“Daphne’s Law”: The European Commission introduces an anti-SLAPP initiative

 

Professor Justin Borg-Barthet, University of Aberdeen*

*Advisor to a coalition of press freedom NGOs on the introduction of SLAPPs, co-author of the CASE Model Law, lead author of a study commissioned by the European Parliament, and member of the Commission's Expert Group on SLAPPs and its legislative sub-group

 

Background

 

When Daphne Caruana Galizia was assassinated in Malta on 16th October 2017, 48 defamation cases were pending against her in Maltese and other courts. Daphne was at the peak of her journalistic powers when she was killed, producing a seemingly endless exposé of criminality involving government and private sector actors. Naturally, those she was exposing did not take kindly to the intrusion on the enjoyment of the fruits of their labour. Courts which offered few meaningful safeguards against vexatious litigation presented a nominally legitimate forum in which they would seek to exhaust and punish Daphne and to ensure that others did not engage in similar investigations. Most of these cases were inherited by her sons, whose grief was interrupted constantly by a need to appear in court in defence of their mother’s work.

 

The scale of abusive litigation which Daphne endured prompted several NGOs to look more closely at the phenomenon of SLAPPs. Strategic Lawsuits Against Public Participation, a term coined in American academic circles, are lawsuits intended not to serve the legitimate purpose of pursuing a claim against a respondent, but instead to use court procedure to suppress scrutiny of matters of public interest. The direct costs, psychological strain, and opportunity costs of defending oneself in court are intended to coerce retraction of legitimate public interest activity, and to have a chilling effect on others who might show an interest. While most SLAPPs are framed as defamation claims, there is also a growing body of abusive litigation which suppresses public participation using the pretext of other rights such as privacy and intellectual property.

 

In response to the growing SLAPP phenomenon, several US States, Canadian provinces and Australian states and territories have introduced anti-SLAPP statutes. Typically, these statutes provide for the early dismissal of cases, and include cost-shifting measures to compensate SLAPP victims and to dissuade claimants. No EU Member State has yet adopted similar laws. Prompted by Daphne’s experience, European NGOs and MEPs became increasingly aware of the alarming incidence of SLAPPs throughout Europe. They then set out to identify and advocate for legal solutions in the European Union.

 

Initially, the European Commission resisted calls for the introduction of anti-SLAPP legislation, citing a lack of specific legal basis. As the legal and statistical research bases for NGO advocacy evolved further, and following a change in the Commission’s political leadership, the Commission’s assessment changed. This culminated in the introduction of a package of anti-SLAPP measures on 27th April 2022, including a proposed anti-SLAPP Directive which Vice-President Jourova dubbed “Daphne’s Law”.

 

The legislative proposal is based, in part, on a Model Law which was commissioned by the Coalition Against SLAPPs in Europe (CASE), a grouping of NGOs established to further the research basis and advocacy for anti-SLAPP laws in Europe. That Model Law is itself inspired by anti-SLAPP statutes adopted in the United States, Canada and Australia, but accounts for divergent continental legal traditions, and benefits from extensive consultation with experts and practitioners in Europe and elsewhere.

 

Legal Basis and Scope

As noted above, the key barrier for NGOs and MEPs to persuade the Commission to initiate anti-SLAPP legislation was disagreement about whether the EU had competence to act in this area. Subsequently, however, the Commission recognised the internal market relevance of SLAPPs, as well as adopting a more strident approach to the rule of law and human rights implications of SLAPPs. Arguments concerning a legal basis included an approach based on numerous treaty articles (as in the Whistleblowers’ Directive), reliance on the internal market effects of SLAPPs (Article 114 TFEU) as in the Model Law, and the potential use of treaty provisions on cross-border judicial cooperation. Ultimately, in view of Member States’ expected resistance to intervention in domestic procedural law, the Commission’s draft proceeds on the basis that Article 81 TFEU confers competence in respect of judicial cooperation in civil matters.

 

The orthodox view of Article 81 TFEU presupposes an international element to matters falling within its scope. It was therefore incumbent on the drafters to constrain the scope of the proposed directive to cases having a cross-border dimension. The Commission’s proposal begins with a classic private international law formulation which refers to the domicile of the parties. A case lacks cross-border implications if the parties are both domiciled in the Member State of the court seised. This, however, is subject to a far-reaching caveat in Article 4(2):

 

Where both parties to the proceedings are domiciled in the same Member State as the court seised, the matter shall also be considered to have cross-border implications if:

a)      the act of public participation concerning a matter of public interest against which court proceedings are initiated is relevant to more than one Member State, or

b)      the claimant or associated entities have initiated concurrent or previous court proceedings against the same or associated defendants in another Member State.

 

The Commission’s proposal adopts an innovative formulation, the breadth of which is commensurate to the internal market and EU governance implications of SLAPPs. Given the EU’s interconnectedness, it is paramount that the law account for the fact that cross-border implications do not flow only from the circumstances of the parties but also from transnational public interest in the underlying dispute.

 

The broad scope could be extended further if and when Member States come to transpose the proposed directive in national law. It is hoped, and indeed recommended as good practice, that Member States will take the view that national transposition measures will not be restricted to matters falling within the scope of the Directive but would apply also to purely domestic cases. This would avoid the prospect of reverse discrimination against SLAPP victims in domestic disputes. It would also minimise opportunistic litigation concerning the precise meaning of ‘[relevance] to more than one Member State’ in Article 4(2)(a).

 

Defining SLAPPs

Other than in the title and preamble, the proposed directive does not deploy the term ‘SLAPPs’. Discussions preceding the drafting process noted a number of difficulties associated with the term, not least (i) its unfamiliarity to a European legal audience, and (ii) the potential confusion resulting from the word ‘strategic’, which could be understood to require evidence of said strategy. In keeping with the Model Law, the Commission’s draft Directive deploys familiar language and focuses on the abusive nature of the proceedings. Rather than referring to SLAPPs, therefore, the text of the draft directive uses the term ‘abusive court proceedings against public participation’.

 

In identifying matters falling within the scope of the draft directive, it is first necessary to establish that a matter concerns ‘public participation’ on a matter of ‘public interest’. The Commission’s draft accounts for the fact that SLAPPs do not only target journalistic activity, but also seek to constrain legitimate action of civil society, NGOs, academics, and others. Public participation and public interest are therefore defined broadly as follows in Article 3:

 

‘public participation’ means any statement or activity by a natural or legal person expressed or carried out in the exercise of the right to freedom of expression and information on a matter of public interest, and preparatory, supporting or assisting action directly linked thereto. This includes complaints, petitions, administrative or judicial claims and participation in public hearings;

‘matter of public interest’ means any matter which affects the public to such an extent that the public may legitimately take an interest in it, in areas such as:

a)      public health, safety, the environment, climate or enjoyment of fundamental rights;

b)      activities of a person or entity in the public eye or of public interest;

c)       matters under public consideration or review by a legislative, executive, or judicial body, or any other public official proceedings;

d)      allegations of corruption, fraud or criminality;

e)      activities aimed to fight disinformation;

 

If a case concerns public participation in matters of public interest, it is then necessary to establish that the proceedings are abusive in accordance with the definition in Article 3:

‘abusive court proceedings against public participation’ mean court proceedings brought in relation to public participation that are fully or partially unfounded and have as their main purpose to prevent, restrict or penalize public participation. Indications of such a purpose can be:

a)      the disproportionate, excessive or unreasonable nature of the claim or part thereof;

b)      the existence of multiple proceedings initiated by the claimant or associated parties in relation to similar matters;

c)       intimidation, harassment or threats on the part of the claimant or his or her representatives.

 

There are therefore two key elements to the notion of abuse: (i) claims may be abusive because they are fully or partly unfounded, or (ii) they may be abusive because of vexatious tactics deployed by claimants. The implications of a finding of abusiveness will vary depending on the type of abuse identified in the proceedings, with more robust remedies available where the claim is manifestly unfounded in whole or in part.

