Lisbon Treaty & future 2
Helen Toner
Outline …
Theme to examine Justice: Court of Justice – jurisdiction and role: past, present and future
Including cases to explore how this role is developing and emerging as it is now an important emerging institutional influence
Court of Justice
Originally limited jurisdiction – 3rd Pillar generally
Title IV EC in Amsterdam extended this but still restrictions remained until Lisbon: particularly, restriction to courts of last instance
Continuing arguments and discussions over extension of this
What significance? Really quite limited number of cases
before 2009 Eg many Dublin cases re Greece went
through Strasbourg not Luxembourg Prevented the ECJ from playing proper
role vindicating rule of law and interpreting/clarifying legislation
Recent nature of legislation also relevant
Special procedures?
Special procedures in ECJ introduced to address issues of speed and workload which were the reason for restricted jurisdiction
Urgent procedures Accelerated procedures
Accelerated procedure
Accelerated procedure 104a Statute of Court
Applicable generally, not just to FSJ matters – basically speeds up normal procedure
Urgency procedure 104b Statute of Ct Added 2008 for FSJ cases, has been
described as slightly ‘second best’ procedure in terms of transparency, publication and AG’s role
Particularly for urgent cases eg involving custody of children or detention. Likely to be used most in migration for cases involving detained migrants
Intended to deal with cases in weeks
Change in Lisbon Treaty
Lisbon Treaty essentially normalised ECJ jurisdiction
Now permits any court to send case to the ECJ, though internal security restriction remains
Future role of ECJ? Can be anticipated to be significantly more
important than has been so far First reference from lower court already
(Diouf) Already occasional references to court
judgments in reviews of the asylum legislation
What kind of contribution to expect? Is there enough now to make a preliminary assessment?
EP v Council First major immigration case on FR Directive:
challenges waiting periods and child age provisions, held no violation in Directive
A disappointment? Pushing responsibility to MS too much?
Yet does recognise the importance of Fundamental Rights, esp Art 8 and family life
And flexible interpretation of Directive to allow MS room to comply and stresses obligation to do so
Giving with one hand, taking with the other?
Chakroun
Indication of real willingness to scrutinise details of family reunification policies intensively
Level of minimum income set at 120% minimum wage – prevented automatic assistance and was average level above which discretionary assistance stopped
Chakroun Insistence on scrutiny of
circumstances of each individual case and the general rule of 120% prevented that
Special assistance on an individual basis should not be ruled out
Distinction between newly arrived and existing family arrangements also not permitted
Elgafaji
Subsidiary protection case – risk of individual harm arising from indiscriminate generalised violence – paradoxical marriage of these two terms!
15(1)b&c Refugee Definition Directive
Situation in Iraq
Elgafaji Complex but fairly generous interpretation
of the terms of the Directive – examining situation together with applicant’s particular circumstances – not needed specific targeting, but indiscriminate violence only very exceptionally will qualify
Independence of Art 15(c) QD from ECHR protection
But in any event held compliance with ECHR Article 3, so no amendment of this bit of the Directive proposed in the amending recast
Elgafaji
Although the judgment can be welcomed
Little discussion of humanitarian law, UNHCR, travaux preparatoires, international criminal law, legal literature
Petrosian Dublin transfer case Was 6 month time limit for transfer to take
place before host state had to keep and process the asylum application to run from final determination of appeal or from decision granting suspensive effect?
Held from final ruling not initial suspensive ruling
Too pragmatic and quick to see problems?
Petrosian
Yet also aware of the need for good decisions, aware of limits of procedural harmonisation and of possible undue pressure on States not to introduce suspensive appeals if they trigger time limit?
Relatively ‘technical’ decision? (Garlick)
Abdulla Deals with standard and burden of proof
in withdrawing refugee status Applies same burden and standard of
proof on withdrawing status Also deals with sensitive issue of
provision of protection by non-state actors/international organisations – inserted into Directive
Abdulla
Affirms respect for Geneva Convention and Charter of Fundamental Rights – but how deeply does it engage with international law and caselaw?
Does accept some aspects of Directive that have been questioned and criticised (international organisations providing effective protection)
Zurita Garcia Schengen borders code and CISA Did they require expulsion and prevent
system of administrative fine on first apprehension of irregular migrant?
