Friday, 19 December 2014

The CJEU clarifies when stem cells can be patented in Europe


Anna Dannreuther; all views are the author's own
In its judgment yesterday in International Stem Cell Corporation on biotechnology patents, the CJEU qualified its ruling in Brüstle by shifting the emphasis of what it takes for a non-fertilised human ovum stimulated by parthenogenesis to constitute a ‘human embryo’ and thus be unpatentable under the Biotechnology Directive. The Court ruled that in order to constitute a ‘human embryo’ for the purposes of the Directive, the stimulated ovum must have the ‘inherent capacity to develop into a human being’. This is in contrast to its previous ruling in Brüstle where it held that such an ovum would only constitute a ‘human embryo’ if it were ‘capable of commencing the process of development of a human being’.


The case concerns the patentability of living material under the Biotechnology Directive 98/44.  The aim of the Directive is to strike a balance between encouraging biotechnological research by way of patent law and protecting the dignity and integrity of the person. As such, while the Directive treats biotechnological inventions generally no differently from any other inventive science that comes forward with patent claims, it forbids patenting certain processes on ethical grounds. In addition to a general prohibition on inventions whose patentability would go against public order or morality, it specifically forbids patenting the following processes: cloning human beings, modifying the germ line of humans, and using human embryos for industrial or commercial purposes.

In the 2011 judgment in Brüstle, the CJEU had the opportunity to define ‘human embryo’. This was in the context of a German neurobiologist who held a patent in Germany for the production of neural precursor cells from human embryonic stem cells (confusingly, this term is used even when they are not stem cells derived from human embryos). He claimed his methods offered promising methods of treatment for neurological diseases. Greenpeace challenged the validity of the patent on the ground that the process involved using human embryos. The referring court asked the CJEU several questions relating to the nature of the concept ‘human embryo’ under the Directive. The Court held that:

 any human ovum after fertilisation… and any non-fertilised human ovum whose division and further developments have been stimulated by parthenogenesis constitute a ‘human embryo’.  [para 38]

The Court justified the unpatentability of both fertilised ova and non-fertilised ova on the basis that the latter were, just like embryos created by fertilisation of an ovum, ‘capable of commencing the process of development of a human being’ [para 36].

In the present case, International Stem Cell Corporation seeks to register as a patent in the UK the process of ‘parthenogenetic activation of oocytes for the production of human embryonic stem cells’ (for ease, I will refer to the activated oocytes (ova) as ‘parthenotes’). Essentially, the process involves ‘activating’ a human ovum by a variety of chemical and electrical techniques. Such an activated ovum can develop into the blastocyst phase (about 200-300 cells following cell division) but it is unable to develop further, as it lacks the paternal DNA necessary to form extra-embryonic material (placenta).  The process falls into the third category of processes which Brüstle deemed unpatentable by virtue of constituting a ‘human embryo’.

Henry Carr QC, sitting as Deputy Judge of the High Court, queried whether the Court’s interpretation in Brüstle can be correct if, in light of current scientific knowledge, parthenotes are incapable of developing into a human being. He decided to refer a question to the CJEU on the point. In his judgment, he strongly suggested that the Court should rule in favour of excluding this particular process from the notion of ‘human embryo’. At paragraph 35 he observes:

Stem cells have the potential to revolutionise the treatment of human disease because of their capacity to differentiate into almost any type of adult cell. The recitals to the Biotech Directive express two competing policy considerations. On the one hand, the research in the field of biotechnology is to be encouraged by means of the patent system, and on the other hand, that patent law must be applied so as to respect the fundamental principles safeguarding the dignity and integrity of the person…The Biotech Directive is to be interpreted in a way that balances these competing policy considerations.


The Court states that the principle in Brüstle must be taken to mean that in order to be classified as a ‘human embryo’, an unfertilised human ovum whose division and further development have been stimulated by parthenogenesis (a parthenote) must necessarily have the ‘inherent capacity of developing into a human being’ [para 28]. Endorsing the Advocate General’s Opinion, the Court thus stresses that the emphasis is on whether the parthenote can develop into a human being, rather than whether it can commence this process. The determination of whether a parthenote has such a capacity is left for the national courts to determine [para 36 – 38].

The Court does not explain its reasoning for the change in emphasis. It does acknowledge a divergence of scientific information in the written observations before the court in the present case and in Brüstle. Whereas in the present case the information provided suggested that parthenotes could not develop into human beings, the information in Brüstle suggested that parthenotes could develop into human beings [paras. 31. 33]. This seems to be one of the ‘foregoing considerations’ mentioned in paragraph 38 that the Court bases its judgment on. The Court did not deal with the eventuality that the parthenote could be genetically manipulated in such a way that it can develop to term as International Stem Cell Corporation had amended their applications for registration to exclude the prospect of additional genetic information.



The Court’s decision is to be welcomed. It qualifies Brüstle so that parthenotes are not automatically included in the definition of ‘human embryo’ and hence excluded from patenting. It thus allows for the patenting of biological research involving alternative methods of obtaining embryonic stem cells. However, two points of contention should be noted.

First, as the Advocate General point outs in paragraph 43 of his Opinion, Member States are still able to prohibit patentability of parthenotes under Article 6(1) of the Directive on the grounds of public order or morality. Although the shift from outright exclusion to determination by Member States will be welcomed by more biologically protective States (such as Poland, who intervened in the case to argue for parthenotes’ exclusion from patentability in the interests of safeguarding human dignity) there are risks in this. As the patentability of parthenotes is now dependent solely on Member States’ cultural norms, a ‘patent tourism’ could emerge, whereby parthenote stem cell researchers will locate in jurisdictions which welcome their processes and avoid those which do not. Given the economic disadvantages for parthenote researchers locating in unwelcoming patent jurisdictions, this may not bear well on freedom of establishment and free movement of services. Although this is a potential risk for all biotechnological processes, the shifting classification of parthenotes may lead to greater divergence in their treatment across Member States.

Second, the judgment lacks any kind of discussion on at what point the organism develops into a human being and is thus excluded from the concept of ‘human embryo’. The Court leaves it to the national court to determine whether the parthenote has the ‘inherent capacity to develop into a human being’. This is unhelpful as the national court has to decide both whether the parthenote has the inherent capacity to develop into a human being, and if not, whether it is prohibited from being patented on grounds of morality and/or public order. This seems like a lot to labour national courts with, who could have done with some guidance on the principle. Equally, the principles to be deduced from the cases are tricky. Seeing as Brüstle still maintains that fertilised human ova constitute ‘human embryos’, are national courts to assume that parthenotes do not constitute human beings to the extent that they fail to make extra-embryonic tissue and therefore differ from fertilised human ova? What if parthenotes were created which could make extra-embryonic tissue? Would the case law suggest that these parthenotes could lead to the development of a human being? Even if this seems simple or obvious, it would have been useful for the Court to clarify this.

Equally, a comment on the patentability of parthenotes, which could then be subject to later genetic manipulation, would have been useful.

