Wednesday, 18 April 2018

Salvation outside the church? The ECJ rules on religious discrimination in employment

Dr Ronan McCrea, Senior Lecturer in Law, University College London


The Court of Justice has issued its first major ruling on the reconciliation of the autonomy rights of religious organisations with the right of employees (or potential employees) of such organisations to be free of discrimination.

In 2012 Vera Egenberger applied for a fixed term post advertised by the Evangelisches Werk für Diakonie und Entwicklung, which is a body associated with the Evangelische Kirche in Deutschland (a German Protestant church). The post advertised sought a person who could prepare a report on Germany’s compliance with the United Nations International Convention on the Elimination of All Forms of Racial Discrimination. Ms. Egenberger had significant experience in this area and applied for the post. However, there was a problem. Ms. Egenberger is a person who does not have a religious faith and the relevant advert included the following statement:

‘We require membership of a Protestant church, or of a church which is a member of the Arbeitsgemeinschaft Christlicher Kirchen in Deutschland (Cooperative of Christian Churches in Germany), and identification with the welfare mission. Please state your membership in your curriculum vitae.’

Ms. Egenberger was not called for interview. She took a case in the German courts alleging discrimination on grounds of religion.

As discrimination in employment on grounds of religion is regulated by EU law, in the form of Directive 2000/78 (which also bans discrimination on grounds of disability, age or sexual orientation in employment), when the case came before the Bundesarbeitsgericht (Federal Labour Court) it decided to make a reference to the Court of Justice to clarify the interpretation of EU law. The key issue in the reference was whether the scope of the exemption from the duty not to discriminate on grounds of religion or belief granted by German law to religious organisations was compatible with Directive 2000/78.

The issue of exemptions from the prohibition on discrimination on grounds of religion for religious employers is addressed by Article 4(2) of the Directive which states:

‘…. in the case of occupational activities within churches and other public or private organisations the ethos of which is based on religion or belief, a difference of treatment based on a person's religion or belief shall not constitute discrimination where, by reason of the nature of these activities or of the context in which they are carried out, a person's religion or belief constitute a genuine, legitimate and justified occupational requirement, having regard to the organisation's ethos. This difference of treatment shall be implemented taking account of Member States' constitutional provisions and principles, as well as the general principles of Community law, and should not justify discrimination on another ground.’ (emphasis added).

The relevant German law implementing the directive provided that:

‘….a difference in treatment based on religion or belief shall also be admitted in the case of employment by religious societies, by institutions affiliated therewith, regardless of legal form, or by associations whose purpose is to foster a religion or belief in the community, where a given religion or belief constitutes a justified occupational requirement, having regard to the employer’s own perception, in view of the employer’s right of autonomy or by reason of the nature of its activities.’ (paragraph 9(1) of the Allgemeine Gleichbehandlungsgesetz, emphasis added).

This legislation, has been interpreted in the light of the German constitutional guarantee that states:

‘Religious societies shall regulate and administer their affairs independently within the limits of the law that applies to all. They shall confer their offices without the involvement of central government or local authorities.’ (Grundgesetz Article 140).

This has meant that the consistent approach of the German courts has been that the decision as to whether a particular role within a religious organization needs to be limited to those of a particular faith was for the religious employer to take. The role of the courts has been limited to plausibility review, on the basis of a religion’s self-conception defined by belief.

The national court harboured doubts as to whether the approach of German law in allowing the religious employer to determine for itself, subject only to plausibility review by the courts, whether its beliefs required a particular role to be reserved to those of a particular faith, was compatible with the directive and therefore made a reference to the Court of Justice under Article 267.

The Ruling: A More Balanced Approach Needed

The Court of Justice’s ruling made it clear that German law had gone too far by allowing such a wide scope for religious employers to determine for themselves whether a particular job could be reserved to those of a particular faith.

It noted that Article 4(2) of the Directive allowed the discrimination on grounds of religion only if having regard to the nature of the activity concerned or the context in which it is carried out, ‘religion or belief constitute[s] a genuine, legitimate and justified occupational requirement, having regard to the organisation’s ethos’ and concluded that:

‘if review of compliance with those criteria were, in the event of doubt as to that compliance, the task not of an independent authority such as a national court but of the church or organisation intending to practise a difference of treatment on grounds of religion or belief, [this provision of the Directive] would be deprived of effect.’

Interestingly, although the employer had cited both the guarantee of freedom of religion or belief (Article 10 of the Charter of Fundamental Rights) and Article 17 of the Treaty on the Functioning of the European Union, which provides that the Union ‘The Union respects and does not prejudice the status under national law of churches and religious associations or communities in the Member States’, the Court also relied heavily on constitutional principles to bolster its conclusion that excessive leeway had been granted to religious employers by German law.

The Court noted that Directive 2000/78 was merely a ‘specific expression, in the field covered by it, of the general prohibition of discrimination laid down in Article 21 of the Charter’ (which sets out a general ban on discrimination). It also noted that that when an individual establishes before a national court facts from which it may be presumed that there has been direct or indirect discrimination then, under Article 10 of the Directive, it is for the respondent to prove that there has been no breach of that principle. Thus, the need under Article 47 of the Charter to provide effective judicial protection of EU law rights meant that restricting the ability of the national courts to review the decision of an employer to impose a discriminatory requirement would be contrary to EU law.

Next, the Court held that the objective of Article 4(2) of the Directive was to ensure “a fair balance” between the autonomy rights of religious organisations and the right of workers to be free from discrimination. The Directive “sets out the criteria to be taken into account in the balancing exercise” and in the event of a dispute it must be possible for the balancing exercise to be reviewed by a national court. For the Court, the commitment to respecting the status of religious organisations in Article 17 of the Treaty could not change this conclusion.

That article’s function was:

‘to express the neutrality of the European Union towards the organization by the Member States of their relations with churches and religious associations and communities […] [and] is not such as to exempt compliance with the criteria set out in Article 4(2) of Directive 2000/78 from effective judicial review.’