 

Main legal mechanisms to combat SLAPPs

Once a court has established that proceedings constitute SLAPPs falling within the directive’s scope, three key remedies will be available to the respondent in the main proceedings: (i) the provision of security for costs and damages while proceedings are ongoing, (ii) the early dismissal of proceedings, and (iii) payment of costs and damages.

 

Speedy dismissal of claims is considered the cornerstone of anti-SLAPP legislation. Accelerated dismissal deprives the SLAPP claimant of the ability to extend the financial and psychological costs of proceedings to the detriment of the respondent. Early dismissal of cases must, of course, be granted only with great caution given it is arguable that this restricts the claimant’s fundamental right to access to courts. The solution provided in the draft directive is to restrict the availability of this remedy to claims which are manifestly unfounded in whole or in part. It is for the claimant in the main proceedings to show that their claim is not manifestly unfounded (Art 12).

 

Early dismissal is not available where the claim is not found to be manifestly unfounded, even if the its main purpose is ‘to prevent, restrict or penalize public participation’ (as evidenced by ‘(i) the disproportionate, excessive or unreasonable nature of the claim…the existence of multiple proceedings [or] intimidation, harassment or threats on the part of the claimant’). This differs from the Model Law which envisages early dismissal in cases which are not manifestly unfounded but which bear the hallmarks of abuse. The Model Law’s authors reasoned that a court should be empowered to dismiss a claim which is designed to abuse rather than vindicate rights. This would not, in our view, constitute a denial of the right to legitimate access to courts but would dissuade behaviour which is characterised as abusive in the Commission’s own draft instrument. While the Commission’s reasoning and caution are understandable, the high bar set by the requirement of manifest unfoundedness allows for significant continued abuse of process.

 

This shortcoming is mitigated somewhat by the other remedies, namely the provision of security pendente lite (Article 8) and liability for costs, penalties, and compensatory damages (Articles 14-16), which are available regardless of whether the SLAPP is manifestly unfounded or merely characterised by abuse of rights. These financial remedies are especially useful insofar as they give the respondent some comfort that they will be compensated for the loss endured through litigation. They are also expected to have a dissuasive effect on SLAPP claimants who would be especially loathe to the notion of rewarding the respondent whose legitimate exercise of freedom of expression they had sought to dissuade or punish. Nevertheless, it bears repeating that in all cases these remedies, designed to compensate harm, should supplement the principal remedy of early dismissal which is intended to prevent harm.

 

In addition to these main devices to dissuade the initiation of abusive proceedings against public participation, the draft directive includes a number of further procedural safeguards. These include restrictions on the ability to alter claims with a view to avoiding the award of costs (see Recital 24 and Article 6), as well as the right to third party intervention (Article 7) which will enable NGOs to submit amicus briefs in proceedings concerning public participation. While this may appear to be a minor innovation at first blush, it could have substantial positive implications insofar as it would equip more vulnerable respondents (and less expert courts) with valuable expertise and oversight.

 

London Calling: Private International Law Innovation

While the provisions discussed above would limit the attractiveness of SLAPPs in EU courts, there would remain a significant gap if EU law did not provide protection against the institution of SLAPPs in third countries. London, with its high litigation costs and somewhat claimant friendly defamation laws, is an especially attractive forum for claimants who wish to suppress public scrutiny. Equally, other States could be attractive to claimants who wish to circumvent EU anti-SLAPP law, whether simply as a function of the burden of transnational litigation, or because of the specific content of their substantive and/or procedural laws. The draft directive therefore proposes to introduce harmonised rules on the treatment of SLAPP litigation in third countries.

 

Article 17 provides that the recognition and enforcement of judgments from the courts of third countries should be refused on grounds of public policy if the proceedings bear the hallmarks of SLAPPs. While Member States were already empowered to refuse recognition and enforcement in such cases, the inclusion of this article ensures that protection against enforcement of judgments derived from vexatious proceedings is available in all Member States.

 

Article 18 provides a further innovation by establishing a new harmonised jurisdictional rule and substantive rights to damages in respect of SLAPPs in third countries. The provision confers jurisdiction on the courts of the Member State in which a SLAPP victim is domiciled regardless of the domicile of the claimant in the SLAPP proceedings. This would provide an especially robust defence against the misuse of third country courts and reduce the attractiveness of London and the United States as venues from which to spook journalists into silence.

 

While the limitation of forum shopping in respect of third countries is, of course, welcome, there does remain a significant flaw insofar as EU law and the Lugano Convention facilitate forum shopping within the European judicial area. The cumulative effect of EU private international law of defamation is to provide mischievous litigants with ample opportunity to deploy transnational litigation as a weapon to suppress freedom of expression. NGOs have therefore requested amendment of two EU private international law instruments:

 

In the first instance, and as a matter of urgency, the Brussels I Regulation (recast) requires amendment with a view to grounding jurisdiction in the domicile of the defendant in matters relating to defamation. This would remove the facility for pursuers to abuse their ability to choose a court or courts which have little connection to the dispute;

The omission of defamation from the scope of the Rome II Regulation requires journalists to apply the lowest standard of press freedom available in the laws which might be applied to a potential dispute. We recommend the inclusion of a new rule which would require the application of the law of the place to which a publication is directed;

 

These changes have not yet been forthcoming. It is hoped that ongoing reviews of these instruments will yield further good news for public participation in the EU.

 

Concluding remarks

Daphne’s Law will now have to be approved by the Council of Ministers and the European Parliament. The legislative process may see a Parliament seeking more robust measures pitted against Member States who may be inclined to protect their procedural autonomy. The Commission has considered these competing demands in its draft and sought to propose legislation which strikes a balance between divergent institutional stances. Nevertheless, it must be expected that the draft will be refined as it makes its way through the approval process. As noted above, the draft would be improved if those refinements were to include the extension of early dismissal to cases beyond the narrow confines of manifest unfoundedness. Equally, the draft directive should be viewed as a first welcome step in the pushback against SLAPPs in Europe and that reviews of private international law instruments will follow soon after.

 

Photo credit: ContinentalEurope, on Wikicommons

Can a Member State be expelled or suspended from the EU? Updated overview of Article 7 TEU

 

Professor Steve Peers, University of Essex

With the re-election of the Orban government in Hungary, some of its critics are calling for Hungary to be expelled from the EU. But is that even possible? And if not, what other sanctions can be imposed against a Member State by the EU?

Back in 2019, I wrote two blog posts on this theme: first, on the ‘Article 7’ process for sanctioning Member States for breach of the rule of law or other EU values; second, on the alternative processes (ie other than Article 7) for sanctioning Member States. This is an update of the first of those blog posts; I hope to update the second one at some point too.

The legal framework for sanctions

Although many people refer to Article 7 TEU, there are other Treaty provisions which are inextricably linked: Article 2 TEU sets out the values which Article 7 is used to enforce; Article 354 TFEU describes voting rules for the EU institutions; and Article 269 TFEU provides for limited jurisdiction for the CJEU over the sanctions procedure.  All of this must be distinguished from the normal rules of EU law, discussed in the second blog post.

First of all then, what are the values of the EU, legally speaking? Article 2 TEU states:

The Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities. These values are common to the Member States in a society in which pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men prevail.

Article 7 then sets out the process of enforcing those values. It begins with Article 7(1), which provides for a kind of ‘yellow card’ – a warning if there is there is ‘a clear risk of a serious breach’ of those EU values:  

1. On a reasoned proposal by one third of the Member States, by the European Parliament or by the European Commission, the Council, acting by a majority of four fifths of its members after obtaining the consent of the European Parliament, may determine that there is a clear risk of a serious breach by a Member State of the values referred to in Article 2. Before making such a determination, the Council shall hear the Member State in question and may address recommendations to it, acting in accordance with the same procedure.

The Council shall regularly verify that the grounds on which such a determination was made continue to apply.