As it stands, patenting parthenotes is no longer definitively prohibited due to their classification as ‘human embryos’ under Brüstle. However, their patentability is determined wholly by Member States, either on the grounds of public order or morality, or whether the Member State classifies them as ‘human embryos’ under the new definition. The judgment would have been more helpful if it had given guidance to national courts on what constitutes ‘development into a human being’.
Photo credit: Daily Telegraph

Thursday, 18 December 2014

The CJEU confirms short-term free movement rights for EU citizens’ third-country family members


Steve Peers

Today’s important CJEU judgment in McCarthy answers an important question relating to the application of EU free movement law in the UK: can the UK limit the right of third-country national family members of UK (and other EU) citizens to visit the UK?

The judgment concerned a dual citizen of the UK and Ireland living in Spain, with his third-country national wife and their joint child (also a dual British and Irish citizen). UK law requires the family to obtain a ‘family permit’ every time they seek to visit the UK. As discussed in my previous comments on the Advocate-General’s opinion in this case, issues like these would normally only arise for travel between Schengen and non-Schengen states, since anyone holding a residence permit from a Schengen state is free to travel for short periods to other Schengen states without needing a visa, and there are normally no checks at the internal borders of Schengen states.

The EU’s citizens’ Directive states, among other things, that third-country national family members of an EU citizen who lives in another Member State must be given a ‘residence card’ to prove their legal status. Such a card exempts them from any visa requirement that would normally apply when they visit another Member State, if they visit that State along with the EU citizen family member. There’s no reference to any possibility to demand a ‘family permit’, or anything resembling it. In this case, Mrs. McCarthy had a residence card, so at first sight the UK can obviously not insist upon a de facto visa requirement.

However, the UK sought to justify its policy for two reasons: in order to avoid the abuse of EU law, and in order to apply a special protocol on border controls, which allows the UK (as well as Ireland) to check people crossing the borders between the UK and other Member States to determine whether they have EU law free movement rights or not.

The Court’s judgment first of all examines whether the citizens’ Directive can apply. It ruled that Mr. McCarthy and his wife were (quite obviously) covered by the citizens’ Directive when in Spain. But did the Directive apply when they come to the UK? The Court ruled that it did, since the relevant clause in the Directive (Article 5, on entry) made no distinction between the Member State of the EU citizen’s nationality and other Member States.

Next, the Court ruled that the ‘abuse of rights’ rule, which is set out in an express clause in the Directive (Article 35) could not justify the UK’s action. According to the Court, abuse could only be assessed in individual cases, rather than as regards whole categories of persons. Finally, the Court ruled against the UK’s attempt to justify its measure based on the borders Protocol, since that Protocol only allows the UK to check whether individuals have the right of entry under EU free movement law, not to deny them the right of entry once they qualify for free movement rights. The judgment won't be applied in practice until the UK courts give a further ruling, now that the case returns to the national courts - unless the UK government (improbably) gives effect to the judgment sooner.   


I should first of all point out, in light of some hysterical press reports, what this judgment does not do. It does not allow all UK citizens to bring their third-country national family members into the UK. For those UK citizens who reside in the UK, there’s nothing in this judgment to change the traditional position that only national law (and so the UK’s restrictive rules on family reunion) applies to their situation, rather than EU law. Simply put, the McCarthy family lives in Spain, not the UK.

There is a modest impact upon those UK citizens who are temporarily living in another Member State with their third-country national family member, planning to return to the UK later on, having used EU free movement law in the meantime to live with their non-EU family members. This is traditionally known in the UK as the ‘Surinder Singh’ route, following an earlier judgment of the CJEU by that name (for Dutch citizens, it’s known as the ‘Belgian route’).

Today’s ruling will make it easier for those British citizens (as well as those who intend to live in another Member State permanently) to visit the UK with their third-country family members. It would only apply to them if their family members have obtained a residence card from their host Member State, though. And it isn’t relevant for their family’s eventual return to the UK: that is still hindered in practice by UK rules which are breach in of the CJEU’s ruling earlier this year which clarified the position of such ‘returnees’ (that ruling is discussed further here).

What about citizens of other Member States who want to live in the UK with their third-country family members? The ruling really has little to do with them, since it only concerns short-term visits. It would be relevant to (say) a German woman with a Turkish husband living in Spain, if the husband has a residence card from Spain and wants to visit the UK with his wife. But it isn’t directly relevant to those who seek to settle in the UK, although in a future case the Court might apply it by analogy. EU free movement law is already generous to EU citizens who seek to move to another Member State with their third-country family members; but this judgment does not make it any more generous.

Overall, today’s ruling is a welcome and convincing interpretation of the free movement rules. It’s quite obvious that the EU citizen’s Directive does not allow anything like a ‘family permit’ requirement as a condition before waiving the visa requirement, since that would negate the whole point of that waiver. The Court simply (and correctly) dealt with the point about the ability of dual citizens of the UK and Ireland to rely on the rules in question, by distinguishing between short-term visits and longer stays. It’s also obvious that the UK’s Borders Protocol is subject to substantive free movement law, and only gives the UK the right to check if EU citizens and their family members have free movement rights, not to deny them entry if they do.

This brings us to the point about the ‘abuse of rights’. The Court’s judgment follows its traditional case law in holding that this principle can only be applied to individual cases, and it gives many convincing reasons for applying this interpretation in the context of the citizens’ Directive. However, the UK government demonstrated that there are a sufficiently large number of cases of fraud of residence cards to be concerned about. Such abuses of free movement law cannot be defended in principle, and undermine the legitimacy of the free movement regime for the large majority of British (and other EU) citizens who exercise free movement rights honestly. To address this concern, all Member States should agree in principle to introduce secure residence cards as soon as possible.  

Barnard & Peers: chapter 13

The CJEU and the EU’s accession to the ECHR: a clear and present danger to human rights protection


Steve Peers

At long last, the CJEU has today delivered its ruling regarding the EU’s accession to the European Convention on Human Rights (ECHR). It’s a complex judgment that raises many legal questions. For now, this post seeks to provide: a summary of the ruling; an assessment of the consequences of the ruling; and an initial critique of the Court’s reasoning. On the latter point, the Court’s ruling is fundamentally flawed. In short, the Court is seeking to protect the basic elements of EU law by disregarding the fundamental values upon which the Union was founded.


Back in 1996, in Opinion 2/94, the CJEU ruled that as European Community law (as it then was) stood at that time, the EC could not accede to the ECHR. Only a Treaty amendment could overturn this judgment, and in 2009, the Treaty of Lisbon did just that, inserting a new provision in the Treaties that required the EU to accede to the ECHR (Article 6(2) TEU). That treaty also added a Protocol 8 to the Treaties, regulating aspects of the accession, as well as a Declaration requiring that accession to the ECHR must comply with the ‘specific characteristics’ of EU law.


However, these new Treaty provisions could not by themselves make the EU a contracting party to the ECHR. To obtain that outcome, it was necessary for the EU to negotiate a specific accession treaty with the Council of Europe. After a long negotiation process, this accession treaty was agreed in principle in 2013. Today’s ruling by the CJEU concerns the compatibility of that treaty with EU law.



