ELSA Maastricht Law Review - 8th Edition

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THE ELSA MAASTRICHT LAW REVIEW

EMaas Law Review is published by the Maastricht branch of the European Law Students’ Association.

Cover photo: © venemama (Adobe Stock)

Director:

Senior Editors:

Ana Lazić

Filip Godlewski

Marcel Martinussen

Article Editors:

Ana Fukai Sanchez Miguel Castro

Nicole Gibbs

Sabine Kneepkens

Adrienne Maduro

Kevin Gomez Marrero

Digital Designer:

Website:

Nicole Gibbs

https://elsamaastrichtlawreview.com/

All rights reserved. No part of the material protected by this copyright notice may be reproduced, published, utilised in any form or by any means electronic or mechanical, including photocopying, recording or storing in a retrieval system or transmitted in any form or by any means without the prior written consent of the publisher. The views expressed by the authors and interviewees are their own and do not necessarily reflect those of the publishers.

Copyright © 2023 ELSA Maastricht

FROM THE EDITORIAL BOARD

The EMaas Law Review is a bi-annual, student-edited law journal published by the Maastricht branch of the European Law Students’ Association (ELSA). Our mission is to contribute to legal education by creating a forum for the analysis and discussion of contemporary legal issues. We intend to provide promising young lawyers and legal thinkers a platform wherein to promote and test their ideas, as well as to actively encourage the practice and development of legal research and writing skills outside the scope of their traditional law school programmes.

Our 8th Edition includes twelve submissions that fall under the umbrella of International and European Public Law. These submissions include Case Notes, Articles, as well as Dissertations, which have been written by both undergraduate and graduate students. We would like to thank these contributors to our Edition for their hard work and dedication following the editorial rounds. In addition to pieces of legal writing, EMaas, for the first time, is also featuring a new Section to our Review which consists of Interviews. This is part of our impact project wherein influential professionals from areas of human rights are invited to share their journey and comment on current developments in their field. In this regard, the EMaas Editorial Board would like to extend our gratitude to Mirjana Vukajlović, Helena Dalli and Peter Robinson for being the first features in this Series.

Finally, I would like to congratulate the Editorial Team, Filip Godlewski, Marcel Martinussen, Ana Fukai Sanchez Miguel Castro, Nicole Gibbs, Sabine Kneepkens, Adrienne Maduro and Kevin Gomez Marrero, for their commitment and efforts throughout the process of compiling this Edition.

The EMaas Editorial Board hopes you enjoy reading our first issue of 2023.

Ana Lazić DirectorofELSAMaastrichtLawReview(EMaas)

TABLE OF CONTENTS

Section I: Interviews

Retrials and the Case of Stanišić and Simatović with Mirjana Vukajlović – page 2

The Commission and Equality with Helena Dalli – page 11

Detainees in Niger with Peter Robinson – page 15

Section II: Case Notes

SPOTLIGHT ON CASE C-817/19: The Court's Approach to the PNR Directive in Light of the Fundamental Rights to Respect for Private Life and Protection of Personal Data

by Manuela Paolini e Silva – page 23

NON BIS IN IDEM: TOWARDS A NEW EUROPEAN APPROACH? A Case Note on Bundeswettbewerbsbehörde v Nordzucker AG and others

by

David

Kermode

– page 31

IT TAKES TWO TO TANGO - ANOTHER EPISODE IN THE ROMANIAN RULE OF LAW SAGA: A Case Note on C- 430/21 RS by Helena Kumpar Zidanič – page 41

Section III: Articles

SEPARATION OF POWERS IN PURSUIT OF SAFEGUARDING DEMOCRACY: Which Governmental System to employ?

by Lucia Bialková – page 55

EUROPEAN ADMINISTRATIVE LAW: Administrative Cooperation in Sustainable Forest Management Plans

by Ana Fukai Sanchez Miguel Castro – page 70

NATIONALITY IN INVESTOR-STATE DISPUTE SETTLEMENT: The Unpredictability of Exercising Ratione Personae Jurisdiction

by Rita Kachkouche – page 83

HIGHER COSTS OF PUBLIC TRANSPORT FOR NON-DUTCH STUDENTS: An EU Law Perspective on Different Treatment of Students in the Netherlands

by Peter Drobný – page

97

THE PITFALLS OF EU IMPLEMENTING ACTS: Issues Surrounding Compliance with Principles of EU Law and How To Remedy Them by

Chloe-Emmeline Garrier – page

110

DUE PESI, DUE MISURE – DOUBLE STANDARDS: An Overview of the Right to Abortion and the Right to Conscientious Objection in Italy

by Michela Spampinato – page

126

“A BURDEN SHARED, IS A BURDEN HALVED”

BURDEN-SHARING IN THE EUROPEAN UNION: The Relocation Decisions of 2015 and the 2022 Temporary Protection Directive by Merle Sandhop – page 141

Section IV: Dissertations

JUSTICE FOR THE YAZIDI VICTIMS: Prosecuting ISIL Fighters for the Crime of Genocide with the help of UNITAD

by

Aino Kosunen

– page 157

THE PRELIMINARY RULING PROCEDURE: An Infringement Procedure for the European Citizen and its Role for the Safeguard of the Rule of Law in the European Union by Giulia

Giardino

– page 185

Section I: Interviews

Mirjana Vukajlović, MA

Mirjana is an experienced trial lawyer and legal advisor, with domestic and international practice in national law, as well as in International Humanitarian Law, International Criminal Law), and Human Rights consultancy. She is a member of the Amicus and Audit Committee of the Association of Defence Counsel practicing before the international criminal tribunals (ADC-ICT), and its newly appointed Focal Point for ICTY residual issues. She is admitted to the list of defence counsels before the IRMCT and the list of defence and victims counsels at the Kosovo Specialist Chamber. She has an extensive track record in some of the most highprofile war crimes and IHL cases before the ICTY/ICTR/IRMCT (Karadžić case, "Media case", Stanišić and Simatović case ), as a counsel, consultant, and investigator. She is also a member of the Council of Experts of the International Criminal Law Practice Project of the American Bar Association. She has provided legal advisory services to individuals, business enterprises, international organisations, governments, and non-governmental organisations. She also holds a MA in International Politics and Negotiations.

Thank you for agreeing to this interview

Ms Vukajlović.

1.What did your journey to becoming an international criminal lawyer in The Hague look like? What prompted your interest in this field?

Since my apprenticeship days in 2000, I represented clients before national courts, committing myself to the legal profession –including defence work in criminal cases and consultancy in the field of international human rights. Throughout the existence of the International Criminal Tribunal for the former Yugoslavia (ICTY), I have followed the trials and jurisprudence – which was unquestionably expected from a legal practitioner coming from the region of interest of this Tribunal. My engagement before the ICTY was a result of the recognition of my work as a national lawyer, while also having international clients. My direct involvement was prompted by a personal invitation from Richard Harvey, the UK barrister with an impressive track record in the field of international criminal, international humanitarian law, and human rights, back in 2009. He asked me to join the team he was creating as appointed Stand-by Counsel in the Karadžić case. This is when

my international criminal law journey took over and it has not stopped to this day.2. You are on the defence team in the first full retrial in the history of international criminal law – namely the case of Jovica Stanišić and Franko Simatović before the International Residual Mechanism for Criminal Tribunals (IRMCT) in which they were accused of four counts of crimes against humanity and one count of violations of the laws or customs of war. Whilst initially acquitted in 2013, upon appeals proceedings in 2015, this decision was quashed and a retrial was ordered. Such a retrial may be ordered as a corrective appeal remedy. What kind of factors do Appeals Chambers (AC) take into account when assessing whether the circumstances of a case are such that this appeal remedy is fair?

It is interesting that your question is related to the assessment of circumstances in the terms of fairness when deciding that retrial is the most appropriate appeal remedy. You recognised one of the most relevant issues in this process, since the right of the accused is always at stake on retrial, as well as the rights of witnesses, including victims.

Retrial as an appeal remedy is permitted by the human rights law and standards and envisaged in the Rules of Procedure and

Evidence (RPE) of the IRMCT in ‘appropriate circumstances’ (the same as its predecessors ICTY and International Criminal Tribunal for Rwanda (ICTR)’s RPE). However, there are numerous factors and human rights requirements that should be taken into account during the appeal decision-making process before ordering a retrial as an extraordinary appeal remedy.

There is a particular concern for the right to a fair and expeditious trial and the right to be tried without undue delay at any stage of a trial, including that the trial is completed within a reasonable time period. International criminal cases are already lengthy proceedings – with the accused mostly in detention or subject to very strict conditions while on provisional release during the trial. In addition, the principle of equality of arms is almost certainly disturbed on retrial by the fact that the prosecution is fully aware of the defence’s case, and even ‘guided’ by the second instance court on ‘how to fix’ their case by mere existence of the Appeal Judgment ordering retrial.

The ICTY and ICTR ordered retrials in three cases so far, confirming the exceptional nature of this remedy – those of Muvunyi, Haradinaj, and Stanišić and Simatović (the latter one being the only full retrial in the history of the international

criminal law). In two of the three cases –Muvunyi and Haradinaj, the Appeals Chambers did not explain the choice of retrial as a remedy as opposed to remanding the matter to the original Trial Chambers (TC), which is always the best choice due to the knowledge of the case of the acting judges, who actually heard all the witnesses and directly followed the first trials. Maybe their reasons were justified by the absence of the original judges, however, that was supposed to be explained, in my opinion, as it was done in the Stanišić and Simatović 2015 Appeal Judgment. I have to add here that I fully agree with the position taken by Judge Agius in his separate and partially dissenting opinion in this Appeal Judgment, that the review by the Appeals Chamber and its application of correct legal standards was a more appropriate appeal remedy, and that there is a lack of reasoning for abandonment of this possibility. Without going into discussion about the non bis in idem and res judicata principles which were missing from the Appeals Chambers’ judgments where retrials were ordered, in the Haradinaj and Stanišić and Simatović cases, I will go back to the factors that were taken into account when deciding on the proper appeal remedy in these cases.

The Appeals Chambers in the above mentioned cases balanced the following factors: fairness to the accused; the time

that the accused spent in detention (as opposed to taking into account the length of proceedings and projected length of retrial so for example, Stanišić was arrested in 2003, and has been on trial for 20 years, as of the time of the retrial Appeal Judgment); the gravity of the alleged offence; the interest of justice (allowing the trier of fact the opportunity to fully assess the entirety of evidence in the Muvunyi case and provide a reasoned opinion, facilitating the testimony of two Prosecution witnesses and ensuring the fairness of proceedings in the Haradinaj case, or applying the correct legal standards to Joint Criminal Enterprises (JCEs) and aiding and abetting modes of liability in Stanišić and Simatović case); circumstances of the case at hand (in the Stanišić and Simatović case, the nature and scale of the errors of law identified by the Appeals Chamber would require the analysis of the entire trial record in this very demanding case, in terms of scale and complexity, where also three judges from the original Trial Chamber no longer held office at the time of the Appeal Judgment); and, the consideration of public interest (which is in line with the ICTY jurisprudence, and was explicitly stated by Judge Agius in his Separate and partially dissenting opinion in the Stanišić and Simatović case).

3. What factors were considered in defining the scope of your clients' retrial?

The Appeals Chamber in the Stanišić and Simatović case ordered a retrial on all counts of the Indictment. However, this order lacks the instructive definition of the scope of retrial, similar to the other two retried cases (Muvunyi and Haradinaj).

The only explicit part of the AC’s order is related to the instruction of a new Trial Chamber to apply the correct law on aiding and abetting – excluding specific direction requirements for aiders and abettors. For the single remaining error identified by the Appeals Chamber, there is merely an inference based on the previous analysis. Namely, in relation to JCE liability, it was concluded that the TC erred in law, in failing to make the necessary findings on the existence and scope of a common criminal purpose (CCP) shared by a plurality of persons. The identification of the error itself is followed by the general assumption that after making findings on the existence and scope of the CCP, the next step should be an assessment of the accused’s contribution and intent. Neither of these JCE conclusions were meant to be “instructions” for the new Trial Chamber that is to conduct a retrial. Instead, these were part of the analysis of the most

appropriate remedy, where the nature and scale of identified errors of law were discussed.

