Monday, 20 February 2017

The CJEU and Spanish mortgage law: consumer protection, floor clauses and accelerated repayment

Juan Carlos Benito Sánchez, PhD Fellow at the University of Louvain (Belgium).
Twitter: @jcbensan

In the past years, the Court of Justice of the European Union has delivered a number of judgments striking down substantive and procedural provisions of Spanish mortgage law, or judicial interpretations thereof, on the grounds that they were contrary to EU law in the field of consumer protection. In particular, the Court of Justice has based its decisions on Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts, declaring in most of the cases that Spanish mortgage law unduly restricted the right of consumers to have unfair clauses in their mortgage loan agreements reviewed and nullified by domestic courts.

This post focuses on the last two rulings delivered by the Court of Justice in this regard: its judgment in Gutiérrez Naranjo (Joined Cases C-154/15, C-307/15 and C-308/15, EU:C:2016:980) and in Banco Primus (C-421/14, EU:C:2017:60), respectively delivered in December 2016 and January 2017. The first case concerns so-called ‘floor clauses’, which establish a minimum threshold for the variable rate of interest determined in mortgage loan agreements. The second case concerns ‘accelerated repayment’ clauses, which allow for the creditor to claim repayment in full of the outstanding debt in case of arrears during a relatively short period of time, often as little as three months. Both judgments raise a number of significant issues with notable implications for EU consumer law and, ultimately, for the fundamental right to housing of individuals and families.

The judgment in Gutiérrez Naranjo: setting temporal limitations on the retroactive effect of unfair floor clauses

This first case concerns, in essence, the temporal limitation that the case law of the Spanish Supreme Court placed on the retroactive effect of unfair floor clauses included in mortgage loan agreements. In its (in)famous ruling of 9 May 2013, the Supreme Court declared that those floor clauses lacking transparency due to insufficient information for mortgagors were to be considered unfair and, therefore, void. In practical terms, since the variable rate of interest determined in these agreements was usually tied to the Euribor—which plummeted owing to the financial crisis—, many consumers saw the interest in their mortgage loans plateau at the minimum threshold instead of falling to the much lower market rate that would apply had floor clauses not been included in the loan. Because the relevance of these clauses within the agreement was in most instances not offset by adequate information and transparency for consumers, allowing them to assess the extent of risk sharing, the Supreme Court affirmed that non-transparent floor clauses—in practice, the vast majority of them—should be deemed unfair and, consequently, void.

In the same ruling, however, the Supreme Court tempered this declaration by determining that the retroactive effect of the nullity of non-transparent floor clauses was to be limited in time. In particular, and referring to the principle of legal certainty, it considered that such nullity should not extend to situations obtaining prior to the date of delivery of its judgment (9 May 2013). In the Supreme Court’s view, full retroactivity would otherwise lead to ‘a severe disruption with consequences for the economic public order’. This interpretation effectively closed the avenue for consumers to claim the recovery of amounts overpaid on the basis of non-transparent floor clauses if those payments had been made prior to 9 May 2013.

The various questions referred to the Court of Justice for a preliminary ruling in Gutiérrez Naranjo thus seek to determine whether EU law in the field of consumer protection—specifically, Directive 93/13/EEC—precludes this temporal limitation. The Court, building on its previous judgments, ruled that a finding of unfairness regarding a contractual clause ‘must allow the restoration of the legal and factual situation that the consumer would have been in if that unfair term had not existed, by inter alia, creating a right to restitution of advantages wrongly obtained, to the consumer’s detriment, by the seller or supplier on the basis of that unfair term’ (§ 66). It considered that a temporal limitation of the legal effects stemming from a declaration of nullity is ‘tantamount to depriving, in general, any consumer having concluded, before [9 May 2013], a mortgage loan contract containing such a clause of the right to obtain repayment in full of the amounts overpaid by the consumer to the bank’ (§ 72).

This conclusion does not come unexpected considering the Court of Justice’s settled case law on Directive 93/13/EEC. Yet the judgment in Gutiérrez Naranjo goes a step further: the Court of Justice found that ‘it is for the Court alone, in the light of the fundamental requirement of a general and uniform application of EU law, to decide upon the temporal limitations to be placed on the interpretation it lays down in respect of [a rule of EU law]’ (§ 70). In other words, the Court of Justice clarified that domestic courts cannot restrict in time the effects of a rule of EU law of their own accord. The general and categorical terms in which this statement is framed suggest wide-ranging implications extending far beyond the realm of consumer protection.

The judgment was widely reported by Spanish media and was welcomed as a significant triumph of civil society organisations defending the right to housing in Spain, which had made floor clauses one of their more visible claims. The Spanish government rushed to create a new extrajudicial mechanism to settle consumers’ claims for recovery of amounts overpaid on the basis of non-transparent floor clauses, which has been widely criticised in that it creates uncertainty for consumers and does not impose sanctions for non-compliant mortgage lenders. Very recently, on 15 February 2017, the Spanish Supreme Court delivered its first judgment amending its previous case law to this effect and confirming the full retroactivity of unfair floor clauses in a mortgage loan agreement.

The judgment in Banco Primus: setting judicial review limitations on unfair accelerated repayment clauses

This second case concerns, in essence, the limitations placed by Spanish mortgage law and in the case law of the Spanish Supreme Court on the possibility for courts to declare the nullity of unfair accelerated repayment clauses in mortgage loan agreements. Accelerated repayment clauses, as explained above, allow for the creditor to claim repayment in full of the outstanding debt (principal and interest) in cases of non-payment of a very reduced number of instalments by the debtor. In practical terms, this entails that if a mortgagor falls into arrears for, usually, three months—out of their thirty-, forty-, or fifty-year loan term—, the lending institution may call in the full amount of the loan. Following the impossibility for the debtor to make such a large payment, the lender will normally bring mortgage enforcement proceedings, sometimes under the special distraint procedure foreseen in Spanish mortgage law, which will end in turn in foreclosure and eviction.

Accelerated repayment clauses have been routinely included by mortgage lenders in loan agreements for years, and their execution, especially in the aftermath of the financial and housing crisis in Spain, can be identified as the one of the main causes of thousands of foreclosures across the country. Not only were these clauses frequent in mortgage lending, but they were explicitly authorised by the Spanish Civil Procedure Act, which mandates a minimum of three months in arrears before full repayment of the debt can be claimed. Before a statutory modification in 2013, lenders could even claim full repayment after one month of arrears. Following the case law of the Spanish Supreme Court, however, accelerated repayment clauses deemed unfair by lower courts because of the significant imbalance in the parties’ rights and obligations to the detriment of the consumer could not be declared void if they had not been effectively applied in the particular case. Since lending institutions could rely on the Civil Procedure Act to claim accelerated repayment instead of executing the—almost always unfair—accelerated repayment contractual clause, courts were in fact prevented from declaring the nullity of the latter and from suspending mortgage enforcement proceedings on these grounds.

