C-333/13 Dano, C-140/12 Brey, Free movement of persons, Migration law, Social law

Advocate General Wathelet's challenge to the Brey-regime and the rights of migrating Union citizens

It has passed by quite unnoticed in the media even though the opinion, delivered by Advocate General Wathelet on the 20th of May in C-333/13 Dano, introduce a restrictive approach to one of the most controversial political questions in Europe right now; the free movement of Union citizens and their right to social assistance. The Advocate General asserts that host member states may automatically exclude non-economically active persons from social assistance in order to protect the financial balance of the national social assistance system. If followed by the Court it will constitute a change to the Court’s regime established in C-140/12 Brey, a limitation to the right to free movement for Union citizens and a loss for European integration.

Free movement

Firstly, free movement of Union citizens as established in art. 21 TFEU, is one of the core freedoms within the Union and can only be limited by other provisions within the treaty or by provisions enforcing the treaty. The free movement directive (directive 2004/38) is lex specialis to art. 21 TFEU and codifies the general right to free movement.

The Directive establish rights for all Union citizens to reside unconditionally in another member state for three months, a worker or a job-seeker and the family member of such, may reside even longer. In addition, a Union citizen that is economically inactive but enjoy a comprehensive health insurance and possess enough resources so as not to be a burden on the host state's social security system may reside for longer than three months.

Art. 24.1 of the free movement directive oblige member states to provide for equal treatment for EU-migrants in relation to the nationals of the member states but art. 24.2 limits that equal treatment principle, stipulating that member states are not obliged to grant any social assistance for the first three months of residence, or for longer periods of residence  for job-seekers. Those who may gain any social assistance are workers, self-employed (people who own their business) and their family members.

By consequence the Directive establish a regime that on the one hand oblige member states to grant social assistance to workers, who generally don´t need social assistance, while on the other hand, the directive provide for tools so that member states may refuse residence for Union citizens without sufficient resources and the possibility to deny job-seekers all social assistance.

This hardline approach established by the Directive, has been supplemented however and the Court has ruled that job-seekers, who can show a genuine connection to the host member state’s labor market, have the right to such assistance that has a clear purpose of providing access to the member state labor market (see to that effect C-22/08 Vatsouras). For the purpose of social assistance however, the rights for Union citizens without sufficient resources is still pending and the small liberalizing steps the Court took in Brey will be dismantled if it chooses to follow the Advocate General Wathelet’s approach.

The conflict of Brey and Dano

In C-140/12 Brey the Court assessed the compatibility of an Austrian legislation  with the free movement directive. The Austrian legislation stipulated that the right to social assistance was dependent of whether the applicant was lawfully residing within Austria. Considering that the criteria for lawful residence in art. 7 of the free movement directive is to possess sufficient resources so as not to be a burden on the member state social assistance system, union citizens who applied for social assistance in Austria ended up in a catch-22, which made it impossible to reside lawfully and enjoy social benefits at the same time.

Because EU-law lacks material harmonization for social benefits it is up to the member states to provide for the substantive conditions that must be fulfilled in order to be entitled such a social benefit. Taking that into consideration and by asserting that providing social assistance could be a burden on a member states social assistance system, in conjunction with the free movement right's subordinate position to the interest of the member state to protect the financial balance of the social security system, the Court held that a legislation such as the Austrian is compatible with the free movement directive.

However, while acknowledging the Austrian legislation’s compatibility with Union law, the Court introduced a safeguard for union citizens seeking social assistance, declaring that article 7 of the free movement directive cannot be interpreted restrictively and that national measures which exclude non-economically active persons automatically from gaining social assistance, is incompatible with the Directive. Rather, the Court held that the national authorities must provide for an assessment of whether to furnish social assistance would be a de facto burden on the financial balance of the assistance system. This entails taking into account individual circumstances of the applicant, such as whether the need for assistance is temporary, the length of the applicant’s residence and the amount of the social assistance that has been applied or provided for.

Now looking at the Advocate General’s view in C-333/13 Dano, the Advocate General's position bring's challenge to that safeguarding instrument, declaring that the individual assessment test is not in line with the purpose of the union legislator and that the Brey-regime is paradoxical in relation to the Court’s regime on rights of job-seekers.

Dano concerns a German legislation with the effect of automatically excluding individuals who has moved to Germany for the purpose of finding work or to gain social assistance from social assistance. AG Wathelet argues that it lies within the nature of the demand for efficient resources that it is possible to discriminate and that the purpose of the provision is to prevent non-economically active union citizens to exploit host member states assistance system.

Wathelet continues his argumentation by stating that if a member states can’t exclude social assistance to non-economically active persons, it would have the effect that an individual gaining social assistance would always have enough resources so as not to become a burden on the states social assistance system for the purpose of residence. Furthermore, Wathelet holds that since it is apparent that one application cannot be a burden on the assistance system, the assessment of the burden must be made to the total effect of all applications for social assistance.

