Thursday, 1 December 2016

Another failed opportunity for the effective protection of LGB rights under EU law: Dr David. L. Parris v. Trinity College Dublin and Others



Dr Alina Tryfonidou, Associate Professor in EU Law, University of Reading


Introduction

The recent judgment in the Parris case is another failed opportunity for the ECJ to offer effective protection to LGB persons and same-sex couples under EU law. Despite some signs in recent cases (Asociaţia Accept and Hay) that the EU Court has been taking its role as protector of the rights of LGB persons under EU law more seriously, in its judgment in Parris, like in its decision in Léger (discussed here) which was the last case involving LGB persons that was decided prior to Parris, the Court seems to be treading cautiously around matters that are delicate from the point of view of the Member States. In particular, in this case, the Court seems wary of the danger of being accused of imposing its own views with regards to a matter for which there is – still – great diversity of opinion among the Member States, namely, the recognition of same-sex relationships. The judgment, also, demonstrates the ECJ’s failure to accept the reality of multiple discrimination, as it was ruled that if a measure does not give rise to discrimination on any of the grounds prohibited by Directive 2000/78 – when these grounds are taken in isolation – then it cannot be considered to produce discrimination on the basis of the combination of those two factors.


Legal and Factual Background

The request for a preliminary ruling in the Parris case was referred by the Labour Court (Ireland) hearing an appeal from a decision of the Equality Tribunal (Ireland) in proceedings brought by Dr David L. Parris – a retired academic – against Trinity College Dublin (his former employer), the Higher Education Authority (Ireland), the Department of Public Expenditure and Reform (Ireland) and the Department of Education and Skills (Ireland), arguing that he had been discriminated against by the defendants by reason of his age and sexual orientation. The proceedings concerned the refusal by Trinity College Dublin to accept Dr Parris’s request that on his death, the survivor’s pension provided for by the occupational benefit scheme of which he was a member, should be granted to his civil partner. The refusal was based on the fact that Dr Parris entered into a civil partnership with his male partner only after he had turned 60 and the said occupational scheme provides that survivor’s pension is payable only if the claiming member married or entered into a civil partnership before reaching the age of 60. (Note that the civil partnership was entered into in the UK in 2009, once Dr Parris was over 60, but was only recognised in Ireland from 2011 onwards, when the Irish legislation regarding civil partnerships came into force).

In Ireland, civil partnerships can only be entered into since January 2011, whilst marriage between persons of the same sex has been made available only since November 2015. In addition, the statute which gave same-sex couples the right to enter into a civil partnership, excluded the retrospective recognition of civil partnerships registered in another country, which meant that civil partnerships entered into abroad could be recognised in Ireland only prospectively, from January 2011. Thus, as Dr Parris was born in 1946, he could only enter into a civil partnership or marry his same-sex partner in Ireland after reaching the age of 60; and, similarly, any civil partnership he had entered into in another country, could only be recognised in Ireland after he had reached the age of 60.

This meant that under no circumstances would a person who had Dr Parris’s sexual orientation and age be able to claim a survivor’s benefit for his (same-sex) civil partner or spouse under the contested pension scheme. Or, to put the issue more broadly, LGB persons born before 1 January 1951 are excluded in all instances from claiming a survivor’s benefit for their same-sex civil partner or spouse under the contested pension scheme.

The main question of the referring court was whether the application of a rule in an occupational benefit scheme specifying an age by which its members must marry or enter into a civil partnership for their spouse or civil partner to be entitled to a survivor’s pension, amounts to discrimination on grounds of age and/or sexual orientation, contrary to Directive 2000/78.


The AG Opinion

In her Opinion, Advocate General Kokott firstly noted that the contested rule does not amount to direct discrimination on the ground of sexual orientation, as ‘[t]he mere fact that an employee has not married or entered into a civil partnership before his 60th birthday – whether on account of legal barriers or by choice – is not directly linked to his sexual orientation … Had Dr Parris married a woman after his 60th birthday, for example, she would have been excluded from eligibility for the survivor’s pension in exactly the same way as his current partner under the terms applicable to that pension’. The Advocate General then pointed out that the rule does, however, amount to indirect discrimination on the ground of sexual orientation since ‘the 60-year age limit affects a large number of homosexual employees in Ireland more severely and more deleteriously than their heterosexual colleagues … all homosexual employees in Ireland who were born before 1951 were universally barred from entering into a civil partnership in good time before their 60th birthday because the institution of civil partnership did not exist in that Member State until 2011 and the best option previously available to same-sex couples was to live together as “common-law” partners. It was therefore impossible for legal reasons for that group of people to secure a survivor’s pension for their respective partners under the occupational pension scheme at issue and thus to provide the latter with a form of social protection that their heterosexual colleagues and their spouses were able to take for granted’. The Advocate General also found that there was (unjustified) direct discrimination on the ground of age as ‘employees who do not enter into a marriage or civil partnership until after they have reached their 60th birthday are treated less favourably than employees who do so at a younger age’.

Despite the fact that the Advocate General found that the contested rule can amount to discrimination on the grounds of sexual orientation and age taken separately, her preferred approach was to consider that the rule is discriminatory on the combined grounds of sexual orientation and age: ‘In the present case, particular attention will have to be given to the fact that any discrimination perpetrated against the person concerned is attributable to a combination of two factors, age and sexual orientation. The Court’s judgment will reflect real life only if it duly analyses the combination of those two factors, rather than considering each of the factors of age and sexual orientation in isolation.’ The Advocate General explained that ‘employees such as Dr Parris would, in accordance with Article 2(2)(b) of Directive 2000/78, have to be regarded as being at a particular disadvantage by reason of a combination of their sexual orientation and their age because the terms of the pension scheme have the effect of systematically depriving their surviving partners in particular of a survivor’s pension. It is true that, for all employees, the surviving partner’s eligibility for a survivor’s pension is subject to the (apparently neutral) condition that the couple must have entered into a marriage or civil partnership before the employee’s 60th birthday. In truth, however, this systematically excludes homosexual employees born before 1951 in particular – unlike all other categories of employee – from a survivor’s pension of this kind because those employees would never have been able to satisfy the aforementioned condition even if they had wanted to’.


The Judgment

The Court in its judgment was of the view that the contested rule does not give rise to direct discrimination on the ground of sexual orientation because it does not refer directly to the worker’s sexual orientation. Unlike the Advocate General, however, the Court also found that the contested rule did not give rise to indirect discrimination on this ground either.

