Friday, 17 February 2017

The Marrakesh Treaty judgment: the ECJ clarifies EU external powers over copyright law

Gesa Kübek, PhD candidate at the law faculty of the University of Passau.

On 14th February 2017, the European Court of Justice (ECJ) concluded, in Opinion 3/15, that the European Union (EU) is exclusively competent to conclude the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired, or Otherwise Print Disabled (hereafter: Marrakesh Treaty). Its decision in Opinion 3/15 mirrors, at first sight, Advocate General (AG) Wahl’s Opinion, which equally argued that the EU has exclusive competence to conclude the Marrakesh Treaty. A closer look at Opinion 3/15, however, reveals that the Court opted for a much stricter interpretation of the scope of the EU’s Common Commercial Policy (CCP) – ie the EU’s international trade powers – than the AG. Moreover, the Court’s answer to the question of exclusivity does not clarify the correct choice of legal basis.

The following blog post provides an overview of the Court’s Opinion 3/15 and a short analysis thereof. The first part describes the conflict at stake and the arguments of the parties. The second part outlines the Court’s position. The final section discusses some of the implications of Opinion 3/15 for EU treaty-making.

The conflict at stake: Questions of exclusivity and the choice of legal basis

In June 2013, the World Organisation on Intellectual Property (WIPO) finalised the negotiations of the Marrakesh Treaty, which aims to facilitate access to published work for persons who are blind, visually impaired or otherwise print disabled (hereafter: “beneficiary persons”). The Marrakesh Treaty stipulates two separate, but interrelated instruments to fulfil its objectives. First, it obliges its contracting parties to provide for an exception or limitation to the rights of reproduction, distribution and making available to the public in order to make format copies more readily available for beneficiary persons. Second, it facilitates the cross-border exchange of accessible format copies.

In April 2014, the EU Council decided to sign the Marrakesh Treaty for the European Union based on Article 207 TFEU (the EU’s CCP power) in conjuncture with Article 114 TFEU (the EU’s internal market power, which is the basis for harmonising copyright law within the EU, among other things). The subsequent Commission proposal for the conclusion of the agreement was, however, rejected by the Member States as represented in the Council, which caused fierce institutional debate over the choice of legal basis. According to the Commission, Arts. 207 and 114 TFEU were correctly selected. In the alternative, the Marrakesh Treaty may be based on the CCP alone, which the Lisbon Treaty confirms as an exclusive competence (Art. 3 (1) (e) TFEU). In any event, the Commission argued that the rights and obligations comprised by the Marrakesh Treaty were largely harmonized by EU internal legislation. As a result, it asserted that exclusive EU competence can be implied (Art. 3 (2) TFEU). 

The eight intervening Member States rejected the assumption of EU exclusivity. Instead, in their view, the competences to conclude the Marrakesh Treaty ought to be shared, which may result in the conclusion of a “mixed agreement” that lists both the EU and the Member States as contracting parties. Given the persisting institutional conflicts, the Commission asked the Court to clarify whether the EU has the exclusive competence to conclude the Marrakesh Treaty.

As was stated above, AG Wahl supported the Commission’s quest for exclusive EU treaty-making powers. Somewhat surprisingly, the AG, however, determined that the Marrakesh Treaty should be concluded on the basis of Art. 207 TFEU on the CCP and – as contended by numerous Member States - Art. 19 (1) TFEU, the EU’s power to adopt many non-discrimination laws. The latter provision underlines the Marrakesh Treaty’s objective to promote non-discrimination, equal opportunity, accessibility and participation of disabled persons in the society. Despite the implication of exclusivity, the choice of Art. 19 (1) TFEU entails important procedural consequences: As the provision stipulates that the adoption of EU legislation requires unanimity in the Council, EU treaty-making under the anti-discrimination power equally grants the Member States veto powers in the Council (Art. 218 (8) TFEU).

The Court‘s position in Opinion 3/15

In order to answer the preliminary question, the Court, first, examined whether the Marrakesh Treaty, in full or in part, falls within the scope of the CCP. Thereafter, the ECJ analysed whether exclusivity can be implied within the meaning of Art. 3 (2) TFEU.

The reach of commercial aspects of intellectual property rights

To start with, the Court recalled that according to settled case-law, an EU act falls within the CCP “if it relates specifically to international trade in that it is essentially intended to promote, facilitate or govern trade and has direct and immediate effects on trade” (Daiichi Sankyo). Conversely, the mere fact that an EU act is liable to have implications on international trade is not enough for it to be concluded under the CCP.

In its subsequent reasoning, the Court outlined that neither one of the aforementioned instruments of the Marrakesh Treaty intends to promote, facilitate or govern international trade. The Court’s Opinion is particularly striking with regard to the import and export of format copies, as “there is no doubt that those rules relate to the international trade of such copies” (para 87). Nevertheless, the Court stated that the cross-border exchange specified by the Marrakesh Treaty cannot be equated with international trade for commercial purposes. On the one hand, the objective of the circulation and exchange of format copies is non-commercial in nature. The Marrakesh Treaty solely uses cross-border transactions as a mean to improve access of beneficiary persons to accessible format copies and not to promote, govern or facilitate trade. On the other hand, the Marrakesh Treaty’s non-commercial character results from the fact that it does generally not stipulate trade for profit.

Indeed, the Marrakesh Treaty provides that trade in format copies covers only authorised entities, which operate on a non-profit basis and provide their service to beneficiary persons alone. According to AG Wahl, the non-profit basis of trade in format copies, is, however, irrelevant for the application of the CCP. To that extent, the AG proposed a very broad definition of commercial aspects of intellectual property rights (IPR), which Article 207 (1) TFEU expressly includes within the scope of the CCP. In his view, the CCP does not exclude from its ambit transactions or activities of a non-commercial nature as the mere exchange of goods and services implies that they are being traded. Instead, Art. 207 (1) TFEU excludes non-commercial aspects of IPR, i.e. issue areas that are not strictly or directly concerned with trade in their entirety, such as moral rights.