Furthermore, according to the Advocate General, the right for a non-economically active person to get an individual assessment for the purpose of establishing whether social assistance, in that specific case would constitute a burden on the national assistance system, creates a situation where a non-economically active person is put in a better position in comparison to job-seekers, who are explicitly excluded from social assistance by the wording of the Directive.

Conclusion

It is apparent that if the Court chooses to follow the Advocate General’s opinion, such a decision will change the regime established in Brey with restrictive consequences for union citizens residing in host member states. The argumentation is inconclusive however. Even though it is clear that a single application for social assistance can’t be considered a burden to the financial balance of the host member state, it is not clear why the assessment must be made to the total effects of all applications. Such an approach inherently undermines the need to look at the subjective circumstances of each individual case, with the effect that it becomes merely impossible for union citizens to obtain social assistance independent of the de facto effect on the social assistance system.

Moreover, AG Wathelet’s argumentation on the paradox of the rights of non-economically active persons and job-seekers does bring up a problematic feature as a consequence of the Brey regime. It is definitely a paradox why a person who is non-economically active should be accorded greater rights than a person who is looking for work, when the situation of such individuals is actually materially the same but their resident is based on different legal status. The Advocate General’s solution to that problem, is to put the non-economically active person in the same situation as the job-seeker, but the fact that the wording of the free movement directive seem to close the door for a liberalizing step for the purpose of job-seekers does not by consequence mean that the only way to go is to limit the rights of non-economically active persons. Rather, if the Union legislator find a need to change the rights of union job-seekers, then that would be a possible and welcoming step within the ordinary legislative procedure, but if not it must not have the consequence that rights and obligations for union citizens, residing in host member states with another legal status, should be limited.

The case however is not only a question about individual assessment or general exclusion but it also bring to the fore a discussion about what the free movement in Europe should entail and to what extent we want to see further integration in Europe. Do the member states have a responsibility to provide for social assistance to people from other member states or not, should we consider subjective circumstances, why is an aspect of integration relevant and what values are we ready to give the union citizenship? Hopefully the Court will be able to resist the extensive political pressure from the member states in these questions when making its assessment.

Case C‑131/12, Google and Google Spain v Mario Costeja Gonzales, Protection of personal data, Fundamental rights

Google's responsibility for the protection of personal data

Last Tuesday (13/5) the CJEU ruled in what must be considered a landmark case, concerning the protection of personal data and what responsiblity search engine operators are obliged to take when providing such data to the public. The Court decided that not only is a search engine operator responsible for the information they provide through links, but they can also be obliged to remove the links from its index. The Court's decision open's the door for individuals to bring action against Google for the purpose of removing links to data which they don’t want public.

The issue

The case concerned Mr. Mario Costeja Gonzales, a Spanish national that lodged a complaint with the Spanish Data Protection Agency against La Vanguardia Ediciones (daily newspaper,) on the ground that when an internet user entered Mr Costeja González’s name in Google, he would obtain links to two pages of La Vanguardia’s newspaper on which an announcement mentioning Mr Costeja González’s name appeared for a real-estate auction connected with attachment proceedings for the recovery of social security debts.

The Data Protection Agency rejected the complaint in relation to the La Vanguardia but upheld it in relation to Google Spain.  The agency argued that it had the competence to require the withdrawal and access to certain data when that data could compromise the fundamental rights of union citizens. This led Google to bring actions against the Agency decision in the National High Court which referred the question to the CJEU. The National High Court's seeked the CJEU to clarify the compatibility of the Agency decision in relation to Directive 95/96 on the protection of individuals, with regard to the processing of personal data and on the free movement of such data, as well as the compatibility with the right to data protection as stipulated in article 8 of the Charter of Fundamental Rights.

Processing and controlling data

The purpose of the Directive 95/96 is to protect the fundamental rights and freedoms of natural persons, and in particular their right to privacy with respect to the processing of personal data, and of removing obstacles to the free flow of such data (art. 1 Directive 95/96).

The CJEU assessed whether the activity a search engine operator conduct's when finding, indexing, storing and providing information which is placed on the internet by a third party, constitutes “processing of personal data”, for the purpose of the Directive 95/96. Likewise, the Court assessed whether the Directive was applicable to an international search engine operator and whether it is possible, falling within the scope of Union law, to impose an obligation on such a search engine operator to withdraw information.

Google argued that the activity was not to be considered “processing of personal data”, asserting that the search engine lacks knowledge and control about the data.  The Court on the other hand, asserted that the search engine automatically, constantly and systematically search for information which it collects and makes available. By referring to the earlier case C-101/01 Lindqvist, where the Court ruled that to place information on the internet is processing personal data, the Court concluded that the activity Google conducts is processing of data in the same sense,  notwithstanding that a third party is responsible for the publication of that data.