The Court began by considering the reason behind Dr Parris’s failure to satisfy the contested rule:

‘on the date on which Mr Parris retired, 31 December 2010, he did not satisfy the conditions laid down by the applicable national rule for his civil partner to be entitled to the survivor’s benefit at issue in the main proceedings, since the civil partnership he had entered into in the United Kingdom was not yet recognised in Ireland, and in any event, even if it had been recognised, it could not have given an entitlement to such a benefit, as it had been entered into after the member’s 60th birthday.’

‘the fact that Mr Parris is unable to satisfy that condition is a consequence, first, of the state of the law existing in Ireland at the time of his 60th birthday, in particular the absence at that time of a law recognising any form of civil partnership of a same-sex couple, and, secondly, of the absence, in the rules governing the survivor’s benefit at issue in the main proceedings, of transitional provisions for homosexual members born before 1951’.

The Court then – referring to Recital 22 of Directive 2000/78 – proceeded to highlight the deference it shows towards Member State laws regarding the regulation of marital status in their territory and, in particular, the legal recognition of same-sex relationships: these are matters with respect to which Member States have maintained their full competence, and, thus, they can regulate them in whichever way they choose, provided that when doing so they comply with their obligations under EU law. The Court then explained that the ‘Member States are thus free to provide or not provide for marriage for persons of the same sex, or an alternative form of legal recognition of their relationship, and, if they do so provide, to lay down the date from which such a marriage or alternative form is to have effect’. From this, the Court concluded that ‘EU law, in particular Directive 2000/78, did not require Ireland to provide before 1 January 2011 for marriage or a form of civil partnership for same-sex couples, nor to give retrospective effect to the Civil Partnership Act and the provisions adopted pursuant to that act, nor, as regards the survivor’s benefit at issue in the main proceedings, to lay down transitional measures for same-sex couples in which the member of the scheme had already reached the age of 60 on the date of entry into force of the act’. Accordingly, in the ECJ’s view, the contested rule did not produce indirect discrimination on grounds of sexual orientation.

The Court, however, found that the contested measure did establish a difference in treatment that was directly based on the criterion of age: ‘such a rule thus treats members who marry or enter into a civil partnership after their 60th birthday less favourably than those who marry or enter into a civil partnership before reaching the age of 60’. This difference in treatment, nonetheless, falls – according to the Court – within the scope of Article 6(2) of the Directive, as it ‘fixes an age for entitlement to an old age benefit’ and, hence, it does not constitute discrimination on grounds of age.

The final issue that the Court had to consider was that of multiple discrimination, i.e. whether the contested rule was capable of creating discrimination as a result of the combined effect of sexual orientation and age, where that rule does not constitute discrimination either on the ground of sexual orientation or on the ground of age taken in isolation. The Court noted:

‘while discrimination may indeed be based on several of the grounds set out in Article 1 of Directive 2000/78, there is, however, no new category of discrimination resulting from the combination of more than one of those grounds, such as sexual orientation and age, that may be found to exist where discrimination on the basis of those grounds taken in isolation has not been established.’

‘Consequently, where a national rule creates neither discrimination on the ground of sexual orientation nor discrimination on the ground of age, that rule cannot produce discrimination on the basis of the combination of those two factors’.


Analysis

The judgment in the Parris case confirms and further highlights two trends that had already been prevalent in previous case-law: a) that the Court is reluctant to intervene in situations which touch on matters that fall to be regulated exclusively at Member State level, especially when such matters involve morality judgements for which there is great diversity of views among the Member States and b) that the Court ignores the reality of multiple discrimination.

a) Sensitive Matters that Fall within Exclusive Member State Competence

As seen earlier, Recital 22 of Directive 2000/78 played an important role in the Court’s conclusion in the case that the contested rule did not amount to (indirect) discrimination on the ground of sexual orientation. The Recital provides that ‘[t]his Directive is without prejudice to national laws on marital status and the benefits dependent thereon’. In relation to this, the Court in its judgment explained that the Member States are free to decide whether to open marriage or registered partnerships to persons of the same sex and if they do so to lay down the date from which such a marriage or alternative form is to have effect. From this it concluded that the refusal of the survivor’s benefit was – simply – a consequence of the application of Irish law concerning same-sex partnerships (and, in particular, the lack of a civil status for such partnerships at the relevant time), and, hence, respecting the competence of the Member States with regards to these matters, EU law (and, in particular, Directive 2000/78) could not apply in order to require Ireland to ‘to provide before 1 January 2011 for marriage or a form of civil partnership for same-sex couples’.

This line of reasoning appears – with respect – to be erroneous. In areas like this (i.e. legal recognition for same-sex relationships) which fall to be regulated by Member States exclusively, the ECJ can still intervene in order to require the said legislation to be applied in a manner which is compliant with EU law. Hence, the application of Directive 2000/78 in this instance would require the removal of discrimination on the (combined) grounds of sexual orientation and age – which, in my view, is the discrimination that was suffered on the facts of the case – which could be achieved by an amendment of the rule (most likely, the requirement would be to permit LGB persons born before 1951 to claim survivor’s benefit for their same-sex partner even if they entered into a civil partnership or marriage after they turned 60), but it wouldn’t require Ireland to recognise such relationships retrospectively, by changing the date from which they have effect (which is a matter that falls to be regulated exclusively by Ireland). In other words, Ireland would remain free to determine how to regulate same-sex relationships – as required by Recital 22 of Directive 2000/78 – but would have to require pension schemes etc which apply to such relationships to make provision for the different legal situation of persons that have such relationships and to take that into account, by providing for an exception to the rule in situations where it is (legally) impossible to satisfy the age condition due to the law in Ireland (as opposed to the personal choice of the couple), which only allowed the legal recognition of same-sex relationships after a certain date.

As noted by Advocate General Kokott in response to the argument of the defendants, the UK Government, and the Commission, that a finding of discrimination based on sexual orientation in this case could have the consequence of conferring de facto retroactive effect on the institution of civil partnership (which would go against Recital 22 of Directive 2000/78), such a finding ‘does not in any way compel the Irish State to change the marital status of an employee such as Dr Parris retroactively’ as ‘Dr Parris and his partner are today recognised by the Irish State as living together as a couple, and they are today claiming – prospective – occupational pension scheme benefits corresponding to their marital status as it stands today. They are not in any way claiming a benefit to which their marital status does not entitle them. They are certainly not claiming such a benefit retroactively. Nor are they seeking a retroactive change to their marital status. Rather, they are simply defending themselves against a term contained in the occupational pension scheme at issue – the 60-year age limit – which was laid down in the past but discriminates against them today.’