At the outset, the CJEU ruled that the case was admissible (paras 144-52), even though the internal rules which will regulate the EU’s involvement in the ECHR have not yet been drafted. In fact, the CJEU said that these internal rules couldn’t be the subject-matter of the opinion, even if they had been drafted. The UK government had reportedly been very angry about the prospect of the CJEU considering these internal rules, so it should be satisfied on this issue.


Next, the Court made some preliminary points (paras 153-77), asserting for the first time expressly that the EU is not a state (para 156); and (in effect) that the EU system is sui generis (para 158), ie in a class by itself, without using that exact Latin phrase. Those critics of the EU who consider it to be a State, and those academics who dislike the sui generis concept, now have some words to eat.  The Court also asserted that it was important to ensure the primacy and direct effect of EU law, referring also to the EU’s goals of ‘ever closer union’.


The Court then ruled that the draft agreement was incompatible with EU law, for five main reasons. Firstly, it did not take account of the specific characteristics of EU law (paras 179-200), in three respects.  It did not curtail the possibility of Member States having higher human rights standards than EU law, even though the CJEU had ruled (in the Melloni judgment of 2013) that Member States could not have higher standards than the EU Charter of Rights, where the EU has fully harmonised the law. The same rule applies to the ECHR, in the Court’s view, and the draft agreement did not take account of this. Similarly, the draft agreement did not provide for the application of the rule of ‘mutual trust’ in Justice and Home Affairs (JHA) matters, which means that Member States must presume that all other Member States are ‘complying with EU law and particularly with the fundamental rights recognised by EU law’, other than in ‘exceptional circumstances’. Also, the agreement failed to rule out the possibility that when applying Protocol 16 to the Convention, which provides for national courts to send questions to the European Court of Human Rights (ECtHR) on the interpretation of the ECHR, those national courts would ask the ECtHR to rule on EU law issues, before they asked the CJEU. This would circumvent the EU’s preliminary ruling procedure.


Secondly, the draft accession agreement violated Article 344 TFEU, which gives the CJEU monopoly on inter-state dispute settlement regarding EU law between Member States (paras 201-14), since it failed to rule out the possible use of the ECtHR to settle such disputes instead.


Thirdly, the co-respondent system set up in the draft agreement, which creates a new type of procedure where both the EU and a Member State could be parties to an ECtHR case, was incompatible with EU law for three reasons (paras 215-35). The problem with this process was that: it would give the ECtHR the power to interpret EU law when assessing the admissibility of requests to apply this process; a ruling by the ECtHR on the joint responsibility of the EU and its Member States could impinge on Member State reservations to the Convention; and the ECtHR should not have the power to allocate responsibility for breach of the ECHR between the EU and Member States, since only the CJEU can rule on EU law.


Fourth, the rules in the draft treaty on the prior involvement of CJEU before the ECtHR ruled on EU law issues were also incompatible with EU law, for two reasons (paras 236-48). They did not reserve to the EU the power to rule on whether the CJEU has already dealt with an issue, and they did not permit the CJEU to rule on the interpretation, not just the validity, of EU law.


Finally, the rules on the Common Foreign and Security Policy (CFSP) were incompatible with EU law (paras 249-57), because a non-EU court cannot be given the power of judicial review over EU acts, even though the CJEU has no such jurisdiction itself as regards most CFSP issues.




First and foremost, EU accession to the ECHR obviously cannot go ahead on the basis of the current draft agreement. The Court has in effect provided a checklist of amendments to the accession agreement that would have to be made to ensure that accession is compatible with EU law. The amendments would have to deal with the following ten issues: (a) ensuring Article 53 ECHR does not give authorisation for Member States to have higher human rights standards than the EU Charter, where the EU has fully harmonised the law; (b) specifying that accession cannot impact upon the rule of mutual trust in JHA matters; (c) ensuring that any use of Protocol 16 ECHR by national courts cannot undermine the EU preliminary ruling system, presumably by ruling out the use of Protocol 16 where EU law issues are involved; (d) specifying expressly that Member States cannot bring disputes connected with EU law before the ECtHR; (e) ensuring that in the co-respondent system, the ECtHR’s assessment of admissibility does not extend to the power to interpret EU law; (f) guaranteeing that the joint responsibility of the EU and its Member States for ECHR breaches cannot impinge upon Member State reservations to the Convention; (g) preventing the ECtHR from allocating responsibility for ECHR breaches as between the EU and its Member States; (h) ensuring that only the EU institutions can rule on whether the CJEU has already dealt with an issue; (i) providing that the CJEU should be allowed to rule on the interpretation, not just the validity, of EU law, during the ‘prior involvement’ procedure; and (j) curtailing the role of the ECtHR to rule on EU foreign policy matters.


Any such changes to the accession agreement will have to be negotiated by all 47 of the signatories to the ECHR. The accession agreement would, if agreed, then have to be ratified by all of these States to come into force. It would also have to be agreed unanimously by the EU Council, and ratified by the European Parliament.


It’s hard to say in the abstract how difficult such a renegotiation will be. Suffice it to say that the compromise found in the current accession treaty was very difficult to reach, and it’s hard to imagine that the EU’s demand for a ten further amendments to that text – which would necessarily be non-negotiable – would be received happily. 


Some of the Court’s objections probably correspond with the intentions of the parties to the accession agreement, and it should be easy to accept amendments reflecting that. However, some of them insist on either the primacy of the EU Courts over the ECtHR, or would give priority to EU law over the substance of the rights protected by the Convention. Those amendments would be difficult to agree in principle, and it might even be doubted whether they would be compatible with the intrinsic nature of the ECHR.


If those amendments were indeed be incompatible with the ECHR, there would be no point wasting further time and effort on negotiating them. So it would be best for the Committee of Ministers to invoke Article 47 ECHR, which allows it to ask the ECtHR to give an advisory opinion on the interpretation of the Convention or its protocols. Arguably, this doesn’t extend to the draft accession agreement, but then that agreement in its current form would amend the ECHR; any revised agreement would likely amend the ECHR even more. The ECtHR ought to have a chance to rule on whether the CJEU’s preferred amendments to the ECHR violate the fundamentals of the Convention system.


Could the Court’s objections (or some of them) be met by the EU making reservations to the ECHR? According to Article 57 ECHR, reservations to the Convention are permitted, provided that they are not of a ‘general character’. The ECtHR has ruled in the past that some reservations were invalid for breaching that rule. Much legal pain would be avoided if the ECtHR ruled in advance (using the advisory procedure) on whether possible reservations by the EU would be valid. Arguably reservations relating to CFSP or JHA matters would indeed be invalid, due to their ‘general character’.


What if the process of EU accession stalls as a result of this judgment? It’s hardly an unlikely scenario. As a matter of EU law, accession of the EU to the ECHR is an obligation: the EU ‘shall accede’ to the Convention. The EU institutions can be sued for any ‘failure to act’ to comply with their legal obligations. So arguably the Commission is under an obligation to request an amendment to its negotiation mandate, the Council is under an obligation to grant it, and the Member States are obliged to support the EU position (a breach of the latter obligation could be punished by means of infringement proceedings).


