Puigdemont i Casamajó and Others v Parliament (Case T-272/21), Judgment of the General Court, 5 July 2023

Background

Criminal proceedings were initiated against some of the front figures of the Catalonian independence movement. The applicants in the case at hand, Mr Carles Puigdemont i Casamajó, Antoni Comin i Oliveres, and Clara Ponsatí i Obiols, were accused of committing acts of insurgency and misuse of public funds in Spain. None of the applicants appeared before the Spanish Supreme Court and the criminal proceedings instituted against them were deemed to stand until the applicants were found (see para 4 of the Judgment of the General Court of 5 July 2023). The applicants sought refuge in Belgium in a sort of self-imposed exile after the declaration of independence when the criminal proceedings were initiated (see Sibel Top, ‘Explosive case, cautious ruling’ on EJIL: Talk!, 20 February 2023). While in exile, the applicants refused to appear before the national courts in Spain when called upon. 

In the meantime, during their exile, two of the applicants, Puigdemont and Comin, stood as candidates to be elected as Members of the European Parliament (MEP) held in Spain. Both were elected following the official declaration of electoral results, though left out when the European Parliament was notified of the elected candidates (see para. 7 of the Judgment of the General Court of 5 July 2023). Even though they were elected by the people, their allocated seats in the Parliament remained vacant because the applicants had not taken the oath or promised to respect the Spanish Constitution, as mandated by the light of the Spanish Organic Law 5/1985 on the General Electoral System, in order to assume office. In accordance with the aforementioned law, the prerogatives and entitlements that the applicants would enjoy as elected members of the European Parliament were to be suspended until they took the oath or made the required promise (see para. 8). Following the suspension of the prerogatives the applicants would enjoy as MEPs, applicants Puigdemont and Comin were notified by the President of the European Parliament that he was not in the position to treat them as future MEPs.

Being elected as an MEP includes a certain immunity in respect of opinions expressed or votes cast by them in the performance of their duties. Following the illegal independence referendum in Catalonia and the declaration of independence, as well as their refusal to appear before the Spanish national court, national, European and international arrest warrants were issued by the Spanish authorities against the applicants, since they did not enjoy the immunity or privileges granted to MEPs (see para. 10). However, later, in Junqueras Vies (C‑502/19), the Court of Justice of the EU found that a person who has been officially declared as elected to the Parliament, but does not comply with certain requirements under domestic laws to be elected and to represent a Member State, shall be regarded as enjoying immunity to travel to and participate in its first session under the second paragraph of Article 9 Protocol No. 7. Following the Junqueras Vies judgment, the Parliament took note of Puigdemont and Comin’s election to the Parliament with effect from July 2019 at their plenary session in January 2020 (see para. 12). Moreover, the European Parliament took note of the election of the third applicant with effect from the 1st of February 2020 following the withdrawal from the EU by the UK and Northern Ireland (see para. 14).  The Spanish Supreme Court sent two requests for the waiver of the immunities of the three applicants. The first request was sent on 13th of January 2020 for the waiver of the immunities of applicants Puigdemont and Comin (see para. 11). A second request was sent on 4th of February for the waiver of the third applicant Polsatí (see para. 15). Following the requests sent by the Spanish Supreme Court to waive the immunities of the applicants, the European Parliament delivered decisions P9_TA(2021)0059, P9_TA(2021)0060, and P9_TA(2021)0061. The immunities of the three applicants were waived. Based on Article 263 TFEU, the applicants asked the General Court of the European Union to annul the decisions of 9th of  March where the applicants’ immunities were waived by the Parliament.

The applicants

The applicants requested the General Court (GC) to annul the contested decision and demanded that the Parliament cover the costs for the trial. Conversely, the Parliament claimed that the Court should dismiss the action and the applicants should pay the costs.  The applicants put forward eight different pleadings in support of their action. The first plea alleged that the reasons stated for the contested decisions were insufficient. Further, the applicants argued about the alleged lack of competence of the national authority that issued and transmitted the requests for waiving the applicant’s immunity to the Parliament. The third and fourth pleas concerned the alleged disregard for the principle of impartiality and the infringement of the right to be heard. Furthermore, the fifth plea alleged the infringement of the principles of legal certainty and sincere cooperation, the right to effective judicial protection, and the rights of the defense because the contested decisions lacked clarity. The sixth plea by the applicants was based on the infringement of Article 343 TFEU, Article 9 of the Protocol on the Privileges and Immunities of the European Union (No 7), and rule 5(2) of the Rules of Procedure of the Parliament. The last two pleas from the applicants focused on the violation of the principles of good administration and equal treatment. The seventh plea contended that the Parliament departed from its earlier practice without justification, while the eighth plea alleged that the Parliament, for the first time, authorized the pre-trial detention of its members (see paras. 22-31). 

The Parliament and the Kingdom of Spain

The Parliament, with support from the Kingdom of Spain, disputed the admissibility of some of the applicants’ arguments, as they appeared only in the annexes of their pleadings (see paras. 32-35). The first paragraph of Article 21 of the Statute of the Court of Justice of the European Union, applicable to the GC by virtue of the first paragraph of Article 53, states that an application to the court must contain the forms of order sought and a brief statement of the pleas in law. Furthermore, according to established case-law, the statements of the pleas must be clear and precise enough to enable the defendant, in this case the Parliament, to adequately prepare its defense. The application may be supported and supplemented on specific points by references to certain documents annexed to it (see para. 33). General references to other documents, even those annexed to the application, cannot make up for the absence of the essential submissions in law, which must appear in the application (see Judgment C-382/12). Moreover, it is not for the GC to seek out and identify, in the annexes, these pleas and arguments it might consider as constituting the basis of action (see para. 34 and Judgment T-191/16). The interpretation of the first paragraph of Article 21 of the Statute of the Court of Justice also applies to the conditions for admissibility of a reply. In this case, the applicants have made several references to documents annexed to their pleadings, but the documents to which some of the references are made are not intended solely to support and supplement. So, in accordance with the earlier referred case-law, the annexes presented by the applicants will only be taken into consideration in so far they support or supplement arguments set out in the body of their pleadings. Finally, the Parliament and the Kingdom of Spain argued that all of the pleas presented by the applicants shall be rejected, with support of the argument that parts of the pleas shall be considered as unfounded and some parts, in light of the presented principles, must be further assessed and examined by the GC.  

Legal reasoning and conclusion

As mentioned earlier, all three applicants (Puigdemont, Comín and Ponsatí) requested the GC to annul the decision made by the European Parliament in March 2021, which waived their immunities. They also demanded that the Parliament pay all the costs (see para. 20). On the other hand, the Parliament contended that the court should dismiss the action and order the applicants to pay the costs (see para. 21). As earlier stated, the applicants presented eight pleas in support of their claims (see para. 22). Regarding the applicants’ claim concerning the European Parliament’s decision to waive the immunities, the GC rejected all eight pleas made by the applicants and upheld the Parliament’s decision.

The GC specifically emphasized two points. One of them was related to the applicants’ argument that the Parliament committed a mistake in believing that the legal actions taken by the Spanish authorities against them were not intended to harm their roles as members of the Parliament. Here the GC clearly pointed out that they agreed with the Parliament’s reasoning, which in turn pointed out that the applicants’ alleged crimes took place two years before they even became members of the Parliament and they were charged a year before together with individuals who have nothing to do with the Parliament (see paras. 151-184). The second crucial point emphasized by the court was the applicants’ claim, as mentioned above, that the Parliament had violated the principle of impartiality. This assertion stemmed from the applicants’ belief that the Parliament had not let different people take turns acting as rapporteurs. However, the GC clarified that if several members faced similar legal problems, it was acceptable for one person to handle all these cases (see para. 236). Regarding the impartiality of the rapporteur due to his affiliation with a certain political group, the GC explained that the rapporteur is a member of a committee that reflects the balance of different political groups. Even if the rapporteur belongs to a particular political group, this does not automatically imply bias (see para. 243). 