Pragmatic and realistic approach to this – one isolated version seemingly suggesting obligation outweighed by several other factors and other language versions suggesting no obligation
Kadzoev
Detention under Returns Directive – urgency procedure used
Early implementing legislation – periods of time before directive came into force – detention under other powers – what if no further detention permitted?
Kadzoev
Legislation was intended to implement the whole directive so looked at gaps
Time in detention before directive came into force was considered – detention under other powers excluded – must be released if no further grounds for detention
Kadzoev
Credible and very welcome vindication of the rule of law and individual freedom throughout
Resulted in the more or less immediate release of Kadzoev from Bulgarian detention
Bolbol Status of Palestinian under 12(1)a of
Qual Dir, deriving from Art 1D of 1951 Convention
Exclusion from Refugee Convention (and Directive) if receiving assistance – or eligible to receive?
UNHCR had expressed view, admittedly non-binding, Ct disagreed in favour of narrower view of the exclusion
Melki & Abdali
Schengen border controls within border zone … (a) systematic ID checks (b) within border zone and (c) independent of conduct of person concerned
Prohibited by Art 67 TFEU and Reg 562/2006 if they have effect equivalent to border crossing checks
Melki & Abdali Art 67 TFEU provides that the EU ‘shall
ensure’ absence of border controls, so refers on to secondary legislation
Distinction between (impermissible) border controls and certain (permissible) checks in border areas. Provisions must have framework in place to ensure the authorities exercising this power do not exercise them in a manner that allows them to take on the nature of systematic border checks
Other pending cases? Gataev – arrest warrant and asylum legislation
interaction, transfer between member states and allegation of fleeing from persecution/prosecution in MS; (urgent procedure but removed from register)
Diouf – appeal against use of accelerated procedures – under Art 39 Procedures Directive or as issue of right to effective remedy under general principles of law
D and B – serious crimes, interaction of exclusion from asylum law and membership of/involvement in listed terrorist organisations
General conclusions Slow start Not much evidence of court being
overwhelmed by excessive caseload! But things will certainly speed up now
Some sensitive and important issues have arisen and are pending – Court can only develop an increasingly important crucial role – is it equipped?
General conclusions Court has shown enough evidence to be
optimistic but only cautiously at this stage Is arguably capable of ‘taking rights
seriously’ within the constraint of the legislative framework, but some concerns do remain
More engagement with other caselaw, other international law, literature, is arguably necessary and will certainly enrich courts consideration
Fundamental Rights Stockholm Programme ‘The challenge will be to ensure respect
for fundamental freedoms and integrity while guaranteeing security in Europe. It is of paramount importance that law enforcement measures and measures to safeguard individual rights, the rule of law, and international protection rules go hand in hand in the same direction and are mutually enforced’
Fundamental Rights
How will this happen? Lisbon Treaty Changes – Charter and ECHR
A new era for rights protection? Especially in light of comments in Stockholm programme
Monitoring, enforcement, role of Fundamental Rights Agency?
Fundamental Rights
Yet the Stockholm programme has been criticised for falling short and for emphasising the AFSJ for ‘citizens’ – if the emphasis is entirely on citizens where does non-discrimination and equality, rights of non-citizens, come in?
Charter of Fundamental Rights Initial legal status not legally binding,
development and drafting building on ECHR and national traditions to make rights more visible
Lisbon Treaty will give this a new legal status, the same as primary Treaty law
But with complex ‘opt-outs’ in terms of court justiciability - what will this mean?
Potential significance?
Harder legal status for ECJ to use to add to other fundamental rights arguments? It is common now to find reference to Charter in ECJ rulings to back up/reinforce conclusions already.
Greater role in monitoring and pre-legislative scrutiny? – tho has already been used here for some time.
Protocol Article 1
1. The Charter does not extend the ability of the Court of Justice of the European Union, or any court or tribunal of Poland or of the United Kingdom, to find that the laws, regulations or administrative provisions, practices or action of Poland or of the United Kingdom are inconsistent with the fundamental rights, freedoms and principles that it reaffirms.2. In particular, and for the avoidance of doubt, nothing in Title IV of the Charter creates justiciable rights applicable to Poland or the United Kingdom except in so far as Poland or the United Kingdom has provided for such rights in its national law.