The Court, however, rejected the claim that commercial aspects of IPR carve out only those rules relating to moral rights. Such a broad interpretation would, in the eyes of the Court, “lead to an excessive extension of the field covered by the common commercial policy by bringing within that policy rules that have no specific link with international trade.” (para 85) Consequently, the ECJ concluded that the Marrakesh Treaty falls outside the ambit of the CCP.

Implied exclusivity and the “ERTA doctrine”

Subsequently, the Court analysed whether exclusivity can nevertheless be implied via the well-known “ERTA doctrine” (referring to the Court’s ERTA judgment), which is codified in Article 3 (2) TFEU. According to this doctrine, EU obtains exclusive treaty-making powers where the conclusion of an international agreement “may affect common rules or alter their scope”.  In its ERTA line of case law, the Court has developed a two-level test for establishing external Member State pre-emption: First, it conducts a “comprehensive and detailed analysis” to determine whether the provisions of the envisaged agreement are largely covered by common EU rules (Opinion 2/91). Second, it determines whether the conclusion of the international agreement affects the “uniform and consistent application” of these common EU rules “and the proper functioning of the system which they establish.” (Opinion 1/13, discussed here).

There was little disagreement between the parties that the Marrakesh Agreement had to be implemented within the framework of Directive 2001/29 on the harmonisation of certain aspects of copyright and related rights in the information society.  The Court, however, pointed out that “it is clear (..) that the EU legislature brought about only a partial harmonisation of copyright and related rights, given that the directive is not intended to remove or to prevent differences between national laws which do not adversely affect the functioning of the internal market.” (para 115) Indeed, Directive 2001/29 provides, within its harmonized legal framework, for considerable Member State discretion as regards the implementation of exceptions and limitations to distribution for the benefit of people with disabilities. Does such a residual Member State competence mean that the Marrakesh Treaty is not largely covered by common EU rules, and therefore prevent implied exclusivity?

The Court answered this question in the negative. Directive 2001/29 subjects the Member States’ remaining competence to a number of conditions. The Member States’ discretion can therefore only be exercised within the limits enjoined by EU law, so that the Member States “are not free to determine, in an un-harmonised manner, the overall boundaries of the exception or limitation for persons with a disability.” (para 122) Moreover, the Marrakesh Treaty – unlike Directive 2001/29 – imposes an obligation on the contracting parties to provide for an exception or limitation. The Member States are therefore mandated to comply with the restraints imposed by EU law. As a result, the Court concludes that independent external Member State action would affect common EU rules. The EU is therefore exclusively competent to conclude the Marrakesh Treaty.

Opinion 3/15 and EU treaty-making: A short analysis

As stated in the introduction, the Court’s finding of (implied) exclusivity does not come as a surprise to many observers. Neither does the broad interpretation of the “largely covered” part of the ERTA-test. After all, the Court already confirmed in Opinion 1/03 and, more recently, in Green Network, that considerable Member State discretion in the implementation of EU legislation does not rule out exclusivity. Nevertheless, as was pointed out by AG Wahl, the case law “begs the question: when is an area sufficiently covered by EU rules to exclude Member State competences to act externally?” (para 130 of the opinion) By inference, to what extent does the EU have to exercise its internal competence to trigger the “ERTA effect”?

Green Network and Opinion 3/15 suggest that the Court will place much greater emphasis on the effects of international agreements on common EU rules, rather than on the extent of their material overlap. Even if the EU law in place specifies residual Member State powers, and is therefore, arguably, not largely harmonised, (adverse) affects on the EU’s internal legal framework suffice to trigger implied exclusivity within the meaning of Art. 3 (2) TFEU. However, if the Member States may be pre-empted where an agreement is only partially covered by EU internal legislation, may they be also pre-empted where the EU cannot exercise its internal competence at all, provided always that the envisaged agreement clearly affects the EU law in force? The Court is expected to answer this question in its pending Opinion 2/15 on the conclusion of the EU-Singapore Free Trade Agreement (discussed here). Here, among other things, the Court is asked to determine whether the “ERTA effect” may exceptionally be triggered by EU primary law provisions.

The Court’s clarification of the scope of Art. 207 (1) TFEU, and in particular, “commercial aspects of IPR”, might also have some impact on future EU treaty-making. Opinion 3/15 shows that the mere exchange of goods or services cross-border is not enough to equate a measure with international trade for commercial purposes. Instead, a link with trade implies that the transaction or activity aims at fulfilling a commercial objective. By inference, using trade as a mean to fulfil non-commercial objectives is not enough to bring a measure within the scope of the CCP. While the Court did not entirely exclude that “commerce” may, on a case-by-case basis, include trade on a non-profit basis, it contrasted AG Wahl’s suggestion that Art. 207 TFEU generally encompasses transaction or activities of a non-commercial nature. In view of Opinion 2/15, which also raises this issue, it may be noted that the Court did not dispute the AG’s claim that moral rights fall outside the scope of the CCP.

When returning to the Marrakesh Treaty, Opinion 3/15 leaves another pressing question unanswered: What is the correct legal basis for the agreement’s conclusion? The Court only clarifies that the Council Decision on the signature of the Marrakesh Treaty was wrongfully based on Art. 207 TFEU, but does not further elaborate on the correct choice of legal basis. It is true that the Commission’s preliminary question is confined to the exclusive nature of the agreement. The choice of legal basis, nevertheless, qualifies the modus operandi of (exclusive) EU treaty-making. In particular, the Court refrains from discussing AG Wahl’s reference to Art.  19 (1) TFEU, and, more broadly, the effects of the non-discrimination principle on EU external action. Whilst clarifying the EU’s capacity to conclude the agreement alone, the choice of legal basis – and therefore the choice of procedure – is left to the discretion of the EU institutions. Throughout the proceedings, the Commission continued to assert that the Marrakesh Treaty should be based on Art. 114 TFEU instead of Art. 19 TFEU. Conversely, the majority of the intervening Member States sided with the AG. As the use of Art. 19 (1) TFEU would trigger unanimous Council voting, and therefore Member State veto powers in the Council, institutional debate over the conclusion of the Marrakesh Treaty might continue.
Barnard & Peers: chapter 24