Accordingly, by hiding behind Recital 22, the Court seems to be avoiding to intervene in this case, in this way allowing Member States not merely to regulate same-sex relationships and the consequences ensuing from entering them (which is, indeed, a matter that is wholly to be regulated at Member State level), but also to discriminate against LGB persons who – by virtue of a legal disability (i.e. their inability to enter into a marriage or registered partnership in a certain Member State until a certain date) – are differently situated from heterosexual persons who had the (legal) option of entering into a marriage or registered partnership by the required age, but chose not to do so. This approach seems to be in line with the approach followed by the Court with regards to issues involving fundamental societal choices. In particular, in relation to matters which involve deeply held national societal mores or values, the Court and the EU legislature have been very reserved in their approach and have focused on respecting the sovereignty of the Member States, even to the extent of avoiding applying EU law rigorously (e.g. Henn and Darby) or at all (e.g. Grogan). This nonetheless comes at a cost, this being that the rights that individuals derive from EU law are sacrificed at the altar of Member State sovereignty. Should there not be a requirement that the EU, which is a polity that values, inter alia, fundamental human rights and equality, act as an external arbiter of the choices of the Member States with regards to these issues when these choices come into conflict with the rights that individuals derive from the Treaty and secondary legislation? In other words, should the EU not come to the rescue of individuals that derive rights from EU law and require the Member States to ‘think federal’ with regards to these matters, as long as the EU does not impose its own views in relation to them? It is not suggested here that morality and value judgements should now be made at the EU level; as Weiler has noted, there should be ‘fundamental boundaries’ which are ‘designed to guarantee that in certain areas communities […] should be free to make their own social choices without interference from above’.[1] However, Member States should be aware that when regulating these matters they must take into account and cater for the rights that individuals enjoy under EU law, and if they do not, then the ECJ or (in most instances) the national courts as enforcers of EU law, should intervene in order to ensure that Member States comply with their obligations under EU law. 

b) Multiple Discrimination

The other notable feature of the judgment in Parris is the Court’s express rejection of the possibility that multiple discrimination can be prohibited by Directive 2000/78. The Court had, already, been faced with a situation involving discrimination on the combined grounds of sex and sexual orientation in the Léger case, which was decided in 2015. Despite the fact that the Advocate General in that case found that the contested measure did amount to such (multiple) discrimination, the Court in that case simply brushed aside the matter, by focusing on the question of whether the said measure amounted (simply) to discrimination on the ground of sexual orientation.

In this case, however, it was more difficult for the Court to avoid the matter as the possibility of multiple discrimination – in this instance on the combined grounds of sexual orientation and age – was specifically mentioned by the referring court and the third question referred was, exactly, focused on this issue. However, as noted earlier, the Court explicitly pointed out that ‘where a national rule creates neither discrimination on the ground of sexual orientation nor discrimination on the ground of age, that rule cannot produce discrimination on the basis of the combination of those two factors’, thus rejecting the possibility of a finding of multiple discrimination under Directive 2000/78.

It is, indeed, true that multiple discrimination presents challenges that are not faced when an assessment of a single ground of discrimination is made.

One such difficulty is that a multiple discrimination assessment contradicts the classic single-ground model of discrimination law analysis which requires the identification of a single hypothetical comparator who must only have a single characteristic – the one that it is claimed that the discrimination complained of is based – that is different from the person that is treated worse. Yet, at the same time, an analysis which is – artificially – pushed to fit this model by insisting on an examination of the difference in treatment by using a single ground, may be incapable of accurately reflecting the situation that pertains in a certain case. For instance, on the facts in Parris, it would be inaccurate to compare all LGB persons with all heterosexual persons; or all LGB persons who have entered into a marriage or registered partnership with all heterosexual persons who have done so too; or all persons born before 1951 with all persons born after 1951. It was only LGB persons who were born before 1951 that were treated worse than everyone else (i.e. LGB persons born after 1951 and heterosexual persons in general). Accordingly, the difference in treatment complained of was based on the combined grounds of sexual orientation and age and, thus, the failure of the Court to find this misrepresents the reality of discrimination that was suffered on the facts of the case and – at a broader level – contributes to the continued invisibility of the phenomenon of multiple discrimination.

Another difficulty with multiple discrimination and its prohibition under EU law is that there is a hierarchy in the protection from discrimination on various grounds (with race and ethnic origin coming at the top, followed by sex, and then by the Directive 2000/78 grounds) which means that it is difficult to apply a single analysis in a situation where discrimination is suffered on more than one ground simultaneously. This, in fact, is the reason why legal advisors handling cases involving multiple discrimination usually make a strategic decision as to which single ground to choose, taking into account the protection afforded in relation to that ground as well as what is possible and attainable on the facts of the case.

Yet, and despite the above difficulties, it is important that where there is multiple discrimination, that this is reflected in the Court’s analysis. This is because, as noted by the Advocate General in Parris, a finding of multiple discrimination requires that a different approach to justifications is taken, as ‘[t]he combination of two or more of the grounds for a difference of treatment referred to in Article 1 of Directive 2000/78 may also mean that, in the context of the reconciliation of conflicting interests for the purposes of the proportionality test, the interests of the disadvantaged employees carry greater weight, which increases the likelihood of undue prejudice to the persons concerned, thus infringing the requirements of proportionality sensu stricto’.

Despite the fact that the EU legislature and the ECJ seem to ignore the reality of multiple discrimination, there have already been calls by the EU institutions to take this form of discrimination more seriously and to take action in order to increase both the capacity to recognise and identify occurrences of multiple discrimination and awareness of the need to combat them as such. It is important for the institutions, bodies and courts, that apply anti-discrimination law to become aware and able to identify the unique ways in which individuals experience multiple discrimination (see, for instance, Report commissioned by the European Commission ‘Tackling Multiple Discrimination: Practices, policies and laws’ (2007) available at http://ec.europa.eu/social/main.jsp?catId=738&pubId=51). Accordingly, the ECJ should take the opportunity – when it arises again – to rule that EU anti-discrimination law prohibits not merely single-ground but also multiple discrimination and to provide guidance as to how to deal with cases of such discrimination. After all – as stressed by the Advocate General in Parris – ‘it is apparent at several points in the Directive [i.e. Directive 2000/78] that its authors were acutely aware of this issue [i.e. multiple discrimination] and assumed that it could be adequately resolved by recourse to the instruments provided by the Directive’.