Notice that the ‘yellow card’ process can be triggered by the European Parliament, or a group of Member States, or the Commission. There is no requirement of unanimity of Member States to approve a Council decision to issue a ‘yellow card’ (this is a common misunderstanding), but the threshold of four-fifths of Member States’ governments in the Council is nevertheless fairly high. 

In practice, this process has been triggered both against Poland (by the European Commission) and Hungary (by the European Parliament). So far neither has resulted in any action by the Council, despite holding a number of the hearings referred to in Article 7(1).. So obviously triggering the process does not, as some think, mean that the Council will agree to issue a ‘yellow card’, or has done so already. If the Council ever did issue a ‘yellow card’, note that this does not entail a sanction as such: it is only a finding of a risk to EU values, with possible recommendations. Nevertheless, the issue of a ‘yellow card’ is perceived as extremely politically serious.

This brings us to Article 7(2), which is the ‘red card’ of the process:

2. The European Council, acting by unanimity on a proposal by one third of the Member States or by the Commission and after obtaining the consent of the European Parliament, may determine the existence of a serious and persistent breach by a Member State of the values referred to in Article 2, after inviting the Member State in question to submit its observations.

The procedure here is even tougher: unanimity of the Member States. The European Parliament cannot trigger the process, but could veto it if the Commission or a group of Member States trigger it. The threshold to be met is higher: not just the risk of a serious breach, but the ‘existence of a serious and persistent breach’ of those values. It’s likely that the EU would get to the ‘red card’ stage after issuing a ‘yellow card’, but that’s not a legal requirement: a ‘straight red’, for (say) a country which had suddenly undergone a military coup, is also conceivable.

What are the consequences of a ‘red card’? Article 7(3) sets them out:

…the Council, acting by a qualified majority, may decide to suspend certain of the rights deriving from the application of the Treaties to the Member State in question, including the voting rights of the representative of the government of that Member State in the Council. In doing so, the Council shall take into account the possible consequences of such a suspension on the rights and obligations of natural and legal persons.

The obligations of the Member State in question under the Treaties shall in any case continue to be binding on that State.

Note that Member States don’t have to act unanimously in the Council when deciding exactly what sanctions to apply to the black sheep amongst them. The unanimity threshold only applies when taking the previous step of deciding whether there’s a serious and persistent breach of the EU values.  As for the specific sanctions which might be imposed, the Treaty mentions suspension of voting rights, but that’s just one example. The Council might instead (or additionally) impose other sanctions, such as suspension of MEPs’ voting rights (which raises the awkward question of whether they might also end up sanctioning any opposition MEPs from the Member State in question – whose voices would ideally need to be heard). However, there’s an obligation to consider the rights of individuals and businesses, which suggests that trade sanctions might be problematic. It might also be hard to justify restricting free movement rights, but in any event note that there are specific rules on asylum for EU citizens fleeing from a Member State subject to a ‘red card’. (see the second blog post).

Most significantly, there’s no provision to expel a Member State from the EU as such. Having said that, a Member State subject to suspension might be so outraged to be in that position that it triggers the process of leaving the EU under Article 50. The UK’s withdrawal process was complicated and controversial enough; now imagine the legal and political complexities of a Member State subject to an Article 7 ‘red card’ triggering Article 50. Should its political authorities’ actions be considered legally and morally valid? What if a group of exiles claim to be the legitimate government of that Member State (a la the USSR-era Baltic States), and that purported government does not wish to leave the EU?  What if a part of that Member State, at odds with the government in power over EU membership and its violation of EU values, attempts to secede?

Of course, the possibility of withdrawal (alongside concerns about sovereignty, and the workings of partisan politics) may also have influenced the pronounced reluctance of the EU to use the Article 7 process.

It’s sometimes suggested that the large bulk of Member States could just leave the EU, forming an “EU 2.0” copy of it among themselves, with only Poland and Hungary left in the original EU. Such a move would be risky for those who support EU membership in the departing Member States, as the critics of the EU would be given an opportunity to prevent their countries signing up to the new EU, or to demand renegotiation of the current terms of membership.

Article 7(4) TEU then provides that the Council, again by qualified majority, may ‘vary or revoke’ its sanctions against a Member State ‘in response to changes in the situation which led to their being imposed’. Article 7(5) notes that the rules on voting within the institutions when Article 7 is being applied are set out in Article 354 TFEU. The latter provides that the Member State which is the subject of potential sanctions has no vote at any stage of Article 7, as otherwise this would obviously have made the adoption of any decision on breach of EU values impossible. Abstentions cannot prevent the adoption of a ‘red card’ decision. Where the Council votes to implement a ‘red card’ decision, a higher threshold for adopting EU laws applies (72% of participating Member States in favour, instead of the usual 55%). If a Member State’s voting rights are suspended, the usual rules on Council voting with only some Member States participating apply. For its part, the EP ‘shall act by a two-thirds majority of the votes cast, representing the majority of its component Members’.

Finally, Article 269 TFEU significantly limits the role of the CJEU over the sanctions procedure:

The Court of Justice shall have jurisdiction to decide on the legality of an act adopted by the European Council or by the Council pursuant to Article 7 of the Treaty on European Union solely at the request of the Member State concerned by a determination of the European Council or of the Council and in respect solely of the procedural stipulations contained in that Article.

 Such a request must be made within one month from the date of such determination. The Court shall rule within one month from the date of the request.

The legal issues

Given the limit on judicial control of the Article 7 process, it is almost entirely political. So the legal questions arising from it may be largely hypothetical in practice. However, they do exist.

The first important point is the wide scope of issues which can be the subject of the Article 7 process. It is sometimes claimed that the process can only be used to sanction Member States for breaches of EU law, but this is clearly false. There is no reference to EU law breaches in Articles 2 or 7. Indeed, such a limit on the scope of Article 7 would be odd, given that Article 269 TFEU limits the Court’s jurisdiction, yet other provisions of the Treaties (discussed further in the second blog post) give the Court extensive jurisdiction over the enforcement of ordinary EU law.

This claim about the limited scope of Article 7 is also absurd if you consider the broader context. Imagine, for instance, a Member State placing LGBT citizens in concentration camps. A narrow interpretation of Article 7 would mean that the EU could only complain about this to the extent that being locked up in camps would have a discriminatory effect on the detainees’ access to employment (ie, an issue definitely within the scope of EU law). Yes it would; but that would hardly be the most outrageous aspect of detaining LGBT people in camps because of their sexual orientation. (EU law is also relevant to LGBT refugees, but the Article 7 process would have to be triggered first for it to be relevant to refugees who are EU citizens).

So obviously Article 7 is not intended to be limited in this way. Indeed, its broad scope partly explains why the CJEU’s jurisdiction is limited – to avoid giving it jurisdiction to rule on issues which are not normally within the scope of EU law. (Another reason is the intention to keep the Article 7 process in the hands of politicians, not judges).

On the other hand, the Article 7 process and ordinary EU law can overlap. The Court can use its ordinary jurisdiction to rule on an issue being discussed in the Article 7 process, and vice versa – for example, in the string of rule of law judgments regarding the Polish courts.

Exactly how does the Court’s limited jurisdiction over Article 7 work? The wording of Article 269 TFEU definitely covers the decisions on the ‘yellow card’ or the ‘red card’. At first sight, it also applies to the implementation of sanctions, since the text refers to any Council actions pursuant to Article 7 TEU. But on this point, the use of the word ‘determination’ is confusing, as Article 7 doesn’t use that word to refer to the implementation of sanctions,  but only the decisions on whether EU values have been (or might be) breached.