In addition, the Court held that since the search engine operator determines the purpose and means of the data it carries out within its own activity, such an operator must also be considered controller and responsible for that process which has the potential of affecting individual fundamental rights.

Applicability and withdrawal

For the matter of whether the Directive is applicable to an international search engine, the court argued that the criteria for applicability, is whether the processing of data is  ‘carried out in the context of the activities’ of an establishment of the controller, on the territory of a Member State. The court held that it does not matter that Googles processing of data is not located in Spain, apparently it was enough that Google Spain has an office in Spain where they advertise and promote Google, to fulfill the criteria “carried out in the context of the activities” .

Considering the last part of the assessment, whether a national agency can oblige Google to withdraw information from its index, the Court argued in relation to articles 7 and 8 of the Charter of Fundamental Rights whereby concluding that an national agency can oblige Google to withdraw information. The Court held that considering the right to private life and protection of data, such an interest of an individual, to protect data, normally outweighs the financial interest of a search engine operator and the public interest to find that data when searching for an individual’s name. However, according to the Court, that could depend and considerations must be made to the nature of the information and the sensitivity for the data subject’s private life. Thus, in reality it comes down to a proportionality assessment by a national athourity, balancing the interest of the public in relation to the interest of the individual.

C‑293/12 and C‑594/12 Digital rights Ireland, Human rights

Validity challenge to the Data Retention Directive

The Case C-293/12 and C-594/12 on the retention of data is probably one of the most interesting and anticipated cases this year and I’ve been meaning to write about it since it was published.The Data Retention Directive has been subject to a lot of political debate and it raises questions about integrity, human rights and state control. The fact the Court invalidated the Directive opens the door for those discussions again and it might be a healthy injection in that debate    

The Directive and fundamental rights

On the 11th of August 2006 Digital Rights Ireland (hereinafter DRI) decided to challenge the validity of the Data Retention Directive (Directive 2006/24) and the transposing national law, in an Irish court. DRI challenged the Irish authorities’ measures concerning the retention of data from a mobile phone DRI had registered on the 3 of June 2006.  At the same time in Austria Mr. Seitlinger and 11 129 other persons, in a group challenge in the Austrian court, brought action against the national law transposing the Data Retention Directive. Both the Irish and the Austrian courts’ decided to halt the proceedings and to refer the cases to the CJEU that ruled on the invalidity of the Directive on the 8th of April.

The purpose of the Data Retention Directive is to harmonize the retention of data so as to prevent and investigate organized crime and terrorist threats. The Directive establishes tools for national authorities to get access to all data of all communication done by all individuals by stipulating rules and obligations for how public communication networks must retain data of electronic communication. The Directive covers practically all electronic communication and it requires the retention of all traffic data concerning fixed telephony, mobile telephony, internet access, e-mail and internet telephony. It covers all subscribers and registered users and according to the Court of Justice of the European Union it entails an interference with the fundamental rights of practically the entire European population (p. 56).

“[The data the communication networks must retain] include data necessary to trace and identify the source of a communication and its destination, to identify the date, time, duration and type of a communication, to identify users’ communication equipment, and to identify the location of mobile communication equipment, data which consist, inter alia, of the name and address of the subscriber or registered user, the calling telephone number, the number called and an IP address for Internet services.” (p. 26)

In the joined challenge brought by the applicants the Court decided to assess the validity of the Directive in the light of the right to respect for private life art. 7 CFREU (the Charter) and the right to protection of personal data in art. 8 of the Charter. Furthermore, the Court held that since the Directive enables national authorities to make specific conclusions of individuals’ life, with the potential consequence of people feeling limited to communicate with technology covered by the Directive, it could also be an infringement of the freedom of expression and information as stipulated in art. 11 of the Charter.

On the compatibility of the Directive in the light of the respect for private life, the Court held that an obligation on communication networks to retain information about peoples’ communication is an infringement of the respect for private life per se. Likewise, the Court held that the way the Directive provides for the processing of data is in breach of the right to protection of personal data. In addition, the fact that information is retained and used without the concerned person’s knowledge and that national authorities have access to that information increases that infringement. Whether the Directive was infringing on rights established by the Charter was clearly not hard for the Court to answer but that in itself however, does not give effect for the annulment of the Directive.

Limitations and justification

Limitations on the rights established by the Charter can be made if those limitations genuinely meet the objectives of a general interest and the limitations are proportionate to that aim art 52(1) of the Charter.

The fight against serious terrorism in order to secure international peace and the fight against serious crime in order to secure public security is such a general interest (see to that effect Kadi and Al Barakaat, Tsakouridis).  Since the purpose of the Directive is to ensure that data are available for the purpose of the investigation, detection and prosecution of serious crime, it fulfills a justification on the basis of that general interest.