In Banco Primus, the referring court posed, amongst others, the question whether domestic law and the judicial interpretation thereof could prevent courts from declaring the nullity of unfair accelerated repayment clauses in the event that they had not been effectively applied in the particular case. The Court of Justice first recalled its previous case law regarding unfair terms, and set out in detail the parameters which domestic courts shall take into account in order to declare the unfairness of an accelerated repayment clause on the basis of Directive 93/13/EEC. These include, inter alia, the nature of the goods or services covered by the contract and the means provided for in national law to enable the consumer to remedy the effects of the loan being called in (§ 67). It then struck down the interpretation of the Spanish Supreme Court, noting that ‘the prerogatives of the national court ruling on whether a term is unfair, […], cannot be contingent on whether that term was actually applied or not’ (§ 73). When the national court determines the unfairness of a contractual term, ‘the fact that that term has not been executed cannot, in itself, prevent the national court drawing the appropriate conclusions from the ‘unfair’ nature of that term’ (§ 73).

The practical consequences of this judgment in the Spanish context are blunt: thousands of foreclosures and evictions carried out on the basis on unfair accelerated repayment clauses whose nullity domestic courts were prevented from declaring should have been, in fact, void. Not only does this question the level of consumer protection afforded to mortgagors by the Spanish authorities; but it also reveals, in the author’s view, how Spanish mortgage law has successively been modified to favour the interests of lending institutions to the detriment of mortgagors in vulnerable situations.

A right to housing perspective

The two cases examined in this entry are certainly illuminating, yet they are not the first ones revealing the shortcomings of Spanish mortgage law in terms of consumer protection and in terms of the right to housing. At the European Union level, other judgments of the Court of Justice addressing this issue will sound familiar to some readers (Aziz, Sánchez Morcillo and Abril García, Finanmadrid EFC). At the international level, the UN Committee on Economic, Social and Cultural Rights recently delivered its first decision under the Optional Protocol to the ICESCR examining the judicial protection afforded to the right to housing of individuals and families in the framework of mortgage enforcement proceedings (I.D.G. v. Spain).

It should be borne in mind that the right to adequate housing is enshrined, amongst others, in Article 7 of the Charter of Fundamental Rights of the European Union, which contains the right to respect for private and family life. Framing mortgage law issues exclusively in terms of consumer protection does not always capture the severity of the situations that foreclosures and evictions may create: it is not merely about financial institutions imposing unfair terms onto consumers with the indulgence of public authorities, but also about individuals and families being denied adequate judicial protection of their right to housing. Incorporating this dimension into case law could serve to better contextualise the imbalance between mortgagors and mortgagees by taking into account human rights considerations, and strengthen the protection for mortgagors in terms of their legal security of tenure.

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The Dublin system: the ECJ Squares the Circle Between Mutual Trust and Human Rights Protection

By Cecilia Rizcallah, Research Fellow at the Belgian National Fund for Scientific Research affiliated to the Centre of Interdisciplinary Research in Constitutional Law of Saint-Louis University (USL-B) and the Centre of European Law of the Free University Brussels (ULB). The author wishes to thank the Professors E. Bribosia and S. Van Drooghenbroeck for their valuable advice.


On Thursday February 16th, the ECJ handed down a seminal judgment in the case of C.K. and others, C-578/16 PPU. This ruling was rendered on a reference for a preliminary ruling from the Supreme Court of Slovenia asking, in substance, whether the risk faced by an asylum seeker of being a victim of inhuman and degrading treatment because of his/her individual situation, shall prevent his/her transfer to another Member State to consider his/her asylum claim on the basis of the Dublin system.

The Dublin System: Cooperation between Member States based on Mutual Trust

The Dublin system, initiated by a Convention signed in 1990 in the city whose name it bears, allocates responsibility for examining asylum applications lodged by third country nationals (TCNs) in the EU, in such a manner that, in principle, only one State has the task of examining each asylum request lodged on the European Union’s territory.  Pursuing harmonisation of Member states’ asylum policies, the Treaty of Amsterdam introduced the competence of the European Community (Article 63 EC; now Article 78 TFEU) to adopt additional measures in order to achieve a Common European Asylum System (CEAS). On that basis, the Dublin Convention was replaced by the “Dublin II” Regulation (Regulation n°343/2003) and then the “Dublin III” Regulation (Regulation 604/2013). Also, a number of directives were adopted in order to set up minimum standards on the qualification and status of refugees and persons with subsidiarity protection (Directive 2011/95/UE), on asylum procedures (currently Directive 2013/32/UE) and on reception conditions for asylum-seekers (currently Directive 2013/33/UE).

The Dublin system, which constitutes a fundamental part of the CEAS, has as its main goals to (i) ensure the access of TCNs to the asylum application procedure and to (ii) rationalise the treatment of asylum applications by avoiding forum shopping and the existence of multiple applications. It therefore establishes a set of criteria which determine which Member State is, in a particular situation, responsible for examining the application of an asylum-seeker. The general rule is that (in effect) the State of first entry into the European Union is the responsible Member State, but there are several exceptions. If another Member State is approached, that state can either, on the basis of the Dublin system, automatically transfer the asylum seeker lodging the application to the responsible state, but it can also – and it has a sovereign right to – decide to examine the application itself as it so wish (Article 17, Dublin III Regulation: the “sovereignty-clause”).

It is important to note that the Dublin system is underpinned by the fundamental idea of equivalence of Member States’ asylum systems, presuming, therefore, that asylum-seekers would not benefit from any advantage by having their application examined in a specific country.

Summary of Previous Case Law of the ECJ: Preserving Effectiveness of EU Cooperation, even at the Expense of Fundamental Rights

The automaticity of the transfer of asylum-seekers between Member States, founded on the premise of equivalence, quickly appeared problematic in terms of protection of asylum-seekers’ fundamental rights. Notably due to their geographic situation, some Member States were faced with a high number of arrivals that put their asylum-seekers’ reception infrastructures under pressure, and resulted in degradation of their national asylum systems.

It did not take long before challenges against transfer decisions were being introduced, because of the risks faced by asylum-seekers regarding their fundamental rights in the State which the Dublin system made responsible for examining their applications. One of the first landmark rulings on this issue was handed down by the European Court of Human Rights (ECtHR), in which Belgium was held liable for breaching the European Convention on Human Rights (ECHR) by having transferred an asylum seeker back to Greece on the basis of the Dublin system, while this country, in its examination of asylum applications, was not fulfilling the obligations under the ECHR. The ECtHR noted, in the case of M.S.S c. Belgium and Greece (application n° 30696/09), that Belgium, being aware of, or having a duty to be aware of the poor detention and reception conditions of asylum-seekers in Greece, should have relied upon the “sovereignty-clause” of the Dublin II Regulation, to refrain from transferring this individual to a country where he faced a real risk of becoming a victim of inhuman and degrading treatment in accordance with Article 3 ECHR.

Less than a year later, the ECJ addressed the same issue with the additional difficulty of having the duty to safeguard the Dublin system’s effet utile. In the famous N.S. case (C-411/10), the Court was indeed asked whether “a State which should transfer the asylum seeker [to the responsible Member State according to the Dublin regulation] is obliged to assess the compliance, by that Member State, with the fundamental rights of the European Union”.  In addressing this challenge, the ECJ relied - for the first time in the field of asylum - upon the principle of mutual trust between Member States, founded on the presumption that “all participating States [to the Dublin system] observe fundamental rights”, to conclude that it was inconceivable that “any infringement of a fundamental right by the Member State responsible” would affect the obligations of other Member States to comply with the Dublin Regulation (§82).

