Restoring the Borderless Schengen Area: Mission Impossible? Summary of a new report

 

Professor Steve Peers, Royal Holloway University of London

Photo credit: BlueMars, via Wikimedia Commons

My European Policy Analysis report on the amendments to the Schengen Borders Code, published today by the Swedish Institute of European Policy Studies (SIEPS), assesses the likely impact of the recently agreed amendments to the Schengen Borders Code. This blog post is a summary of the main points of the report.

The context of the report is the concerns about the reintroduction of border checks at the internal borders of Schengen countries in recent years for long periods by a number of Member States. The EU has embarked upon a strategy to ‘save Schengen’, in part by amending the Schengen Borders Code to change the rules on internal border checks (among other changes), but also by agreeing major changes to EU asylum law alongside a number of other measures, for instance in the area of further police cooperation. The amendments to the Borders Code, along with most of the other proposals (including the asylum law changes), have now been agreed (on the asylum law changes, see the series of analyses on this blog beginning here). The report assesses the details of the Border Code amendments in the broader context, analysing whether they are likely to ‘save Schengen’ and whether they raise human rights concerns in the process.

Introduction 

The Schengen system, initially in the form of the Schengen Convention agreed in 1990 but largely replaced by EU measures since, is intended to abolish internal border checks between (most) EU Member States, as well as four associated non-EU countries. This abolition is linked to harmonised checks on external borders with non-EU countries, a common short-erm visa policy for non-EU visitors, and a Schengen Information System listing non-EU persons to be denied entry and objects and persons to be stopped or tracked.

The Schengen Convention rules on internal and external borders are now set out in an EU Regulation known as the Schengen BordersCode, the most recent version of which dates back to 2016. Although the Code does not abolish internal border checks absolutely, their reimposition is meant to be strictly limited. Nevertheless, there have been many resorts to internal border checks in recent years, in particular due to concerns about migration control and security.  

The response has been a plan to ‘save Schengen’, in particular by means of amending the Borders Code along with other changes to EU law. To what extent will the recently agreed amendments achieve that end – and do they raise human rights concerns in attempting to do so?

Internal Border Controls

The report details the current practice of Member States, which as noted already has entailed recent frequent resort to border checks for long periods. It then describes the current legal framework, including the case law.

In particular, the case law has taken a mostly deferential approach to Member States imposing checks on the territory near borders, as an exercise of ‘police powers’, if this does not have an ‘effect equivalent to border checks’.  According to the CJEU, it is sufficient if there are some safeguards in place to ensure that such checks are targeted, even if their purpose is to combat irregular migration.

The current Borders Code allows internal border checks as such for up to 30 days, or for a longer period if the duration of the relevant event is foreseeable, in the ‘event of a serious threat to public policy or to internal security’; but the ‘scope and duration’ of the reintroduced checks ‘shall not exceed what is strictly necessary to respond to the reintroduced checks’. The reintroduction of controls may be continued for further renewable periods of up to 30 days, ‘taking into account any new elements’. But the maximum time to reintroduce border controls is six months, or two years in ‘exceptional circumstances’, where there is an EU-wide threat (this was triggered in response to the refugee crisis, but the two year period has expired).

According to the CJEU’s judgment in NW, interpreting these provisions strictly as a derogation from the general rule of abolition of border controls, the six-month time limit on the reintroduction of internal border controls that applies where there are no extraordinary circumstances could only be triggered again where there was a serious new threat.  There are more specific rules, depending on whether the reintroduction of border checks is foreseeable, urgent, or constitutes ‘exceptional circumstances’

New Amendments

The recently agreed amendments to the Borders Code, likely to be formally adopted later this spring and apply soon after, aim to address Member States’ concerns. They address a number of issues besides internal border controls, although some of those other issues are related to the broader challenges facing the Schengen system, for example changes to the Borders Code as regards border surveillance, and rules on responses to future public health crises such as the covid pandemic.

This report looks in more detail at the changes on four key issues: the instrumentalization of migrants; the definition of border checks; fast-track returns to other Member States, and the reintroduction of border controls.

Cases of instrumentalisation

The ‘[i]nstrumentalisation’ of migrants is defined (by cross-reference to a recently agreed asylum law, discussed here) as ‘where a third country or a hostile non-state actor encourages or facilitates the movement of third country nationals or stateless persons to the external borders or to a Member State, with the aim of destabilising the Union or a Member State, and where such actions are liable to put at risk essential functions of a Member State, including the maintenance of law and order or the safeguard of its national security’.

The preamble clarifies the definition further, stating that ‘[s]ituations in which non-state actors are involved in organised crime, in particular smuggling, should not be considered as instrumentalisation of migrants when there is no aim to destabilise the Union or a Member State’. Furthermore, ‘[h]umanitarian assistance should not be considered as instrumentalisation of migrants when there is no aim to destabilise the Union or a Member State’.

The amendments provide that ‘in particular’ Member States can temporarily close border crossing points or limit their opening hours in instrumentalisation cases. However, any limitations must be ‘proportionate’, and must take ‘full account of the rights of’ those with free movement rights, non-EU citizens with a legal right to reside, and non-EU citizens ‘seeking international protection’. The revised code will also have a new rule, subject to the same guarantees, that ‘Member States may, where a large number of migrants attempt to cross the external border in an unauthorised manner, en masse and using force, take the necessary measures to preserve security, law and order’.

Defining internal border checks

The agreed amendments, taking account of the case law, take a deferential approach to the exercise of police powers on the territory, including in border zones and for the purpose of immigration control, along with checks on public health grounds.

Fast-track returns

A new clause will provide for the fast-track transfer to another Member State of non-EU citizens ‘apprehended in border areas’, where the non-EU citizen was ‘apprehended during checks involving the competent authorities of both Member States within the framework of bilateral cooperation’, which may include ‘joint police patrols’; and ‘there are clear indications that [they have] arrived directly from another Member State’, as further explained, if it is ‘established that the third‑country national has no right to stay on the territory of the Member State in which he or she has arrived’.