Guidance on the Test to Be Applied

Having found that the German legislation was not compatible with the Directive the Court then had to address two further interesting issues. First, it had to give guidance to the national court on the question of how the ‘fair balancing’ ought to be carried out and then it had to advise on how to implement the consequences of its finding in the case.

In relation to how to carry out the ‘fair balancing’ the Court had to walk a tightrope. It acknowledged that under ECHR case law, states are precluded from assessing the legitimacy of the beliefs of a religious organization. However, it also had to ensure that the imposition of an occupational requirement relating to religion or belief was, in the words of the Directive ‘genuine, legitimate and justified, having regard to [the] ethos [of the religious employer]’. Thus it had to decide how to recognize the necessarily subjective requirements of the ethos of the employer, with the seemingly objective requirements of the ‘genuine, legitimate and justified’ test.

The Court adopted an approach that is significantly more objective than the approach taken in German law. It set out a test under which religious organisations must show an ’objectively verifiable existence of a direct link between the occupational requirement imposed by the employer and the activity concerned.’ Thus, in order to meet Article 4(2)’s requirements that the difference in treatment on grounds of religion be ‘genuine, legitimate and justified’ the Court held that:

‘To be considered ‘genuine’: ‘professing the religion or belief on which the ethos of the church or organisation is founded must appear necessary because of the importance of the occupational activity in question for the manifestation of that ethos or the exercise by the church or organisation of its right of autonomy.’

To be considered ‘legitimate’ it found that the national court must ‘ensure that the requirement of professing the religion or belief on which the ethos of the church or organisation is founded is not used to pursue an aim that has no connection with that ethos or with the exercise by the church or organisation of its right of autonomy.’

And to be considered justified the CJEU set down that ‘the church or organisation imposing the requirement is obliged to show, in the light of the factual circumstances of the case, that the supposed risk of causing harm to its ethos or to its right of autonomy is probable and substantial, so that imposing such a requirement is indeed necessary.’

Finally, although a proportionality requirement is not included in the text of Article 4(2) (and is included in other Articles of the Directive), the Court held that as proportionality is a general principle of EU law, the exemption given by Article 4(2) is to be read as being subject to a proportionality requirement.

Applying the Ruling

Given the possibility of a clash between German law and the requirements of the Directive the German court asked for guidance on how it should proceed if it proved impossible to interpret domestic law so as to comply with the Directive (bearing in mind the contra legem exception in the Marleasing line of case-law on the indirect effect of Directives; ie a national court cannot be required to interpret national law consistently with a Directive to the extent of ignoring the express wording of national law).

The Court seemed to doubt that an interpretation consistent with EU law was impossible, noting that the duty to interpret national law consistently with EU law included a duty for national courts ‘to change their established case-law where necessary’ (referring to the DI judgment on age discrimination, discussed here). However, it went on to say that should consistent interpretation prove impossible then the Court should disapply national law and give effect to the relevant EU law rights itself.

It justified this position on the basis that Directive 2000/78 did not establish the right to equal treatment. Rather it sets out a framework for combatting discrimination on various grounds. The right to equal treatment is, the Court held, a general principle of law and is enshrined in Article 21 of the Charter. Given that Article 47 of the Charter requires that adequate judicial protection be given to such rights, national courts have to ensure ‘the judicial protection deriving for individuals from Articles 21 and 47 of the Charter and to guarantee the full effectiveness of those articles by disapplying if need be any contrary provision of national law.’ This develops earlier case law on the issue of when the Charter itself does (and does not) have direct effect, in particular the AMS case discussed here; and it confirms the UK case law on the direct effect of Article 47 (Vidal-Hall and Benkharbouche, discussed here and here).


The Court of Justice has given a notably constitutionalized interpretation of the Directive in this case. It has relied on the Charter and general principles of law to read a proportionality test into Article 4(2) that did not appear in the text. It has insisted on proportionality as the framework within which the ‘fair balancing’ of the autonomy rights of religious employers and equal treatment rights of employees must take place.

This approach is in tension with recent trends in the caselaw of the Strasbourg Court. In cases such as Fernandez Martinez v Spain, the Court of Human Rights had moved away somewhat from the balancing of rights seen in its earlier caselaw and had moved closer to the ‘ministerial exemption’ model used in the United States, under which religious organisations have an absolute exemption from non-discrimination laws in respect of roles that include religious functions. Given the strong emphasis placed on proportionality by the EU legal order, unsurprisingly, in Egenberger, the Court of Justice has clearly come down in favour of the balancing approach (see R. McCrea “Singing from the Same Hymn Sheet? What the Differences between the Strasbourg and Luxembourg Courts Tell Us about Religious Freedom, Non-Discrimination and the Secular State” Oxford Journal of Law and Religion (2016) 5(2) 183-210, 198-99).

The Court’s insistence that EU non-discrimination law merely codifies a self-executing (and horizontally directly effective) constitutional general principle of non-discrimination law represents a continuation of the controversial line of cases beginning in Mangold which has attracted significant criticism, including from national courts given the potential for legal uncertainty that such an approach involves. Here, the Court of Justice has made it clear that the EU’s constitutional commitment to proportionality means that religious bodies may only impose discriminatory conditions on employees when it is proportionate to do so and national courts must be empowered to ensure religious employers do not exercise their right to discriminate in a disproportionate way.

This is in tension with the approach adopted by the German legislature which, in the light of German constitutional guarantees of religious autonomy, gave very restricted powers to the courts to second guess the decisions of religious bodies in this way. Given that EU and German constitutional norms appear to be in tension with each other in this way it will be interesting to see how this ruling is applied by the national court. The German constitutional provisions on religious autonomy go all the way back to the Weimar constitution and are taken very seriously, though it may be an exaggeration to view them as constituting the kind of core ‘constitutional identity’ that might trigger a refusal by the German courts to give primacy to EU law.

