Lisbon Treaty & future 2Helen Toner

Outline Theme to examine Justice: Court of Justice jurisdiction and role: past, present and futureIncluding cases to explore how this role is developing and emerging as it is now an important emerging institutional influence

Court of Justice Originally limited jurisdiction 3rd Pillar generallyTitle IV EC in Amsterdam extended this but still restrictions remained until Lisbon: particularly, restriction to courts of last instanceContinuing arguments and discussions over extension of this

What significance?Really quite limited number of cases before 2009Eg many Dublin cases re Greece went through Strasbourg not LuxembourgPrevented the ECJ from playing proper role vindicating rule of law and interpreting/clarifying legislationRecent nature of legislation also relevant

Special procedures?Special procedures in ECJ introduced to address issues of speed and workload which were the reason for restricted jurisdictionUrgent proceduresAccelerated procedures

Accelerated procedureAccelerated procedure 104a Statute of CourtApplicable generally, not just to FSJ matters basically speeds up normal procedure

Urgency procedure104b Statute of CtAdded 2008 for FSJ cases, has been described as slightly second best procedure in terms of transparency, publication and AGs roleParticularly for urgent cases eg involving custody of children or detention. Likely to be used most in migration for cases involving detained migrantsIntended to deal with cases in weeks

Change in Lisbon TreatyLisbon Treaty essentially normalised ECJ jurisdictionNow permits any court to send case to the ECJ, though internal security restriction remains

Future role of ECJ?Can be anticipated to be significantly more important than has been so farFirst reference from lower court already (Diouf)Already occasional references to court judgments in reviews of the asylum legislationWhat kind of contribution to expect? Is there enough now to make a preliminary assessment?

EP v Council First major immigration case on FR Directive: challenges waiting periods and child age provisions, held no violation in DirectiveA disappointment? Pushing responsibility to MS too much?Yet does recognise the importance of Fundamental Rights, esp Art 8 and family lifeAnd flexible interpretation of Directive to allow MS room to comply and stresses obligation to do soGiving with one hand, taking with the other?

ChakrounIndication of real willingness to scrutinise details of family reunification policies intensivelyLevel of minimum income set at 120% minimum wage prevented automatic assistance and was average level above which discretionary assistance stopped

ChakrounInsistence on scrutiny of circumstances of each individual case and the general rule of 120% prevented that Special assistance on an individual basis should not be ruled outDistinction between newly arrived and existing family arrangements also not permitted

ElgafajiSubsidiary protection case risk of individual harm arising from indiscriminate generalised violence paradoxical marriage of these two terms!15(1)b&c Refugee Definition DirectiveSituation in Iraq

ElgafajiComplex but fairly generous interpretation of the terms of the Directive examining situation together with applicants particular circumstances not needed specific targeting, but indiscriminate violence only very exceptionally will qualifyIndependence of Art 15(c) QD from ECHR protection But in any event held compliance with ECHR Article 3, so no amendment of this bit of the Directive proposed in the amending recast

ElgafajiAlthough the judgment can be welcomed Little discussion of humanitarian law, UNHCR, travaux preparatoires, international criminal law, legal literature

PetrosianDublin transfer caseWas 6 month time limit for transfer to take place before host state had to keep and process the asylum application to run from final determination of appeal or from decision granting suspensive effect?Held from final ruling not initial suspensive rulingToo pragmatic and quick to see problems?

PetrosianYet also aware of the need for good decisions, aware of limits of procedural harmonisation and of possible undue pressure on States not to introduce suspensive appeals if they trigger time limit?Relatively technical decision? (Garlick)

AbdullaDeals with standard and burden of proof in withdrawing refugee statusApplies same burden and standard of proof on withdrawing statusAlso deals with sensitive issue of provision of protection by non-state actors/international organisations inserted into Directive

AbdullaAffirms respect for Geneva Convention and Charter of Fundamental Rights but how deeply does it engage with international law and caselaw? Does accept some aspects of Directive that have been questioned and criticised (international organisations providing effective protection)

Zurita GarciaSchengen borders code and CISADid they require expulsion and prevent system of administrative fine on first apprehension of irregular migrant?Pragmatic and realistic approach to this one isolated version seemingly suggesting obligation outweighed by several other factors and other language versions suggesting no obligation

KadzoevDetention under Returns Directive urgency procedure usedEarly implementing legislation periods of time before directive came into force detention under other powers what if no further detention permitted?