However, this process cannot be applied to people with international protection, or to applicants for asylum; according to the preamble, the Dublin rules (which are themselves about to be revised) ‘should apply’ to asylum seekers.

Where the new fast-track transfer rules will apply, as a derogation from the usual obligation in the EU Returns Directive (the law which sets out general rules on irregular migration) to issue a return decision, the Member State which stopped the person may transfer them immediately to the Member State from which they arrived ‘in accordance with’ a process set out in a new Annex to the Code. This Annex will require the authorities to give reasons for the transfer by means of a standard form handed to the person concerned. There will be a right to appeal the transfer, but it will not have suspensive effect, and in the meantime the person concerned will be transferred within 24 hours.

The reintroduction of internal border checks and controls

There will be a series of amendments to the existing rules on reimposing internal border checks in the Borders Code. In particular, the rules on reintroducing border controls in cases requiring ‘immediate action’ will be amended, referring instead to ‘unforeseeable’ events, and allowing border controls to be reintroduced for a one-month period with extensions up to three months, instead of the current ten days with extensions up to two months.

In ‘foreseeable’ cases, national decisions to reintroduce internal border checks could, under the agreed text, be renewed and apply for a maximum period of two years, rather than six months at present – although in a ‘major exceptional situation’, a Member State could in future also apply two further extensions of six months each.

In the event of a public health crisis, internal border checks can be indefinitely renewed for six-month periods. The current ‘exceptional’ procedure for border checks for up to two years due to an EU-wide crisis will remain without amendment.

Assessment and conclusions

The report notes that in part the changes will entrench the status quo, because they either take account of the case law issued beforehand or while the proposal was under negotiation (on checks on the territory and on public health).

But some of the agreed amendments are genuinely new, most notably fast-track returns of irregular migrants (although not asylum-seekers) between Member States, longer renewals of national internal border control, potentially indefinite border controls on public health grounds (if authorised by the Council), and the instrumentalisation of migration. In effect these amendments circumvent CJEU case law as regards the application of the Returns Directive when border controls are reintroduced (for instance, the recent ADDE judgment), which as it stands prevents the instant return of non-EU citizens to other Member States.

As for the new provisions on instrumentalization, could they circumvent the case law requiring the application of asylum law in such cases? At first sight, the prospect of closing border posts might evade the obligation to consider asylum applications, by making them impossible to  lodge. However, applications might still be lodged by those entering illegally, and in any event the prospect of closing border posts will be explicitly subject to a requirement to take full account of the rights of asylum-seekers. Member States’ power to take ‘necessary measures’ to respond to entry by force will also be subject to this requirement. Also, the entire Borders Code is ‘without prejudice’ to the rights of refugees and asylum-seekers. It requires Member States to act in ‘full compliance’ with the EU Charter, the Refugee Convention, and ‘obligations related to access to international protection […] in particular […] non-refoulement’ in both cases. Therefore there is no plausible argument that the new provisions will legalise illegal ‘push-backs’ by Member States (see both ECHR case law and CJEU case law on this). 

The changes to the rules, for instance allowing for longer periods of legally authorised reintroduction of border controls, raise the question of how limited these controls will be in practice. There are no specific benchmarks available for the abolition of reintroduced border controls, and even if there were it is likely that such abolition – like the extension of the Schengen zone itself – would be determined by political rather than legal factors; it might be more difficult politically to abolish internal border checks the longer they have been applied. While there are legal constraints on the maximum time limit of the reintroduction of those controls, as recently emphasised by the CJEU, it might be wondered – in light, for instance, of frequent allegations of illegal push-backs at the external borders, and the current apparent practice of exceeding the current time limits anyway – whether Member States are sufficiently concerned to observe the rule of law in this field.

Nevertheless, the report concludes that it might be useful to attempt to introduce such benchmarks, at least politically, if the intent is to give an impetus to the aim of ending internal border checks across the Schengen area. It also makes the case for the Commission to produce guidance to ensure that the application of the rules on external border controls are consistent with human rights and asylum law obligations, taking account of case law of the CJEU and the European Court of Human Rights.

Judicial control over alleged breaches of fundamental rights in the implementation of Eulex Kosovo and Advocate General’s Ćapeta's Opinion in Joined Cases C-29/22 P and C-44/22 P

 

Antje Kunst*

Photo credit: Sharon Hahn Darlin, via Wikimedia Commons

Advocate General (‘AG’) Ćapeta delivered her Opinion in Joined Cases C‑29/22 P and C‑44/22, KS and KD, on 23 November 2023. She proposed that individuals may bring an action for damages against the EU before the EU Courts based on alleged breaches of fundamental rights in the implementation of an EU Common Security and Defence Policy (‘CSDP’) mission, Eulex Kosovo, and, related to the investigations that were carried out, during that mission, into the disappearance and killing of the applicants’ family members in 1999 in Pristina (Kosovo).

Introduction

In this case before the Grand Chamber, the main question is to what extent there is a limitation on the jurisdiction of the EU Courts in the Common Foreign and Security Policy (‘CFSP’), which includes CSDP missions, provided for by provisions of the EU treaties, and whether the Court of Justice of the European Union (CJEU) has jurisdiction to hear actions for damages allegedly caused by breaches of fundamental rights committed in the implementation of the Eulex Kosovo. This was a novel question before the Court.

The case concerns two individuals, KS and KD, who lost their direct family members in 1999 in the aftermath of the Kosovo conflict. Their murders and disappearances remain unsolved. In 2008, Eulex Kosovo was established as a CSDP mission, and one of its tasks was inter alia to investigate such crimes.  

This blog post concludes that in sensitive cases like the case of KS and KD involving an EU body, Eulex Kosovo, which carries out executive functions vis-à-vis individuals, it is imperative that EU Courts do not hide behind the ‘CFSP’ limitations. At stake are the rights of individuals whose family members' disappearances were not adequately investigated by the European Union.