To maintain the effectiveness of the Dublin Regulation despite the existence of flaws in national asylum systems, the ECJ innovated by introducing the “systemic deficiencies test”, entailing that a transfer should be prohibited “if there are substantial grounds for believing that there are systemic flaws in the asylum procedure and reception conditions for asylum applicants in the Member State responsible, resulting in inhuman and degrading treatment, within the meaning of Article 4 of the EU Charter of Fundamental Rights (corresponding to Article 3 ECHR), of asylum-seekers transferred to the territory of that Member State, the transfer would be incompatible with that provision” (§86).

To secure a clear, effective and fast method for determining the Member State responsible for dealing with an asylum application, the ECJ thus opted for a presumption of compliance by Dublin States with fundamental rights which could be rebutted in the presence of a “systemic deficiency in the asylum procedure and in the reception conditions of asylum-seekers” where Member States would be compelled to prevent the transfer (§89). This presumption of fundamental rights’ respect by Member States was subsequently applied by the ECJ in other judgements (C-4/11, Puid and C-394/12, Abdullahi).  In fact, the latter judgment expressly limited both the substantive and procedural grounds on which a Dublin transfer could be challenged.

Heavily criticized, this approach was condemned in Strasbourg with the Tarakhel case (application n°29217/12), in 2014 in which the ECtHR reaffirmed and specified its MSS judgement by ruling that the Dublin system “does not exempt [national authorities] from carrying out a thorough and individualized examination of the situation of the person concerned and from suspending enforcement of the removal order should the risk of inhuman and degrading treatment be established”. 

Stonewalling, one of the ECJ’s arguments against the draft agreement on the accession of the EU to the ECHR (Opinion 2/13) was the ECHR requirement that Member States “check that another Member State has observed fundamental rights, even though EU law imposes an obligation of mutual trust between those Member States” (Opinion 2/13, §194). The Court’s “systemic deficiencies” test was consolidated in the recast of the Dublin Regulation (Regulation 604/2013, Dublin III) whose Article 3(2) states that “where it is impossible to transfer an applicant to the Member State primarily designated as responsible because there are substantial grounds for believing that there are systemic flaws in the asylum procedure and in the reception conditions for applicants in that Member State, resulting in a risk of inhuman and degrading treatment within the meaning of Article 4 of the Charter of Fundamental Rights of the European Union, the determining Member State shall continue to examine the criteria set out in Chapter III in order to establish whether another Member State can be designated as responsible”.

A first move from this case law has recently been observed in another field of EU cooperation, namely in EU criminal law. The question asked to the ECJ was whether detention conditions incompatible with art. 4 of the Charter in a Member State issuing a EAW could allow or oblige the executing judicial authority of a requested Member State to refuse the execution of a European Arrest Warrant (EAW). Once again, the ECJ was faced with the dilemma between securing a EU mechanism based on mutual trust or taking human rights considerations seriously. In its landmark ruling in the case Aranyosi and Căldăraru (C-404/15), the ECJ considered that in the event of “systemic or generalised, or which may affect certain groups of people, or which may affect certain places of detention” deficiencies, and only if “there are substantial grounds to believe that, following the surrender of that person to the issuing Member State, he or she will run a real risk of being subject in that Member State to inhuman and degrading treatment, within the meaning of Article 4” (§94), the executing authority will have to postpone the execution of the EAW.

Hence, a two-step analysis has to be carried out by the national judge who must first assess the existence of general or particular deficiencies in the detention system of the requesting state, before examining, in concreto, whether the requested person faces a real risk of being subject to inhuman and degrading treatment. It remained, however, unclear whether the exception to mutual trust provided in Aranyosi and Căldăraru was more or less protective of fundamental rights. Even though a second condition was added, the deficiency requirement seemed softened.

The ruling of the ECJ in C.K. and others: A Welcome Step Towards Reconciliation Between the Dublin system and Human Rights ?

Facts and Question referred to the ECJ

A couple with a newborn child lodged an asylum application in Slovenia whereas Croatia was, according to the Dublin criteria, responsible for examining their application. Noting the absence of systemic flaws in the Croatian asylum system but observing that the mother of the child was in a very bad state of health, the Slovene court asked the ECJ whether the reliance upon the sovereignty clause (Article 17 of Dublin III) could be mandatory for the purpose of ensuring the family an effective protection against risks of inhuman and degrading treatment. In other words, the national judge inquired whether Dublin transfers were only prohibited in case of the existence of systematic deficiencies in the responsible state, subjecting asylum-seekers to risks of violations of Article 4 of the Charter, or whether a transfer also had to be precluded when such a risk was faced due to the specific and individual situation of a particular asylum seeker.

The opinion of the Advocate General

Following the NS and Abdullahi approach, the opinion of Advocate General Tanchev argued that only systemic flaws in the responsible State could require the prevention of a Dublin transfer. Unsurprisingly, he justified his opinion on the principle of mutual trust between Member States and on the need to ensure the effectiveness of the CEAS (§51). He further acknowledged that his position did not meet ECtHR standards but stressed that the EU was not bound by it (§52). He moreover underlined that Article 17 of the Regulation constituted a “discretionary” clause which, by definition, could not be construed as imposing obligations on Member States (§ 67).

The judgment of the Court

The fifth Chamber of the ECJ - quite uncommonly - did not follow the Advocate General’s opinion. To the contrary, the ECJ stated that, besides situations where “systemic deficiencies” exist in the responsible state, any transfer of asylum-seekers shall be excluded where it gives rise to a real risk for the individual concerned to suffer inhuman or degrading treatment, within the meaning of Article 4 of the Charter.  Relying upon Article 52§3 of the Charter, the ECJ recalled that corresponding rights guaranteed both by the Charter and the ECHR should receive the same scope as those laid down by the Convention.

It then quoted Strasbourg’s recent ruling in Paposhvili v. Belgium (application n° 41738/10, § 175) according to which “illness may be covered by Article 3 [of the ECHR], where it is, or risks being, exacerbated by treatment, whether flowing from conditions of detention, expulsion or other measures, for which the authorities can be held responsible”. Consequently, despite the absence of systemic deficiencies in the Croatian reception conditions of asylum-seekers (§7), Slovenia was required to suspend the transfer due to the fact that it could result, because of the particular medical condition of the immigrant, in a real risk of serious and irremediable deterioration of her health condition (§84). The suspension should, according to the judgement, be maintained as long as that risk exists. On the basis of its ruling in Aranyosi, the Court also stressed that national authorities were required to assess the risk before transferring an individual (§76).

The Court added that if the state of health of the migrant was not expected to improve, the relevant Member State had the possibility to itself examine the asylum application on the basis of the sovereignty clause contained in Article 17§1 of the Regulation (§96). However, this provision does not, according to the ECJ, oblige a Member State to examine any application lodged with it, even when read in the light of Article 4 of the Charter.