To summarize and conclude, it can be stated that the GC ruled in favour of the Parliament’s decision and dismissed the action. The applicants must bear their own costs and pay those incurred by the Parliament. The GC rejected all eight pleas made by the applicants and placed significant emphasis on explaining that the legal actions taken by the Spanish authorities against the applicants were not intended to harm their roles as members of the Parliament. Furthermore, there was no evidence in the applicants’ submissions indicating any case of impartiality within the European Parliament. 

Comments

When reading this judgment while considering the arguments of both parties as well as reviewing both older (for example, Stephen Burgen, ‘Catalan independence rally brings Barcelona to a standstill’, The Guardian, 11 September 2012) recent news articles (for example, this Observer special report in The Guardian, 25 September 2022), it becomes evident that there is a long-standing and heated dispute within Spain regarding Catalonia’s role in the Spanish system. The main challenge for Spanish democracy is to satisfy demands for regional autonomy without disrupting the integrity of Spain. Catalonia has never been satisfied with the Spanish Constitution because of its arrangement that does not fully reflect Spain’s reality. Spain faces the difficult dilemma of balancing the different demands of its autonomous communities. This makes the EU’s role difficult too, as illustrated in this judgment.

Does this case imply that the immunities and privileges granted to the Members of the Parliament will be denied if elected representatives of the people are not notified as elected candidates to the Parliament for not complying with national requirements? In this situation, they were not granted immunity because the Spanish authorities did not notify the Parliament that they were elected candidates to become Members of the European Parliament. This was because they did not take an oath or make a promise to respect the Spanish Constitution. However, according to the electoral results, they had sufficient support from the people to become Members and to represent the Spanish citizens in the EU Parliament. This situation certainly raises questions about the possibilities for change at the EU level if one cannot be elected in a country despite the people’s support via elections due to not taking the required oath or promising to respect the national constitution, as required by national law. It definitely makes it more difficult for groups that want to bring about a change at the EU level. In this specific case, it is about the will of the Catalans to become independent.

However, more significant problems definitely persist within EU countries, such as in Hungary, where there are several problems regarding democracy, same-sex marriage, etc. Hungary has even been labeled as an electoral autocracy by the MEPs (EP Press Release, 15 September 2022). In this case, the likely attitude in Western societies should be that a change is required (CNN.com, 18 December 2018). This may then require a collective effort from people willing to stand up against the decision-makers in Hungary. The recent decision of the GC certainly implies that in order for anyone to be elected as a Member of the European Parliament, one may need to comply with certain national requirements such as respecting a constitution. This indirectly implies that potential MEPs, who are representatives of the people, may be denied access to the European Parliament if they are not aligned with the ruling political parties in their respective Member States. This inevitably hinders the potential for political change from an EU level in Member States where such change is necessary. However, in order for the EU to respect the national sovereignty of its Member States as well as the principle of conferral, the choice of MEPs ultimately rests with the Member States. This decision-making power is not a competence conferred upon the EU by the Treaties.

Anton Wallin, John Ämtvall, Robert Mjörnander

Brekke et al. on How the Quest for Efficiency is Transforming Judicial Cooperation in Europe

In January 2023, Stein Brekke, Researcher in the Department of Political Science, Daniel Naurin, Professor of Political Science, Urska Sadl, Part-time Professor in the Department of Law, and Lucía López Zurita, Researcher at the European University Institute (EUI), published an article in the Journal of Common Market Studies (Vol. 61) titled “That’s an Order! How the Quest for Efficiency Is Transforming Judicial Cooperation in Europe“. The article illustrates the evolution of the Court of Justice’s Rules of Procedure over the last few decades concerning the requirement for efficiency and legitimacy in the administration of justice. Rules of Procedure serve as internal regulations that can be adapted to the specific technical needs of each institution. More specifically, this article discusses the use of reasoned orders as a tool to maintain a delicate balance between speed of justice and sound legal argumentation.

The Court has amended its Rules of Procedure at least fourteen times in the last thirty years, introducing the possibility of issuing a reasoned order in 1991 (now provided by Art. 99). With the arrival of a significant number of new member states in the 2000s, the Court had to adapt to the increased number of cases referred to it. Among the best-known changes are the delegation of cases to smaller chambers, fewer oral hearings and less involvement of the Advocates-General, all of which have led to a significant increase in procedural efficiency (p. 62).

The authors have attempted to analyze, through quantitative data, all the orders and judgments published by the Court to examine the use, frequency and justification of reasoned orders. As they point out, the aim of this mechanism, which is similar to judgments in terms of its binding content, is to save time for the European judiciary and alleviate repetitive questions in preliminary ruling proceedings (pp. 62-63). They point to the slowness of setting procedural rules for international courts, a process involving protracted negotiations, the signing of a treaty, and finally ratification by national legislative bodies (p. 61). However, the implementation of such a document will empower the courts to govern themselves and reinforce their independence from political influence by reducing processing times. These adjudicating orders can be seen as a blend of a judgment and an order. They constitute a legally binding interpretation of EU law but entail less amount of work as a judgment, making them more akin to an order in procedural terms.

The Court uses orders to express its “reticence” regarding questions which have been the subject of a large number of referrals by the same state over a short period of time. The authors refer to this as “vertical communication” between the Court and national courts (p. 71). The impact of these responses will be limited, as states may ask questions on the same provision, but these questions may not be identical.

From the outset, the authors detail the provisions of Article 99 and relate three conditions on which a reasoned order can be initiated. Since the 2000 reform, for a reasoned order to be issued questions referred for a preliminary ruling must either be identical to previous ones, the answer must clearly follow from existing case law, or the answer must leave no reasonable doubt. The reform had a significant impact on the use of adjudicating orders, spiking their use to 7% of all preliminary ruling references (p. 62). The two subsequent reforms in 2005 and 2015 did not give a result that could equal the previous. Whilst not increasing the amount of used orders, the later reforms did lower the time needed to give an order as the rules became, again, less restrictive.

The Court’s objective is to seek a form of legitimacy by making its arguments rigorous and rapid. But the use of such orders is controversial. The authors note the possibility of the Court using this article to get rid of an excessive workload. They also point out that, given what is at stake, it is astonishing that these orders have not been dealt with more extensively.

However, Article 99 itself presents several significant advantages, as the authors are quick to point out. While legitimacy is seen as a prerequisite of efficient judgment, the orders demonstrate an ideal compromise between quality and efficiency of justice. They allow the procedural requirements of judgments to be maintained while saving a certain amount of time by upholding the fundamental principle of legal certainty. As a result, the Court issues reasoned orders based on the law and case law, guaranteeing the continuity and consistency of European law.

The paper relies on an empirical study completed by Dyevre et al in 2019 (‘Case Selection in the Preliminary Reference Procedure’, Austrian Journal of Public Law), which examines all preliminary ruling references from May 2000 to December 2020. This study gives reasons as to why orders may be used instead of a judgment. By looking at judges as normal employees that want to strike a work-life balance it argues that overburdened judges are more likely to conduct an order as it takes less time and does not require the same amount of reasoning as a judgment. The other key argument of using this is that the Court’s legitimacy may be compromised if a judgment takes too long to complete. Backlog is a key concern discussed by the study. It considers that the backlog of the Court plays a key role in the amount of orders that are issued instead of judgments. In the article, the authors present a theory based on this study that is: when the judges have limited resources they are more likely to choose orders over judgments to save time. The authors find that chambers with three judges are less likely to issue an order due to high workload while they find no such patterns in chambers with five judgments. However, an increased backlog does increase the likelihood of chambers with both three and five judges to choose orders instead of judgements. The authors provide two explanations for this. First, a sudden increase of cases might trigger judges to dispose of the extra workload. The second explanation is that the large influx of cases can be assigned to the same chamber, ensuring efficient and consistent management. This, in turn, increases both the workload and the likelihood of using orders (p. 70).

