Thursday, 27 October 2016

EU Judge Dehousse’s Farewell Address to the CJEU

Introduction by Professors Alemanno & Pech

Readers of this blog will find below the English translation of Judge Franklin Dehousse’s farewell address, which he had hoped to give on the occasion of his departure from the EU General Court last month having served on its bench since 7 October 2003.

In an apparent break with tradition, no public ceremony was organised for the departing EU judges, and an internal meeting was arranged instead (see this article published in Le Jeudi on 22 September 2016). While regrettable, this is perhaps not surprising. Indeed, Judge Dehousse has been among one of the most outspoken critics of the controversial reform of the EU’s court system, which is now encapsulated in Regulation 2015/2422 and Regulation 2016/1192 (and which we have ourselves critically analysed here and here).

Dehousse’s assessment and alternative recommendations are comprehensively set out in three meticulously researched papers, which he published during the course of his judicial term:

- The Reform of the EU Courts. The Need of a Management Approach, Egmont Paper 53, 2011, December 2011;
- The Reform of the EU Courts (II). Abandoning the Management Approach by Doubling the General Court, Egmont Paper 83, March 2016
- The Reform of the EU Courts (III). The Brilliant Alternative Approach of the European Court of Human Rights, Egmont Paper 86, September 2016

Readers may also find of interest his paper dedicated to the Unified Court on Patents, published in 2013 (Egmont Paper 60), which explores inter alia the impact of the creation of a new European patent court on the EU’s court system.

The address below, which Judge Dehousse kindly authorised us to publish on this blog, contains many valuable insights into the internal workings of the EU courts and, at times, the testing relationship between its (then) three constitutive judicial entities, particularly with respect to the controversial doubling in size of the General Court, and the recent dissolution of the Civil Service Tribunal. His address also offers some sound advice on how any structural reform of the EU’s court system ought to be conducted in the future. Last but not least, the address explains how the CJEU should seek to better manage and conduct itself, failing which its authority may be fatally undermined, with potential negative consequences on the legitimacy of the EU as a whole. As such, this farewell address undeniably deserves, in our view, to be made easily accessible to EU scholars and interested readers. It is our pleasure to share it with you via this blog.

Alberto Alemanno, Professor of Law, Jean Monnet Chair of EU Law and Risk Regulation at HEC Paris and Global Professor of Law, New York University School of Law (Twitter: @alemannoEU)

Laurent Pech, Professor of Law, Jean Monnet Chair of EU Public Law and Head of the Law and Politics Department at Middlesex University London (Twitter: @ProfPech)

Judge Dehousse’s Farewell Address to the Court of Justice of the European Union

Ladies and gentlemen,

Dear colleagues, 

To me, any holder of public office must always present a report at the end of her or his function. This seems all the more necessary than those years were sometimes fraught with conflict. It must be acknowledged honestly in an Institution whose mission is to ensure the transparency of all other Institutions.

When I arrived here 13 years ago, this office was my seventh profession and my fourth European Institution, after the Parliament, the Commission, and the Council. European affairs had been at the centre of my multiple activities, whether in the public or private sector, at the national or international level, in legal circles or in the media. I thus arrived with much curiosity and enthusiasm. To give away the plot at once, my curiosity has been steadily increasing over the years though, in many respects, my enthusiasm has been declining.

During the first three years, I built a good team, which is absolutely essential here. I learned what I ignored. And we eliminated a huge backlog: a stock of more than 100 cases initially. After that, I wondered how I could still help the Institution. Thanks to my previous experience, I could obviously assist other cabinets with backlog, which was done. After that, according to Adam Smith and Ricardo, I searched for my comparative advantage. Management, ICT, inter-institutional relations, and strategy seemed to be rather rare talents here. I thus invested in these domains.  

On one hand, my initiatives focused on the management of the General Court, then in big trouble. For me, having followed many corporate restructurings, this required first a better evaluation of the production of the cabinets, and its production units. Moreover, before asking for any additional means, it seemed essential for the credibility of the Institution to show that it had exhausted all internal sources of productivity. To this end, I harassed the authorities to establish the first serious statistics on the backlog and its causes. This included concepts such as the infamous “PPPU” (the “productivity per personnel unit”), or the threatening “delays columns” (adding all delays for all cases) (for more comments on this, see my first report TEPSA / Egmont in 2011). Originally, all this was not popular at all. Often after long and painful discussions, these measures were nevertheless taken, to the honour of my colleagues. In my humble opinion, they played a vital role in the elimination of the backlog since 2011 - and without any additional resources. 

On the other hand, my initiatives focused on the management of the Institution. There, almost immediately, the problems started. Quickly the local leaders saw my initiatives as interferences, and even usurpations. Without commenting on all the episodes of this long saga, four at least deserve a brief comment.

First, in 2007, just before the signing of the Treaty of Lisbon, some of us learned that the President of the Court had sent a letter to Council in order to ask for a series of changes, presented as essentially formal, in the new Lisbon Treaty. After reading, these changes on the contrary appeared quite essential. Basically, they aimed for a large substitution of the Court to the Institution in various provisions.

Everyone, of course, has personal sensitivities. Mine were certainly accentuated by my previous experiences in treaty revisions. For me, everything in this episode was shocking. These were not mere formal changes, but essential amendments. They did not result from any official position taken by the Court of Justice. They had no detailed motivation. There had been absolutely no official information within the Institution, to the public or to the Member States, though they remain the guardians of the treaties. And, finally, these provisions were not improving the adaptability of the Treaties. On the contrary, they would have imposed more treaty revisions in the future. This largely destroyed my trust in the Institution’s management.

Secondly, information technologies (IT) became another conflict zone. From the beginning, this Institution had seemed to suffer from a strong problem in this area. Like many other institutions I have known, it had decided IT development in silos, uncoordinated from one another. However, unlike many others, it had never corrected this defect. For years, I tried to convince the people in charge in the IT committee of the need for a more global system of management. Though some understood that, it was impossible. A senior collaborator of the Court’s President constantly imposed his personal vision, in defiance of all others. Consequently, the Institution went on implementing simultaneously different and uncoordinated strategies. For example, three different internal communication systems were developed, without any study of possible synergies between them. Later, three different reference systems were simultaneously used for the jurisprudence.

In the name of hierarchy, this nonsense was maintained for many years. The Institution had not even a general plan of its IT systems until 2010! The “leaders” needed a half IT-crash to begin to see the need of one. Though the present managers try now to improve the situation, the legacy costs are extremely heavy, and the system is hardly optimal. As all experimented users know, even the research in jurisprudence encounters substantial problems.

With some administration officials, we have tried to stop this drift. Finally, after many debates, in 2010, the IT committee imposed a comprehensive analysis of the existing system before any new spending. Alas, the cabinet of the Court’s President had simply the minutes of the committee modified, despite the formal opposition of the Court’s registrar. This was my second shock. The next decisions were simply moved to a clandestine meeting. Meanwhile, the IT committee was still defining its own strategy, until finally, the IT committee was simply abolished.

