Taking Rights Away Seriously: the Council’s position on the long-term residents Directive

 

Professor Steve Peers, Royal Holloway University of London

Photo credit: JLogan, via Wikimedia commons                   

Although the Commission and European Parliament seek to improve the legal status of long-term non-EU residents in the EU, the Council seeks to make them (on the whole) worse off, particularly in terms of getting EU long-term residence status in the first place. This is the position following the recent Council agreement on Member States’ position on the Commission proposal for a Directive on the issue, dating back to May 2022 (see also the European Parliament position from spring 2023), which would replace the current Directive on this issue dating from 2003 (that law was previously amended in 2010 to extend it to those with refugee or subsidiary protection status).

The Council and the European Parliament will now start negotiations to determine the final text of the revised law (if they can agree at all). Timing is tight if they aim to agree it before the next European Parliament elections (the Parliament’s final session before the elections is in April 2024).

I previously commented on the 2022 proposal in two blog posts: a first part on the changes to the scope and conditions for obtaining long-term resident status in a first Member State, and a second part on the proposals to change the rules on long-term resident non-EU citizens moving to other Member States. (This blog post draws upon and updates some of the text of those previous blog posts; I have highlighted the changes in the Council version of the various parts of the proposal, by the words ‘Council version’ in bold and underline). 

British readers might also be interested in my earlier discussion of specific issues around the application of the current law to British citizens here, although they will also find a little bit of Anglo action in this blog post. (Note that Denmark and Ireland have an opt out; and although the UK had also opted out of the current law while it was a Member State, ironically it is more relevant to Brits post-Brexit, in their new role as non-EU citizens).

The following comments are based on the text as agreed by Member States on November 23, which was not made public at the time. Update, November 29: the text is now public. 

 

Personal scope: who is covered?

The current law on EU long-term resident (LTR) status excludes from its scope: students; people who have obtained or applied for temporary protection or a purely national form of protection; asylum-seekers; those who reside ‘solely on temporary grounds such as au pair or seasonal worker, or as workers posted by a service provider for the purposes of cross-border provision of services, or as cross-border providers of services or in cases where their residence permit has been formally limited’; and diplomats as defined by the relevant international treaties. As a result of Brexit, British citizens in the EU implicitly moved within the scope of the EU LTR law once their EU citizenship ceased due to Brexit. (The CJEU has confirmed this loss of EU citizenship).

The Council version has accepted the Commission’s proposal to drop the exclusion of those whose ‘residence permit has been formally limited’, on the grounds of imprecision: according to the Commission proposal’s explanatory memorandum, ‘its interpretation led to legal uncertainty in the transposition and implementation by Member States’. Indeed, the relevant CJEU case law (Singh) is rather vague – establishing that the ‘formally limited’ exception is different from the ‘temporary grounds’ exception and has a common EU meaning, but not clearly explaining what that common meaning is.  

The rest of the exclusions remain intact, and the Council version seeks to exclude more groups explicitly: intra-corporate transferees and those whose expulsion is suspended, and adding ‘job search’ as an example of a group excluded by the ‘temporary grounds’ exception. (Note that the CJEU has ruled that this exception does not exclude non-EU family members of EU citizens who have not left their Member State of nationality – a group known to EU lawyers as Zambrano cases – from the scope of the EU Directive).

These exclusions are obviously important in particular to millions who fled the Russian invasion of Ukraine and obtained temporary protection in the EU (see discussion of EU temporary protection for them here). However, as discussed next, this is not quite the end of the story: there is an issue of whether and how to consider the time spent on the territory as part of an excluded group, if the person concerned is subsequently allowed to stay on a basis which is not excluded from the scope of the Directive.

 

Obtaining the long-term residence right

The five year waiting period

The current law requires Member States to grant EU long-term residence status to non-EU citizens ‘who have resided legally and continuously’ on the territory for five years before submitting an application. It is necessary to apply in order for the status in order to obtain it (see Iida): unlike status under free movement law, EU LTR status for non-EU citizens is not conferred automatically once the conditions are met. There are currently no exclusions from the five-year waiting period for family members (see the Tahir case). The 2022 proposal retains the five-year rule, although a new review clause would require the Commission to report two years after the deadline to apply the new law on the prospects of shortening the waiting period, and there would be an exception for some family members as well as a shorter waiting period following a move to another Member State, both discussed below. (The Council version has accepted the changes on future reports and second Member States, but – spoiler! – rejected the change on family members).

There are some further rules about calculation of this five-year time period. For those excluded from the scope of the current law, it provides that no account should be taken of time spent on the territory under the temporary grounds/formally limited exception, or as a diplomat. Half the period spent as a student must be taken into account, if the student goes on to obtain a different residence permit which can qualify for LTR status. Similarly, if an asylum-seeker obtains refugee or subsidiary protection status, at least half the time spent as an asylum-seeker must be taken into account; if the asylum-seeker had to wait more than 18 months after the application was lodged to obtain either form of international protection, all that time counts. The text is silent on how to count time spent on the territory for people who have obtained or applied for temporary protection or a purely national form of protection.

Those with refugee or subsidiary protection status that has been revoked, ended or was not renewed under the terms of EU asylum law cannot qualify for EU LTR status. Finally, as regards absences from the territory during the five-year qualification period, those absences still count towards the five-year period if they are ‘shorter than six consecutive months and do not exceed in total 10 months within’ the five years. Member States may also count longer absences if their national law provides, for ‘specific or exceptional reasons of a temporary nature’, although they have to stop the clock during these longer absences (unless the longer absences are due to ‘secondment for employment purposes, including the provision of cross-border services’, in which case they may count the longer absence fully if they wish).

The 2022 proposal would make four changes to these rules. First, there would be a new general requirement to monitor the stay of non-EU citizens before the five year period, in particular those who got their residence permit on the basis of investment. The Council version includes a vaguer version of this clause, with no specific reference to investment.

Secondly, there would be a new right to cumulate residence in multiple Member States, provided that the last two years before the application for LTR status were spent in the Member State where the application is made. This builds on existing possibilities in EU law for cumulation of residence for select groups of non-EU citizens (for Blue Card holders, ie highly skilled workers admitted under an EU scheme). However, Member States would have to exclude counting time spent in another Member State by a non-EU citizen who obtained a residence permit due to investment in a different Member State.

The Council version has accepted the cumulation right in principle, but has curtailed it significantly. It would require the last three years to be spent in the Member State of application, and would only allow a total of two years in another Member State to be cumulated. Most significantly, the right would only apply to selected groups: Blue Card holders; holders of national residence permits for highly-skilled workers, if they were allowed to move between Member States; intra-corporate transferees and researchers as defined by EU law; and family members of any of these groups, or of long-term residents themselves. The preamble vaguely suggests that EU citizens’ non-EU family members could cumulate time periods in multiple Member States too; but the details of this should really be placed in the main text. There is also a vague preambular clause on British citizens, saying that time spent under free movement law and the withdrawal agreement should be cumulated; again it is not clear if the free movement law point applies to multiple Member States. Anyway including Blue Card holders is a Potemkin village: the revised Blue Card Directive already contains essentially more generous rules on this issue for them. Also, the Council version would defer the actual application in practice of the cumulation rules, until the Commission and Council had worked out the logistics of cumulation.

Thirdly, in the 2022 proposal, the rules on counting five years’ residence would change for those who previously resided on the basis of a status excluded from the scope of the LTR law. It would be explicit that ‘[a]ny period of residence spent as a holder of a long-stay visa or residence permit issued under Union or national law, including’ periods spent on the basis of temporary or national protection, as a student, or on a temporary basis, counts towards the five year period, as long as a more long-lasting form of residence status has been obtained later. This would definitely improve the position of those who previously resided as students or on a temporary basis, and arguably confirm the existing position of those with temporary or national protection – potentially important for millions of temporary protection beneficiaries, among many other groups of people. However, the current rule of taking into account only [at least] half the period spent as an asylum-seeker (or all of the period if it takes 18 months to get refugee or subsidiary protection status) would be retained.