The ECJ finally concluded that this holding “fully respected the principle of mutual trust since, far from affecting the presumption of respect of fundamental rights by Member States, it ensures that exceptional situations are duly taken into consideration by Member States” and furthermore, that “if a Member State proceeded to the transfer of an asylum-seeker in such circumstances, the resulting inhuman and degrading treatment would not be attributable, neither directly or indirectly, to the authorities of the responsible Member State, but solely to the first Member State”.


The ruling of the fifth Chamber seems to introduce a crucial change in the case law of the ECJ regarding the relationship between the principle of mutual trust and the protection of individuals against inhuman and degrading treatment. Instead of putting these two imperatives in competition, the Court seems, for the first time, to obviously acknowledge their necessary interdependence.  By considering that the principle of mutual trust would be enhanced by an effective application of Article 4 of the Charter, the ECJ finally appears to take seriously the fact that this principle is precisely founded on the respect by Member States of EU values including, above all, the principle of human dignity to which the prohibition of inhuman and degrading treatment is closely linked (Article 2 TEU).

It is therefore not only in case of systemic or generalised flaws in the asylum system of a responsible Member State that a transfer may be prevented. Specific and individual considerations of asylum-seekers must be taken into account in order to assess whether he or she could suffer treatment incompatible with Article 4 of the Charter because of his/her transfer. The Court moreover endorses this requirement by holding that in case of failure in addressing this risk, the first Member State will shoulder responsibility for breach of the Charter.

It should however be stressed that, while the first judgements prioritising the principle of mutual trust were delivered by the ECJ Grand Chamber, the ruling in the case at hand was handed down by a Chamber of five judges whose authority could be considered as being weaker. Nevertheless, the ruling follows the general evolution of the case law of the ECJ which already underlined several times, following the last recast of the Dublin regulation, the fact that the changes of the system were “intended to make the necessary improvements, in the light of experience, not only to the effectiveness of the Dublin system but also to the protection afforded applicants under that system” (C-63/15, Ghezelbash, §52) The latter judgment (from June 2016) had already overturned the procedural aspects of the Abdullahi judgment; the CK ruling now overturns the substantive aspects.

This valuable step in favour of asylum-seekers’ fundamental rights protection nevertheless raises a number of practical questions. One could ask first – and this question was already put forward by other commentators – whether the risk of the violation of other fundamental rights than the prohibition of inhuman and degrading treatment must justify an exception to the Dublin distribution of responsibilities and, thereby, to the principle of mutual trust. We think that, given the emphasis put by the Court on the exceptional character of the situation, not any breach of any fundamental rights would prevent Member States to rely upon the principle of mutual trust in order to transfer an asylum-seeker. To the contrary, only very serious risks of violation of absolute fundamental rights (Chapter I of the Charter) would in our view justify a mandatory suspension of the transfer of asylum-seekers.

Additionally, the ruling raises questions as regards the consequences of a suspension. As pointed out by the Court, a Member State would never be obliged to itself assess, on the basis of the sovereignty clause (Article 17.1 Dublin III), an asylum application which falls within the responsibility of another State. What if, because of the individual situation of the asylum seeker, the transfer should be suspended in the long term? The finding of the ECJ could then result in the existence of “refugees in orbit”, asylum-seekers who lose the certainty of having their application examined by any Member State of the Union – something which the Dublin system especially seeks to prevent and that could, in itself, constitute an inhuman and degrading treatment.

Finally, the question of the applicability of this approach to EU criminal cooperation should also be raised. The Court seemed, until its holding in the Aranyosi case, very reluctant to acknowledge any exception to the principle of mutual trust in the framework of the European Arrest Warrant (see, among others, the cases C-396/11 Radu and C-399/11, Melloni). The ruling in C.K. should however, in our opinion, be seen as applicable also in the field of criminal cooperation if such exceptional circumstances are met since the ruling especially relies upon the judgment in Aranyosi and also due to the absolute character of the prohibition laid down in art. 4 of the Charter Now the two lines of case law have been brought together, but they raise parallel questions about the long-term consequences. Indeed, the Court of Justice has already been asked to elaborate on the Aranyosi ruling, in the pending Aranyosi II case. So its ruling in that case may be equally relevant to Dublin cases.

In any case, the change of position of the ECJ seems much more in compliance both with the ECHR and, also, with the constitutional requirements of certain national legal orders. Indeed, the German Constitutional Court did not hesitate, in its judgment of 15 December 2015, to make an exception to the principle of mutual trust, as implemented by the EAW system, in order to protect the right of human dignity, which, according to this ruling, forms part of German constitutional identity.

One can henceforth wonder whether the C.K. and Aranyosi rulings generally overturn the Opinion 2/13 argument based on the principle of mutual trust opposed, among others, by the ECJ against the EU’s draft accession agreement to the ECHR… Either way, this new setting should, without a doubt, have an important impact on today’s and future’s relationships between the EU legal order, on the one hand, with the ECHR and national legal orders, on the other.

Barnard & Peers: chapter 9, chapter 26
JHA4: chapter I:5

Photo credit: Handelsblatt

Friday, 17 February 2017

The Marrakesh Treaty judgment: the ECJ clarifies EU external powers over copyright law

Gesa Kübek, PhD candidate at the law faculty of the University of Passau.

On 14th February 2017, the European Court of Justice (ECJ) concluded, in Opinion 3/15, that the European Union (EU) is exclusively competent to conclude the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired, or Otherwise Print Disabled (hereafter: Marrakesh Treaty). Its decision in Opinion 3/15 mirrors, at first sight, Advocate General (AG) Wahl’s Opinion, which equally argued that the EU has exclusive competence to conclude the Marrakesh Treaty. A closer look at Opinion 3/15, however, reveals that the Court opted for a much stricter interpretation of the scope of the EU’s Common Commercial Policy (CCP) – ie the EU’s international trade powers – than the AG. Moreover, the Court’s answer to the question of exclusivity does not clarify the correct choice of legal basis.

The following blog post provides an overview of the Court’s Opinion 3/15 and a short analysis thereof. The first part describes the conflict at stake and the arguments of the parties. The second part outlines the Court’s position. The final section discusses some of the implications of Opinion 3/15 for EU treaty-making.

The conflict at stake: Questions of exclusivity and the choice of legal basis

In June 2013, the World Organisation on Intellectual Property (WIPO) finalised the negotiations of the Marrakesh Treaty, which aims to facilitate access to published work for persons who are blind, visually impaired or otherwise print disabled (hereafter: “beneficiary persons”). The Marrakesh Treaty stipulates two separate, but interrelated instruments to fulfil its objectives. First, it obliges its contracting parties to provide for an exception or limitation to the rights of reproduction, distribution and making available to the public in order to make format copies more readily available for beneficiary persons. Second, it facilitates the cross-border exchange of accessible format copies.