This saga still leaves me startled. The suppression of the committee because simplistic instructions from above are debated reflects a very limited sense of debate. To do this while IT becomes absolutely central for all activity reflects a great managerial myopia. Finally, the episode shows the sometimes surreal character of an Institution where judges have apparently time to think about the choice of works of art, but not of IT solutions.

Third came in 2011 the legislative proposal to create new judges to the Tribunal. Let’s make a long story short. From the beginning, my first objective was to defend, as required by the Treaties, an open and transparent process. However, the process degenerated. The transmission of various General Court’s positions to Parliament and Council was blocked. There was absolutely no impact assessment or consultation process. As the press revealed, an unauthorized negotiation took place with one government only, and without the knowledge of the 27 other Member States. Questionable pieces of information were sent to Parliament and Council in an unsigned document, undated and unnumbered. (One suspects that if these pieces were so trustworthy one would have found someone to sign them in an Institution of 2,000 people.) Other secret letters in the Institution’s name popped up in the press. To these problems one must still add a highly questionable ethical procedure opened against one of my colleagues who had provided accurate judicial statistics at the EP rapporteur’s request. All this leading to a manifestly disproportionate doubling of the General Court, against its own repeated analyses from 2010 to 2014.

Again, this saga still leaves me speechless. Although I have seen in my career dozens of legislative procedures, that I had never seen. These events have convinced me to publish accurate and documented reports, to avoid their repetition in the future. (See the two reports TEPSA / Egmont 2016).

Fourth came the curious accelerated creation of high administrative positions in the terminal phase of one President’s cabinet. Apart from other considerations, creating very quickly such a position, under the exclusive impulse of the Court’s President, to manage a service of four people, without any general analysis of the services’ organization, nor any written position from the Court’s registrar (who is also responsible for all outlays), and based on vague projects (of which almost none were implemented thereafter) seemed to me strongly below the standards of good administration.

Many other topics could be mentioned, such as the specialization of the General Court, or the assignment of cases within it, both imposed by external interventions (something incredible for a judge); or the ability of the Courts’ Presidents to take fundamental decisions for the external representation without any preliminary debate with members; the distribution of resources between the registries; the questionable nature of an external activity; the use of drivers; the rights of trade unions to inform the personnel about the legislative proposal; or the right of citizens to have access to administrative documents, etc.

In this context, I fully understand that one can legitimately ask the question: why devote so much importance, effort and energy to these administrative and legislative issues, often overlooked?

My answer is simple. Each time, it was impossible to do otherwise. I've thought very often about it, trust me, and the same conclusion always came back. Such episodes do not correspond, in any case for me, to the role and values assigned to that Institution by the Treaties. A judge does not have the sole mission to care about principles in her or his judgments; s/he must also worry about them in their own institution. This is the meaning of the texts. Basically, this Institution is a collegiate one. Also, when the Courts’ Presidents have powers (which no one disputes), they are required to use them respecting a series of established principles by their own jurisprudence: (1) good administration, (2) transparency, (3) motivation, (4) compliance with judicial independence, and (5) accountability to the colleagues who elect them. This must be said here very clearly: according to the existing texts, this Institution is based on the principle of checks and balances, cherished by Montesquieu, and not the Keizer Prinzip, so loved by Wilhelm II.

In addition, this also results from the spirit of the texts. Indeed, in this Institution, if the judges, who are the most independent and privileged, do not control the management, then who will? Finally, this is also the price of our credibility as members of this Institution, especially in a great period of doubt. Each time, I thus first sought compromises to defend these principles. They were always refused in the name of the principle of hierarchy, constantly invoked here, though it is both incorrect legally and inefficient in terms of management. Reluctantly, I have had to defend these principles otherwise.

My growing disillusionment explains the drafting of many memos on various topics in the Institution. They were elaborated with three goals: (1) to inform my colleagues and the personnel (essential in my Institution’s vision) about important and unexplained developments; (2) to impose as much as possible collective decisions, involving the responsibility of all judges; and (3) to leave behind me, and there appears my love of university and history, a description as detailed and documented as possible of the Institution’s management. I have wanted to do this not only for my court, but also for future analysts, and ultimately for European citizens, who are now rightly tired of the opacity of their Institutions. These documents form now, as you can see, two strong green books, amiably bound by a bunch of friendly colleagues.

Some locals have sometimes spoken of all this with disdain. We’ll see. We can note that, slowly, some local practices change. The judges whose collaborators are candidates for an appointment are now excluded from the selection process, even when they are presidents. This is surely an improvement. The simplification of the IT system is now an official objective. Article 52 of the Statute that requires an agreement between the Presidents of the two Courts about the administration has been suddenly rediscovered. An incredible appeal brought by the Court of Justice in front of itself to protect its financial interests has been withdrawn. There is in this Institution for the first time after 60 years a formal, detailed report, approved by the General Court, which covers the shortcomings and possible reforms of its governance. A reflection is slowly open on the weaknesses of the system of access to administrative documents. These changes prove already that with an open mind, we can easily do better.

And I leave this place with a smile at the thought that, as my memoranda cover essentially legislative and administrative issues, they are essentially accessible to citizens. As a lawyer, I wanted to build a complete file that illustrates in many ways the fundamental need to reform, for the first time since 1952, the governance of this institution during the next revision of the EU treaties. When you have a limited influence on the present, you can always at least prepare the future.

This was particularly necessary since the citizens’ access to the Institution’s legislative and administrative documents not related to judicial proceedings encounters serious difficulties. Article 15 TFEU guarantees that access, with exceptions of course, to citizens who request it. However, the Institution has at times resorted to secret documents in key areas (such as the revision of the Treaties and the Statute). It has even distributed on one occasion at least a key document secret, unsigned, and not listed. (Additionally, most members had no idea about these documents, and they discovered them only thereafter in other institutions or in the press.) In such circumstances, it is in fact impossible to ensure the proper application of Article 15 TFEU. Furthermore, one can occasionally question the qualification of "judicial affairs" given to certain documents in the courts’ minutes. (The definition of the Rules of procedure, for example, do not correspond to a judicial proceeding, but to a regulatory function.) In this context, I have sent, as a member of the Institution, 13 requests for information to the Institution’s leaders during the last months, with answers still to come. I hope they will also stimulate improvements.

Finally, before leaving, I must make a mea culpa. Over time, disappointment made me occasionally acerbic. To give only one example, one evening after a disappointing visit where we had heard once again lessons from the direction about how to think about our own reform, I dropped to many friends: “the genius of the Carpathians now seems to have found his genius of the carpets”. With exasperation, formulas easily come to me. On the one hand, in retrospect, I regret them. On the other, they constitute the inevitable consequence of the permanent rejection of any discussion. I can but ask for forgiveness. You must see there the reflection of the bitter stubbornness of a lawyer who had always defended a high ideal of this Institution in his multiple past roles, and who never accepted to abandon it once arrived here.