Photo credit: 1709 Blog

Wednesday, 15 February 2017

Court of Justice gives judgment on Irish procedure for determining claims for Subsidiary Protection

Shauna Gillan, Tribunal Member, International Protection Appeals Tribunal


The recent ruling of the Court of Justice (CJEU) of 9 February 2017  in  the  case  of M v Minister for Justice and Equality, Ireland and Anor in is the fourth time that Court has given judgment on Ireland’s  unique  and  evolving  procedure  for  determining  claims  for Subsidiary  Protection.  Subsidiary  Protection  is  a European Union law status provided  for  by  the Qualification Directive (originally Directive 2004/83, now Directive 2011/95 – although Ireland, like the UK, only opted in to the former version) that is designed  to  complement  the  protection  for refugees provided  by  the  1951 Refugee Convention.

Subsidiary Protection protects those who do not fit the strict definition of a refugee, but who are nonetheless at risk of serious harm in their home country. Ireland has up to now dealt with these two types of (similar, but not identical) claims via entirely separate decision-making processes.

The litigant (‘M’), a Rwandan national, brought test case litigation on the Irish procedure on 6 January 2011. At the time, all subsidiary protection applications were determined by the Minister for Justice in an administrative procedure that carried no right of appeal. The ensuing protracted  litigation  included  two  references  to  the  CJEU  from two different  Irish  Courts;  the  most  recent, a reference from the Supreme Court, is considered in the ECJ’s recent judgment.

The Irish system has undergone significant changes over the years during which M’s case has been in train, rendering the Court’s findings somewhat moot; however the case speaks to a fundamental principle of EU law: the right to be heard in matters that significantly affect one’s interests.

The facts of the case

M, a law graduate, made an asylum application in Ireland in May 2008. He was interviewed and his claim was rejected at first instance in August 2008.  M’s subsequent appeal to the Refugee Appeals Tribunal was refused, in October 2008. The appeal was on the papers: the first instance decision-maker had invoked a provision in Irish law that denied him an oral appeal (on account of his having delayed before making his asylum claim). M subsequently lodged a claim for subsidiary protection.

At that time, the Irish system was structured in such a way that individuals could not simultaneously claim both asylum and subsidiary protection.  Only  once  an  asylum  claim was finally determined, could a person  claim  subsidiary  protection  (or  indeed permission to remain on other  grounds).  All claims for subsidiary protection were decided by the Minister for Justice (as distinct from asylum claims, which were decided by an independent body). No personal interviews were carried out for these types of claim, and there was no right of appeal. In M’s case his claim for subsidiary protection was rejected in writing on 30 September 2010. The delay – of almost two years – was not uncommon. The Minister’s decision relied to a large extent on the two earlier decisions that had rejected M’s claim for asylum, and in particular the negative credibility findings therein.

M challenged the Irish procedure in the High Court, who referred the following question to the CJEU for a preliminary ruling:

‘In  a  case  where  an applicant seeks subsidiary protection status following  a refusal to grant refugee status and it is proposed that such  an  application  should  be  refused,  does the requirement to cooperate  with  an applicant imposed on a Member State in Article 4(1)  of … Directive 2004/83 … require the administrative authorities of  the  Member  State in question to supply such applicant with the results  of  such an assessment before a decision is finally made so as  to  enable  him  or her to address those aspects of the proposed decision which suggest a negative result?’

The CJEU, in its judgment of 22 November 2012, M. (C-277/11, EU:C:2012:744),  answered  this  question in the negative. However, somewhat unusually, the CJEU went on to consider a further question: whether M’s ‘right to be heard’ had been respected. The CJEU found that it had not: M should have been afforded an opportunity to make his views known before a decision was reached on his claim for subsidiary protection. The fact that M had had an interview for his earlier asylum claim was insufficient.

The case returned to the Irish High Court, who held on 23 June 2013 that the Minister for Justice had wrongly failed to afford M an effective hearing when his application for subsidiary protection was being examined. The Minister brought an appeal against that decision before the Supreme Court and M also brought a cross-appeal – neither party considered the High Court had correctly interpreted the CJEU judgment.

While that appeal was pending, on 14 November 2013, the Irish authorities changed the procedure to give effect to the High Court judgment. Personal interviews for applicants for subsidiary protection were introduced, as were full appeal rights to the Tribunal. However instead of fusing the decision-making process for the two claims (as is done in all other EU States) the new procedure dealt with the applications separately: one claim after the other. Applicants for international protection, if unsuccessful, were put through a near-identical process, twice: a personal interview, a first instance decision, an appeal to the Tribunal, another personal interview, another first instance decision and a further appeal. This process, naturally, gave rise to delays.

Meanwhile M’s test case litigation continued. The Supreme Court stayed the proceedings and on 24 November 2014 referred another question to the CJEU:

‘Does  the  “right to be heard” in European Union law require that an applicant   for  subsidiary  protection,  made  pursuant  to  Council Directive   2004/83/EC,   be   accorded   an  oral  hearing  of  that application,  including the right to call or cross-examine witnesses, when  the application is made in circumstances where the Member State concerned  operates two separate procedures, one after the other, for examining  applications  for  refugee  status  and  applications  for subsidiary protection, respectively?’

On 9 February 2017, the CJEU gave judgment. The Court held that, as Ireland was not operating a single procedure to determine asylum and subsidiary protection (the model employed by other European Union States), the Procedures Directive (Directive 2005/85; Ireland opted out of the later Directive 2013/32, which replaced it) did not apply to claims for subsidiary protection in Ireland.  This reiterated a point the CJEU had settled previously, and most recently restated last year (in another Irish case):  Danqua  v  Minister  for Justice and Equality Ireland [2016] EUECJ C-429/15.  The CJEU emphasised that the right to be heard was an important general principle of EU law. When making a decision that significantly affects  a  person’s interests (as here), the State must ensure that their  right  to  input  into  that  decision  is facilitated, so as to give full effect to the right to be heard.

