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