Note also that the only possible challenger is the Member State sanctioned under Article 7 – not any other Member State, an EU institution, or an individual or business. If individuals are barred from challenging the validity of Article 7 implementation decisions, even indirectly via national courts to the CJEU, how else can the Council’s obligation to ‘take into account the possible consequences of such a suspension on the rights and obligations of natural and legal persons’ be enforced? At any rate, there’s no limit on the Court being asked by national courts to interpret the decisions implementing sanctions, which could be significant in working out the impact of sanctions on individuals. In particular, if Council decisions under Article 7 disapply ordinary EU law in some way, there should be no objection to the Court’s ordinary jurisdiction to interpret such ordinary EU law applying.

A Court judgment under Article 269 TFEU can only address procedural issues, not substance. In other words, the Court cannot be asked to rule on the question of whether the Member State concerned has actually breached EU values (or seriously risks breaching them). As we will see in the second blog post, however, the developing case law on the overlap between Article 7 and ‘ordinary’ EU law renders this firewall a little diffuse. Also, one can imagine that a Member State may make arguments about the fairness of the hearings, even where (as in the case of Poland and Hungary) some hearings have been held (note that the Council's internal rules on Article 7 hearings have been published). Finally, the time limits in Article 269 require significant fast-tracking: the challenge must be made one month after the determination (the usual deadline to bring an action to challenge an EU act is two months after publication) and (uniquely in EU law) one month for the Court to give its ruling.  

Even though Article 7 has not resulted in any sanctions decision yet, the CJEU did address some issues about its scope in 2021, when it ruled on a legal challenge by Hungary to the European Parliament’s decision merely to trigger Article 7. In the Court’s view, the special rules in Article 269 did not exclude a legal challenge to the decision to trigger the process, because those special rules only apply to acts of the Council or European Council. The European Parliament’s resolution had legal effect, because it also triggered the protocol on asylum for EU citizens; therefore it could be challenged (non-binding EU acts, ie with no legal effect, cannot be challenged). Nor did the Court agree with the European Parliament that its resolution was a purely intermediate step.

However, the Court ruled that some aspects of Article 269 did apply to legal actions against the triggering of an Article 7 procedure: only the Member State concerned could bring a challenge, and it could only raise the procedural issues referred to in Article 269, not the substance of whether the body which started the process had wrongly claimed that the Member State was breaching (or risked breaching) EU values to the thresholds set out in Article 7. However, that Member State was entitled to the usual two months to bring the legal action, not the one month referred to in Article 269. Ultimately the Court rejected the Hungarian government’s argument on the merits, finding that European Parliament correctly counted the votes cast (and abstentions) to trigger the Article 7 process.

One key legal and political question is the interpretation of the unanimity requirement to issue a ‘red card’ determination of a serious breach of EU values. Some have suggested that since two Member States are facing Article 7 procedures, and they would have a natural tendency to stick together and vote for each other, unanimity can never be reached. Therefore, for the ‘red card’ procedure to be effective, it must be interpreted to mean that any Member State facing an Article 7 procedure must lose its vote even as regards issuing a ‘red card’ against another Member State.

With respect, this interpretation is untenable. Article 354 TFEU refers to ‘the Member State in question’ not voting in its own case – clearly using the singular, as well as the definite article. There is no way to stretch the canons of interpretation for this to refer to multiple Member States. Such wild leaps of legal fancy are particularly inappropriate when a main point of the process is to ensure protection of the rule of law in the European Union.

Conclusions

Article 7 TEU was conceived as a political process par excellence, and it remains supremely political. Due to its impact on national sovereignty, and the web of transnational partisan politics in which the governments concerned are embedded, Article 7 has long been seen as a ‘nuclear weapon’ – only to be used as a last resort, in a political emergency such as a military coup. Although the attempt to nuance Article 7, by adding a ‘yellow card’ process, dates from 2003, in practice this version of the process is perceived as politically ‘nuclear’ too.

The obvious problem here – which the ‘yellow card’ reform sought but failed to address – is that democracy rarely collapses overnight. In the famous words of Michael Rosen, ‘people think that fascism arrives in fancy dress’, but in fact ‘it arrives as your friend’ – promising to:

…restore your honour, 

make you feel proud, 

protect your house, 

give you a job, 

clean up the neighbourhood, 

remind you of how great you once were, 

clear out the venal and the corrupt, 

remove anything you feel is unlike you...

And to that end, and for those reasons, it often gains a foothold through the democratic process. Yet the values of the EU to be protected also include democracy – and the Article 7 process is in the hands of the governments of fellow Member States. All have some skeletons in their own closet; and all have backs that might need some scratching by the governments of the States being criticised. While recent Hungarian elections have been criticised as undemocratic, Member States seem reluctant to pursue the route of defining what they consider to be acceptable democratic standards and sanctioning other Member States for breaching them.

So is the Article 7 process doomed? In fact, the expansion of EU law in areas with significant relevance to human rights, the willingness of the CJEU to rule on the judicial independence of national courts in general, and the creation of new means to address ‘rule of law’ concerns within the EU budget system means that recourse to the nuclear option may arguably not be necessary. In effect, the conflict over the protection of human rights and the rule of law in Member States can also be fought by conventional means: the ordinary EU law system, discussed in the second blog post.

 

Barnard & Peers: chapter 9

Photo credit: Steve Peers

Stateless people and refugees fleeing Ukraine

 

Chris Nash, Director of the European Network on Statelessness*

*Reblogged from the Network website

As the number of refugees fleeing Ukraine nears two million, we and our members on the ground have been mobilising to try to get a handle on the particular protection needs of stateless people forcibly displaced by the crisis.

We know from past experience, including research under our Stateless Journeys initiative, that stateless people fleeing conflict typically face additional issues and challenges crossing borders and accessing protection. We also know that statelessness is both a cause and a consequence of forced displacement.

Upon hearing anecdotal reports of difficulties experienced by stateless people trying to escape the war in Ukraine, we wanted to better understand the situation as quickly as possible. This week we have published an initial briefing to help inform refugee response actors on the ground so that problems can hopefully be anticipated and addressed before they become entrenched.

Statelessness in Ukraine

The last census in Ukraine in 2001 recorded 82,550 stateless people, and UNHCR estimated there to be 35,875stateless and people with ‘undetermined nationality’ in 2021. Other sources suggest there could be many tens of thousands more including a significant proportion of the Roma population as well as children born in Crimea, Luhansk and Donetsk since 2014. The World Bank recently estimated there to be 999,000 people aged over 15 in Ukraine without a national ID card. Although not all of these individuals will be stateless, many will be at increased risk of becoming so if the crisis becomes more protracted.

It is estimated that 10-20% of Romani people in Ukraine lack the civil documentation needed to acquire or confirm their Ukrainian citizenship. Other profiles of stateless people include former citizens of the USSR who were unable to demonstrate permanent residence in Ukraine in 1991 and so could not acquire Ukrainian nationality. Some, who have been unable to acquire any nationality, have since passed their statelessness on to their children. People living in non-Government controlled areas, Crimea, and those internally displaced in Ukraine have faced significant barriers to obtaining or renewing personal documents since 2014, leaving an estimated 60,000 children born in these areas without birth certificates and at risk of statelessness.

In addition to these significant in-situ stateless populations, there are asylum-seekers, refugees, and migrants (and their children) who were residing in Ukraine and were stateless before leaving their countries of origin (e.g., Palestinians, Kuwaiti Bidoon, Kurds); or who may have since become stateless due to displacement, discrimination or gaps in nationality laws, State succession, or deprivation of nationality practices.

In May 2021, Ukraine introduced a statelessness determination procedure to determine who is stateless on its territory and grant protection to stateless people, but this only recently became operational, and by 31 December 2021 only 55 people had been granted a temporary residence permit through the procedure. The vast majority of stateless people living in Ukraine will lack any documentation proving that they are stateless. This not only poses insurmountable barriers for stateless people trying to move within Ukraine given current circumstances, but also significantly impacts on their ability to move to relative safety within the country, cross borders, and access protection.