The lack of a definition of the scope of a retrial by the AC resulted in different interpretations by the parties. The Defence argued that the non bis in idem and res judicata principles apply to the Trial Judgment’s findings, which reached finality and sought that the new TC recognises the finality of these findings and to expunge the new material facts and charges brought by the Prosecution. The Prosecution claimed that the TC lacks the jurisdiction to define the scope of retrial and used the opportunity to treat retrial as a completely de novo trial, undermining the rights of accused and acting like the original trial never happened, by adding new material facts and charges.

The TC concurred with the Prosecution regarding jurisdiction on the delineation of the retrial’s parameters - that it should be in hands of the AC and concluded that the absence of explicit restrictions in the AC’s order is actually a sign of its intention not to limit the charges. However, in addition to the imposed limitation on the admission of new evidence, the TC exercised its discretion by ordering the Prosecution to amend its Pre-Trial Brief, expunging new

allegations that cannot be supported by the evidence from the original trial.

Regardless, the dispute between parties continued due to the vagueness of the Prosecution’s case and its continuous attempt to broaden the scope of retrial.

4.It is sometimes claimed that retried cases are heard as though the original trial had never occurred. Is this something you agree with? Additionally, this tends to mean that the evidence admitted at the first trial can also be relied upon at the retrial. However, this admission of evidence necessary for an outcome to be reached, must be weighed against the remedial nature of a retrial, so that it is fair and expeditious - and does not potentially prejudice the defence. Could you explain briefly how the recalling of such evidence was seen in the Stanišić and Simatović retrials? Did the Trial Chamber permit the admission of new evidence?

I am afraid that I cannot agree with the conclusion that retried cases “are heard as though the original trial had never occurred”. That would bring us to the inevitable path of violation of the rights of the accused, and it would deny the nature of the remedy itself. This is exactly the trap that should be avoided. Forgetting about the

original trial is not in line with the existing jurisprudence or possible situations on trial, particularly having in mind that retrial can be also partial – take as an example the Muvunyi case, where the AC ordered retrial be limited to one allegation of direct and public incitement to commit genocide where the TC failed to provide a reasoned opinion when relying on the testimony of two mutually inconsistent witnesses, who were contradictory to another witness. This is solely related to one incident – a public speech he had given at the Gikore Trade Centre.

There are no rules whatsoever pertaining to the admission of evidence on retrial in international criminal courts and tribunals. The newly formed Trial Chamber is expected to follow the rules established for the first instance court, while respecting the right of the accused to a fair and expeditious trial. It would have been instructive if the Appeals Chamber had imposed certain restrictions in this respect when ordering retrial, however, this was not done in either of the retrial cases so far.

We fought fiercely in order to prevent injustice and prejudice to Mr. Stanišić by allowing the introduction of new evidence on retrial. At the time of the beginning of the retrial in our case, the accused were already on trial for 14 years and had been

acquitted in the original trial. This is exactly what the new Trial Chamber acknowledged in their landmark 2 February 2017 decision in the Stanišić and Simatović case, along with the assertion that the evidentiary issues were not the focus of the Prosecution’s appeal, but rather the application of correct legal standards. By exercising its discretion while guided by fairness and expeditiousness, the TC’s limited admission of evidence to that adduced in the original trial with two exceptions in the interest of justice: 1) where the evidence became unavailable due to the circumstances outside the Prosecution’s control; and 2) where such evidence was unavailable during the original trial and appeal proceedings, and it could not have been discovered through the exercise of due diligence.

The new TC fairly concluded in the abovementioned decision that the ‘retrial has effectively given the Prosecution a second chance to make its case’, hence it is of the utmost importance to safeguard the rights of the accused, including by limiting the admission of new evidence. It has also acknowledged that the presentation of new evidence against the accused would inevitably prolong the proceedings. Despite the fact that the admission of new evidence was always weighed against this decision, there was a continuous exchange among

parties on the interpretation of this decision, as well as additional decisions by the TC clarifying itself regarding these limitations. Moreover, there was constant pressure on the TC by the Prosecution to admit new evidence, which finally resulted in more than a third of new evidence on the trial record that expanded from 4.843 exhibits in the original trial to 6.311 exhibits in the retrial, with 18 new Prosecution witnesses.

5. At the retrial on 30 June 2021, the IRMCT found the accused former leaders of the State Security Service responsible for aiding and abetting the crime of murder, as a violation of the laws or customs of war and a crime against humanity, and the crimes of deportation, forcible transfer, and persecution, as crimes against humanity, committed by Serb forces following the takeover of Bosanski Šamac in April 1992. The hearing of appeals was scheduled on the 24th and 25th January 2023. Can you comment on this, as well as inform us of the concrete outcome the defence counsel sought to obtain from these hearings?

Yes, at the retrial, Stanišić and Simatović were found guilty of aiding and abetting through the provision of practical assistance, through two and half week-long trainings and the act of deployment of Unit

members and local Serbs from Bosanski Šamac to participate in the takeover of this municipality in Bosnia and Herzegovina, in April 1992, where they had no command or control over these men during the actual takeover.

The Prosecution charged them with participation in a JCE and commission of crimes on the territory of the former Serb Autonomous Regions of Krajina, Slavonija, Baranja, and Western Srem, and in the 6 different locations in Bosnia and Herzegovina, over the 5 year-long indictment period (1991-1995). The accused were, however, not found to be members of the JCE, nor were they deemed responsible for planning, ordering, or aiding and abetting any other charged crime in the Indictment. They were both sentenced to 12 years of imprisonment. The defence for Mr. Stanisić advanced eight grounds of appeal, challenging the conviction and sentencing.

The right to appeal is a fundamental right under international human rights law. At the IRMCT, a decision may be appealed based on either an error on a question of law that invalidates the decision – or an error of fact that resulted in a miscarriage of justice. The appeals hearing is a presentation of oral arguments after all briefs have been filed in the appellate process that start with the

Notice of Appeal. Generally speaking, the appeals hearing is the last chance for the Defence team to defend. It is the ultimate opportunity to clarify grounds of appeal, address specific questions and issues of the interest to the Appeals Chamber and those the Defence deem the most relevant, in order to convince the AC to rule in favour of your client. There is no time or interest for the mere repetition of arguments outlined in the written briefs. However, there should be certain clarifications and reiterations in order to strengthen the written arguments and ensure that Appeals Chamber is fully aware – and hopefully persuaded on the correct standard of review of relevant issues that will determine the fate of the appeal, hence also, the fate of the accused.

The 24-25 January Appeals Hearing is behind us, and you had a chance to follow the submissions of both the Defence and the Prosecution. If not, you can still read the transcripts, and form your opinion. What the Defence team for Mr. Stanišić is expecting concretely is the final completion of 20 year-long proceedings, wherein the Appeals Chamber will reject the Prosecution’s appeal in its entirety, reverse erroneous findings of the Trial Chamber, quash the conviction and acquit Mr. Stanišić – or, at least reduce his sentence that, in our opinion, is not proportionate or

in line with the existing practice of this Tribunal.

6.Finally, what advice would you offer to those interested in a career in international criminal law? Run! (Only kidding).

The one thing that should be clear to all interested in this field: this is a highly competitive and extremely demanding environment in terms of commitment. However, it is also very rewarding due to the nature of work and its inherent intercultural exchanges. There are also numerous internship vacancies I would suggest to students who are interested in a career in international criminal law, luckily –mostly paid these days! This is an opportunity to test your affinities and preferences and obtain invaluable insight, but also to show your passion and dedication to the staff, and potentially pursue your dream further.

However, do not undermine national practice. After all, one must be admitted to practice law in a State, or be a university professor of law, with established competence in criminal law and/or ICL/IHL/international human rights law, and possess a certain number of years of experience in the relevant capacity such as an attorney, a judge, or a prosecutor, among

other requirements, in order to be eligible for the list of counsels who can appear before the international tribunals.

In any case, even though you may have to work overtime under extreme pressure, skip your meals and sleep like Tesla, you will still find fulfilment and joy in your work.

Helena Dalli, PhD

Helena Dalli is the first EU Commissioner for Equality. Her role is to deliver on a Union of Equality, by strengthening Europe’s commitment to equality and inclusion. Helena Dalli has held various political roles in Malta including Member of Parliament, Minister for European Affairs and Equality, and Minister for Social Dialogue, Consumer Affairs and Civil Liberties. She holds a PhD in Political Sociology.

First of all, thank you Commissioner Dalli for kindly agreeing to participate in the interview. We are honoured to be having the opportunity to hear and share your story, as well as impact on the topic of equality.

1.Could you briefly introduce yourself and your occupation in the European Commission - as well as your journey to this role?

I am the first Commissioner for Equality and have the responsibility of addressing discrimination and promoting equality on the grounds of sex, racial or ethnic origin, religion or belief, disability, age and sexual orientation in all areas of life.

When Ursula von der Leyen presented her political guidelines to the European Parliament, she stated that “We need equality for all and equality in all of its senses.” I am committed to promote equality mainstreaming in public policy, including in the budget, and an intersectional approach to leave no-one behind. My mission is to ensure a Union of Equality where our collective diversity is embraced, thus allowing all citizens to reach their full potential. I want everyone to be safe, and able to thrive and live their lives regardless of their personal characteristics.

2.The Equality Package proposal for two directives concerning the equality bodies was adopted in December 2022. What do you think is the significance of this step, with respect to the EU's development of anti-discrimination legislation?

There are numerous well-functioning equality bodies in the EU, but this is not the case for all. Equality bodies that have insufficient independence, limited powers or insufficient resources are unable to provide victims of discrimination with due support.

Five years ago, the European Commission adopted a non-binding Recommendation on standards for equality bodies, but it only had limited effect. With this proposal we want to change the game and ensure minimum standards across all the European Union. We want to increase confidence among Europeans that reporting discrimination delivers results.

Strong and independent equality bodies will be able to assist victims better, while shedding light on unacceptable situations of discrimination through the collection of data on equality, regular monitoring, and reporting. Public institutions will be required to consult equality bodies in a transparent and timely manner on matters

related to equality, and most importantly, consider their recommendations.

In case of discrimination, equality bodies will have to provide all complainants with information and a preliminary assessment of their case. They will all be able to propose certain possibilities to pursue cases of discrimination, including seeking an amicable resolution between parties, investigate further, issue opinions or binding decisions and act in court.

3.The public consultation in 2022 confirmed that most stakeholders are in favour of additional EU rules establishing standards for equality bodies and discrimination rates continue to stay up; thus, people believe more action is needed. Do you think the proposal is enough? If not, which further measures could be taken?

I believe that from the EU competence point of view, this proposal is the best product that we can deliver. It provides for several standards that must be always ensured. Much will depend on how Member States transpose these directives once they are adopted. On its part, the European Commission will report regularly about equality bodies across the EU. Based on the outcomes of these reports, we will identify ways of supporting Member States

in the implementation of the Directive and more broadly in the implementation of the EU anti-discrimination rules.

4.We are over the half-way line with regards to the 2020-2025 European Gender Strategy. What are some of the most notable developments achieved through legislation thus far? What are your main priorities with respect to the next two years?

The last three years have shown that much can be achieved through joint effort across institutions and with Member States.

In December 2022, the Council and the Parliament reached a political agreement on pay transparency between women and men. Equal pay for equal work is one of the EU’s founding principles, yet pay disparities remain. Once transposed, the Pay Transparency Directive will introduce measures to help identify gender pay discrimination and make it easier for victims to assert their right to equal pay.

Another milestone is the Directive on gender balance in corporate boards. After 10 years of negotiations, the Directive has finally been adopted. It will help women achieve equality in top positions while in turn contributing to the valuing of women for their contribution in decision-making. By 2026, companies will need to have 40%

of the underrepresented sex among nonexecutive directors or 33% among all directors.

Last March, we adopted a proposal for a directive to combat violence against women and domestic violence. This law broadens the scope of application of the Istanbul Convention by addressing recent phenomena such as cyber violence. This proposal also aims to ensure that the most serious forms of violence against women are criminalised across the EU. In the meantime, we remain committed to the EU’s accession to the Istanbul Convention.

5. Is there any advice you would give to young European Law students seeking to pursue a career in the European Commission?

The European Commission is a dynamic institution that is actively engaged in addressing today’s reality while building Europe of the future. I encourage all committed Europeans who would like to pursue a career in European public policy or politics to do so.