Human Rights Review Panel to review complaints against Eulex Kosovo

The executive mandate of Eulex Kosovo, acting in part like a state, made it necessary to establish a body to review fundamental rights breaches by the mission. A year after Eulex Kosovo became operational, the Council established a Human Rights Review Panel (‘HRRP’) to review complaints of alleged human rights violations committed by Eulex Kosovo in the performance of its executive mandate.  The HRRP’s findings and recommendations were non-binding, and the Panel could not adopt a recommendation of monetary compensation.

Regarding KS, the HRRP determined that Eulex Kosovo had breached her rights under the ECHR by failing to conduct an effective investigation into the disappearance of her husband. Concerning KD, the HRRP concluded that Eulex Kosovo's inquiry into the abduction and killing of her husband and son was inadequate, leading to a violation of her rights under the ECHR.

In both cases, the HRRP made several (non-binding) recommendations to the Head of Mission of Eulex Kosovo. In the follow-up to the implementation of its recommendations, the HRRP essentially declared that the Head of Mission had only in part implemented its recommendations, but nonetheless decided to close the cases.

Decision to establish a review panel lacking the authority to enforce its rulings

Before the EU General Court in Case T-771/20, the case under appeal before the Court of Justice, the applicants contended that their action, brought on account of a breach of fundamental human rights, pertained to matters of a policy or strategic nature. In other words, they were related to defining Eulex Kosovo’s activities, priorities, and resources; as well as to the decision to establish a review panel lacking the authority to enforce its rulings or offer redress for identified breaches.

In the applicants’ view, the breaches of their fundamental rights arose from a lack of prioritisation, or a lack of the necessary resources, or appropriate personnel to enable Eulex Kosovo to carry out its executive mandate and thus fulfil the EU’s legal obligations. The breaches did not arise from malfunctions on the part of Eulex Kosovo, in those particular cases (para. 23 of the Order of the EU General Court in Case T-771/20).

The General Court held that it did not have jurisdiction ‘to review the legality of such acts or omissions, which relate to strategic choices and decisions concerning the mandate of a crisis management mission set up under the CSDP, which is an integral part of the CFSP, nor can it award damages to applicants who claim to have suffered harm as a result of those acts or omissions’ (para. 27 of the Order of the EU General Court).

Effective judicial protection requires review of CFSP decisions

AG Ćapeta in KS and KD, on appeal at the Court of Justice, observed that the inclusion of the CFSP in the EU constitutional framework means that the basic principles of the EU legal order apply to all activities of the EU undertaken within that policy, including in the area of the CFSP. The rule of law in the EU legal order required that the EU Courts ensure the lawfulness of the actions of EU institutions and bodies when they implement the CFSP (para. 83 of the Opinion).

To ensure the effective judicial protection of individuals who claim that their fundamental rights have been infringed by EU institutions or bodies in the exercise of the CFSP, the EU Courts must, in principle, have jurisdiction to hear such claims (para. 84 of the Opinion).

AG Ćapeta found that the provisions in the EU Treaties excluding the CFSP from the jurisdiction of the EU Courts can and should be interpreted as not applying to actions for damages for the alleged breach of fundamental rights resulting from a CFSP measure (para. 93 of the Opinion).

She considered that the EU Courts must interpret the EU Treaties in conformity with the principle of effective judicial protection. In this respect, she relied on the Opinion of AG Bobek in SatCen v KF, (Case C‑14/19 P, EU:C:2020:220), para. 69): ‘…Article 47 of the Charter does not allow the Court to rewrite the Treaties, but it does require the Court to interpret the existing provisions so that they can achieve their full potential to provide judicial protection to anyone concerned by acts of EU institutions and bodies’ (paras. 100 and 101 of the Opinion).

Judicial review of strategic decisions related to EU international missions

AG Ćapeta noted that there are strategic decisions over which the EU Courts lack jurisdiction. She elaborated on this in greater length in her Opinion in Neves 77 Solutions (delivered on the same day). Specifically, the EU Courts could not evaluate whether the EU should establish a mission in a particular part of the world. However, once a political decision to involve the EU in a specific country or conflict is made, the EU Courts must have the authority to scrutinise whether the implementation of such a decision is designed and executed in a manner that interferes disproportionately with human rights (para. 118 of the Opinion).  

In respect of the broad approach AG Ćapeta took, she clarified that some of those strategic decisions require more deference to the reasons put by the Council or other responsible body. The availability of funding for a particular mission might affect the rights of individuals whose family members’ disappearances were inadequately investigated. She then pointed out that the EU Courts must weigh such considerations against the broader financial and staff capacity of the EU, which manages missions globally and faces decisions on resource allocation. However, in her view, this did not entirely preclude the jurisdiction of EU Courts; instead, questions of deference and the intensity of scrutiny arise after jurisdiction is established (para. 119 of the Opinion).

Political and strategic decisions can never be in breach of fundamental rights

In situations where political or strategic decisions have the potential to violate fundamental rights, according to AG Ćapeta, the EU Courts should have the capacity to consider an individual's complaint. In this respect, the AG pointed out that the EU Courts are likely to show deference to the Council's reasons when assessing whether these decisions constitute a breach of fundamental rights (para. 120 of the Opinion). In light of her reflections, AG Ćapeta found that EU institutions and bodies are always bound by fundamental rights, and the choice to infringe those rights is not an available political or strategic choice, including in the area of the CFSP. There is a limit imposed on political and strategic decisions, as they can never be in breach of fundamental rights (para. 124 of the Opinion).

Comment

The accountability of EU international missions, like CSDP missions, has long been a concern. For the CJEU to decline jurisdiction for an action for damages brought by individuals based on an alleged breach of fundamental rights by the EU on the basis that EU law limits the jurisdiction of the EU Courts is problematic, especially considering this concern of lack of accountability. As a whole therefore, the Opinion of AG Ćapeta is a step in the right direction.

The case of KS and KD was also, previously, before a UK court and it was of the view that it did not have jurisdiction itself, given that in its view, the jurisdiction lay with the EU Court. To leave individuals in these type of cases without a judicial remedy, i.e. a national court and the EU Courts declining jurisdiction, is not acceptable. The essential entitlement to judicial protection for individuals affected by acts of EU institutions and bodies underscores the imperative to assert jurisdiction in these cases, just like the Court did in SatCen v KF.