But a legal obligation deriving from the EU Treaties cannot bind third parties. If the ECtHR, or one or more non-EU Member States, refuse to continue with negotiations for accession on the basis of the CJEU’s demands, the EU institutions and the Member States could not be held liable for that.


The legal obligation to continue the accession process is, of course, distinct from the question of principle here: whether the accession process ought to continue on the basis of the CJEU opinion. I now turn to that question, as part of my assessment of the Court’s reasoning.





There are two categories of objections to the ECHR accession in the Court’s judgment: procedural and substantive. The former are, for the most part, much less problematic than the latter. Let’s consider them in turn.


The procedural objections are essentially those in points (c) to (i) in the list above, concerning: Protocol 16 ECHR and the preliminary ruling process; inter-state dispute settlement; the co-respondent procedure; the prior involvement procedure; and CFSP matters. Seven of these eight points have one thing in common: preserving the CJEU’s power to rule on EU law. The exception is point (i), because to a large extent, the CJEU has no power to rule on CFSP matters. 


From the point of view of substantive human rights protection, that first group of seven objections is not problematic in principle. It is reasonable for the CJEU to ensure that issues relating to EU law remain within its jurisdiction (where that jurisdiction currently exists), leaving the ECtHR jurisdiction to rule on the interpretation of the ECHR. Of course, it will be hard, if not impossible, in practice, to separate the two issues, particularly when it comes to ruling on the liability for breach of the Convention and the admissibility of the special procedures set up by the draft agreement. 


But that is a minor problem compared to the Court’s objections relating to CFSP, and to the substance of the ECHR. On the CFSP point, the Court’s objection is quite simply mind-boggling. Human rights breaches unfortunately occur in foreign policy operations, ranging from violations of the right to life, to arbitrary detention to human trafficking by foreign forces. The CJEU has no jurisdiction to protect, as regards most CFSP matters; but it rules that the ECtHR cannot have judicial review powers either. (Note to public international lawyers: this must mean that it would also breach EU law for Member States to bring a CFSP dispute to the ICJ).


This goes beyond setting a dividing line over which Court has jurisdiction to interpret EU law: to repeat, the CJEU’s position is that if it can’t have jurisdiction over CFSP, then no other international court can either. In short. since it isn’t allowed to play, it’s taking the football away from everyone else. It’s the judicial politics of the playground. But it could have serious consequences, leaving the victims of serious human rights violations without an effective remedy at international level. Or is the entire world meant to trust that the military forces from the continent that brought us the Holocaust and two World Wars would never, when acting under the EU’s aegis, commit human rights offences?


This brings us to the two substantive points: the need to ensure that Member States do not set higher standards within the field of EU law, and the need to protect the principle of mutual trust in JHA matters. On the first point, the Court is today extending to the ECHR its long-standing principle that the primacy of EU law prevents Member States having higher human rights standards, where EU law has fully harmonised the matters concerned. From an EU law perspective, it’s perhaps not surprising that this rule – which the Court had previously applied to the general principles of EU law (the main previous method of protecting human rights in the EU legal system) and the Charter – also applies to the ECHR. But from the perspective of international human rights law, it’s shocking: it cuts into a central principle found in all human rights treaties.


The Court’s ruling on this point would be less problematic if it were not for its ruling on mutual trust in JHA matters. After all, if it were possible to resist removal to another Member State on human rights grounds despite the Dublin rules on asylum responsibility, or to resist the execution of a European Arrest Warrant on such grounds, then many violations of human rights in individual cases would be avoided. But the Court reiterates, in very strong terms, its established presumption that the EU is built on the principle of mutual trust in this area, which can only exceptionally be set aside. One can infer that the CJEU is seething about the ECtHR’s recent judgment in Tarakhel, which conspicuously failed to defer to the ECJEU’s poorly reasoned defence of the Dublin system in last year’s Abdullahi judgment (see discussion here).


On the JHA point, the Court is insisting that its own conception of the EU JHA system must prevail over human rights protection as defined by the ECtHR. The underlying theme of both of these substantive points is that the ECHR should adapt to EU law as defined by the CJEU, not the other way around.


Is that fundamentally justifiable? It’s striking that the ‘values’ of the EU – which are a condition for EU membership, and which could lead to suspension of a Member State in serious cases – include human rights and related principles. There’s no mention of the primacy of EU law, of mutual trust in JHA matters, or of divesting any international court from having jurisdiction over CFSP matters. Indeed, on the latter point, today’s judgment clearly shows contempt for the ‘rule of law’, another founding value mentioned in Article 2 TEU. And for JHA in particular, the Treaty drafters provided in Article 67(1) TFEU that the EU must ‘constitute an area of freedom, security and justice with respect for fundamental rights’. The Treaty doesn’t give priority to mutual trust over human rights – quite the opposite.


This leads me to a final point. As noted above, the EU retains a legal obligation to accede to the ECHR, and must therefore take some steps to that end. But, as a matter of principle, is it still worth advocating EU accession to the Convention?


Quite frankly, EU accession to the Convention, in the terms defined today by the CJEU, could only appeal to those who don’t like human rights very much. In fact, in many respects the Court’s judgment is essentially a more articulate and EU-specific version of the document recently produced by the UK’s Justice Minister, which sought changes to the law to ensure that the UK would be free to do as it wished as regards human rights issues, while (possibly) nominally remaining a signatory of the ECHR. Of course, those who dislike the ECHR tend to dislike the EU as well, so this is a narrow basis politically to go forward. In particular, those who would like to scrap the European Arrest Warrant (EAW) because of the miscarriages of justice which it sometimes produces (rather than try and prevent those miscarriages) are hardly likely to favour a process which would be specifically aimed to entrench those failings.


As for those of us who support human rights protection, today’s judgment is an unmitigated disaster. For the most part, human rights advocates have supported EU accession to the ECHR for many years, in order to ensure effective external control of the failings of the EU and (within the scope of EU law) its Member States as regards human rights. But today’s CJEU judgment has surgically removed that key reason for supporting accession.


Far from enhancing the protection of human rights within the EU legal order, the EU’s accession to the ECHR, on the terms which the CJEU insists upon, would significantly diminish it, for the EU would be compelled to ensure that it insulates itself against many human rights claims that might be brought against it.


So for the sake of those who are trafficked by EU-coordinated troops, who are suffering miscarriages of justice in EAW proceedings, who are being pushed back from the EU’s shores, drinking from toilets in immigration prisons, starving on the streets because Member States won’t or can’t give them housing or benefits, or drowning in a desperate attempt to reach European refuge, we now have a moral duty to reject the EU’s accession to the ECHR.



Barnard & Peers: chapter 9

The CJEU rules on obesity and discrimination law


Katharina O Cathaoir

In its judgment today in Kaltoft, the European Court of Justice has confirmed that obesity is neither a protected ground of discrimination under EU employment law nor a disability per se. However, in certain circumstances the EU’s Directive banning discrimination in employment on grounds of disability could apply. (Note that EU law does not ban disability discrimination outside the workplace, so today’s judgment will only be relevant to employment disputes.)