Ladies and gentlemen, dear colleagues, fortunately, my stay in this Institution was not monopolised by these conflicts. Besides these dark episodes, there were also luminous ones, especially at the judicial level.

However, I shan’t speak much about these activities. In this too, I have always defended a collective vision. In this framework, one must try to listen to various opinions, and find the necessary compromises. Ironically, I was even reproached, occasionally, for being too flexible. With this modest approach, I have been happy to contribute to the jurisprudence of this Institution, which I have always defended with conviction during the whole period.

In the early years, I was also pleased to discover a General Court (then CFI) which, at the time, was making important and appreciated contributions to European law, that were seriously debated inside and outside. A court which, at the time, enjoyed an extremely strong external representation, as strong as the Court of Justice’s. A General Court which, at the time, was not afraid of taking clear institutional positions and especially was not afraid to defend them whenever necessary.

The passage of time has allowed us, me and others, to measure even better the debt we had for this to Bo Vesterdorf, the President at the time, and beyond, to Jose Luis da Cruz Vilaca, the founding President. These men had great ambitions for their Court. They represented it brilliantly outside thanks to many high-level conferences and publications. And finally, they shared complete integrity with their colleagues. I wanted to tell them today my great friendship and respect.

My team has produced very good judicial results, both quantitative (many closed cases) and qualitative (very few contests thereafter). Nevertheless, I have been mainly an orchestra director. These very good results were possible only thanks to the contribution of many people.

First, the members of my cabinet, without which very little would have been possible. They know my esteem, and even my great friendship for them. But this is not the place to expand on this.

Second, the personnel of the other cabinets. I have forged with them many relationships of sympathy and even trust. They have sometimes discreetly encouraged me. I have been touched by this support, especially in difficult times. Whenever necessary, I tried to defend the qualified persons (but not necessarily the others), to provide them with the required IT tools, and to put an end to the long uncertainty over their future in which they are maintained.

Third, the registry personnel. It comprehends general highly qualified persons, well led by two successive, and very talented, registrars. The registry’s personnel rendered many services to us. On my side, I always defended its staff needs, its IT needs (this provoked occasionally some kind of administrative Vietnam), its role as a full actor in procedural decisions, and finally its need for serious judges’ attention. This is an essential synergy, still too little analyzed.

Fourth, the Institution’s administrative services. They also comprise in general highly qualified persons, and they do not always work in easy conditions. We must have the courage to recognize that too often here the administrative personnel are first considered as an adjustment factor for the judges’ comfort. Let us remember the very symbolic story of my colleague and friend Irena Wiszniewska on the day of her arrival when someone told her, “you are a judge, so you can do anything”. Furthermore, local leaders pay much attention here to the high appointments (they make too many of them, and too often eugenic). However, they are less interested in the living conditions of the rest of the machine. Whenever necessary, I have tried to fight this tendency too, though this was far from being popular.

Fifth and last, I must acknowledge my great debt to my colleagues of the General Court. Dear colleagues, all these years, you have been drowned in memoranda and interventions on multiple issues (often administrative and legislative, but not exclusively). This transparent and participatory management did not correspond at all to the local genre. In fact, it was its complete opposite. Yet you have quickly tolerated this and even very often supported its administrative and legislative conclusions.

One of us said to me one day, and I suspect it reflects a prevailing sentiment, “You are a necessary evil”. To be honest, this is not the formula that I should have preferred. Nevertheless, on the whole, it is better to be seen as a necessary evil than as a decorative invertebrate.

Today, I leave this place with satisfaction. Our court benefits from strong results, accurate statistics, a productive observatory, a position on the future of the EU judicial system, another one on the future of the Institution’s governance, detailed analyses on the imperatives of intelligent legislative reform, a new streamlined organization, many IT advances, greater transparency in the allocation of cases, better awareness of the limits of external activities, and a detailed strategy for the registry in a new court. Future observers will have all necessary documents to determine where most of these changes came from. In any case, this would not have been possible without your individual and collective involvement.

Unlike many, it is our plenary deliberations that I shall miss the most. Although they were often long and sometimes difficult, they taught me immensely, and I cannot thank you enough for that. I tried to prepare them systematically. In fact, one of my great corridor neighbours accused me ritually of spending too much time in the office of my colleagues. To that I always replied, “I’m not like you, I do not hate my colleagues, and I even love them”. And that’s true. Beyond the individual characteristics of your personalities, you represent the diversity of Europe, which has always been one of the great charms of my life.

At this hour, I would like to express one hope. During the past year, the management of this Institution has seen some improvements. However, problems remain. Above all, the Institution’s governance system remains out-dated, obscure, and devoid of sufficient controls. So I hope that others will continue to take initiatives in these multiple domains.

My grandfather, Fernand Dehousse, who provided my education, taught me a great lesson. He was in another era the first rapporteur of the first European Parliament on the first draft European Constitution. During the war, due to his previous writings, the Nazis forbade him from all professional activities. For four long years, he remained home, starved and wrote numerous tracts and documents (some of them advocating the integration of Europe). He always told me, “an idea never dies so long as it finds one defender”. Today, I’d like to convey the same lesson.

There are many beautiful ideas in our European Treaties, even if this is less understood today. One of the most beautiful is precisely our Institution. However, the European Treaties have not created the Court; they have created the Court of Justice. The Court is not, contrary to a popular local illusion, a value in itself. It is only the instrument of a value - justice. Judges are not above the law, or next to the law. They are, more modestly, its first servant. This must always be remembered, especially in a place when an official says on arrival, “you are a judge, you can do anything”.

Especially, when judges hold exorbitant powers - as here – their legitimacy exists only if they impose on themselves the same constraints that they impose on others. Nothing is worse than a judge who ends up taking him(her)self for justice, except the same, when exercising administrative and legislative powers. Indeed, then, whatever his/her title and technical capabilities, such a judge becomes a subversion of the separation of powers.

Consequently, I hope that in the future, whenever necessary, some of you will go on defending my fundamental concern during this whole period. According to the European Treaties, it is judges who are the servants of justice, and not justice which is the servant of judges - and even less of some judges - and even less of a single judge, whoever s/he is.

With that, ladies and gentlemen, dear colleagues, it remains to wish good luck to everyone in this Institution, whatever their role, in work that remains essential, especially now, for the future of our European continent.

For your humble servant, it is now the time to say goodbye and express my gratitude to those who supported me (let's be honest, in all meanings of the word), but above all those who assisted me in many ways, encouraged me and upheld my multiple initiatives to build together a better institution. Frankly, this has not always been an experience which inspired enthusiasm. However, thanks to you, it has always been, and this is essential, a humanly pleasant one. Therefore, very sincerely, my deepest thanks to all of you.