In the article, the authors mention that in connection with the EU getting ten new Member States, the Court reconsidered its preliminary reference procedure in order to be able to handle the increased number of cases. What the authors do not discuss is the potential effects of Brexit. While Brexit only covers one member state and not ten, the UK is a fairly large country with an estimated population of 67 million. It used to be the third most populous country in the EU, surpassed only by France with 68 million and Germany with 84 million (see Facts and figures on life in the European Union, Size and population). On the other hand, many factors in a country can impact the number of cases being referred to the Court, as the authors of the article mention, such as the collapse of the financial sector in 2008, which led to the Spanish courts sending a series of preliminary references related to problems arising from the financial crisis (pp. 71-72). When analyzing the numbers of cases filed to the EU Courts from the UK between 2016-2021 (Notice by the UK Intellectual Property Office, 2014), one can see an estimate on how the withdrawal of the UK can affect the workload of the Court. In 2016, there were 38 references. In 2017, the year when the UK filed for exiting the EU, there were 37 references. In the two following years, there were 45 cases and 26 cases, respectively. The withdrawal then took place in 2020 when the number of references dropped to 14, and the following year it further decreased to 11 cases. Based only on this timespan, the UK submitted at average 37 cases a year before Brexit and the number of cases are now decreasing. Since 1 January 2021, the CJEU has had limited jurisdiction over the UK. This means that the CJEU no longer has general jurisdiction over the UK but has jurisdiction in some areas. (‘Brexit next steps‘, House of Commons Library, 2020).

Based on the remaining member states submitting around the same number of cases as previous years, the Court’s caseload has dropped with 37 cases a year. Between 2019 and 2020, the caseload dropped by 62%, and in 2021, it decreased by additional 8%. In 2018, the total number of cases received by the General Court was 834, the 45 cases from the UK represents around 5% of those cases. In 2019 the General Court received 939 cases, the 26 cases from the UK representing around 3% of those cases. This means that without the UK it would have been around 5% and 3% fewer cases that year. Now it is difficult to determine a good average percent based only on two years but it does show that Brexit will lower the caseload on the Court. However, whether the actual number of cases will decrease depends on multiple different factors such as events like the financial crisis in 2008. It is also true that ten new countries would have a more significant impact than one fewer country. However, whether the decrease in cases from the UK has affected the way the Court operates is an interesting topic that could have been explored further when the authors tested their theory.

The article states that the use of adjudicating orders can come at the cost of delegitimizing the Court. This delegitimizing effect, however, is weighed against the same possible outcome if the Court takes a longer time to arrive at a judgment for a preliminary ruling. According to the authors, the Court uses these orders strategically to be able to spend more time on cases that require more time. Therefore these orders give the Court an opportunity to “deliver good law in good time” (p. 73). The Court can only issue these orders for questions that meet the previously mentioned requisites. These requisites indicate that the Court may issue these orders only when the question has already been answered, there is existing case law, or when the answer is obvious. Due to this, the national court that asks a question already answered is the one that risks losing its legitimacy. By posing questions with existing answers, the national court not only delays its judgment but also undermines its own legitimacy based on the principle of iura novit curia. However, national courts might submit cases out of fear of punishment for failing to request a preliminary ruling from the CJEU. Non-compliance with EU law may result in state liability, rather than being due to a lack of knowledge.

The EU’s accession to the European Convention on Human Rights

EU’s accession over time

The informal relationship between the European Union (EU) and the European Convention on Human Rights (ECHR) is not new. Already in 1996, in Opinion C-2/94, the Court held that the European Community (today, the European Union (EU)) did not have the competence to accede to the ECHR. It was stated that no provision in the Treaty conferred powers to the EU institutions to enact rules on human rights or to conclude international human rights agreements (para. 27). The Court clarified that a change of such constitutional significance would require Treaty amendments (para. 35). In 2009, such an amendment was introduced with the Lisbon Treaty. In the amended Article 6(2) of the Treaty on European Union (TEU), the legal basis for accession was introduced.

Looking at the wording of the provision, specifically that ‘the Union shall accede’ to the ECHR, it means that it is an obligation for the EU to fulfill. Yet, the EU is not a party to the ECHR, even over a decade after the Lisbon Treaty came into force. As explained in a press release published by the European Commission published in July 2010, accession negotiations started in 2010. The member states of the EU reached a provisional agreement for accession with the Council of Europe in 2013. Article 6(2) TEU also stipulates that the accession shall not affect the competences of the EU ‘as defined in the Treaties’. The CJEU was, based on Article 218(11) Treaty on the Functioning of the European Union (TFEU), requested by the Commission to give an Opinion on this agreement and its compatibility with the Treaties. This Article stipulates that if the Opinion of the Court is adverse, the envisaged agreement may not enter into force. As expressed in Opinion 2/13, the CJEU found that the agreement was incompatible with the EU Treaties. We will return to discuss this opinion later.

Even though the accession has not been completed yet, the EU and the ECHR have not been entirely isolated from each other. Looking at the FRA case-law database, one can find that – as of October 2023 – there are 212 cases where the CJEU has referenced the ECHR in their judgment. In principle, the CJEU is not a human rights court, but human rights questions arise also in cases where the EU has jurisdiction. An example can be found in the Melloni case (C-399/11), where the CJEU held that the execution of a European Arrest Warrant (‘EAW’) did not violate the ECHR or the Charter of Fundamental Rights of the European Union (para. 50).

Does the fact that the accession has not been completed mean that Article 6(2) TEU does not constitute an actual obligation? Professor Steve Peers argues in a law journal article from 2015 that this provision actually constitutes an obligation on the EU institutions, referring to Article 265 TFEU, which stipulates that institutions can be sued based on their failure to act to comply with their obligations. In other words, infringement proceedings could be brought against the European Parliament, the European Council, the Council, the Commission or the European Central Bank. Based on this, Peers argues that EU institutions have to make sure that the accession process does not stall. Looking at this argument today, one can say that Peers was right because in 2019, by a letter co-signed by the president and the first vice-president of the European Commission, the Secretary General of the CoE was informed that the EU was ready to proceed in the accession process. Hence, the negotiations were resumed in 2020.

The 46+1 group

In January 2020, the representatives of ministers agreed on the continuation of a temporary task of Steering Group on Human Rights. The EU’s accession to the ECHR was a priority and negotiations would resume in a group with representatives of the 47 member states of the Council of Europe and a representative of the EU in an ad hoc group called “47+1”. However, on 16 March 2022, the Committee of Ministers decided that the Russian Federation no longer would be a member of the Council of Europe. In addition, the Russian Federation was no longer a part of the work of the Steering Committee for Human Rights and the ad hoc group “47+1”. This created a delay in the negotiations. When the Russian Federation withdrew, a new ad hoc group was selected, called “46+1 Group”. The new group aims to continue to prioritize the negotiations and the accession of the EU to ECHR.

Joint statement

In September 2022, Marija Pejčinović Burić, the Secretary General of the Council of Europe, and Věra Jourová, the Vice-President for Values and Transparency of the European Commission, issued a joint statement about the reopening of the negotiations. The aim of the statement was to communicate a clear message regarding both the Council of Europe and the European Commission’s ambition to protect fundamental rights in the Member States. The statement expressed that the EU’s accession to the ECHR would be an essential breakthrough regarding the protection of human rights in Europe. It also claimed that the EU’s accession to the ECHR would help ensure that the ECHR and EU law follow the same principles. This would lead to more coherence and consistency regarding the protection of human rights in all of Europe. Furthermore, the statement argued that joining the ECHR would ensure that the member states of the EU and other countries of Europe that are non-member states are held to the same standard. This would increase the right of EU citizens to take their case to the European Court of Human Rights if the EU violates their human rights.

The importance of the EU´s accession to the ECHR

It can be seen as questionable that the EU with its broad competences are the only legal system in Europe that is not subject to external scrutiny by the ECHR in the same way as its member states. Therefore, the EU´s accession to the ECHR is of importance since it will strengthen the protection of Human Rights by creating an external supervision of the EU. If  the EU accedes to the ECHR, it would mean that individuals could be able to bring a complaint about violations of Convention rights by the EU before the European Court of Human Rights, which will put the EU in a comparable situation with its member states. This means that all legal systems within the European Union would be subjected to the same supervision when it comes to the protection of human rights (FAQ by the Council of Europe, pp. 2-3).

Effects of accession – Will the hierarchy change?