Especially in sensitive cases like the case of KS and KD involving an EU body, Eulex Kosovo, which performs executive functions vis-à-vis individuals, it is crucial that EU Courts do not hide behind the ‘CFSP’ limitations. At stake are the rights of persons whose family members’ disappearances were not successfully investigated. AG Ćapeta correctly finds that only exceptionally, the constitutional role of the EU Courts can be limited.

EU law should be read as requiring respect for fundamental rights in all EU policies, and that it must be adhered to, and subject to judicial review. To assume jurisdiction in KS and KD-like cases ensures, in the words of AG Ćapeta, that CFSP decisions affecting individuals do not cross ‘red lines’ imposed by fundamental rights.

 

Comments were gratefully received from Prof. Graham Butler who has published an excellent analysis on the Opinion: https://eulawlive.com/op-ed-jurisdiction-of-the-eu-courts-in-the-common-foreign-and-security-policy-reflections-on-the-opinions-of-ag-capeta-in-ks-and-kd-and-neves-77-solutions-by-graham-butler/

 

*Antje Kunst is an international lawyer and a member of Pavocat Chambers advising and representing individuals in a wide range of matters in the field of the EU’s Common Foreign Security Policy (CFSP) and takes instructions from individuals challenging a wide range of decisions including EU employment cases to EU and UN sanctions before the EU courts and international bodies.

She was Counsel for KF before the Court of Justice of the European Union in Case C-14/19 P (SatCen v KF) and worked as a senior lawyer for the UN Mission in Kosovo.

 

The EU General Court’s judgment in the case of WS and Others v Frontex: human rights violations at EU external borders going unpunished

 

 

Francesca Romana Partipilo, PhD candidate in International Law at Sant'Anna School of Advanced Studies (Pisa) 

 

Photo credit: Rock Cohen, via Wikimedia commons

(see also critique of the judgment, by Melanie Fink and Jorrit Rijpma) 

 

On the 6th of September, the EU General Court dismissed a claim filed by a Syrian family who alleged to have suffered material and non-material damages – consisting in feelings of anguish, fear and suffering – at the hands of Frontex on the occasion of a return operation jointly carried out by the EU agency and the Hellenic Republic on the 20th of October 2016.

 

The case was filed in 2021, five years after the Syrian family was deported by plane to Turkey from the Greek island of Kos, despite having filed a request for international protection. The applicants, arrived on the island of Milos (Greece) on 9 October 2016 and subsequently deported to Turkey, maintained that, if Frontex had not infringed its obligations relating to the protection of fundamental rights in the context of joint operations – in particular the principle of non-refoulement, the right to asylum, the prohibition of collective expulsion, the rights of the child, the prohibition of inhuman and degrading treatment, the right to good administration and to an effective remedy – they would not have been unlawfully returned to Turkey and they would have obtained the international protection to which they were entitled, given their Syrian nationality and the situation in Syria at the material time. However, the Luxembourg-based court decided that, since Frontex does not have the competence to assess the merits of return decisions or applications for international protection, the EU agency cannot be held liable for any damage related to the return of refugees to Turkey. As explained by the EU General Court, Member States alone are competent to assess the merits of return decisions and to examine applications for international protection (para. 65). The judges added that, as regards return operations, under Article 27(1)(a) and (b) and Article 28(1) of Regulation 2016/1624, Frontex’s task is only to provide technical and operational support to the Member States and not to enter into the merits of return decisions.

 

At first glance, the judgment reveals an argumentative short-circuit. Whilst the examination of asylum applications undeniably falls outside Frontex’s competence, being attributed by EU law to the Member States of the EU, the imperative to respect human rights is contained in Frontex Regulation and in several other documents referring to the agency’s activities, thus representing a legal obligation which is binding on the agency. The fact that Frontex lacks the competence to examine the merits of asylum applications or return decisions does not exempt the EU agency from the respect of migrants’ human rights. As noted by the General Court itself (para. 63), “Regulation 2016/1624, in particular Article 6(3) thereof, provides that [Frontex] shall contribute to the consistent and uniform application of Union law, including the Union acquis concerning fundamental rights, at all external borders”. In addition, the Court stressed that “Article 34(1) of that regulation states that the European Border and Coast Guard shall ensure the protection of fundamental rights in the performance of its tasks under this Regulation in accordance with relevant Union law, in particular the [Charter of Fundamental Rights], relevant international law – including the 1951 Convention Relating to the Status of Refugees and the 1967 Protocol thereto and obligations on access to international protection, in particular the principle of non-refoulement’.”

 

In addition to the legal instruments binding Frontex to the respect of fundamental rights in its operations, references to human rights have been incorporated into Frontex official documents or press releases since the first years of its operations. For instance, in the annual report for 2008, for the first time, Frontex specified that “[f]ull respect and promotion of fundamental rights […] is the most important corner stone of modern European border management”. Similarly, the 2009 annual report stated that “full and sincere respect of fundamental rights is a firm and strategic choice of Frontex”. More recently, the now disgraced former director of Frontex, Fabrice Leggeri, declared that Frontex was “determined to uphold the highest standards of border control within [its] operations [and] to further strengthen the respect of fundamental rights in all [its] activities”.

 

In the light of these observations, it needs to be noted that Frontex’s actions in the case of WS and Others v Frontex could have resulted in chain (or indirect) refoulement. Considering that Turkey adopts substantial geographical limitations to the definition of refugee contained in the Refugee Convention, the country may not be considered a “safe third country” where asylum claimants can effectively apply for international protection. In fact, at the time of the ratification of the Additional Protocol to the Refugee Convention, in 1968, Turkey opted for a geographical limitation pursuant to Article 1b of the Convention, limiting the scope of the Convention to “persons who have become refugees as a result of events occurring in Europe”. Consequently, only asylum-seekers fleeing “events occurring in Europe” can enjoy refugee status in Turkey. This is confirmed by the circumstance that Turkey does not grant the status of refugees to people fleeing the war in Syria, but only offers them a form of temporary protection, pursuant to the Turkish Law on Foreigners and International Protection.