Current situation at Ukraine’s Western borders

The initial response of Ukraine’s western neighbours has been generous, with both government actors and civil society doing their utmost to welcome and receive unprecedented numbers of refugees. Hungary, Slovakia, Poland, Romania, and Moldova have all stated that they are currently admitting everyone fleeing the war in Ukraine, including stateless people, those at risk of statelessness and/or undocumented people. A brief summary of policies in each of these countries is available in our briefing.

However, the picture is fast-moving and there is a need for vigilant monitoring given emerging evidence of inconsistent practices and racial profiling at different border crossings (e.g., in Hungary and Poland) with non-Ukrainians facing barriers to accessing the territory, or additional ‘secondary screening’ procedures, including in detention-like conditions in Poland.

Equally, early information from ENS members suggests that stateless people and those at risk of statelessness fleeing Ukraine are likely to face additional barriers and differential treatment depending on their residence, nationality, and/or documentation status. More time and further research are needed to understand the detailed picture in terms of how different profiles of stateless people are likely to be affected.

Application of the EU Temporary Protection Directive and protection owed to stateless people

A big question mark about the level of protection likely to be available to stateless refugees from Ukraine centres around how the EU Temporary Protection Directive (TPD) will be applied by different countries.

The Directive, invoked by EU Member States on March 4, grants immediate protection in the EU (other than Denmark) to Ukrainian nationals and those who had international protection in Ukraine prior to 24 February 2022. Stateless persons who can prove they held a permanent residence permit in Ukraine before 24 February and ‘cannot safely return to their country or region of origin’, are also entitled to temporary protection, but Member States can choose whether to apply the TPD or ‘adequate protection under national law’. Member States may also extend temporary protection to others, including stateless persons who were ‘residing legally’ in Ukraine. People granted temporary protection are entitled to a residence permit (initially for one year, extendable up to three years unless safe return is possible), access to the labour market, housing, social welfare, medical care, and access to education for children.

EU Member States are not currently required under EU law to extend temporary protection to most stateless people and those at risk of statelessness who are/were living in Ukraine. People without proof of permanent residence or international protection in Ukraine may need to apply for asylum or another form of protection according to the laws of their host country. This could pose serious issues in terms of their access to rights and services and their ability to obtain protection, if denied access to asylum procedures (e.g. as is the case in Hungary), or, for example, if Ukraine was disputed as their country of origin. So, even if able to escape Ukraine, stateless people are at particular risk of subsequently finding themselves excluded or left in limbo, and, in some cases, also at risk of arbitrary detention.

This in turn highlights the need for greater awareness of the rights owed to stateless people under international law. Almost all European States are Party to the 1954 Convention on the Status of Stateless Persons and so must afford specific rights and protections to stateless people on their territory. Some countries have established a statelessness determination procedure to determine who is due protection under the 1954 Convention and grant protection status or a residence permit to recognised stateless people (other than refugee status or another form of international protection). In other countries, stateless people may access another form of protection or regularise their stay through other routes. The situation in terms of access to protection for stateless people in countries across Europe is by no means uniform. Our Statelessness Index serves as a tool to help stateless people and their legal representatives to understand and advocate for their rights.

The way forward – addressing statelessness as part of the developing refugee response

Our briefing makes a series of recommendations to the EU, European States, international agencies and NGOs to ensure that stateless people from Ukraine can access protection in line with international law.

First and foremost, EU Member States should use their discretion under the TPD to extend temporary protection to all stateless persons and those at risk of statelessness regardless of prior residence status in Ukraine, or at least ensure access to equivalent forms of protection under national law. Linked to this, it is critical that lack of identity documents or other documentation does not prevent stateless people and people at risk of statelessness from accessing international protection or other forms of protection under national law.

Where access to temporary protection is not available, European States should ensure routes to protection and rights for stateless people on their territory in line with their obligations under the 1954 Statelessness Convention, as well as implement safeguards to prevent arbitrary detention.

Critical to this, will be enhancing the ability of border officials and refugee response actors to properly identify statelessness and risk of statelessness among those displaced from Ukraine so as to ensure their access to protection, including legal advice and other services. There is an urgent need to improve the availability of disaggregated data, using standardised guidelines and assessment tools at registration points, in protection procedures, and during legal counselling.

Training will also be key, and here there is a role for several actors, including UNHCR, the EU Asylum Agency, and NGOs and civil society experts. The EU Asylum Agency recently published a Registration Tool that has a section on identifying statelessness, which could be useful in this context. We are also in the process of developing a more extensive statelessness identification tool, which we will make available to all actors in the next few months.

Finally, reports on the ground suggest an important need for refugee response actors to identify and monitor statelessness and risk of statelessness among unaccompanied and separated children, as well as children born in transit and host countries, to ensure their right to a birth certificate, legal identity, and nationality is guaranteed. This is likely to become even more acute if the conflict and related displacement becomes more protracted. UNICEF and other child rights organisations will have a key role to play in this regard.

Next steps and looking beyond the conflict

Over the coming weeks and months, we will continue to monitor the situation, as well as seek to update and expand the scope of information available, including to understand how the Temporary Protection Directive is being implemented for stateless refugees displaced further across Europe. We will also explore other ways to support our members working tirelessly on the ground, including by trying to engage the donor community to support their efforts and to fund targeted assistance for stateless people who otherwise find themselves excluded from Europe’s refugee response.

Equally, there is still a lot we do not know about the situation facing stateless people inside Ukraine. We know from our Ukrainian member organisations working bravely and tirelessly inside the country that stateless people without documentation are unable to move internally or across checkpoints, so find themselves trapped. There have also been disturbing reports of racial discrimination, antigypsyism, and/or differential treatment based on documentation status at Ukrainian borders, which may be preventing some stateless/people at risk of statelessness from leaving Ukraine. More research is needed to better understand and try to address this situation.

Finally, if we allow ourselves to try to be optimistic in looking beyond this unspeakably awful conflict, there will be a critical need to address legal identity, documentation, and nationality issues as part of re-building efforts. The current situation is a sobering reminder of how stateless people routinely suffer from being forgotten and their needs ignored, especially in times of conflict. We cannot allow this to happen, and we and our members stand ready to work with all actors to guard against this.

Photo: Mirek Pruchnicki, Creative Commons

A Last-Minute Postscript: the CJEU finally dares to find that the NHS is a provider of ‘comprehensive sickness insurance’

 

Dr Sylvia de Mars, Newcastle University*

* With many thanks to Prof Charlotte O’Brien for all the idea-swapping that preceded this blog post.

 

Background

Does the NHS provide ‘comprehensive sickness insurance’ (CSI) cover? It is a small question, but one that has had significant consequences for a wide range of EU nationals who resided in the UK between at least 2011 and today.

The background to the question is something I have written about for over a decade at this point (‘Economically Inactive EU Migrants and the NHS: Unreasonable Burdens without Real Links?’ (2014) 39(6) ELRev 770; ‘Managing Misconceptions about EU Citizens’ Access to Domestic Public Healthcare: an EU-Level Response?’ (2019) 25(4) European Public Law 709): economically inactive EU citizens, under the rules for residency set out in Article 7(1)(b) Directive 2004/38 (the ‘Citizenship Directive’, or ‘CD’), only have a right to reside for longer than three months in a different Member State if:

‘They have sufficient resources for themselves and their family members not to become a burden on the social assistance system of the host Member State during their period of residence and have comprehensive sickness insurance cover in the host Member State’.

A similar rule, set out in Article 7(1)(c), informs students that they must have comprehensive sickness insurance in order to live in a host Member State for more than 3 months—although it does not require the same for their family members.

What is comprehensive sickness insurance? Like many key EU law terms, it is a generic catch-all intended to encompass all sorts of ‘healthcare’ provision in all the Member States, and it is not further defined anywhere.  The CJEU’s case law, clarifying most aspects of unhelpfully general EU law, has never addressed the concept directly – and so it has fallen to national courts to interpret it instead.