In April 2014, the EU Council decided to sign the Marrakesh Treaty for the European Union based on Article 207 TFEU (the EU’s CCP power) in conjuncture with Article 114 TFEU (the EU’s internal market power, which is the basis for harmonising copyright law within the EU, among other things). The subsequent Commission proposal for the conclusion of the agreement was, however, rejected by the Member States as represented in the Council, which caused fierce institutional debate over the choice of legal basis. According to the Commission, Arts. 207 and 114 TFEU were correctly selected. In the alternative, the Marrakesh Treaty may be based on the CCP alone, which the Lisbon Treaty confirms as an exclusive competence (Art. 3 (1) (e) TFEU). In any event, the Commission argued that the rights and obligations comprised by the Marrakesh Treaty were largely harmonized by EU internal legislation. As a result, it asserted that exclusive EU competence can be implied (Art. 3 (2) TFEU). 

The eight intervening Member States rejected the assumption of EU exclusivity. Instead, in their view, the competences to conclude the Marrakesh Treaty ought to be shared, which may result in the conclusion of a “mixed agreement” that lists both the EU and the Member States as contracting parties. Given the persisting institutional conflicts, the Commission asked the Court to clarify whether the EU has the exclusive competence to conclude the Marrakesh Treaty.

As was stated above, AG Wahl supported the Commission’s quest for exclusive EU treaty-making powers. Somewhat surprisingly, the AG, however, determined that the Marrakesh Treaty should be concluded on the basis of Art. 207 TFEU on the CCP and – as contended by numerous Member States - Art. 19 (1) TFEU, the EU’s power to adopt many non-discrimination laws. The latter provision underlines the Marrakesh Treaty’s objective to promote non-discrimination, equal opportunity, accessibility and participation of disabled persons in the society. Despite the implication of exclusivity, the choice of Art. 19 (1) TFEU entails important procedural consequences: As the provision stipulates that the adoption of EU legislation requires unanimity in the Council, EU treaty-making under the anti-discrimination power equally grants the Member States veto powers in the Council (Art. 218 (8) TFEU).

The Court‘s position in Opinion 3/15

In order to answer the preliminary question, the Court, first, examined whether the Marrakesh Treaty, in full or in part, falls within the scope of the CCP. Thereafter, the ECJ analysed whether exclusivity can be implied within the meaning of Art. 3 (2) TFEU.

The reach of commercial aspects of intellectual property rights

To start with, the Court recalled that according to settled case-law, an EU act falls within the CCP “if it relates specifically to international trade in that it is essentially intended to promote, facilitate or govern trade and has direct and immediate effects on trade” (Daiichi Sankyo). Conversely, the mere fact that an EU act is liable to have implications on international trade is not enough for it to be concluded under the CCP.

In its subsequent reasoning, the Court outlined that neither one of the aforementioned instruments of the Marrakesh Treaty intends to promote, facilitate or govern international trade. The Court’s Opinion is particularly striking with regard to the import and export of format copies, as “there is no doubt that those rules relate to the international trade of such copies” (para 87). Nevertheless, the Court stated that the cross-border exchange specified by the Marrakesh Treaty cannot be equated with international trade for commercial purposes. On the one hand, the objective of the circulation and exchange of format copies is non-commercial in nature. The Marrakesh Treaty solely uses cross-border transactions as a mean to improve access of beneficiary persons to accessible format copies and not to promote, govern or facilitate trade. On the other hand, the Marrakesh Treaty’s non-commercial character results from the fact that it does generally not stipulate trade for profit.

Indeed, the Marrakesh Treaty provides that trade in format copies covers only authorised entities, which operate on a non-profit basis and provide their service to beneficiary persons alone. According to AG Wahl, the non-profit basis of trade in format copies, is, however, irrelevant for the application of the CCP. To that extent, the AG proposed a very broad definition of commercial aspects of intellectual property rights (IPR), which Article 207 (1) TFEU expressly includes within the scope of the CCP. In his view, the CCP does not exclude from its ambit transactions or activities of a non-commercial nature as the mere exchange of goods and services implies that they are being traded. Instead, Art. 207 (1) TFEU excludes non-commercial aspects of IPR, i.e. issue areas that are not strictly or directly concerned with trade in their entirety, such as moral rights.

The Court, however, rejected the claim that commercial aspects of IPR carve out only those rules relating to moral rights. Such a broad interpretation would, in the eyes of the Court, “lead to an excessive extension of the field covered by the common commercial policy by bringing within that policy rules that have no specific link with international trade.” (para 85) Consequently, the ECJ concluded that the Marrakesh Treaty falls outside the ambit of the CCP.

Implied exclusivity and the “ERTA doctrine”

Subsequently, the Court analysed whether exclusivity can nevertheless be implied via the well-known “ERTA doctrine” (referring to the Court’s ERTA judgment), which is codified in Article 3 (2) TFEU. According to this doctrine, EU obtains exclusive treaty-making powers where the conclusion of an international agreement “may affect common rules or alter their scope”.  In its ERTA line of case law, the Court has developed a two-level test for establishing external Member State pre-emption: First, it conducts a “comprehensive and detailed analysis” to determine whether the provisions of the envisaged agreement are largely covered by common EU rules (Opinion 2/91). Second, it determines whether the conclusion of the international agreement affects the “uniform and consistent application” of these common EU rules “and the proper functioning of the system which they establish.” (Opinion 1/13, discussed here).

There was little disagreement between the parties that the Marrakesh Agreement had to be implemented within the framework of Directive 2001/29 on the harmonisation of certain aspects of copyright and related rights in the information society.  The Court, however, pointed out that “it is clear (..) that the EU legislature brought about only a partial harmonisation of copyright and related rights, given that the directive is not intended to remove or to prevent differences between national laws which do not adversely affect the functioning of the internal market.” (para 115) Indeed, Directive 2001/29 provides, within its harmonized legal framework, for considerable Member State discretion as regards the implementation of exceptions and limitations to distribution for the benefit of people with disabilities. Does such a residual Member State competence mean that the Marrakesh Treaty is not largely covered by common EU rules, and therefore prevent implied exclusivity?

The Court answered this question in the negative. Directive 2001/29 subjects the Member States’ remaining competence to a number of conditions. The Member States’ discretion can therefore only be exercised within the limits enjoined by EU law, so that the Member States “are not free to determine, in an un-harmonised manner, the overall boundaries of the exception or limitation for persons with a disability.” (para 122) Moreover, the Marrakesh Treaty – unlike Directive 2001/29 – imposes an obligation on the contracting parties to provide for an exception or limitation. The Member States are therefore mandated to comply with the restraints imposed by EU law. As a result, the Court concludes that independent external Member State action would affect common EU rules. The EU is therefore exclusively competent to conclude the Marrakesh Treaty.

Opinion 3/15 and EU treaty-making: A short analysis

As stated in the introduction, the Court’s finding of (implied) exclusivity does not come as a surprise to many observers. Neither does the broad interpretation of the “largely covered” part of the ERTA-test. After all, the Court already confirmed in Opinion 1/03 and, more recently, in Green Network, that considerable Member State discretion in the implementation of EU legislation does not rule out exclusivity. Nevertheless, as was pointed out by AG Wahl, the case law “begs the question: when is an area sufficiently covered by EU rules to exclude Member State competences to act externally?” (para 130 of the opinion) By inference, to what extent does the EU have to exercise its internal competence to trigger the “ERTA effect”?