Concluding that the limitations satisfies the requirement of a general interest, the Court applied its traditional proportionality test, assessing whether the limitations are appropriate to achieve the aim of the general interest and whether it is necessary to achieve that aim.

The Court argued that even though the limitations are appropriate to achieve the general interest they cannot be considered necessary. The Directive stipulates that all information should be retained, consequently affecting all people within the EU irrespectively of when, where or whether the person concerned actually has a connection to crime. Furthermore, the Directive does not entail any objective criteria for when it is necessary for national authorities to gain access to retained information and it does not provide for any minimum requirements concerning security or safeguards against abuse. Therefore, because of the Directives broad and general application and the absence of security and safeguarding provisions, the Court concluded that the Directive cannot be considered necessary in the sense that it provides for the least violating measures in order to achieve the aim of preventing and investigating serious crime. Since the infringements could not be considered proportionate to the aim of a general interest the Court declared the Directive invalid.

Conclusion

Firstly, it must be noted that the Court’s decision to declare the Directive invalid was not because it infringed of the right to private life and the right to protection of data, rather the annulment was made because those infringements were not considered necessary to the aim of preventing and investigating serious crime. That is an indication by the Court that the retention of data can be used by member states and justified in relation to fundamental rights granted by the Charter, if the measures are less general and provide for safeguards concerning the processing of the data.

Secondly, what is quite controversial about this judgment is that the Court identifies the ambition to prevent serious crime as the purpose of the Directive. This is contrary to a previous validity challenge brought by Ireland in 2009 (see to that effect C-301/06 Ireland v The Council and the Parliament).  In that case the Irish government claimed that the Directive should have been enacted with another article than art. 114 TFEU as legal ground and to support their argument they held that the purpose of the Directive was to prevent serious crime. The court however, held that the purpose of the Directive was to harmonize how telecom providers retain information and consequently rejected the Irish claim. This raises question about how to define the purpose of a directive but also what the decision could have been if the Court’s proportionality test had been applied to the purpose defined by the Court in 2009.

Thirdly, from a Swedish perspective the judgment has had some interesting effects. Several swedish communication networks has stopped retaining data and Swedish Post and Telecom Authority, the authority responsible for enforcing the directive, has stopped with all actions based on the Data Retention Directive, despite that the transposing national law is still valid from a constitutional perspective. While that might be good from a human rights perspective it is also troubling since it precludes the possibility of challenging the validity of the Swedish law in relation to the Charter in a preliminary ruling.

Lastly, according to EU-commissioner Cecilia Malmström, the 3 million Euro that Sweden got in a fine in May last year (see to that effect case C-270/11), for not implementing the Data Retention Directive in time, will be repaid.

104/81 Kupferberg, C-308/06 Intertanko, External relations

Effects of free trade and non-free trade EU international agreements

What legal effect does an international agreement, that the EU is a party to, have internally within the Union? Do such international agreements establish rights for Union individuals? What happens if a member state measure or an EU measure is in conflict with such an international agreement? 

This blog post deal with the legal effects of international agreements from a comparative perspective, looking at the approach by the Court on the direct effect/direct applicability to free trade agreements on goods, in comparison to the Court’s approach to non-free trade agreements. 

Union competence on international agreements

The Union has the competence to conclude international agreements according to art. 216(1) TFEU. Agreements concluded by the Union are binding on the Union institutions and on the member states as stipulated in art. 216(2) TFEU. Furthermore, agreements concluded by the Union with third countries or international organizations are considered to be an integral part of Union law (see to that effect Haegeman). Consequently, a member state that does not fulfill obligations as stipulated by an international agreement, concluded by the Union, are in breach of Union law (see to that effect Commission v France).

If international agreements that the Union is party to, form an integral part of Union law, questions arises concerning the legal effect of such agreements. Do such agreements have direct effect, so as to confer rights to individuals that can be relied on directly before a national court?  Can such agreements be directly applicable, so as to be relied on for challenging the validity of an EU legislation?

The CJEU has given answers, a fairly spreading regime, to the legal effects of international agreements where the absolute majority of them have been concerned with free trade agreements. It was not until 1998 that the Court actually dealt with the question on what legal effect a non-trade agreement, that the Union is a party to, brings to the fore (see to that effect CIWF). By using some of the Court’s landmark cases I will try to describe the Court’s approach to free-trade and non-free trade agreements.