KadzoevLegislation was intended to implement the whole directive so looked at gapsTime in detention before directive came into force was considered detention under other powers excluded must be released if no further grounds for detention

KadzoevCredible and very welcome vindication of the rule of law and individual freedom throughout Resulted in the more or less immediate release of Kadzoev from Bulgarian detention

BolbolStatus of Palestinian under 12(1)a of Qual Dir, deriving from Art 1D of 1951 ConventionExclusion from Refugee Convention (and Directive) if receiving assistance or eligible to receive?UNHCR had expressed view, admittedly non-binding, Ct disagreed in favour of narrower view of the exclusion

Melki & AbdaliSchengen border controls within border zone (a) systematic ID checks (b) within border zone and (c) independent of conduct of person concernedProhibited by Art 67 TFEU and Reg 562/2006 if they have effect equivalent to border crossing checks

Melki & AbdaliArt 67 TFEU provides that the EU shall ensure absence of border controls, so refers on to secondary legislationDistinction between (impermissible) border controls and certain (permissible) checks in border areas. Provisions must have framework in place to ensure the authorities exercising this power do not exercise them in a manner that allows them to take on the nature of systematic border checks

Other pending cases?Gataev arrest warrant and asylum legislation interaction, transfer between member states and allegation of fleeing from persecution/prosecution in MS; (urgent procedure but removed from register)Diouf appeal against use of accelerated procedures under Art 39 Procedures Directive or as issue of right to effective remedy under general principles of lawD and B serious crimes, interaction of exclusion from asylum law and membership of/involvement in listed terrorist organisations

General conclusionsSlow startNot much evidence of court being overwhelmed by excessive caseload! But things will certainly speed up nowSome sensitive and important issues have arisen and are pending Court can only develop an increasingly important crucial role is it equipped?

General conclusionsCourt has shown enough evidence to be optimistic but only cautiously at this stageIs arguably capable of taking rights seriously within the constraint of the legislative framework, but some concerns do remainMore engagement with other caselaw, other international law, literature, is arguably necessary and will certainly enrich courts consideration

Fundamental Rights Stockholm Programme The challenge will be to ensure respect for fundamental freedoms and integrity while guaranteeing security in Europe. It is of paramount importance that law enforcement measures and measures to safeguard individual rights, the rule of law, and international protection rules go hand in hand in the same direction and are mutually enforced

Fundamental Rights How will this happen? Lisbon Treaty Changes Charter and ECHRA new era for rights protection? Especially in light of comments in Stockholm programmeMonitoring, enforcement, role of Fundamental Rights Agency?

Fundamental RightsYet the Stockholm programme has been criticised for falling short and for emphasising the AFSJ for citizens if the emphasis is entirely on citizens where does non-discrimination and equality, rights of non-citizens, come in?

Charter of Fundamental RightsInitial legal status not legally binding, development and drafting building on ECHR and national traditions to make rights more visibleLisbon Treaty will give this a new legal status, the same as primary Treaty lawBut with complex opt-outs in terms of court justiciability - what will this mean?

Potential significance?Harder legal status for ECJ to use to add to other fundamental rights arguments? It is common now to find reference to Charter in ECJ rulings to back up/reinforce conclusions already.Greater role in monitoring and pre-legislative scrutiny? tho has already been used here for some time.

ProtocolArticle 1 1. The Charter does not extend the ability of the Court of Justice of the European Union, or any court or tribunal of Poland or of the United Kingdom, to find that the laws, regulations or administrative provisions, practices or action of Poland or of the United Kingdom are inconsistent with the fundamental rights, freedoms and principles that it reaffirms. 2. In particular, and for the avoidance of doubt, nothing in Title IV of the Charter creates justiciable rights applicable to Poland or the United Kingdom except in so far as Poland or the United Kingdom has provided for such rights in its national law.