Obesity as a protected ground

The case concerned a man who alleged that he lost his job due to his obesity (for more details of the facts, and a discussion of the opinion of the Advocate General, see here). The Court agreed with the Advocate-General that obesity is not a protected ground under EU employment law. There is no mention of obesity in the TFEU or TEU. Neither is there a general prohibition of discrimination. The protected grounds of religion or belief, disability, age or sexual orientation are exhaustive and it is not for the Court to extend these by analogy (there are also EU rules on sex, race and nationality discrimination). However, Member States may provide for increased protection under national law.

Obesity as a disability

The Court adopted a functionality test whereby obesity can only amount to a disability when accompanied by an impairment of the individual’s ability to work on an equal basis to others. Individuals do not have to be incapable of fulfilling their employment tasks, but their ability to do so on the same basis as others must be impaired. The Court suggested that individuals with obesity and decreased mobility or resulting diseases that hinder work ability or cause discomfort that does so, may have a disability under EU employment law. Thus, it is the effect of obesity, not obesity in itself, which is of importance in deciding whether an individual has a disability.

The Court avoided the AG’s suggestion that individuals at the upper most level of obesity (BMI 40+) could be assumed to have functionality issues and thereby, a disability. The Court instead made no mention of BMI as a measure of disability and concentrated on the effect of obesity, not the degree to which an individual is obese.

It will be for the Danish court, which referred these questions to the CJEU, to decide whether Mr. Kaltoft’s obesity entailed a limitation that affected his ability to do his work on an equal basis to others.


Although we are may be flooded with inaccurate headlines, the position of individuals with obesity under EU law seems to remain unchanged. Employers are likely to breathe a sigh of relief that a BMI test has been avoided. Indeed, this could have led to an appearance based test whereby employers felt pushed to keep an eye on their employees’ size. How and should an employer have access to this kind of personal information?

The case has brought obesity to the fore. Given the level of obesity in Europe, employers may begin to rethink their work practices. The employer has a role to play in his or her employee’s health. For example, employers may reconsider the food they serve in their canteens or the extent to which they make physical exercise accessible to their employees, if it will have ramifications for their legal obligations under discrimination law.
Barnard & Peers: chapter 20


Tuesday, 16 December 2014

Is it different this time? The Commission’s 2015 work programme


Steve Peers

Today the new European Commission announced its first annual work programme. Quite apart from the usual restructuring and renaming of policies, it promises to take a different approach to prior Commissions. In particular, this Commission apparently plans to propose fewer new EU measures and to withdraw many more pending proposals than usual.

But is the Juncker Commission’s approach actually different from the approach of previous Commissions? The best way to test that is to compare today’s work programme to the first work programme of previous Commissions.

The incoming Barroso Commission of 2005 suggested 32 pages of proposals, with no reference to withdrawal of pending measures. In 2010, the incoming ‘Barroso II’ Commission listed 25 pages of proposals, although only five pages concerned proposals that the Commission was definitely planning to make in 2010. The other 20 pages listed those proposals which were planned for the rest of the five-year mandate, although in the end some of those proposals – like two Directives on labour migration – were tabled in 2010 after all. And the 2010 work programme listed 58 proposed measures which were going to be withdrawn, although in all but one case the withdrawals were due to obsolescence.

How does that compare to the 2015 work programme? First of all, the list of planned proposals is similar to that in 2010: four pages, 23 proposals, compared to five pages and 34 proposals five years ago. Admittedly, the 2010 list comprised only the Commission’s biggest priorities, while the 2015 list is supposedly exhaustive, according to press reports. So is the Commission really planning to propose less than one new measure per Commissioner next year?

Of course not. A close look at the fine print reveals that some of the 23 items on the list will actually comprise more than one proposal. For instance, the review of immigration policy mentions both smuggling of migrants and the ‘Blue Card’ Directive on highly-skilled migrants. It would be technically possible to table one legislative proposal addressing both issues – indeed, that would be unremarkable compared to how immigration legislation is drafted in many countries. However, the EU’s tradition is to propose and adopt different legal acts in such cases. Similarly, the plans concerning labour mobility, the internal market, energy and the digital single market will necessarily entail proposing more than one item of legislation. This is particularly obvious as regards the digital single market, where the work programme refers to a ‘package’ of laws.

Secondly, the list of withdrawn proposals for 2015 – already nicknamed the ‘kill list’ – is somewhat longer, totalling 80 items. Two-thirds of these are obsolete, but around 25 of them are withdrawn for more political reasons: either there is no reasonable prospect of agreement, or the Commission wants to redraft them itself in light of changed priorities.

The first reason for withdrawal is hardly unheard of; in most years, the Commission withdraws a couple of proposals which have met with implacable opposition in the European Parliament or (more often) the Council. The second reason for removal is very rare indeed. The Commission justifies it in light of the principle of ‘discontinuity’ – the practice, quite common (perhaps even ubiquitous) in democratic systems, of retiring all legislative proposals when a new legislature is elected.

To be frank, the Commission has rather botched its application of this principle. It’s usually known simply as the principle of legislative discontinuity, and entails the automatic withdrawal of all legislative proposals on the table when a parliamentary chamber is dissolved before an election. The Commission is applying the rule only partially, withdrawing only certain proposals that it disagrees with. In any event, the principle is firmly rooted in the electoral process that leads to a change of (at least some) parliamentarians.

This distinction isn’t simply pedantic, since it goes to the heart of the Commission’s legal and political legitimacy to withdraw these proposals. Legally speaking, the Treaties refer to the Commission’s powers to make and amend proposals, but say nothing about any power to withdraw them. Should that power not rest instead with the EU’s two legislative chambers, which have been respectively directly (the Parliament) and indirectly (the Council) elected? For many years, this has been a theoretical point, since the Commission’s assumption that it has untrammelled powers to withdraw its proposals has gone unchallenged. But this Thursday, a CJEU Advocate-General is due to give his view on whether the Commission indeed has an unlimited power to withdraw its proposals, in a case brought by the Council. (Remember that like any such opinion, it won’t be binding; it will be up to the judges of the CJEU to give a final ruling, sometime next year).

Politically speaking, the Commission could try to claim some legitimacy to withdraw these proposals if they had mentioned during Jean-Claude Juncker’s campaign for the Commission Presidency, either during the European Parliament elections or when he was asking for a majority of the Parliament (and a qualified majority in the European Council) to approve him. Alternatively, these withdrawals might be legitimate if the other Commissioners had stated their intention to withdraw them in their hearings before the European Parliament. But it can hardly be claimed that withdrawal of proposals on waste or air pollution were a central feature of Juncker’s, or the Commission’s, campaign to be appointed.

Some of today’s withdrawals are supposedly not permanent, because the Commission has announced its intention to propose replacement measures next year. But it’s not absolutely certain that the Commission will keep this promise. Others are contingent, because the Commission has given the legislators a deadline to discuss a possible deal, failing which it will withdraw its proposal. It’s an interesting strategy, which will empower the half of the legislature that is reluctant to consider these proposals (usually the Council), at the cost of the other half (usually the European Parliament).