The UK here faced a particular question: under national law, everyone ordinarily resident in the UK is entitled to use the NHS for free. ‘Ordinary residence’ does not have a specific meaning in legislation in the UK, but according to settled case law (Shah v London Borough of Barnet [1983] 1 All ER 226), effectively just refers to the country where someone lives for a ‘settled purpose’—and this can be forward-looking, in the sense that if you move to the UK with the intention of settling, you are also ordinarily resident. In practice, this means that any EU national who moves to the UK with the intention of staying for more than three months will be ‘ordinarily resident’ and will be entitled to access the NHS.

Here is where the legal problem that the CJEU only tackled in 2022 arises. In the UK, taking what is in essence a purposive approach to Directive 2004/38, the courts have long insisted that CSI cover cannot mean being permitted to access the NHS. Sullivan LJ’s comments in Kamau (Kenya) [2010] EWCA Civ 1302 are illustrative:

‘A person who has to rely on the United Kingdom's National Health Service is no more self-sufficient than a person whose resources are inadequate so that he may become a burden on the United Kingdom's social assistance system."

This was also Home Office policy from 2008 onwards: applicants for documentation concerning the right to reside in the UK under EU law consequently had to either be employed, or had to demonstrate they had some sort of ‘comprehensive sickness insurance’ in the UK. The problem these applicants faced was that there is no ‘comprehensive sickness insurance’ cover in the UK; private insurance generally only covers secondary care, and frequently can only apply once someone has already lived in the UK for over 12 months. An EU national student moving to the UK in 2010, in other words, could as a matter of practical fact not actually prove to the Home Office that they had EU rights to reside – although in practice, the Home Office started accepting unusable and only somewhat comprehensive private health insurance policies as ‘evidence’ of CSI.

EU nationals themselves very often did not actually encounter the sting in the tail of this policy for years, as they themselves were not required to hold documentation confirming they had a right to reside in the UK: their passport did that for them. However, there were two situations where EU nationals would have concrete reasons to prove their residency status:

If they had a family member from outside of the EU, whose residency rights were dependent on their own satisfying of Article 7 of the Citizenship Directive; or

If they wanted to apply for UK nationality after holding permanent residency for one year, where the Home Office also required them to demonstrate that they had comprehensive sickness insurance during any periods of time when they were not employed.

Our EU student who started living in the UK in 2010, as such, might not have found they did not hold the documentation the Home Office required them to until 2016 – and their new ‘counter’ for lawful residence under the Directive, as interpreted by the Home Office, would start in 2016, if and when they got private health insurance.

Did nobody ever complain about this policy?

Immigration practitioners have been furious about the Home Office interpretation of the rules for as long as they have existed, both because they are impossible to satisfy, and because there is nothing in Directive 2004/38 that actually precludes NHS coverage from being CSI. And they took their concerns to the Commission—who in April 2012 confirmed that they were taking infringement proceedings under Article 258 TFEU against the UK by sending them a reasoned opinion about their implementation of the Citizenship Directive…but never followed through on that reasoned opinion, let alone with a reference to the CJEU.

I have long had suspicions as to why. It is a matter of fact that the Commission does not have to enforce breaches of EU law, and the CJEU has ruled out the idea that its use of Article 258 TFEU could be judicially challenged if it was clearly politically motivated… as I suspect it was here. The idea that the NHS was a ‘free for all’ for newly arrived EU nationals would have been politically toxic in the UK, and the idea of pushing such a claim forward with a Member State with rising Euroscepticism would have undoubtedly brought exactly those types of ‘benefit tourism’ headlines out in the UK. And while the Commission hesitated, or paused, the UK voted to leave the European Union—at which point, other matters (like ensuring EU nationals in the UK retained their rights) became a much higher priority than stopping the Home Office from demanding economically inactive EU nationals demonstrate they have health insurance that doesn’t exist in the UK.

Fast-Forward to 2022: VI v HMRC

The EU has avoided ruling on what the NHS ‘is’ for a long time, and not only with respect to comprehensive sickness insurance. Only in 2022 did it finally take an opportunity to make an assessment of how the NHS, as a service, should be treated, although the preliminary reference sent by the Social Security Appeal Tribunal (NI) would have let it avoid commenting on the NHS as ‘comprehensive sickness insurance’ (eg, see paragraph 31: a question as to whether the Common Travel Area (CTA) provides reciprocal healthcare coverage as suggested in Ahmad can be answered without actually addressing what the NHS ‘is’.).

The case in which a definition of ‘CSI’ came to the fore is an odd one, not least of all because it is on the basis of the known facts actually a case in which CSI should not have figured at all. The case concerned VI, a Pakistani national, who lived in Northern Ireland with her husband (also Pakistani) and her four children. At least one of the children has Irish nationality on account of having been born in Northern Ireland in 2004.

The parties were agreed that VI had ‘sufficient resources’ and thus met that requirement of Article 7 CD, and they also agreed that between August 2006 and August 2014, VI and her entire family had comprehensive sickness insurance.  As that is a period longer than 5 years, the Irish national son was also agreed to have attained permanent residence (presumably by 2011).

However, HMRC found that VI was not entitled to receive Child Tax Credit or Child Benefit for the periods in which she requested it and in which she was not covered by comprehensive sickness insurance. This, in total, was approximately 3 months in 2006 and 1 month in 2014. HMRC also appears to have conceded that she does not have to repay the benefits she received in those months: it was their error, in that she did not misrepresent her status and was clear about when she did and did not hold ‘comprehensive sickness’ insurance.

Jurisdiction

Before it addressed the referred questions, the CJEU clarified its jurisdiction in the case: it could answer this preliminary reference request despite the fact that it was submitted on 7 April 2020.  First, Article 127 of the withdrawal agreement (WA) makes clear that during the so-called ‘transition period’, EU law would continue to operate in the UK as it did when it was a Member State; and secondly, Article 86(2) WA made clear that the CJEU would retain the jurisdiction to answer preliminary references submitted before the end of the transition period. This was not contentious – but probably worth stressing all the same, given the timing of the ruling.

Referred Questions

The Social Security Appeal Tribunal (NI) sent three questions to the CJEU.

First, it was asked if permanently resident children have to maintain CSI in order to maintain a right to reside. The CJEU was quick on this, pointing out that Article 16(1) CD makes clear that the conditions in Article 7 do not apply to EU national who has permanent residence [54]; and Article 16(2) CD and Article 21 TFEU as interpreted by the CJEU extends the same to ‘family members’ of EU nationals [56], even where they are not ‘dependent family members’ in the ascending line [57-58]. From 2011 onwards, in other words, neither VI nor her son would have needed comprehensive sickness insurance in order to maintain their right to reside in Northern Ireland.

The second question referred asked if the CSI requirement actually applied to a child covered by Article 7 CD, and their third country parent that is taking care of them. The CJEU here indicates that non-English versions of the Directive make it clear that the requirement for comprehensive sickness insurance applies to both the EU national and their family members, as defined by the Directive and by CJEU case law on parents who are caretakers for their EU national children [such as Chen]. That requirement, per the Directive, is there for the entirety of the 5 year residence period prior to an EU national attaining permanent residence—and the CJEU makes it clear that it does not matter if the CSI is held by the child, covering the parent, or held by the parent, and covering the child [67].

Here is where the CJEU, without being expressly prompted, comments on the NHS:

68      In the present case, it is apparent from the documents before the Court that VI and her son were affiliated during the period in question, namely from 1 May 2006 to 20 August 2006, to the United Kingdom’s public sickness insurance system offered free of charge by the National Health Service.