As stated, accession would mean that the EU becomes a “state-like” party to the Convention in the same way as other contracting states. Here, a question arises: what will happen with the hierarchy between the CJEU and ECtHR? Currently, the relationship between them can be seen as horizontal, since EU law and the Convention are two separate and independent sources that protect fundamental rights individually. If one looks at Opinion 2/13, it seems like the CJEU fears that the hierarchical  order will change and it will lose its judicial primacy if the EU accedes to the ECHR. In Opinion 2/13, one of the main issues is how to maintain the autonomy of the legal order in the EU and its specific characteristics (paras. 178-200). What is unique to the Union is that the provisions have direct effect and that EU law comes from an independent source of law (para. 167). The special characteristics have resulted in a network of rules, principles and mutual relations between the EU and its member states, and the Court of Justice´s case-law does now benefit from universal recognition (para. 159).

Even if a request for the apportionment of responsibility is based on an agreement between a respondent and a co-respondent, it is not sufficient to rule out the autonomy of EU law. This means that the apportionment of responsibility must be resolved solely in accordance with the relevant EU law and, if necessary, with the CJEU, which has exclusive jurisdiction to ensure that the respondent and co-respondent respect those rules. If the CJEU would permit the ECtHR to affirm any agreement between the EU and its member states on the sharing of responsibility, this would be equivalent as allowing the ECtHR to take the place of CJEU where the latter have exclusive jurisdiction (Art 51 TFEU). With other words, this would mean that the ECtHR can settle a dispute that does not fall within its jurisdiction (para. 234). In this case, the specific characteristics of the EU and EU law would not be preserved. If the EU accedes, they will become legally bound, which means that it will submit itself to the authority of the ECtHR and thereby be subject to external supervision. The ECHR´s hierarchical status within the EU legal order is something that the CJEU would be required to take a stand about (Eckes, ‘EU Accession to the ECHR’, 2013, at p. 284). This will likely change the relationship between the two courts. As the CJEU will be compelled to recognize the jurisdiction of the ECtHR, a question arises: will they also recognise its case-law, and will the ECHR become fully integrated into EU constitutional law?

It should also be mentioned that even if there are positive aspects if EU accede to the ECHR, it would also result in a difficulty in deciding which entity is responsible for the violation: the member state or the European Union? Because it is not always easy to determine if the legal basis for a member state action is a rule of EU law or domestic law (FAQ by the Council of Europe, p. 2). On the other hand, in the Bosphorus case decided by the ECtHR in 2005 (Appl. no. 45036/98), it was not clear whether Ireland could be held responsible for an alleged violation of ECHR, while they have acted under a strict duty as a member state of the European Union. Since the EU is not formally bound by the ECHR, the ECtHR cannot decide that the EU should be held responsible. Therefore, in this case, the ECtHR held that it could be seen as a justification if the obligation arises from an organization that protects human rights in an equivalent manner as the Convention does. Consequently, Ireland did not deviate from its obligations under the Convention when implementing its obligations under EU law. This case illustrates that member states’ international obligations may collide, leading to serious dilemmas. However, if the EU acceded to the ECHR, this would provide the ECtHR with clear jurisdiction.

Didrik Nystrand, Jenny Serey Espinoza, Emma Rotstam

The EU’s accession to the ECHR: Negotiations concluded at technical level in March 2023

Introduction

On 31 March 2023, the Council of Europe published a Press release named ‘Major progress on the path to EU accession to the ECHR: Negotiations concluded at the technical level in Strasbourg’. The so-called ’46+1 Group’ (the Group), which is composed of all Council of Europe Member States and the European Union (EU), has come to an agreement for a draft of accession. Its Final report 2023 has been sent to the Council of Europe Steering Committee for Human Rights, which will guide further discussions among all the negotiating parties. The press release presents a significant milestone in the progress for the EU to join the European Convention on Human Rights (ECHR). Yet, there remain issues related to the EU’s accession. The main obstacle should be, as it has been in the past, the compatibility of the terms of the accession as interpreted by the Court of Justice of the European Union (CJEU).

Background

There is an obligation in Article 6(2) Treaty on European Union (TEU) to accede to the ECHR. The negotiations regarding the accession of the EU to the ECHR began in 2010 (Press release). In 2013, the Council of Europe’s 46 Member States and the EU presented a final report containing an initial provisional agreement (Draft agreement 2013). However, in 2014, the CJEU deemed the Draft agreement 2013 to be incompatible with EU law in the controversial Opinion 2/13 (see, inter alia, Juras and Ferčič, at p. 49). After the opinion by the CJEU, the negotiations were put on hold for a few years but resumed in the form of the Group in September 2020 (Final report 2023, para. 4).

The Final report from the ‘46+1 Group’

In March 2023, the Group presented a Final report based on the Draft agreement from 2013, which aims to give solutions to the issues brought up by the CJEU in Opinion 2/13. The Group divides the issues raised by the CJEU into four baskets (Final report 2023, p. 2). As basket (4) concerns EU acts in the area of common foreign and security policies, which will be resolved internally within the EU, basket (4) will not be addressed in this post (Final report 2023, p. 3). However, baskets (1)-(3) will be examined and analyzed based on how the CJEU could perceive the solutions presented.

Basket 1: EU-specific mechanisms

An issue that was raised in relation to the EU’s accession to the ECHR in 2013 was how the responsibility should be divided between the EU and the Member States due to the effects of the different EU acts (Douglas-Scott, ‘Opinion 2/13 on EU accession to the ECHR’, UKCLA Blog, 2014). In order to solve this issue, Article 3 of the Draft agreement 2013 established the co-responde,nt mechanism, which enables both the Member States and the EU to participate in a proceeding before the European Court of Human Rights (ECtHR) (Peers, ‘The CJEU and the EU’s accession to the ECHR’, EU Law Analysis Blog, 2014). However, in Opinion 2/13, the CJEU expressed three main concerns: the ECtHR would interpret EU law; a Member State might be held responsible for a violation of an ECHR provision, even if that Member State had made a reservation against it; and it could affect the division of powers between the EU and its Member States (Opinion 2/13, paras. 215-235). The CJEU concluded that the co-respondent mechanism failed to establish a procedure where the Court could safeguard the ‘specific characteristics’ of the EU. Therefore, the accession to the ECHR was not compatible with EU law (Opinion 2/13, para. 258).

Basket (1) in the Final report 2023 tries to solve these issues raised by the CJEU, and there have been several changes in Article 3. Sentences have been added where it is concluded that the ECtHR shall communicate information to the EU and its Member States concerning the applications before the ECHR. Also, a whole new subparagraph is added, namely Article 3(6), which gives the EU and the Member States the opportunity to give their view on an issue before the co-respondent mechanism is terminated. These types of changes in the article can be interpreted as contributing to the cooperation and transparency between the ECtHR and the EU. Overall, the article regarding the co-respondent mechanism has been made clearer, and it is evident that the Group has aimed to resolve the issues raised in Opinion 2/13 by clarifying the rules for the mechanism and how it shall be applied in relation to the ‘specific characteristics’ of EU law (Draft agreement 2013, pp. 6-7, 20-25).

Already after Opinion 2/13, the CJEU was criticized by scholars for being unconvincing in its reasoning. The CJEU put a lot of weight on the risk for a Member State to be held liable as a co-respondent for a violation on an article they have made a reservation for (paras. 226-228). Scholars have questioned this argument, since it is unlikely that the ECtHR would not consider reservations (Juras and Ferčič, p. 66). Other scholars claim that this is not even a problem since a Member State cannot be a respondent in a case regarding an article that they have made a reservation against (Lock, pp. 10-11). Although the arguments from the CJEU could be perceived as non-substantial, in the Final report 2023 it is evident that the Group has made efforts in answering the issues raised by the CJEU. The Group has included clarifications and made changes that makes it possible for the new court composition to accept the changes regarding basket (1).