 

It should be noted that Turkey is a signatory of the European Convention of Human Rights, and thus legally bound by Article 3, prohibiting torture and inhuman or degrading treatment or punishment. As well known, in Soering v The United Kingdom the ECtHR established that, pursuant to Article 3, expulsion to torture is never permitted, even in cases where the returnee is not an asylum-seeker or refugee. Accordingly, Article 3 ECHR could have represented a solid legal basis for the protection of the applicants in the case of WS and Others v Frontex, even in the absence of a formal refugee status. Nonetheless, it should also be recalled that, in July 2016, following a failed coup, Turkey had declared a state of emergency and submitted a formal notice of derogation from the ECHR, under Article 15 of the ECHR. Whilst Article 3 ECHR belongs to the list of non-derogable rights, Turkey exploited the state of emergency to introduce a series of amendments to the Law on Foreigners and International Protection, including substantial changes relating to deportation orders and the suspensive effect of appeals against such orders. As a result of the amendments introduced in 2016, a deportation order could be issued at any time to certain applicants/holders of temporary protection (e.g. people suspected of being supporters of a terrorist organization or people who posed a public security threat, in the eyes of the government). For these groups of people, the appeal procedure no longer had a suspensive effect, therefore increasing the risk of refoulement, as noted by Amnesty International. As a consequence, it appears evident that people forcibly expelled to Turkey in 2016 could have suffered chain (that is indirect) refoulement to their countries of origin. Interestingly, this danger was explicitly acknowledged by the EU General Court itself, in the paragraph of the judgment where the Court noted that applicants feared “being returned to Syria by the Turkish authorities” (para. 68). Finally, it has been repeatedly noted that “procedural safeguards that are in place within the EU are not applicable to Turkey, leading to instances where the guarantees to the right to life and prohibition against torture are denied in direct violation of the principle of non-refoulement in the human rights context”. On the basis of such observations, it is evident that Frontex’s return operation was, at the very least, problematic under both EU and international law.

 

Under a different perspective, the case of WS and Others v Frontex reveals that the responsibility for human rights violations at EU borders may arise as a result of joint actions of States and international organizations (or their agencies). In these instances, interesting questions arise regarding the rules of attribution of conduct, the content and implementation of international responsibility. In the case at hand, while Frontex was under the legal obligation to respect the human rights of asylum-seekers under its jurisdiction and the principle of non-refoulement, Greek authorities had the duty to examine their application for international protection. In fact, as recalled by the European Court of Human Rights in the case Sharifi v. Italy and Greece (appeal no. 16643/09), failure to access the asylum procedure or any other legal remedy within the port of disembarkation constitutes a violation of Article 4 of Protocol no.4 (enshrining the prohibition of collective rejections). In that judgement, the Court highlighted the link between the collective expulsions of the applicants and the fact that they had been prevented from applying for international protection.

 

It should be mentioned that Greece has not ratified Protocol no.4 of the ECHR and therefore cannot be held responsible of a violation of its Article 4. Nonetheless, although not formally bound by Protocol no.4, Greece could still be held responsible of a violation of the Asylum Procedures Directive as well as the Dublin Regulation III, requiring Member States to allow asylum-seekers effective access to an asylum procedure which hinges on exhaustive and comprehensive information, as stressed by the ECtHR in Sharifi and Others v. Italy and Greece (para. 169).

 

With regard to the issue of shared responsibility, it is interesting to note that, alongside the complaint against Frontex before the EU General Court, the Syrian family also filed a complaint against the Hellenic Republic before the European Court of Human Rights. In this submission, the family alleged the violation of Articles 5(1), (2), and (4) of the European Convention on Human Rights, Article 4, Article 3, and Article 13 taken together with Articles 3 and 5 of the Convention. This choice was probably motivated by the circumstance that – as stated above – Greece has not ratified Protocol No. 4 of the ECHR. Apparently, the submission resulted in a friendly settlement between the family of asylum-seekers and the Hellenic Republic, pursuant to Article 39 of the Convention.

 

In conclusion, whilst human rights activists hoped that the case of WS and Others v Frontex would set an important precedent, the judgment of the General Court is both worrying and discouraging. It appears that Frontex got away – once again – with human rights violations. Since its creation, in fact, Frontex has received a considerable amount of criticism. In particular, observers and legal scholars have raised questions about whether and how core fundamental rights, particularly the right to life, the respect of human dignity, the right to an effective remedy and the right not to be sent back to torture, persecution and inhumane treatment (the principle of non-refoulement), are safeguarded at Europe’s external borders. In June 2021, the ONG Sea Watch published a report where it maintained that “[a]erial reconnaissance enables Frontex to gather extensive knowledge about developments in the Central Mediterranean Sea and relay information about boats in distress to the “competent authorities” […] When spotting a boat in the Libyan search and rescue zone, Frontex […] often only informs the Libyan authorities […], despite NGOs or merchant vessels also being in the vicinity. By forwarding the information to the Libyan Joint Rescue Coordination Centre and sometimes even directly guiding the so-called Libyan Coast Guard to the position of a boat, Frontex coordinates and facilitates the interceptions and pullbacks of people in distress to Libya”. Regrettably, the case of WS and Others v Frontex will be remembered as just another episode in which the EU agency disregarded its obligations and violated asylum-seekers human rights at European external borders without incurring in legal consequences.

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

Update to the Commentary on the EU Charter of Fundamental Rights: Article 47 and the rule of law

 

 

 

European norms on the independence of the judiciary and the rule of law

 

The following is a precise of the most recent developments on the question of independence of the judiciary and the rule of law. It is to be read in conjunction with paragraphs 47.349 to 47.359 in S. Peers, T. Hervey, J. Kenner, and A. Ward (eds.) The EU Charter of Fundamental Rights: a Commentary (2021, Bloomsbury, second edition).