Barnard & Peers: chapter 9, chapter 20

Photo credit: Wikimedia Commons

Friday, 13 April 2018

Childhood’s End? The Court of Justice upholds unaccompanied child refugees’ right to family reunion

Professor Steve Peers, University of Essex

Turning 18 is a big moment in any young person’s life. Although it rarely entails, by itself, an immediate change in their social and economic links with their parents, it is widely recognised as a significant rite of legal passage, marking as it does the official date of becoming an adult.

But what if the main legal impact of turning 18 is not the enhancement of a young person’s legal rights, but rather their deterioration? That is often the scenario in immigration or asylum law, in particular for those who need protection the most: unaccompanied minors. Since immigration and asylum procedures often take some time, the question then arises what happens if applicants are underage when a process began, but become an adult before it finishes. Do they retain throughout that process the special legal protection accorded to children? At what point exactly does that special legal status end?

That was the issue in yesterday’s judgment in A and S, which was the first time the Court of Justice has ruled on the family reunion rights of child refugees. The judgment concerns the EU’s family reunion Directive, which contains special rules for the family reunion of refugees in general, and unaccompanied minor refugees in particular.  However, it is possible that it has an impact on the status of young people in EU immigration and asylum law more generally.

The basic EU rules on family reunion

The EU’s family reunion Directive sets minimum standards, so states can be more generous if they wish. It mainly concerns reunion of spouses and minor children with a non-EU sponsor; admission of further family members is optional in most cases. It does not apply to the UK, Ireland and Denmark. However, it will apply to family reunion of UK citizens in the EU (besides those living in Ireland and Denmark) after the post-Brexit transition period, when the UK is no longer covered by EU free movement law, unless (a) they are covered by the withdrawal agreement (see discussion here), or (b) the EU (or, if legally possible, individual Member States) and the UK agree special rules on post-Brexit family migration.

The standard rules in the Directive require that: the sponsor has a residence permit valid for at least one year, and has “reasonable prospects” of obtaining permanent residence; the family members must reside outside the territory when the application is made (although Member States can derogate from that rule); “public policy, public security or public health” are grounds for rejection; conditions relating to accommodation, sickness insurance and “stable and regular resources” may be imposed; Member States may require “integration measures”; and there can be a waiting period of two years of lawful stay of the sponsor before family reunion takes place.

There are also exclusions from the scope of the Directive. It does not apply at all to: asylum seekers; persons with temporary protection; persons with subsidiary protection on the basis of national or international law; and family members of EU citizens (whether they have moved within the EU or not). Implicitly it does not apply to irregular migrants, since by definition they do not have a residence permit with the prospect of long-term residence, until and unless Member States decide to regularise their status.   

Member States can set lower standards than the Directive, where it allows for such derogations, although this is subject to detailed conditions. These derogations exist as regards: children over 12, who arrive separately from the rest of the family; minimum ages for the sponsor or spouse; children over 15; and a waiting period of three years.

The Court of Justice has ruled on the Directive several times, as regards: its validity in light of human rights concerns (EP v Council); its application to dual EU/non-EU citizens (O and S) the sufficient resources condition (Chakroun and Khachab); the minimum age of spouses (Noorzia, discussed here); and the integration conditions (K and A, discussed here). Pending cases concern: the application of the Directive by analogy to family reunion with “home State” EU citizens (C and A) and persons with subsidiary protection (K and B and E); the rejection of a separate residence permit due to failure to comply with integration conditions (K); and loss of a residence permit due to fraud which the family member was unaware of (YZ and others).

As well as the special rules for refugee family reunion set out in the original Directive, subsequent EU legislation contains more favourable rules for the family reunion of other groups of non-EU citizens: holders of an EU Blue Card for highly-skilled workers (discussed here); intra-corporate transferees (discussed here); and researchers (discussed here). The proposal to amend the Blue Card law (discussed here) would enhance these rules further. Yesterday’s judgment is the first time the ECJ has interpreted any of these special rules.

Exceptions for refugees

The special rules apply to a refugee who has been “recognised” by a Member State, meaning that their asylum application for refugee status in that State was successful. A “refugee” is defined not by reference to EU law, but to international law – the UN (Geneva) Convention on the Status of Refugees and its protocol – since the Directive was adopted before the EU adopted its own asylum laws. Member States. Member States may limit the special rules to family relationships which predate entry to the Member State.

These rules waive a number of conditions for family reunion: the optional derogation for those over 12; the conditions relating to accommodation, sickness insurance and “stable and regular resources” (although Member States can apply those conditions if the sponsor or family members have “special links” with a non-EU country, or if the application was submitted more than three months after refugee status was granted); and the waiting period. The rules on evidence of family relationships are also relaxed, in the event that documentary evidence is unavailable. Finally, the optional “integration measures” requirement can only be applied after family reunion, whether the family relationship existed before entry or not. 

Conversely, other conditions still apply: the requirement of a residence permit valid for at least one year, with “reasonable prospects” of obtaining permanent residence; residence outside the territory when the application is made; and “public policy, public security or public health”. Satisfying the first of these criteria is made easier by EU law, since the Qualification Directive requires refugees, once their status is recognised, to receive a residence permit valid for at least three years, and refugees can qualify for EU long-term residence status under the relevant Directive.

Most importantly for our case, the refugee rules make the admission of the parents of unaccompanied minor refugees mandatory, rather than optional; and they waive the conditions that otherwise apply to the admission of migrants’ parents (they must be “dependent” on the sponsor and they “do not enjoy proper family support in the country of origin”).

The judgment

The A and S case concerns a young Eritrean woman who arrived in the Netherlands and made an asylum application just before turning 18. Her application was successful after her birthday, and a NGO shortly afterward applied on her behalf for admission of her parents and siblings on the basis of the special rules in the family reunion Directive.  But could she rely on the special rules at all – given that she was over 18 when the application for family reunion was made, and indeed when her refugee status was recognised?

