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.