in the EU.

Barnard & Peers: chapter 9, chapter 20

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Religious discrimination in the workplace: which approach should the CJEU follow?

Ronan McCrea*

* Senior Lecturer at the Faculty of Laws at UCL and the author of Religion and the Public Order of the European Union (OUP 2010) and Religion et l’Ordre juridique de l’Union Europeenne (Bruylant 2013).

After many years in which religious issues barely figured in Luxembourg case law we have had in recent weeks two opinions from Advocates General of the Court of Justice of the European Union on the question of religious expression at work.

Interestingly, AG Kokott (in her opinion in Achbita) and AG Sharpston (in her opinion in Bougnaoui) have come to what appears to be conflicting conclusions on the compatibility of rules restricting the wearing of religious symbols at work (in both cases Islamic headscarves) with the prohibition of direct and indirect discrimination in employment in Directive 2000/78 – the the framework equality directive, which bans discrimination in the workplace on grounds of age, religion, sexual orientation and disability. (On the background to the two cases, see also the earlier analysis of Sara Benedi Laheurta).

Both Advocates General concluded that, where a ban on religious symbols at work is found to be indirectly discriminatory, a balancing exercise must be carried out. However, they were in disagreement as to whether such a ban could be found to constitute direct discrimination.

The reasoning through which they came to these conflicting conclusions highlights the key dilemma that makes cases relating to religion in the workplace so difficult.

The key difference between the two Advocates General lies in how they characterize religion. In her opinion AG Kokott, characterized religion as a matter of belief and ideology thereby distinguishing it from other protected characteristics such as gender or race. She noted that the ban in question covered all religious and political signs and that:

“That requirement of neutrality affects a religious employee in exactly the same way that it affects a confirmed atheist who expresses his anti-religious stance in a clearly visible manner by the way he dresses, or a politically active employee who professes his allegiance to his preferred political party or particular policies through the clothes that he wears (such as symbols, pins or slogans on his shirt, T-shirt or headwear).” (para 52)

Thus a distinction could be made between:

“immutable physical features or personal characteristics — such as gender, (26) age or sexual orientation — rather than with modes of conduct based on a subjective decision or conviction, such as the wearing or not of a head covering at issue here.” (para 45)

AG Sharpston on the other hand, found that direct discrimination had taken place stating that an employee “who had not chosen to manifest his or her religious belief by wearing particular apparel would not have been dismissed. Ms Bougnaoui’s dismissal therefore amounted to direct discrimination.” (para 88)

She characterized religion as a form of identity, akin to race or gender, stating that:

“to someone who is an observant member of a faith, religious identity is an integral part of that person’s very being. The requirements of one’s faith – its discipline and the rules that it lays down for conducting one’s life – are not elements that are to be applied when outside work (say, in the evenings and during weekends for those who are in an office job) but that can politely be discarded during working hours. Of course, depending on the particular rules of the religion in question and the particular individual’s level of observance, this or that element may be non-compulsory for that individual and therefore negotiable. But it would be entirely wrong to suppose that, whereas one’s sex and skin colour accompany one everywhere, somehow one’s religion does not.” (para 118)

As with many debates in relation to law and religion, one has the slight impression that two Advocates General are talking at cross-purposes. The problems that arise in regulating religious expression at work is that religion is both a set of ideological beliefs and a form of identity.

This makes things particularly difficult. If one views religion as a set of beliefs, this often calls out for treatment which is entirely contrary to the treatment that would be appropriate if religion were regarded as a form of belief.

If one views religion as immutable identity then refusing to allow someone to wear a headscarf or crucifix when dealing with the public is akin to refusing to allow a worker with brown skin from serving customers. On the other hand, if one views religion as a form of ideology and belief, then refusing to allow a worker wearing a religious symbol from serving customers is no less justifiable than refusing permission to a worker to wear a Labour Party/Les Republicains/British National Party/Jobbik/ badge while at work.

Often, there simply is no way to treat religion that does justice to its belief and identity elements at the same time.