Peter Robinson, JD

Peter Robinson is an American lawyer who has defended persons accused at the International Criminal Court and international war crimes tribunals for Rwanda and the former Yugoslavia for the past 22 years. He served as Lead Counsel to former Bosnian Serb President Radovan Karadzic at the ICTY, former President of the Rwandan National Assembly Joseph Nzirorera at the ICTR, and as cocounsel for two defendants at the ICC. He continues to represent convicted and acquitted persons at the ICTR and ICTY as well as persons who seek to be delisted from UN and US sanctions regimes. Prior to beginning work at the international tribunals, Mr. Robinson was a federal prosecutor in the United States for 10 years, and then a criminal defence lawyer based in Northern California.

Good afternoon, Mr Robinson, thank you for accepting the interview invitation and coming to discuss the situation that is currently taking place in Niger.

Hello! I’m happy to do it. I am ready whenever you are.

1.Following the December 2015 closure of the International Criminal Tribunal for Rwanda (ICTR), the Arusha branch of the Mechanism for International Criminal Tribunals (MICT) has been responsible for carrying out any residual functions. Its responsibilities include ensuring the resettlement of individuals who were acquitted or released (having served their sentences) by the ICTR. In this regard, in November 2021, the Relocation Agreement was signed between the Republic of Niger and the United Nations. What were the aims and purposes of this Agreement?

Well, the purpose from the Mechanism’s point of view was to solve the problem that had been going on, where there were people who were acquitted or finished serving their sentences in Arusha, who couldn't go to any country to re-join their family, or otherwise. And, they were stuck in Arusha for a decade in some cases. So, this was a long-standing problem.

The Mechanism recognises its obligation to try to help the men be resettled – and also,

they were paying for the house that the people were living in and their subsistence there. They wanted to find a way to end that expense as they were winding down to an institution with a smaller budget. They looked for a way to find a country that would agree to take them in and ultimately, they reached an agreement with Niger –under which Niger would give the men resident status so that they could work and support themselves. The Mechanism would also give them a housing for a year to get them started and a $10,000 payment for their subsistence. They would then presumably have the right to work and support themselves. So while that wasn't ideal for my client, or the others, who preferred to go somewhere where they had family, it was better than staying in Arusha where the future was uncertain as their legal status prevented them from working and getting travel documents. As a result, they agreed and pursuant to that the location agreement they moved to Niger on the 5th of December of 2021.

2.In December 2021, the authorities in Niger issued an Expulsion Order requiring the eight individuals who were relocated there, to leave the country. Can you briefly outline the timeline of events that have occurred in Niger from the issuance of this Order to the current situation today?

On the 23rd of December, some policemen came to the residence where our clients were living and took their residence documents back and then were posted outside. Our clients weren't allowed to leave from that point and they were wondering what was going on. Finally, on the 27th, they received this Expulsion Order that said they had seven days to leave the country.

They contacted their lawyers; we contacted the Registrar, who contacted the Government in Niger who found that they were quite adamant on expelling the men. So, we went to court and after some time, the government of Niger agreed that they would not execute the Expulsion Order, but that they would continue to detain the men under house arrest and would continue to retain their residence documents. This situation, in early January of 2022, has remained as a status quo since then.

The Registrar visitied in October of 2022 to meet with the officials of Niger and despite his efforts, he was unable to convince them to obey the relocation agreement. He was also unable to convince them to take the policeman out of their yard to let them have some freedom of movement.

Thus far, the UN has not been able to find them in other country and they remain detained in the residence, where they have been since December 2021.

3. What is the significance of these events with respect to the existing international obligations under the Relocation Agreement?

Unfortunately, the Mechanism judges have determined that they have no power to order a state to take these men. They can't find another state – except through the diplomatic process, which has so far not yielded any results. But the Mechanism also recognised its obligation for a continuing duty of care, so they have paid the rent for another year on the house. The judge also ordered that another $10,000 was given each of the men for subsistence and utilities during the coming year.

4.There have been claims made pertaining to potential infringements of the eight relocated persons’ fundamental rights; could you illustrate the ways in which human rights have been implicated in the ongoing situation in Niger?

There are two main human rights implications right now.

The placing of these men under house arrest infringes on their right to liberty; they cannot go anywhere. The fact that it was done without the commission of any offence on their part, infringes on their right against arbitrary detention.

5.One of the ‘relocated persons’ is your client François-Xavier Nzuwonemeye – a former military commander acquitted by the ICTR in 2014. Which legal remedy have you sought to obtain on his behalf?

Well, I'm pretty much out of legal remedies to tell you the truth.

Over the past five years, while he was in Arusha, I tried to find a way to reunite my client with his family. He was arrested in France and transferred to the ICTR. Since his arrest and his acquittal at the IC TR, his family are all French citizens now and he has an international human right to the enjoyment of family life. So, in August of 2018 – even before the Niger agreement –we filed a motion for an order asking the Mechanism to require the Government of France to take him back, following his acquittal. This motion was denied by a single judge and then we appealed it to the Mechanism’s Appeals Chamber. In 2019, the Appeals Chamber held the Mechanism lacked the power – under article 28 of its Statute – to order France to accept an acquitted person onto its territory. In this decision, they also encouraged France to reconsider its denial of his request to be allowed to return. So, we then made a fresh application for a French visa, saying that even if the Mechanism can't force them to, they are being encouraged to, and ought to

let him come back as a matter of comity to the UN. This was, again, denied with the reason that despite his acquittal, he was still considered a war criminal.

We were blocked from having him go back to France and then the Niger Agreement came up and he went to Niger.

Once I learned about the Expulsion Order there, I filed a motion– to the government of Niger – with the Mechanism, asking them to order Niger not to expel my client.

The single judge, Joseph Masanche, granted that motion on December 31st and ordered Niger not to expel him. After Niger refused to revoke the Expulsion Order and they continue to detain the men under house arrest, I asked that they be reported to the UN Security Council for violation of the judge's Order. That is the remedy for when a state doesn't cooperate with the Mechanism.

I asked them to do that, but Judge Masanche instead ordered they be taken back to Arusha and unfortunately, the government of Tanzania refused to take them back so that didn't work. Then, I asked Judge Masanche to have an oral hearing on my request to report Niger to the Security Council and bring my client to The Hague for that hearing. This would basically solve his problem because under the Headquarters Agreement between the UN and the Netherlands, the Netherlands was

obligated to allow a person on its territory for a hearing or, if their presence was needed, at the seat of the Mechanism. Judge Masanche denied that motion – saying that, the only remedy we had left were diplomatic negotiations between Niger and the UN, under the Relocation Agreement. I appealed that decision to the Appeals Chamber; I asked them to hold a status conference or an oral hearing to bring my client to The Hague, which would have also ended the problem. The Appeals Chamber refused to do that. They rejected the appeal, and they agreed with Judge Masanche that there was no judicial remedy for Niger’s breach of the Relocation Agreement.

I then asked the Mechanism’s Registrar to certify that my client's presence at the seat of the mechanism in The Hague was necessary to end his unlawful detention and to bring him to The Hague on that basis, irrespective of any hearing, and he declined to do that. I also appealed to the President of the Mechanism, under her power to review the administrative decisions of the Registrar, but she too upheld the Registrar's decision, saying it was not appropriate to use the Headquarters Agreement under those circumstances.

In the meantime, I tried, myself, to find a country that will take my client – in addition to what the Registrar was doing. I contacted representatives from 14 countries

where I had contacts, or where my colleagues had contacts, to try to find someone who would take my client. The Registrar also contacted about 30 countries, but nobody was willing to take him. So, as a last resort, I went back to the Appeals Chamber and asked them to reconsider their 2019 decision, in which they held that they didn't have the power to order France to accept him. I pointed out that the circumstances had changed; my client is now detained in Niger with no prospects for resettlement, and I asked they exercise their power to order France to take him back to rejoin his family. In November of 2022, the Appeals Chamber denied the motion and said it was powerless to order a country to resettle an acquitted person – even if that country had transferred him to the Tribunal.

Those are all the things I did – so, as of right now, I can't think of anything more legally that I can do for my client.

6.In 2019, the MICT stated that “the international community's commitment to impunity should not end with rendering justice to those convicted of international crimes but must necessarily accommodate those who have completed their sentences or have been acquitted of such crimes”. With regards to individuals who have been acquitted under international law, such as your client, what changes do you

hope to see within the international legal community in the future?

I think the best solution for this problem, not only now for the men in Niger, but in the future, is to establish a principle that a country who transfers a person to the Mechanism, or to any international court or tribunal, is obligated to take them back. That seems to be a pretty logical thing to do. So, to have a system in place where if you are going to arrest someone and bring them and transfer them to Arusha – or wherever else, you have to understand that eventually, if the person is acquitted or released, he will come back to your country and will be in the same immigration status as he was before.

So, with a country like France, as we've been discussing, they are free to process his immigration application for asylum. If they want to deny it and deport him to Rwanda, they could do that. He just wants to be back in the same situation that he was in when he was first arrested and transferred to the Tribunal. So, if the Mechanism’s Statute was amended to allow them the power to order a state to take them back – or, in the future when they set up Tribunals and Mechanisms, they include a provision that obligates the country that transfers a person to take them back upon their release and acquittal – then, I don't think this problem would come up in the future.

Thank you for shedding light on the situation of the detainees in Niger. Thank you for your interest!

Section II: Case Notes

Surveillance and national security have been closely connected since, at least, the beginning of this century. Ever since 9/11 and subsequent terrorist bombings in Madrid and London, the European Union has collaborated to expand its counterterrorism legal framework and strengthen territory invigilance between Member States.1 Numerous initiatives have been proposed by the Union to establish mechanisms that could allow public authorities to effectively prevent and fight terrorist actions.2 Most recently, the Passenger Name Record (PNR) Directive was introduced by the Parliament and the Council as a tool to legitimise the collection and processing of passengers’ data by air carriers, from flights within and outside EU territory.3

On the argument that such a surveillance regime would allow public authorities to identify terrorists and criminal networks within the EU, the PNR Directive was much welcomed in both political and social scenes as a new and important piece of the Union’s counterterrorism strategy.4 However, whereas most Member States now justify the collection of passengers’ personal data as necessary for the enforcement of national security, this very same practice divides opinions across the EU,5 especially in regard to its compatibility with fundamental rights guaranteed by the Charter of Fundamental Rights of the European Union (Charter).6

With this in mind, the present case note will analyse the ruling of the Court of Justice of the European Union (CJEU) in Case C-817/19 (henceforth, ‘ruling’ or ‘judgement’),7 in which the interpretation and validity of the PNR Directive were assessed, in contrast with the

1 Council of the European Union, 'The EU's response for terrorism' (2022) <https://www.consilium.europa.eu/en/policies/fight-against-terrorism/> accessed 8 October 2022.

2 Council Framework Decision 2002/475/JHA on combating terrorism [2002] OJ L 164; Official Journal of the European Union, ‘The Stockholm Program — An open and secure Europe serving and protecting citizens' (2010) 53 <https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=OJ:C:2010:115:FULL&from=en> accessed 8 October 2022; Council Directive 2004/82/EC on the obligation of carriers to communicate passenger data on the obligation of carriers to communicate passenger data [2004] OJ L 261/24.

3 Council Directive 2016/681/EC on the use of passenger name record (PNR) data for the prevention, detection, investigation and prosecution of terrorist offences and serious crime [2016] OJ L 119.

4 Council of the European Union, 'The EU's response for terrorism' (2022) <https://www.consilium.europa.eu/en/policies/fight-against-terrorism/> accessed 8 October 2022.

5 Commission, 'A European strategy for data' (Communication) COM (2020) 66 final; Directive 2002/58/EC of the European Parliament and of the Council concerning the processing of personal data and the protection of privacy in the electronic communications sector [2002] OJ L 201.

6 Charter of Fundamental Rights of the European Union [2000] OJ C 364/3.

7 Case C-817/19, Ligue des droits humains v Conseil des Ministres [2022] ECLI:EU:C:2022:491.

fundamental rights to (i) respect for private and family life and (ii) protection of personal data. Given the length of the judgment as well as the Advocate General (AG) Opinion, this case note does not examine all of the ten questions referred to in the preliminary ruling. Instead, it focuses on questions two, three, four and six, insofar as the Court analyses the aforementioned fundamental rights – as opposed to the interpretation and validity of the PNR Directive. As such, the question examined herein is: how does the processing of air passengers' personal data align with Articles 7 and 8 of the European Charter of Fundamental Rights, in the light of the Case C-817/19 ruling?