Legal effects of free trade agreements

Starting of its regime in 1972 with International fruit, the Court were asked to answer in a preliminary ruling whether the GATT agreement could be invoked and relied upon before a national court in a challenge to the validity of three Commission regulations . The Court reasoned that such a validity challenge was possible if the provisions of the GATT agreement confer rights on individuals that they can invoke before a court. It was held that when determine if the provisions confer rights, the assessment must be made considering the spirit, purpose and the terms of the GATT agreement . The Court’s reference to the nature of the agreement has then been reiterated in all cases where the direct effect test has been applied, thus laying down the constitutional foundation for the legal effects of international agreements.

Considering the substantive assessment in International Fruit, the Court held that GATT is a result of negotiations with reciprocal and mutually advantageous arrangement, with flexible provisions and the possibility of derogations, wherefore the Agreement does not confer rights to individuals that they can invoke before a Court . That assessment would be of great importance, defining the relationship between WTO agreements and EU law, since it would be subject to numerous challenges where the Court has basically reiterated its stand from International Fruit.

In Kupferberg  in 1982, a German wine importer challenged a national tax provision to the import of spirits, on the ground that the provision was in conflict with the EEC-PORTUGAL AGREEMENT OF 22 JULY 1972. The Court first applied the direct effect criteria as established in International Fruit but after concluding that the spirit and purpose of the agreement did not prevent it from being relied on directly the Court attached another condition to the assessment; the provision also needed to be unconditional and precise in relation to the context of the agreement of which the provision form a part . That meant that the provision needed to be assessed in light of the objective and purpose of the agreement, as well as assessed in light of the context of the provision.

Reading International Fruit in conjunction with Kupferberg, it is clear that a two-step direct effect/direct applicability test has emerged for free trade agreements; an international agreement can confer rights to individuals that can be invoked before a court if the nature and structure of the agreements does not prevent it, and if the specific provision is unconditional and precise enough. This two-step test has later been used in several cases such as Anastasiu, Chiquita Italia and Katsivardas.

Legal effects of non free-trade agreements

In the Intertanko case from 2008 the Court gave its ruling on the direct applicability of the United Nations Convention on the Law of the Sea (UNCLOS). The claimants, an association representing about 80% of the Shipping industry brought action against the validity of the EU Shipping Pollution Directive, claiming it was in breach of UNCLOS so as that the directive laid down a stricter regime than the Treaty.

The Court rejected the claimant’s submission on the ground that: “it must be found that UNCLOS does not establish rules intended to apply directly and immediately to individuals and to confer upon them rights or freedoms capable of being relied upon against States”.

The ground for rejection of the UNCLOS Treaty in was clearly a restrictive interpretation of the legal effect of the agreement and a change to the Court’s approach. Setting the condition that the provisions of the agreement must be intended to apply directly and be designed to confer rights on individuals is clearly excluding most of the international agreements that the Union is bound by.

Furthermore, notice how the test is applied, it is not a test to the relevant provision at hand but it is test concerned with the nature and structure of the agreement. The question on whether the agreements has direct effect is not based on whether the nature of the agreements prevent it, rather, according to the Court in Intertanko the precondition is that the nature of the agreement prevent it from being directly applicable if it is not intended and designed to confer rights on individuals.

This approach to the application of the direct effect test was later confirmed by the CJEU in ATA and others in 2011 where the court ruled in the direct applicability of the Kyoto Protocol and the Open skies agreement in a challenge to the validity of the Greenhouse gas emission Directive 2008/101.

Concerning the direct applicability of the Kyoto Protocol, however referring to the possibility of derogation and the establishment of a dispute settlement procedure between the parties on issues concerning implementation on the agreement, the Court finally rejected the direct applicability on the ground that the provision was not unconditional and precise enough.

Concerning the direct applicability of the Open Skies agreement, an agreement establishing provisions for airlines within the member states and which seeks to liberalize the air transport sector. The Court held that it does not matter that the agreement establishes a special framework for negotiations on how to implement the treaty, neither is it of relevance that the agreement establishes a special tribunal for disputes concerning the application or interpretation of the agreement. What did matter to the Court, was that the agreement establishes certain rights and obligations designed to apply directly and immediately to airlines, which according to the Court, confer rights to individuals that they can rely on before a court.

Conclusion

Considering the Courts application of the direct effect test in Intertanko and ATA and others, it is clear that the approach is less receptive when applied to non-free trade agreements than to free trade agreements. Intertanko dropped down like a bomb among legal scholars and ATA and others were very much awaited to give answer to whether an agreement actually needed to be designed to confer rights, to factually confer confers rights on individuals.

So why this difference in approach? It could be that the restrictive approach applied to non-free trade agreements will be the new lex lata applied to all international agreements, that is to say, that there is no difference. Considering the contextual differences to the agreements however, it indicates that the answers has a political angle rather than a judicial.