ProtocolArticle 2 To the extent that a provision of the Charter refers to national laws and practices, it shall only apply to Poland or the United Kingdom to the extent that the rights or principles that it contains are recognised in the law or practices of Poland or of the United Kingdom.

Significance undermined?What does the Protocol mean in terms of justiciability and use in court mean and what is its significance? Use in court precluded perhaps, and emphasis on national laws where Charter rights are subject to this, but this does not mean not legally binding in principle.Again, this means more fragmentation and undermining of fundamental nature of these rights? Deeply worrying symbolism?

Potential significance?What migration-law related rights could be strengthened?Obviously asylum (expressed as right of individual?), family and private life, torture etc, also right to fair trial, rights of child in relation to minors, education, legal aid, privacy and data protection etc

ECHR accessionLisbon TreatyNegotiations now opened for the accession and practical issues to be resolvedJudge in Strasbourg Protocols joining Member States and EU exhaustion of EU domestic remedies relationship of the two legal systems and courts

ECHR accession Most obvious impact is the individual complaint mechanism, potential subjection of the ECJ and EU legal order, including legislation, to direct outside independent scrutiny, co-defending procedures, exhaustion of remedies in EU law, and how the ECtHR and ECJ will interact

Pre-legislative scrutiny?Locking-in Fundamental Rights from outset of legislative and policy process?Impact Assessments since 2005 already to respond to thisCommission conducted review of how this operates in 2009 with attention to asylumIs it delivering on its potential promise?

Pre-legislative scrutiny?Recall recitals at the beginning of Directives anyway ...Already asserts compliance with rights, Refugee Convention, ECHR, etc etc How independent are Impact Assessments conducted by the Commission itself?

Asylum package scrutinyReception Conditions detention issues, including procedural rights, effective remedy, and rights of childDublin family unity strengthenedEurodac data protection issues examined closelyYET concerns still remain about how effective this is, how robust the scrutiny mechanisms are, the input that goes into them, and how prominent rights are among other issues

Pre-legislative scrutiny?Still no independent third section of fundamental rights impacts alongside trilogy of economic social and environmental impacts tho new Commissioner has now proposed to develop this at some stage, it is not yet in placeBut clearly a step forward in attempting to lock in fundamental rights protection and scrutiny from early stage and ensuring clarity in doing so

Role of new CommissionerJustice, citizenship and fundamental rights separated from internal affairs/immigrationWelcome separation, already very common in most MS, to provide greater independence of focus on rights and justice to balance security/internal affairs agendaInitially only Commissioners to be separated, now very recently announced the entire DG structure will be, so a deeper and more fundamental institutional division

Role of FRA?Information, data collection and advisory agency, expert not watchdog or enforcerReflects origins in Racism & Xenophobia monitoring centreIndependence somewhat questioned, limited scope for independent action, works within set thematic priorities, not a large role in pre-legislative scrutiny or monitoring implementation of legislation

Role of FRA?But slowly, role is increasing and strongly recognised that migration issues are of real interest in regard to Fundamental RightsBorders, migration and asylum; one of the current thematic priorities FRA is working toFRA was asked to comment on draft Stockholm Programme and produced comments on draft and final programmes: though it still had some critique

Role of FRA?Reports and current work on issues such as irregular migrants and removals, separated asylum-seeking children, interceptions at sea, child trafficking, asylum seekers access to remedies and information.Will begin to feed into reports on implementation of Directives, future policy developments, Action Plans, monitoring implementation of and possibly improving EU legislation. Could have significant impact if taken seriously.

Evaluation mechanismsAs well as pre-legislative scrutiny, evaluation mechanisms have a high profile in Stockholm Programme not just evaluation in abstract but implementation on the ground by Member States. Art 70 provides for this in Lisbon Treaty re implementation, but ongoing reviews and evaluation of legislation and its implementation by Member States is part of the Programme alsoSome Commission infringement actions have been taken

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

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