The Council version of this is mostly much more restrictive. Previous time on the territory as one of the excluded groups of people, in the event of being allowed to stay on a more permanent basis afterward, would only count for intra-corporate transferees; it would only be an option to count it as regards former students. Implicitly it would not be possible for the other groups. This definitely reduces standards as compared to the current law for students, and arguably for temporary protection beneficiaries too.

On the other hand, the Council version would improve the position for refugees and subsidiary protection beneficiaries, copying an agreement reached during negotiations on asylum law. All the time previously spent as an asylum-seeker would count, although if beneficiaries of international protection were on the territory of another Member State without authorisation, the clock would be reset and they would have to start accumulating five years’ residence from scratch, unless they were in that second Member State due to circumstances outside their control.

Finally, a new clause on family members, discussed further below, would allow for the right to LTR status for the children of EU LTRs who are born or adopted on the territory of the Member State which granted the LTR permit, without waiting for the five-year period. An application for LTR status would still be necessary. However, the Council version refused to accept this; although it is possible to adopt ‘more favourable provisions’ for the family members concerned as an option, it is not clear if that can extend to obtaining LTR status early.

  

Other conditions

First of all, the EU LTR law requires Member States to ensure that non-EU citizens have ‘stable and regular resources’ and ‘sickness insurance’ in order to obtain LTR status. The ‘resources’ requirement is further defined; such resources must be:

…sufficient to maintain himself/herself and the members of his/her family, without recourse to the social assistance system of the Member State concerned. Member States shall evaluate these resources by reference to their nature and regularity and may take into account the level of minimum wages and pensions prior to the application for long-term resident status;

The current law defines the ‘sickness insurance’ requirement to cover ‘all risks normally covered for his/her own nationals in the Member State concerned’.

In the 2022 proposal, the sickness insurance requirement would not be modified as such, but the resources requirement would be amended to state that the resources can be ‘also made available by a third party’, and that ‘Member States may indicate a certain sum as a reference amount, but they may not impose a minimum income level, below which all applications for EU long-term resident status would be refused, irrespective of an actual examination of the situation of each applicant.’ (There would also be new rules on comparison with applications for national LTR status, what happens if an applicant already has national LTR status, and an exemption for certain family members; these issues are discussed further below).

The first of these amendments reflects the CJEU case law on the resources requirement. In the X judgment, the Court ruled that the resources rule was an autonomous rule of EU law, not defined by national law, and that the resources could be provided by third parties (in that case, a brother of the applicant for LTR status). It was nevertheless important that the resources be ‘stable’ and ‘regular’, as the EU law requires; in that context, the relationship with the family member, and whether the support was based on a legal requirement, could be relevant.  

However, the Council version would again reduce standards below the level of the current law, as interpreted by the CJEU; the (qualified) obligation to take account of the resources supplied by third parties (such as family members) would only be an option for Member States.

In the current law, Member States also have an option to require compliance with ‘integration conditions’ in order to obtain EU LTR status. The 2022 proposal would not alter this optional obligation (except as regards comparison with rules for national LTR status and exemptions for family members, both discussed below). There is CJEU case law that indirectly addresses these requirements: P and S, discussed here, in which the Court ruled that an integration requirement imposed after getting LTR status was acceptable, subject to being proportionate. The Council’s position would alter the current law by stating that integration conditions may in particular concern learning the national language of the Member State; but this reflects how integration conditions are applied in practice anyway. (The preamble of the 2022 proposal also refers to language acquisition).

Next, Member States may reject applications on grounds of public policy and public security, subject to the requirement that:

When taking the relevant decision, the Member State shall consider the severity or type of offence against public policy or public security, or the danger that emanates from the person concerned, while also having proper regard to the duration of residence and to the existence of links with the country of residence

The 2022 proposal would make no change to this provision. Note that it has been the subject of case law: the CJEU ruled in 2020 that a prior criminal conviction cannot automatically exclude a non-EU citizen from obtaining EU LTR status; there must be a ‘specific assessment’ of each applicant, taking into account the offence committed, the degree of risk to public policy and security, the length of residence and the strength of links with that State. 

Finally, the 2022 proposal would delete an odd provision in the current law, which states that in the process of applying for LTR status, the evidence submitted to show that the non-EU citizen meets the conditions to obtain LTR status ‘may also include documentation with regard to appropriate accommodation’. It is not clear if this allows Member States to impose a further requirement for the applicant to show that he or she has adequate accommodation; but if the clause is deleted, the point is moot. But the Council version would retain it, clarifying it to state that the evidence regarding accommodation would be part of the assessment of the resources requirement.

 

The application process and procedural rights

The 2022 proposal would retain the current rule that a Member State should decide on an application for EU LTR status within six months. However, the possibility of extensions in ‘exceptional’ cases would be dropped, replaced by a clause providing for the authorities to request further information if they need clarification relating to an application. There would be a new rule for those who already have national LTR status (discussed further below). The Council version would keep the possibility of exceptional extensions, albeit limiting it to a 60-day maximum.

As for procedural guarantees, the current law requires reasons to be given for refusing applications or withdrawing status, notification of decisions (specifying redress procedures and time limits), and the right to ‘mount a legal challenge’ to rejections of applications, or withdrawals, loss or non-renewal of EU LTR status.

There would be an ostensibly new rule on fees, providing that while Member States may require fees for handling applications for EU LTR status, those fees ‘shall not be disproportionate or excessive’. In fact this reflects CJEU case law (see Commission v Netherlands and CGIL and INCA).

As regards both fees and procedural guarantees (including time limits to decide on applications), Member States would have to extend any more favourable treatment which they accord to holders of or applicants for national LTR status to applicants for or holders of EU LTR status (see further below). However, the Council version would drop this requirement as regards time limits.

 

Equal treatment rights

The current law provides that EU LTRs are entitled to equal treatment with nationals as regards: access to employment and self-employment (with an exception for activities involving ‘public authority’); working conditions; education and vocational training, including study grants; recognition of professional qualifications; social security, social assistance and social protection, as defined by national law; tax benefits; access to goods and services, including procedures for obtaining housing; freedom of association; and access to the territory of the Member State granting LTR status. However, Member States can impose a residence condition for the LTR or his/her family members for some aspects of equal treatment. They can also limit access to employment or self-employment where existing rules only give access to EU citizens, and impose language or educational requirements as regards access to education. Moreover, they can limit access to social assistance and social protection to ‘core benefits’. The equal treatment rules are ‘without prejudice’ to EU asylum law, as regards refugees and people with subsidiary protection (and their family members); and Member States have the right to set higher standards.

The new proposal would amend the equal treatment rules to: define social security by reference to EU law; add access to private housing; drop the possibility of a residence condition for family members; eliminate the ‘core benefits’ exception; provide for benefits if an LTR moves to a non-EU country; and require the extension of any more favourable national rules for national LTRs to those holding EU LTR status. The Council version rejects the proposals as regards private housing or residence conditions for family members, but accepts the others.

This should be seen in light of the CJEU case law on the equal treatment clause, which has: limited the use of the ‘core benefits’ clause (Kamberaj, which interpreted the exception strictly in light of the EU Charter of Fundamental Rights and said that it could not be used to exclude equal treatment for housing benefit, or apply if a Member State had not declared its intention to use it; see also the KV judgment); provided for family members to get benefits despite not being resident (INPS, where the Court again also adds a condition of the Member State expressing its intention to use the exception); and ruled that a lack of equal treatment as regards a family discount card is in breach of the requirement of non-discrimination for access to goods and services (ASGI, again referring to the condition of a Member State stating an intention to derogate).