Firstly, the free trade agreements concerning goods tend to be bilateral agreements with a close relationship between the Union and the parties (see to that effect Pabst, Anastasiu and Bresciani). In Kupfenberg the agreement concerned was an association agreement between Portugal and the Union, whereas the non-free trade agreements tend to be multilateral agreements with lots of states, which consequently excludes a close relationship between the parties. Obviously the Union influence on bilateral negotiations is greater than the influence the Union might have on multilateral agreements. Thus, giving rise to a political motive for why the Court is more receptive to direct applicability of bilateral free trade agreements.

Secondly, decisions on free trade agreements has in general concerned challenges to domestic law, whereas the non-free trade agreements has mainly involved challenges to EU-legislation. That difference might be of great importance for explaining the differences in the Courts approach to the legal effects of the agreements. The conclusion that an international agreement should be interpreted directly in relation to domestic law does not stipulate any further obligation on the Union. By contrast, when the Court concludes that an EU-legislation is invalid due to its incompatibility with international agreements, it will lead to considerable consequences for the Union and the Union legislator. In such a case, the directive must be amended in coherence with the ordinary legislative procedure, thus subjecting the provisions to negotiation and derogation. It is likely that the Court wants to avoid such a situation as far as possible.

Finally, it is rare that international agreements are designed to be applied directly by individuals, wherefore the regime on free trade agreements that is receptive to de facto rights unconditional to the intention of the provision, offer a wider scope for direct applicability of international agreements but limits the Court’s own discretion. Consequently, a more restrictive approach increases the Court’s discretion and limits the Court’s dependence of international treaties. That might be of special importance to the CJEU considering the nature of multilateral agreements, in order to limit the Court’s dependency of geopolitical interests. 

C-79/13 Saciri, Migration law

A worthy standard of living for asylum seekers and Belgian catch-22

What is the minimum standard for the reception of asylum seekers within the Union? On the 30th of February in case C-79/13, while precluding a Belgian catch-22 legislation, the CJEU gave an answer to that question in a preliminary ruling referred by the Arbeidshof te Brussel (Brussels Higher Labour Court).

The issue concerns the interpretation of Council Directive 2003/9, the harmonizing directive on the reception of asylum seekers. The purpose of the Directive is to lay down common minimum standards within the Union and it is a part of the principal aim of a common European asylum system.

Factual circumstances of the case

Mr. Saciri and Mrs. Saciri, with three joint children, applied for asylum at the Belgian Alien Office. When they lodged their application for asylum they also applied for reception at the national authority Fedasil (reception agency).

Fedasil informed the Saciri family that they could not provide them with housing and therefore referred them to a social assistance agency. The Saciri family then applied for financial aid at the social assistance agency to which they had been referred to by Fedasil. The social assistance agency rejected the family’s application for social aid on the grounds that an application could only be granted if the family would have been residing within an accommodation provided by Fedasil . Consequently, the Saciri family were trapped in a catch-22 where the family could neither get accommodation in kind, nor with a substituting financial allowance provided by public assistance system.

The Saciri family brought action against Fedasil in a lower Belgian court who ruled that Fedasil were to reimburse the family. Fedasil then appealed that court’s decision to Arbeidshof te Brussel who referred three question to the CJEU, asking essentially:

Is art. 13(5) of Directive 2003/9 to be interpreted as meaning that when a state has opted for financial allowance, that financial allowance must be of such, as to enable asylum seekers to obtain accommodation from the time of introduction of the application?

Furthermore, is Directive 2003/9 to be interpreted as to preclude a national legislation which refers asylum seekers to an agency, within the general public assistance system, on the ground that the facilities for accommodation of asylum seekers is overloaded?

Legal considerations

Art. 13 of Directive 2003/9 contain general rules on the material reception conditions that member states are obligated to provide for asylum seekers. Art. 13(5) stipulate that material reception may be provided for in kind or by financial allowances or vouchers.

With regard firstly to the time from which the member state is to provide material reception, the CJEU referred to the wording of art. 13(1), stating that it must be considered apparent that material reception must be available from the time of application. Furthermore the Court argued, considering the general scheme and purpose of Directive 2003/9, in conjunction with the obligation to respect and protect human dignity as stipulated in art. 1 of the CFREU, that a national measure that deprives an asylum seeker minimum protection, even for a temporary time, must be precluded. Therefore, in order for the interpretation of art. 13(5) to be coherent with the purpose and wording of the Directive and following the line of earlier case law, such as Cimade and Gisti, the Court argued that material reception must be granted at the time when an asylum seeker apply for asylum.

With regard secondly to the amount of the financial allowances granted, the Court argued that reading art. 13(5) in conjunction with art. 13(2), the amount of financial aid must be enough to ensure the applicant subsistence. Pursuant to art. 2(j) subsistence is to be understood as including housing, food and clothing, including consideration to special needs required.