Franklin Dehousse (19 September 2016)

Barnard & Peers: chapter 10
Photo credit:

Evidencing the Effectiveness of Health Interventions in Free Movement Cases

Angus MacCulloch, Lancaster University Law School

Two judgments on Articles 34/36 TFEU (concerning the free movement of goods) handed down by separate courts in the same week give stark examples of the importance of having a good evidence base before a State seeks to justify a public health intervention in the market. The first example was the judgment of the CJEU in Case C-148/15 Deutsche Parkinson Vereinigung, a preliminary reference considering the compatibility of a German measure setting fixed prices for prescription-only medicines. The second being the judgment of the Inner House of the Court of Session in Scotland in Scotch Whisky Assoc v LA [2016] CSIH 77, where the court upheld the Lord Ordinary’s finding that the Scottish Government’s plans to introduce Minimum Unit Pricing (MUP) for alcohol were not contrary to Art 34 (following the CJEU reference in Case C-333/14). Both measures involved health justifications for pricing restriction measures that fell foul of Art 34, but the results were very different.

Fixed Price Prescriptions

The German measure in DPV fixed the prices of all prescription-only medicines in Germany; restricting the ability of pharmacists to provide products at a discounted price. DPV, a self-help organisation for Parkinson’s disease sufferers, had set up an arrangement with a Dutch mail order pharmacy DocMorris (yes, that DocMorris) to put in place a bonus system for its members. That bonus system was challenged. The scheme was found to infringe Art 34 TFEU as mail-order pharmacies are limited in the services they can offer, and the ability to price competitively is the most likely means they have to access the German market directly [24]. The Court then turned to the argument that the system of fixed prices was justified in order to ‘ensure a safe and high quality supply of medicinal products’ [32]. The argument was that without set prices pharmacies may enter into ‘ruinous price competition’ which might result in the closure of physical pharmacies in rural or underpopulated areas. It was argued those pharmacies alone were well suited to offering safe high quality supplies, tailored advice, and effective checks on medicines [33]. At [35] the Court applied the test it set out in the Case C-333/14 SWA reference:

‘The reasons which may be invoked by a Member State by way of justification must thus be accompanied by an analysis of the appropriateness and proportionality of the measure adopted by that State, and by specific evidence substantiating its arguments’.

It was this final point on ‘specific evidence’ that proved to be crucial in the case, as the Court went on to explain in [36].

‘that court must examine objectively, through statistical or ad hoc data or by other means, whether it may reasonably be concluded from the evidence submitted by the Member State concerned that the means chosen are appropriate for the attainment of the objectives pursued and whether it is possible to attain those objectives by measures that are less restrictive of the free movement of goods’.

In the subsequent paragraphs the Court went through the submissions of the parties and suggested that there was ‘no evidence to substantiate the contention’ that the scheme was necessary to ensure a uniform supply of prescription-only medicines [37]. In fact nothing before the Court suggested that without the system mail order pharmacies, competing on the basis of price, would threaten essential services, such as emergency care or providing activities in the general interest; in fact competition might encourage traditional pharmacies to improve such services [39-40]. The assertion of the Court at [42] is perhaps the most telling:

‘it should be noted that the existence of a genuine risk to human health must be measured, not according to the yardstick of general conjecture, but on the basis of relevant scientific research’.

Because of the failure to provide convincing evidence of the effectiveness of the measure the Court found that it had ‘not been shown to be an appropriate means of attaining the objectives relied on’ [45]. It had therefore fallen at the 1st hurdle in the two-part test. As it was not shown to be ‘appropriate’, there was no need to consider if it was ‘necessary’.

Minimum Unit Pricing

The Inner House (IH) in SWA were tasked with applying the same two-part test, but this time the result was very different. The court’s summary of the evidence presented by the Scottish Govt runs across many paragraphs, [125]-[143], citing numerous studies, both domestic and international in scope. The Petitioner challenged the conclusions and methodology of a number of those studies, but the Scottish Government argued that the State had discretion and it was not unreasonable that it would ‘prefer one body of evidence the other, so long as the information which supported the choice was cogent’ [130]. As the IH was acting in an appeal it confined its review, in the most part, to confirming that the Lord Ordinary, in the Outer House, had correctly applied the law. The first important, and perhaps the most important, question was to confirm that the Lord Ordinary had identified the correct aim of the legislation. Both the AG and CJEU, in the reference, had noted that the legislation appeared to have a dual objective, whereas the Lord Ordinary had focused on a particular aim; the reduction of alcohol consumption by harmful and hazardous drinkers. The IH found that the Lord Ordinary’s particular view was identical to that of the CJEU. That is perhaps surprising, as many commentators had seen a different emphasis in the CJEU; suggesting that it had struck some form of balance between the narrow goal of dealing with harmful and hazardous drinkers, and the wider goal of reducing general alcohol consumption. The IH implicitly rejected that interpretation of the judgment.

In its examination of the appropriateness of the measure the IH noted the extent of the problem with alcohol consumption; the ‘societal, family, and personal effects of excessive alcohol consumption in Scotland are difficult to over-estimate’ [178]. This assertion was based on the ‘raft of statistical material [which] was produced’ [180]. It also recognised the clear view that the policy would target harmful and hazardous drinkers. It noted that it was possible to attempt to rebut figures used in support of the measure, or counter the conclusions drawn by the Govt, but that ‘there was and is ample objective material to support the proposition’ [182], and, at [183], that:

‘the Lord Ordinary cannot be faulted in finding that there was evidence from which it could be inferred that minimum pricing was an appropriate method of securing the objective by tackling the specific consumption of cheap alcohol’.

When turning to the proportionality of the measure the IH considered the Petitioners preferred measure, the increase of general taxation, which they argued would be ‘as effective’ as MUP. But that argument was rejected; ‘[t]he fundamental problem with an increase in tax is simply that it does not produce a minimum price’ [196]. The IH pointed towards evidence that retailers have sold below cost or absorbed, or off-set, tax increases. Also that price increases in the lowest cost products would ‘produce a greater reduction in sales than across the board price increases’ [199], as trading down to lower cost products was not possible. In fact a general taxation increase would have, ‘disproportionate, undesirable and unnecessary effect on moderate drinkers, who do not generally represent a significant problem in societal terms’ [200]. Finally, at [204], the IH addressed the choice of 50p per unit:

‘Such a figure, on the material produced, will reduce consumption amongst harmful and hazardous drinkers in that quintile of the population whose health is affected most by the consumption of cheap alcohol. The benefits of this are well documented’.

On that basis the Inner House, upheld the findings of the Lord Ordinary and refused the reclaiming motion.