Basket 2: Inter-party applications and advisory opinions in relation to EU Member States

Article 33 ECHR states that disputes between parties in the case of an alleged breach may be referred to the ECtHR. Similarly, Article 344 of the Treaty on the Functioning of the European Union (TFEU) states that if Member States have a dispute concerning interpretation or application of the Treaties, they must solve this via methods of settlement provided for in the Treaties. In Opinion 2/13, the CJEU found that Article 344 TFEU would be negatively affected by Article 33 ECHR (paras. 201-214). The CJEU states that Article 344 TFEU in particular requires respect for the CJEU itself and that where EU law is at issue the CJEU has exclusive jurisdiction (paras. 202, 204 and 210). The solution provided for in the Final report 2023 in regards to the first part of basket (2) is an amendment of the agreement that, in essence, entails that Article 33 ECHR is not to be used between the EU and its Member States nor between Member States if the dispute concerns EU law (Final report 2023, p. 7). Since such an exclusion is exactly what was prompted, no problem in accepting this part of the agreement should arise at the CJEU (see Juras and Ferčič, p. 61 and Opinion 2/13, paras. 201, 213).

Article 1 of Protocol No. 16 to the ECHR regards the possibility for the highest courts and tribunals to ask the ECtHR for an advisory opinion. In Article 267 TFEU it is stated that the same courts are to ask the CJEU for a preliminary ruling. In Opinion 2/13, the CJEU stated that the lack of a provision that established the relationship between these mechanisms would risk the autonomy and effectiveness of the preliminary ruling procedure (paras. 198-199). According to the CJEU, there would be a clear risk that the preliminary ruling procedure would be circumvented by the mechanism of advisory opinion (para. 198). The solution to this issue is a clarification entailing that the highest courts or tribunals of the Member States are not be seen as such for the purpose of Article 1 Protocol No. 16, if the question at hand ‘falls within the field of application of European Union law’ (Final report 2023, p. 7).

Since being recognized as the ‘highest court or tribunal’ is a prerequisite for the right to request an advisory opinion from the ECtHR, in practice, this means that Member States cannot ask for an advisory opinion if the issue regards EU law. This condition should address the concerns raised by the CJEU in this regard. (This solution has been discussed in the literature, see e.g. Lock, p. 23 and Juras and Ferčič, p. 60.) This means that the superior role of the CJEU in the EU would be established since it will be seen as the ‘highest court’ of every Member State in the meaning of Protocol No. 16 (The CJEU is commonly referred to as the world’s most powerful international court, see L. Pierdominici, The Mimetic Evolution of the Court of Justice of the EU: A Comparative Law Perspective, 2020, p. 2). Since safeguarding the special role of the CJEU is at the core of the arguments in Opinion 2/13, this solution has the possibility to gain acceptance from the Court. However, the evaluation of whether the request for an advisory opinion is admissible will lie with the ECtHR, which entails that the CJEU would have to accept that some interpretation of EU law is done by another court (see Lock, p. 23).

Basket 3: The principle of mutual trust between the EU Member States

In accordance with the CJEU’s case-law, the principle of mutual trust entails, inter alia, that Member States, except in exceptional circumstances, must presume that other Member States comply with fundamental rights that are recognized by EU law (N. S. and Others, paras. 78-80 and Melloni, paras. 37, 63). In Opinion 2/13, the CJEU argued that by entering the ECHR, both the EU and its Member States would have to check if another Member State is upholding human rights since it is an obligation according to the ECHR (Opinion 2/13, paras. 191-194). The CJEU therefore held that there is a risk that the principle of mutual trust under EU law may be undermined if the EU accedes to the ECHR (Opinion 2/13, para 258). The CJEU did not specify where the supposed obligation to check other Member States can be found. Most likely, the CJEU bases this assumption on ECtHR case-law (Juras and Ferčič, p. 56).

In the Final report 2023, regarding basket (3), it is presented that the ECtHR has taken the principle of mutual trust into consideration and observed the growing alignment with the case-law of the CJEU (see Avotins v. Latvia, paras. 113-116). However, the ECtHR has concluded that it is essential to ensure that the principle of mutual trust is not used automatically and without thought, especially when it could harm fundamental rights (Final report 2023, p. 26, see also  Avotins v. Latvia, para. 116). In the Draft agreement of 2013, the principle was not even mentioned once. However, in the Final report of 2023, a new article is added which explicitly refers to the principle. Article 6 in the Final report of 2023 describes that EU’s accession to the ECHR shall not affect the application of the principle of mutual trust in the EU (see p. 7).

The principle of mutual trust has been declared to be of fundamental importance by the CJEU (C-404/15 and C-659/15, para. 78). Some argue that the CJEU is willing to go to great lengths in prioritizing this certain principle, potentially resulting in the exclusion of or, at the very least, a detrimental impact on the safeguarding of human rights (Lock, ‘The Future of EU Accession to the ECHR’, 2015, p. 31). Although the new article presents a significant change from the Draft agreement of 2013, it gives a rather short and vague answer to reassure the CJEU that the principle would not be negatively affected. The article simply states that the application of the principle shall not be affected by the accession to the ECHR and fails to give practical illustrations on how it will be protected. The Final report of 2023 also fails to address the relationship between the mutual trust and the supposed obligation under ECHR to check if other Member States ensure the fundamental rights (Juras and Ferčič, p. 56). Therefore, it can be assumed that the amendments related to basket (3) will not be enough for the CJEU to give a favorable opinion.

Conclusion

There is in fact an obligation in EU primary law that the EU shall accede to the ECHR. However, in Opinion 2/13, the CJEU raises so many issues related to the EU’s accession to the ECHR that it seems like the CJEU had the aim to make the accession almost impossible (Douglas-Scott). After Opinion 2/13, scholars have argued that it is obvious that the CJEU would have rather prefer that no one had jurisdiction than to only the ECtHR having jurisdiction (Juras and Ferčič, p. 57). Through Opinion 2/13, the CJEU ‘took away the football’ from everyone else because the CJEU itself was not ‘allowed to play’ (Peers). This stubborn attitude by the CJEU could potentially, over time, have meant that victims of human rights violations could be left without an effective international remedy (Peers). However, the fact that negotiations on the EU’s accession to the ECHR has resumed and in 2023 reached the point of a Final report does indeed ‘present a significant step in the journey towards the EU’s accession to the ECHR’ (Press release). The Group had the explicit purpose of addressing the concerns raised by the CJEU, and, at least in part, they seem to have accomplished this in a way that hopefully enables the new composition of the CJEU to give a favourable opinion, ten years after the last attempt.


Natalie Faltin, Aline Kindberg, Cajsa Tervald

Cisco Webex services – The new tool for the protection of personal data

Introduction

In July 2023, the European Data Protection Supervisor (EDPS) announced in its press release No 128/23 that a decision had been reached upon whether or not the Cisco Webex videoconferencing and related services by the Court of Justice (CJEU) complied with relevant EU law. In its decision, published on 3 July 2023, the EDPS communicated that the use of cloud video conferencing tools as complies with the requirements of Regulation 2018/1725 on the protection of natural persons with regard to the processing of personal data by the Union institutions, bodies, offices and agencies and on the free movement of such data (EU Data Protection Regulation). Thus, following the decision, EU institutions, bodies, offices and agencies can now use Cisco Webex videoconferencing and related services without violating the provisions of the EU Data Protection Regulation. An assessment on the subject matter was initiated following the invalidation of the EU-US Privacy Shield as a result of the Schrems II-judgment of 16 July 2020 (C-311/18). With the invalidation of the EU-US Privacy Shield, the situation of protection of personal data became uncertain in relation to the usage of Cisco Webex services up until this new decision of the EDPS was reached, since Cisco is a US based company.

Protection of personal data in the CJEU

Before the Schrems II-judgment of July 2020, the protection of processing of personal data between the EU and the US had been provided for by the EU-US Privacy Shield legal framework. The EU and the US designed the EU-US Privacy Shield to safeguard the protection of personal data whenever it is transferred from the EU to the US where it is being processed. To put it in context, any use of a tool like Cisco’s videoconferencing services by the CJEU before the Schrems II-judgment would inevitably result in personal data from the EU being transferred to and processed in the US. Such situations were governed by the EU-US Privacy Shield framework to safeguard the protection of personal data emanating from the EU.

