Lisbon Treaty & future 2

1. Lisbon Treaty & future 2 Helen Toner

2. 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

3. 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

4. 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

5. 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

6. Accelerated procedure • Accelerated procedure 104a Statute of Court • Applicable generally, not just to FSJ matters – basically speeds up normal procedure

7. 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

8. 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

9. 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?

10. 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?

11. 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

12. 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

13. 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

14. 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

15. Elgafaji • Although the judgment can be welcomed • Little discussion of humanitarian law, UNHCR, travaux preparatoires, international criminal law, legal literature

16. 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?

17. 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)

18. 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

19. 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)

20. 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

21. 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?

22. 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

23. 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

24. 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

25. 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

26. 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

27. 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

28. 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?

29. 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

30. 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’

31. 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?

32. 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?

33. 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?

34. 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.

35. Protocol Article 11. 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.

36. 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.

37. 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?

38. 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

39. 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

40. 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

41. 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?

42. 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?

43. 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

44. 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

45. 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

46. 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

47. 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

48. 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.

49. 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

50. Conclusion • Some moves forward in terms of locking in Fundamental Rights protection, often continuing processes that were already in place