Further Reading

N. Bamforth, M. Malik and C. O’Cinneide, Discrimination Law: Theory and Context (Sweet & Maxwell, 2008), Chapter 9
K. Lenaerts, ‘Federalism and the Rule of Law: Perspectives from the European Court of Justice’ (2011) 33 Fordham International Law Journal 1338
A. Tryfonidou, ‘The Federal Implications of the Transformation of the Market Freedoms into Sources of Rights for the Union Citizen’ in D. Kochenov (ed.), Citizenship and Federalism in Europe (Cambridge, CUP, 2016, forthcoming)
A. Tryfonidou, ‘Discrimination on the Grounds of Sexual Orientation and Gender Identity’ in S. Vogenauer and S. Weatherill (eds), General Principles of Law: European and Comparative Perspectives (Oxford, Hart, 2017, forthcoming)
Report: ‘Tackling Multiple Discrimination: Practices, policies and laws’ (2007) available at http://ec.europa.eu/social/main.jsp?catId=738&pubId=51
Report by S. Fredman, ‘Intersectional discrimination in EU gender equality and non-discrimination law’ (May 2016), available at http://ohrh.law.ox.ac.uk/new-report-intersectional-discrimination-in-eu-gender-equality-and-non-discrimination-by-professor-fredman/

Barnard & Peers: chapter 20
Photo credit: cbc.ca



[1] J. H. H. Weiler, ‘Fundamental Rights and Fundamental Boundaries: On the Conflict of Standards and Values in the Protection of Human Rights in the European Legal Space’, in J. H. H. Weiler, The Constitution of Europe: ‘Do the New Clothes Have an Emperor?’ And Other Essays on European Integration (Cambridge: Cambridge University Press, 2005), pp. 103–104. 

Wednesday, 30 November 2016

Could the UK stay in the single market after leaving the EU? The planned case on Article 127 EEA



Steve Peers

Might the UK stay in the single market, even if it leaves the EU? This is the issue to be raised by planned litigation relating to the UK’s position in the European Economic Area (EEA) – a zone set up by a treaty between the EU, its Member States, and Norway, Iceland, and Liechtenstein, which extends EU single market rules to the latter three States. It raises issues of both international and domestic law; but first, it would be useful to explain the EEA further.

The EEA

The EEA treaty was originally signed in 1991, adjusted in 1992, and come into force at the start of 1994. The aim was to extend the EU’s internal market (known as the ‘single market’ in UK political debates) to the countries which were part of the European Free Trade Area (EFTA). In the event, three of those countries decided to join the EU from 1995 (Sweden, Austria and Finland), and Switzerland decided not to sign up after all, relying on a separate network of treaties with the EU.

Some believe that the EEA is the same as the EU, but there are many differences. The EEA does not include the EU’s common trade policy, and indeed EFTA states have signed separate trade deals with non-EU countries. It also does not include EU policies on tax, justice and home affairs, foreign policy, agriculture, the single currency and fisheries, although EFTA states have signed separate agreements with the EU on aspects of these issues. In particular, while all EFTA states have signed up to the EU’s Schengen system for the abolition of internal border controls, that is a separate issue from the EEA (indeed, the treaties to become Schengen associates were signed later than the EEA).

The EEA does include applying EU laws on the free movement of goods, services, capital and people, along with the freedom of establishment.  However, EFTA states can apply an emergency safeguard to limit free movement, including the free movement of people. The EEA also involves participation in most of the EU laws concerns labour and environment, as well as competition and state aids. EFTA states make contributions to participate in EU programmes and to assist the development of poorer EU countries; but the money does not go into the EU budget and the EFTA countries have more control over how it is spent.

As regards institutions, the EFTA states have no role in EU institutions, but rather the EEA has its own bodies, where EFTA states are consulted on draft EU laws, but do not have a vote on the EU decision-making process. They are expected to apply new EU laws within the scope of the EEA (which, as noted already, does not extend to many areas of EU law-making), but they can in principle reject them, subject to the possibility of EU retaliation. They are not directly subject to the EU court, but instead take part in an EFTA Court, which usually follows the EU court’s case law – although note that some EFTA Court judgments are not binding.

Some argue that the UK should stay part of the EEA on at least an interim basis after leaving the EU, while negotiating a longer-term agreement. The basic arguments for this position are set out here; see also the EUreferendum site. One thing is clear: staying in the EEA was not on the referendum ballot paper. While comments by some on the Remain side or Leave side suggested that a vote on EU membership was also a vote on single market membership, that is not what voters actually voted on.

How to leave the EEA?

Leaving the EEA has two dimensions: international law and national law. Internationally, the only explicit way to leave the EEA is by invoking Article 127 of the EEA treaty, which says that any party can leave with at least 12 months’ notice. There is no explicit requirement to name the date of departure when giving the notice, so arguably the UK could specify the date of departure as the same date it leaves the EU. Therefore, as long as the UK gives notice to quit the EEA at least twelve months before Brexit Day, it could align leaving the EEA with leaving the EU.

What if the UK doesn’t give that notice? In that case, although Article 127 is the only explicit way to leave the EEA, some argue that that the UK would leave the EEA automatically when it leaves the EU. Why? Firstly, because the clause on territorial scope (Article 126) refers to the EU and EFTA states, but not to any other countries. Also, many of the substantive legal rules refer to the EU and EFTA states. Article 2(c) defines the contracting states as regards the EU and its Member States, and allocates responsibility as between them, but does not mention EFTA states.

If this analysis is correct, the UK could still rejoin the EEA after (or at the same time) as leaving the EU. In that case, Article 128 says the UK would have to join EFTA and apply to rejoin the EEA, subject to EU and EFTA states’ agreement, because only EU and EFTA states can join up to the EEA. (Article 128 isn’t, by itself, a good basis for arguing that the UK would have to leave the EEA if it leaves the EU, because it only addresses which countries may join the EEA in future, not which countries are members now and whether they might retain membership or implicitly lose it if they leave the EU or EFTA. It might, however, be referred to reinforce a conclusion based on Article 126 or other provisions).

So does the UK implicitly lose EEA membership if it leaves the EU? The answer isn’t clear, because the drafters of the EEA treaty never considered this possibility. On the one hand, the presence of an explicit clause on leaving presumes that states cannot implicitly cease to be EEA members. On the other hand, the substantive provisions and the clauses on territorial scope imply that leaving the EU is incompatible with being part of the EEA – unless the country concerned joins EFTA. That raises the question of how this would work: arguably there would be a ‘fundamental change of circumstances’ under Article 62 of the Vienna Convention on the Law of Treaties. (Note that the latter clause can’t be used as a quick route to leave the EU, since it only applies where a change was ‘not foreseen’ by the parties; but the prospect of a state deciding to leave the EU clearly was foreseen by the parties to the EU Treaties, since Article 50 TEU refers to it).  Or the other parties to the EEA could argue that the UK had committed a ‘material breach’ of the EEA by ceasing to be an EU Member State (if the UK does not join EFTA), and terminating application to the UK under Article 60 of the Vienna Convention.

The issue is arguably relevant by analogy to many other treaties which the UK signed up to as part of the EU, in particular trade agreements. Does the UK retain its status under the EU’s free trade deals with Korea, Canada and many other countries automatically on Brexit Day, or does it lose that status and have to negotiate a separate treaty? (Arguably, the international law principle of continuity of treaties could play a role here; and the legal issue also arises of whether the UK can start negotiating replacement treaties, if it has to, before Brexit Day).  