The CJEU went on to discuss the scope of that right, finding that a personal  interview  would  not necessarily be required for all subsidiary protection claims, given that a substantive asylum interview would already  have  been  carried  out.  The Irish authorities had essentially played it safe after the CJEU’s first judgment in this case, by bringing in personal interviews across the board, for all subsidiary protection cases. The CJEU clarified that what it had meant was that there must be some way for an applicant’s views to be heard. This could be in writing or by personal interview – depending on the individual case. Some cases may require a fresh interview, and some may not.

The CJEU made clear that the Irish authorities are free to rely on the information gathered in the course of assessment of an asylum claim (including statements made in an interview or at a hearing) when it comes to assess the claim for subsidiary protection. The  critical matter is that the state must carry out  an  individualised  assessment  of  the  relevant  facts;  whether an interview is necessary so to do – in the particular situation of Ireland’s bifurcated  system  for  assessing  international protection  claims – is  fact-specific.

Further developments

The outcome of the CJEU decision has been overtaken by recent events. On 31  December  2016 a new procedure for international protection claims was brought  into  force  via  the  commencement  of  relevant sections of the International  Protection  Act  2015.  The Act provides for a new, fused ‘single procedure’ whereby asylum and subsidiary protection claims will be assessed at the same time and determined in one decision. That decision, if negative, can be appealed to the Tribunal on both asylum and subsidiary protection grounds (in the same hearing, for the first time). The introduction of a single procedure brings Ireland into line with the rest of the European Union. The new system, once fully up and running, is likely to result in a reduction of delays in what had developed over the years into an overly prolonged system for assessing international protection claims.

Barnard & Peers: chapter 26
JHA4: chapter I:5

Photo credit: smelltheroses blog

Friday, 3 February 2017

As Bad as it Gets: the White Paper on Brexit

Professor Steve Peers

Yesterday the UK government released its White Paper on Brexit. This tome was reluctantly extracted from the government after months of prompting, but is in the end enormously disappointing: the political equivalent of a cat coughing up a hairball.  

As many had expected, the white paper is basically content-free. It's essentially Theresa May's recent speech (which I analysed here), in some cases word-for-word, with a few statistics and graphs added. But even this information refers back to the status quo, and in some cases is inaccurate (a graph suggested British workers get 14 weeks’ paid holiday a year, before it was corrected), out-of-date (the 2011 statistics on UK citizens resident in the EU), or only partial (the migration statistics omit Irish people in the UK, and vice versa).

There’s no proper analysis of different options relating to the UK’s post-Brexit future, with assessments of their relative pros and cons. But then there couldn’t be: the White Paper says little of substance about the very existence of those options. David Allen Green has pointed out that the initial version of the document was time-stamped at about 4am, giving the strong impression it was written overnight by an intern working to a deadline in a student-like coffee-fuelled flurry.

Detailed comments on the White Paper

The paper begins with a collection of sentence fragments from the Prime Minister, centring on the bizarre claim that 65 million people are “willing” Brexit, simply ignoring the 48% who voted against it. By and large, it goes downhill from there.

Having said that, there is a little bit of detail on plans for the ‘Great Repeal Bill’ (previously discussed here and here), which will convert existing EU law into UK law. This White Paper confirms that there will be a further White Paper on that Bill. The latter Bill will retain EU Regulations in UK law, not just EU Directives, which are referred to implicitly (as “all laws which have been made in the UK, in order to implement our obligations as a member of the EU”).

This is an important legal point because by their nature as defined by EU law, Directives have anyway been implemented as part of UK law already. Regulations usually have not, and so would vanish unless some steps were taken to retain them. (Regulations are more commonly used in areas which EU law has more fully harmonised, whereas Directives usually apply in areas where there is less harmonisation).

Interestingly, the White Paper says that the ex-EU law should be interpreted post-Brexit “in the same way as it is at the moment”. This suggests that the case-law of the EU courts will continue to be relevant, even though those courts are loathed by many Brexiteers. It remains to be seen exactly how this approach to interpretation will be secured outside the EU; the most obvious route is to insert language to this effect in the Great Repeal Act. There’s a weasel word which isn’t further explained (“Generally”), and two obvious questions aren’t answered: what about post-Brexit EU case law, and what about EU legislation which is amended after Brexit?   

After Brexit, it will be up to the UK to amend ex-EU law. But who will have the power to do this? There’s a little bit of detail about this key question. Any “significant policy change” will be the subject of an Act of Parliament, which means that the House of Commons and the House of Lords will have a full debate and every chance to table amendments or block the government’s plans. There will be Bills on customs and immigration, “for example”.

But there is also a commitment to a “programme of secondary legislation”. This refers to various methods of the government making laws, with limited power of Parliament – usually only one chance to examine the draft law briefly, with no chance to amend it. The White Paper refers to this as “oversight”, but it’s not very substantial. By process of elimination this is how the government will make changes to other areas of ex-EU law, besides customs and immigration – environment and employment law, for example. The White Paper says it wants to remove “deficiencies” in the ex-EU laws; but one woman’s “deficiencies” are another woman’s clean beaches.

Next, the section on “taking control” of UK laws starts with the remarkable statement: “Whilst Parliament has remained sovereign throughout our membership of the EU, it has not always felt like that.” The Supreme Court’s Miller judgment indeed recently confirmed that Parliamentary sovereignty did not vanish while the UK was an EU member, since the effect of EU law in the UK was dependent on Parliament’s decision to keep the European Communities Act in force, Parliament could have insisted on blocking the domestic effect of any EU law by expressly deciding to keep Acts of Parliament conflicting with that EU law in force.

But let’s step back from the legal details. This is an astonishing statement. One of the best-known slogans of the ‘Leave’ side in the referendum was ‘take back control’. Yet it’s conceded here that we already had control. The problem is the feeling that we didn’t have it.