 

Manifestly irregular judicial appointments

 

Manifestly irregular judicial appointments

 

1.      The question of manifestly irregular judicial appointments has been addressed in case law of both the European Court of Human Rights and the CJEU. The former tribunal has confirmed that Article 6(1) ECHR is also applicable to proceedings before constitutional courts. It follows that a panel of a constitutional court which includes an individual irregularly elected to this body, and manifestly violating, inter alia, the said constitutional court’s previous judgments, cannot be said to be a ‘tribunal established by law’.[1] In two subsequent judgments, the European Court of Human Rights has further established that Poland’s two newly chambers created by Poland’s current governmental coalition do not constitute tribunals established by law within the meaning of Article 6(1) ECHR due inter alia to the undue influence exercised by the legislative and executive powers and the fundamental irregularities that adversely affected the procedure for appointing judges to these two new chambers.[2]

 

2.      The CJEU has equally held in its ruling in Case C-487/19 with reference to the second subparagraph of Article 19(1) TEU and the principle of primacy of EU law that the order by which a judge dismissed the action of a judge transferred against his will must be declared null and void if the appointment of the deciding judge ‘took place in clear breach of fundamental rules which form an integral part of the establishment and functioning of the judicial system concerned’ and ‘the integrity of the outcome of that procedure is undermined … with the result that that order may not be regarded as being made by an independent and impartial tribunal previously established by law’.[3] Most recently, the European Commission launched its first ever infringement action against a Member State on account of the unlawful appointments made to the national constitutional court in breach of the fundamental rules forming an integral part of the establishment and functioning of the system of constitutional review in the Member State, which led the Commission to conclude that the said constitutional court no longer meets the requirements of a tribunal previously established by law, as required by Article 19(1) TEU.[4]

 

3.      It is now firmly established that compliance by a Member State with the values enshrined in Article 2 TEU is a condition for the enjoyment of all of the rights deriving from the application of the Treaties to that Member State.  In consequence, a Member State cannot amend its legislation in such a way as to bring about a reduction in the protection of the value of the rule of law, a value which is given concrete expression by, inter alia, Article 19 TEU. The Member States are thus required to ensure that, in the light of that value, any regression of their laws on the organisation of justice is prevented, by refraining from adopting rules which would undermine the independence of judges.[5]

 

4.      Development of jurisprudence on manifestly irregular judicial appointments has not emanated exclusively from Poland. In this context, one must also take due note of the CJEU’s Grand Chamber judgment as regards the provisions governing judicial appointments in Malta in which the Court was asked inter alia to clarify whether the second subparagraph of Article 19(1) TEU and Article 47 of the Charter must be interpreted as precluding national laws conferring a decisive power to the Prime Minister with respect to the appointment of new judges.[6] For the Court, Article 47 of the Charter was not, as such, applicable to the dispute, because the plaintiff was not relying on a right conferred on it by a provision of EU law. The second subparagraph of Article 19(1) TEU was, by contrast, relevant and applicable as it sought ‘to ensure that the system of legal remedies established by each Member State’ guaranteed ‘effective judicial protection in the fields covered by EU law’.[7] For the first time, the Court also explicitly held that ‘the second subparagraph of Article 19(1) TEU must be interpreted as precluding national provisions relating to the organisation of justice which are such as to constitute a reduction, in the Member State concerned, in the protection of the value of the rule of law, in particular the guarantees of judicial independence’.[8] The Court did not, however, detect any regression as far as the situation in Malta was concerned, to the extent the process of appointing judges appeared to have been made more objective following the establishment of a sufficiently independent Judicial Appointments Committee.

 

 

Objective legitimate doubts with respect to independence

 

5.      The CJEU has clarified that the second subparagraph of Article 19(1) TEU must be interpreted as precluding national legislative changes where it is apparent that these changes ‘are capable of giving rise to legitimate doubts, in the minds of subjects of the law, as to the imperviousness of the judges appointed, by the President of the Republic of Poland, on the basis of those decisions of the KRS [National Council of the Judiciary], to external factors, in particular, to the direct or indirect influence of the legislature and the executive, and as to their neutrality with respect to the interests before them and, thus, may lead to those judges not being seen to be independent or impartial with the consequence of prejudicing the trust which justice in a democratic society governed by the rule of law must inspire in subjects of the law’.[9] This rule extends to appointment of judges to managerial posts and to the designation of prosecutors,[10] with the CJEU having held that Member State rules governing the personal liability of judges for judicial error can be inconsistent with Article 2 TEU and the second subparagraph of Article 19 (1) TEU.[11] 

 

6.      The same applies to the appointment of judges to disciplinary chambers. Such appointments are to contain safeguards to secure the independence of judges subject to disciplinary regimes,[12] seen from this objective standard. Further, in order to avoid any risk of a disciplinary regime  being used as a system of political control of the content of judicial decision, such a regime must include rules defining the forms of conduct which constitute a disciplinary offence,[13] and with sufficient clarity.[14] 

 

7.      In addition to this, too broader a discretion in the hands of an individual judge in the designation of the competent disciplinary tribunal to adjudicate on a given case is inconsistent with the requirement under EU law (notably Articles 19 (1) TEU,  47 and 48 of the Charter) for tribunals to be ‘established by law’.[15] The rights of the defence and adjudication within a reasonable time are also to be protected in such proceedings.[16]

 

8.      Finally, given that the Article 267 reference mechanism is a keystone of the EU judicial edifice, provisions of national law which expose national judges to disciplinary proceedings as a result of the fact that they made a reference for a preliminary ruling to the CJEU cannot be permitted.[17] Equally, objections to the effect that the referring body did not amount to a ‘court or tribunal’ under Article 267 TFEU for failure to comply with domestic requirements with respect to its composition will not be reviewed by the CJEU, given the established rule that ‘it is not for the Court, in view of the distribution of functions between itself and the national court, to determine whether the order for reference was made in accordance was made in accordance with the rules of national law governing the organisation of the courts and their procedure.’[18] The CJEU is therefore bound by an order for reference in so far as that order has not been rescinded on the basis of means of redress provided by Member State law.[19]