2. The Background to Case C-817/19 and the PNR Directive

In the same year that the General Data Protection Regulation (GDPR)8 was adopted, the Parliament and the Council passed the PNR Directive, providing a legal basis for the collection, processing, transfer, and storage of air passengers’ data (henceforth, ‘PNR data management’ or ‘PNR data’) in flights carried out within and outside EU territory. Such a monitoring regime followed the occurrence of two terrorist attacks targeting the EU in less than a year time –namely, the Paris and Brussels bombings in 2015 and 2016, respectively. The short interval between these events alerted the authorities of the need to further integrate Europe’s surveillance network, as well as to enhance Member States’ capabilities of counterterrorism.9

In this sense, the adoption of the PNR Directive served not only as a legal basis for the collection of air passengers’ personal data, but more importantly as a cooperation tool between Member States, which could then collaborate, inter alia, in the collection, processing and storage of suspicious data.

Currently, almost all Member States have transposed the PNR Directive into their national legislation (with the exception of Denmark).10 Among those that adopted the PNR surveillance system, only Germany and Belgium have referred preliminary questions to

8 Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data [2016] OJ L 119/1.

9 Council of the European Union, 'The EU's response for terrorism' (2022) <https://www.consilium.europa.eu/en/policies/fight-against-terrorism/history-fight-against-terrorism> accessed 22 January 2023.

10 Council Directive 2016/681/EC on the use of passenger name record (PNR) data for the prevention, detection, investigation and prosecution of terrorist offences and serious crime [2016] OJ L 119.

Court.11 Insofar as Case C-817/19 is concerned, the Kingdom of Belgium transposed the PNR Directive into its national legislation through the Loi Relative au Traitement des Données des Passagers (henceforth, ‘Federal Act’); this confirmed the legality of the use of PNR data management where it is to: (i) improve the prevention, detection, investigation and prosecution of criminal offences or the enforcement of criminal penalties; (ii) support the tasks of the intelligence and security services; and (iii) improve external border controls and combating illegal immigration.12

Upon entry into force, the validity of the Federal Act was challenged in front of Belgium’s Cour Constitutionnelle (henceforth, ‘Constitutional Court’) by: Ligue des Droits Humains. This non-profit organisation argued for the annulment of the Federal Act for allegedly hindering three fundamental rights – namely, the right: (i) to respect for private life, (ii) to the protection of personal data, as well as (iii) to the free movement of persons.13 In response, the Constitutional Court delivered its decision through Judgment 135/2019 and in envisaging doubts on fundamental aspects of the PNR Directive upon which the Belgian legislation was transposed, referred ten preliminary questions to the Court of Justice.14

The preliminary ruling procedure questioned both the validity and interpretation of the PNR Directive before the Court, mainly aiming to clarify: (i) the compatibility of the PNR Directive with the fundamental rights to respect for private life, protection of personal data and free movement of persons; (ii) to which extent interferences with these fundamental rights could be justified on the grounds provided by the Directive; and (iii) the interpretation of otherwise broad concepts contained in the PNR Directive and its Annexes, in order to ensure the monitoring of solely suspected individuals, avoiding general and groundless surveillance of society.15

11 Case C-222/20, OC v Bundesrepublik Deutschland [2020] OJ C 279; Case C-215/20, JV v Bundesrepublik Deutschland [2020] OJ C 279; Case C-817/19, Ligue des droits humains v Conseil des Ministres [2022] ECLI:EU:C:2022:491.

12 Loi du 25 décembre 2016 relative au traitement des données des passagers

13 Case C-817/19, Ligue des droits humains v Conseil des Ministres [2022] ECLI:EU:C:2022:491, Opinion of AG Pitruzzella; Charter of Fundamental Rights of the European Union [2000] OJ C 364/3, arts 7, 8, 22, 52(1); Consolidated Version of the Treaty on European Union [2008] OJ C115/13, arts 3(2), 45.

14 Case C-817/19, Ligue des droits humains v Conseil des ministres [2020] OJ C 36.

15 Case C-817/19, Ligue des droits humains v Conseil des Ministres [2022] ECLI:EU:C:2022:49; The preliminary questions specifically request for the definition of “PNR Data” and “Passenger”; interpretation of “PNR data processing system” and “competence and authority of the PIU”; as well the delimitation of the standard five-year data retention period. See Ibid. B19, B30-47, B54, and B60-70.

3. Advocate General Pitruzella on the transfer of PNR data

Regarding preliminary questions two, three, four and six, the Opinion of AG Pitruzella and the Court’s ruling diverge in mainly one regard: differentiating between the generalised transfer and the generalised retention of PNR data. Whilst both the AG and the Court consider retention of PNR data to be a generalised and illegal retention of air passengers’ data – which may only be justified on the presence of serious threat to the security of the Member States that is shown to be genuine and present or foreseeable, and on condition that the retention is limited to the period strictly necessary –16 the transfer of PNR data was a controversial point.

The Advocate General, in contrast to the Court, considers such a transfer compatible with the fundamental rights to respect for private life and protection of personal data, even when performed in a generalised and untargeted manner. In his Opinion, the AG believes that “whilst admittedly the system established by the PNR Directive concerns all air passengers indiscriminately (...) there is an objective link between air transport and threats to public security”.17 Furthermore, AG Pitruzella argues that the investigative premise of a reasonable suspicion is less relevant in the context of PNR Directive, since air passengers entering or leaving the European Union are already required to undergo security checks, and also due to the small set of exhaustively defined items of PNR data allowed for collection by the PNR Directive.18

In other words, the AG asserts that, based on the definition of PNR data, the PNR Directive allows for the generalised and untargeted transfer of data from any individual using air carrier services, regardless of an objective indication that the data subject may pose a risk to public security. Nevertheless, he accredits this as compatible with the fundamental rights at stake, stating that the rights enshrined in Articles 7 and 8 of the Charter are not absolute and must be evaluated in light of their purpose in society.19 Therefore, the Opinion of Advocate General Pitruzella is for the validity of the generalised retention of PNR data, apropos of

16 Case C-817/19, Ligue des droits humains v Conseil des Ministres [2022] ECLI:EU:C:2022: 491, paras 171175.

17 Case C-817/19, Ligue des droits humains v Conseil des Ministres [2022] ECLI:EU:C:2022:491, Opinion of AG Pitruzzella, paras 197, 203

18 ibid, paras 200, 203

19 ibid, para 65.

satisfying the “conditions of clarity and precision laid down by the Charter”, and rightfully balancing the Union’s interests against the fundamental rights in question.20

4. The Court’s Approach to Fundamental Rights and the PNR Directive

In its judgment, the Court acknowledged the existence of interferences between the fundamental rights in question and provisions of the PNR Directive on the transfer and the retention of PNR data, when it stated that:

the PNR Directive entails undeniably serious interferences with the rights guaranteed in Articles 7 and 8 of the Charter, in so far, inter alia, as it seeks to introduce a surveillance regime that is continuous, untargeted and systematic, including the automated assessment of the personal data of everyone using air transport services.21

Nonetheless, in following the approach developed in the EU-Canada PNR Agreement22 the Court pondered the proportional character of the fundamental rights to respect for private life and personal data, pointing at the need to first observe them apropos of their function in society.23 It follows that, whereas the PNR Directive entailed interferences with the fundamental rights in question, in turn not absolute by nature, the Court ruled three cumulative and obligatory conditions for the legality of such interferences , aiming at securing necessity and proportionality.

Firstly, the transfer, processing and retention of PNR data is to be limited to what is strictly necessary,24 and should be performed for the exclusive purpose of combating terrorist offences and serious crime within Member States' territory.25 Secondly, the limitation to the exercise of those rights is to be provided for by the law that requires or permits the interference, which should also define – with clarity and precision – the extent to which such fundamental

20 ibid, paras 66, 105-109, 125, 142, 158; On the grounds that (i) the nature of the data collected aligns with the purpose of the norm to defend national security; (ii) this same purpose is recognised by the EU as a general interest of the Union; and (iii) that Annex I specifically lists the data to be collected from passengers by air carriers, satisfying the conditions of clarity and precision laid down by the Charter

21 Case C-817/19, Ligue des droits humains v Conseil des Ministres [2022] ECLI:EU:C:2022:491, para 111.

22Opinion 1/15, EU-Canada PNR Agreement, 26 July 2017, ECLI:EU:C:2017:592, para 136; Council Decision 2006/230/EC on the conclusion of an Agreement between the European Community and the Government of Canada on the processing of API/PNR data [2006] OJ L 82.

23 Case C-817/19, Ligue des droits humains v Conseil des Ministres [2022] ECLI:EU:C:2022:491, para 112.

24 ibid, paras 89, 90, 115, 117, 120, 125.

25 ibid, paras 115, 117, 140, 299.

rights will be hindered.26 Finally, the authorities responsible for the PNR data management should refrain from utilising self-learning technologies during the PNR data assessment, in a way that would characterise general and groundless surveillance.27

In this sense, the Court – in comparison to the AG – adopted a stricter interpretation of the provisions contained in the PNR Directive, particularly by refuting the generalised transfer equally to the generalised retention of PNR data. The ruling did impose conditions and restrictions on the use of PNR data that aimed at safeguarding necessity and proportionality on the limitation of fundamental rights. However, since the assessment of the norm “revealed nothing capable of affecting the validity of the said directive",28 the Court refrained from declaring invalidity.

5. Conclusion

The PNR Directive provides a framework of useful tools to monitor and collect passengers’ data from flights carried out within and outside EU territory, allowing Member States to improve the detection, monitoring and assessment of individuals posing a threat to national security. The use of PNR data in the EU counterterrorism strategy has been proved to be of immense value, being described by the European Commission and the United Nation Security Council as “a vital tool of strategic importance in Europe’s common response to terrorism and serious crime”29. The Court’s approach to the PNR Directive, in light of fundamental rights, balanced the notions of liberty and security to underpin the use of passenger data as a tool in the EU counterterrorism strategy – even upon the interferences that this entails in the exercise of the fundamental rights to respect for private life and protection of personal data. The ruling of the Court of Justice weighed such notions when elaborating on the legitimacy of such restrictions to the exercise of fundamental rights, arguing for the proportional character of these rights over the absolute nature. In the same way, the Court attached the surveillance of individuals to the investigative premise of reasonable suspicion, securing the observance of necessity and proportionality. Additionally, it balanced security and liberty as opposite interests

26 ibid, paras 113, 114.

27 ibid, paras 102, 105, 106, 111.

28 ibid, para 228.

29 Commission, ‘EU Security Union Strategy’ (Communication) COM (2020) 605 final; UNSC Res 2396 (21 December 2017) UN Doc S/RES/2396, para 12.

when determining the duty of Member States to interpret norms providing tools for the enforcement of national security in a strict manner, aiming at avoiding generalised surveillance.

The main issue posed by the preliminary questions introduced in this case note was an optimal balance between liberty and security. This challenge was identified by the Court and the AG in attempting to address general interests and individual needs simultaneously, while also ensuring the respect of fundamental rights. The judgment reached an answer when considering the absolute character of the fundamental rights to respect for private life and protection of personal data, stating those “are not absolute rights, but must be considered in relation to their function in society”30. The ruling concluded that restrictions or limitations to the exercise of the fundamental rights in question, arising from the PNR Directive or laws that from there derive, can only be justified if: (i) such a norm observes the criteria of clarity and precision laid down by the Charter in its Article 52(1), as well as the principles of necessity and proportionality, and provided that (ii) the nature and extent of such restrictions or limitations to fundamental rights, is attained to what is strictly necessary for the efficacy of the norm that allows or requires such interference.