National law aspects

The termination of the UK’s EEA membership raises different issues as a matter of national law – which perhaps is the purpose of the planned litigation. If the UK government gives notice under Article 127, or asserts that it will implicitly cease being a party to the EEA on Brexit Day, does Parliament have to give its approval?

If the government is legally obliged (as a matter of international law) to give notice of leaving the EEA separately from the Brexit process, then the case is arguably analogous with the Miller case recently decided by the High Court, and now on appeal to the UK Supreme Court.  That case raises the question of whether the UK government’s royal prerogative extends to the termination of the UK’s EU membership, or whether Parliament must approve such use of the prerogative because leaving the EU would terminate rights conferred by an Act of Parliament. Since EEA membership is referred to in the European Communities Act, and extends many (though not all) of the same rights conferred by the EU Treaties, the answer to this question which the Supreme Court ultimately gives in the Miller judgment should logically apply by analogy to the EEA.

Therefore, in this scenario, if Parliament is obliged to approve withdrawal from the EU, it is also obliged to approve withdrawal from the EEA. And since EEA membership was not on the referendum ballot paper, the force of the political argument that Parliament ought to follow the view of the majority of those voting that the UK should leave the EU is not as strong. There will undoubtedly be a political argument that the referendum vote should apply by analogy – since to some extent the issues raised often by the Leave side as regards EU membership (migration of EU citizens, contribution to the EU, control over law-making) apply also to the EEA. But, as noted already, there are possible counter-arguments: the free movement safeguard clause in the EEA, the different nature of budget contributions, and the more limited scope of the EEA compared to EU law. Participation in the EEA could also, as some Leavers have suggested, be limited in time: an interim status pending negotiation of a longer-term framework for UK/EU relations.

On the other hand, if there is no distinct legal obligation to notify departure from the EEA, because its application to the UK will necessarily cease when the UK leaves the EU, then any Parliamentary vote to approve invoking Article 50 should logically encompass also the end of EEA membership, and the legal challenge relating to the EEA may find it harder to succeed. Or if the UK government succeeds in its appeal in Miller, it would be hard to convince a court that leaving the EEA raises distinct questions from leaving the EU.

In any event, any fresh litigation on the EEA could provide an opportunity to argue about whether an Article 50 notice is revocable – and it might be argued that that issue, and/or the issues about termination of EEA status as a matter of international law, should be referred to the ECJ to decide.

See also blog posts by:

Meme: Steve Peers

Barnard & Peers: chapter 25, chapter 27

Sunday, 27 November 2016

Rights on the Chopping Block: The Great Repeal Bill and the Ghost of Henry VIII



Joelle Grogan, Lecturer, Middlesex University

Perhaps the most curious aspect of the Great Repeal Bill is that ‘repeal’ is a misnomer: it will not repeal to a significant extent at all. Rather, the ultimate Act will initially convert the existing acquis of EU law into British law at the point of formal separation from the EU, following the completion of Brexit negotiations. This conversion will provide some degree of certainty and continuity in the inevitable turmoil which will follow UK withdrawal from the EU as the (at least) initial changes of domestic law will be relatively minimal.

The element of ‘repeal’ in the Great Repeal Bill will instead take the form of the incorporation of a Henry VIII clause. Named for the King who forced the passing of the Statute of Proclamations 1539 empowering his decisions both to change and have the same force as legislative acts, such a clause enables government to repeal or amend primary legislation by means of a secondary act with limited or no further parliamentary scrutiny.[1] For the complexity, intricacy and sheer mass of EU law which forms part of UK law (for a cake analogy), delegating decisions to secondary legislation makes pragmatic sense: does parliament really need to be bogged down with issues such as labelling regulations when there are more important debates to be had, trade deals to be made, and economic and political crises to be resolved?

Beyond the answer: yes, executive action during Brexit absolutely should be monitored,- the consequence of a Henry VIII clause in the Great Repeal Bill from a rights perspective is that the question of whether rights based on EU norms are compatible with post-Brexit Britain could be decided by a Minister, rather than through Parliamentary debate and an Act of Parliament. In this post, I explore the ghost of Henry VIII’s tyranny in his namesake legal clause, and outline some of the possible impacts of a Great Repeal Act and a Henry VIII clause on human and fundamental rights through the (somewhat shoe-horned) metaphor of the fate King Henry’s six wives.

The Ghost of Henry VIII

Henry VIII clauses are intrinsically problematic for democratic governance: they levy the convenience of a (relatively) quick amendment against the scrutiny of parliamentary oversight. Immediately after Henry VIII’s death in 1547, the Statute of Proclamations was repealed. No man, not even a king, should have such power to make, amend or repeal primary legislation without Parliament. For this reason, Henry VIII clauses have been subject to consistent criticism, and an emphasis on their use only when absolutely necessary: the 1932 Donoughmore Committee Report on Henry VIII clauses (for which only nine could be found in contemporary Acts) found that their use might only be when ‘demonstrably essential’ and must be justified by the Minister ‘to the hilt’. In a 2010-11 Report, the House of Lords Constitution Committee found that

‘the use of Henry VIII powers, while accepted in certain, limited circumstances, remains a departure from constitutional principle… [which] should be contemplated only where a full and clear explanation and justification are provided.’[2]

Henry VIII clauses are, however, not foreign to EU law in the UK. Article 2(2) European Communities Act 1972 is itself a Henry VIII clause, allowing the amending of UK law to comply with EU acts. The difference here, as has been pointed out, is that EU acts go through multiple layers of legislative checks before becoming law, and so not comparable in a situation post-Brexit.

The issue is scale: it is now beyond an academic debate to consider the scope and breadth of EU norms incorporated into British law. Simply enumerating some of the sweeping areas of influence indicates only a shadow of the sheer scale of replacement, repeal and revision ahead for Parliament: external trade; competition; financial and banking services; telecommunications and data protection; fisheries and agriculture; EU standards agencies; cooperation in matters of security and the criminal law; and the environment. This also does not account for rights based on EU law, including existing EU residents’, workers’ and consumers’ rights, or even the right to be forgotten. One of the Supreme Court Judges hearing the appeal on the Article 50 judgment, Lady Hale, raised the question of whether a simple Act would be enough to authorise the government to give notice, or whether the 1972 Act would comprehensively have to be replaced prior to triggering Article 50. Though there was no elaboration in the speech, - speculating, this could perhaps be a contrast between the rumour of a ‘short three-line bill’ to authorise Brexit, and a more comprehensive bill clarifying the Brexit process, transition arrangements and the post-Brexit legal situation. However, the ECA 1972 cannot be repealed prior to the conclusion of the withdrawal agreement, as EU law continues to be applicable within the UK until that point. The (current) official stance is not such a comprehensive replacement, ostensibly leaning instead towards a do-now, fix-later approach.