The key legal issue is whether the decision of an employer to decide to treat religion as a form of belief rather than identity was correct (in Strasbourg cases the issue will be whether the choice of the state to characterize religion in a particular way was reasonable). (See R McCrea, "Secularism before the Strasbourg Court: Abstract Constitutional Principles as a Basis for Limiting Rights" 79 (4) Modern Law Review 691-705.)

Therefore, AG Sharpston’s argument that religion is a form of identity akin to race is neither here nor there.  It is clear that religion is both identity and belief.  What is needed are criteria to work out when it is right to treat religion as belief and when it is right to treat it as identity.

The two Advocates General have provided eloquent arguments in favour of seeing religion in the workplace as a form of identity and form of belief respectively. Both approaches are appropriate at times. In relation to blasphemy laws, it is probably best to see religion as a form of ideology. In relation tot the right to receive services in a shop, it is probably best to see it as a form of identity.  The situation of employees is more complicated. Hopefully the Court of Justice’s coming rulings will provide criteria that will be helpful in establishing why either approach is to be favoured over the other in the context of employees at work. Given the controversial nature of this issue, it may well be tempted to follow the approach of its Strasbourg counterpart and decide that it is reasonable for Member States to choose either approach.

Barnard & Peers: chapter 20

Photo credit: Mizrahilaw.com

The new Viking/Laval? AG Wahl argues that requirement for prior authorisation of collective redundancies breaches Article 49 TFEU

Menelaos Markakis⃰

⃰ DPhil Candidate, University of Oxford. Academy of Athens and Modern Law Review scholar.

The Advocate-General’s recent opinion in CJEU Case C-201/15 AGET Iraklis is both interesting intellectually and significant politically. AGET Iraklis, which is a subsidiary of LafargeHolcim, is active in the fields of manufacturing, distribution and marketing of cement and has three plants in Greece. As the construction sector took a heavy blow from the economic crisis, AGET Iraklis’ sales plummeted and the company sought to reorganise its business. Under Greek law, a company seeking to carry out collective redundancies has to consult with the workers’ representatives prior to taking action. It was disputed during the hearing whether the company had indeed done so. More importantly, the Minister of Labour is given the power to extend the deadline for such consultations or to refuse to authorise some or all of the projected redundancies. It was the exercise of the latter power by the Greek Minister of Labour which gave rise to the dispute in the main proceedings (Greek Council of State (Fourth Chamber) Decision no 1254/2015).

The company sought to argue that the impugned national rule was not compatible with Council Directive 98/59/EC on the approximation of the laws of the Member States relating to collective redundancies and Articles 49 (freedom of establishment) and 63 (free movement of capital) of the TFEU. The Greek Council of State, which is in many ways the supreme administrative court of the land, asked the CJEU whether the contested rule contravened the aforementioned rules and in case the answer to the preceding question was in the affirmative, whether it could perhaps be justified ‘if there [were] serious social reasons, such as an acute economic crisis and very high unemployment’.

The Advocate General opinion

AG Wahl delivered his opinion on the case on 9 June 2016. He argued that the impugned national rule was ‘wholly unconnected’ to Directive 98/59, insofar as that directive ‘[did] not govern the employer’s freedom (or lack thereof) to effect collective redundancies’. As such, Directive 98/59 did not preclude, said he, the enactment of the contested provision (paras 23-34 of the opinion).

As regards EU primary law, AG Wahl opted to examine the contested national rule from the standpoint of the freedom of establishment (paras 35-45). He argued that a requirement for prior authorisation of collective dismissals constituted a restriction on freedom of establishment (para 47). ‘Indeed, in the main proceedings the rule at issue limits an employing undertaking’s freedom to make collective redundancies since, unless the rule is complied with, those redundancies will be invalid. Such a rule thus directly interferes with the internal organisation of undertakings and with the management of their staff, possibly exposing undertakings to the risk of operating at a loss.’ He further argued that Article 49 TFEU should be interpreted in the light of Article 16 of the EU Charter of Fundamental Rights (freedom to conduct a business) and that the impugned national rule restricted the exercise of the latter freedom (paras 49-50).