The Advocate General, although to a certain extent diverged from the Court of Justice, duly emphasised as an onus of the EU legislature the observance and compliance of the conditions above mentioned, in practices with the potential to hinder the exercise of fundamental rights. In addition, the AG clarifies that where a directive is chosen as the instrument for regulating the use of PNR data, the EU legislature cannot delegate to the Member States the task of determining its essential components when transposing it to national law – as such onus inherently lies with the EU legislative act originating the interferences with fundamental rights.31 In light of this, the judgment delivered in Case C-817/19 has been evermore regarded as a ‘landmark ruling’ for underpinning objectives of general interest behind the PNR Directive against individual rights of the data subjects concerned, pencilling first-hand parameters in the EU’s regime of collection and processing of passenger data in line with fundamental rights.32

30 Case C-817/19, Ligue des droits humains v Conseil des Ministres [2022] ECLI:EU:C:2022:491, para 112.

31Case C-817/19, Ligue des droits humains v Conseil des Ministres [2022] ECLI:EU:C:2022:491, Opinion of AG Pitruzzella, para 142.

32 Thomas Wahl, ‘CJEU: PNR Directive Valid if Limited to the “Strictly Necessary”’ (4 August 2022)

<https://eucrim.eu/news/cjeu-pnr-directive-valid-if-limited-to-the-strictly-necessary/> accessed 12 October 2022.

On the 22nd of March 2022, the European Court of Justice (ECJ) clarified its stance on the non bis in idem principle in two rulings: C-151/20 Nordzucker1 and C-117/20 Bpost.2 While both rulings shed light on how to apply the principle, the former is the subject of this case note. The request for a preliminary ruling from the Austrian Supreme Court (the Oberster Gerichtshof) in Nordzucker concerned the interpretation of article 50 of the Charter of Fundamental Rights of the EU (‘the Charter’).3 Enshrined in this provision is the non bis in idem principle which prohibits a duplication of criminal proceedings and penalties for the same conduct and against the same person.

The case before the Austrian Supreme Court dealt with an appeal by the Austrian Federal Competition Authority (the Bundeswettbewerbsbehörde), where the Authority sought a declaration that German sugar producer Nordzucker had infringed EU laws on the prohibition of cartels (article 101 TFEU)4 and the corresponding Austrian competition rules. The Competition Authority also sought the imposition of a fine on another German sugar producer Südzucker for the same infringement. The proceedings were based mainly on a telephone conversation between the sales directors of Nordzucker and Südzucker, where additional deliveries of sugar to individual Austrian customers by a Nordzucker subsidiary were discussed, as well as the consequences of this for the German market. The German authority declared that the two undertakings had infringed both EU competition law and German competition law and imposed a financial penalty of €195.5 million on Südzucker.5

The Court held that the non bis in idem principle does not preclude an undertaking from having proceedings brought against it and being fined for an infringement by a national competition authority of a Member State, on the basis of conduct which has had an anticompetitive object or effect in the territory of that Member State, even though that conduct has already been referred to, by a competition authority of another Member State, in a final

1 C-151/20 Bundeswettbewerbsbehörde v Nordzucker AG and others ECLI:EU:C:2022:203.

2 C-117/20 bpost SA v Autorité belge de la concurrence ECLI:EU:C:2022:202.

3 Charter of Fundamental Rights of the European Union [2000] OJ C 364/3.

4 Consolidated version of the Treaty on the Functioning of the European Union [2012] OJ C 326.

5 Court of Justice of the European Union, ‘Duplication of proceedings and penalties of a criminal nature in competition law: the Court specifies the protection against double jeopardy provided by EU law’ (Press release, 22 March 2022) <https://curia.europa.eu/jcms/upload/docs/application/pdf/2022-03/cp220049en.pdf> accessed 15 October 2022.

decision.6 The Court notes in this regard, however, that that decision must not be based upon a finding of an anticompetitive object or effect in the territory of the first Member State. In such a scenario, the second competition authority – which undertakes proceedings in relation to that object or effect – infringes the prohibition against double jeopardy.7

2. The Court’s Approach to the Non Bis In Idem Principle

The non bis in idem principle is a supranational standard that can be found in various legislation such as in article 50 of the Charter, article 4(1) of Protocol 7 of the European Convention on Human Rights (ECHR), article 14(7) of the United Nations Pact on Civil and Political Liberties and article 54 of the Convention of the Schengen Treaty.8 The material content of the principle has, however, been applied inconsistently under EU law.9 For example, in Menci, the ECJ held that overlapping proceedings may be permissible subject to conditions. In the view of the Court, a duplication of proceedings constitutes a limitation of the right enshrined in article 50 of the Charter; however, this limitation is justifiable if the conditions laid down in article 52(1) of the Charter are met.10 This provision provides that ‘any limitation on the exercise of the rights and freedoms recognised by this Charter must be provided for by law and respect the essence of those rights and freedoms. Subject to the principle of proportionality, limitations may be made only if they are necessary and genuinely meet objectives of general interest recognised by the Union or the need to protect the rights and freedoms of others.’11

The Court attempts in Nordzucker to delve deeper into the non bis in idem principle. The ECJ repeated its definition of the principle by dividing its component parts. The bis condition requires that there exists a prior final decision and the idem condition requires that the same facts are covered by both the previous and subsequent decisions or proceedings.12 The application of the non bis in idem principle is thus, according to the Court, subject to two conditions.

6 Court of Justice (n 5).

7 Court of Justice (n 5).

8 Zanda Romata & Charles Whiddington, ‘Guidance by the Court of Justice of the European Union on the Protection Against Double Jeopardy in Competition Law Cases’ (Steptoe, 26 April 2022)

<https://www.steptoeantitrustblog.com/2022/04/guidance-by-the-court-of-justice-of-the-european-union-on-theprotection-against-double-jeopardy-in-competition-law-cases/> accessed 15 October 2022.

9 Romata & Whiddington (n 8).

10 C-524/15 Menci [2018] ECLI:EU:C:2018:197, paras 39, 40.

11 Charter of Fundamental Rights (n 3), art 52(1).

12 Nordzucker (n 1), paras 33, 34.

2.1. The Bis Condition

The Court makes sure to emphasise the importance of the bis condition in Nordzucker by providing that the protection afforded under the non bis in idem principle, as a whole, would be inapplicable to cases in which the first final decision has not yet been adopted and a ruling has not yet been made on the merits.13 The Court clarifies here that, for the bis condition to be met, a decision must be final. In the words of the Court: ‘it is necessary not only for a decision to have become final, but also for it to have been given after a determination had been made as to the merits of the case.’14 However, this approach arguably puts undertakings in a difficult position as it risks narrowing the scope of protection too severely – particularly for undertakings that are subject to many overlapping proceedings that often play out over several years.

2.2. The Idem Condition

According to the Court’s jurisprudence, the relevant criterion for assessing the existence of the same offence is identification of the material facts. This is understood as the existence of a set of concrete circumstances which are inextricably linked together, and which have resulted in the final acquittal or conviction of the person concerned.15 Therefore, article 50 of the Charter prohibits the imposition, with respect to identical facts, of several criminal penalties as a result of different proceedings brought for those purposes.16

Following Advocate General Bobek’s opinion, the ECJ confirmed that different legal classifications of the facts and protected legal interest in national law are irrelevant in the determination of the idem condition. The scope of protection afforded by the principle ought not to vary between the Member States.17 In this vein, the ECJ ruled that if two national competition authorities were to take proceedings against, and penalise, the same facts in order to ensure compliance with the prohibition on cartels under article 101 TFEU and the corresponding provisions of their respective national law, those two authorities would pursue the same objective of general interest of ensuring that competition in the internal market is not

13 Nordzucker (n 1), para 34.

14 Nordzucker (n 1), para 34.

15 Nordzucker (n 1), para 38.

16 Nordzucker (n 1), para 38.

17 C-151/20 Bundeswettbewerbsbehörde v Nordzucker AG and others ECLI:EU:C:2022:203, Opinion of AG Bobek, para 58.

distorted by agreements, decisions of associations of undertakings or anticompetitive concerted practices.18 The Court maintains that in those circumstances, it must be held that a duplication of proceedings and penalties, where those proceedings and penalties do not pursue complementary aims relating to different aspects of the same conduct, cannot in all events be justified under article 52(1) of the Charter.19 Furthermore, the Court highlights the aspects of unlawful conduct to be considered by way of reference to the Menci case.20 The Court points to the Engel criteria, as developed by the ECtHR, as the relevant factors to be considered in an assessment of unlawful conduct. These criteria are: the legal classification of the offence under national law, the nature of the offence, and the nature and intensity or degree of severity of the penalty imposed on the offender.21 As such, the protection afforded by the non bis in idem principle would preclude a second investigation - unless the authorities were to pursue complementary aims having as their object different aspects of the same conduct.22

3. Advocate General Bobek on the Idem Condition

The exact content of the idem condition has been controversial, as the Court has often interpreted its application differently depending on whether the principle was to be applied in the field of competition law or elsewhere. Advocate Generals Bobek and Campos SánchezBordona outline two different approaches to the idem condition in their opinions on Nordzucker and Menci. The first variation of the idem condition is the idem factum approach. According to this construction, the idem condition is satisfied if the two proceedings concern the same person and facts, irrespective of the legal characterisation of the facts. This approach promotes a broad interpretation of the idem condition by requiring only the identity of the offender and the facts.23 The second variation is the idem crimen approach. Under this heading, the idem condition is satisfied when both proceedings cover the same person, facts and offence. It is this final branch that is typically regarded as the protected legal interest to be considered. This formulation

18 Nordzucker (n 1), para 56.

19 Nordzucker (n 1), para 57.

20 Menci (n 10), para 44.

21 Menci (n 10), para 44.

22 Patrick Harrison et al., ‘Ne Bis in Idem: The Final Word?’ (Kluwer Competition Law Blog, 7 April 2022) <http://competitionlawblog.kluwercompetitionlaw.com/2022/04/07/ne-bis-in-idem-the-final-word/> accessed 15 October 2022.

23 C-524/15 Menci [2018] ECLI:EU:C:2018:197, Opinion of AG Campos Sánchez-Bordona, para 100; Dimitrios Katsifis, ‘Ne bis in idem and the DMA: the CJEU’s judgments in bpost and Nordzucker – Part I’ (The Platform Law Blog, 28 March 2022) <https://theplatformlaw.blog/2022/03/28/ne-bis-in-idem-and-the-dma-thecjeus-judgments-in-bpost-and-nordzucker-part-i/> accessed 15 October 2022.

advocates for a narrow scope of interpretation as it necessitates the identity of the offender, facts and protected legal interest.24

Advocate General Bobek proposed in Bpost and Nordzucker to adopt a unified idem test encompassing both idem factum and idem crimen. 25 The Advocate General sought to generalise the idem crimen approach which had been exclusively used in competition law cases up until Nordzucker. In his opinion, an idem situation could only exist when the two enforcement actions at stake aim to protect the same legal interest.26 The preferred approach to the idem condition in EU competition cases pre-Nordzucker appears to have been the idem crimen approach. However, the Court seems to have departed from this choice of approach in Nordzucker. In other cases, the Court has adopted the idem factum variation. This fragmented approach has long been the subject of criticism by Advocate Generals and commentators alike.27 Thus, contrary to the suggestions of the Advocate General, the ECJ did not follow the proposed unified approach. Instead, it opted for an idem factum approach and only allowed the protection of legal interests to be invoked as part of an ex-post proportionality assessment under article 52(1) of the Charter, after non bis in idem had been established.28

4. The View of the ECJ on Idem

In Nordzucker, the Court held – regarding the identification of the relevant facts – that the question of whether undertakings have adopted conduct having as its object or effect the prevention, restriction or distortion of competition cannot be assessed in the abstract. Rather, this must be examined with reference to the territory and the product market in which the conduct in question had such an object or effect, and to the period during which the conduct in question had such an object or effect.29 Thus, the referring Austrian Court had to assess whether the German competition authority sought to penalise the anticompetitive cartel conduct in Austria, as opposed to Germany. If not, then the Austrian proceedings could not be said to relate to the same facts, hence not triggering the non bis in idem principle. If answered in the affirmative however, then the duplication of proceedings would amount to a limitation of the

24 Menci Opinion (n 23), para 100; Katsifis (n 23).

25 Nordzucker Opinion (n 17), para 39.

26 Pieter van Cleynenbruegel, ‘BPost and Nordzucker: Searching for the Essence of Ne Bis in Idem in European Union Law’ (2022) Vol 18 European Constitutional Law Review 357, 360.