One interesting feature of the case before the IH was that the CJEU had made it clear in its preliminary reference that a domestic court should address the proportionality of the measure at the time it gives its ruling, not at the time the measure was adopted. As the original pleadings were lodged in 2012 a significant amount of new evidence and policy material had become available in the intervening period; including new evidence since the CJEU judgment in the reference was handed down in December 2015. The IH took note of the evidence that was considered by the Lord Ordinary, and the subsequent proceedings, and decided that it was in the interests of justice that any pertinent new material should be considered. But it stressed that the new information would only be significant if it was such that it would have altered the Lord Ordinary’s view of the facts. It was apparent that the new evidence merely added to the exiting body of evidence that supported the effectiveness of MUP as an intervention.


In a series of recent decisions, including, for example, Case C639/11 Poland & Case C61/12 Lithuania, the CJEU has begun to stress the importance of evidence to support an attempt to justify a restriction on free movement. In DPV we see that requirement given greater emphasis, and a new focus on the type of evidence that will be required. It is not sufficient for a member State to rely on mere assertion or conjecture. They will have to produce more. The Court’s preference is clearly for hard statistical or scientific evidence, although it will accept other forms. Domestic courts are charged with ensuring that the State has good evidence to support the appropriateness and proportionality those measures. The judgment of the IH shows how that analysis can be undertaken. It also makes clear that the analysis of proportionality is not an event, rather a process. If a policy stands or falls by its evidence, it must therefore be the case that changes in the evidence base can alter whether that measure is ‘appropriate’ and/or ‘necessary’ over time.

Barnard & Peers: chapter 12, chapter 16

Art credit: “Beer Street and Gin Lane”, William Hogarth

Wednesday, 26 October 2016

Brexit and the new Heathrow runway: the issues are linked

Steve Peers

Yesterday, the Member of Parliament for Richmond Park, Zac Goldsmith, resigned his seat, forcing a by-election over the issue of the new runway at Heathrow Airport. It’s reported that he wants the by-election (in which he will run as an independent) to be regarded as a ‘referendum’ on the Heathrow runway, while his opposition (in particular the Liberal Democrats, who were in second place last time) will raise other issues, including Brexit. In a very real sense, however, Brexit and the new Heathrow runway are not separate issues – they are inextricably linked.

Let’s look at why. Many commentators have suggested that there are enough votes in Parliament to approve the Heathrow runway. Therefore the main obstacle to the runway is a possible legal challenge. And a main argument cited in that potential challenge is EU law, namely the EU Directive on air pollution.

What happens to that Directive in the event of Brexit? Currently the government’s plans are to table a ‘Great Repeal Bill’ next year. As I discussed recently on this blog, the effect of that Bill will be to convert EU law into UK law as of Brexit Day. The proposed Bill will give government ministers powers (in the form of ‘delegated legislation’ known as ‘Statutory Instruments’) to repeal or amend most or all EU laws without an Act of Parliament, meaning that Parliament will have no power to amend such ministerial decisions and only a limited opportunity to debate or block them. One such ministerial decision could simply exempt the Heathrow runway decision from ex-EU air pollution law. (Of course, there are many other EU laws on the environment, or other issues like employment or equality law, which could face the same treatment).

Another issue arising from the ‘Great Repeal Bill’ is how to deal with rulings of the EU Court of Justice interpreting EU law, at least where those rulings were issued prior to Brexit Day. Arguably, in the interests of ensuring legal continuity which underpin the planned Bill, such judgments should remain binding or at least highly persuasive, until ministers or Parliament decide to amend ex-EU laws with the unmistakable intention of changing that interpretation. The point is relevant to a broad swathe of ex-EU law, from trademarks to equality law, and in fact it is particularly relevant to air pollution: in 2014, the EU Court ruled (as discussed here) that the UK was indeed violating EU air pollution law as regards London.

It would be possible for Parliament to complicate this process somewhat, by ensuring that when the Great Repeal Bill becomes an Act, ministers will not have the power to approve the Heathrow runway (or indeed to change other ex-EU laws on the environment or other key issues) without an Act of Parliament. But if it is correct to say that there is a Parliamentary majority to approve a new Heathrow runway, a requirement for an Act of Parliament to change ex-EU law (and EU court rulings) on this issue would only slow things down a bit.

What could stop the new runway altogether, besides overturning Brexit itself? One option for Brexit is the ‘Norway option’, where the UK would sign up to the ‘European Economic Area’ (EEA) treaty to retain full participation in the single market. That treaty also entails continued participation in most EU law on employment, sex equality and the environment, including the main air pollution law that could be relevant to the new Heathrow runway (see point 14c in this Annex to that treaty).

Signing up to the EEA is not the same thing as staying part of the EU in all respects, as that treaty does not apply to EU policies in key areas like fisheries, agriculture, tax or trade with non-EU countries. So it could not be said to ignore the Brexit vote, and it could be interim only (see further discussion of the ‘interim EEA option’ here). Or there could be an alternative ‘soft Brexit’ approach to the UK staying in the single market, still including participation in EU environmental law.

One thing is clear: Goldsmith’s position of decrying the new Heathrow runway, while supporting the very Brexit that will likely make it impossible to oppose effectively in the courts, is intellectually untenable.

Barnard & Peers: chapter 22, chapter 27

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Tuesday, 18 October 2016

National Courts and EU Trade Policy Powers: the EU/Canada trade deal and the German Constitutional Court

Douwe Korff, Emeritus Professor of International Law, London Metropolitan University; Associate, Oxford Martin School, University of Oxford

One of the big issues on the EU’s agenda at present is whether to sign and provisionally apply the Canada/EU free trade agreement, known as ‘CETA’. The division of power between the EU and its Member States determines whether Member States can veto some or all of this deal, potentially complicating this process – frustrating supporters of the deal, but emboldening its critics.

Moreover, the dispute over CETA has broader implications, most notably for the controversial EU/US trade deal under negotiation (‘TTIP’) and any trade deal between the EU and UK after Brexit. While the EU’s Court of Justice will soon rule on the division of powers between the EU and its Member States as regards the EU/Singapore free trade agreement (for the background to that case, see here; for the CJEU hearing, see here), the immediate question is signing and provisionally applying CETA.

For the moment, the parliament in the Belgian region of Wallonia has held up the EU/Canada deal, but my focus here is the legal angle. While we await the CJEU’s ruling on the similar EU/Singapore deal, national courts have got involved in this issue. Last week, the German Constitutional Court refused to issue an interim order prohibiting the German Government from signing the CETA Agreement (BVerfGE of 13 October 2016; English summary here). The judgment sets a precedent for the legal issues that might arise with TTIP and Brexit, and so is worth further examination.