Green Network and Opinion 3/15 suggest that the Court will place much greater emphasis on the effects of international agreements on common EU rules, rather than on the extent of their material overlap. Even if the EU law in place specifies residual Member State powers, and is therefore, arguably, not largely harmonised, (adverse) affects on the EU’s internal legal framework suffice to trigger implied exclusivity within the meaning of Art. 3 (2) TFEU. However, if the Member States may be pre-empted where an agreement is only partially covered by EU internal legislation, may they be also pre-empted where the EU cannot exercise its internal competence at all, provided always that the envisaged agreement clearly affects the EU law in force? The Court is expected to answer this question in its pending Opinion 2/15 on the conclusion of the EU-Singapore Free Trade Agreement (discussed here). Here, among other things, the Court is asked to determine whether the “ERTA effect” may exceptionally be triggered by EU primary law provisions.

The Court’s clarification of the scope of Art. 207 (1) TFEU, and in particular, “commercial aspects of IPR”, might also have some impact on future EU treaty-making. Opinion 3/15 shows that the mere exchange of goods or services cross-border is not enough to equate a measure with international trade for commercial purposes. Instead, a link with trade implies that the transaction or activity aims at fulfilling a commercial objective. By inference, using trade as a mean to fulfil non-commercial objectives is not enough to bring a measure within the scope of the CCP. While the Court did not entirely exclude that “commerce” may, on a case-by-case basis, include trade on a non-profit basis, it contrasted AG Wahl’s suggestion that Art. 207 TFEU generally encompasses transaction or activities of a non-commercial nature. In view of Opinion 2/15, which also raises this issue, it may be noted that the Court did not dispute the AG’s claim that moral rights fall outside the scope of the CCP.

When returning to the Marrakesh Treaty, Opinion 3/15 leaves another pressing question unanswered: What is the correct legal basis for the agreement’s conclusion? The Court only clarifies that the Council Decision on the signature of the Marrakesh Treaty was wrongfully based on Art. 207 TFEU, but does not further elaborate on the correct choice of legal basis. It is true that the Commission’s preliminary question is confined to the exclusive nature of the agreement. The choice of legal basis, nevertheless, qualifies the modus operandi of (exclusive) EU treaty-making. In particular, the Court refrains from discussing AG Wahl’s reference to Art.  19 (1) TFEU, and, more broadly, the effects of the non-discrimination principle on EU external action. Whilst clarifying the EU’s capacity to conclude the agreement alone, the choice of legal basis – and therefore the choice of procedure – is left to the discretion of the EU institutions. Throughout the proceedings, the Commission continued to assert that the Marrakesh Treaty should be based on Art. 114 TFEU instead of Art. 19 TFEU. Conversely, the majority of the intervening Member States sided with the AG. As the use of Art. 19 (1) TFEU would trigger unanimous Council voting, and therefore Member State veto powers in the Council, institutional debate over the conclusion of the Marrakesh Treaty might continue.
Barnard & Peers: chapter 24

Photo credit: 1709 Blog

Wednesday, 15 February 2017

Court of Justice gives judgment on Irish procedure for determining claims for Subsidiary Protection

Shauna Gillan, Tribunal Member, International Protection Appeals Tribunal*
*The author is writing in a personal capacity


The recent ruling of the Court of Justice (CJEU) of 9 February 2017  in  the  case  of M v Minister for Justice and Equality, Ireland and Anor in is the fourth time that Court has given judgment on Ireland’s  unique  and  evolving  procedure  for  determining  claims  for Subsidiary  Protection.  Subsidiary  Protection  is  a European Union law status provided  for  by  the Qualification Directive (originally Directive 2004/83, now Directive 2011/95 – although Ireland, like the UK, only opted in to the former version) that is designed  to  complement  the  protection  for refugees provided  by  the  1951 Refugee Convention.

Subsidiary Protection protects those who do not fit the strict definition of a refugee, but who are nonetheless at risk of serious harm in their home country. Ireland has up to now dealt with these two types of (similar, but not identical) claims via entirely separate decision-making processes.

The litigant (‘M’), a Rwandan national, brought test case litigation on the Irish procedure on 6 January 2011. At the time, all subsidiary protection applications were determined by the Minister for Justice in an administrative procedure that carried no right of appeal. The ensuing protracted  litigation  included  two  references  to  the  CJEU  from two different  Irish  Courts;  the  most  recent, a reference from the Supreme Court, is considered in the ECJ’s recent judgment.

The Irish system has undergone significant changes over the years during which M’s case has been in train, rendering the Court’s findings somewhat moot; however the case speaks to a fundamental principle of EU law: the right to be heard in matters that significantly affect one’s interests.

The facts of the case

M, a law graduate, made an asylum application in Ireland in May 2008. He was interviewed and his claim was rejected at first instance in August 2008.  M’s subsequent appeal to the Refugee Appeals Tribunal was refused, in October 2008. The appeal was on the papers: the first instance decision-maker had invoked a provision in Irish law that denied him an oral appeal (on account of his having delayed before making his asylum claim). M subsequently lodged a claim for subsidiary protection.

At that time, the Irish system was structured in such a way that individuals could not simultaneously claim both asylum and subsidiary protection.  Only  once  an  asylum  claim was finally determined, could a person  claim  subsidiary  protection  (or  indeed permission to remain on other  grounds).  All claims for subsidiary protection were decided by the Minister for Justice (as distinct from asylum claims, which were decided by an independent body). No personal interviews were carried out for these types of claim, and there was no right of appeal. In M’s case his claim for subsidiary protection was rejected in writing on 30 September 2010. The delay – of almost two years – was not uncommon. The Minister’s decision relied to a large extent on the two earlier decisions that had rejected M’s claim for asylum, and in particular the negative credibility findings therein.

M challenged the Irish procedure in the High Court, who referred the following question to the CJEU for a preliminary ruling:

‘In  a  case  where  an applicant seeks subsidiary protection status following  a refusal to grant refugee status and it is proposed that such  an  application  should  be  refused,  does the requirement to cooperate  with  an applicant imposed on a Member State in Article 4(1)  of … Directive 2004/83 … require the administrative authorities of  the  Member  State in question to supply such applicant with the results  of  such an assessment before a decision is finally made so as  to  enable  him  or her to address those aspects of the proposed decision which suggest a negative result?’

The CJEU, in its judgment of 22 November 2012, M. (C-277/11, EU:C:2012:744),  answered  this  question in the negative. However, somewhat unusually, the CJEU went on to consider a further question: whether M’s ‘right to be heard’ had been respected. The CJEU found that it had not: M should have been afforded an opportunity to make his views known before a decision was reached on his claim for subsidiary protection. The fact that M had had an interview for his earlier asylum claim was insufficient.

The case returned to the Irish High Court, who held on 23 June 2013 that the Minister for Justice had wrongly failed to afford M an effective hearing when his application for subsidiary protection was being examined. The Minister brought an appeal against that decision before the Supreme Court and M also brought a cross-appeal – neither party considered the High Court had correctly interpreted the CJEU judgment.