69      In that regard, it must be recalled that, although the host Member State may, subject to compliance with the principle of proportionality, make affiliation to its public sickness insurance system of an economically inactive Union citizen, residing in its territory on the basis of Article 7(1)(b) of Directive 2004/38, subject to conditions intended to ensure that that citizen does not become an unreasonable burden on the public finances of that Member State, such as the conclusion or maintaining, by that citizen, of comprehensive private sickness insurance enabling the reimbursement to that Member State of the health expenses it has incurred for that citizen’s benefit, or the payment, by that citizen, of a contribution to that Member State’s public sickness insurance system (judgment of 15 July 2021, A (Public health care), C‑535/19, EU:C:2021:595, paragraph 59), the fact remains that, once a Union citizen is affiliated to such a public sickness insurance system in the host Member State, he or she has comprehensive sickness insurance within the meaning of Article 7(1)(b).

70      Furthermore, in a situation, such as that in the main proceedings, in which the economically inactive Union citizen at issue is a child, one of whose parents, a third-country national, has worked and was subject to tax in the host State during the period at issue, it would be disproportionate to deny that child and the parent who is his or her primary carer a right of residence, under Article 7(1)(b) of Directive 2004/38, on the sole ground that, during that period, they were affiliated free of charge to the public sickness insurance system of that State. It cannot be considered that that affiliation free of charge constitutes, in such circumstances, an unreasonable burden on the public finances of that State.

The CJEU then rules out that VI and her son find themselves in a Texeira situation, where EU nationals parents retain a right to reside after having been workers because their children are education—and confirms that as a consequence, VI and her son both needed to be covered by comprehensive sickness insurance.

Finally, the CJEU addresses a particular ‘twist’ on CSI cover that the UK courts have ruled on, which is that if the UK has reciprocal healthcare arrangements with a Member State, and so the UK can ‘reclaim’ healthcare costs from that Member State if one of its nationals uses the NHS, that satisfies the requirement for CSI. In practice, this UK means that anyone receiving treatment under the European Health Insurance Card (EHIC), intended to cover only temporary stays abroad, is deemed by the Home Office to have comprehensive sickness insurance. The CJEU declined to decide if the UK’s arrangements with Ireland under the Common Travel Area made for a ‘reciprocal arrangement’ that amounted to CSI, simply because the referred questions did not actually clarify what those arrangements were [73-74].

This, of course, would not matter greatly to the referring tribunal, because the CJEU’s interpretation of comprehensive sickness insurance is enough to decide VI’s case: if NHS cover is comprehensive sickness insurance, VI was entitled to Child Tax Credit and Child Benefit throughout her residence in the UK, regardless of whether she also held private insurance.

Comments

General

A first observation is that it is doubtful that VI is a case that actually should have produced a definition of CSI in relation to NHS entitlement. This is nothing to do with Brexit, but rather to do with the facts of the case itself. The point at which HMRC effectively conceded that they were not going to reclaim the benefits paid out, and the error was theirs, it is not clear what ‘dispute’ remained between VI and HMRC. The CJEU has interpreted the references as being primarily about VI’s ‘right to reside’ during the relevant periods where she did not have CSI (see, eg, para 29, where the CJEU notes that the parties disagree on VI’s entitlement to Child Tax Credit and Child Benefit – but rewords that into a question on the ‘subject matter’ of ‘VI’s right of residence in the UK’), but obviously the actual dispute between VI and HMRC was about the benefits she was given during those periods; a dispute about VI’s right to reside in the absence of the benefits, after all, would have been with the Home Office, not HMRC.

It thus looks like the case was constructed very carefully to avoid falling into the realm of ‘hypothetical’ rulings that the CJEU has consistently refused to consider because the dispute that resulted in the referred question had been resolved by the time of its ruling (Case C-225/02 García Blanco). Add to this the fact that the preliminary reference questions sent did not actually require the CJEU to offer an opinion on whether NHS entitlement equated to CSI, and we can only conclude that the CJEU was determined to make this case ‘work’ for it.

Having said that, there are a number of reasons to wonder if VI is actually going to mean anything for anyone—at least in the UK.

The highlighted passages in VI about CSI may have an impact in other Member States that operate ‘public health services’ like the NHS: to the best of my knowledge, these do not currently require economically inactive EU nationals to contribute in order to gain access, but the VI judgment clearly enables them to set up something akin to the Immigration Health Surcharge that the UK charges immigrants for economically inactive EU nationals. It reemphasizes the distinctions in terms of EU law-based rights and duties between those who ‘integrate’ and those who do not, as the CJEU has been doing ever since its Dano judgment—though it does also stress, in paragraph 70, that any requirement for ‘paying into’ a national health service has to be proportionate. In the VI case, VI’s husband was a full-time employee who paid taxes much as any employed UK national, so ‘double-charging’ would have been disproportionate. A family like VI’s clearly does fit the ‘integration’ demands the CJEU has recently placed on EU nationals who move to other Member States: in the CJEU’s own words, they do not form an unreasonable burden. Given the requirement for ‘proportionate’ charges to EU nationals for use of a public healthcare system, the impact in other Member States may be quite limited in practice; it is not immediately obvious that the cost of administering such a system is outweighed by the actual charges that would be recovered.

VI and Brexit?

But what of in the UK? As far as VI herself goes, apparently HMRC are not asking for the money back—so regardless of what the CJEU said, it appears that her dispute with HMRC is for all intents and purposes done. Her main victory here is that a court that the UK wanted rid of at all costs as part of the Brexit process has, in essence, told her she was right.

What is far less clear is what happens with this CJEU ruling in practice in the UK, where problems with demands for CSI have affected hundreds of thousands of EU nationals since at least 2011. If the UK were still an EU Member State, the follow-up is obvious: anyone whose application for permanent residency or—the far more costly—UK citizenship was rejected because of the absence of CSI when they were entitled to NHS care would have a cause for damages. The effects of a status being declined for some will have meant that they took out (also expensive) private insurance they could not use and waited six years—but for others will have meant separation from family members, insecurity in terms of access to benefits because they did not have permanent residency in the UK, and far greater expenses. These appear to be losses caused by what as of 10 March 2022 we know are breaches of EU law: applicants would have been entitled to permanent residency as a matter of EU law, and the UK’s failure to grant them evidence of this status, and the attached benefits, caused identifiable losses. Were we still a Member State, then, a Francovich claim for state liability seems like the logical follow-up to VI.

But we are not, and Schedule 1(4) of the EU (Withdrawal) Act 2018 generally rules out the possibility of Francovich damages via domestic court proceedings after the transition period in the withdrawal agreement:

There is no right in domestic law on or after [F1IP completion day] to damages in accordance with the rule in Francovich.

However, hidden in paragraph 39(7) of Schedule 8 of the EU (Withdrawal) Act 2018 is an exception that covers rights held and violated before Brexit:

Paragraph 4 of Schedule 1 does not apply in relation to any proceedings begun within the period of two years beginning with exit day so far as the proceedings relate to anything which occurred before exit day.

VI falls within this exception, and so Francovich damages for historic mistreatment of EU nationals seeking confirmation of permanent residency and being told they could not have it because they were reliant on the NHS are a definitive possibility, provided they are started before the end of 2022. Historic wrongs here can thus still be righted, provided claims are made quickly enough.

What happens if they are not, and EU nationals want to make a claim after 2022?

Schedule 1 of the EU (Withdrawal) Agreement 2018 is itself very clear – but what is not clear is whether this domestic law provision survives the UK’s obligations under the Withdrawal Agreement itself as implemented in UK law. Section 5(7) of the EU (Withdrawal) Act 2018 thus indicates that Schedule 1 is “subject” to so-called “relevant separation agreement law”, and section 7(C) of the same Act makes clear that “relevant separation agreement law” includes the Withdrawal Agreement. If state liability is an EU law doctrine that forms part of the Withdrawal Agreement, then, it would take precedence over the UK’s abolition of the doctrine as a matter of domestic law.

Is Francovich part of the Withdrawal Agreement? On a purely practical level, it’s not clear what the point of Articles 86-89 WA is in the absence of an ability to provide remedies for breaches of EU law. Article 86 WA gives the CJEU the jurisdiction to hear this reference post-transition, and Article 89 WA makes clear that the ruling in VI is still binding on the entirety of the UK:

1.Judgments and orders of the Court of Justice of the European Union handed down before the end of the transition period, as well as such judgments and orders handed down after the end of the transition period in proceedings referred to in Articles 86 and 87, shall have binding force in their entirety on and in the United Kingdom.