The decision

The decision was not about the issue of whether CETA (as initialled by Canada and the EU) was compatible with the German Constitution, but about whether the German Constitutional Court (“the Court”) should issue an interim order or injunction (einstweilige Anordnung) prohibiting the German Government (“the Government”) from even signing the Agreement. The Court emphasised that it was the Court’s standing practice to only issue such an injunction in relation to a proposed treaty if it was obvious that the treaty would irreversibly violate the Constitution (or constitutionally-protected rights of individuals) and if it was imperative that this be stopped immediately. On the other hand, possible but as-yet-not-materialised or reversible risks to such rights should be balanced against the importance of the matters to be covered by the treaty; and the Government in principle had a very wide margin of discretion in such matters. (Paras. 34 – 36)

The Court refused to issue the injunction for the following reasons in particular (my selection):

- The signing of CETA by Canada, the EU and the Member States would only result in the provisional application of the Agreement; it would only come into full force upon ratification by the parties – and crucially, the German Government (like any other Member State Government) could, until and unless the Agreement was ratified by all parties, terminate the application of the Agreement at any time, by means of a simple declaration to that effect to the other parties. The signing of CETA by the Government therefore did not irreparably risk any violation of constitutional rights. (Para. 38; cf. the last bullet-point under the last indent, below)

- The Court clearly has serious doubts as to whether the EU has competence in relation to investor protection in various areas, in particular also as concerns workers’ health and safety regulations. (Para. 54 – 57)

- The Court clearly also has serious doubts as to whether the EU can lawfully transfer “sovereign rights [Hoheitsrechte] in relation to judicial and quasi-judicial dispute resolution systems [Gerichts- und … Ausschusssystem]” to other systems (i.e., to the proposed investor-state dispute settlement (ISDS) “court” mechanism). (Para. 58) It was “not completely inconceivable” that the proposed (revised) ISDS mechanism could be held to violate the principle of democratic legitimacy (das Demokratieprinzip). (idem; see also para. 65)

- However, according to the Court, the above risks can be prevented in practice by various means (which, the Court implies, the German Government therefore must employ), i.e.:

· According to the Court, some of the risks can be prevented by means of the declarations already issued by the European Council, which (the Court tentatively accepts) ensure that with the signing of the Agreement only parts of that agreement will enter into (even provisional) force. The Court held that in many respects “reservations” (Vorbehalte) are already in place as concerns the application of certain parts of the Agreement. (Para. 69: see there for a list of these areas).

· The Court “assumes” (read: effectively demands) that the German Government will ensure, by these same means, that certain parts of CETA “in particular” “will not be included in the provisional application [of CETA, upon signature by the parties]”. In these not-to-be-applied matters, the Court expressly includes “the rules on investment protection, including the [investment dispute resolution] court system.” (Para. 70)

· The Court suggests that, at least while CETA would be only provisionally in force, Germany can demand that any decisions by the investment dispute resolution “court” will have to have the unanimous agreement of the EU Council – i.e., that Germany is given a right of veto over any such decisions. (Para. 71)

· If those measures were to not suffice, Germany can “as a last resort” use its right to terminate the Agreement (see the first indent, above). However, the Court feels that the interpretation of the Agreement to the effect that a State Party has this right (to terminate it in respect of that state while it is still only provisionally in force) “is not binding”, even though the Government has made a convincing case for it.

The Court therefore demands of the Government that it (the Government) “must clarify this interpretation of the Agreement in an international-legally appropriate way” and “inform its Treaty Partners of this [interpretation].” (Para. 73)


It would seem to me that the signing of CETA subject to the conditions imposed by the German Constitutional Court, would address many of the issues raised by activists:

- The contentious investment dispute resolution “court” would not become operational;

- If it ever were to become operational, Germany (and if other Member States were to adopt the same approach, those other Member States too) would have a veto over any decisions of that (quasi-) “court” that would impinge on rights and interests protected by its (their) constitution(s); and

– If in spite of these safeguards, those constitutionally-protected rights and interests were to still be unduly affected by the dispute resolution system (or any other aspect of the Agreement), Germany (and any such other Member State) could still exit the Agreement (even if that meant it would altogether have to end functioning).

Perhaps current opponents of CETA could live with it operating forever on such a “provisional” and conditional basis?

Barnard & Peers: chapter 24

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Sunday, 16 October 2016

Establishing the European Border and Coast Guard: all-new or Frontex reloaded?

Herbert Rosenfeldt, Research Assistant and PhD candidate, University of Passau


Attending a birthday party at a remote checkpoint at the Bulgarian external border with Turkey does not sound like fun. Unless you are the adventurous type, you would probably hesitate to join in if it was not for someone special. Indeed, last Thursday high ranking EU and Member States’ officials visited Bulgaria’s Kapitan Andreevo Border Checkpoint to inaugurate the new European Border and Coast Guard Agency a.k.a. Frontex.

This is so far the most visible sign of the coming into force of the European Border and Coast Guard Regulation on the same day. Not lacking pathos or high expectations (Donald Tusk: “To save Schengen, we must regain control of our external borders. A new European Border and Coast Guard Agency is being created”), the new EBCG seeks to reinforce external border control against the background of last year’s migratory pressure put on the southern and south-eastern EU Member States with external Schengen borders. According to EU officials’ analyses, national border guards had been unable or unwilling to “protect” the Schengen area effectively by stopping the influx of irregular migrants. Frontex, on the other hand, was held to have been too ill-equipped in terms of powers, personnel and equipment to render sufficient support or remedy the situation. There is a simple, perhaps simplistic, rationale behind the new EBCG – one that gathered broad consensus among Member States and EU institutions resulting in a fast track legislative procedure of less than a year. The stronger EU external border control, the less permeable borders are for migrants; the smaller the number of migrants arriving, the smaller the problems within the Schengen area. Those problems comprise allocating asylum seekers and processing their claims, providing food and shelter, or safeguarding internal security and freedom of movement. The focus on external borders has been accurately criticised, inter alia, here and here.

Is the new EBCG truly a “milestone in the history of European border management”, as suggested by birthday guests but contested by others? Is the new agency something special at all? Hence is it worth joining the congratulants (if belatedly)? What birthday wishes should be made? Surely only time and further in-depth analysis can tell. Steve’s earlier post here gave the broader picture of last year’s legislative proposals on border control and migration. For now, and after two preliminary thoughts, I would like firstly to make some observations on the changing concept of EU external border management. Secondly, I highlight some institutional changes. Thirdly and fourthly, I will focus on two much debated novelties in external border control: emergency interventions and the complaints mechanism in the context of Fundamental Rights accountability.

Towards Securitisation

The drafters of the new regulation were discernibly concerned by the loss of control at Europe’s southern and south-eastern borders. Adapting to the ongoing political discourse, the wording of the Regulation (Article 1, see also Articles 4 and 15) gives top priority to regaining and keeping control of the migration situation and to efficient border management. Migration challenges and potential future threats are mentioned in succession, followed by serious cross-border crimes. The aim to be achieved is a high level of internal security within the Union while safeguarding the free movement of persons within it. In a subtle way, this almost equates migratory pressure through irregular migration with potential threats to internal security and cross-border crime. In further construing Article 1 of the Regulation, it appears that affording international protection and protecting human rights are clearly no objectives of European border management. Rather, they are perceived as restrictions to securing EU borders.