27 Katsifis (n 23).

28 Van Cleynenbruegel (n 26) 361.

29 Nordzucker (n 1), para 41.

right enshrined in article 50 of the Charter.30 In such a case, it would be necessary to examine whether such a limitation could be justified based on article 52(1) of the Charter.31 The Court did, however, clarify that a Member State is not required to limit its prosecution to the effects produced by certain behaviour on its own territory.32 In the case of Nordzucker, the facts prosecuted in different territories would be similar and not identical, as they did not concern the same territory affected. Consequently, the same substantive market partitioning behaviour could give rise to sanctions in both Germany and Austria, if competition authorities in those states limit their enforcement activities to the effects produced on their own territory.33

It follows that the ECJ has departed from its earlier stance on the application of the non bis in idem principle in competition law cases and has decided that the legal classification under national law of the protected legal interest and accompanying facts are no longer relevant for the purposes of establishing the existence of idem 34 Therefore, the applicability of the non bis in idem principle in transnational situations is somewhat limited. If a second procedure concerns the same behaviour but seeks to address its effects on a different territory than the ones covered by the first procedure, the identity of material facts condition would not seem to be met and no non bis in idem protection can be offered.35 Consequently, this line of reasoning in Nordzucker appears to serve as an invitation for Member States to curtail the territorial effects of their enforcement activities to avoid allegations of non bis in idem.

The Court thus concluded on the idem question that such a limitation is unjustifiable under article 52(1) of the Charter as the proceedings in Austria and Germany did not pursue complementary aims.36 Thus, the application of provisions of national competition law cannot lead to a different outcome from that which would result from applying article 101(1) TFEU.37 In summary, the Court concluded that proceedings brought by two national competition authorities for the prohibition of anticompetitive agreements pursue the same legal interest. While this does not trigger the non bis in idem principle within the meaning of the Court’s idem

30 Katsifis (n 23).

31 Katsifis (n 23).

32 Nordzucker (n 1), para 41.

33 Van Cleynenbruegel (n 26) 362.

34 Nordzucker (n 1), para 41.

35 Van Cleynenbruegel (n 26) 365.

36 Nordzucker (n 1), paras 57, 58.

37 Nordzucker (n 1), para 55.

factum approach, it means that a duplication of such proceedings against the same person for the same facts cannot be justified per article 52(1) of the Charter.38

5. Conflict With Fundamental Rights

The ruling in Nordzucker raises interesting questions about the interplay of the enforcement of EU law with fundamental rights, especially article 7 of the Charter regarding the right to private life. While the Court made clear that the scope of the protection conferred by article 50 of the Charter cannot vary from one Member State to another,39 the implication of this – coupled with the Court’s broad interpretation of the non bis in idem principle – is that the principle is to be applied indiscriminately across all policy areas transcending the borders of national jurisdictions.40 The broad formulation of the idem condition shifts the focus to the justificatory mechanism in article 52(1) of the Charter. An interference with the principle can thus be justified only if the conditions in article 52(1) are met. On the one hand, the Court’s approach, in the context of EU competition law, offers undertakings a heightened level of protection against multiple and simultaneous enforcement actions. A corresponding increased level of mutual exchange of information and coordination among Member States will contribute to this end but will also require the sharing of personal data across jurisdictions. Whether the Court’s new approach to the non bis in idem principle will pay dividends and offer a heightened level of legal protection, depends largely on the willingness of the national authorities to cooperate in the manner proposed by the Advocate General in Nordzucker.41 The strictness of the Court in enforcing this standard through their future judgements will be a key driving force behind the effective functioning of this new understanding of the non bis in idem principle, particularly in already harmonised areas of EU law.

Questions remain for national courts, however. Chief among these is the question of how extensive the exchange of information between national authorities must be to preclude a finding of a violation of article 50 of the Charter. If indeed the scope of protection of article 50 is not to vary between Member States, important clarifications are required from the ECJ to

38 Katsifis (n 23).

39 Nordzucker (n 1), para 39.

40 Michiel Luchtman, ‘The CJEU judgments in C-117/20 bpost and C-151/20 Nordzucker: Fundamental rights as a vehicle for hybrid enforcement mechanisms?’ (Renforce Blog, 12 May 2022) <http://blog.renforce.eu/index.php/nl/2022/05/12/the-cjeu-judgments-in-c-117-20-bpost-and-c-151-20nordzucker-fundamental-rights-as-a-vehicle-for-hybrid-enforcement-mechanisms-2/> accessed 15 October 2022.

41 Nordzucker Opinion (n 17), para 45.

avoid a fragmented national approach to dissecting exchanges of information. Particularly concerning in this regard, is the fact that domestic courts are often reluctant to look beyond the specific case file that is submitted to them and to include the interactions with other procedures in their assessment.42 A potential downside to an extensive sharing of information between national authorities, which transcends concerns directly related to article 7 of the Charter, is the idea that the Court’s interpretation of the non bis in idem principle may serve to encourage national authorities to carefully construct their investigations to avoid substantively overlapping with the investigations of another, foreign, authority. Such a scenario weakens the position of undertakings and raises concerns regarding the precision and holistic version of events to be considered by each national court. Legal certainty may thus be at risk.

6. The Essence of Non Bis In Idem

The Court held that, in the context of article 52(1) of the Charter, any limitation on the exercise of the rights and freedoms recognised by that charter must be provided for by law and respect the essence of those rights and freedoms.43 The Court only tangentially touches on the question of what constitutes the essence of non bis in idem in Nordzucker. The Court held that only those proceedings that overlap on the basis of provisions that serve the same objective of general or legal interest constitute the essence of non bis in idem and are thus unjustifiable.44 Though unclear from the ruling, perhaps the most fitting interpretation of the essence of the non bis in idem principle is that only avoidance of over-punishment would constitute the essence of the principle. What qualifies as over-punishment, however, depends on the behaviour concerned and the sanctions that can be imposed. Any rule of law that would allow for over-punishment cannot therefore be justified as it would contradict the essence of the principle.

7. Conclusion

The ECJ in Nordzucker sheds light on important aspects of the application of the non bis in idem principle to EU competition law cases. The Court laid down a new application of the principle moving forward and attempted to clarify the position of national authorities investigating the same alleged infringements of EU competition rules. The judgement is

42 Luchtman (n 40).

43 Nordzucker (n 1), para 50.

44 Nordzucker (n 1), para 55; van Cleynenbruegel (n 26) 370.

notable as the ECJ ignores the advice of the Advocate General and opts for an idem factum approach to the idem branch of the non bis in idem principle.

Several concerns accompany the Court’s ruling. It remains to be seen to what extent the cooperation between the national competition authorities of the Member States interferes with the right to private life enshrined in article 7 of the Charter. Additionally, a degree of uncertainty remains regarding the extent to which the national competition authorities of the Member States ought to stay in their lanes and limit their investigations to infringements committed on their own territory.

In the end, the responsibility of determining whether the authorities infringed upon the non bis in idem principle will be for the national courts to decide. It appears that the ECJ does indeed impose some limits on authorities over encroaching in their investigations based on the same facts, yet such protection is not a blanket defence that can be relied upon by undertakings in all circumstances.45

It takes two to tango. In the present case, the Romanian government and the Constitutional Court of Romania danced, but not following the rhythm of Beethoven's Ode to Joy.

In the summer of 2021, a judge sitting in the Court of Appeal in Craiova, Romania (the referring court), found herself puzzled. To solve the case at hand, she needed to (dis)apply the national law which had two conflicting interpretations – one from the Constitutional Court of Romania (RCC) and the other from the Court of Justice of the European Union (CJEU or the Court). Unsure with how to proceed, she referred the question under the preliminary reference procedure to the CJEU. To assess the clash of the RCC and the CJEU and case C-430/21 RS,1 it is important to mention the sequence of events that led to the referral.

In 2007, together with the Treaty of Accession of Romania, the European Commission’s Decision 2006/928 (CVM) entered into force.2 This decision introduced a mechanism for monitoring the progress in accountability and efficiency of the judicial system and to fight against corruption due to the unsettled issues before Romania’s accession.3 In that manner, at least once every six months, the Commission issues reports to the European Parliament (EP) and the Council about the progress of Romania under the CVM.4 After parliamentary elections in 2016, the new government started introducing amendments to the existing judicial legislation. New reforms concerned, inter alia, a disciplinary regime for judges and the establishment of a special public prosecutor's section with exclusive competence for offences committed by judges and prosecutors.5 They were criticised by the opposition, ombudsman and general public for putting pressure on the judges and undermining their independence.6 Consequently, the Vice-President of the Commission at the time, Frans Timmermans, stated that: “Romania has not only stalled its reform process, but also re-opened

1 Case C- 430/21 RS (Effet des arrêts d’une cour constitutionnelle) [2022] ECLI:EU:C:2022:99.

2 Commission Decision 2006/928/EC establishing a mechanism for cooperation and verification of progress in Romania to address specific benchmarks in the areas of judicial reform and the fight against corruption [2006] OJ L354/56, art 3.

3 Commission Decision 2006/928/EC establishing a mechanism for cooperation and verification of progress in Romania to address specific benchmarks in the areas of judicial reform and the fight against corruption [2006] OJ L354/56, Recital 4 and Annex.

4 Commission Decision 2006/928/EC establishing a mechanism for cooperation and verification of progress in Romania to address specific benchmarks in the areas of judicial reform and the fight against corruption [2006] OJ L354/56, art 2.

5 Case C-83/19 Asociaţia "Forumul Judecătorilor din România" [2021] ECLI:EU:C:2021:393, para 48.

6 Venice Commission 116th Plenary Session of 20 October 2018 Opinion No. 942/2018 on Amendments to Law No. 303/2004 on the Statute of Judges and Prosecutors, Law No. 304/2004 on Judicial Organization, and Law No. 317/2004 on the Superior Council for Magistracy adopted by Strasbourg.

and backtracked on issues where progress was made over the past 10 years”.7 As such, the Commission affirmed that the national legislation establishing the section for the investigation of offences committed within the judicial system (SIIJ) “creates a specific concern” with respect to “the fight against corruption” and thus undermines judicial independence.8 As such extra benchmarks that Romania needed to reach were added in the CVM Report – 9 in order to remedy “the rule of law backsliding”.10

With regards to the RCC, it started deviating from its previous case law and defending the national position.11 In a March 2018 judgement, the RCC interpreted the CVM as nonlegally binding because its nature, content and duration were not interpreted by the CJEU as falling in the scope of the Treaty of Accession. Moreover, it stated that the CVM cannot be a reference provision for reviewing the constitutionality of legislative measures adopted before Romania entered the EU. The RCC concluded that “the Constitution, the fundamental law of the state… cannot cease to have binding force merely because there is a discrepancy between its provisions and European law…”.12 Unsurprisingly, this triggered a “Romanian rule of law saga” before the CJEU. Thus, sets of preliminary ruling procedures were instituted by the Romanian courts concerning the nature of the CVM, judicial reforms and case law of the RCC concerning criminal procedures regarding the newly adopted legislation such as SIIJ.13

2. Cases referred by the Romanian Courts

Firstly, in the Asociaţia Forumul Judecătorilor din România (AFJR) case, the CJEU interpreted the CVM and CVM Reports as legally binding in their entirety and falling within

7 Commission, ‘European Commission reports on progress in Romania under the Cooperation and Verification Mechanism’ (Press release, 13 November 2018)

<https://ec.europa.eu/commission/presscorner/detail/en/IP_17_4611> accessed 8 December 2022.

8 Commission, ‘Report From the Commission to the European Parliament and the Council on Progress in Romania under the Cooperation and Verification Mechanism’ (Communication) COM (2018) 851 final, 14.

9 Commission, ‘European Commission reports on progress in Romania under the Cooperation and Verification Mechanism’ (Press release, 22 October 2019)

<https://ec.europa.eu/commission/presscorner/detail/en/IP_19_6135> accessed 8 December 2022.

10 The expression ‘the Rule of Law backsliding’ was developed denoting a process which results in a systemic undermining of the key components of the rule of law such as independent and impartial courts. See Laurent Pech and Kim Lane Scheppele, ‘Illiberalism Within: Rule of Law Backsliding in the EU’ (2017) 19 Cambridge Yearbook of European Legal Studies 3, 8.