2.If, in a judgment referred to in paragraph 1, the Court of Justice of the European Union finds that the United Kingdom has failed to fulfil an obligation under the Treaties or this Agreement, the United Kingdom shall take the necessary measures to comply with that judgment.

If a CJEU judgment would not have the same effects in the UK (where it is binding in its entirety) as it would in the Member States, it is difficult to see how the ability for the CJEU to rule on matters after 2022 has much meaning: an obligation to comply with CJEU rulings on how to apply EU law applicable in the UK when it was a Member State is effectively moot, as the same EU law is not applicable in the UK anymore now. For the CJEU’s declaratory judgments to have any practical effects, they would need to be able to result in remedies to be obtainable for those who experienced losses because of historic, pre-Brexit breaches of EU law.

Important here is that that Article 4(1) WA declares the entire Withdrawal Agreement to be directly effective where it is clear, precise and unconditional, and Article 4(3) and 4(4) WA requires that “Union law or concepts or provisions thereof” have to be interpreted and applied in accordance with both methods, general principles, and pre-Brexit CJEU case law.

In 2023, therefore, an individual could argue before a UK court that Article 89 WA is directly effective—and that part of the UK taking the ‘necessary measures’ to comply with the judgment means that UK courts should be able to consider claims for state liability, as that is part of the EU law’s normal enforcement repertoire (as established by CJEU case law). Whether a UK court would accept this logic, however, is debatable; while the Withdrawal Agreement as a whole is supreme to any conflicting domestic law, and the EU (Withdrawal) Act 2018 acknowledges as much for domestic law purposes, it is a genuine matter of interpretation if Schedule 1(4) of the EU (Withdrawal) Agreement 2018 is in conflict with the Withdrawal Agreement. What would happen with any attempt to ‘Francovich’ the VI ruling after 2022, in other words, is anyone’s guess.

In the absence of an EU law remedy, anyone affected by what is over a decade of misapplication of Article 7 CD but unable to act on that via a case before 2023 looks out of luck. Judicial review applications have a time limit of 3 months maximum, and even the most generous application of that in the case of VI would have the clock starting on 10 March 2022. An argument that links VI to the withdrawal agreement's general 'EU law' effects might thus look like a long shot, but by 2023, it will be the only possible shot. 

In terms of ongoing UK policy that VI affects, we also have to look at what the withdrawal agreement applies, and requires, in terms of UK interpretation and application of that EU law. The UK has left the EU, of course, but the Citizenship Directive remains a key component of the Withdrawal Agreement’s provisions on Citizens’ Rights. All EU nationals resident in the UK on the basis of the Withdrawal Agreement are in effect still here under the rules set out in the Citizenship Directive. A key difference between now and then, however, is that as a policy choice, the UK government chose not to require economically inactive EU nationals who wished to apply for ‘Settled Status’ under the Withdrawal Agreement to hold comprehensive sickness insurance: five years of residency in the UK while having sufficient resources was all that was required.

If this seems generous, the sting is once more in the tail, because these EU nationals with ‘settled status’ nonetheless need to demonstrate they held CSI during any periods they resided in the UK under EU law (rather than the ‘Settled Status’ scheme) – so, any time before they applied for either ‘Settled Status’ or ‘Pre-Settled Status’. There are thus inevitably a number of EU nationals in the UK who have lived here for far longer than six years, but who nonetheless are not able to apply for UK citizenship because of an administrative requirement covering their pre-Brexit residency that the CJEU has now declared incompatible with EU law.

Can VI help them? Opinions are bound to differ here as well. One possible argument for the UK government to make here is that citizenship law is outside of EU competences in a very general sense, and so the UK asking EU nationals to have CSI is simply not something that the Withdrawal Agreement addresses. It might as well ask EU nationals to dance the hokey cokey: that, too, is outside of what the EU can control.

However, it is also arguable that ‘CSI cover’, as the UK demands it of EU nationals in order to naturalise, is an EU law concept that is covered by the Withdrawal Agreement, and therefore must be interpreted in line with the CJEU’s case law—bringing this particular dimension of the administrative dimension to UK nationality law within the scope of EU law. If the UK government were insistent that EU nationals could only naturalise if they had held some sort of non-NHS health insurance, the fix would be simple: just call it something else but require that EU nationals held it anyway, as retrospective (or ex post facto) legislative activity is perfectly possible under UK law. This would mean that those wanting UK citizenship would simply have to get whatever non-NHS comprehensive sickness insurance cover is, as so many before them did, and wait several more years in order to put in their application.

VI and Northern Ireland?

One further final ‘Brexit’ dimension that has to be considered in light of VI is how the judgment will work not in the UK generally, but specifically in Northern Ireland. As has been set out in a great many pieces of academic writing and commentary since 2015, the ‘Brexit’ that Northern Ireland is experiencing is distinct from the one that Great Britain has achieved, and there are particular dimensions of the Protocol on Ireland/Northern Ireland (Protocol) that remain unclear but are worth exploring in light of this judgment.

Key is Article 2 of the Protocol, of which the relevant parts read:

The United Kingdom shall ensure that no diminution of rights, safeguards or equality of opportunity, as set out in that part of the 1998 Agreement entitled Rights, Safeguards and Equality of Opportunity results from its withdrawal from the Union, including in the area of protection against discrimination, as enshrined in the provisions of Union law listed in Annex 1 to this Protocol, and shall implement this paragraph through dedicated mechanisms.

There has been significant debate as to the scope of this ‘no diminution’ commitment. In terms of concrete ‘rights’ protected, the evidence to the Lords Committee on the Protocol has suggested that there are no clear limitations to the GFA concepts of ‘right, safeguard or equality of opportunity’— the GFA at best sets out a non-exhaustive list of examples.

Of course, Article 2 of the Protocol only applies to a diminution of rights that followed from Brexit, and so the likely way in which any cause for action on the basis of VI is linked to Article 2 is via remedies. Given that the EU (Withdrawal) Act 2018 will end all possibility of state liability claims in relation to pre-Brexit breaches of EU made law by the UK at the end of 2022, it appears clear that there will be a diminution of rights here (eg, right to an effective remedy) and that that diminution has been a direct consequence of Brexit (many thanks to Dr. Eleni Frantziou for pointing this out).  

This consequently would suggest that while EU nationals living in Great Britain who were denied, for example, benefits or citizenship because of the CSI requirement, may fall between the cracks created by Brexit, in the absence of a ‘willing’ judiciary, EU nationals living in Northern Ireland look like they might have a further shot at a successful claim even if they do not 'get it in' before the end of 2022. Their argument would be that a violation of EU law pre-Brexit should result in undiminished state liability for the UK post-Brexit because of Article 2 of the Protocol. But there, too, a judiciary looking to give Article 2 of the Protocol a broad meaning is a prerequisite for a result, and so it is far from obvious that anyone in the UK will experience the effects that VI would have had if the UK were still a Member State unless they get in a claim for damages before the end of this year.

Conclusion

The Commission was too worried to pursue the matter in 2012, and the CJEU seemed to feel confident enough to rule on what the NHS actually does only in 2022, after the UK left the EU, and when the ruling would probably not cause a shockwave anymore. That assessment might be slightly misplaced, however. If the above interpretation of the effects of VI in the post-Brexit UK legal landscape is correct,  the CJEU may have done just enough to still give EU nationals a surefire remedy for the wrongs they experienced for the wrongs they experienced if they leap on this judgment - and at least several routes by which they can try to attain a remedy beyond 2022. Given the general politics surrounding Brexit even now that it is supposedly 'done', one can only imagine how this will go down in Westminster. 

Photo credit: Matt Brown, via Wikimedia Commons