So...what prompted that feeling? Could it be the consistent lie that EU law is adopted by ‘unelected bureaucrats’, which is a simple falsehood about the nature of EU law-making? (As discussed here, EU laws are jointly adopted by national ministers and the elected European Parliament; the UK votes in favour of proposed laws over 90% of the time). Needless to say, the White Paper doesn’t refer to that fact. Rather it overstates the impact of EU law in the UK, by means of a dodgy statistic which includes ‘soft law’ (non-binding measures like Recommendations, Communications, Reports and Opinions) in the total number of EU documents sent to Parliament.

Next, the White Paper points out correctly that there is no need for the EU courts to have jurisdiction over agreements between the UK and the EU. Indeed, the EU rarely asks for this with other countries (although the EU courts do rule on how such treaties should be interpreted by the EU). I’ve always suspected this focus on the EU courts is a red herring – so that the UK government can declare a ‘victory’ by resisting something that the EU might not even ask for.

Moving on to devolution, the White Paper details various means of talking to the devolved administrations – ignoring the simple fact that the government has already ruled out following any of a number of options (discussed here) which the Scottish government presented in December.

There’s a special section on Northern Ireland, listing facts but not giving any idea of how reinstating border checks between the Irish Republic and Northern Ireland can be avoided. I’ve referred before to Brexiteers’ apparent belief in a ‘Brexit Fairy’ who will magically solve all problems which Brexit might create. The Irish border issue seems to be a task for her culturally-appropriating cousin: the Brexit Leprechaun.

In passing, this section refers to the common belief that the status of Irish citizens in the UK is guaranteed by the Ireland Act 1949. As far as immigration status is concerned, this is questionable, as detailed here by Professor Bernard Ryan.

Next, the White Paper deals with immigration, referring to “public concern about pressure on public services, like schools and our infrastructure, especially housing, as well as placing downward pressure on wages for people on the lowest incomes.” There’s a mysterious absence of statistics to back up these claims, perhaps because they are shaky: see this recent summary of economic literature on migration, by Professor Jonathan Portes. But who needs evidence, when we can just poke a finger down Nigel Farage's throat? And if public services are so badly affected by EU migration, why no mention of the famous £350 million/week which would be supposedly made available for the NHS?

It’s striking that this section refers to possible ‘phased implementation’ of new rules on immigration of EU citizens. This seems to be the euphemism for an interim agreement with the EU – which would presumably entail retaining a limited version of free movement of people for a time. The issue is likely to be a key bargaining point in negotiations.

The next section deals with existing UK/EU migrants. The government repeats its mantra that it wants to secure their status, but there are no specifics on what "securing status" means. The banality of political waffle could not be waived to suggest anything more concrete for millions of people worried about their future. (For detailed suggestions on this issue, see the recent British Future report, discussed here).

Moving on to employment rights, the White Paper repeats a government promise to retain EU employment protection. But as I noted above, there’s no mention of safeguarding those rights by means of needing an Act of Parliament to amend them. As others have pointed out, there are weasel words here: “strengthening rights when it is the right choice for UK workers” and “maintain the protections and standards that benefit workers” (emphases added). There’s a definite “fox in charge of the henhouse” vibe here – quite literally so, if we remind ourselves of cabinet minister Liam Fox’s attitude to EU employment regulation.

This section includes the usual assertions about UK employment law being better than the EU version. This is true in some ways, and there are some issues that EU law has nothing to do with (for instance, the minimum wage, which the White Paper rambles on about). Yet, as I discuss in detail here, there are a number of areas where EU case law extended workers’ rights in the UK: holiday pay for UK workers with fixed term contracts, who are on commission or have extra allowances, to take just one example.

Moving on, the section on trade and economic cooperation re-iterates the intention to sign a free trade deal without considering the relative advantages of staying part of the single market. There are wildly empty statements about future EU/UK cooperation. The government wants "civil judicial cooperation" to continue with EU. But in which areas? (There are general EU rules on civil and commercial judgments, but also specific rules on insolvency, recognition of divorce and child access rulings, and maintenance payments).

Similarly, the White Paper lists many EU economic laws, but which would the government like to remain part of: competition law? The EU trademark? The unitary patent? EU data protection law? (On the latter issue, where there is a particular risk of disruption to trade flows if the UK does not retain laws nearly identical to the EU’s, see my discussion here).

The discussion of Euratom, the atomic energy treaty linked to the EU, implicitly suggests that the UK energy industry would benefit from a cooperation agreement with Euratom post-Brexit (see further discussion here). But the government is unwilling to say so, due its general paranoia about revealing its intentions. Yet even Homer Simpson – the world’s most famous employee of the nuclear industry, but also the dumbest – could guess the UK’s negotiating plans here.

Equally, the White Paper supplies interesting statistics on the usefulness of EU criminal and policing laws, and asserts the government’s continued interest in playing a role in EU foreign and defence policy. Yet again, there’s no detail on what the UK would like to participate in. (Some further comments on the criminal law and policing issues here).  

Overall, the White Paper is largely devoid of content because the UK government’s concern about negotiating secrecy. While of course some of the government’s position needs to remain confidential, I have to point out that treaties aren't negotiated with actual playing cards. They are negotiating by tabling draft texts – and so the EU is bound to see what the UK is asking for, once talks start.

The government may in fact be concerned about a different issue: being embarrassed in front of the British public, by asking for things it doesn’t get. But here, it’s being a little naïve. In my experience, officials from the EU and its Member States love to talk. And little birds leak a regular flow of EU documents to the Statewatch website. Even if UK officials keep as quiet as mice, the EU side will sing like canaries.

Finally, the “we can’t show our cards” argument reminds me of a rather relevant anecdote. Years ago, in the dying days of the Soviet Union, I went on a trip to Moscow as a member of the university debating club. After several days there, our stomachs were rumbling from the effect of central economic planning upon the supply of edible food. So some of us took refuge for the evening in the Canadian embassy, where there was decent grub and beer. (We’d drunk…enough vodka by that point).