To shoe-horn the metaphor, a Henry VIII clause in a Great Repeal Act will hand Ministers an executioner’s axe to a range and breadth of law based on EU norms which is still not fully understood or accounted for. This is by no means alarmist argument, as widening the scope of power under a Henry VIII-type clause to excise the influence of the EU has been advocated by a barrister for the Leave Campaign.  For all the heralding of taking control back to the UK Parliament, Henry VIII clauses, especially in the extended scope necessary to cope with large scale repeal, will be less democratic, create more legal uncertainty, and take the reins of control away from Parliament and (potentially) rights away from individuals. Even as the controls imposed on secondary legislation is an open issue, the latent threats to cornerstones of British constitutionalism, parliamentary sovereignty and the rule of law, are evident:  the power to amend primary legislation by Ministers acting independently of parliamentary scrutiny and oversight runs counter to democracy, legal certainty, and the ultimate supremacy of Parliament.

The ultimate irony is that, for all the rhetoric of democracy and a return to parliamentary sovereignty, the powers on which Government is relying to leave the EU are royal, not democratic. Beyond the use of a Henry VIII clause, the question of who is permitted to trigger Article 50 currently awaiting appeal before the Supreme Court, is a fight between a royal prerogative and parliamentary sovereignty. In the current approach to Brexit, there seems a concerning commonality with the character of Henry VIII beyond his namesake clause in the use of unchecked executive power.

The (Possible) Fates of Fundamental Rights

To sketch out some of the possible consequences of the Great Repeal Bill and the Henry VIII clause on rights, we can follow the rather grim framework provided by Henry VIII’s wives. Their fates followed a (tragic) pattern: divorce, beheaded, died, divorce, beheaded and survived. We should rightly be concerned for the fates of fundamental rights protections post-Brexit in the divorce between the UK and the EU which encompasses not only the likely biggest divorce settlement in history, but will also see the division and separation of significant rights and protections away from UK citizens and residents.

The right to complain to, or seek a decision from, EU Institutions will be beheaded by Brexit. For instance, post-Brexit, citizens and residents will not have the opportunity to complain to the Commission for a breach of EU law or a violation of their rights by UK authorities. Under the current schema, if their complaint is upheld, the Commission can make a request to the UK that it respects the rights of its citizens and residents, or even bring proceedings in the Court of Justice for a violation of EU law. Referrals and the limited right of direct access to the EU’s court system could be similarly cut off by Brexit, relying on the domestic judicial system and common law and ECHR rights.

This is linked to a significant death in the UK arising from Brexit: the rights which arise from the Treaties, which cannot be restored or replicated in UK law. These rights would include, for example, the rights of EU citizenship, and free movement between Member States. Notably, however, it would mean the death of the application of the EU Charter of Fundamental Rights in the UK. The EU Charter, which can be relied upon in national proceedings when the subject-matter of the litigation falls within the scope of EU law has more normative clout than the comparable European Convention on Human Rights, operative in the UK under the Human Rights Act 1998. This means, for instance, that a violation of the EU Charter requires the disapplication of the offending law, while a violation of the ECHR under section 4 HRA 1998 can, at worst, only result in the issuing of a declaration of incompatibility or a signal to Parliament that it should consider amending the legislation.[3]

Serious questions highlight the uncertainties which will arise as a consequence of the divorce between the CJEU and the UK judicial systems. This will cause issues for the interpretation for law which has been wholesale incorporated into UK law: should UK courts follow subsequent cases regarding the interpretation of laws by the Court of Justice? In situations where the similarity of the law is required for reasons of trade (for example, product specifications), this would follow. Should claimants then continue to plead EU case law before British courts as persuasive precedent? And if so, how far, and in which areas? The uncertainty which would arise from the contrary interpretation of a UK law based on EU norms would also need resolution: should a subsequent judgment of the Court of Justice take precedence over a UK ruling? These are only some of the ‘known unknowns’ of Brexit, no doubt there are far many more currently unaccounted for.

Further, there will be the possible beheading of rights based on EU law, which can be replicated in UK law, but may be contentious in a new political regime: for example, consumer and workers’ rights. The existence of a Henry VIII clause endangers these rights and others, as they could be removed either accidentally or intentionally by amendment of the primary act by executive decision. As outlined above, there would be no recourse to EU institutions to challenge this, or to the Courts if there is not explicit protection for these rights at common law or in the ECHR.

After such gruesome fates – one survivor will be the ECHR which, through the Human Rights Act 1998, does not depend on the EU for its continued application in the UK law. As I’ve hypothesised, it’s possible – if unlikely - that we could witness a new relevance and force with the ECHR to fill a gap in rights protection. The ECHR does not have equal normative clout as directly effective EU rights, as evidenced by Benkharbouche & Janah. Other survivors would be rights that have existed at common law, such as the rights to personal security, liberty, and property. It’s possible even, that there will be a new impetus for a ‘British Bill of Rights’, however misplaced that optimism may be. 

Whatever ultimately survives the Great Repeal Bill and a Henry VIII clause, it will be a shadow of a larger, and likely uneulogized, death. The last seven decades have been building a progressive narrative of strengthening and enhancing fundamental rights across Europe and the world. Hopeful and aspirational international declarations of human rights have led progressively towards the adoption and implementation of more robust and justiciable instruments for the protection of fundamental rights in the domestic sphere. Amid political, social, legal and economic crisis, – this narrative is dying. In the current climate, it is perhaps more than the ghost of Henry VIII that will haunt us.
Image credit: Hans Holbein



[1] House of Lords Select Committee on the Scrutiny of Delegated Powers, HL 57 1992-93, para 10.
[2] HL Constitution Committee 6th Report, HL 51 2010-11, para 6.
[3] For example Benkharbouche v Sudan, and Janah v Libya wherein the Court of Appeal held that the embassies of Sudan and Libya could not rely on the State Immunity Act 1978 to bar employment rights claims under the EU Working Time Directive, as it would violate Article 47 CFR which in turn required the disapplication of the Act. The Court found a violation under Article 6 ECHR, but could only issue a declaration of incompatibility. 