The Greek Government sought to argue that the contested rule was justified on the ground of the protection of workers, which is an overriding requirement in the public interest. The impugned law provides that applications to carry out collective dismissals are to be considered on the basis of the following criteria: ‘the conditions in the labour market’; ‘the situation of the undertaking’; and ‘the interests of the national economy’. Authorisation is a condition for the validity of the redundancy measures.

AG Wahl argued (para 66) that the interests of the national economy ‘involve[d] a purely economic objective which [could not] justify restricting the freedom of establishment (nor the freedom to conduct a business)’. As regards the conditions in the labour market and the situation of the undertaking, these criteria were, said the Advocate General, ‘neither appropriate for achieving the objective of protecting workers, nor limited to what [was] strictly necessary in order to achieve that objective’ (para 67).

As regards the conditions in the labour market, AG Wahl noted that, in the event of an administrative refusal to authorise the planned redundancies, the workers would fare even worse, since ‘that undertaking would have a clear incentive to commence proceedings for its dissolution and winding-up, after which it would no longer be bound by Directive 98/59 … and, presumably, would not have the funding required to remunerate the workers concerned in the event that the rule at issue were to continue to apply to such a situation’ (para 68). ‘That would, incidentally, also endanger the jobs of those workers who have not been made redundant.’ As such, AG Wahl expressed his ‘doubts’ as to whether ‘the rule at issue might contribute, in any meaningful way, to lowering the unemployment rate’. In any event, this criterion was not suitable, said he, for achieving the objective pursued, as ‘it [did] not remedy the problems which [had] made the employment situation of the workers concerned uncertain’ and essentially ‘amount[ed] to denying the employers’ right to terminate an employment relationship on the ground that it [was] generally not desirable to have more unemployed persons’ (para 69).

As regards the possibility to rely on the situation of the undertaking for the purposes of blocking collective dismissals, AG Wahl noted that the contention that the authorities of a Member State might be better suited than the management of that undertaking to determine what is most appropriate in its situation struck him as ‘nothing less than remarkable’ (para 70). ‘At any rate, I do not find it appropriate to protect workers by letting an authority overrule the business decisions ultimately taken by the employing undertaking.’ He added that:

Moreover, as argued by the Company, the statutory criteria are unclear and afford excessively broad discretion to the administration, to the detriment of the legal certainty of the employers. This, in fact, appears to frustrate from the outset any possible attempts at reaching a friendly settlement between the employers and the workers by doing away with the need for negotiations – as witnessed in the matter under consideration. An alternative might have consisted in listing the types of dismissals considered to be unjustified, as in the case of the list which appears in paragraph 3 of the section of the Appendix to the Social Charter relating to Article 24 thereof (para 71).

Furthermore, the Greek Government failed to show, said the Advocate General, that the impugned measure complied with the principle of proportionality, nor did it provide in his opinion specific evidence substantiating the arguments raised (para 72). He added that:

Indeed, by restricting the employer’s ability to dismiss the workers collectively, the rule at issue merely gives the impression of being protective of workers. To begin with, that protection is only temporary until the employer becomes insolvent. Even more importantly, workers are best protected by an economic environment which fosters stable employment. Historically speaking, the idea of artificially maintaining employment relationships, in spite of unsound general economic foundations, has been tested and has utterly failed in certain political systems of yesteryear. That provides confirmation that, in laying down an effective yet flexible protective procedure, Directive 98/59 affords genuine protection for workers, whereas a system of prior authorisation such as that at issue, which tellingly falls outside its scope, does not (para 73).