11 Decision No 2 of the Romanian Constitutional Court [2012] Monitorul Oficial no 131, and Decision No 1 519 of the Romanian Constitutional Court [2012] Monitorul Oficial no 67, where the Constitutional Court found some provisions concerning judges, prosecutors and advocates not satisfying the benchmarks put by the CVM Reports and proclaimed them unconstitutional.

12 Decision No 104 of the Romanian Constitutional Court [2018] Monitorul Oficial no 446, paras 85, 88-90.

13 Case C-83/19 Asociaţia "Forumul Judecătorilor din România" [2021] ECLI:EU:C:2021:393; Case C-357/19 Euro Box Promotion and Others [2021] ECLI:EU:C:2021:1034.

the scope of the Treaty of Accession. Moreover, the Court held that the SIIJ is contrary to EU law if it does not provide for sound administration of justice and guarantees of independence.14 Shortly after, the RCC rendered judgment No 390/2021 –15 where it strongly asserted the limitation of EU law primacy regarding the national legislation falling into the scope of the CVM. It reasoned that the CVM is not EU law, and according to the Romanian Constitution, only EU law can be applied over national legislation. Consequently, the RCC ruled that setting aside the national rule on the basis of the CVM would be contrary to the Romanian Constitution and dismissed an objection of the unconstitutionality of the legislation establishing the SIIJ.16

Secondly, in the Euro Box case, the CJEU concluded that EU law does not preclude national rules under which decisions of the RCC are binding upon ordinary courts – as long as there is a guarantee of independence from the legislature and the executive.17 After this, the RCC issued a press release and stated that the effects of the Euro Box case can occur only after the revision of the Romanian Constitution which cannot be made ex officio, but following the prescribed procedure for its change.18

Thirdly, with regards to the case at the centre of this paper, there were criminal proceedings challenging the excessive duration of that procedure, alleging abuse of the rules of procedure and the abuse of office. These offences were allegedly committed by a prosecutor and two judges, against which a prosecutor of the SIIJ instituted proceedings. Consequently, the referring court considered that in order to rule on the case at hand, it needed to examine the national legislation establishing the SIIJ which, at the time, had conflicting interpretations from the CJEU (in AFJR) and the RCC (in Decision No 390/2021). Additionally, in accordance with the national legislation, a failure of the ordinary court to comply with the judgments rendered by the RCC constitutes a disciplinary offence.19 Moreover, as the referring court mentioned, disciplinary proceedings already commenced against the national judge of the ordinary court who has found SIIJ legislation to be contrary to EU law.20

14 Case C- 430/21 RS (Effet des arrêts d’une cour constitutionnelle) [2022] ECLI:EU:C:2022:99, paras 165, 178, 185, 223

15 Decision No 390/2021 of the Constitutional Court [2021] Monitorul Oficial no 612.

16 Case C- 430/21 RS (Effet des arrêts d’une cour constitutionnelle) [2022] ECLI:EU:C:2022:99, paras 19, 20.

17 Case C-375/19 Euro Box Promotion and Others [2021] ECLI:EU:C:2021:1034, para 230.

18 Bianca Selejan-Gutan, ‘Who’s Afraid of the ,,Big Bad Court”?’ (VerfBlog, 10 January 2022) <https://verfassungsblog.de/whos-afraid-of-the-big-bad-court/> accessed 9 December 2022.

19 Case C- 430/21 RS (Effet des arrêts d’une cour constitutionnelle) [2022] ECLI:EU:C:2022:99, para 7

20 ibid, para 24.

Considering the abovementioned context, the referring court sent to the CJEU questions concerning the compatibility of the principle of independence of the judiciary with the national legislation and judicial practice, based on article 19(1) second subparagraph TEU read in conjunction with article 2 TEU and article 47 of the Charter, as follows: (1) according to which national courts have no jurisdiction to examine conformity with EU law of national provision that have been found unconstitutional by the RCC; (2) which provide for disciplinary proceedings of a national judge from the ordinary court for failure to comply with the decision of the RCC where there is primacy of EU law over such decisions; (3) which, in relation to a complaint in the present case, precludes a national judge from applying the case law of the CJEU in criminal proceedings.21

3. Summary of the Ruling

3.1. The Court’s Approach to the Relationship Between the RCC and Ordinary Courts

The first question concerned the relationship between the ordinary courts and the RCC. The CJEU constructed its reasoning in three steps.

First, the Court reiterated that both CVM and the second subparagraph of article 19(1) TEU have direct effect. Hence, if it is not possible to interpret national provisions in accordance with the EU law, the national provisions must be set aside.22 In this context, the CJEU touched upon the national legislation under which the national ordinary courts are required to follow the decision of the RCC on the constitutionality of national provisions. The Court repeated that the exercise of the power to disregard those national rules or practices – which might prevent directly applicable EU rules from having full force and effect – is essential to the judicial independence of the national courts. Withholding this power from the national court would therefore be incompatible with the very essence of the EU law.23

Second, the Court touched upon the preliminary ruling mechanism. It held that the effectiveness of the cooperation between the national courts and the CJEU would be endangered if the outcome of RCC decisions deter a national court from exercising its discretion under the preliminary ruling procedure. This would preclude the full effectiveness

21 Case C- 430/21 RS (Effet des arrêts d’une cour constitutionnelle) [2022] ECLI:EU:C:2022:99, para 25.

22 ibid, paras 58, 59.

23 ibid, paras 60-63.

of EU law and it would undermine the effectiveness of the cooperation of the national courts with the CJEU.24

Third, the Court held that the identity clause does not authorise the RCC to disapply a rule of EU law. If it considers that the provision of the secondary EU law infringes the national identity, it must make a reference to the CJEU. It called upon its sole jurisdiction to assess the validity of EU law.25

Following from the above, the CJEU concluded that the national legislation precluding the ordinary courts to examine the compatibility of national provisions with EU law, which the RCC found to be consistent with the Romanian Constitution, is contrary to the principle of the primacy of EU law and articles 19(1) second subparagraph, 2, 4(2) and (3) TEU and 267 TFEU.26

3.2. The Court’s Approach to the Disciplinary Liability of National Judges

The second and the third questions concerned the compatibility of the disciplinary liability of national judges from ordinary courts applying EU law and thus departing from the case law of the RCC with the principle of primacy of EU law.27 The CJEU listed examples of serious and inexcusable conduct of judges which could trigger their disciplinary liability such as infringements committed deliberately and in bad faith, serious and gross negligence, acting arbitrarily or denying justice. Moreover, it stated that these should be limited to exceptional cases with the objective and verifiable criteria. Thus, the fact that a judicial decision contains a possible error in the interpretation and application of the law, facts and evidence, cannot trigger disciplinary liability. This would divert it from its legitimate purpose and exert political control over judicial decisions or put pressure on judges.28

Furthermore, the CJEU stated that it is essential to the independence of the national judges not to be exposed to disciplinary proceedings when it comes to exercising their discretion to make a reference for a preliminary ruling. The mere prospect of opening a disciplinary investigation could exert pressure and the fact that there is no penalty imposed on

24 ibid, paras 64-67.

25 ibid, paras 69-72, 74.

26 ibid, para 78.

27 ibid, para 79.

28 ibid, paras 83, 84, 86.

judges is not mitigating.29 Hence, such a practice would be incompatible with the equality between the Member States, sincere cooperation and primacy of EU law and the principle of independence and impartiality of the judiciary.30

The CJEU ruled that since it is not apparent from the request for a preliminary ruling that the disciplinary liability of the judges is limited to exceptional cases, the national rule or practice triggering such liability for applying EU law and not complying with the RCC judgments is incompatible with the principle of primacy of EU law.31

4. Analysis of the Case

4.1. Primacy of EU law

At first glance, this judgement does not contain any precedent. On the contrary, it is a perfect reminder of how the Court constructed the principle of EU law primacy through its case law, mentioning its cornerstone judgements, one by one, in ascending order.

The CJEU started with the well-established principle of judicial independence from the Polish rule of law case law, after which it took a step back and commenced with an “explanation” of the structure of the EU legal order.32 The Court commenced with the Van Gend & Loos case and the principle of conferral by which the Member States have limited their sovereign rights in order to establish a new legal order, and the direct effect of EU law.33 It continued with the Costa case – which established the principle of primacy and explained how national measures cannot accord precedence or relay to national law against the Treaties.34 The Court built up its reasoning with the Internationale Handelsgesellschaft case and emphasised that national constitutional law cannot take primacy over the EU law 35 Subsequently, the Court moved to the Simmenthal case. Here, it was reiterated that national courts must set aside any national rule of practice that is contrary to EU law with direct effect.36 The Court then recalled the Foto-Frost case and the obligation of the constitutional courts to make a reference to the

29 ibid, paras 85, 90.

30 ibid, paras 82, 88.

31 ibid, para 93.

32 ibid, paras 38-42.

33 Case C-26/26 Van Gend en Loos v Netherlands Inland Revenue Administration [1963] ECLI:EU:C:1963:1.

34 Case C-6/64 Costa v E.N.E.L. [1964] ECLI:EU:C:1964:66.

35 Case C-11/70 Internationale Handelsgesellschaft mbH v Einfuhr und Vorratsstelle für Getreide und Futtermittel [1970] ECLI:EU:C:1970:114.

36 Case C-106/77 Amministrazione delle Finanze dello Stato v Simmenthal SpA [1978] ECLI:EU:C:1978:49.

CJEU when doubting the EU law and the CJEU’s exclusive jurisdiction to declare an EU act invalid.37 Lastly, the Court finalised the explanation of the principle of primacy and the EU legal order with the Benedetti case38 and the binding nature of the CJEU’s judgments.39

The conclusion could be reached from the reasoning about the SIIJ that the CJEU gave a lecture to the referring court about the well-established principles of EU law. However, as follows from the request for a preliminary ruling, the referring court was aware that legislation establishing the SIIJ is not in conformity with the EU law and that it is obliged to put it aside under the principle of primacy. Nevertheless, the national judge would, in that manner, encroach upon Decision no 390/2021 and potentially trigger her disciplinary liability.40 Indeed, AG Collins referred to the duty to disapply the national legislation as “abundantly clear”.41

Undoubtedly, the essence of the dispute in this case is in Decision No 390/2021 – 42 on the interpretation of legitimation of the principle of primacy in a way that national courts have only the power to examine the conformity of infra-constitutional national legislation with the EU law.43 Through this, the RCC inserted the constitutional identity in article 148 of the Romanian Constitution, and consequently put the Constitution above EU law. This gave the RCC the right to refuse to recognise a legally binding ruling of the CJEU (AFJR) and consequently touched upon the core of the functioning and enforcement of the EU legal system.

On the one hand, it is true that the CJEU is not ranked above the RCC and that the RCC is the guardian of the Romanian constitutional identity.44 However, it follows from the principle of sincere cooperation and the identity clause that safeguarding the constitutions should have input from both the EU and national courts, as EU law and constitutional law should complement each other.45 In this sense, the CJEU held that the choice of the constitutional

37 Case C-314/85 Foto-Frost v Hauptzollamt Lübeck-Ost [1987] ECLI:EU:C:1987:452.

38 Case C-52/76 Luigi Benedetti v Munari F.lli s.a.s. [1977] ECLI:EU:C:1977:16.

39 ibid, paras 47-53, 71, 74.

40 Case C-83/19-1 Request for a preliminary ruling [2019] para 10, 21

41 Case C- 430/21 RS (Effet des arrêts d’une cour constitutionnelle) [2022] ECLI:EU:C:2022:99, Opinion of Advocate General Collins, para 58.

42 Decision No 390/2021 of the Constitutional Court [2021] Monitorul Oficial no 612.

43 Decision No 390/2021 of the Constitutional Court [2021] Monitorul Oficial no 612, para 76.

44 Christoph Grabenwarter, Peter Huber, Rajiko Knez, Ineta Ziemele, ‘The role of the Constitutional Courts in the European Judicial Network’ (2021) 27 European Public Law 43 49, 54.