The Dutch government argued that the relevant date when a person must be considered a minor should be determined by national law, while the Commission argued for the date of the application for family reunion, and the Polish government argued for the date of the decision on the family reunion application. The applicants (the young woman’s parents) argued for the date of her initial entry onto the territory. No one argued for another reasonable possibility: the date of the decision on the refugee application (although that would raise the question of what the date would be if that decision was appealed). Ultimately the Court decided that the relevant date was the date of applying for refugee status.

The Court’s starting point was (as it had ruled before) the “right” of family reunion guaranteed by the Directive, which the addition of the intention (in the preamble of the Directive) to ensure “more favourable conditions for refugees for the exercise of” that right, “on account of the reasons which obliged them to flee their country and prevent them from leading a normal family life there”. Those more favourable rules include a mandatory admission of the parents of unaccompanied minors, waiving the normal conditions which would usually apply.

Next, the Court noted that the definition of “unaccompanied minor” in the Directive was not absolutely fixed at entry: parents could arrive after the child’s entry, or desert the child after entry. In that context, it was unclear from the text of the Directive when the requirement of being 18 had to apply. But that did not mean Member States had discretion to decide that issue; the Court applied the normal rule that in the absence of an express reference to the laws of the Member States, a provision of EU law “must normally be given an autonomous and uniform interpretation throughout the European Union, and that interpretation must take into account, inter alia, the context of the provision and the objective pursued by the legislation in question”.

Since other provisions of the Directive refer explicitly to national law, the absence of such a reference in the definition of “unaccompanied minor” had an a contrario effect. The objective of the Directive was to give a right of admission to their parents, in the context of protecting family life with more favourable conditions for refugees. This case had to be distinguished from Noorzia, on the minimum age of spouses for family reunion, which concerned an optional rule that expressly gave Member States discretion to decide on the age.  Ultimately, then, the issue could not be left to each Member State to determine.

Rather, the uniform definition of “unaccompanied minor” had to be determined “by reference to the wording, general scheme and objective of that directive, taking into account the regulatory context in which it is found and the general principles of EU law”.  As noted already, the wording didn’t settle the issue. The general scheme included the exclusion of asylum-seekers from the scope of the Directive, and the application of the special rules only after the refugee had been “recognised as such by the Member States”. In that context, the Court noted that the EU’s Qualification Directive requires refugee status to be granted if an applicant satisfies the relevant conditions, and states that “recognition of refugee status is a declaratory act”, so that a person who meets the conditions for refugee status “has a subjective right to be recognised as having refugee status…even before the formal decision is adopted in that regard”.

So it followed that the date for assessing the applicant’s age could not be when the decision on refugee status was taken.  Such an interpretation would make status as a minor dependent on the functioning of national administrations, and thus undermine the effectiveness of the family reunion rules and the aims of the Directive, along with “the principles of equal treatment and legal certainty”. That’s because two different children of the same age who applied for asylum would be in a different position depending on how quickly their application was processed, an issue which was outside their control – governed rather by Member States’ decisions about organising their administration. In any event, due to “substantial surges” in asylum applications, decision making might be long winded and “time limits laid down in that regard by EU law are often exceeded”, so a “substantial proportion of refugees” who are unaccompanied minors might be denied their family reunion right. (Note that, with respect, the Court is confused here: the rules in the EU’s asylum procedures Directive on time limits to decide on asylum applications don’t apply until July 2018).

Rather than taking up the option in EU law to fast-track such cases, there might be the “opposite effect”, which would frustrate the objectives of EU legislation and the EU Charter rules on rights of the child. Here the Court obliquely recognises the possible cynicism of national interior ministries, which might simply delay deciding on applications until a child turns 18 if that would lead to preventing the admission of parents. Furthermore the Court rules that using the date of the decision on refugee recognition would “undermine legal certainty” for the young applicants as regards their family reunion.

The Court’s preferred interpretation – using the date on which the asylum application was submitted – “enables identical treatment and foreseeability to be guaranteed for all applicants who are in the same situation chronologically”, as the outcome would depend on facts intrinsic to them, not to the efficiency of national administrations.  However, the Court did accept the argument of the Dutch government and the Commission that some time limit should apply. In the judges’ view, a “reasonable time” would “in principle” be three months after the decision on refugee status, matching the optional three-month deadline explicitly set out in the Directive for refugees to make an application for family reunion before the conditions of accommodation, sickness insurance and sufficient resources apply.

Finally, the Court rejected other possible dates to determine the young person’s age: the date of entry into the territory of a Member State had to be rejected because of the link of the family reunion right with refugee status, which could only be granted after an asylum application; and the date of applying for family reunion, or the date of the decision on that application, would infringe the basic logic of the Court’s reasoning.


The core motivation of the Court’s judgment – to give broad effect to family reunion rights in general, and to the special family reunion rights of child refugees in particular – reflects a rights-based reasoning, rather than the control-based approach taken by many Member States and the EU institutions during the perceived “refugee crisis” of the last few years. Although the Court ties its interpretation of the family reunion Directive closely to the asylum process – even though there was no EU asylum law when the Directive was adopted – it nevertheless views that process with suspicion, as a potential mechanism for frustrating the applicant’s rights. The Court may have an opportunity to develop this line of reasoning further soon, if it is willing to answer questions in the pending cases (referred to above) where the Member State concerned has extended the special rules for refugees in the family reunion Directive to apply also to sponsors with subsidiary protection status (an alternative form of “international protection” which applies where applicants don’t satisfy the criteria for refugee status).

If the Court had fully followed its own logic on the declaratory effect of granting refugee status, then its final conclusion of using the date when the minor applies for asylum is suspect, for the child concerned must have been a refugee either as soon as they entered the territory, or at some later point (likely before they actually applied for asylum) when the situation in their country of nationality or (if stateless) habitual residence changed for the worse. While the Court is right to say that the Directive links the special family reunion rights with refugee status, that link is built in to the Directive anyway because the special family reunion right can never be triggered in the first place unless a successful asylum application is made. In any event, the Court’s judgment means that it is wise for an unaccompanied child who is nearly 18 to apply for asylum as soon as possible after entering the territory, to avoid any risk that they will not be able to invoke the special family reunion rights in the event that their application for refugee status is successful.