 

Loss of status and expulsion

The current law requires Member States to remove LTR status in the event of its ‘fraudulent acquisition’, following an expulsion measure, or due to absence from EU territory of 12 months. But Member States have an option to allow longer absences in general, or for ‘specific or exceptional reasons’. There is an option to remove LTR status where the person concerned is a ‘threat to public policy’ that falls short of the grounds for expulsion. Member States may also withdraw LTR status for people who have lost international protection status in accordance with EU asylum law. LTR status in one Member State is also lost once another Member State has granted it, or after six years’ absence from a single Member State’s territory; a Member State may allow such LTR status to stay after six years’ absence for ‘specific reasons’.  Where LTR status is lost due to absence, a Member State must provide a facilitated procedure to get it back, ‘in particular’ for those who moved to another Member State to study; the process and details of this are left to national law. If LTR status is lost but the former LTR is not removed, a Member State must allow the former LTR to stay if they meet the conditions to stay under national law (on which, see the 2019 YZ judgment).

The 2022 proposal would change these rules to refer to a ‘decision ending the legal stay’ instead of expulsion or removal (to match the wording of the EU Returns Directive), and allow an absence from the EU of 24 months, not 12. However, the option to permit longer absences than that would be limited to cases of ‘specific or exceptional reasons’. The facilitated process to get LTR status back would no longer be left to national law; there would be a mandatory exemption from integration requirements and optional exemptions from the waiting period and resources and sickness insurance conditions. (The Council version would set a three-year time limit on the mandatory exemption from integration requirements)

Note that a recent judgment of the CJEU, discussed here, interpreted the 12-month absence rule generously, providing that a return for a few days during that period could interrupt the absence and so start the clock on the 12-month period anew. Presumably that would apply equally to the longer 24-month period of absence now being proposed. On the other hand, the YZ judgment was less generous as regards fraud, ruling that LTR status could be lost even if the applicant was unaware that the documentation was fraudulent.

Again, the Council version would be (overall) less generous than the current law, as interpreted by the CJEU. Its version would provide for the loss of LTR status in the event of not having the ‘main residence’ in the EU, either for 18 consecutive months, or for 18 cumulative months in one of the five year periods since the LTR permit was first granted. Member States would have an option to be more generous. And current standards would also be lowered by making it mandatory to remove LTR status where the person concerned is a ‘threat to public policy’ that falls short of the grounds for expulsion.

As for expulsion, the current law provides that Member States can ‘solely’ expel an EU LTR where there is ‘an actual and sufficiently serious threat to public policy or public security’. This decision ‘shall not be founded on economic considerations’, and Member States must consider the duration of residence, the age of the LTR, the consequences for the LTR and family members, and the links with the Member State and the country of origin. There must be judicial redress against expulsion, legal aid must be granted ‘on the same terms’ as nationals, and there are special rules if the LTR has international protection.

The 2022 proposal would amend these rules only as regards cross-references to the Returns Directive. CJEU case law is relevant here: the Court has confirmed that a criminal conviction is not sufficient by itself to justify expulsion, but that the various factors listed in the law must be fully taken into account (Lopez Pastuzano, discussed here; WT; see also Ziebell).

 

Family members

A wholly new clause in the 2022 proposal contains a number of special rules for family members. First, children of EU LTRs born or adopted in the territory could obtain LTR status immediately following an application, waiving the waiting period and the resources, sickness insurance and integration rules. Second, family members of EU LTRs would only have to comply with integration requirements in the family reunion Directive after family reunion has been granted. Third, the application of EU LTRs’ family members would be fast-tracked, and they would benefit from some of the procedural rights in the proposed LTR law. Next, family members of EU LTRs would be exempt from labour market tests as regards access to employment. Finally, any more favourable rules for family members of national LTRs relating to these issues must be extended to family members of EU LTRs.

The Council version would gut almost all of this part of the proposal. There would be no early or simplified acquisition of LTR status for those born or adopted on the territory – only residence permits issued on the same basis as family members who were admitted from another country. There would be no deferral of integration requirements until after family reunion was granted, and no equal treatment as regards family members. The time limit to decide on applications would be cut from nine months to six months, but not 90 days as the Commission proposed. Only the immediate access of family members to the labour market remains unscathed.  

 

Relationship with national LTR status

A key feature of the existing and proposed EU LTR law is that the EU law does not fully harmonise national law on LTR status: it sits in parallel to it. Under the current law, Member States may still issue national LTR permits on a ‘more favourable basis’ than the EU rules; but such permits do not confer the right to move to other Member States, as confirmed by the CJEU in the Tahir case.

Under the proposal, the capacity to issue national long-term residence permits is retained, but the reference to ‘more favourable conditions’ for them would be dropped. This is because the proposal would require non-discrimination between national law on LTR status and EU LTR status in a number of areas. (This approach to the relationship between EU and national immigration law was pioneered in the recent revision of the Blue Card directive for highly-skilled workers: see discussion here).

In particular, Member States would have to extend to applicants for EU LTR status any more favourable rules relating to applicants for national LTR status as regards resources, integration conditions, procedural guarantees (including time limits to decide on applications), fees for applications, equal treatment, and family members. The Council version only accepts some of this, though: it would retain only equal treatment as regards procedures (but not time limits), fees, and equal treatment.

A separate issue is the relationship between national and EU LTR status. Can both types of status be held, or do non-EU citizens have to choose between one or the other? The current law is not explicit on this issue – and neither is the 2022 proposal. Member States have interpreted it differently in practice, and the case law has not addressed the point yet.

The 2022 proposal addresses the link between the two from a different angle, providing that if an applicant for an EU LTR status already has a national LTR status, the applicant is exempt from the conditions of resources, sickness insurance and integration, provided that ‘compliance with those conditions was already verified in the context of the application for the national residence permit’. But this does not tell us whether the application for EU status can come in addition to national LTR status, or must be a replacement for national status, or whether Member States can choose which of those two approaches they prefer. (It does necessarily mean that holding national LTR status cannot rule out applying for EU LTR status in future). In any event, the Council version of this clause weakens it considerably, providing that Member States only have an option not to require the application of the resources and sickness insurance requirements in such cases; and there is no provision to drop the integration condition.

 

Movement between Member States

The current law provides that EU LTRs can move to other Member States on grounds of ‘exercise of an economic activity in an employed or self-employed capacity’, ‘pursuit of studies or vocational training’ or ‘other purposes’. The 2022 proposal retains this basic clause.

However, the current law allows for limits on the right. Member States can apply a labour market or preference test for those EU LTRs who move for the purposes of employment or self-employment. They can also retain pre-existing quotas on the number of non-EU citizens who move to their territory. The 2022 proposal would delete both of these limits; but the Council version would retain the possible labour market or preference test.

Some groups of workers are excluded from the scope of the current (and proposed) law: EU LTRs posted by their employer to perform services, or who provide services themselves; those moving as seasonal workers (Member States can decide the conditions for this group under their national law); and cross-border workers (who can similarly be ‘subject to specific provisions of national law’).

Conditions for moving

The EU LTR has to apply for a residence permit in the second Member State within three months of arrival. Under the current law, each Member State has an option to consider applications made while the LTR is still living in the first Member State; the proposed law would require Member States to consider such applications. The Council version would keep this as an option only.

The second Member State may require ‘stable and regular resources’ and sickness insurance as a condition for the LTR to get a residence permit there. This differs from the obligation for the first Member State to impose such requirements before LTR status is obtained there (as discussed further in the first blog post). The wording of these conditions is otherwise currently identical to the wording which applies to the conditions to get LTR status in the first Member State.

The 2022 proposal adds that the resources can be ‘also made available by a third party’, which matches the proposed amendment to the conditions for getting LTR status in the first Member State, which takes account of the case law on the latter point. However, the 2022 proposal does not match the proposal to add other new wording to the conditions for getting LTR status in the first Member State, on use of a reference amount, but not a minimum income level which applies automatically. The Council version would add this wording, and also drop the proposed requirement to consider third party resources.