Following a frenzied supper, we started to play cards. We’d never played cards with each other before, so didn’t know what to expect. One of my friends kept on asking the dumbest, most basic, questions about the rules of the game. At one point he even showed one of the cards in his hand to all of us, asking “So what should I do with this? Is it a good card?” Everyone laughed, and no one took him seriously as an opponent. At the end of the game, lo and behold, he had the best hand by far, and won easily. It turned out he knew the rules perfectly well, and his pretence of complete ignorance had been a perfect bluff.

Well…everyone in Britain had better hope that this is exactly the government’s real Brexit strategy. The horrifying alternative is that the government really is as dumb as it looks.

Barnard & Peers: chapter 27

Photo credit: Wings Over Scotland

Tuesday, 31 January 2017

Foreign fighters' helpers excluded from refugee status: the ECJ clarifies the law

Professor Steve Peers

What if a person claiming to be a refugee is an alleged terrorist, or at least giving assistance to alleged terrorists? Can they still claim to be a refugee – and if not, how should we define ‘terrorism’ for the purposes of rejecting their claim to be one? Today’s judgment of the EU Court of Justice in the Lounani case usefully clarifies some aspects of this controversial and legally complex issue, but inevitably leaves some difficult questions open.

Legal framework

The starting point for this issue is the wording of the UN Refugee Convention, known by the EU as the ‘Geneva Convention’, which contains an ‘exclusion’ clause in Article 1.F:

F. The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that:
(a) he has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes;
(b) he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee;
(c) he has been guilty of acts contrary to the purposes and principles of the United Nations.

The UN rules (which all EU Member States have signed up to) have been transposed, but with variations, in the EU’s Qualification Directive, which applies to every Member State except Denmark. (Technically the UK and Ireland are bound only by the first version of this Directive, but the rules on exclusion haven’t changed).  Article 12(3) of that Directive reads as follows:

2. A third-country national or a stateless person is excluded from being a refugee where there are serious reasons for considering that:
(a) he or she has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes;
(b) he or she has committed a serious non-political crime outside the country of refuge prior to his or her admission as a refugee, which means the time of issuing a residence permit based on the granting of refugee status; particularly cruel actions, even if committed with an allegedly political objective, may be classified as serious non-political crimes;
(c) he or she has been guilty of acts contrary to the purposes and principles of the United Nations as set out in the Preamble and Articles 1 and 2 of the Charter of the United Nations.

3. Paragraph 2 applies to persons who incite or otherwise participate in the commission of the crimes or acts mentioned therein.

It can be seen that the EU rules differ from the UN rules to the extent that: they add some wording on the timing and nature of ‘serious non-political crimes’; they clarify the reference to acts contrary to UN ‘purposes and principles’; and they apply the exclusion to those who ‘incite or otherwise participate’ in all three categories of acts leading to exclusion.

Despite this attempt at clarification, there will always be issues of interpreting these rules. The EU Court has ruled on them once before, in its judgment in B and D, when it stated that first of all that the second and third exclusion clauses can apply to terrorist offences.  However, exclusion must be assessed in each individual case, meaning that membership of a group listed as ‘terrorist’ in EU foreign policy sanctions against terrorists does not automatically trigger the exclusion clause, although it is a ‘factor’ to consider. Participating in a terrorist group, as defined by EU criminal law on terrorism, does not automatically trigger the exclusion clause either. Instead, there must be direct involvement by the person concerned in such offences, as further explained by the Court. Furthermore, there is no additional ‘proportionality’ or ‘present danger’ test for exclusion. Finally, the exclusion clause is mandatory: ie Member States cannot assert a right to apply higher standards and give someone refugee status if they fall within the exclusion criteria.

The judgment

What does today’s judgment add? The person concerned was convicted of participating in a terrorist group, but not of carrying out any terrorist acts as such. So is such a conviction sufficient to trigger the exclusion clause?

The EU court ruled that it was. First of all, the preamble to the EU Directive referred to UN Resolutions on ‘financing, planning and inciting’ terrorism; so the third exclusion clause goes beyond terrorist acts as such. Secondly, the EU legislature had not intended to match the exclusion clause in asylum law with the narrower definition of terrorism in (current) EU criminal law legislation.

Next, the EU court ruled that following a later UN Security Council Resolution, assisting with recruitment, organisation or transport of ‘foreign fighters’ could also fall within the scope of the exclusion clause. So could ‘participation’ in such activities, pursuant to Article 12(3) of the EU Directive. It was relevant that the group in question was listed as terrorist by the UN Security Council, and particularly relevant that the person concerned had been convicted of terrorist offences in Belgium.


The Court’s judgment asserts a broad scope of the exclusion clause, meaning that a degree of support for ‘foreign fighters’ will also result in exclusion from refugee status. In doing so, it answers the claims of those who believe that many refugees are ‘jihadists’. Simply put, anyone who has been directly involved in terrorist acts (B and D) or in facilitating the activities of ‘foreign fighters’ (today’s judgment) is not entitled to refugee status. Although the judgment does not mention it, this aligns the interpretation of the exclusion clause to some extent with recent developments in criminal law, namely the 2015 Protocol to the Council of Europe Convention on the prevention of terrorism, and the agreed revision of the EU’s anti-terrorism laws.

But the judgment cannot help leaving some difficult questions open. What if the asylum-seeker has not been convicted of terrorist offences anywhere, but there are allegations of such action? Since a conviction is particularly relevant to applying the exclusion clause, would a lack of such conviction conversely be particularly relevant in determining that the clause should not apply? Would that assessment be different if the person had been acquitted, or if an investigation or trial was pending? If the criminal law process was pending, should the asylum determination process be put on hold? What if the authorities had claimed to have information supplied from the security services, and were reluctant to bring criminal proceedings in order to preserve their sources and intelligence capability? 