As such, the Advocate General concluded that the impugned rule was not suitable for the attainment of the objective pursued and that, in any event, it went beyond what was necessary to achieve that purpose (para 76). Moreover, ‘the presence of an acute economic crisis accompanied by unusual and extremely high unemployment rates’ was said to be incapable of justifying the impugned restriction (para 77). This was, said the AG, because ‘[t]hose circumstances, although clearly very serious, [could not] justify restricting the freedoms of establishment and to conduct a business when the statutory criteria [could not] do so on their own’; ‘an acute economic crisis and very high unemployment rates amount[ed] in themselves – at least in part – to purely economic factors’; ‘the socio-economic effects resulting from collective redundancies [were] felt in a given local context and social environment, not at the national level’; and ‘there [was] no reason to believe that a severe economic crisis would not affect businesses just as much as workers’ (paras 78-79). The AG further noted that ‘as the Commission state[d], in times of crisis, it [was] just as important to reduce all the factors which deter[red] new undertakings from investing, as economic efficiency [might] help stimulate job creation and economic growth’ (para 80). ‘That, I presume, is the reason why Greece, as a condition for the financial assistance provided by the European Stability Mechanism, accepted to “undertake rigorous reviews and modernisation of collective bargaining, industrial action and, in line with the relevant EU directive and best practice, collective dismissals, along the timetable and the approach agreed with the Institutions. On the basis of these reviews, labour market policies should be aligned with international and European best practices, and should not involve a return to past policy settings which are not compatible with the goals of promoting sustainable and inclusive growth”.’

Commentary

The AGET Iraklis case arose from the Greek crisis and gave rise to the first Article 267 TFEU preliminary reference from the Greek Council of State to the CJEU in this context. Although the impugned rule was not used as a ‘vehicle’ for indirectly challenging the bailout terms agreed between Greece and its creditors, the case could nevertheless be said to form part of a group of cases brought before the CJEU concerning the legality of national economic policy measures that were enacted in response to the economic crisis. These include the Romanian MoU cases (Cases C-434/11, C-462/11, C-134/12, and C-369/12); the Portuguese MoU cases (Cases C-128/12, C-264/12 and C-665/13); a couple of Greek cases concerning a Council decision adopted within the framework of the excessive deficit procedure (Cases T-541/10 and T-215/11); and a number of cases arising from the Cypriot banking crisis (Case T-327/13; opinion in Joined Cases C-8/15 P, C-9/15 P and C-10/15 P; opinion in Joined Cases C-105/15 P to C-109/15 P; see comments by René Smits).

There is no doubt that the impugned national rule in AGET Iraklis might hinder or render less attractive the exercise of the freedom of establishment, which includes the right of departure from a Member State. It might further constitute a restriction on the freedom to conduct a business which is enshrined in Article 16 of the EU Charter. The application of the Charter is triggered insofar as Greece could be said to derogate from the freedom of establishment. The relationship between the freedom to conduct a business and workers’ rights is clearly complex (see the report by the European Union Agency for Fundamental Rights, Freedom to Conduct a Business: Exploring the Dimensions of a Fundamental Right (pages 9-10), and exigencies of space preclude detailed analysis of this. However, it should be noted in this connection that Article 16 of the Charter can be and indeed is used by corporations to challenge various regulatory requirements which are seen to stand in their way, as evidenced by the factual background to the recent Lidl judgment (in which the argument was unsuccessful).

The Court rulings in Viking Line and Laval set the pace for the relationship between fundamental economic freedoms, on the one hand, and collective labour rights, on the other. Depending on what the Court’s ruling will be, AGET Iraklis might as well soon form part of this group of cases and could also be said to be linked to the Court’s ruling in Alemo-Herron. The reader might perhaps be struck by the tone of the AG opinion, but the reality is that the AG undertakes a careful and balanced analysis of the relevant substantive issues. This is perforce conjecture, but the Court might as well follow the AG opinion, albeit with slightly different wording.