The second Member State has an option to require an LTR to comply with integration measures before getting a residence permit. The wording here is different from the rules on getting LTR status in the first Member State, where the law refers to an option to require compliance with integration conditions. The second Member State cannot require compliance with integration measures if the LTR has already complied with integration conditions in the first Member State. However, the Council version would yet again reduce standards compared to the current law, by dropping this limit on Member States.

Member States may require documentation as regards employment (ie some form of proof of being hired), self-employment (a funding requirement), or studies. The 2022 proposal would delete an unclear reference to providing evidence of accommodation, matching a deletion of the similarly unclear clause relating to applying for LTR status in the first Member State. The Council version would retain the clause on accommodation.

New provisions in the 2022 proposal would address two important points: EU LTRs would have equal treatment with EU citizens as regards recognition of professional qualifications; and an EU LTR must be allowed to start work or study in the second Member State no more than 30 days after submitting a complete application for a residence permit. But the Council version would only provide an option for Member States to let the LTR begin work after submitting an application.

Family members

Core family members who already lived with the EU LTR in the first Member State must be admitted to the second Member State. Extended family members may be admitted. If the family members did not already live with the EU LTR in the first Member State, the EU’s family reunion Directive applies. The Council version would drop the obligation in the 2022 proposal to consider third party resources when assessing their applications.

A separate new provision on family members in the 2022 proposal would allow them, when applying for an ‘autonomous residence permit’ from the sponsor they are joining under the family reunion Directive, to cumulate residence in different Member States, as long as the last two years were spent in the second Member State. But the Council version would drop this.

Exceptions: public policy, public security and public health

The second Member State has an option to refuse the LTR a residence permit on grounds of public policy or public security. As with the conditions for getting LTR status in the first Member State, the second Member State must assess the severity and type of offence committed by the person concerned; but conversely there is no requirement to assess the duration of residence or links with the country of origin, and no rule against founding a refusal on ‘economic considerations’.

As for public health, the 2022 proposal (also accepted in the Council version) would replace the current law with a cross-reference to the Schengen Borders Code, which defines a ‘threat to public health’ slightly differently, as:

any disease with epidemic potential as defined by the International Health Regulations of the World Health Organization and other infectious diseases or contagious parasitic diseases if they are the subject of protection provisions applying to nationals of the Member States.

Procedural rights

Currently national authorities in the second Member State must make a decision on the LTR’s application for a residence permit within four months. If the documentation is incomplete, or in ‘exceptional circumstances’ due to the complexity of the application, they have a further three months. The 2022 proposal would cut these deadlines to 90 days and 30 days respectively; but the Council version would set them at four months and 60 days.   

Otherwise procedural rights are very similar to those applicable when applying for LTR status in the first Member State: giving reasons; notification; information on redress and time limits to seek it. But this only applies to rejection of applications, not to withdrawal of status. There is a right of legal redress in the case of rejection, withdrawal or non-renewal. However, there is no reference to equal treatment as compared to applicants for residence permits under national law, and no express reference to fees, although the CJEU case law has confirmed that any fees for residence permit applications in the second Member State must be proportionate: Commission v Netherlands.

Equal treatment

The second Member State must guarantee equal treatment for the LTR who has moved there, once the LTR has received a residence permit, by cross-reference to the rules on equal treatment of LTRs in the first Member State (see discussion above). So the case law applicable to that equal treatment rule, and the proposed amendments to that rule (if agreed) necessarily apply in the second Member State too. The 2022 proposal would extend this to family members of the LTR, replacing a cross-reference to the weaker provisions of the family reunion Directive. It would also delete the power for Member States to limit changes of employer by LTRs in the first year. (There would be an option for Member States to impose an obligation to notify changes of employer instead). However, Member States would still have discretion to limit access to employment or self-employment by students or those who move for other reasons. The Council version would drop both proposed amendments.

Withdrawal or loss of status

Before the LTR obtains LTR status in the second Member State, that Member State can expel the person concerned to the second Member State for breaching the conditions set out in EU law for holding the residence permit there (as discussed above). The first Member State must take that person back. Under the 2022 proposal, references to national law are replaced by references to the EU’s Returns Directive instead. Also, the option for the second Member State to expel the non-EU citizen from the EU entirely on ‘serious grounds of public policy or public security’ would be removed. The Council version agrees with these amendments.

 

Obtaining LTR status in the second Member State

Under the current law, the LTR who has moved to the second Member State can obtain LTR status in that Member State, subject to all the same conditions and procedural rules that apply to obtaining LTR status in the first Member State. Therefore all the case law on the latter rules, and all the proposed amendments to them (if agreed) necessarily apply too.

The 2022 proposal suggests speeding up this process, allowing the LTR to get LTR status from the second Member State after only a three-year wait, instead of the usual five years. However, before the five-year period, the second Member State is not obliged to grant ‘social assistance, or maintenance aid for studies, including vocational training, consisting in student grants or student loans’ to LTRs other than ‘workers, self-employed persons, and their family members’. A Member State can opt to be more generous, on condition that it is also more generous to EU citizens in the same circumstances. But Member States could also opt to end the stay of LTRs who are workers or self-employed people between three and five years if they cease to satisfy the ‘sufficient resources’ or ‘comprehensive sickness insurance’ requirement. Remarkably the Council version accepts this reduction in the usual five-year waiting period.

Finally, while refugees and those with subsidiary protection are entitled to qualify for EU LTR status and move to another Member State, and there are some provisions relevant to their particular situation, neither the current law nor the 2022 proposal provides for the transfer of their international protection status.

 

Comments

The Commission’s proposal would have opened up EU LTR status to more people, making it harder to lose and giving holders more rights. The European Parliament position (which I have not discussed here) goes further on these points. But the Council position not only rejects most of the Commission’s (and necessarily the Parliament’s) proposals; on the whole, it actually goes backwards compared to the current law.

In particular, the Council would take rights away as regards: exclusion of further groups of people (although arguably they are just specific examples of the current ‘temporary grounds’ exception); former students and (arguably) former temporary protection beneficiaries obtaining LTR status; taking account of third parties’ contribution to resources (arguably a reduction of rights also when moving between Member States); adding a ‘main residence’ requirement to retain LTR status in the event of absence; and allowing Member States to require compliance with integration standards again when moving to another Member State.

The Council would reject improvements as regards: cumulation of residence in multiple Member States for most people; former students and former ‘temporary grounds’ residents obtaining LTR status; extensions to the period to decide on an application (although they would be limited in time); equivalence in time limits with national LTR status; some improvements to the equal treatment rules; family members obtaining LTR status early, delaying integration requirements, or equality with national LTR children; the accommodation requirement (including in second Member States); equality with national LTR applications as regards resources, sickness insurance, and integration requirements; simplified EU LTR applications for those who already have national status (except for purely optional simplifications); dropping labour market or preference requirements for moving between Member States; simplification of applications to move to another Member State; starting work or study early in another Member State; family members cumulating residence in different Member States to obtain autonomous residence; (most of) the reduced time limits to decide on applications for LTRs to obtain residence permits in a second Member State; and improvements to equal treatment in a second Member State .

Finally, the Council would admittedly accept improvements as regards: dropping the ‘formally limited’ exception; allowing cumulation of residence in multiple Member States for some people (although this is not an improvement for most Blue Card holders); refugees and people with subsidiary protection obtaining LTR status; some aspects of the equal treatment rules; facilitated access to reacquisition of LTR status (with limits); family members’ labour market access; equality with national LTR applications as regards procedures, fees, and equal treatment; dropping quotas on movement to another Member State; expulsion out of the EU from a second Member State; and a shorter waiting period to obtain LTR status in the second Member State.

The biggest of these three lists is of proposed improvements which the Council has rejected. While the length of this list is a disappointment, from the perspective of the EU’s stated goals of improving equality and integration, at least (potential) long-term residents are no worse off than they are at the moment.