What if there is a criminal conviction for terrorism from another country – particularly in the asylum-seeker’s country of origin, which might define criticism of the government as ‘terrorism’? Similarly what about ‘provocation’ to terrorism, which might include ‘glorification’ of terrorist acts, according to the revised EU criminal law? Here the question is to what extent freedom of expression, not directly connected to violent acts, might justify a refusal of refugee status. Recent acts remind us that as far as criminal law is concerned, terrorist acts – and the climate of hatred that surrounds them – are not confined to Islamist extremists, but stem also from those who fanatically hate minority groups as well.

Barnard & Peers: chapter 25, chapter 26
JHA4: chapter I:5, chapter II:5

Photo image: Worldbulletin

Monday, 30 January 2017

The UK Brexits Euratom: Legal Framework and Future Developments

Professor Steve Peers

The UK government’s draft bill on triggering Article 50 TEU, the EU withdrawal clause (the ‘Article 50 Bill’) had a surprise for some. Tucked away in the explanatory memorandum of the bill was a note explaining that the UK intended not only to leave the EU but also the separate (but linked) European Atomic Energy Community – Euratom for short.

Many are concerned that this will have a negative impact on the UK energy industry and related research. In particular, as discussed here, it raises issues as regards safety checks, the ownership of nuclear material, the processing of fuel, and fusion research. While it is obviously possible for a non-EU country to have a nuclear power industry, walking away from the Euratom cooperation framework will create complications for a state which is already in it.

Some have even questioned if the UK actually has to leave Euratom just because it is leaving the EU. However, in practice leaving Euratom is an inevitable consequence of Brexit. This blog post explains why – and points to the way forward to continue UK/EU cooperation in this field after Brexit.

Legal Framework

The Euratom treaty is a separate treaty from the treaty which initially created what was the European Economic Community (EEC) – now known as the European Union (EU). Equally, Euratom is a separate international organisation from the EU. But there have always been close links between the two. The founding treaties were negotiated together, and they have always had the same membership. They shared some institutions from the outset in 1958, and all institutions from 1967, when the ‘Merger Treaty’ brought together the separate Councils and Commissions which the three Communities (the EEC, Euratom and the European Coal and Steel Community) had until then.

Since that point, the provisions on the institutions in the Euratom Treaty have been updated every time the corresponding rules in the EEC Treaty were amended. Those institutional rules are now split between the Treaty on the Functioning of the European Union (TFEU) – as the EEC Treaty is now called – and the Treaty on European Union (TEU). The link between the latter two treaties, which are the legal basis for the EU, and the Euratom Treaty, is now set out in Article 106a of the Euratom Treaty, which was inserted by the Treaty of Lisbon:

1.   Article 7, Articles 13 to 19, Article 48(2) to (5), and Articles 49 and 50 of the Treaty on European Union, and Article 15, Articles 223 to 236, Articles 237 to 244, Article 245, Articles 246 to 270, Article 272, 273 and 274, Articles 277 to 281, Articles 285 to 304, Articles 310 to 320, Articles 322 to 325 and Articles 336, 342 and 344 of the Treaty on the Functioning of the European Union, and the Protocol on Transitional Provisions, shall apply to this Treaty.

As you can see, Article 50 of the TEU applies to the Euratom Treaty. That could be interpreted one of two ways. First of all, it could mean that a Member State is free to leave the EU but not Euratom (or the other way around), if it chooses. Article 50 is the exit route for leaving either body separately, or both of them together, as that Member State desires. Alternatively, it could mean that if a Member State wants to leave the EU, it must also leave Euratom.  

Which view is correct? In my view, the answer is clear if Article 106a is read as a whole. For it does not only refer to Article 50 TEU, but also to ten other Articles in the TEU, and 85 Articles in the TFEU. A large number of these Articles refer to the EU institutions. For instance, Article 13 TEU describes the institutional framework as a whole; Article 14 sets out the basic rules on the European Parliament; Article 15 the European Council; Article 16 the Council; Article 17 the Commission; Article 18 the Foreign Policy High Representative; and Article 19 the EU Court. Equally, the TFEU Articles which apply to the Euratom Treaty make up most of Part Six of the TFEU (Articles 223-334 of that Treaty), which is the ‘Institutional and Financial Provisions’. They go into more detail about issues like determining the number of Members of the European Parliament and the jurisdiction of the EU courts.

In practical terms, this would mean that if the UK left the EU but not Euratom, it would still have Members of the European Parliament, a Commissioner, a role on the Council, judges on the EU courts, and so on. From a legal perspective, it’s hard to believe this odd scenario was intended by the drafters of the Treaties; from a political perspective, this prospect would surely dismay those who voted to Leave.

This could be addressed if the Euratom Treaty were amended to suit the UK’s intention (if it wished) to stay in Euratom but not the EU, but without such institutional complications. But it’s hard to imagine the remaining Member States being willing to do that. So the best interpretation of the current law is that a Member State must also leave Euratom if it wants to leave the EU. And even if that legal interpretation is wrong, the UK government would want to leave the two bodies at the same time, to avoid continued participation in those EU institutions that give Leave voters such graphic nightmares.

The post-Brexit scenario

The Article 50 agreement between the UK and the EU can address the details of ending the UK’s participation in Euratom, which could perhaps wind down over several years after Brexit Day. But what if the UK wanted to continue with some or all of its current participation in Euratom?

This would still be possible (if the remaining EU also agreed to it). There are two main means by which Euratom enters into treaties with non-EU countries. Article 101 of the Euratom Treaty says that the Euratom Community (as legally distinct from its Member States) may enter into ‘agreements’ with non-Euratom countries. Article 206 of the same Treaty says that Euratom may enter into association agreements.

A list of such treaties, with links to the texts, can be found here. In addition to general association agreements between non-EU countries and the EU and Euratom, there are several treaties just on atomic energy cooperation. These are with Switzerland, South Africa, India, Korea, and the United States.

The best course forward is therefore for the UK to seek to negotiate such a treaty. Since it might take some time to negotiate, it’s best for the government to consult as soon as possible widely and openly with the industry and research community, as well as groups concerned about nuclear safety, to determine what its objectives should be in these negotiations.

* Further reading: for a more detailed overview of the legal framework of Euratom, with references to further literature, see pages 66-73 of my article on EU Treaty Amendments, published in the Yearbook of European Law.