Taking a step back from the pressing legal questions facing the Court in the AGET case, it is clear that the applicant in the main proceedings was caught between a rock and a hard place. Construction activity had come to a grinding halt, but AGET Iraklis failed to obtain the requisite ministerial authorisation and therefore could not carry out collective dismissals, which were a vital part of its restructuring plan. It could only lay off its workers at a pace which would not be caught by the national rules on collective dismissals, but the lay-offs in one of its plants were reportedly found by lower courts to be invalid. On the other hand, the workers that would have been affected by the actions of the company would have been left without a job in a country where the unemployment rate was, according to the order of reference, 27.3% in 2013. The rate for 2014 was 26.5% (note 25 of the opinion), which was clearly not much better either.

It is important to note that the AG opinion leaves some scope for a more ‘balanced’ rule which would not undermine the effectiveness of prior consultations (para 71 of the opinion).[i] What is nevertheless noteworthy is that the AG concluded his opinion with reference to the bailout terms agreed between Greece and its creditors. Had the Court been asked to rule on the validity of these terms from the standpoint of EU law, it would have probably declined jurisdiction, as it did in the Romanian and Portuguese MoU cases. It remains to be seen whether ‘two-pack’ legislation will have an impact in this respect. Be that as it may, the point of controversy in AGET Iraklis might soon become moot, as the relevant issue will be negotiated between Greece and its creditors in the second review of the ongoing ESM programme in the fall of 2016.

Further reading:

On the legality of national economic measures on the economic crisis: see e.g., Federico Fabbrini, Economic Governance in Europe: Comparative Paradoxes and Constitutional Challenges (OUP 2016) ch 2; Alicia Hinarejos, The Euro Area Crisis in Constitutional Perspective (OUP 2015) ch 8; Anastasia Karatzia (presenter) and Theodore Konstantinidis, ‘Who Is Responsible? The Issue of Liability in the Context of EU Macroeconomic Adjustment Programmes and Austerity Measures’ (FIDE Doctoral Conference, Budapest, 18 May 2016).

On economic freedoms and labour rights, see particularly, from the copious literature, Mark Freedland and Jeremias Prassl (eds), Viking, Laval and Beyond (Hart Publishing 2015).

For detailed discussion of the legal quality of the bailout terms and the scope of application of the EU Charter, see Catherine Barnard, ‘The Charter, the Court – and the Crisis’ (2013) University of Cambridge Faculty of Law Legal Studies Research Paper 18/2013; Paul Craig, ‘The Eurogroup, Political Power and Accountability’ (Governing Finances in Europe: Shifting Regimes and Shifting Powers conference, Uppsala, 27-28 May 2016); Alicia Hinarejos (above) 131-36; Claire Kilpatrick, ‘Are the Bailouts Immune to EU Social Challenge Because They Are Not EU Law?’ (2014) 10 EuConst 393; Koen Lenaerts, ‘Exploring the Limits of the EU Charter of Fundamental Rights’ (2012) 8 EuConst 375; Steve Peers, ‘Towards a New Form of EU Law? The Use of EU Institutions outside the EU Legal Framework’ (2013) 9 EuConst 37, 51-53; Napoleon Xanthoulis, ‘The Participation of Union Institutions in the European Stability Mechanism: Between International Law Competences and EU Treaties Restrictions’ (Jean Monnet Doctoral Workshop, City University of London, 23-24 June 2016).

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Barnard & Peers: chapter 20

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[i]

How Many Victims of Human Trafficking in the EU? A Statistical Quagmire

Dr. Vladislava Stoyanova

Postdoctoral Fellow, Faculty of Law, Lund University; Author of Human Trafficking and Slavery Reconsidered. Conceptual Limits and States’ Positive Obligations in Europe (Cambridge University Press, 2017)

On 19 May 2016 the Commission issued its first report (COM(2016) 267 final)) on the progress made in the fight against trafficking in human beings. As its title suggests, the report is based on Article 20 of the 2011 EU Trafficking Directive (Directive 2011/36/EU). The report has the objective to examine the progress made concerning prosecution of trafficking, protection of victims and prevention. It shows trends in trafficking, including statistical information. It is accompanied by a staff working document (SWD(2016) 159 final) that provides detailed factual information complementing the report.