Wednesday, 16 November 2016

The purely internal situation in free movement rules – Some clarity at last from the ECJ




Daniel Sarmiento, Professor of EU Law at the University Complutense of Madrid*

The Court of Justice’s judgment in Ullens de Schooten, rendered yesterday, is a very welcome development. The Court’s Grand Chamber has put some order in a traditionally chaotic and obscure area of the case law: the definition of a purely internal situation in free movement cases referred by national courts in the context of preliminary reference proceedings. It was a life or death issue for the success of the case, because depending on whether the claims of the applicant – who sought damages on the grounds that he was wrongly convicted of running an illegal laboratory – proved to have a trans-frontier link or not, he or she would benefit, or not, from free movement rules. After many years of disorderly case law, mostly in chambers of five judges, the Grand Chamber has taken the reins and provided clear guidance.

In a nutshell, Ullens de Schooten confirms in general terms what the Court seemed to be doing in the past: as a rule, transfrontier links with free movement rules are quite flexible and easy to prove, but when there is no link whatsoever, then only in four different scenarios a national judge will be able to rely on free movement rules. The scenarios are the following:

First, when it is not inconceivable that nationals established in other Member States have been or are interested in making use of those freedoms for carrying on activities in the territory of the Member State that had enacted the national legislation in question, and, consequently, the legislation, applicable without distinction to nationals of that State and those of other Member States, was capable of producing effects which were not confined to that Member State. This is the Blanco Perez y Chao situation.

Second, when the referring court makes a request for a preliminary ruling in proceedings for the annulment of provisions which apply not only to its own nationals but also to those of other Member States, and the decision of the referring court that will be adopted following the Court’s preliminary ruling will also have effects on the nationals of other Member States. This is the Libert situation.

Third, when free movement rules may prove to be relevant in a case confined in all respects within a single Member State, where national law requires the referring court to grant the same rights to a national of its own Member State as those which a national of another Member State in the same situation would derive from EU law. This is the Guimont situation.

Fourth, cases in which, although the facts of the main proceedings are outside the direct scope of EU law, the provisions of EU law have been made applicable by national legislation, which, in dealing with situations confined in all respects within a single Member State, follows the same approach as that provided for by EU law. This is the Dzodzi situation.

It appears from yesterday’s judgment that the Court is putting the burden of proving the existence of any of the enumerated situations on the referring judge. This appears to be the case, because the Court makes in paragraph 55 a very specific reference to article 94 of the Rules of Procedure, a provision that lists the contents that must be included in an order for reference pursuant to Article 267 TFEU. In other words: the Court will be happy to apply any of the four exceptions to the purely internal situation rule, but only if national courts make an effort to explain why the referred case falls under any of these four situations. If the national court simply makes no effort whatsoever, then the Court will do what it did yesterday in Ullens de Schooten: declare the absence of a transfrontier link and the lack of arguments justifying the application of any of the four situations.

This is good news for lawyers that deal with free movement rules, particularly before national courts, but it does not solve the genuine problem. In fact, the failings of the previous case-law were not only to be found in a lack of consistency, but also in the difficulty to apply the standards that have now been blessed by the Grand Chamber. Take the Blanco Pérez y Chao exception: to argue that it is not inconceivable that nationals established in other Member States have been or are interested in making use of free movement rules is not much help, because it is difficult to imagine a case in which a national from another Member State may not, in hypothesis, “be interested” in making use of free movement. The Opinions of Advocates General Wahl and Kokott in the cases of Venturini and ETI, respectively, show how tricky this criterion can be.

So the Court has taken an important step, but probably not enough to provide all the much-needed clarity that free movement rules still need. But it’s a first step in the right and very welcome direction.

The judgment also speaks highly of the Grand Chamber’s role as a forum in which to deliver clear guidance over past and erratic case law. This has always been the role of the Grand Chamber, but it sadly lost its way in the past years. For too long a time Grand Chamber judgments were cryptic, sometimes contradictory and lacking a lot of much needed legal reasoning. Things have improved in the past year, and this must be the result of the new President, who has voiced his priorities in public, among which stands out the need to recover the role of the Grand Chamber as a forum to set guidance and principle. Ullens de Schooten might be a little frustrating, but it does provide much more than the Grand Chamber of the past provided to its infinitely more frustrated readers.

*This post previously appeared on the Despite our Differences blog

Barnard & Peers: chapter 11, chapter 12, chapter 13, chapter 14, chapter 15

Photo credit: instructables

Saturday, 12 November 2016

Human Rights and the European Arrest Warrant: Has the ECJ turned from poacher to gamekeeper?



Steve Peers*

From its panicked conception in the febrile months following the 9/11 terrorist attacks, the European Arrest Warrant (EAW) has been the flagship of EU criminal law. Replacing traditional extradition law with a fast-track system which scraps most of the traditional restrictions on extradition, it has alarmed critics concerned by miscarriages of justice, but thrilled supporters who welcomed the speedier return to justice of a greater number of fugitives.

Despite qualms by national constitutional courts, the ECJ has long been insouciant about the human rights critique of the EAW. It dismissed a challenge to the validity of the EAW law on human rights grounds, and (in effect) ridiculed a national court which asked if it was possible to refuse to execute an EAW due to human rights concerns, answering a ‘straw man’ argument the ECJ invented instead of the serious questions sent by the other court. In its Melloni judgment, the ECJ placed a ceiling on the application of national human rights protection to resist execution of an EAW; but it never enforced a corresponding floor for those rights. Again and again, the Court ruled that national courts could only refuse to execute EAWs on the limited grounds expressly mentioned in the EAW law, instead focussing exclusively on the need to make the EAW system as effective as possible.

However, since the entry into force of the Lisbon Treaty, this staunch approach has been mitigated by the adoption of six new EU laws on various aspects of fair trial rights – five of which also confer procedural rights on fugitives challenging the application of an EAW. (On the implementation of the first two of these laws, see the report just adopted by the EU’s Fundamental Rights Agency). In the last year, the ECJ has begun to interpret these laws (see the judgments in Covaci, Balogh and Milev).

But even apart from these fair trials laws, the ECJ in the last eighteen months has begun to show a striking concern for ensuring at least some protection for human rights within the EAW system. Last year, in Lanigan (discussed here), the Court ruled that if a fugitive was kept in detention in the executing State while contesting an EAW there, the limits on the length of detention in extradition cases set out in the case law of the European Court of Human Rights (ECtHR) apply, by virtue of the EU Charter of Fundamental Rights.

This spring, the ECJ turned its attention to detention conditions in the Member State which issued the EAW. Following soon after concerns expressed by the German constitutional court on these issues (discussed here), the ECJ ruled in Aranyosi and Caldaruru that the German authorities, when executing EAWs issued by Hungary and Romania, had to consider concerns raised by the fugitives about prison overcrowding in those countries, which had led to ECtHR rulings finding violations of Article 3 ECHR (freedom from torture or other inhuman or degrading treatment or punishment). The national court had to apply a two-step procedure in such cases, assessing whether there was a) a systemic failure to ensure decent prison conditions in those States, and b) a ‘real risk’ that the individual fugitive would be subject to such conditions if the EAW was executed.