The other two lists – new rights the Council has agreed to, and existing rights the Council would remove – may look similar in quantity. But they are not qualitatively similar. For the key rights the Council would remove concern how soon people can become long-term residents in the first place, potentially in practice even preventing them from becoming LTRs at all (depending on the length of their subsequent legal stay on other grounds). The removal of rights which the Council desires would also make it easier to lose LTR rights and harder to obtain them in a second Member State.

Of course, it is possible that the European Parliament may ride to the rescue during trilogue negotiations. But will it? The Council may reject any attempt to improve current standards, considering the loss of its desires to reduce those standards an acceptable price to pay as long as standards are not improved. Or the Parliament may be willing to agree to reduce its ambitions, or even reduce current standards, given its desire to agree laws in this field before its next election, in order to avoid the next Parliament, in the event of a shift to the right in the next elections, agreeing with the Council’s more restrictive views – or even pushing the Council towards trashing even more of the current Directive. As with EU asylum law, the European Parliament is haunted by the Ghost of Parliament Future.

 

See also

Report of the EU Fundamental Rights Agency

ECRE policy paper

Rethinking Gender-Based Asylum: A Look at the Advocate General’s Opinion on Women Fleeing the Taliban

 

Türkan Ertuna Lagrand (Assistant Professor, Utrecht University School of Law) and Salvo Nicolosi (Senior Assistant Professor, Utrecht University School of Law)

Photo credit: USAIDAfghanistan, via Wikimedia Commons

Can a woman be recognized as a refugee, merely because of her gender? This has been one of the most debated questions in international refugee law, which has recently reached the Court of Justice with two joined cases in AH and FN on which last 9 November 2023, Advocate General Richard de la Tour delivered his Opinion. These joined cases relate to a request for a preliminary ruling from the Austrian High Administrative Court. The referring judge was in doubt whether, in light of Article 9 (1) (a) and (b) of the Qualification Directive, it is sufficient that a woman who is affected, merely on the basis of her gender, by the accumulation of government-imposed or supported restrictive measures can be recognised as a refugee without the need to assess the woman’s individual situation.

While awaiting the ruling from the Court of Justice, it is worth underscoring the significance of the Advocate General’s Opinion in light of three complementary dimensions, each representing crucial elements within the Advocate General’s assessment. These dimensions refer to the nature of persecution arising from discriminatory measures; the issue of whether women can be recognized as constituting a distinct social group; the need to conduct an individual assessment as the foundational basis for granting refugee status.

By addressing these three dimensions, this short post aims to flag the potential for the Court of Justice to expand the scope of protection in Europe and contribute to the progressive development of international refugee law.

Systematic discrimination against women

The reference from the Austrian Court is rooted in the rise of the Taliban regime in Afghanistan in 2021, marked by the implementation of a set of discriminatory measures specifically aimed at women in the country. As the Austrian High Administrative Court as well as experts of the United Nations have underscored, the Taliban has put in place measures severely restricting civil and political rights. Such measures consist of preventing women from travelling without a male companion, obligating them to cover their bodies; denying participation in political office and political decision-making processes; denying women access to legal means to obtain protection from gender-based and domestic violence; and lack of protection against forced marriages. Additionally, these measures have significantly curtailed social, economic and cultural rights, such as women’s right to engage in gainful employment, and women’s access to health care, education and sports. In this regard, it is worth stressing that Afghanistan is the only country in the world where girls and young women are forbidden from attending secondary school and higher education institutions.

Admittedly, the accumulation of these measures has led to a situation that the Advocate General considered of 'severe, systematic and institutionalised discrimination' against women.

The concept of ‘discrimination’ is  of paramount importance to determine the existence of persecution for the purposes of seeking recognition as a refugee. However, not all discrimination amounts to persecution. On this point,  Advocate General’s Opinion is especially illustrative as it, in light of the UNHCR Handbook, clarifies that ‘a measure of discrimination will only amount to persecution if it leads to consequences of a substantially prejudicial nature for the person concerned, such as… access to available educational facilities’.

The Advocate General concluded that while some measures individually amount to persecution under Article 9 (1) (a) of the Qualifications Directive (which states that to be considered ‘persecution’, an act must be ‘be sufficiently serious by its nature or repetition as to constitute a severe violation of basic human rights, in particular the rights’ which States cannot derogate from under Article 15(2) ECHR), others cumulatively meet the threshold under Article 9 (1) (b), due to systematic violations of human rights which are ‘sufficiently severe as to affect an individual' in a similar manner as mentioned in Article 9 (1) (a).

 

Women as a particular social group

Interestingly, these joined cases gave the Advocate General de la Tour an opportunity to reiterate and finetune a line of argumentation that he followed earlier this year in the case of WS. On that occasion, the Advocate General argued that women can constitute a particular social group ‘solely on account of their condition as women.’ They in fact share an innate and immutable characteristic, because of which they are seen differently by society, according to their country of origin, by reason of the social, legal or religious norms of that country or the customs of the community to which they belong (para 72). In the same opinion, Advocate General de la Tour convincingly rejected the tendency,  often followed by senior courts, according to which to use women qua women cannot constitute a relevant social group owing to the size of the group. On the contrary, de la Tour concluded that ‘the concept of “distinct identity” of a group, in that it is perceived differently by the surrounding society, cannot be interpreted as entailing a quantitative assessment.’ From this perspective, the Advocate General echoed the position of the UNHCR  reminding that other grounds are not bound by the question of size and upheld the scholarly view that have unearthed the fallacy of such an approach.

Challenging the individual assessment as the foundational basis for refugee status

Borrowing Hathaway and Foster’s words ‘it is now widely understood that where a woman has a well-founded fear of being persecuted for reasons of her gender,… refugee status ought to be recognized.’ Despite the equivocal terms of the Qualification Directive (Article 10), recognizing only that ‘[g]ender related aspects, including gender identity, shall be given due consideration for the purposes of determining membership of a particular social group or identifying a characteristic of such a group,’ there is nonetheless widespread recognition in Europe that women constitute a social group for Convention purposes. As the situation of women and girls in Afghanistan has deteriorated rapidly, Member State authorities went even further to recognize women as refugees solely on the basis of their gender without assessing on a case-by-case basis whether there is an individual a risk of persecution.

While Austria was the first Member State to officially explore the possibility of accepting Afghan women as refugees without an individual assessment, a number of other States have recognized women from Afghanistan as refugees without further examination as to the individual situation. Sweden announced in December 2022 that any Afghan woman asking for refugee status will be granted this status. After firstly declaring to  continue with an individual examination of female asylum seekers from Afghanistan, Denmark later decided to hold a ‘relaxed assessment of evidence’ and as of 30 January 2023 all women and girls from Afghanistan have been granted asylum solely because of their gender. Similarly, the Finnish Immigration Service has announced in early 2023 that ‘all Afghan women and girls are granted refugee status.’

Such a domestic practice offered the Advocate General the opportunity to explain that this practice falls within the margin of appreciation that is left to the Member States by Article 3 of the Qualification Directive to introduce or retain more favourable standards for determining who qualifies as a refugee, in so far as those standards are compatible with the Directive. In this regard, the Advocate General also referred to the ruling in LW e, in relation to which the Court- decided that such standards may consist, inter alia, in relaxing the conditions for granting refugee status and should not prejudice to the general scheme and objectives of that Directive (paras 39-40). Indeed, concurring with the Advocate General, asylum applications submitted by women and girls from Afghanistan have specific characteristics that would allow the competent authorities to deviate from the individual assessment method, in principle required by Article 4 (3) of the Qualification Directive. The discriminatory measures to which Afghan women and girls are exposed are part of a regime of segregation and oppression imposed solely on account of the women’s presence on the territory, regardless of their identity or personal circumstances. Such a circumstance makes unnecessary to establish that the applicant is targeted because of distinctive characteristics other than her gender.