 

9.      Thus, a rule of national law cannot prevent a national court from exercising the discretion to refer under Article 267 TFEU, which is inherent part of the system of cooperation between the national courts and the Court of Justice established in Article 267 TFEU. In consequence, a national court must be able to maintain a reference for a preliminary ruling after it has been made. A national rule the effect of which may inter alia be that a national court will choose to refrain from referring questions for a preliminary ruling to the Court in order to avoid having the case withdrawn from it is detrimental to the prerogatives thus granted to national courts and tribunals by Article 267 TFEU and, consequently, to the effectiveness of the cooperation between the Court and the national courts and tribunals established by the preliminary ruling mechanism. Consequently, while it is in principle permissible for a Member State, for example, to amend its domestic rules conferring jurisdiction, with the possible consequence that the legislative basis on which the jurisdiction of a national court which has made a reference for a preliminary ruling has been established will disappear, or to adopt substantive rules that have the incidental consequence of rendering the case in which such a reference was made devoid of purpose, a Member State cannot, without infringing Article 267 TFEU, read in conjunction with the third subparagraph of Article 4(3) TEU, make amendments to its national legislation the specific effects of which are to prevent requests for a preliminary ruling addressed to the Court from being maintained after they have been made, and thus to prevent the latter from giving judgment on such requests, and to preclude any possibility of a national court repeating similar requests in the future.[20] Similarly, EU law precludes a national supreme court from declaring a request for a preliminary ruling submitted by a lower court unlawful on the ground that the questions are not relevant and/or necessary with EU law directly granting national courts the authority to disregard any national judicial practice which is prejudicial to their right to make a reference to the Court of Justice.[21]

Consequences following from the obligations enshrined in Article 19 (1) TEU

 

10.  Where it is proved that the second subparagraph of Article 19(1) TEU has been infringed, the principle of primacy of EU law must be interpreted as requiring the referring court to disapply relevant national provisions, even in the face of impediments to so doing under domestic constitutional law.[22] Interim relief must also be available under Member State law to guarantee the independence of the judiciary,[23] just as it is before the CJEU to secure compliance of a Member State with a judgment issued in consequence of a direct action instituted by the Commission for non-compliance with respect for the rule of law and the independence of the judiciary inconsistently with Article 2 TEU and the second sub-paragraph of Article 19(1) TEU.[24]  Pending a ruling on independence, a judge should not be appointed,[25] and any order issued by such a judge must be voided, in accordance with the primacy of EU law.[26]

 

11.   More broadly, the second subparagraph of Article 19(1) TEU requires Member States to provide remedies that are sufficient to ensure effective legal protection, within the meaning in particular of Article 47 of the Charter, in the fields covered by EU law, meaning that the latter provision must be duly taken into consideration for the purposes of interpreting the second subparagraph of Article 19(1) TEU.[27] Given that the Article 47 of the Charter has been held to have direct effect,[28] the second subparagraph of Article 19(1) TEU imposes on the Member States a clear and precise obligation as to the result to be achieved and that obligation is not subject to any condition as regards the independence which must characterise the courts called upon to interpret and apply EU law.[29]  Under the second subparagraph of Article 19(1) TEU, every Member State must ensure that the bodies which, as ‘courts or tribunals’ within the meaning of EU law, come within its judicial system in the fields covered by EU law and which, therefore, are liable to rule, in that capacity, on the application or interpretation of EU law, meet the requirements of effective judicial protection.[30]

 

12.  The remedial rights of Member States are protected, in the sense that the CJEU has ruled that it had jurisdiction to judicially review a resolution of the European Parliament on a proposal calling on the Council of the European Union to determine the existence of a clear risk of a serious breach of the values on which the European Union is founded.[31]

Photo credit: Razvan Orendovici, via wikicommons

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[1]Xero Flor w Polsce sp. z o.o. v. Poland, CE:ECHR:2021:0507JUD000490718. For further analysis, M. Szwed, ‘What Should and What Will Happen After Xero Flor: The judgement of the ECtHR on the composition of the Polish Constitutional Tribunal’, VerfBlog, 9 May 2021, <https://verfassungsblog.de/what-should-and-what-will-happen-after-xero-flor>; M. Leloup, ‘The ECtHR Steps into the Ring: The Xero Flor ruling as the ECtHR’s first step in fighting rule of law backsliding’, VerfBlog, 10 May 2021, <https://verfassungsblog.de/the-ecthr-steps-into-the-ring>.

[2] See Judgment of 22 July 2021, Reczkowicz v. Poland, CE:ECHR:2021:0722JUD004344719 (the Disciplinary Chamber of the Poland’s Supreme Court is not a tribunal established by law); Judgment of 8 November 2021, Dolińska-Ficek and Ozimek v. Poland, CE:ECHR:2021:1108JUD004986819 (the Chamber of Extraordinary Review and Public Affairs of Poland’s Supreme Court is not an independent and impartial tribunal established by law).

[3] Case C-487/19, W.Ż., EU:C:2021:798, paragraph 162. See also Opinions of AG Tanchev in W.Ż., C-487/19, EU:C:2021:289 and M.F., C-508/19, EU:C:2021:290.

[4] European Commission, Rule of Law: Commission launches infringement procedure against Poland for violations of EU law by its Constitutional Tribunal, Press release IP/21/7070, 22 December 2021: https://ec.europa.eu/commission/presscorner/detail/en/IP_21_7070.

[5] E.g. judgment of 15 July 2021, Commission v Poland (Régime disciplinaire des juges) EU:C:2021:596, [51], (referring to judgments of 20 April 2021, Repubblika, C‑896/19, EU:C:2021:311, [63 to 65] and the case-law cited, and judgment of 18 May 2021,  Asociaţia ‘Forumul Judecătorilor din România’ and Others, C-83/19, C-127/19, C-195/19, C-291/19, C-355/19, and C-397/19, EU:C:2021:393, [162]. For a transversal and comprehensive overview of the Court’s case law starting with ASJP, C-64/16, EU:C:2018:117 and ending with Repubblika, C-896/19, EU:C:2021:31, see L Pech and D Kochenov, Respect for the Rule of Law in the Case Law of the European Court of Justice: A Casebook Overview of Key Judgments since the Portuguese Judges Case (Stockholm, SIEPS, 2021).