However, the EU-US Privacy Shield legal framework was later found to be insufficient by the CJEU. In Schrems II, the Court found that the US did not have adequate safeguards in respect of the processing of personal data emanating from the EU. The key issue in the case was that the US and their surveillance programmes did not comply with Regulation (EU) 2016/679 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data (GDPR) and the Charter of Fundamental Rights of the European Union (EU Charter). These programmes were not proportional in regards to what was strictly necessary in relation to the GDPR and the EU Charter. A fair balance between the protection of EU citizens’ personal data and the restrictions imposed on the rights guaranteed by the GDPR and the EU Charter could not be struck in the light of the principle of proportionality. The restriction of rights could not be deemed as limited to what is strictly necessary to achieve the sought objective. Moreover, the CJEU also held that EU citizens had no actionable rights towards US authorities in relation to their personal data (see paras. 176-184 of the Schrems II judgment).

As a result of Schrems-II, the EU-US Privacy Shield legal framework was invalidated. Afterwards, the Court referred its existing contract on video conferencing with the American company Cisco to the EDPS. Since the EU-US Privacy Shield legal framework could no longer be relied upon, it was necessary to examine such a contract in the light of the EU’s data protection provisions. Hence, the Court, in its quality as an EU institution, turned to the EDPS to ask if their contract could be regarded as complying with the Data Protection Regulation, more specifically Article 48(3)(a). As a response to the reference by the CJEU, the EDPS has given a positive opinion. How they reached this decision and what the EDPS does will be provided for in the following section.

The EDPS’s final decision

The EU Data Protection Supervisor (EDPS) has an independent responsibility to monitor personal data processing within the EU. Their task is also to advise and issue policies concerning personal privacy and to cooperate with the various institutions within the EU to ensure data protection within it. The core mission for the EDPS is to protect the rights of individuals when their personal data is processed within the EU. The regulatory framework for this is the EU Data Protection Regulation.

The EDPS investigated the issue concerned because the agreement between the CJEU and Cisco was revised in order to add a clause that ensures that the processing of personal data takes place only within the EU. After the EDPS had issued temporary authorization on two occasions in 2021 and 2022, allowing the use of these clauses before the CJEU, the EDPS gave a final decision on 13 July 2023. In the final decision, it was determined that Cisco’s services met the requirements set out in the GDPR. The EDPS pointed to Cisco’s several organizational measures intended to limit the transfer of data. These measures were, among other things, that no data is transferred to the cloud during confidential meetings, and during other forms of meetings a very small part of the data is transferred to the cloud. This, together with strong technical measures, such as encryption, have been introduced. Moreover, the cloud services must be exclusively located within the EU (see paras. 23-24).

The EDPS lastly pointed out that any transfer of personal data fundamentally interferes with fundamental rights. Therefore, in these cases, the regulation must be interpreted in line with the EU Charter. In the second place, “the data exporter must assess and document whether the planned transfer of personal data respects the essence of the rights and freedoms that the transfer interferes with, and whether the planned transfer is in accordance with the principles of proportionality and necessity” (see para. 51). In other words, the exporter must make sure that the processing of personal data is absolutely necessary to achieve the goal and that there are no less intrusive measures to achieve the same goal, i.e. the principle of proportionality must be followed in all situations. In this specific case investigated by the EDPS, it was stated that it might be necessary to transfer personal data since video conferencing is an essential tool for CJEU’s day-to-day functions, enabling remote communication for staff members working from home (see para. 52). The EDPS also stated that there is no less intrusive measure as an alternative to achieve the same result (see paras. 52-53). Therefore, it was considered that the principle of proportionality was followed, the planned transfer of personal data respected the rights and freedoms that the transfer possibly interferes with, and the video conferencing system was compliant with the data protection rules.

The principle of proportionality: Why this principle is important for the protection of processing personal data

As mentioned earlier, before the Judgment in Schrems II, the protection of processing of personal data was provided by the EU-US Privacy Shield legal framework. However, this legal framework was later recognized as insufficient by the CJEU and the framework was replaced. The EU-US privacy shield for data sharing was struck down by the CJEU because it did not provide the adequate protections to the EU citizens from government surveillance.

What can be understood following the case of Schrems II and the EU-US Privacy Shield framework is that it has become more difficult to transfer personal data to the US. As the CJEU ruled that there were no adequate safeguards for protecting personal data in the US, nor any actionable rights for EU citizens before US courts, the principle of proportionality for interfering with the rights protecting personal data from the EU could not be complied with. The interference with the rights to protection of personal data could not be deemed as limited to what is necessary, mainly due to the US and its surveillance programmes. The balancing of the public interest of the EU citizens and the restrictions of fundamental rights as guaranteed by the EU provisions could therefore not be sufficiently done.

After Schrems II, for any transfer of personal data from the EU to third countries, such as the US, to be lawful, it will interfere with rights guaranteed by the EU treaties as well as the EU Charter. Such an interference may only be lawful if it respects the principle of proportionality. This is the difference between why the CJEU deemed the EU-US Privacy Shield framework as unlawful and why the EDPS could find the CJEU using Cisco services as lawful. The latter respects the principle of proportionality and only interferes with rights to an extent that can be regarded as limited to what is strictly necessary.

To respect the principle of proportionality, the CJEU has implemented measures to limit the transferral of personal data to only occur when in need of technical support by Cisco. As the usage of the videoconferencing in itself has been limited using settings to not allow or enable any transferral of personal data, this is not at stake in the case at hand. Hence, the restriction of fundamental rights that may occur in relation to the usage of Cisco’s services are less extensive.

Consequently, the balancing of interests when assessing the restriction of fundamental rights changed in substance compared to Schrems II. In the case at hand, the EDPS could conclude that the potential transferring of data that may occur complies with the principle of proportionality, as it can be justified in the light of the public interest of the EU. In this case, the public interest in a well-functioning CJEU justifies an interference with the right to protection of personal data. Unlike in Schrems II, this interference is limited to what is strictly necessary, as there are no other options for the CJEU. Videoconferencing, as mentioned, is an essential tool for remote communication from home, improving efficiency, simplifying communication, and offering advantages such as screen sharing. Therefore, the EDPS deems the usage of Cisco’s services as compliant with the requirements on personal data protection in the EU.

Robert Mjörnander, Anton Wallin, John Ämtvall

DX v Instituto Nacional de la Seguridad Social (INSS), Tesorería General de la Seguridad Social (TGSS), Case C‑113/22, 14 September 2023

Facts of the case

In this case, Mr.DX, the father of two children, applied to the Spanish social security system for payment of an absolute permanent invalidity benefit, which he was awarded. However, he had not expressly requested, nor was he automatically granted, the right to a “maternity” pension supplement (§14). This pension is granted only to mothers receiving a disability pension when they have two or more children, to the exclusion of fathers even if they are in a comparable situation. The CJEU had already found this to be a breach of EU law in 2019 in the case WA v Instituto Nacional de la Seguridad Social (C-450/18).

Thus, in late 2020, Mr. DX filed an application for recognition of his right to the supplement before the Instituto Nacional de la Seguridad Social (INSS) on the basis of this judgment (§15). His application was rejected because the Spanish legislation was still under reform (§16). Mr. DX then appealed to the Juzgado de lo Social no 2 de Vigo (first instance), which, in a judgment dated 15 February 2021, recognized his right to a pension supplement, while rejecting the claim for compensation he had submitted at the same time (§17).

Both parties to the dispute appealed to the Tribunal Superior de Justicia de Galicia (High Court) (§18). While the INSS claims that Mr. DX is not entitled to the supplement, Mr. DX considers that it should be paid to him on the grounds that, had he been a woman, he would have been informed of this right. Since he considers that the principle of non-discrimination has been breached, Mr. DX is seeking compensatory and dissuasive compensation (§19).

The Tribunal Superior de Justicia de Galicia stayed proceedings and submitted a preliminary reference to the CJEU on the question of gender discrimination in the award of the disputed pension and on the award of dissuasive damages (§25). In a ruling dated 14 September 2023 (Case C-113/22), the CJEU considered that the social security scheme from which mothers benefited should be applied in the same way to fathers in the light of the ruling of the previous ruling in case C-450/18 (§37).