In the case of the maternity leave Directive, it raises the interesting question of how many feminists are also pragmatists. It’s politically impossible to obtain the lengthened maternity leave on full pay that a majority in the European Parliament desire: so should they settle for anything, as long as it’s an improvement on the status quo? Unlike an actual baby (cf the judgment of Solomon), it is possible to obtain only half of one’s legislative objectives – or probably significantly less than that in this case. This particular legislative proposal has been gestating now for six years; it might yet be born next year, but there’ll probably be a lot of shouting first.


Barnard & Peers: chapter 3

Friday, 12 December 2014

Removal orders and the right to be heard: the CJEU fails to understand the dysfunctional French asylum system


Marie-Laure Basilien-Gainche

Professor in Law

University Jean Moulin Lyon III

Member of the Institut Universitaire de France

The meaning of the right to be heard under the so-called Returns Directive (Directive 2008/115/EC on common standards and procedures in Member States for returning illegally staying third-country nationals) was recently under the scrutiny of the Fifth Chamber of the Court of Justice of the European Union (CJEU). After giving its interpretation on the application of the right to be heard as regards the decision to place a third-country national in detention (CJEU, 2nd Chamber, 10 September 2013, M. G. & N. R. contreStaatssecretaris van VeiligheidenJustitie, C-383/13 PPU), the Luxembourg Court was asked to clarify how this right applied to irregular third-country nationals before a removal order was adopted against them. The Court did so in two new rulings, both following the opinion of the Advocate General Melchior Wathelet delivered on 25 June 2014: firstly, the judgment of 5 November 2014 in Sophie Mukarubega v. Préfet de police, Préfet de la Seine-Saint-Denis (C-166/13; see ML Basilien-Gainche& T Racho, ‘Quand le souci d’efficacité de l’éloignement l’emporte sur l’application effective des droits fondamentaux (18 November 2014) La Revue des droits de l’homme.); and secondly, on 11 December 2014, Khaled Boudjlida v Préfet des Pyrénées-Atlantiques, case (C-249/13).
It must be noticed here that the French Supreme Administrative Court did not wait until the CJEU answered these questions, which the CJEU had been asked by some French administrative jurisdictions of first instance (the Tribunal Administratif de Melun and the Tribunal Administratif de Pau respectively). Indeed the French Conseild’Etat defined its own position on the matter in a decision published last June (CE 4 juin 2014, M. A. B., App. No 370515) : the right to be heard does not require the administrative authorities to give to the third-country national the opportunity to present his own observations on the removal order at stake, insofar that he was able to be heard before the adoption of the decision refusing him a residence permit (« dans le casprévu au 3° du I de l'article L. 511-1 du code de l'entrée et du séjour des étrangers et du droit d'asile, où la décisionfaisant obligation de quitter le territoirefrançaisest prise concomitamment au refus de délivrance d'un titre de séjour, l'obligation de quitter le territoirefrançaisdécoulenécessairement du refus de titre de séjour ; que le droit d'être entendun'impliquealors pas quel'administration ait l'obligation de mettrel'intéressé à même de présenterses observations de façonspécifiquesur la décisionl'obligeant à quitter le territoirefrançais, dèslorsqu'il a puêtreentenduavantquen'intervienne la décisionrefusant de luidélivrer un titre de séjour » (para 7)).
Yet the CJEU recognizes the importance of the right to be heard, even though the Return Directive does not establish a specific procedure for hearing a third-country national before the adoption of a return decision. In particular, the CJEU concedes that the Directive does not “specify whether, and under what conditions, observance of the right to be heard of those third-country nationals [is] to be ensured” (decision, Mukarubeaga case, para 41). Why did the Court nevertheless recognise the right to be heard? Becausethe procedural autonomy of the Member States together with the absence of a specific procedure in Directive 2008/115 cannot result in a third‑country national being deprived of the right to be heard by the competent national authority before the adoption of a return decision” (AG opinionWathelet, Boudjila case, para 56), as far as the right to be heard is considered by the CJEU as a fundamental right (1).
Anyhow, such a strong consecration of the principle of this right is not complemented by the a strong protection of its implications, deceptively depriving this right of all its substance (2). This was the position of the Court in its M. G. & N. R. decision, as it considered the consequences of the violation of the right to be heard as regards detention: according to the CJEU, the infringement of this right as regards the adoption of a decision to extend the detention period has to be sanctioned, if the outcome of that administrative procedure would have been different if the third-country national concerned had been heard (CJEU, 2nd Chamber, 10 September 2013, M. G. & N. R. contreStaatssecretaris van Veiligheiden Justitie, C-383/13 PPU). The most recent judgments are also deceptive because they consume the substance of the right of be heard: insofar as the Court does not pay any attention to the factual circumstances of the administrative proceedings at stake, it fails give any consistency and thus any effectiveness to the right to be heard, to the great relief of the French government and certainly also of the other Member States.
1 – The legal basis of the right to be heard: a fundamental general principle
According to Advocate General Melchior Wathelet, the legal basis of the right to be heard had to be found in the Charter of Fundamental Rights of the European union (CFREU), more precisely in Article 41(2) on ‘Right to good administration’, which involves “the right of every person to be heard, before any individual measure which would affect him or her adversely is taken”. In his conclusions in both cases, the Advocate General asserted the applicability of this provision to the Member States, meaning that they have to respect it when adopting decisions falling within the scope of EU law (AG opinion, Mukarubega conclusions, para 56). In his view, it would be inconsistent and incoherent to consider that the wording of Article 41(1) CFREU (“Every person has the right to have his or her affairs handled impartially, fairly and within a reasonable time by the institutions and bodies of the Union”) means that provision applies solely to the EU institutions and bodies, and therefore not to Member States even when applying EU law (ibidem): such an interpretation would affect the scope of the Charter as defined in its Article 51 (“The provisions of this Charter are addressed to the institutions and bodies of the Union with due regard for the principle of subsidiarity and to the Member States only when they are implementing Union law”).
This opinion of the Advocate General seems to be in conformity with the jurisprudence of the Court, particularly with its decision in the (CJEU, 22 November 2012, C‑277/11; see ML Basilien-Gainche, ‘Protection subsidaire: Droit de l’étranger à êtreentendudurantl’instructiond’unedemande de protection subsidiaire’ (24 November 2012) La revue des Droits de l’Homme). After explaining that “the right to good administration includes the right of every person to be heard, before any individual measure which would affect him or her adversely is taken, the right of every person to have access to his or her file, while respecting the legitimate interests of confidentiality and of professional and business secrecy, and the obligation of the administration to give reasons for its decisions” (para 53), the CJEU asserted actually that Article 41(2) of the Charter was of “general application” (para 84). For sure, the wording of this statement must have been rather uncertain, as far as the CJEU did not follow the Advocate General on the question of the legal basis of the right to be heard in national proceedings.