Notably, this is not a report on the extent to which Member States have complied with the directive. Such a report is indeed required by Article 23 of the directive; however, despite the set deadline of 6 April 2015, so far the Commission has not issued a document assessing compliance. The Commission is late with its assessment with more than a year. A further report was due by 6 April 2016 on the circumstances of the use of services of trafficking victims. It has not been issued yet.

Focusing on the above mentioned progress report, it shows that according to the information submitted by Member States for the period 2013 – 2014 there were 15 846 registered victims of human trafficking. It is noted that this number is lower than the number recorded for the previous period 2010 – 2012. A clarification is immediately offered that ‘[a]lthough the data collection methods used for both periods are similar, it would not be advisable at this stage to compare the data, either between the two exercises or across individual years, due to possible differences in recording methods and legal definitions. For this reason, the discrepancy in the annual totals, and in particular the reasons why fewer victims of trafficking were registered, are issues that need to be explored and analysed further’ (page 5).

Indeed, the issue as to who is and who is not a victim of trafficking and who is registered and who is not registered as a victim of human trafficking are issues that have to be explored and analysed further. I plan to do this below. The Commission is correct that there might be differences in recording methods and legal definitions; however, the assumption that these differences will be somehow remedied so that we can get a clearer picture is far from warranted.

The number 15 846 refers to registered victims. Who are these registered victims? These are victims who are ‘both identified and presumed’ (page 4 of the report). It is clarified that some Member States have included both categories in their data collection, whereas others have only included one of the two categories. Already at this stage one starts to get suspicious about the data since it conflates different categories. Footnote 15 of the Commission report is indented to clarify the term ‘identified victim’: ‘[i]n accordance with the definition in the anti-trafficking Directive, the term “identified victim” refers to a person who has been formally identified by relevant authorities as a victim of trafficking.’ The text of the directive certainly does not deploy the term ‘identified victim’. It simply refers to victims and its Article 11(4) obliges the Member States to ‘take the necessary measures to establish appropriate mechanisms aimed at the early identification.’ The directive does not establish a separate legal status called ‘identified victim of human trafficking.’

The text of the earlier Directive 2004/81/EC (which concerns the immigration status of trafficking victims) does not refer to ‘identified victims’ either. It refers to victims who are holders of residence permits since they cooperate with the authorities in the fight against trafficking. Strangely, the Commission report does not even contain information about the number of such victims. This is very important information because when it comes to third country nationals, their formal identification as victims of human trafficking might not mean much and the assistance measures might not mean much if they cannot remain on the territory of the Member States. It should be also reminded here that the main EU Trafficking Directive (ie, the 2011 Directive) does not regulate the issue of the presence of victims on the territory of the Member States.

Footnote 15 of the Commission report continues to say that ‘[t]he term “presumed victim” is used for a victim of trafficking who has met the criteria of the EU Trafficking Directive but has not formally been identified by the competent authorities as a victim, or has declined to be formally and legally identified as a victim of trafficking [emphasis added].’ The term ‘presumed victims’ does not seem to be used here in the sense of Article 11(2) of the EU Trafficking Directive. The latter provision refers to individuals who have to be assisted and supported ‘as soon as the competent authorities have a reasonable-grounds indication for believing’ that they are victims. Neither is it used in the sense of Articles 5 and 6 of Directive 2004/81/EC, which refer to circumstances when the national authorities ‘take the view that a third country national may fall into the scope of this directive [i.e. may be a victim of trafficking]’ and extend a reflection period to this person. Rather ‘presumed victims’ appears hard to determine category in the way that it has been used in the report. In addition, it appears illogical how one can be a register victim (which implies some form of official recognition of one’s status) without being formally identified by the competent national authorities. As mentioned above, ‘presumed victims’ are included in the category of ‘registered victims’.