While that appeal was pending, on 14 November 2013, the Irish authorities changed the procedure to give effect to the High Court judgment. Personal interviews for applicants for subsidiary protection were introduced, as were full appeal rights to the Tribunal. However instead of fusing the decision-making process for the two claims (as is done in all other EU States) the new procedure dealt with the applications separately: one claim after the other. Applicants for international protection, if unsuccessful, were put through a near-identical process, twice: a personal interview, a first instance decision, an appeal to the Tribunal, another personal interview, another first instance decision and a further appeal. This process, naturally, gave rise to delays.

Meanwhile M’s test case litigation continued. The Supreme Court stayed the proceedings and on 24 November 2014 referred another question to the CJEU:

‘Does  the  “right to be heard” in European Union law require that an applicant   for  subsidiary  protection,  made  pursuant  to  Council Directive   2004/83/EC,   be   accorded   an  oral  hearing  of  that application,  including the right to call or cross-examine witnesses, when  the application is made in circumstances where the Member State concerned  operates two separate procedures, one after the other, for examining  applications  for  refugee  status  and  applications  for subsidiary protection, respectively?’

On 9 February 2017, the CJEU gave judgment. The Court held that, as Ireland was not operating a single procedure to determine asylum and subsidiary protection (the model employed by other European Union States), the Procedures Directive (Directive 2005/85; Ireland opted out of the later Directive 2013/32, which replaced it) did not apply to claims for subsidiary protection in Ireland.  This reiterated a point the CJEU had settled previously, and most recently restated last year (in another Irish case):  Danqua  v  Minister  for Justice and Equality Ireland [2016] EUECJ C-429/15.  The CJEU emphasised that the right to be heard was an important general principle of EU law. When making a decision that significantly affects  a  person’s interests (as here), the State must ensure that their  right  to  input  into  that  decision  is facilitated, so as to give full effect to the right to be heard.

The CJEU went on to discuss the scope of that right, finding that a personal  interview  would  not necessarily be required for all subsidiary protection claims, given that a substantive asylum interview would already  have  been  carried  out.  The Irish authorities had essentially played it safe after the CJEU’s first judgment in this case, by bringing in personal interviews across the board, for all subsidiary protection cases. The CJEU clarified that what it had meant was that there must be some way for an applicant’s views to be heard. This could be in writing or by personal interview – depending on the individual case. Some cases may require a fresh interview, and some may not.

The CJEU made clear that the Irish authorities are free to rely on the information gathered in the course of assessment of an asylum claim (including statements made in an interview or at a hearing) when it comes to assess the claim for subsidiary protection. The  critical matter is that the state must carry out  an  individualised  assessment  of  the  relevant  facts;  whether an interview is necessary so to do – in the particular situation of Ireland’s bifurcated  system  for  assessing  international protection  claims – is  fact-specific.

Further developments

The outcome of the CJEU decision has been overtaken by recent events. On 31  December  2016 a new procedure for international protection claims was brought  into  force  via  the  commencement  of  relevant sections of the International  Protection  Act  2015.  The Act provides for a new, fused ‘single procedure’ whereby asylum and subsidiary protection claims will be assessed at the same time and determined in one decision. That decision, if negative, can be appealed to the Tribunal on both asylum and subsidiary protection grounds (in the same hearing, for the first time). The introduction of a single procedure brings Ireland into line with the rest of the European Union. The new system, once fully up and running, is likely to result in a reduction of delays in what had developed over the years into an overly prolonged system for assessing international protection claims.

Barnard & Peers: chapter 26
JHA4: chapter I:5

Photo credit: smelltheroses blog

Friday, 3 February 2017

As Bad as it Gets: the White Paper on Brexit

Professor Steve Peers

Yesterday the UK government released its White Paper on Brexit. This tome was reluctantly extracted from the government after months of prompting, but is in the end enormously disappointing: the political equivalent of a cat coughing up a hairball.  

As many had expected, the white paper is basically content-free. It's essentially Theresa May's recent speech (which I analysed here), in some cases word-for-word, with a few statistics and graphs added. But even this information refers back to the status quo, and in some cases is inaccurate (a graph suggested British workers get 14 weeks’ paid holiday a year, before it was corrected), out-of-date (the 2011 statistics on UK citizens resident in the EU), or only partial (the migration statistics omit Irish people in the UK, and vice versa).

There’s no proper analysis of different options relating to the UK’s post-Brexit future, with assessments of their relative pros and cons. But then there couldn’t be: the White Paper says little of substance about the very existence of those options. David Allen Green has pointed out that the initial version of the document was time-stamped at about 4am, giving the strong impression it was written overnight by an intern working to a deadline in a student-like coffee-fuelled flurry.

Detailed comments on the White Paper

The paper begins with a collection of sentence fragments from the Prime Minister, centring on the bizarre claim that 65 million people are “willing” Brexit, simply ignoring the 48% who voted against it. By and large, it goes downhill from there.

Having said that, there is a little bit of detail on plans for the ‘Great Repeal Bill’ (previously discussed here and here), which will convert existing EU law into UK law. This White Paper confirms that there will be a further White Paper on that Bill. The latter Bill will retain EU Regulations in UK law, not just EU Directives, which are referred to implicitly (as “all laws which have been made in the UK, in order to implement our obligations as a member of the EU”).

This is an important legal point because by their nature as defined by EU law, Directives have anyway been implemented as part of UK law already. Regulations usually have not, and so would vanish unless some steps were taken to retain them. (Regulations are more commonly used in areas which EU law has more fully harmonised, whereas Directives usually apply in areas where there is less harmonisation).

Interestingly, the White Paper says that the ex-EU law should be interpreted post-Brexit “in the same way as it is at the moment”. This suggests that the case-law of the EU courts will continue to be relevant, even though those courts are loathed by many Brexiteers. It remains to be seen exactly how this approach to interpretation will be secured outside the EU; the most obvious route is to insert language to this effect in the Great Repeal Act. There’s a weasel word which isn’t further explained (“Generally”), and two obvious questions aren’t answered: what about post-Brexit EU case law, and what about EU legislation which is amended after Brexit?   

After Brexit, it will be up to the UK to amend ex-EU law. But who will have the power to do this? There’s a little bit of detail about this key question. Any “significant policy change” will be the subject of an Act of Parliament, which means that the House of Commons and the House of Lords will have a full debate and every chance to table amendments or block the government’s plans. There will be Bills on customs and immigration, “for example”.

But there is also a commitment to a “programme of secondary legislation”. This refers to various methods of the government making laws, with limited power of Parliament – usually only one chance to examine the draft law briefly, with no chance to amend it. The White Paper refers to this as “oversight”, but it’s not very substantial. By process of elimination this is how the government will make changes to other areas of ex-EU law, besides customs and immigration – environment and employment law, for example. The White Paper says it wants to remove “deficiencies” in the ex-EU laws; but one woman’s “deficiencies” are another woman’s clean beaches.

Next, the section on “taking control” of UK laws starts with the remarkable statement: “Whilst Parliament has remained sovereign throughout our membership of the EU, it has not always felt like that.” The Supreme Court’s Miller judgment indeed recently confirmed that Parliamentary sovereignty did not vanish while the UK was an EU member, since the effect of EU law in the UK was dependent on Parliament’s decision to keep the European Communities Act in force, Parliament could have insisted on blocking the domestic effect of any EU law by expressly deciding to keep Acts of Parliament conflicting with that EU law in force.