Another feature of this security-orientated approach is new migration management support teams to be deployed in hotspot areas (Article 18). Support in processing asylum claims and returning third country nationals does not help to protect the Schengen area from migrants at first sight. However, if it is done rapidly in hotspot areas, migrants are effectively not entering the Schengen area, hence apparently more security. Along the same line of reasoning, increased capacities to support return operations (Article 18, 28 et seq.) reflect political demand for enforcing third country nationals’ returns.

Legal instruments rearranged

The law of EU external border control is no role model for legal clarity and certainty. Legal acts such as the Frontex Regulation have frequently been amended, and they are intertwined with various other EU legal acts. The new Regulation at least partly smoothes this scattered landscape by merging the Frontex Regulation and the Regulation on Rapid Border Intervention Teams into one. Furthermore, the Schengen Borders Code has been amended (see below). Although based on the same EU competence (Article 77 (2) (d) TFEU), applied at the external Schengen borders and closely related to the work of Frontex and the national external border guards, Regulations on EUROSUR and surveillance of the external sea borders remained untouched. Hence the legislator missed the opportunity to create a single comprehensible piece of legislation apart from the SBC, the latter covering other subject matters such as entry conditions of third country nationals and internal border controls anyway.

New concept of external border controls

Before, States with external Schengen borders were exclusively tasked with policing those borders. Under the Frontex Regulation, border control fell into the sole competence of the Member States. Frontex’s main task then was to render border control more effective by coordinating Member States’ joint activities and providing surveillance data, technical support and expertise. The common conceptual framework informing border controls, called “integrated management system for external borders” (now Article 77 (1) (c) TFEU), only featured in strategy papers and policy recommendations of the Commission and the Council such as the non-binding Updated Schengen Catalogue 2009.

The new EBCG consists of the EBCG Agency and the national border and coast guards. Although Member States retain primary responsibility for border management, there is a clear shift towards responsibility shared with the Agency (Article 5 of the Regulation). On scrutiny, the new system arranges the Agency and the Member States in a hierarchical order. It is the Agency’s task to establish a technical and operational strategy for integrated border management. All national strategies will have to comply with it. Although co-operation outside the Agency’s remit remains possible, this is limited to action compatible with the Agency’s activities. Therefore, there is not just well-known supremacy of EU law at work in this area of shared competences, but supremacy of the Agency’s strategies, broadly phrased tasks and objectives. On paper (see the eighth and eleventh recitals), the political development of integrated border management is left to the EU organs, whereas technical and operational aspects will be clarified by the Agency. The dividing line is of course far from clear. As a result, the Agency will almost inevitably assume a more proactive role.

In my view, shared responsibility serves as a chiffre to justify taking away Member States’ discretionary powers in border control. In practice, the Agency gains greater impact and tools of supervision and coercion, as will be seen below. Still, the new Regulation has to be given credit for legally defining components of European integrated border management for the first time ever.

Institutional changes

In short, Frontex becomes … erm … Frontex! Despite last week’s “all-new” rhetoric, little will change in the constitutional setting of the Agency. As a decentralised (i.e. regulatory) agency it remains an independent EU body with legal personality. Its headquarters will remain in Warsaw. The Agency’s official name, which nobody used before, changes to a shorter name, which probably nobody will use going forwards – and that is alright because it reflects that the Agency is not founded anew but continues all its activities, albeit with expanded tasks and more resources.

To this end, the Agency’s staff grows from 309 in 2015 to 1,000 in 2020. The number of Member States’ border guards deployed in EBCG teams remain subject to annual bilateral negotiations. At the same time, a rapid reaction pool of 1,500 European border guards as a standing corps operational within 5 days has been inscribed in the Regulation. The Agency continues to maintain a technical equipment pool composed of equipment owned by either the Agency itself or by the Member States. With an increase in budget to more than twice the amount of 2015 (€143.3 to €322 million in 2020), the Agency might actually start acquiring equipment on its own in the future.

Of the Agency’s tasks (see the long list in Article 8 (1) of the Regulation), most have been assigned to Frontex before. Characteristic of the new supervisory role are vulnerability assessments carried out by the Agency to evaluate the capability and readiness of Member States’ border guard to act in emergencies. The assessment might lead to binding recommendations by the Executive Director. To disregard them can eventually result in a situation requiring urgent action as described further below. Moreover, Frontex shall deploy liaison officers in the Member States monitoring and reporting on national external border management. It is true that command and control in EBCG operations remains with the host Member State. However, from now on, the host Member State has not only to consider the Frontex coordinating officer’s views, but also to follow them as far as possible.

Another noteworthy development concerns the Agency’s support rendered to Member States coping with migratory pressure at so-called hotspots. The existing provisions on hotspots in EU Decisions on relocation of asylum-seekers have been codified in Article 18 of the Regulation, which now assigns a supportive role to Frontex in migration management. This includes screening, registering and providing information to third country nationals on their right to apply for international protection. It further includes facilitating their return right from the hotspot area.

One might argue that the European Asylum Support Office is better placed to do all that. However, in my opinion the crucial question is to what extent any EU agency involved influences or determines the Member States’ decisions on entry, to afford international protection or to return migrants. Such executive powers have not been granted to EU institutions and therefore – at least by law – they remain firmly within the Member States’ jurisdiction. The provisions provide for tailor-made support teams coordinated by all relevant Union agencies under the auspices of the Commission. Thus, the new Regulation acknowledges the role of agencies and the significance of hotspots without clarifying much. It remains to be seen how the agencies will delineate their respective contributions. If you have always been looking for a legal definition of hotspot area, at least you will find one in the new Regulation (Article 2 (10)).

Situations requiring urgent action – right to intervene?

How to deal with emergency situations at the external borders of Member States unwilling to act – that was the only matter of serious contention during the legislative process. In normal operation and as before, a Member State at first formally requests the Agency’s support and the launch of EBCG operations (Articles 14 (1), 15 (1) and (2), 18 (1) et al). At the second stage, the Member State and the Executive Director agree on the operational plan (Article 16 (2)). Lastly, the host Member State itself retains command for the whole operation (Article 21 (1)). The Commission proposal for the Regulation challenged those safeguards for the Member States’ sovereign right to border protection. The Commission envisaged itself initiating emergency interventions conducted by the Agency and supported by the Member State concerned. Boldly, this was labelled the Agency’s “right to intervene”. Understandably, it stirred criticism among Member States.