Protocol
Article 2To the extent that a provision of the Charter refers to national laws and practices, it shall only apply to Poland or the United Kingdom to the extent that the rights or principles that it contains are recognised in the law or practices of Poland or of the United Kingdom.
Significance undermined? What does the Protocol mean in terms of
justiciability and use in court mean and what is its significance? Use in court precluded perhaps, and emphasis on national laws where Charter rights are subject to this, but this does not mean not legally binding in principle.
Again, this means more fragmentation and undermining of ‘fundamental’ nature of these rights? Deeply worrying symbolism?
Potential significance?
What migration-law related rights could be strengthened?
Obviously asylum (expressed as right of individual?), family and private life, torture etc, also right to fair trial, rights of child in relation to minors, education, legal aid, privacy and data protection etc
ECHR accession Lisbon Treaty Negotiations now opened for the
accession and practical issues to be resolved
Judge in Strasbourg – Protocols – joining Member States and EU – exhaustion of EU ‘domestic’ remedies – relationship of the two legal systems and courts
ECHR accession
Most obvious impact is the individual complaint mechanism, potential subjection of the ECJ and EU legal order, including legislation, to direct outside independent scrutiny, co-defending procedures, exhaustion of remedies in EU law, and how the ECtHR and ECJ will interact
Pre-legislative scrutiny? ‘Locking-in’ Fundamental Rights from
outset of legislative and policy process? ‘Impact Assessments’ since 2005
already to respond to this Commission conducted review of how
this operates in 2009 with attention to asylum
Is it delivering on its potential promise?
Pre-legislative scrutiny?
Recall recitals at the beginning of Directives anyway ...
Already asserts compliance with rights, Refugee Convention, ECHR, etc etc
How independent are Impact Assessments conducted by the Commission itself?
Asylum package scrutiny Reception Conditions – detention issues,
including procedural rights, effective remedy, and rights of child
Dublin – family unity ‘strengthened’ Eurodac – data protection issues examined
closely YET concerns still remain about how effective
this is, how robust the scrutiny mechanisms are, the input that goes into them, and how prominent rights are among other issues
Pre-legislative scrutiny? Still no independent third section of
fundamental rights impacts alongside trilogy of ‘economic social and environmental’ impacts – tho’ new Commissioner has now proposed to develop this at some stage, it is not yet in place
But clearly a step forward in attempting to lock in fundamental rights protection and scrutiny from early stage and ensuring clarity in doing so
Role of new Commissioner Justice, citizenship and fundamental rights
separated from internal affairs/immigration Welcome separation, already very
common in most MS, to provide greater independence of focus on rights and justice to balance security/internal affairs agenda
Initially only Commissioners to be separated, now very recently announced the entire DG structure will be, so a deeper and more fundamental institutional division
Role of FRA? Information, data collection and advisory
agency, ‘expert not watchdog’ or enforcer Reflects origins in Racism & Xenophobia
monitoring centre Independence somewhat questioned,
limited scope for independent action, works within set thematic priorities, not a large role in pre-legislative scrutiny or monitoring implementation of legislation
Role of FRA? But slowly, role is increasing and strongly
recognised that migration issues are of real interest in regard to Fundamental Rights
Borders, migration and asylum; one of the current thematic priorities FRA is working to
FRA was asked to comment on draft Stockholm Programme and produced comments on draft and final programmes: though it still had some critique
Role of FRA? Reports and current work on issues such as
irregular migrants and removals, separated asylum-seeking children, interceptions at sea, child trafficking, asylum seekers access to remedies and information.
Will begin to feed into reports on implementation of Directives, future policy developments, Action Plans, monitoring implementation of and possibly improving EU legislation. Could have significant impact if taken seriously.
Evaluation mechanisms As well as pre-legislative scrutiny, evaluation
mechanisms have a high profile in Stockholm Programme – not just evaluation in abstract but implementation on the ground by Member States. Art 70 provides for this in Lisbon Treaty re implementation, but ongoing reviews and evaluation of legislation and its implementation by Member States is part of the Programme also
Some Commission infringement actions have been taken
Conclusion
Some moves forward in terms of locking in Fundamental Rights protection, often continuing processes that were already in place