[6] Judgment of 20 April 2021, Repubblika v Il-Prim Ministru, C-896/19, EU:C:2021:31.

[7] [52].

[8] [65].

[9] Judgment of 2 March 2021, A.B. et al (Appointment of judges to the Supreme Court – Actions), C-824/18, EU:C:2021: [153], [150] and [167]. See further judgment of 15 July 2021, Commission v Poland (Régime disciplinaire des juges), C-791/19, EU:C:2021:596, [99 to 110]. See further on Poland’s K.R.S, the judgments of 19 November 2019, A.K. and others (Independence of the Disciplinary Chamber of the Supreme Court, C-585/18, C-624/18, and C-625/18, EU:C:2019:982, and of 2 March 2021, AB and Others, C-824/18; EU:C:2021:153.

[10] Judgment of 18 May 2021, Asociaţia ‘Forumul Judecătorilor din România’ and Others, C-83/19, C-127/19, [C-195/19, C-291/19, C-355/19, and C-397/19, EU:C:2021:393

[11] Ibid, [224 to 241].

[12] See most recently judgment of 15 July 2021, Commission v Poland (Régime disciplinaire des juges), C-791/19, EU:C:2021:596. For a The rules developed in the context of disciplinary procedures have been extended by the CJEU to the secondment of judges, see the judgment of 16 November 2021, WB, C-748/19, EU:C:2021:931, and transfer of judges to another court without consent, judgment of 6 October 2021, WZ, C-487/19, EU:C:2021:798, [114]

[13] Judgment of 15 July 2021, Commission v Poland (Régime disciplinaire des juges), C-791/19, EU:C:2021:596, [134]. For further analysis, see L. Pech, ‘Protecting Polish Judges from Political Control: A brief analysis of the ECJ’s infringement ruling in Case C-791/19 (disciplinary regime for judges) and order in Case C-204/21 R (muzzle law)’, VerfBlog, 20 July 2021: https://verfassungsblog.de/protecting-polish-judges-from-political-control/

[14] Ibid [140] and the case law cited.

[15] Ibid [164 to 176]. See recently on the concept of ‘established by law’ the Opinion of Advocate General Bobek of 8 July 2021, C-132/20, Getin Noble Bank, EU:C:2021:557, judgment pending. For a critical assessment of this Opinion, see L. Pech and S. Platon, ‘How not to deal with Poland’s fake judges’ requests for a preliminary ruling: A critical analysis of AG Bobek’s proposal in Case C-132/20’, Verfblog, 28 July 2021: https://verfassungsblog.de/how-not-to-deal-with-polands-fake-judges-requests-for-a-preliminary-ruling/

[16] Ibid [187 to 214]. See further on the rights of the defence, in the context of the presumption of innocence with respect to termination of the secondment of a judge, the judgment of 16 November 2021, WB, Joined Cases C-748/19 and C-754/19, EU:C:2021:931 [88-89]

[17] Ibid [227] and the case law cited. See also the judgment of 23 November 2021, IS (Illegality of the order for reference), C-564/19, EU:C:2021:949.

[18]  Judgment of 16 November 2021, WB and Others, Joined Cases C-748/19 to C-754/19, EU:C:2021:931, [44]

[19] Ibid. See also the judgment of 2 March 2021, AB and Others, C-824/18; EU:C:2021:153 [74 and 75].

[20] Judgment of 2 March 2021, AB and Others, C-824/18; EU:C:2021:153, [93 – 95], referring to, inter alia, judgment of 19 November 2019, A.K. and others (Independence of the Disciplinary Chamber of the Supreme Court, C-585/18, C-624/18, and C-625/18, EU:C:2019:982. See also [141] of the judgment of 2 March 2021, AB and Others, C-824/18; EU:C:2021:153.

[21] Judgment of 23 November 2021, IS (Illegality of the order for reference), C-564/19, EU:C:2021:949.

[22] Judgment of 18 May 2021, Asociaţia ‘Forumul Judecătorilor din România’ and Others, C-83/19, C-127/19, C-195/19, C-291/19, C-355/19, and C-397/19, EU:C:2021:393 [242 to 252]. See also judgments of 6 October 2021, WZ, C-487/19? EU:C:2021:798 [155 to 161], and of 2 March 2021, AB and Others, C-824/18; EU:C:2021:153, [81] and [140 to 148]; judgment of 21 December 2021, Euro Box Promotion e.a., C-357/19, C-379/19, C-547/19, C-811/19 and C-840/19, C:2021:1034. 

[23] Judgment of 6 October 2021, WZ, C-487/19? EU:C:2021:798 [142]

[24] E.g. judgment of 6 October 2021, Poland v Commission, C-204/21 R – RAP, EU:C:2021:834; judgment of 27 October 2021 R, Commission v Poland, C-204/21 R, EU:C:2021:878.

[25] Judgment of 6 October 2021, WZ, C-487/19, EU:C:2021:798 [143].

[26]  Ibid, [155]

[27]  Judgment of 2 March 2021, AB and Others, C-824/18; EU:C:2021:153, [143], referring to, inter alia, judgment of 19 November 2019, A.K. and others (Independence of the Disciplinary Chamber of the Supreme Court, C-585/18, C-624/18, and C-625/18, EU:C:2019:982.

[28] Ibid, [145].

[29] Ibid, [146].

[30] Ibid [114] and the case law cited.

[31] Judgment of 3 June 2021, Hungary v European Parliament, C-650/18, EU:C:2021426. See also the Opinion of Advocate General Bobek of 3 December 2020, EU:C:2020:985, and the Opinion of Advocate General Sánchez Bordona, Hungary v European Parliament and Council, C-156/21, EU:C:2021:974.