The subsequent trilogue put things in order again: Now it is an implementing act of the Council (proposed by the Commission) which substitutes the Member State’s request at the first stage if (a) the State did not follow the recommendations resulting from vulnerability assessments or (b) it faces specific and disproportionate challenges at his external borders without requesting or supporting joint EBCG operations (Article 19 (1)). The implementing act of the Council authorises the Agency to take various measures. It is binding upon the Member State. In turn, it becomes evident that the Member State’s formal request in accordance with the normal procedure might no longer be as voluntary as the wording suggests. Because if joint European action is deemed necessary, there is always the possibility that an emergency intervention will eventually be initiated.

Yet, at the second stage, the Member State still has to agree on the operational plan submitted by the Agency (Article 19 (5)). This might be interpreted as linking emergency interventions to the Member State’s consent after all. However, in the light of the purpose of emergency interventions, I submit that the duty to fully comply with the Council decision and to this end cooperate with the Agency entails the duty to consent to the operational plan. Otherwise, it would always be possible for reluctant Member States to impede the whole procedure depriving it of much of its force.

For the implementation of the measures prescribed by the Council, the Member State concerned still acts as host state. As a consequence, that State retains command and control of the operations and can be held liable as in normal operations. It can be questioned whether an unwilling State should be forced to lead a joint operation in times of emergency. At the same time, however, it is most likely that different entities will be engaged in the process. The decision not to conduct operations or to request assistance is often taken at a high political level, whereas operational command is exercised within the national border guard authorities.

Lastly, Article 19 (10) most remarkably links the Member State’s non-compliance with the Council decision and failure to cooperate with the Agency to prospective national measures taken within the Schengen area. According to newly amended Article 29 of the Schengen Borders Code, the Council upon proposal by the Commission may recommend to Member States the reintroduction of controls at their internal borders if the Member State’s behaviour (a) puts the functioning of the area without internal borders at risk, and (b) leads to a serious threat to public policy or internal security. This mechanism can be triggered only 30 days after the Council takes its (urgent?!) decision. As a result, Member States that do not – for whatever reason – cooperate at their external borders in emergencies can de facto be temporarily excluded from the area of free movement. The much-stressed concept of solidarity (Article 80 TFEU) hence turns into its evil twin: showing solidarity means complying with the EBCG activities à la EU. It becomes the prerogative of the EU institutions to determine who is in solidarity, and the lack thereof entails serious consequences.

In sum, the new Regulation establishes a legal obligation to cooperate in situations requiring urgent action of the Member State concerned. If the State does not comply, there is no way to enforce this duty or to deploy EBCG teams on his territory against his will. The only sanction seems to urge other Member States to close their internal borders instead.

Human Rights complaints mechanism and accountability

When Frontex was established in 2004, the Fundamental Rights (FR) implications of its work had been completely overlooked. The founding Regulation did not contain any specific references to FR. Over the following years through a piecemeal approach, largely affirmative and declaratory FR obligations found their way into the Regulation. More importantly, Frontex drew up an FR strategy (followed by an action plan) in 2011. At the same time, a consultative forum and an FR officer were established to give advice on FR matters and strengthen FR compliance. With the new Regulation, there are minor improvements on the human rights record. Article 1 now mentions FR, they form part of compulsory reporting and evaluation schemes as set out in the operational plan, and there is a single comprehensive provision spelling out FR obligations (Article 34).

The Regulation finally introduces a FR complaints mechanism (Article 72, discussed here) as demanded by European Parliament, EU Ombudsman and Council of Europe since 2013. Any person directly affected by actions of staff during EBCG operations can file a complaint about FR violations with the FR officer. The FR officer is responsible for setting up the complaints mechanism, administering complaints and deciding on their admissibility. He or she then directs them to either the Executive Director or the competent national authority for them to decide on the merits and an appropriate follow-up. The FR officer then again monitors this decision as well as the follow-up.

In my view, the effectiveness of the mechanism depends on two preconditions. Firstly, the FR officer’s resources should increase significantly to stem the Herculean tasks ahead of him. Secondly, his institutional independency within the Agency has to be reinforced, bearing in mind that he is a member of staff and dependent on good working relationships with other members of staff. Several open questions remain. For example, the provision leaves open how the FR officer will enforce the appropriate follow-up by the Agency or the Member States. It does not make clear that the complaints mechanism does not affect other remedies, nor does it foresee an appeals procedure with an independent body. The FR officer and ultimately the Executive Director or the Member States authorities will have to answer difficult legal questions on who is “directly affected” by an action and who is responsible for it (see below). For the development of the law, it would have been better if a court or tribunal had had subsequent jurisdiction. So far, actions for annulment or damages (Articles 263, 268 TFEU) have not generated any EU case law regarding Frontex, and except for its judgment in Hirsi Jamaa, the ECtHR was not able to fill the gap neither.

“The extended tasks and competence of the Agency”, the 14th recital of the Regulation reads, “should be balanced with strengthened fundamental rights safeguards and increased accountability”. But does the new Agency live up to the claim? Apart from the complaints mechanism, the FR framework largely stays the same, and so does the general liability framework: The home Member State takes disciplinary action whereas the domestic laws of the host Member State determine criminal liability. It is also the host Member State incurring civil liability for the EBCG teams. The Agency itself incurs non-contractual liability according to the general principles of EU law (Article 340 (2) TFEU). There are no provisions determining which acts or effects of external border control are attributed to the Agency or to the Member States involved (a problem of multi-actor scenarios, where the 2011 ILC Articles on the Responsibility of International Organizations might be of help). Following recent revelations on the frequent use of firearms in joint operations, MEPs wrote to Executive Director Fabrice Leggeri asking for more information and general guidance on responsibilities in certain operational scenarios. The ignorance displayed by Frontex’s designated watchdogs (see Article 7 of the Regulation) is further evidence for the need of more transparency and legal clarity in this regard.


On the 6th of October 2016 the landscape of EU external border control did not change dramatically, but it did change. To repeat: No new agency has been founded, no EBCG under EU command and control was established, no right to intervene at Member States’ external borders against their will has been introduced. In fact and most notably, the Member States’ external border guard is placed under increased scrutiny of the EBCG Agency. Failure to comply with integrated border management standards could eventually lead to reintroducing internal border controls to the detriment of the disobedient Member State. At the same time, the Agency’s enhanced tasks and powers will go hand in hand with more responsibility and accountability, but the latter has yet to be improved. Although the complaints mechanism is a step in the right direction, its design could have been more effective. This holds true especially for the follow-up mechanism. In practice, much will depend on the Fundamental Rights officer’s assertiveness on the one hand, and the Executive Director’s responsiveness on the other hand.

After all, the distinguished guests to the celebrations at Kapitan Andreevo Border Checkpoint last week did not witness birth or rebirth, but rather Frontex’s coming of age both in terms of leverage and responsibilities. Frontex, I wish you well indeed.

Barnard & Peers: chapter 26
JHA4: chapter II:3

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