Interestingly, despite these readily apparent, objective circumstances in the country of origin, the Advocate General did not approach the cases on the basis of prima facie recognition of refugee status, which as confirmed by the UNCHR, constitutes an exception to the principle of individual assessment. As argued by Zieck, prima facie recognition is in essence ‘a collective form of status determination that presumes that each individual member of a particular group qualifies for refugee status based on objective information on the circumstances causing flight.’ While particularly suited to situation of large scale arrivals of refugees, prima facie recognition may also be appropriate in relation to groups of similarly situated individuals whose arrival is not on a large scale. However, as the legal foundations and contours of this practice remains still opaque, the Advocate General might have chosen to confine his argumentation within the specific features of EU asylum law, notably Article 4 of the Qualification Directive. This was a reasonable but also particularly relevant choice as it clarifies to what extent EU asylum law allows a departure from an individual assessment, thereby offering a valuable standpoint to the Court to proceed in the same direction.

Concluding remarks

To conclude, the Joined Cases in AH and FN bear significant relevance, particularly in the near term for Member States that have already adjusted their asylum policies concerning Afghan women, and, prospectively, for those Member States poised to emulate such modifications, following an expected favourable ruling by the Court. If the Court were to adopt the analytical framework proposed by Advocate General de la Tour, this would, therefore, contribute to aligning the EU's stance with that of the UNHCR, the Human Rights Council, thereby substantially contributing to the advancement of international refugee law.

 

Amazon v DSA: insights from interim proceedings

 

 

 

Laureline Lemoine, Senior Associate, AWO Agency

 

Photo credit: KarleHorn, via Wikimedia Commons

 

On September 27, 2023, the President of the General Court, Marc van der Woude, issued an order in the case of T‑367/23 R Amazon Services Europe v Commission, one of the first legal challenges against the Digital Services Act (DSA). The order sheds light on Amazon's stance and the arguments that can be anticipated in the main proceedings, and has potential implications for other providers of very large online platforms (VLOP). 

 

Amazon was designated as a Very Large Online Platform (VLOP) by the European Commission on 25 April 2023. This designation meant that Amazon, along with other VLOPs, had until 25 August 2023 to comply with DSA obligations, while other entities (platforms, intermediaries) have until 17 February 2024. In response, Amazon initiated legal action to annul the Commission's VLOP designation, asserting that it infringed upon principles of equal treatment and constituted a disproportionate restriction on its rights. However, as EU acts are presumed lawful, Amazon was required to comply with DSA obligations throughout the proceedings, leading them to request interim measures to suspend specific obligations stemming from their VLOP designation.

 

Examining Amazon's arguments 

 

One of Amazon's primary concerns was Article 38 of the DSA, which mandates an opt-out for recommender systems based on user profiling. Amazon argued that this requirement would adversely impact their business, customers, and third-party sellers. However, President Marc van der Woude noted that Article 38 does not prohibit the use of such systems but merely offers users an opt-out option, and suggested that Amazon could inform customers effectively about the benefits and risks of such an option. The President suggested that platforms could employ “precise and effective measures” to inform customers of the “benefits of the recommender systems and the risks that will ensue from opting out”. In this context, Amazon could only claim financial harm, which, based on the evidence, was deemed insufficient to imperil its financial viability before the final judgement. Consequently, no interim measures were granted concerning Article 38 of the DSA.

 

The suggestion from the Court could lead to platforms employing pop-ups and persuasive language to prompt users to continue using profiling-based recommender systems, similar to how they request users to approve personalised advertising via cookie banners. 

 

Amazon's objections were more substantial concerning Article 39, where it argued that the obligation to publish an advertisement repository would expose confidential information, causing harm to their advertising activities and partners and leading to the loss of consumers. 

For the purpose of interim proceedings, the President had to assume the confidentiality of the information and therefore agreed that the repository revealed sensitive information, which could potentially be exploited by competitors. The Commission tried to counter-argue that the main novelty of the DSA was to consolidate information, explaining that Amazon was already obligated to disclose most of the required information under existing EU legal acts. However, the President highlighted that certain elements of the DSA, particularly pertaining to the duration of advertisements (Article 39(2)(d) DSA) and the total of recipients reached (Article 39(2)(g)), appeared to be genuinely new and not covered by previous legislation.

 

One of the key issues of the main proceedings will therefore centre around the question whether the information Amazon is supposed to publish under Article 39 is genuinely confidential. To prevent jeopardising the ongoing main proceedings, the General Court President chose to suspend Amazon’s obligation to make the advertisement repository public, but Amazon is still required to create and compile the repository pending the outcome of the main proceedings. 

 

Implications for VLOPs

 

The outcome of this interim proceeding has broader implications, especially for other VLOPs. 

The absence of a clear case and the failure to demonstrate real harm in these interim proceedings regarding Article 38 could deter other VLOPs from pursuing similar challenges. Since Article 38 offers an opt-out mechanism closely aligning with GDPR principles, it also makes it less likely to be contested.

 

Conversely, other VLOPs could argue that Article 39 directly impacts their core business models as well. The fact that Amazon obtained a suspension may inspire them to explore similar avenues, given their shared concerns and arguments, which could increase their chances of securing a similar exemption.

Conclusion

 

The interim proceedings in the case of T‑367/23 R Amazon Services Europe v Commission provides interesting insights into how Amazon is navigating their obligations under the DSA. The legal processes and arguments emerging from this case offer a glimpse of what is to come and as this case unfolds, it will continue to be a focal point in the broader discussion surrounding DSA enforcement and its implementation.

Europol’s Joint and Several Liability Regime: Revolutionizing EU Fundamental Rights Responsibility?

 

Dr Joyce de Coninck, University of Ghent

Photo credit: Oseveno 

Introduction

 

The Europol Regulation introduces a system of joint and several EU liability for unlawful data processing in violation of Article 7 and 8 of the Charter of Fundamental Rights. This nascent EU liability regime features at the heart of the dispute in the Marián Kočner v Europol saga, and much like the recent WS and others v Frontex case before the General Court, highlights the urgency for clarification on joint responsibility for human rights violations as a result of shared conduct between the EU’s operational agencies and the EU Member States.

 

One of the drivers prompting this need for clarification, relates to the increased cooperation between the EU’s operational agencies on the one hand, with EU Member States on the other hand, in achieving common objectives. While Frontex is increasingly endowed with (executive) powers in the EU’s Integrated Border Management (see here, here and here), Europol is endowed with increased powers regarding the processing of large datasets, the screening of foreign direct investment in security-related cases and the acquisition of data from private companies in dealing with terrorist or child abuse material. These enhanced powers result in a multiplicity of public and private actors working together in achieving common goals, where previously such tasks fell within the exclusive purview of the Member States.  

 

The ‘crowding of the operational field’, referred to by Gkliati and McAdam as the ‘many hands’ problem, reveals a significant disconnect between the EU’s contemporary liability regime on the one hand, and the application of this liability regime in practice to situations of joint conduct that give rise to human rights harms on the other hand. In other words, the EU’s liability regime was not legally designed to accommodate questions of joint responsibility for human rights harms flowing from concerted conduct by the EU institutions, bodies, offices and agencies and the EU Member States. The incompatibility – or rather, unsuitability – of the EU’s human rights regime in dealing with joint conduct, features on two distinct levels, and on both levels, a driving force behind the unsuitability is one of legal design.

 

On the one hand, historical accounts of the constitutionalization of fundamental rights in the EU, giving rise to the Charter of Fundamental Rights in particular, explain that this process was by and large the result of constitutional concerns over EU fundamental rights protection by domestic courts. In other words, this exercise of constitutionalization came about in reaction to constitutional objections by Member States regarding the level of protection of fundamental rights provided under the EU’s chapeau. An unintended consequence of this development appears to be that the drafters of the Charter did not necessarily consider joint and inseparable operational conduct by EU entities and the EU Member States. In turn, and as predicted by Weiler, it did not bring the added clarity to how the state-centric Charter rights – many of which were inspired by and textually almost identical to state-centric international human rights treaties – would translate into enforceable negative and positive human rights obligations that give flesh to the bones of these human rights commitments. In other words, the mere fact that EU entities are bound by fundamental rights in the Charter, does not relay much on how the EU must conduct itself in order to comply with these rights, as I have discussed at length elsewhere (here, here and here).