What constraints do Member States still retain on family reunion for refugees just turning 18? They can still try to limit access to their territory for the would-be young refugees. However, if those potential refugees make it to the territory, Member States can’t simply ban minors from applying for refugee status in the first place, since the asylum procedures Directive requires that they must be able to apply for asylum one way or another. If refugee status is granted, Member States can use any of the applicable options to restrict family reunion in general or the special refugee rules in particular that they have not already invoked. (Note that some of those options are off the table, since they are subject to a “standstill” rule and so had to be invoked already if they were going to be validly applied).

The Court even gives Member States a new limitation: a possible three month deadline “in principle” for the young refugees to trigger the special rules for their parents to join them. But if the sponsors are subject anyway to the three month deadline to avoid the conditions of accommodation, sickness insurance and sufficient resources, they will need to move quickly in any event. Although refugees have rights to employment in the qualification Directive, it might be hard for a young refugee to find a good enough job in the time available (access to employment for asylum seekers is limited, by the EU’s reception condition directive); and unlike EU free movement law, the family reunion Directive, as confirmed by the case law (see Khachab) requires the sufficient resources to come from the sponsors, not from their family members. In light of the principle of effectiveness, the three month deadline should not apply to those who were wrongly deprived of their family reunion rights before the Court’s judgment (see the recent King judgment on working time holiday pay, by analogy),

Are there broader implications of the judgment for other EU asylum legislation? (There are also special rules on unaccompanied minors in the EU’s returns Directive, concerning irregular migrants). This would be relevant to the qualification Directive, which includes, among other things, an obligation to trace unaccompanied child refugees’ family members. For its part, the asylum procedures Directive grants unaccompanied minors, among other things, exemptions from some procedural limitations; it also sets out rules on the sometimes controversial issue of assessing the age of children in the event of a dispute. The reception conditions Directive also requires some special treatment of unaccompanied minors, including in the context of detention. Finally, the Dublin rules on responsibility for asylum seekers contain a special rule for responsibility for the asylum applications of unaccompanied minors, which the Court of Justice previously interpreted generously.  Like the family reunion Directive, all this legislation has essentially the same definition of “unaccompanied minors” as the family reunion Directive, without addressing the “passage into adulthood” point, so logically ought to be interpreted the same way. (Note that conversely, EU criminal law legislation on child suspects’ rights – discussed here – does explicitly address this issue, setting out rules on this point similar to the Court’s family reunion judgment in its Article 2(3)).

The Court’s judgment might cause political difficulty for Member States, given that the special rules on unaccompanied minors were highly contested when EU refugee legislation was last renegotiated, ending in 2013. (A modest proposal on unaccompanied minors and the Dublin rules, dating from 2014 and discussed here, got nowhere). The issue may well arise again now that the legislation is being revised a further time, in particular as regards the Dublin rules, where (as discussed here), the Commission seeks to overturn the Court’s prior ruling in favour of unaccompanied minors.

Legalese aside, what is the impact of the new judgment for the families of young refugees? It means they can come straight to the Member State where their child lives, without having to go through the Dublin process first. (Although the Dublin rules allocate responsibility to the State where a family member is a refugee, there are sometimes problems applying this in practice; and the Commission proposal to amend the Dublin rules seeks to undercut those family rules indirectly). When they arrive, they will have access in principle to rights of access to employment et al on the same basis as their young refugee family member, as set out in the qualification Directive.

But most fundamentally, the ruling means that family members have safe passage: the obligation to give them authorisation for legal entry means they can travel to the EU without having to pay smugglers and risk mistreatment or drowning en route. So it’s no exaggeration to say that this judgment could literally save the lives of the parents of some vulnerable young refugees.

Barnard & Peers: chapter 26

JHA law: chapter I:5, I:6

Photo credit:

Tuesday, 10 April 2018

Extradition to non-EU countries – further developments in EU case law

Professor Steve Peers, University of Essex*

Today's ECJ judgment in Pisciotti on the extradition of citizens of a different Member State to a non-EU country (in this case, the USA) adds to its case law in this area – and has some interesting implications for Brexit. The new ruling builds on the September 2016 Petruhhin judgment on extradition of the citizens of another Member State to Russia, which I discussed in detail here.

The case concerns an Italian citizen extradited to the USA after being arrested while in transit in Germany. Having pled guilty and served his sentence in the USA, he returned and sued for damages, arguing that Germany should have treated him the same as German citizens, who cannot be extradited outside of the EU.

As in its previous judgment, the ECJ ruled that extradition of the citizen of a different Member State to a non-EU country in principle falls within the scope of EU law, since it interferes with free movement rights. In this case, the existence of an EU/US extradition treaty also brought the case within the scope of EU law, but the free movement point is more significant, since it brings non-EU extradition cases within the scope of free movement law whether the EU has an extradition treaty with the relevant non-EU country or not.

Moreover, the Court adopted a broad interpretation of free movement for this purpose, confirming that Mr Pisciotti could rely on his free movement rights even where he was only briefly in transit through another Member State. In fact, in its intervening 2017 ruling in Schotthöfer, it had accepted that even cancelling a presentation in another Member State due to fear of facing extradition from that State to a non-EU country was sufficient to trigger the application of free movement law.  On that basis, any EU citizen who wants to challenge an extradition request from a non-EU country by relying on EU free movement law in principle could arguably bring the issue within the scope of free movement law by buying a ticket for a cheap flight (or other transport) to another Member State and then cancelling it, claiming fear of extradition.