But the Court did not follow the opinion on this point. Instead it ruled that “it is clear from the wording of Article 41 of the Charter that it is addressed not to the Member States but solely to the institutions, bodies, offices and agencies of the European Union”, so much so “an applicant for a resident permit cannot derive from Article 41(2)(a) of the Charter a right to be heard in all proceedings relating to his application” (decision, Mukarubega case, para 44; decision, Boudjlida case, para 32). This does not mean that the right to be heard does not apply to the decisions adopted under Directive 2008/115/EC; it only means that the legal basis of such a right is not Article 41(2) CRFEU. The Luxembourg Court instead insisted that “observance of the rights of the defence is a fundamental principle of EU law, in which the right to be heard in all proceedings is inherent” (decision, Mukarubega case, para 42, citing CJEU, Sopropé, C-349/07, M.M., C‑277/11, and Kamino International Logistics, C-129/13 & C-130/13; decision Boudjlida case, para 30, citing Kamino International Logistics, C-129/13 & C-130/13, and Mukarubega, C-166/13); and hence that “such a right is however inherent in respect for the rights of the defence, which is a general principle of EU law” (decision, Mukarubega case, para 45; decision Boudjlida case, para 34).
Consequently, the CJEU affirms that the legal basis of the right to be heard which Member States have to respect during national proceedings, particularly those under Directive 2008/115/EC, has to be found not in the Charter of Fundamental Rights (Article 41(2)), but in the “fundamental principle of EU law” of the rights of the defence. This seems to illustrate one more time how shy the Court is to affirm the prevalence of the Charter, choosing rulings after ruling to base its decision upon the EU treaties or the principles of EU law more than upon the Charter. Moreover, even though the expression appeared before (ECJ, 28 March 2000, Dieter Krombach, C-7/98, para42 ; CJEU, 22 November 2012, M.M.,C-277/11, para 82 ; CJUE, 3 July 2014, Kamino International Logistics,C-129/13 & C-130/13, para 28), we can wonder if a hierarchy is appearing among the general principles of EU law, some such principles being elevating to the status of  “fundamental principle”: this should imply some consequences for the guarantee of their respect and to the sanction of their infringements, though we do not know of course how the case law will develop in future on this point. Furthermore, as far as the right to be heard is thus consecrated as a “fundamental principle of EU law”, Member States have to ensure its respect when they adopt measures which come within the scope of EU law and which significantly affect the interests of the considered addressees (decision, Mukarubega case, para 50; decision Boudjlida case, para 42).
Whereas the Court presents the right to be heard as part of the rights of the defence which constitute a fundamental principle of EU law, it does not fully guarantee the consequences of such an assertion regarding the scope of this right. This fundamental principle is exposed deceitfully by the CJEU with a highly restricted extent and content. As the Advocate General emphasises, “Article 52(1) of the Charter […] allows limitations on the exercise of the rights enshrined in the Charter, in so far as the limitation concerned is provided for by law, respects the essence of the fundamental right in question and, subject to the principle of proportionality, it is necessary and genuinely meets objectives of general interest recognised by the European Union”, so that “the rights of defence do not constitute unfettered prerogatives and may be restricted in certain circumstances” (AG opinion, Mukarubega case, para 53; AG opinion, Boudjlidacase, para 57).
So, although it is fundamental, the principle of the right to be heard can be limited. And in these two cases we can see how far and deep such limitations can go. In order to really understand the implications of the decisions of the CJEU, and consequently to truly appreciate the weakness (even ineffectiveness) of the right to be heard for third-country nationals concerning the adoption of removal orders against them, a presentation of the facts of each case is genuinely useful.
2 – The practical scope of the right to be heard: a really limited substance
The first decision concerns the case of Sophie Mukarubega, a Rwandan national, who entered France on 10 September 2009 in possession of a passport bearing a visa. She lodged an asylum application on 4 December 2009, and therefore held a temporary residence permit during the examination of her claim. By a decision of 21 March 2011, the Office français de protection des réfugiés et apatrides (OFPRA) rejected her application for asylum, after hearing her narrative retelling (the implications of a refusal of a residence permit or of an adoption a removal order were thus not at stake). She brought an action against that decision before the Cournationale du droit d’asile (CNDA): this was heard on 17 July 2012, but was dismissed by a decision adopted on 30 August 2012 and notified on 10 September 2012. On 20 September 2012, she presented herself to the aliens service of the Préfecture de Police de Paris, in order to bring the proof of her employment for 24 months and to apply for an admission for exceptional and humanitarian reasons; but she faced what French immigration law specialists call a “refusguichet”, as the administrative authorities did not let her access the office to present her application. It must be emphasized that these facts are not mentioned either in the opinion of the Advocate General or in the decision of the Court, though they are presented in the observations submitted on behalf of Sophie Mukarubega by her lawyer Bruno Vinay, and though they are of main importance to appreciate the real (in)effectiveness of the right to be heard in this case.
Yet, on the basis of the rejection of her asylum application, the Préfet de Police de Parison 26 October 2012 issued a refusal of residence permit and an obligation to leave the French territory against Sophie Mukarubega. However, she remained in the French territory, and tried to travel to Canada, using a fraudulently obtained Belgian passport on 4 March 2013. She was then arrested and detained in custody, so the Préfet de Seine-Saint-Denis adopted on 5 March 2013 a removal order without a period for voluntary departure because of the risk of absconding. She was thus placed in a detention centre.
Next, she was heard by the OFPRA (the date is not indicated), and by the CNDA (on 17 July 2012), but solely on the grounds for being granted an international protection status: these hearings did not deal with the questions of the importance of a residence permit or the consequences of a removal order. Strangely, the CJEU does not take into account such a main procedural element, whereas “procedural decisions are often the only vehicle for taking substantive rights seriously” (Hiroshi Motomura, ‘The curious evolution of immigration law : procedural surrogates for substantive constitutional rights’ (November 1992) Columbia Law Review 1656). Afterwards, she was heard – interrogated would be actually a more suitable word – during her custody: weirdly, the Court does assert that such “police interrogation”, as the Advocate General described it in his opinion (para 31), can be considered as an hearing, though the questions asked concerned the use of fraudulent documents and not the change in her situation registered since she applied for asylum three years before.It must be emphasized how puzzling the position of the Court is: it asserts that Sophie Mukarubega “was able effectively to submit her observations on the illegality of her stay”(decision, Mukarubega case, para 70). Hence the Court misunderstands the French immigration and asylum system, when suggesting that she was heard about her stay, as far as this issue was not discussed either at her hearings at the OFPRA and the CNDA, or at her police interrogation at the airport.
Furthermore, the CJEU does not pay any attention to the fact that a period of 30 months passed between the first and the second removal orders, during which some substantial changes occurred that modified the way Sophie Mukarubegas situation could have been appreciated by the national authorities. Only the Advocate General considers that element, but in a quite odd manner: he concludes that “It is for the referring court to verify whether the change since the filing of her application for asylum in her personal circumstances, alleged in that second case by Ms Mukarubega, constitutes a reason for rendering her situation legal under Article L.313-14 of the CESEDA”, before adding that “the referring court must ensure that the application in question was filed in good faith and does not merely constitute a delaying tactic by Ms Mukarubega with the sole intention of delaying or even jeopardising the procedure before the national authorities and the possible adoption of a return decision” (AG opinion, Mukarubega case, para 87). Moreover, the Advocate General quotes the French Government observations according to which “a third‑country national who has been refused a residence permit may, at any time, present himself at the prefecture in order to be heard there again for the purpose of submitting new evidence with a view to rendering his situation legal” (AG opinion, Mukarubega case, para 81): does the Advocate General realize that going to the prefecture for an irregular migrant is the best way to be apprehended and returned without his changed situation even being considered?