Furthermore, the Court stated that the financial allowance must be sufficient to preserve family unity and regard the best interest of the child. Consequently, the Court concluded, that when a member state has opted for material reception on the form of financial allowance that allowance must ensure a dignified standard of living by enabling the whole family the same housing, unconditionally on whether that housing is of private or public character.

For the matter of the Catch-22 nature of the Belgian legislation, the Court recognized the possibility of ensuring the substantive conditions by financial aid, as stipulated by the Directive 2003/9, if the member state is not in a position to provide material reception in kind. The Directive does indeed give a certain margin of discretion as to the method by which member states provide material reception but according to the Court, such a discretion cannot condition the fulfillment of minimum standard. Finally, the Court gave a quite clear guideline concerning the incompatibily of a catch-22 legislation, such as the one in issue, by stating that the refusal to fulfill substantive reception, by derogation from minimum standards stipulated in the Directive, cannot be justified with the saturation of resources provided by a reception agency such as Fedasil.

Accordingly, the Court concluded that the interpretation Directive 2003/9 does not preclude a national legislation which refers asylum seekers to the general public assistance agency, if that agency can provide a reception that fulfills the minimum standards as set out by the directive. However, the interpretation of the Directive does preclude a national legislation that conditions the reception for asylum seekers to the accessibility and resources of a reception agency at the time of application.

Comments

Since the Directive stipulate specific minimum criteria for reception provided by the member states in kind but lacks to define specific criteria for reception provided through financial aid, the decision by the Court must be considered to be an extension of the protection scope of the Directive, that obligates member states to provide the same reception unconditionally on the method of choice.

Furthermore,the Directive does only oblige member states to protect family unity as far as possible, wherefore the descision was needed to secure the full right to family life for people seeking protection. The Court recognized that problem and increased the protection for families by preconditioning family unity for the reception to be considered adequate.

Finally, the Court decision clearly precludes a legislations with a catch-22 nature, such as the one in issue, when prohibiting derogations from fulfillment of minimum criteria by justification due to saturation. That is obviously an important stand by the Court to secure the protection for asylum seekers from arbitrary bureaucrazy or attempts by member states to bypass the provisions of the Directive.

C-285/12 Diakité, Migration law, External relations

Protection from internal armed conflict and the relationship between EU Qualifications Directive 2004/83 and the Geneva Conventions

What is an internal armed conflict for the purposes of EU law? That question was answered by the Court of Justice of the European Union (CJEU) in the case C-285/12 on the 30th of January in a preliminary ruling referred by the Conseil d’État (Council of State, Belgium).

The issues concern the interpretation of Directive 2004/83 and its relation to International humanitarian law (IHL). The Directive sets out a minimum standard of benefits for persons in need of international protection and it has the objective of creating common criteria for the identification of such persons. Directive 2004/83 is essentially the first step on EU level to harmonize member state provisions on asylum and to create a common policy.

Factual circumstances of the case

The case concern Mr. Diakité, a Guinean national, that applied for subsidiary protection at the Commissaire général aux réfugiés et aux apatrides (Commissioner General for Refugees and Stateless Persons) in Belgium. The application was rejected by the Belgian authorities on the ground that the situation in Guinea did not fulfill the requirements of indiscriminate violence or armed conflict as stipulated by Belgian law.

Mr. Diakité appealed the decision to the Conseil d’État (the referring Belgian court) on the grounds that the definition of armed conflict, used by the Belgian authorities, was based on the definition of armed conflict as established by the case law of the International Criminal Tribunal for the Former Yugoslavia.

Mr. Diakité relied on Directive 2004/83 in his submission and claimed that the definition of internal armed conflict for the purposes of art. 15(c) of Directive 2004/83, must be interpreted differently and independently of the definition established by International humanitarian law.

The Conseil d’État took notion of that submission and referred two questions to the CJEU. Firstly, must internal armed conflict, as stipulated in art. 15(c) of Directive 2004/83 be interpreted so as to have the same meaning as in the Common art. 3 of the Four Geneva Conventions and Protocol II? Secondly, if internal armed conflict is to be interpreted independently, then what criteria should be applied to determine when an internal armed conflict exists?

Non-international armed conflict and internal armed conflict

The definition of a non-international armed conflict in the common art. 3 of the Geneva Conventions and in the complementing protocol II, contain requirements, that a government armed force must be involved and that the conflict must be of a certain intensity. Whether the conflict is intense enough is dependent on the length of the conflict, the geographical size of the conflict and what kind of weapons that are used, etc. It is a definition that excludes internal disturbances and tensions, such as riots or temporary acts of violence, thus excluding conflicts where the parties don’t reach the substantive level of organization and intensity.

Art. 2(e) of Directive 2004/83 stipulates that a third country national or a stateless person who does not qualify as a refugee but suffers a factual risk of serious harm as defined in art. 15, if being sent to country of residence or former habitat, is eligible for subsidiary protection.