 

On the other hand, the EU’s liability regime also was not legally designed to respond to questions of responsibility-allocation flowing from unlawful joint conduct giving rise to human rights harms. This is textually and historically supported, as the EU’s action for damages falls within the exclusive purview of the CJEU (Article 268 in juncto 340 TFEU) and case law has set out rules proclaiming that national courts shall be seized where damages are the result of the incorrect or correct implementation by Member States of EU legislative acts (for a general discussion, see here). In other words, the EU’s action for damages was not developed to consider joint non-contractual responsibility and the conditions for liability subsequently developed through the CJEU’s case law were also not developed with such liability in mind.

 

However, the increased reliance on inseparable and operational cooperation between EU entities and its Members giving rise to fundamental rights harms, brings to the fore a new dimension of liability that was not foreseen in either the normative human rights developments giving rise to the Charter, nor the liability regime that currently exists within the EU’s framework. Yet it is precisely this question of joint liability that sits at the heart of the case of Marián Kočner v Europol currently pending before the CJEU and the accompanying opinion by Advocate General Rantos as developed and discussed in what follows.

 

The Case

 

In 2018 Marián Kočner was being investigated by the Slovak criminal authorities within the context of a murder investigation. The investigation resulted in the domestic authorities taking possessing of two mobile phones and a USB drive belonging to the Applicant, which were subsequently handed over to Europol at the request of the domestic authorities in October 2018. Several months later, Europol returned the mobile phones and the USB-drive along with relevant scientific reports concerning its contents, as well as a hard-drive with encrypted data derived from the mobile phones to the Slovak authorities. The contents of the mobile phones and USB drive – transcripts of intimate conversations involving the applicant and his girlfriend, as well as the inclusion of his name on the ‘mafia lists’ – were subsequently leaked in large quantities and made public by the press. On the basis of these leaks the Applicant claimed compensation from Europol for non-material damage stemming from unlawful data processing, underscoring that the leaks by the press violated his right to a private and family life as protected under Article 7 CFR.

 

In the subsequent action for damages on the basis of Article 268 and Article 340 TFEU, the General Court dismissed the Applicant’s claims (Kočner v Europol T-528/20) holding that no causal link could be established between Europol’s conduct and the purported damages stemming from the data made public from the mobile phones, and that the Applicant had not provided any evidence demonstrating that the ‘mafia lists’ had been drawn up by Europol.

 

In his appeal, the Applicant asks the Court of Justice to set aside the General Court’s ruling on the basis of six points of law. For the purpose of the current contribution however, the focus will be on the argument raised by the Applicant concerning the nature of the EU’s liability. Specifically, the Applicant argues that the General Court erred in law for having disregarded Europol’s liability in light of recital 57 of the Europol Regulation related to joint and several liability. In other words, this claim by the Applicant juxtaposes the concept of ‘joint and several liability’ with the notion of joint responsibility more generally, contending that the implications of these different approaches to responsibility may have yielded a different outcome in the case. According to the Applicant, the fact that the General Court did not consider Europol’s liability through the standard of ‘joint and several liability’ constitutes an error depriving recital 57 of the Europol Regulation of any significance.

 

The arguments advanced by the Applicant provide the Court of Justice with the first-ever opportunity to rule on the scope and implications of the concept of joint and several liability of Europol, which – given the marginal case law on joint responsibility for human rights harms more generally – could prove very instructive in clarifying the conditions of joint responsibility and the manner in which such responsibility should be allocated between the EU and the Member States.

 

The Opinion

 

After dismissing an admissibility objection by Europol, Advocate General Rantos identifies six grounds of appeal, of which four relate to the question of whether unlawful data processing occurred by Europol. The remaining two points of appeal concern the nature of Europol’s liability and the concept of ‘joint and several liability’ specifically.

 

The question of the nature of Europol’s responsibility essentially revolves around recital 57 and Article 50 of the Europol Regulation. As aforementioned, recital 57 introduces the concept of joint and several liability where it may “…be unclear for the individual concerned whether damage suffered as a result of unlawful data processing is a consequence of action by Europol or by a Member State”. This provision covers only liability issues relating to unlawful data processing and only insofar it is unclear to which party the (unlawful) data processing should be attributed, whereas the preceding recital 56 recalls that for all other questions of non-contractual liability, the EU’s general liability rules – as articulated in the CJEU’s Bergaderm ruling – apply.

 

Chapter 7 of the Europol Regulation covers remedies and liability and Article 50 specifically, addresses liability stemming from unlawful data processing. This provision holds in its first paragraph that anyone having suffered damage from unlawful data processing will be entitled to receive compensation from either Europol in line with the general liability rules of article 340 TFEU, or from the Member State in which the unlawful data processing occurred in accordance with its domestic law. The second paragraph (Article 50(2)) holds that where a dispute arises concerning the ultimate responsibility for compensation, the Management Board of Europol shall decide by a two-thirds majority who bears the burden of ultimate responsibility for compensation. Grosso modo the relevant recitals appear to refer to modalities of responsibility allocation between Europol and the implicated Member States, whereas Article 50 is concerned with the ensuing obligation of compensation insofar responsibility has effectively been established.  

 

AG Rantos begins his opinion on the nature of the EU’s liability by pointing out that while the relevant recitals do introduce a solidarity-based responsibility mechanism, this is not mentioned explicitly in its operative counterpart. In fact, the absence of any explicit reference to joint and several liability in Article 50 led the General Court to the conclusion that liability in accordance with the general rules on liability embedded in Article 340 TFEU, could not be causally established.

 

After recalling the conditions to establish EU liability generally (para 34 – 35), AG Rantos addresses the question of the nature of Europol’s liability in a threefold manner, recalling that a provision of EU law must be interpreted mindful of its wording (1), the context in which it was drafted (2), and its objective and purpose (3), which may be inferred from its legislative history and through comparative interpretation.

 

Contrary to Europol, AG Rantos concedes that the wording of the relevant recitals (which appear to introduce new modalities of joint responsibility under EU law), and the wording of the Article 50 (which neglects any reference to joint and several liability and refers only to compensation) is not unambiguous. To this end, he underscores that the reference to joint and several liability in recital 57 suggests concurrent liability for Europol and the Member States, whereas Article 50 literally suggests responsibility for compensation as being a responsibility of either the Member State or Europol. Similarly, the generic reference to non-contractual EU liability in Article 340 TFEU, which is to be considered in line with the general principles common in the laws of the Member States, leaves room for interpretation.

 

As concerns the context of the contested provisions, the AG notes that while recitals have no legally binding force as such, they nevertheless function as an indicator of the intent of the legislator. In casu, the intent of the legislator was to favor the aggrieved parties and eliminate any questions of attribution. The AG concludes that this is not in conflict with Article 50, following which the latter must be interpreted in light of recital 57 and the concept of joint and several liability.

 

Finally, the objectives of recital 57 of the Europol Regulation may be discerned through its legislative history and a comparative interpretation of its meaning in light of general principles common to the Member States. Here, the AG recalls that the concept of ‘joint and several liability’ had been introduced in the very first Commission proposal and had been included among others to limit the difficulties encountered by aggrieved parties in attributing unlawful processing to either the Member States or the EU. Furthermore, a comparative analysis of this concept reveals that Member States make use of this mode of liability in cases where attribution of unlawful conduct may be hard to establish. The Advocate General concludes that suspending the procedure before EU courts while the concomitant domestic procedure against the Member State is pending – as typically occurs for questions of joint responsibility – would deprive Article 50 interpreted through recital 57 of any significance. It flows from this that concurrent proceedings would thus be possible. 