What if these tests were satisfied? The ECJ was unwilling to backtrack from its position that the list of grounds to refuse to execute an EAW set out in the EAW law is exhaustive. Instead, it ruled that the executing State’s authorities had to postpone execution of the EAW until the situation in the issuing State had improved. (The EAW law is vague about grounds for postponing the execution of an EAW, and the ECJ had already ruled in Lanigan that the deadlines to execute an EAW set out in the law could, in effect, be ignored if necessary). If the fugitive was detained in the executing State in the meantime, the limits on detention set out in Lanigan applied, with the additional proviso that a fugitive could not be detained indefinitely pending execution of an EAW. (In the later case of JZ, the ECJ aligned the definition of ‘detention’ in the EAW with the ECtHR case law on this issue).

This was only the beginning of the ECJ’s scrutiny of issuing States’ laws and practice in the EAW context. In Bob-Dogi, the Court ruled that Hungary could not simply issue EAWs as a stand-alone measure, with no underlying national arrest warrant, inter alia because the purpose of requiring the prior issue of a national arrest warrant was to ensure the protection of the suspect’s fundamental rights. The previously paramount objective of efficiency of the EAW system – which would obviously have dictated the opposite conclusion – was mentioned only in passing. Moreover, the Court side-stepped its prior refusal to accept additional grounds for refusal to execute an EAW, concluding that the EAW had not been validly issued in the first place.

Next, in Dworzecki, the ECJ insisted that a Member State issuing an EAW following a trial held in absentia had to have made proper efforts to find the fugitive before the trial. In this case, the law expressly allows for non-execution of the EAW.

Finally, in a trilogy of cases decided last week, the Court ruled that issuing Member States don’t have full discretion to decide what a 'judicial authority' is, for the purpose of issuing EAWs. The concept extended beyond judges to include those administering the justice system, such as Hungarian prosecutors (Ozcelik). However, it does not extend to the Swedish police (Poltorak), or to officials in the Lithuanian justice ministry (Kovalkovas). (British readers may wish to compare these rulings to the Supreme Court’s ruling in the Assange case).

Again, as in the Bob-Dogi judgment, the Court side-stepped the ‘exhaustive grounds for non-execution’ problem which it had previously created for itself, by ruling (in Poltorak and Kovalkovas) that the relevant EAWs had never been validly issued at all. Also, in an interesting use of ‘soft law’, the Court ruled that Sweden and Lithuania could not argue that those invalid EAWs should remain valid for a limited period until they changed their laws, since the Council had warned them back in 2007 in an evaluation report that these practices infringed the EAW law. Criminal defence lawyers – and justice ministry officials – may want to look at the Council evaluations of all Member States in detail in this light, since they contain many other criticisms of national implementation of the EAW.

Comments

Has the Court turned from poacher to gamekeeper of human rights in the EAW context? Certainly there are still many concerns about miscarriages of justice as regards the EAW (see the Fair Trials website, for instance). But the rulings suggest a significant change of direction, which addresses some concerns and may have opened up the door to addressing others. What might explain this turn-around?

One factor may be the ruling of the German constitutional court on detention conditions in the EAW context, although it’s notable that the ECJ was never previously receptive to constitutional courts’ concerns about the EAW. Another factor may be a willingness to compromise after the ECJ’s controversial ruling on EU accession to the ECHR, in which it lambasted the draft accession treaty for (among other things) not taking sufficient account of the ECJ’s case law on mutual recognition in Justice and Home Affairs matters, which only allowed for human rights to trump mutual recognition in ‘exceptional’ cases. It’s possible that having marked its territory in that judgment, the ECJ felt it could relax and adopt a more flexible approach of its own volition (and under its own control), which might facilitate discussions on renegotiation of the accession agreement.

Another aspect of the background to this case law may be concerns about the adequate protection of human rights and the rule of law in a number of Member States. The formal process for sanctioning or warning Member States about such concerns is set out in Article 7 TEU, but the EU is unwilling to use it at the moment. The preamble to the EAW law says that the EAW system can only be fully suspended as regards an entire Member State if Article 7 is invoked. The ECJ clocked that provision in Aranyosi and Caldaruru, but then concocted the compromise position of postponing execution of EAWs in individual cases until concerns about detention conditions could be addressed: a measured, individualised solution for these particular human rights problems with the EAW.

Furthermore, the guarantee of judicial control of the issue of EAWs in recent judgments is expressly justified by reference to ‘the separation of powers which characterises the operation of the rule of law’. Despite the reluctance of the EU to chastise Member States for systematic concerns about the rule of law, the CJEU’s rulings at least ensure that any general human rights concerns are addressed at the level of application of EU legislation.

Indeed, these recent judgments might not be the end of the story: they can fuel arguments for the postponement or invalidity or EAWs due to other human rights concerns too. In particular, fugitives could argue that the prospect of long pre-trial detention in another Member State is also a reason to postpone execution of an EAW – although this argument is only coherent if the fugitive is not being detained in the executing State in the meantime. Already the Aranyosi and Caldaruru judgment raises awkward questions about how to judge what happens in another Member State’s prisons – so much so that the German courts have referred the Aranyosi case back to the CJEU with further questions.  Postponing the execution of an EAW does not, by itself, tackle the underlying problem of prison overcrowding, and it leads to the risk that those who have committed crimes may consider moving to another Member State to increase their odds of enjoying de facto impunity for them.

This strengthens the case for EU legislative intervention as regards prison conditions and length of pre-trial detention in the EAW context. The Commission issued a Green Paper on this issue back in 2011, and Member States were not enthusiastic. But the Commission has indicated in light of the recent rulings that it may make a proposal in future. (See also the new report of the EU Fundamental Rights Agency on these issues). This would be a good opportunity to make further reforms to the EAW system, to require a proportionality check before issuing EAWs in the first place – so that no one is subject to an EAW for the theft of a piglet, or someone else’s beer at a house party – and to build in more frequent use of European Supervision Orders (a form of ‘Euro-bail’), the EU laws on transfer of prisoners and sentences, and the use of modern technology to conduct more criminal proceedings with the virtual (but not the physical) presence of the suspect (see generally the Ludford report on possible reforms of the EAW system). There is a better balance between effective prosecutions and human rights concerns waiting to be struck.

Barnard & Peers: chapter 9, chapter 25
JHA4: chapter II:3, chapter II:4
Photo credit: picture – alliance/Horst Galuch


* This post is based on a keynote speech I gave on 10th November 2016, at a conference on criminal justice and human rights organised by the EU Fundamental Rights Agency in Bratislava