The Courts position is both clear and upsetting: as regards “the obligation to hear her specifically on the subject of the return decision before the adoption of that decision...a national authority is not precluded from failing to hear a third-country national specifically on the subject of a return decision where, after that authority has determined that the third-country national is staying illegally in the national territory on the conclusion of a procedure” (decision, Mukarubega case, para 82), because this “would needlessly prolong the administrative procedure, without adding to the legal protection of the person concerned” (decision, Mukarubega case, para 70). Meanwhile “the obligation of the Member States to combat illegal immigration must be maintained” (decision, Mukarubega case, para 71). From this perspective, the Court can affirm that “the adoption of a return decision is the necessary result of a decision determining that the person concerned is staying illegally” (decision, Mukarubega case, para 59), even though this assertion implies a lack of distinction between the different administrative decisions (the one on the asylum application, the one on the residence permit, the one on the removal order). It considers these to form part of the same administrative procedure, which is greatly questionable.
3 – The very thin substance of the right to be heard
While the Mukarubega case (C-166/13) reveals how limited the extent of the right to be heard is according to the Luxembourg Court, the Boudjlida case(C-249/13) exposes the Courts restricted view of the content of this right. Khaled Boudjlida, an Algerian national, entered France on 26 September 2007 in order to pursue higher education. As he held a ‘student’ residence permit that he renewed on an annual basis, his stay in France was lawful until 31 October 2012. Since he did not apply for a renewal of his last residence permit, he became then an irregular third-country national. On 7 January 2013, he applied to register himself as a self-employed businessman in order to establish a micro-business in the field of engineering.
While he was attending an appointment with the relevant authorities, he was asked on 15 January 2013 by the border police to come to their office to be questioned on the lawfulness of his stay. He voluntarily complied with that invitation: he was interviewed by the police on his circumstances with regard to his right of residence in France. The same day, the Préfet des Pyrénées-Atlantiques issued a decision imposing on him the obligation to leave the French territory, granting him a period of 30 days for his voluntary return to Algeria. He  introduced a remedy against this decision, claiming for its annulment before the Tribunal administratif de Pau. He claimed he was not in a position to analyse all the information relied on against him, since the French authorities did not disclose that information to him beforehand, did not allow him an adequate period for reflection before the hearing, did not offer him the benefit of a legal assistance, and only spent some 30 minutes interviewing him.
By deciding to stay the proceedings and to refer to the CJEUfor a preliminary ruling, the Tribunal administratif de Pau offered the opportunity to clarify the exact content of the right to be heard. Indeed, the French first instance administrative jurisdiction asked the Luxembourg Court if such a right includes, for the third-country national in respect of whom a decision falls to be taken as to whether he is to be returned, “the right to be put in a position to analyse all the information relied on against him as regards his right of residence, to express his point of view, in writing or orally, with a sufficient period of reflection, and to enjoy the assistance of counsel of his own choosing”. To this question, the Advocate General proposed answers that seem to deprive this right of any substance. Actually, he does not consider thatthe right to be heard can “be interpreted as meaning that the competent national authority is obliged, before, issuing a return decision, to supply the person concerned with the evidence on which it intends to base that decision and to seek that person’s observations in that regard after a period of reflection” (AG opinion, Boudjlida case, para 67); “that the length of the interview is a decisive factor” (AG opinion, Boudjlida case, para 76); and that Member States are “required to bear the costs of that assistance by providing free legal aid” (AG opinion, Boudjlida case, para 76).
Let us make here one remark about the length of the interview. Does anyone really think that 30 minutes in the case of Khaled Boudjlida and 40 minutes in the case of Sophie Mukarubega is enough time to assess the complexities of the situation of such third-country nationals? Can anyone accept that such interviews take place without a lawyer /counsellor and an interpreter?
Yet the Court follows the opinion of its Advocate General so much so we can wonder what the exact content of the right to be heard really is. This right does not include the right to prior notification of the authority’s argument (“it does not require a competent national authority to warn the third-country national, prior to the interview arranged with a view to that adoption, that it is contemplating adopting a return decision with respect to him, or to disclose to him the information on which it intends to rely as justification for that decision”, decision, Boudjlida case, para 69); the right to benefit from a period of reflection (“it does not require a competent national authority […] to allow him [the third-country national] a period of reflection before seeking his observations”, decision, Boudjlida case, para 69); the right to be provided with free legal assistance (“it does not require Member States to bear the costs of that assistance by providing free legal aid”, decision, Boudjlida case, para 71, as far as ““an illegally staying third-country national may have recourse, prior to the adoption by the competent national authority of a return decision concerning him, to a legal adviser in order to have the benefit of the latter’s assistance when he is heard by that authority”, decision, Boudjlida case, para 70).
First, we obviously have to be worried by the limitation the CJEU affirmed concerning the right to benefit from a legal assistance: its statement according to which the exercise of such a right must “not affect the due progress of the return procedure” and “not undermine the effective implementation of Directive 2008/115” (decision, Boudjlida case, para 70) might lead a national authority to refuse any legal assistance to an illegally staying third-country national, since such assistance would obviously aim to prevent the implementation of the removal orders. Second, more generally, the right to be heard appears to be a purely formal right without any substantive content. It is incredible that the Court asserts that there is a presumption that “the third-country national has the opportunity effectively to present his point of view on the subject of the illegality of his stay and the reasons which might, under national law, justify that authority refraining from adopting a return decision” (decision, Boudjlida case, para 69).How can the CJEU assert such an assumption? We have to ask the Court: when and where did these illegally staying third-country nationals have an effective opportunity to do this? ?
In these recent rulings, the CJEU restricts the extent and the content of the right to be heard for third-country nationals facing removal orders, so much so that this supposedly fundamental right appears to be nonexistent. The Court claims that such limitations upon the right correspond to “objectives of general interest pursued by” Directive 2008/115/EC and “do not involve, with regard to the objectives pursued, a disproportionate and intolerable interference which infringes upon the very substance of the rights guaranteed”(decision, Mukarubega case, para 53). How can we agree that restraining the scope of the right to be heard for irregular migrants pursues the objective of general interest of the fight against illegal migration, and is proportionate to the imperatives of achievement of such an objective? How deplorable for the Court to consecrate the fight against illegal migration! How dreadful for the Court to validate in this way the ‘legal fabric of illegality” (N de Genova, ‘The Legal Production of Mexican/Migrant Illegality’ (1996) 2/2Latino Studies 160-185; N de Genova, B Neilson & W Walters, ‘Foucault, Migrations, Borders’ (2011) 2/3MaterialiFoucaultiani149-213). Definitely, the political evil is found in the procedural details.