Barnard & Peers: chapter 27
Photo credit: Fox TV

Saturday, 28 January 2017

Brexit and the Safeguard of EU Transnational Rights - Act II The Supreme Court’s Position

Francesca Strumia, Lecturer in Law, University of Sheffield

This post is a follow-up to the post on the High Court’s position in Miller on the safeguard of EU Law transnational rights. It considers what the Supreme Court judgment makes of the High Court position in this respect, and what EU law questions it implies as a result. The question of transnational rights has not lost momentum for two reasons. First, beyond the immediate implications for the few million EU nationals in the UK, and UK nationals in the EU, whose lives stand to be disrupted by Brexit, it points to the very fabric of the citizens’ individual rights in the EU and thus to the nature of EU law. Withdrawal of a Member State, whilst expressly provided for in the Treaties and whilst a legitimate sovereign decision under international law, risks pitting two fundamental values underpinning the European Union order one against the other: democracy (as expressed by the will of majorities or arguable majorities at the national level) and individual rights that cut across borders. Second, and relatedly, it is a question that the CJEU will likely have to address if the quandaries surrounding withdrawal ultimately reach its docket, as is expected through the planned litigation in Irish courts.

The High Court in November flirted with the question of the safeguard of transnational rights, as I analyzed in the previous post. The Supreme Court judgment does not address the question directly, let alone answer it. Its central point is that withdrawal of the UK from the EU, by resulting in removal of EU law as a source of law, will induce a fundamental change in the UK’s constitutional arrangements. Such a momentous change cannot be triggered by prerogative and requires an act of Parliament. In weaving this argument, the Supreme Court judgment bears on the problem of EU transnational rights in two respects. First, directly, because other than the High Court, it suggests that safeguard of EU law’s transnational rights is not necessarily within the remit of Parliament. Second, indirectly, because it engages with the special nature of the EU Treaties and uses such specialty as a foundation for its argument. I will consider each aspect in turn.

From the first perspective, the Supreme Court recuperates the High Court’s analysis of the EU law rights that have gained domestic law status and that withdrawal will affect: rights capable of replication in UK domestic law, rights derived by UK nationals in other Member States, and ‘club membership rights’ such as rights of participation in EU institutions (par. 69-73). The High Court had suggested that even rights in the second category, albeit harder to characterize as domestic law, were intended by Parliament as ‘wider rights of British citizens’, and hence could not be removed by ministers exercising the prerogative. 

The Supreme Court focuses on the first category and eschews the other two. Its argument in this respect is that if the claimants cannot rely on loss of rights in the first category – that best fit the notion of domestic law – to support their argument against the use of the prerogative, even less can they rely on loss of rights in the other two – that rather embrace a set of transnational rights –. And if they can rely on loss of rights in the first category, then there is no need to engage the other two. So transnational rights, with which the High Court had timidly engaged, are gently pushed out of the way of the constitutional question at the heart of the judgment.

The gist of the argument through which the Supreme Court solves that constitutional question is in the specialty of the EU Treaties. And here comes the second aspect. In the normal course of things – the judgment recalls – the royal prerogative covers the making and unmaking of treaties. This is on the assumption that the power to make and unmake treaties does not affect domestic law. 

That assumption rests in turn on two propositions: that treaties take effect in international law and are not governed by domestic law; and that they do not create or alter domestic law and rights. (par. 54-56). However the EU Treaties are exceptional. They do not only concern international relations, but they are a source of domestic law and of domestic legal rights (par. 86); their nature is ‘unusual’ (par. 88); and they are ‘unique in their legislative and constitutional implications’ (par. 90). This Supreme Court argument on the exceptionalism of the EU Treaties, whilst remaining in part undefined as Professor Elliott notes in his post, echoes one of the landmark arguments of the CJEU. The specialty of the EU Treaties, according to the CJEU, is in that they constitute a ‘new legal order of international law’. The subjects of this order comprise ‘not only member states but also their nationals’. And ‘community law therefore not only imposes obligations on individuals but is also intended to confer upon them rights which become part of their legal heritage’. (Van Gend en Loos). 

Nothing new for anyone remotely acquainted with EU law. The novelty is in the new shades that these arguments take when indirectly recalled by the UK Supreme Court in the context of withdrawal of a Member State. How are the rights and obligations of the Member States that the EU Treaties enshrine on the international level – including the right to withdraw from the Treaties – to be reconciled with the rights that this new legal order has made part of the citizens’ legal heritage even ‘independently of the legislation of the Member States’ (in the words of the CJEU)? That, is a question of EU law. And some of those rights – by the way- are not domestic law rights. As Lord Reed makes clear in his dissent (par. 218), there are elements of EU law that depend on reciprocal arrangements with other Member States or on the participation of EU institutions. Transnational rights come back through the side door.

This underlying EU law question that the Supreme Court judgment just hints to did not make it to the CJEU on this occasion. However a version of it may still make it to Luxembourg in the twists and turns of the other planned proceedings. The question has systemic, theoretical and practical nuances. Systemic, because it calls for identifying the checks and balances that may safeguard, in the new legal order that is EU law, the competing interests of national majorities and transnational minorities. Theoretical, because on its answer depend the chances of ever taking transnational rights seriously again. And practical, in terms of the identification of the legal frames that may safeguard transnational rights in the context of EU withdrawal, both within EU law (duty of sincere cooperation?) and beyond (does a host Member State ever become, for instance, one’s ‘own country’ within the meaning of article 12 of the International Covenant on Civil and Political Rights?). 

Ultimately, the potential question for the CJEU addresses the conundrum that was exposed at the beginning and that explains the discomfort that Brexit causes beyond its own contingencies: how to square domestic democratic choices underpinning the exercise of Member States’ rights and obligations at the international level with individual transnational rights that the EU special legal order has long promised. At stake are the prospects of the most special creature that the 20th century international legal order has bred.

Barnard & Peers: chapter 27
Photo credit: Telegraph