Of course, it does not follow that such a challenge will succeed on the merits. After noting that the EU/US extradition treaty left it open to Member States to refuse to extradite their own citizens, the Court pointed out that extradition of citizens of other Member States has to comply with EU law, whether issues arose under an extradition treaty with the EU, with the Member State concerned, or pursuant to national constitutions. Next, the Court confirmed its prior ruling that while in principle citizens of another Member State must be treated the same as nationals of the State they are in, this does not extend to absolute equal treatment as regards refusal to extradite that State’s own citizens (a rule which many States apply to their own citizens, except within the European Union). That’s because it’s justified to derogate from the equality rule on the grounds of avoiding impunity for prosecution for criminal offences. (Note that while the latest case, and the first case, decided by the ECJ concern pending prosecutions, the intervening Schotthöfer case concerned a sentence for a criminal offence. The Court did not discuss the possibility of transferring that sentence).

This derogation is subject to the principle of proportionality. Again applying that rule, the Court ruled that this means that the Member State which the fugitive is a citizen of must also be contacted and be given the option to prosecute. The Court rejected objections of Member States to the Petruhhin ruling on this front, restating the priority given to prosecution by the EU citizen’s Member State of nationality – if that State has jurisdiction to prosecute. (The position of dual citizens of two Member States – or of a Member State and a non-EU country – hasn’t been addressed yet). Presumably where a sentence has already been handed down, the Member State of nationality should be given, by analogy, the opportunity to transfer the sentence under the relevant international treaty (assuming that the Court did not intend Schotthöfer to rule out sentence transfers entirely).

Impact on Brexit

After Brexit day, there are two periods to consider as regards extradition between the UK and the EU. First of all, the European Arrest Warrant law will apply during the transition period, but the EU27 position is that some Member States want to refuse extradition of their own citizens for constitutional reasons (see Article 168 of the latest draft of the withdrawal agreement, which is not yet fully agreed). It might be arguable whether this line of case law on extradition to non-EU countries also applies; perhaps the withdrawal agreement (or at least a declaration to it) should address this. At the end of the transition period, the validity of outstanding European Arrest Warrants issued before that date is governed by Article 58 of the draft agreement, although that text has not been agreed yet either.

After the transition period ends – unless it is somehow extended – then either the UK and EU will fall back on general extradition law, or conclude a new treaty dealing with these issues. The UK government prefers the latter option, and I have discussed this idea here. Again the question will arise whether this case law on non-EU countries will apply, and that question will arise under either scenario. In today’s judgment, the Court of Justice analysed the text of the EU/US extradition treaty, and it would equally have jurisdiction to rule (for the EU side) on how to interpret any EU/UK treaty; but note that it said such treaties have to give way to the application of primary EU law (the Treaties) in any event. So the Court’s approach – give a Member State the possibility of prosecuting its own nationals first, where it has jurisdiction – will necessarily limit extradition to the UK after the end of the transition period.  

Human rights

Although today's ruling did not mention human rights, presumably because Mr Pisciotti had already served his sentence in the USA without any reported allegation of human rights concerns, the ECJ's earlier ruling in Petruhhin said the risks of torture or other inhuman or degrading treatment in Russia had to be considered pursuant to the EU Charter of Fundamental Rights, taking account of the relevant ECJ and ECHR case law. Subsequently, the ECJ ruling in Schotthöfer said extradition to face the death penalty in a non-EU country is ruled out. These limitations to extradition on human rights grounds will be relevant to any non-EU country; let us hope that there is never any reason for a genuine concern as regards the UK on these grounds after Brexit.

*Disclosure: I am a special adviser to the House of Lords EU Committee on an inquiry into a future EU/UK security treaty. The comments in this blog post are purely personal.

Barnard & Peers: chapter 25, chapter 27

Photo credit:

Our peace is worth more than your Brexit: A Personal Reflection on the Good Friday Agreement

Sarah Kay, human rights lawyer

In the spring of 1998, I was a sulky, resentful young teenager. I had grown up in a tiny one-story house with my grandmother and my incoming, outgoing band of cousins. My grandfather, active in the Republican movement, had passed a few years before. I was very fortunate to be able to travel to the continent during the summer, where my parents had custody of me. It was a door to the outside world very few in West Belfast had access to. Our world was small, confined by walls, stuck between few prospects of upward mobility and a perpetual cycle of conflict. Sometimes, during bank holidays we would cross the border, a much more difficult endeavour than it is now, to see relatives in north Dublin.

What transpired on 10 April 1998 took years in the making, building on the failures of what would have become the 1993 Downing Street Agreement. Others recalled the historical negotiations before. This twentieth anniversary however will not unfold the way we expected it to then, or ten years ago. The Brexit referendum of 2016 placed the Northern Irish situation in peril, forcing the bulk of the negotiations - at least on the EU side - on the customs union the Prime Minister vowed to leave. A quick look at the Good Friday Agreement turns it into three words that Brexiteers should fear: it is the ultimate challenge to the divorce they intend to seal, firstly because of its legal status, and secondly thanks to the protections it affords.

The Good Friday Agreement and international human rights law obligations

The Good Friday Agreement is a multilateral agreement with the outstanding qualification that it was ratified by a referendum of mutual consent, meaning that voters across the border – in the Republic of Ireland and in the North of Ireland – had to agree to its terms for those to be enforced. It places a specific emphasis on the respect of the European Convention on Human Rights (ECHR) and the Bill of Rights of Northern Ireland from both legislative and judicial processes; it requires that cross-community consultation and cultural equality be paramount in the future of Northern Ireland.

In 2017, ​an impact assessment paper was commissioned for the European Parliament​ on what Brexit would mean for the devolved region that had been too solemn to be as vocal as Scotland, and too unstable to even maintain its own executive representation. Since the late Martin McGuinness resigned as deputy First Minister, Northern Ireland has been without an Assembly, and under threat of London voting its budget under the principle of Direct Rule. Brexit has stoked fear that London would regain sole authority of this portion of the island, leaving behind the segment of the population that identifies as Irish or both Irish and British. The Good Friday Agreement provides for the unique situation of letting residents choose the sovereignty under which they are governed, or keep simultaneous identities.

Under such provisions both the United Kingdom and the Republic of Ireland are co-guarantors of the enforcement of the Good Friday Agreement. They demand, among other things, that relations with the Republic and with the European Union not be strained by any political action that would not be reached by the aforementioned mutual consent. Brexit, by all accounts, is a breach of the Good Friday Agreement itself.