But let’s step back from the legal details. This is an astonishing statement. One of the best-known slogans of the ‘Leave’ side in the referendum was ‘take back control’. Yet it’s conceded here that we already had control. The problem is the feeling that we didn’t have it.

So...what prompted that feeling? Could it be the consistent lie that EU law is adopted by ‘unelected bureaucrats’, which is a simple falsehood about the nature of EU law-making? (As discussed here, EU laws are jointly adopted by national ministers and the elected European Parliament; the UK votes in favour of proposed laws over 90% of the time). Needless to say, the White Paper doesn’t refer to that fact. Rather it overstates the impact of EU law in the UK, by means of a dodgy statistic which includes ‘soft law’ (non-binding measures like Recommendations, Communications, Reports and Opinions) in the total number of EU documents sent to Parliament.

Next, the White Paper points out correctly that there is no need for the EU courts to have jurisdiction over agreements between the UK and the EU. Indeed, the EU rarely asks for this with other countries (although the EU courts do rule on how such treaties should be interpreted by the EU). I’ve always suspected this focus on the EU courts is a red herring – so that the UK government can declare a ‘victory’ by resisting something that the EU might not even ask for.

Moving on to devolution, the White Paper details various means of talking to the devolved administrations – ignoring the simple fact that the government has already ruled out following any of a number of options (discussed here) which the Scottish government presented in December.

There’s a special section on Northern Ireland, listing facts but not giving any idea of how reinstating border checks between the Irish Republic and Northern Ireland can be avoided. I’ve referred before to Brexiteers’ apparent belief in a ‘Brexit Fairy’ who will magically solve all problems which Brexit might create. The Irish border issue seems to be a task for her culturally-appropriating cousin: the Brexit Leprechaun.

In passing, this section refers to the common belief that the status of Irish citizens in the UK is guaranteed by the Ireland Act 1949. As far as immigration status is concerned, this is questionable, as detailed here by Professor Bernard Ryan.

Next, the White Paper deals with immigration, referring to “public concern about pressure on public services, like schools and our infrastructure, especially housing, as well as placing downward pressure on wages for people on the lowest incomes.” There’s a mysterious absence of statistics to back up these claims, perhaps because they are shaky: see this recent summary of economic literature on migration, by Professor Jonathan Portes. But who needs evidence, when we can just poke a finger down Nigel Farage's throat? And if public services are so badly affected by EU migration, why no mention of the famous £350 million/week which would be supposedly made available for the NHS?

It’s striking that this section refers to possible ‘phased implementation’ of new rules on immigration of EU citizens. This seems to be the euphemism for an interim agreement with the EU – which would presumably entail retaining a limited version of free movement of people for a time. The issue is likely to be a key bargaining point in negotiations.

The next section deals with existing UK/EU migrants. The government repeats its mantra that it wants to secure their status, but there are no specifics on what "securing status" means. The banality of political waffle could not be waived to suggest anything more concrete for millions of people worried about their future. (For detailed suggestions on this issue, see the recent British Future report, discussed here).

Moving on to employment rights, the White Paper repeats a government promise to retain EU employment protection. But as I noted above, there’s no mention of safeguarding those rights by means of needing an Act of Parliament to amend them. As others have pointed out, there are weasel words here: “strengthening rights when it is the right choice for UK workers” and “maintain the protections and standards that benefit workers” (emphases added). There’s a definite “fox in charge of the henhouse” vibe here – quite literally so, if we remind ourselves of cabinet minister Liam Fox’s attitude to EU employment regulation.

This section includes the usual assertions about UK employment law being better than the EU version. This is true in some ways, and there are some issues that EU law has nothing to do with (for instance, the minimum wage, which the White Paper rambles on about). Yet, as I discuss in detail here, there are a number of areas where EU case law extended workers’ rights in the UK: holiday pay for UK workers with fixed term contracts, who are on commission or have extra allowances, to take just one example.

Moving on, the section on trade and economic cooperation re-iterates the intention to sign a free trade deal without considering the relative advantages of staying part of the single market. There are wildly empty statements about future EU/UK cooperation. The government wants "civil judicial cooperation" to continue with EU. But in which areas? (There are general EU rules on civil and commercial judgments, but also specific rules on insolvency, recognition of divorce and child access rulings, and maintenance payments).

Similarly, the White Paper lists many EU economic laws, but which would the government like to remain part of: competition law? The EU trademark? The unitary patent? EU data protection law? (On the latter issue, where there is a particular risk of disruption to trade flows if the UK does not retain laws nearly identical to the EU’s, see my discussion here).

The discussion of Euratom, the atomic energy treaty linked to the EU, implicitly suggests that the UK energy industry would benefit from a cooperation agreement with Euratom post-Brexit (see further discussion here). But the government is unwilling to say so, due its general paranoia about revealing its intentions. Yet even Homer Simpson – the world’s most famous employee of the nuclear industry, but also the dumbest – could guess the UK’s negotiating plans here.

Equally, the White Paper supplies interesting statistics on the usefulness of EU criminal and policing laws, and asserts the government’s continued interest in playing a role in EU foreign and defence policy. Yet again, there’s no detail on what the UK would like to participate in. (Some further comments on the criminal law and policing issues here).  

Overall, the White Paper is largely devoid of content because the UK government’s concern about negotiating secrecy. While of course some of the government’s position needs to remain confidential, I have to point out that treaties aren't negotiated with actual playing cards. They are negotiating by tabling draft texts – and so the EU is bound to see what the UK is asking for, once talks start.

The government may in fact be concerned about a different issue: being embarrassed in front of the British public, by asking for things it doesn’t get. But here, it’s being a little naïve. In my experience, officials from the EU and its Member States love to talk. And little birds leak a regular flow of EU documents to the Statewatch website. Even if UK officials keep as quiet as mice, the EU side will sing like canaries.

Finally, the “we can’t show our cards” argument reminds me of a rather relevant anecdote. Years ago, in the dying days of the Soviet Union, I went on a trip to Moscow as a member of the university debating club. After several days there, our stomachs were rumbling from the effect of central economic planning upon the supply of edible food. So some of us took refuge for the evening in the Canadian embassy, where there was decent grub and beer. (We’d drunk…enough vodka by that point).

Following a frenzied supper, we started to play cards. We’d never played cards with each other before, so didn’t know what to expect. One of my friends kept on asking the dumbest, most basic, questions about the rules of the game. At one point he even showed one of the cards in his hand to all of us, asking “So what should I do with this? Is it a good card?” Everyone laughed, and no one took him seriously as an opponent. At the end of the game, lo and behold, he had the best hand by far, and won easily. It turned out he knew the rules perfectly well, and his pretence of complete ignorance had been a perfect bluff.

Well…everyone in Britain had better hope that this is exactly the government’s real Brexit strategy. The horrifying alternative is that the government really is as dumb as it looks.

Barnard & Peers: chapter 27

Photo credit: Wings Over Scotland