Analysis

 

The case deals with a situation of ‘many hands’ cooperation involving a Member State which gives rise to a question of unlawful data processing, arguably falling within the ambit of Article 7 (respect for private and family life) and 8 (protection of personal data) of the Charter. Flowing from this, the Applicant argues that Europol should be held responsible under the rules of joint and several liability, whereas Europol contends that this should be assessed under the standard rules of joint responsibility which are derived from the Bergaderm ruling. In essence, this is a question of whether the lex generalis applies or instead, whether a lex specialis applies. As aforementioned, the Advocate General recommends that the case be re-examined by the General Court, in light of the (underdeveloped) rules on joint and several liability, whereby he concurs with the Applicant that it is unclear to which party the conduct should be attributed.

 

The Francovich and Brasserie du Pêcheur judgments, spell out the conditions for Member State liability under EU law, whereas the Bergaderm judgment spells out the conditions for non-contractual responsibility of the EU institutions. These conditions require that for responsibility to arise, there must be a (sufficiently serious) breach of EU law, that causally gives rise to damage. In certain cases, the CJEU will also demand that the conduct must be attributable to the EU actor under scrutiny.

 

These rules apply to responsibility and joint responsibility between the EU and its Member States generally, but importantly do not prejudice more tailored, specific or alternative rules on (joint) liability. An alternative, bifurcated approach to liability exists in the realm of EU data processing. On the one hand, there are the data-processing specific rules for Member State liability embedded in the GDPR. On the other hand, there are specific liability rules for data processing applicable to EU institutions, bodies, offices and agencies as embedded in the Data Protection Law Enforcement Directive, as well as the Data Processing by the EU Institutions and Bodies Regulation. These data processing-specific rules apply, unless there are more specific rules that have been developed, which is the case for processing of operational data by Europol (Article 2(3) Data Processing by the EU Institutions and Bodies Regulation). In other words, more specific rules have been developed for situations involving processing of data for Europol. Accordingly, when it is clear to which actor (the Member State or Europol) unlawful data processing should be attributed, the regular rules on liability apply, in accordance with the domestic regime for Member State liability and in accordance with the action for damages concerning Europol’s liability (Article 50(1) Europol Regulation). However, when attribution is not clear, joint and several liability applies (recital 57 in juncto Article 50(2) Europol Regulation), leaving it to the Management Board to decide in case of conflict who bears the ultimate responsibility to provide compensation for the inflicted harm (Article 50(2) Europol Regulation).

 

Juxtaposing Joint Liability and Joint and Several Liability

 

This approach appears to give rise to procedural efficiency from the perspective of the Applicant and appears to relax the Bergaderm conditions for EU responsibility to arise. 

 

Choosing the Judicial Forum

 

The objective of the joint and several liability mechanism is to ensure that the Applicant’s rights are safeguarded. This means that unlike the system of joint EU-Member State responsibility, the domestic court will not necessarily be the primary forum to establish responsibility and the ensuing burden of reparations. Instead, the aggrieved individual could go through either the domestic legal system or the EU’s action for damages to have responsibility established. Upon conclusion of the legal procedures and once the Applicant has been awarded damages, these actors could subsequently settle any dispute on the duty to provide reparations in a subsequent procedure within the Management Board of Europol, the decision of which could also be subject to legal scrutiny under the annulment procedure. Under this mechanism, the Applicant enjoys a much lesser of a burden in choosing the appropriate judicial venue and is not constrained by which actor will be able to provide reparations. Instead, reparations (in case of responsibility) will be the default from the perspective of the Applicant.

 

Attribution and Causation Revisited

 

The system of joint and several liability suggests that as soon as a situation implicates both Europol and a Member State, and the questionable conduct cannot be definitely attributed to either entity, the requirement of attribution becomes obsolete, as the conduct will be considered attributable to both in full. Interestingly, by relaxing the requirement to establish attribution, the condition of causation will arguably also be relaxed. It is important to recall that while attribution links a particular line of conduct to an actor, causality links that actor to the damage. Relaxing the rules of attribution under the joint and several liability regime and doing away with the requirement to definitively attribute conduct to one or the other, ipso facto entails that the requirement of causality as it currently is being applied, can never be met. Causation under general EU liability law demands that there is an uninterrupted relationship between the unlawful conduct by a certain actor, giving rise to damage. Yet, in the absence of an obligation to attribute to either the Member State or the EU, the unlawful data processing will be considered attributable to both. If the unlawful conduct is considered attributable to both, it is then unclear how this impacts the causality requirement, which demands that the chain of causation linking the damage to the unlawful conduct by a particular actor, be uninterrupted by intervening acts.

 

Lingering Questions for the EU Courts

 

In light of the limited case law on EU (joint) responsibility generally, a number of questions remain unaddressed including by Advocate General Rantos either.

 

Attribution

 

A first small but pervasive question that demands further clarification concerns when Article 50 read in light of recital 57 of the Europol Regulation is triggered. The presumption appears to be that it is straightforward to distinguish between scenarios in which attribution can be definitively established, and situations in which it is unclear to which entity the unlawful data processing should be attributed. Yet, to date no clear standard of attribution can be definitely discerned under the general system of EU liability. In fact, practice by the EU institutions internally, in international relations, and across different EU policy fields, suggests that the rule of attribution differs significantly in a rather haphazard manner. This is complicated by the absence of a common legal forum to settle responsibility questions implicating the EU and Member States in unlawful data processing. The applied attribution rules under domestic regimes may very well differ from attribution rules under the EU’s liability regime for example, and to date, it is not clear which attribution rules should prevail, much less how this impacts whether Europol’s joint and several liability mechanism is triggered. Arguably, the absence of a coherent and clarified approach to attribution under EU law means that it will be easier for Applicants to trigger joint and several liability under the Europol Regulation. However, this remains to be seen, and is as always, dependent on the applicable burden, standard and method of proof required to show that it’s unclear to which actor the unlawful data processing should be attributed.

 

Joint and Several Liability Beyond Data Processing

 

The question of human rights liability for violations occurring at the hands of operational EU agencies has gained much traction in recent years. The current pending actions for damages against Frontex prompt the question whether a – CJEU clarified – system of joint and several liability may be a way forward. Anyone who has attended a conference or workshop involving Frontex representatives, has undoubtedly been confronted with the scripted answer to questions of human rights responsibility: ‘Frontex is not responsible for such actions – Frontex merely coordinates Member State actions’. Leaving aside the veracity of this response, it is undisputed the current regime of liability allocation has resulted in much blame shifting at the expense of individual rights. Conversely, the system of joint and several liability introduced by the Europol Regulation may very well be a way to circumvent this type of blame-shifting, safeguard the rights of the individual while ensuring that the burden of reparation is not circumvented by one at the expense of the other. A well-developed system of joint and several liability could thus fulfill both a remedial function – namely to protect the Applicants’ fundamental rights, as well as a deterrence function. By increasing the likelihood of legal responsibility through more relaxed rules on attribution and causation, EU institutions, bodies, offices and agencies may be disincentivized to resort to ‘many hands’ to circumvent responsibility claims in implementing their policies, or at least be incentivized to clarify their own rules on (human rights) responsibility allocation. Of course, I write this knowing full well that it is precisely these institutions that prefer to continue operating in the ‘many hands’ murkiness and that clarified rules on responsibility will receive political push-back and may disincentivize operational agencies from providing support in tackling transnational issues. Yet, once every so often, a unicorn-like development surfaces in the field of EU human rights responsibility, as evidenced by the joint and several liability mechanism in this case. Who knows – maybe this same unicorn will resurface in the EU’s responsibility acquis more generally? In any event, I await the CJEU’s perspective on this matter eagerly.