It however does not require nor demand continuous EU membership: t​he decision of the High Court in Belfast with regards to the triggering of Article 50​ underlined that the GFA mentions Northern Ireland’s status as part of the UK or the event of reunification with the Republic. According to the EuroParl paper, this assumption of continued EU membership in Strand Two is crucial for the Good Friday Agreement to be preserved. There is no alternative to the joint membership of the co-guarantors unless the GFA itself is revised. This is a risk many are unwilling to take. The rights outlined in Strand Two may appear harmless enough to the untrained eye, but they are present after years of negotiations over the freedom of political thought, the freedom from sectarian harassment and the right to freely choose one’s place of residence.

Recently, the institute for Ireland released a graphic explaining how tall the Belfast’s most infamous “peace line” - the separation wall on Cupar Way – is compared with the Berlin Wall and the Palestine Wall. Our architecture of conflict is slightly sanded off the edges by an agreement that does not force anyone to live on a given side of any wall. For children like me, for whom the sun rarely rose on one side, this is change at its most effective.

I once wrote, at the time of the Brexit referendum, about the Irish border being a fault line in the minds of the GFA generation and those coming before it. My phone still capitalizes it as if it was the only demarcation line still standing (“the Border”). What separates it from our commonly shared idea of what constitutes the line separating one nation from another is that it is, very much, physically inexistent. This fluidity has also been facilitated across the years by harmonisation between EU services, namely trade, regulation, but mostly just one element: the passing of time.

Over physical structures, such as checkpoints, grew grass. Over terrains belonging to customs authorities sprang country roads; the ground was returned to farmers or house owners. A considerable portion of the local residents are cross-border commuters, meaning they lived in the north and worked in the south, or vice-versa, allowing freedom of movement within the custom union to provide for the change in currency. Annex Two, Strand Two of the GFA does not address the border; the word appears ten times in the whole of the document, in relation to cross-border community relations. This is where much of it lies: the divide, once physical and technical, legal as political, was allowed to be sanded off, for the improvement of community relations and the fluidity of identity. It requires however that provisions be made for support of commuting workers, that entitlement and services be distributed the same.

A return to a physical border would endanger those rights, presumably granted with the view that relations will only improve over time and politics would cover “the island of Ireland”, as is noted in the document, as opposed to two very distinct elements, one a state, the other region, floating into space in weather forecast, separated and perhaps not even equal.

The Good Friday Agreement and its role in Northern Ireland’s political existence

Some have been callous and craven enough to claim that the Good Friday Agreement was a failure, that the peace process in Northern Ireland had not been successful and needed revision,  self-governance had collapsed and Direct Rule could be a bridge to a future. ​In an excellent piece for the Huffington Post​, Durham Law scholar Dr. Alan Greene explained that the multilateral agreement was not meant to be thorough or comprehensive enough to see Northern Ireland through the complex successive stages of political transition from conflict. The document is a template that outlines safeguards and necessities of implementation on which the future of Northern Ireland can be built.

For us in Belfast, Derry, Ballymena, and everywhere along County Donegal, it’s a reality for which we had committed in 1998 to vote in favour of the text. Some voted against, including the DUP. They did not recognize the equal footing of communities that the GFA demanded, and would not look into a future in which shared power would be drafted. This is one of the reasons why the Tory-DUP deal asked by Theresa May following her poor performance in 2017’s General Election caused much distress in this particular devolved region: it signaled an alliance with a party that was ready to place sectarianism ahead of governance and violence ahead of stability.  20 years ago, the DUP was the only large party to oppose the GFA.

In 2018, Northern Ireland finds itself without an executive to represent its voices during one of the largest transition periods of British history, an exit from the European Union it helped build. The English press is discussing its border as if it was a strict technical issue and was not linked to the provisions in the text that allow for the coexistence of previously conflicting identities. No one is asking my generation, people aged 30 and older, what its memories of approaching the fault line are, or what the difference power-sharing made. However incomplete the Good Friday Agreement is, it is a foundation without which the conflict could have never subsided. It is placing the interest of both and increasingly varied communities above sectarian politics, under the umbrella of two nations that simultaneously accessed EU membership based on a legally binding agreement a conflict had to be resolved.

The conclusion is thus: no possible risk that should be taken. For many outside critics of a “hard Brexit”, the situation in Northern Ireland belongs to a bygone era - that of my childhood - one that has been solved and has the unfortunate legacy of difficult and opaque litigation in local courts. It is a conflict that, for most, has been out of sight and out of mind. But the gaps and blanks of the Good Friday Agreement are opportunities to solidify the institutions that have preserved at least a semblance of equity and approached governance with integrity and peacekeeping.

While EU membership is often perceived by bleeding heart lawyers such as myself as a guarantor of peace and stability, examples abound to the contrary. Transnational and supranational lawmaking does not come easy to a continent based on former empires. It is the downfall of one of those colonial powers that exists in Northern Ireland and that makes 20 years of relative quiet a very fragile structure. Brexit gambles with so much: security, trade, movement, and human rights. The latter are still a battlefield in Northern Ireland. Why should we give up our achievement in the name of a process still undefined?

Barnard & Peers: chapter 27

Photo credit: the author, West Belfast, aged 5

Wednesday, 4 April 2018

EU Court Condemns the EU Legislative Process for Lack of Transparency: Time to Open Up?

Massimo Frigo, Senior Legal Adviser of the International Commission of Jurist’s Europe Programme*

It is sometimes cases on obscure administrative processes that become landmark judgments in the ever constant building of our democratic legal systems. In the US Marbury v. Madison was a case that at the time attracted little attention as the subject matter related to respect of procedures in judicial appointments. This notwithstanding it came to be the legal milestone of constitutional review in the US legal system.

In the European Union one of these cases was decided on 22 March: Emilio De Capitani v. Parliament. As it will be outlined below, it is a technical case that goes to the heart of the procedure of one of the fundamental institutions in a democracy: Parliament.