Secondly, the CJEU considered that the refusal decision is also likely to give rise to new discrimination for men, since only men have to assert their rights to such a pension supplement before the courts, resulting in certain inconveniences (§46). Thus, the Court found that the retroactive effect of the payment of said pension alone would not suffice to compensate for the damage suffered by the victim of discrimination (§54). The victim must therefore receive adequate financial compensation, which must take into account all the damage to which he or she has been exposed, including procedural costs (§56).

Relevant rules

The relevant EU law that the CJEU covers is Directive 79/7/EEC of 19 December 1978 (Directive 79/7), specifically articles 1-6 (§§3-8). Directive 79/7 concerns the equal treatment of men and women in social security matters. More specifically, it concerns protection against for example sickness, invalidity and unemployment (§§3-5). Directive 79/7 Article 4(1) provides that “equal treatment means that no discrimination based on gender is allowed” (§6). This applies to the calculations of and the conditions that determine the duration of benefits (§6). Further, Article 5 imposes an obligation on the member states to ensure that any laws, regulations, and administrative provisions that go against the principle of equal treatment are abolished (§7). Article 6 obligates member states to ensure that anyone who considers themselves treated contrary to the principle of equal treatment can pursue this claim through a judicial process (§8).

The relevant Spanish rules in this case include the General Law on Security (LGSS), Article 54 of which regulates a timeline for the mother to claim these benefits as well as the retroactive financial possibilities that exist (§9). It is supplemented by Article 60 which regulates the framework of the amount (§10).  Moreover, Article 10 of the Organic Law 3/2008 on the effective equality between women and men provides that all “acts that constitute or cause discrimination on grounds of sex shall be regarded as null and void” (§11). In these situations, the legislation also states that there real, effective and proportionate compensation to the damages suffered is needed, and in some cases penalties in order for it not to reoccur. Article 183 of the Law 36/2011 Governing Procedure for the Social Courts regulates the amount of damages. In cases where there has been an infringement, the Court is to decide on damages not only based on the link to the discrimination but also considering extra costs that stem from it. This compensation, even though hard to determine, aims to compensate the person enough to restore their previous position (§12). Administrative position (Criterio de Gestión) 1/2020 was adopted after the case C‑450/18 and created a supplement to Article 60 LGSS. It was created as a guideline before they could amend the previously mentioned Article. This position contained wording that gave the courts an opportunity to give this benefit to men as well stating that “the provisions of the preceding paragraph must logically be interpreted without prejudice to the obligation to enforce final judgments given by the courts which recognize the above-mentioned pension supplement for men” (§13).

Legal Reasoning

The CJEU decided to proceed to judgment without an Advocate General Opinion. The CJEU combines question one and three in order to determine whether or not Directive 79/7, specifically Article 6 is to be interpreted in a way that discrimination exists in the case where a male is denied his application for a female based benefit. The Court interprets Article 6 as an obligation on the national court to grant the pension supplement and to pay exemplary damages to reimburse costs for a lawyer and other court fees (§37). The Directive must therefore be interpreted in a way where the Spanish national legislation that excludes men from a pension supplement to be prohibited since it constitutes direct discrimination based on gender within the meaning of Article 4(1) Directive 79/7 (§38), also ruled in C-450/18.

Relying on previous case law (Joined Cases C‑231/06 to C‑233/06), the Court states that the national court must set aside any discriminatory provisions of national legislation, even without the legislative powers having it removed beforehand (§39). This obligation is not only applied to all of the national courts of the EU but to all of the organs of said member state (§§41-45). The CJEU also finds that it does not matter that it is an administrative practice, when it has been formalized in a published administrative position, it can still lead to discrimination. This discrimination would be connected to the procedural conditions that govern the grant of the supplementary pension, even if it does not fall into the direct discrimination that is part of the main proceedings (§46). This is based on the long period that Mr. DX was exposed to in order to obtain the benefit (§47).

In Article 6 of Directive 79/7 there is an obligation on the member states to ensure that measures are available for those who consider themselves to be afflicted by discrimination. This measure needs to be capable of sufficiently and effectively achieve real equality, in a way that provides effective and efficient judicial protection and deters the body that has committed the discrimination from doing it again (§ 49).

Financial compensation is the measure that the CJEU has used in previous cases. However, it must be adequate. This means that the financial compensation must in full make good on the actual loss and damage suffered, and this is to be provided by the national legislation (§§50-51). The Court also ruled that the reimbursement must have a retroactive effect in order to give the individual the same starting point as before the discrimination took place. However, it does make it clear that this cannot compensate for the discrimination but merely for the financial loss (§§ 53-54). The CJEU further notes that when deciding on financial compensation, all expenses must be taken into account, including lawyers’ fees, that the applicant had when asserting his right to the pension supplement (§56). This is due to Article 6 of Directive 79/7, which requires that the compensation must be made in full. Therefore, the costs that a person incurs to assert his rights cannot be disregarded (§§57-58). The CJEU finds that Spanish law allows for this full compensation, including lawyers’ fees (§59).

Conclusion

Although the Charter is not even mentioned by Court, the judges indirectly reinforce the fundamental right of equal treatment between women and men as set out in the EU Charter of Fundamental Rights (CFR) Article 23. This could be due to Directive 79/7 being more detailed and specific to discrimination in the matter of social security. The Court has ruled in the light of its previous case law. The Court reaffirmed the indispensability of the principle of non-discrimination, which was the subject of the dispute in this case, in particular discrimination based on gender. It is also clear that the principle of primacy of EU law is reiterated, as the judges do not fail to set aside the national provisions at issue. Consequently, the CJEU finds that Directive 79/7 is to be interpreted in a way that the grant of pension supplement only to women is discriminatory. Hence, the Directive requires the Spanish state to rectify the discrimination fully by restoring the individual to their pre-discrimination state.

Advocate General opinion in case C-261/22, the European arrest warrant and a mother’s right to family life, and the best interest of a child

Background

In 2020, a Belgian court issued a European arrest warrant (EAW) against a woman (GN) who was sentenced to five years imprisonment. A few months later, GN was arrested in Bologna (Italy). At that time, GN’s children were living with her. The Court of Appeal in Italy requested the Belgian judicial authority to provide information about the procedures when executing a sentence for mothers who are living with minor children (paras. 4-5 of the Opinion of Advocate General Ćapeta in case C-261/22). However, the Italian court did not receive any information. Therefore, there was no certainty that the Belgian judicial authorities could guarantee the mother’s right not to be deprived of her relationship with her children, and the children’s right to receive maternal and family assistance, as guaranteed by the Italian Constitution. Consequently, the Italian court refused to surrender GN (para. 7).

The Supreme Court of Cassation (Italy) hearing the appeal, decided to ask the Court of Justice for a preliminary ruling. They asked if it was possible to refuse to surrender or to postpone the execution of an EAW if the person concerned is a mother who lives with minor children, and when there is no certainty that the surrender can guarantee the mother´s right to family life and the best interest of the child (para. 8). This is a novel situation for the Court (para. 13).

Can a European arrest warrant be refused if there is a risk that a mother’s right to family life is violated?

Advocate General Tamara Ćapeta explains that the possibility of refusing to execute an EAW for a reason that is not explicitly provided in the EAW Framework decision was first declared in 2016 in the Aranyosi and Căldăraru case (para. 15). In this case, the issuing member state (Romania) was unable to provide information about the prison where the person concerned was supposed to be held. The European Court of Human Rights (ECtHR) had previously found that there was a serious risk of inhuman and degrading treatment due to the prisons in Romania being overcrowded (footnote 16).  Since there was evidence that the issuing member state had prison conditions that could violate fundamental rights, the ECtHR concluded that the executing judicial authority must seek additional information from the issuing state until they are certain that no risks to fundamental rights exist. This case is important in understanding the relationship between fundamental rights and mutual trust.