Art. 15 contain three different criteria where criteria 15(c), which is relevant for the case at issue, states that serious harm consist of serious and individual threat to a civilian's life or person by reason of indiscriminate violence in situations of international or internal armed conflict. Considering the wording of the provision, eligibility of subsidiary protection is thereby conditional of indiscriminate violence due to an armed conflict, wherefore the interpretation of internal armed conflict will affect asylum seekers directly.

Hermeneutical coherence

Since the Directive lacks a definition of the meaning of internal armed conflict the French, German and Belgium governments submitted that the interpretation must be in conformity with the interpretation of non-international armed conflict in IHL, to avoid the creation of two different definitions binding upon the member states. Furthermore, the German government held that an interpretation that is coherent with an international treaty, that is binding upon the member states, fulfill the requirement for the purpose of establishing a common definition within the member states.

Advocate General Mengozzi recognized in his opinion, the Union’s obligation to respect international law in accordance with art. 3(5) TEU and the importance of considering a conform interpretation of Union Law in relation to international law (see to that effect Poulsen and Diva Navigation, Kadi and Al Barakaat). AG Mengozzi continued however, stating that it is not established that the Union is obligated to a conform interpretation of treaties which it is not a party to, such as the Geneva conventions, and held that in any case the principle of conform interpretation is not applicable if there is no hermeneutical coherence between the respective provisions.

According to AG Mengozzi, the aim and purpose of Directive 2004/83 is essentially different to the common art. 3 of the Geneva Conventions. This reasoning was later followed by the CJEU in its decision where the Court emphasized on the fact that IHL is designed to be applicable for the protection of civilians within a conflict zone, where by contrast, the Directive is applicable for the protection of civilians outside the conflict zone and outside the territory of the conflicting parties. The CJEU also mentioned the direct link between International Humanitarian Law and International Criminal Law as a clear distinctive feature from Union law. By putting focus on the different features and aims of  art. 3 of the Geneva Conventions in relation to the art. 15(c) of Directive 2004/83 the Court concluded that it is not possible to condition the eligibility of subsidiary protection to the definition of non-international armed conflict in international humanitarian law.

Definition of internal armed conflict

The CJEU then continued with the aim of subsidiary protection, focusing on the purpose to complement and add protection to persons seeking international protection from a de facto threat. The Court held that in the light of the purpose of the provision it is unnecessary to state material and objective conditions, such as the length of the conflict or to which level the armed forces are organized, to the definition of internal armed conflict,

Rather the Court submitted that it is sufficient that the applicant must be able to show, with a substantial ground, that the violence is of such nature that the mere presence of the applicant would bring the threat to the fore. Following that reasoning the more an applicant can show that particular and personal circumstances affect its case, the lower the level of indiscriminate violence objectively is needed to fall within the scope of subsidiary protection. Consequently, the CJEU ruled that it is not necessary, for internal armed conflict to be defined as a non-international armed conflict as stipulated in international humanitarian law, to give rise for subsidiary protection within the EU.

Effects

The decision could be viewed as an elaboration of the CJEU’s case law on the relationship between EU law and international law, a symbol for the tendency of fragmentation of the different legal orders. A decision in line with Kadi and Al Barakaat, putting emphasize to the Union’s and the Court’s autonomy in relation to international treaties that the member states are parties to, but which the Union have not ratified. It seems however that the lack of hermeneutical coherence is the trigger point in this case and that the decision does not affect the principle of conform interpretation.

As AG Mengozzi mentions, the provisions of the Geneva Conventions are not binding due to the written agreement, rather as Mengozzi indicates, the provisions are a part of customary international law reflected in the agreement and could therefore be binding not only to the member states but also to the Union. The CJEU does not reject this line of argumentation, wherefore the principle implications of  Diakité concerning the relation between IHL and Union law, cannot be drawn further than that to recognize the different features, purpose and applicability of art. 2 in conjunction with art. 15(c) Directive 2004/83 in relation to the common art. 3 of the Geneva Conventions and complementary Protocol II.

For the matter of the substantive interpretation of internal armed conflict, the decision increases the protection for civilians, without refugee status seeking international protection, since the definition of internal armed conflict is made conditional to de facto risk of serious violence rather than formal conditions as stipulated within the definition of protocol II to the Geneva Conventions.

The decision puts an obligation on member state authorities to consider whether conflicts, with less intensity and organization than those included in the definition in IHL, can put to the fore a real threat of suffering serious harm for civilians. Furthermore, the decision introduces a more flexible way of identifying persons in need of international protection and broadens the scope of art. 15(c). A broader and more flexible scope however, might lead to a bigger leeway within member states’ domestic implementation and a subjective test might increase the burden of proof on the asylum seeker.