The EU legislative decision-making process

Unlike the United States, the European Union is not a State. However, it retains more and more competence to legislate in areas of everyday life and of crucial constitutional State prerogatives, including in the sphere of justice and home affairs that includes immigration, asylum, border control, and police cooperation.

The legislative process of the EU may be generally simplified in this way: the European Commission, i.e. a body of supposedly independent experts appointed by the European Council (see, the 28, soon 27, heads of State or government of its Member States) and approved by the European Parliament (the only institutions directly elected by EU citizens), has the initiative to table legislation.

Once the proposal is tabled it is the turn of the co-legislators to discuss it, amend it, approve it or reject it. At any moment the European Commission can withdraw the proposal and put an end to the process.

The EU legislators are the European Parliament and the Council of the European Union. The latter consists of the Governments, often in the configuration of the ministries relevant to the legislative piece to be discussed, of the EU Member States. These two bodies must agree on the legislative text, and its potential modifications, and approve it in the same form before it can become law. They can do it in one or two reading sessions.

In the last decades, since this procedure (once called “co-decision” and now the “ordinary legislative procedure”) came to exist, a practical solution to speed up the legislative procedure was found by holding what are called “trilogues”. These are closed meeting among representatives of the Council of the EU, the European Parliament and the European Commission to find a compromise and produce an agreed text that will have to be voted by their respective committees and plenaries into law.

The practice of these trilogues is that no one from the public has access to them nor to any document on the proposed suggestions for compromise. Furthermore, when an agreement is reached, statistically, both the Parliament and the Council almost always approve the agreed compromise into law without further amendments. It is therefore a key moment in the legislative process. And it is absolutely foreclosed to EU citizens and civil society.

The case

Mr De Capitani brought a challenge to the General Court of the European Union, the judicial body competent for cases against EU institutions at first instance, because Parliament, after having consulted the Council and the Commission, refused him access to the part of a document in the legislative process. Specifically this part of the document is the fourth column in a tabled document that reports the compromises reached or suggested during the trilogues, while the first three of them include the original proposal and the positions of the institutions.

The judgment

The General Court ruled that, “contrary to what the Council maintains …, … the trilogue tables form part of the legislative process.” (para 75, , De Capitani)

It pointed out that

78. … it is precisely openness in the legislative process that contributes to conferring greater legitimacy on the institutions in the eyes of EU citizens and increasing their confidence in them by allowing divergences between various points of view to be openly debated. It is in fact rather a lack of information and debate which is capable of giving rise to doubts in the minds of citizens, not only as regards the lawfulness of an isolated act, but also as regards the legitimacy of the decision-making process as a whole … .

The Court dismissed the EU institutions’ exception that non-disclosure was necessary because the document dealt with a draft law in the area of police cooperation. The Court very strongly ruled that

89… the fact … that the documents at issue relate to the area of police cooperation cannot per se suffice in demonstrating the special sensitivity of the documents. To hold otherwise would mean exempting a whole field of EU law from the transparency requirements of legislative action in that field.

Furthermore the Court stressed that

90…. the documents at issue concern a proposal for a draft regulation, of general scope, binding in all of its elements and directly applicable in all the Member States, which naturally concerns citizens, all the more so since at issue here is a legislative proposal directly affecting the rights of EU citizens, inter alia their right to personal data protection …, from which it follows that the legislative proposal could not be regarded as sensitive by reference to any criterion whatsoever … .

The Court then dealt with the assertion that access to these documents could increase public pressure on the representatives of the EU institutions involved in the trilogue procedure:

98… in a system based on the principle of democratic legitimacy, co-legislators must be held accountable for their actions to the public. If citizens are to be able to exercise their democratic rights they must be in a position to follow in detail the decision-making process within the institutions taking part in the legislative procedures and to have access to all relevant information … Thus, the expression of public opinion in relation to a particular provisional legislative proposal or agreement agreed in the course of a trilogue and reflected in the fourth column of a trilogue table forms an integral part of the exercise of EU citizens’ democratic rights, particularly since … such agreements are generally subsequently adopted without substantial amendment by the co-legislators.

Finally, while allowing still the possibility for certain situations (“duly justified cases”) of non-disclosure for co-legislators, including Parliament (para 112, De Capitani), the Court closed by rejecting also the argument raised by Parliament that making public documents of the trilogue would have taken away the nature of these meetings as a “space to think” . The Court unmistakably reminded Parliament that these meetings are essential parts of the legislative procedure and not “spaces to think” and as such must be subject to the required level of publicity (para 105, De Capitani).

Conclusion: a more democratic EU?

The European Union does not enjoy today the best image in terms of transparency, accountability and democratic processes. Its institutions have been openly attacked from many different quarters for their lack of transparency and the bureaucratic nature of their procedures. Most of these attacks are populist fear-mongering that simply aims at finding a scapegoat to gain political traction, votes and, hence, power. However, as we have seen, some critiques of the EU structure cannot be simply dismissed as political nonsense and one of them is about the legislative process in the EU that affects the lives of almost 500 million people.

The De Capitani ruling throws a breath of fresh air to these institutions and, importantly, demonstrates that, while some institutions of the EU may be criticised for lack of transparency and obedience to the rule of law, there are institutions, notably the EU courts, that can address the problem within.

This ruling can still be subject to appeal before the Court of Justice of the EU. In the meantime and this notwithstanding, the crucial question is whether and how the ruling will be implemented. Will the Parliament, the Council, i.e. the Governments of the Member States, and the Commission open up to democratic scrutiny in legislative process?

The answer to this question will be vital for the EU to withstand any criticism that it does not obey the rule of law and democratic accountability. This is why this case is a turning point for the EU rule of law structure. Much of the legitimacy of the EU as a rule of law based supra-national organisation lies in what its institutions are going to do next. And we’d better be watching…

*Reblogged with permission from the Opinio Juris blog
Barnard & Peers: chapter 5, chapter 9

Photo credit: Walsall College