Ćapeta explains that even though the above-mentioned case dealt with the right to not be subjected to inhuman or degrading treatment (enshrined in Article 4 of the Charter of Fundamental Rights), she sees no reason why it could not be applied to another fundamental right, such as the right to family life as in the present case (para. 20). However, Ćapeta also points out that the Court has repeated on multiple occasions that the whole idea of the EAW system is built on the presumption that all member states respect fundamental rights. This means that the presumption can only be challenged if the executing state already knows that the issuing state will have a problem guaranteeing the person’s fundamental rights, such as the right to family life, for persons who are imprisoned (para. 24). Such knowledge, can for example be based on previous findings from the ECtHR, which was the case in Aranyosi and Căldăraru (footnote 16).

Ćapeta explains that in this case there is no indication that Belgium has systematic deficiencies to guarantee the right to family life of a person who is imprisoned. This means that the necessary trigger – acknowledgment or a suspicion that Belgium does not comply with this fundamental right – does not exist. Therefore, the Advocate General considers that the executing authority cannot refuse to surrender GN on the ground of a possible breach (paras. 27-28). We believe that the Advocate General’s reasoning is logical, since the EAW is built on the principle of mutual recognition, which means that a member state shall trust another member state’s criminal system and its judgments. In a case called X and Y v Oppenbar Ministrie, the European Council referred to the principle of mutual recognition as the “cornerstone” of judicial cooperation and that the principle is of “fundamental importance”. The Court of Justice of the European Union (CJEU) also pointed out that mutual trust among the member states constitutes a fundamental rule. Consequently, a refusal to execute European arrest warrants should be interpreted narrowly. This indicates the importance of mutual recognition and highlights why Italy should not refuse to execute the EAW. However, being a member state of the European Union also entails an obligation to ensure effective judicial protection of individuals’ fundamental rights. In this context, we agree with Advocate General Ćapeta that a member state can only refuse to surrender a person if there is already existing evidence indicating that the issuing state may violate the person’s rights. Otherwise, it would be disproportionate and endanger the effectiveness of the EAW system.

Can a European arrest warrant be refused due to a child’s best interest?

Advocate General Ćapeta also discusses the question of the best interests of the child and expresses that GN’s son also has a legal right to family life. Article 24 of the Charter emphasizes the child’s rights and states that it should be a primary consideration when making decisions. It also highlights the children’s right to have direct contact with their parents regularly. Ćapeta explains that the potential breach of the fundamental rights of GN’s child is linked to the EAW indirectly. This is because the child could potentially suffer from an EAW if the mother is to be surrendered. Ćapeta also states that the starting point in deciding about an EAW should be to consider the child’s particular situation in addition to assumptions about how the issuing country treats the child. Ćapeta also discusses that a decision not to carry out an EAW to protect the best interests of the child shouldn’t be seen as questioning the mutual trust among the European Union member states. We agree on this point, as it is essential for member states to value the child’s perspective and respect the best interests of children, as stated in Article 24 of the Charter.

Furthermore, the Advocate General reflects on how the fundamental rights of children are interpreted in case law. Ćapeta brings up the Piotrowski case (para. 46). This case highlights the importance of making an evaluation of the child’s specific situation (para. 48). The case is about a minor against whom an EAW was being executed. The court highlighted that the rules in Directive 2016/800 set the minimum standard on the treatment of children who are the subject of an EAW. The Directive also points out that just being a child does not automatically mean that an EAW will not be carried out. We find this to be an important fact to bear in mind, as we find it disproportionate to refuse the execution of an EAW solely based on the fact that a person is a child. By extension, it would be disproportionate to refuse the execution of an EAW solely based on the fact that the person has a child, without considering other factors.

Furthermore, Ćapeta points out that the judicial authority in GN’s case did request information about the conditions in prisons for mothers with young children in Belgium. Questions were asked to evaluate the potential situation of GN’s child. However, the authority did not receive an answer and no more questions were asked. Ćapeta argues that this was not the correct communication according to the communication standard that is set in Article 15(2) of the EAW Framework decision. Ćapeta argues that, in GN’s case, the judicial authorities must communicate in accordance with Article 15(2) and gather information about the situation of GN’s child in Belgium (para. 66). This is because the welfare of the child should be a factor in the decision-making process of an EAW, and therefore, the situation of the child needs to be known.

We find that Ćapeta’s opinion above is valid. It is highly important to consider the child’s right to a family while making decisions to carry out an EAW since the Member States have agreed to follow Article 24 of the Charter. However, it is disproportionate not to consider other factors when making decisions. Other factors could be the criminal history of the person who committed the crime and which crime the person committed.

Prevention of impunity under the EAW Framework Decision

Ćapeta discusses how the current framework of the EAW procedures could be used and interpreted to ensure that criminals do not enjoy impunity because of the fact that they are mothers (paras. 21 and 76). Criminal acts should be penalized, but in cases like the one at hand ensuring the best interest of the child should be a primary consideration (para. 74). In other words, these aims must be balanced. During the hearing and in their written observations, the case participants discussed different solutions (para. 75). Three specific provisions in the EAW Framework Decision were identified that could potentially be used for this purpose.

The first alternative solution would be the application of Article 23(4) of the EAW Framework decision that allows the postponement of the surrender of the mother to the issuing Member State. However, the provision requires ‘serious humanitarian reasons’ to be applicable, such as situations where the requested person’s life is in danger (para. 78). With reference to the wording of the provision, Ćapeta argues that it is applicable to the requested person and not to third persons, as in the case at hand (para. 81). Moreover, she argues that waiting until the child is of a more mature age would not constitute a humanitarian reason, resulting in the provision not being of assistance (para. 85-87). We agree with the argument, but also want to highlight, as noted by the Court in the E.D.L. case (C-699/21), that this is a temporary exception which otherwise constitutes an obligation to ensure surrender as soon as possible. One should keep in mind that we are talking about children whose family lives are at stake, but authorizing such an exception for a considerable or indefinite amount of time could result in the requested person being subject to coercive measures for this indefinite amount of time (para. 51 of the E.D.L. case).

The second solution presented is Article 4(6) of the EAW Framework Decision. The provision stipulates that the judicial authority of the executing Member State has the option not to execute an EAW in situations where the person is a national or resident of the executing Member State. However, the executing Member State must undertake to execute the detention order or custodial sentence (para. 89). It is suggested that this provision could be used to safeguard the best interest of the child and avoid impunity at the same time (para. 91). Ćapeta makes a reference to the Lopes Da Silva Jorge case (C-42/11), where the Court clarified the main purpose of the provision. It is established that the option of non-execution has the purpose of creating an opportunity for the executing authority to give weight to the requested person’s chances of reintegrating into society once the sentence expires (see para. 32 of that case). Ćapeta argues that even though the provision is optional, the best interest of the child may create an obligation to carry out the custodial sentence in the executing Member State (para. 95). In this way, impunity is avoided and it is easier for the mother and the child to maintain a close relationship (para. 91). Reflecting upon this, perhaps the provision also could create the opportunity for the executing judicial authority to give weight to the requested person’s chances of reintegrating with her child during but also after her sentence has expired. Finally, the third solution discussed is Article 5(3) of the EAW Framework Decision, but Ćapeta notes that the provision will not apply unless there would be a retrial in Belgium (paras. 99-100).

Conclusions of the Advocate General

In her conclusion, Advocate General Ćapeta firstly suggests that the referring national court in its answer clarifies that Article 1(3) of the EAW Framework Decision does not in principle preclude refusals to execute an EAW on the basis of what is in the best interest of the child. Secondly, she proposes the answer that in order to refuse an EAW, the communication mechanism under Article 15(2) must have been used, and the concrete situation of the child must have been determined. If these requirements are fulfilled and the executing authority is not certain that the execution of the EAW is in the best interest of the child, it may be refused. Lastly, Article 23(4) cannot be used to postpone a surrender for a person that is not the requested person and requires humanitarian reasons.

Since the case at hand has not been concluded yet, we look forward to seeing whether the Court of Justice will rule in line with the Advocate General’s opinion. Considering the fact that the Court adheres to the AG’s recommendations in 85% of the cases (see Pierdominici, The Mimetic Evolution of the Court of Justice of the EU: A Comparative Law Perspective, at p. 183), it is highly likely that it will do so this time too.

Emma Rotstam, Jenny Serey Espinoza, Didrik Nystrand