How do Member States after all formally identify individuals as victims of human trafficking? This is an important question if the Commission wants to ‘improve the reliability and comparability of data’ as stated on page 5 of its report. The Trafficking Directive does not stipulate which national authority has to be mandated with victim identification; its Article 11(4) simply says that ‘Member States should take the necessary measures to establish appropriate mechanisms aimed at the early identification of, assistance to and support for victims, in cooperation with relevant support organizations.’ Directive 2004/81/EC does not even have a provision about victim identification. It can be assumed from its provisions though that the national authorities responsible for criminal investigations and prosecutions identify victims by granting them a reflection period ‘so that they can take an informed decision as to whether to cooperate with the competent authorities’. Thus, in many EU Member States the authorities responsible for crime investigation and prosecution are mandated to identify victims. This is certainly problematic since eventually victim identification is intimately linked with crime investigation.

This results in refusals to formally identify victims if there is no basis for initiation or continuation of criminal proceedings, a problem exposed with the recent judgment L.E. v. Greece Application No. 71545/12 delivered by the European Court of Human Rights on 21 January 2016.[1] In other Member States, the immigration authorities might be mandated to identify victims of human trafficking. A relevant example in this respect is the United Kingdom, where the UK Border Agency identifies migrants as victims of human trafficking. In this way, crime investigation and victim identification are clearly separated. Against this diversity of national practices, it might be difficult to get a comparable date and even clear idea who is a registered victim of human trafficking in the EU.

Certainly, the problem is not only one of procedure, but also of substance. The EU Trafficking Directive defines human trafficking and determines the minimum scope of criminalization. However, the Member States can interpret trafficking more expansively. An example to this effect is Bulgaria where the crime of human trafficking is interpreted in an exceedingly wide way which leads to high number of prosecutions and victims.[2] The Commission itself does not seem to be particularly clear about the conceptual limits of trafficking either. It defines it as ‘the buying, selling and exploitation of adults and children [emphasis added]’ (page 2 of the report). In this way, it subsumes exploitation under the definition of human trafficking.

However, on page 7 of the report the Commission observes that ‘[w]hile it is important to stress that not all exploitative situations in the EU labour market are a result of trafficking in human beings, some may be. In these cases all victims of trafficking for labour exploitation must be properly identified and helped.’ Here, a distinction appears to be made between trafficking and exploitative situations. Overall, though, there is no clear distinction between the two. It is thus hard to advance measures which can tackle each phenomenon. Perhaps, even more disturbingly, all the efforts have been focused on human trafficking (in whichever way it is interpreted in different jurisdictions). Little attention has been paid on severe forms of labour exploitation. As a consequence, the EU Fundamental Rights Agency in its 2015 report Severe Labour Exploitation: Workers Moving within or into the European Union. States’ Obligations and Victims’ Rights warned that

While trafficking has attracted much attention, the severe exploitation of workers in employment relationships – which may or may not occur in a context of trafficking – has not. This difference in the level of attention is reflected by an institutional setting in which specialised actors are available to deal with trafficking cases but not with cases of severe labour exploitation.    

Finally, what has been the impact of the newest trafficking instrument, i.e. the 2011 Trafficking Directive? Is it indeed the case, as the Commission suggests, that ‘with the correct and full implementation of the EU Directive, Member States will ensure the prevention of the crime, the prosecution of the perpetrators and most importantly, the protection of victims’ (page 15 of the report)? This is highly doubtful. The data from the report is not particularly promising. In addition, the data itself is very confusing which hampers clear understanding of the phenomenon that we have to address.   

Barnard & Peers: chapter 25

JHA4: chapter I:7

Photo credit: notitarde.com

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[1] Vladislava Stoyanova, ‘L.E. v. Greece: Human Trafficking and the Scope of States' Positive Obligations under the ECHR’ 3 European Human Rights Law Review (2016) 290.

[2] Vladislava Stoyanova, ‘The Crisis of a Legal Framework: Protection of Victims of Human Trafficking in the Bulgarian Legislation’ The International Journal of Human Rights (2013); Vladislava Stoyanova, ‘The Crisis of a Definition: Human Trafficking in Bulgarian Law’ 15(1) Amsterdam Law Forum (2013).