45 ibid, 48, 51, 59.

model, as in the present case, falls within the scope of the identity clause but at the same time it needs to comply with the requirements from articles 2 and 19(1) second subparagraph TEU.46

In the present case, putting national identity above the principle of conferral would be wrong. As seen from the two dissenting opinions of Decision No 390/2021, the CJEU and AG Collins, the RCC approach hinders the principle of primacy, sincere cooperation, rule of law and judicial independence. Additionally, recognised by the CJEU and AG Collins, the approach taken by the RCC hinders the principle of primacy, sincere cooperation, rule of law and judicial independence.47 This means that the RCC acted ultra vires through its press releases and decisions.48 Furthermore, assessing the RCC's recent conduct in the legal and political context clearly shows that it started making changes in the 2017-2019 governmental judicial reforms, adopted by the government under emergency ordinances.49 Due to that, reforms have not allowed for the parliamentary debate, and as mentioned above, have caused numerous reactions and protests from opposing politicians and the public.50

An argument can be made that the ultra vires judgements of the German Federal Court and later the Polish Constitutional Court not recognising the primacy of EU law paved the way for the RCC.51 In this sense, the conduct of the RCC differs from the previous examples of the ultra vires isolated reviews of the other constitutional courts.52 It can be seen as a systematic breach of EU law. In support of this argument, the RCC did not identify which aspect of the nation identity AFJR hinders, as also mentioned by AG Collins.53 Ultimately, constitutionalising the legislation establishing SIIJ disabled the national ordinary courts to check its compatibility with EU law and to apply criteria from the AFJR. This authorised the government to put forward legislation with questionable safeguards for national judges and constitutionalised the breach of the principle of primacy.

46 Case C- 430/21 RS (Effet des arrêts d’une cour constitutionnelle) [2022] ECLI:EU:C:2022:99, para 43

47 Madalina Moraru and Raluca Bercea, ‘The first episode of the Romanian Rule of Law Saga’ (2022) 18 (1) European Constitutional Law Review 108, 109.

48 Case C- 430/21 RS (Effet des arrêts d’une cour constitutionnelle) [2022] ECLI:EU:C:2022:99, paras 7, 19, 20

49 Commission, ‘2020 Rule of Law Report’ (Communication) COM (2020) 580 final.

50 Commission, ‘European Commission reports on progress in Romania under the Cooperation and Verification Mechanism’ (Press release, 13 November 2018)

<https://ec.europa.eu/commission/presscorner/detail/en/IP_17_4611> accessed 8 December 2022.

51 K 3/21 7 x 2021; BVerfG 2 BvR 859/15

52 Case C-399/09 Marie Landtová v Česká správa socialního zabezpečení [2011] ECLI:EU:C:2011:415

53 Case C-83/19-1 Request for a preliminary ruling [2019], para 62.

4.2. Disciplinary Regime

Recently, there has been a rise of case law concerning Polish legislation on the disciplinary regime of national judges before the CJEU.54 Due to this, AG Collins touched upon the admissibility of the present case, as it raises a similar question to the Miasto Lowicz case, wherein the CJEU found inadmissible – and the IS case which was found admissible.55 However, in the former, there was no connection between the dispute in the main proceedings and the question about the disciplinary liability of the national judges triggered by referring the question to the CJEU. Considering this divergence and possible issues, AG Collins invited the Court to elaborate on the point of admissibility of disciplinary proceedings against a judge making the preliminary reference and complying with the CJEU case law.56 Unfortunately, the CJEU did not accept this invitation and left the matter open to future uncertainties and possible inadmissibility.

The second and third questions of the present case, intertwined with the first, touched upon the disciplinary liability of judges triggered by not complying with the RCC judgments and applying the principle of primacy of EU law. In that manner, Decision No 390/2021 creates threats to the EU law ascendingly. First, it establishes external pressure on national judges, which now know that they can be held disciplinarily liable. It therefore hinders their independence and impartiality. Second, national judges – by failing to act impartially – will not refer their questions to the CJEU. Thus, it deteriorates the effectiveness of the preliminary ruling procedure, the principle of sincere cooperation and the equality of all Member States. Finally, it creates malfunctioning of the “keystone”57 of the EU judicial system. This jeopardises the effective enforcement of the primacy of EU law.

Furthermore, the CJEU repeated well-established criteria from the Polish case law, and the recent Euro Box case and concluded that the national rule establishing disciplinary liability is not in conformity with the rule of law, article 19(1) second subparagraph TEU and article 47 of the Charter.58 This is quite unsurprising as the concerns raised by the national judge in the

54 Case C-585/18 A.K. and Others v Sąd Najwyższy [2019] ECLI:EU:C:2019:982; Case C-563/18 Miasto Łowicz and Prokurator Generalny zastępowany przez Prokuraturę Krajową v Skarb Państwa [2020]

ECLI:EU:C:2020:234; Case C-791/19 Commission v Poland [2021] ECLI:EU:C:2021:596.

55 Case C-83/19-1 Request for a preliminary ruling [2019] para 54.

56 ibid.

57 “The judicial system as thus conceived has as its keystone the preliminary ruling procedure “Opinion 2/13 of the Court of justice of the EU [2014] ECLI:EU:C:2014:2454, para 176.

58 Case C- 430/21 RS (Effet des arrêts d’une cour constitutionnelle) [2022] ECLI:EU:C:2022:99, para 93.

present case have already been settled by the CJEU.59 Nonetheless, it is a remarkable judgement from the national and EU law perspective. The Court managed at the same time to give a justification to the referring court to disapply Decision No 390/2021 and send a message to the RCC.

The importance of this judgement concerning EU law primacy can be seen from the procedural point of view as well. Namely, the president of the Court approved the request for expenditure procedure due to the fundamental importance of the referred questions for both the Romanian and the EU legal order.60

5. Conclusion

Following from the above, the CJEU did not explicitly state that the RCC acted ultra vires and, as AG Collins held rather directly: “the RCC unlawfully arrogated competences to itself in breach of article 19(1) second subparagraph, principle of primacy and principle of independent judiciary”.61 In spite of that, the Court gave a lesson about the fundamentals of the EU legal order, not to the referring court, but to the RCC and reminded them of the absolute and unconditional primacy of EU law.

The present case reflected the legal, institutional and political context of Romania at the time. Lately, the Romanian government “…has shown a positive trend…to reform and to reverse the backtracking of the 2017-2019 period”.62 This CVM Report, dated from the middle of the ‘ping-pong’ saga between the RCC and the CJEU, means that the Government showed the will to respect the judgements of the CJEU and try to mitigate the situation. Unfortunately, the latest developments do not show that the RCC is willing to change its course as it approved the three justice laws concerning judges and prosecutors, judicial organisation and the superior

59 Venice Commission 116th Plenary Session of 20 October 2018 Opinion No. 942/2018 on Amendments to Law No. 303/2004 on the Statute of Judges and Prosecutors, Law No. 304/2004 on Judicial Organization, and Law No. 317/2004 on the Superior Council for Magistracy adopted by Strasbourg, Case C-83/19 Asociaţia "Forumul Judecătorilor din România" [2021] ECLI:EU:C:2021:393, paras 165, 178, 185, 223.

60 Case C- 430/21 RS (Effet des arrêts d’une cour constitutionnelle) [2022] ECLI:EU:C:2022:99.

61 Case C-83/19-1 Request for a preliminary ruling [2019], para 83.

62 European Commission 'European Commission reports on progress in Romania under the Cooperation and Verification Mechanism’ (Press Release, 8 June 2021)

council of Magistracy, all three of them widely criticised by the Ombudsman, opposing parties.63

Pierre Pescatore, one of the most prominent promoters of the EU legal order, drafter of the Treaties of Rome and former judge of the CJEU, stated: “before one can talk of the substance of legal norms, one must see what the structure is into which these norms are integrated” . 64 Indeed, this is an example of not taking into consideration the overall structure of the EU legal order and hindering the well-established system of the rule of law and judicial independence. By this, the RCC de facto legalised the systemic undermining of the key European principles and the rule of law.

This leaves the RCC to change its interpretation of the principle of primacy or to continue dancing alone.

63 Iulian Ernst, 'Romania's Constitutional Court clears new Justice Laws, criticized by opposition' (Romania Insider, 10 November 2022) <https://www.romania-insider.com/constitutional-court-clears-justice-laws-2022> accessed 10 December 2022.

64 Étienne Deschamps, Interview with Pierre Pescatore, Judge, European Court of Justice, (Luxembourg, 10 September 2003)

<https://www.cvce.eu/obj/interview_with_pierre_pescatore_composition_and_working_methods_of_the_legal_ group_luxembourg_10_september_2003-en-888d433d-2571-452c-a19e-4e64102d36c2.html> accessed 10 December 2022.

Section III: Articles

1. Introduction

The significance of the principle of separation of powers lies in the division of state power which is traditionally vested in three branches – namely the executive, legislative, and judiciary, and its origins may be traced all the way back to Ancient Greece.1 The principle is regarded as one of the core principles of constitutional law and its underlying purpose is to prevent the abuse of state power.2 Put simply, the ultimate objective is defence against concentration of power in the hands of a single political actor, thereby preventing the backsliding of democracy as against the rise of authoritarianism.3 The question arises as to how this objective can be achieved in the light of the various forms of organisation of government. The research question posed in this article is therefore: which of the governmental systems fulfils the objective most effectively by providing adequate safeguards against the potential shift towards authoritarian regimes?

The focus of this paper is on presidentialism and parliamentarism, as the two indisputably main forms of government, and semi-presidentialism, as the most notorious example of the so-called hybrid regimes. Nonetheless, when engaging in the discussion of the suitability of governmental regimes vis-à-vis the principle of separation of powers, it must be acknowledged that it would be impossible to designate either of the three overarching regimes as unfailingly absolute. Given that the wide range of variations within each system are inevitably linked to the political and cultural environment of each country, caution is required. This is because even if such a system manages to yield outstanding results in one country, it could very well lay the ground for the opposite in a different setting.4 Consequently, the following discussion assesses the suitability of the regimes based on overarching characteristics. This is assessed through comparative study of constitutional safeguards commonly available under each regime.

1 Jacob T Levy, ‘The separation of powers and the challenge to constitutional democracy’ (2020) 25 Review of Constitutional Studies 1, 3, 6.

2 Jeremy Waldron, ‘Separation of powers in thought and practice’ (2013) 54 Boston College Law Review 433, 438.

3 Louis Henkin, ‘Elements of Constitutionalism’ (1998) 60 International Commission of Jurists Review 11, 13.

4 Jenny S Martinez, ‘Horizontal Structuring’ in Michel Rosenfeld and Andras Sajo (Eds.) Oxford Handbook of Comparative Constitutional Law (Oxford University Press 2012) 559.

2. The Separation of Powers in Constitutional Law

The foundations of the notion of separation of powers, or trias politica, are widely attributed to Aristotle’s The Politics 5 Aristotle believed that mixed governance ‘by one, the few, and the many’ was best suited to prevent tyranny;6 for this reason, this theory is referred to as ‘mixed constitution’ or ‘mixed government’ in academia.7 Despite the fact that Aristotle did not develop the theory comprehensively, it provided for a solid starting point for legal and political philosophers centuries later.

The Enlightenment Age proved to be a significant era for the development of constitutional law, as that is when the constitutional principle of separation of powers, as it is understood now, was established. The first seminal work can be seen in John Locke’s ‘Second Treatise on Government’ – where he put forward a ‘functional separation’ based on the different tasks exercised by the state.8 Locke divided state power into the executive and legislative, regarding the latter as superior.9 While the functional nature of the separation remains to be the prevailing view on this principle, the rest of Locke’s theory has been superseded by another philosopher of that age, namely Montesquieu. In his ‘The Spirit of the Laws’, Montesquieu built on Locke’s functional separation and furthermore identified three branches of government, thus granting origin to trias politica.10 Even though his original division differed slightly from the currently accepted legislative, executive, and judiciary, the present academic understanding of separation of powers remains to be attributed largely to Montesquieu.11

The separation of state power into independent branches of government inherently entails that none of the branches may interfere with or encroach upon the powers of the others.12 It is thus both a functional and normative concept that delineates and limits state power.13 Its functional nature rests on the different powers exercised by the state, while the normative aspect relates to the prescription of the organisational structure of the government by which

5 Levy (n 1) 3.

6 Levy (n 1) 3.

7 Martinez (n 4) 549.

8 Martinez (n 4) 549.

9 Martinez (n 4) 549

10 Martinez (n 4) 550.

11 Martinez (n 4) 550.

12 Waldron (n 2) 443-444.

13 Eric Barendt, ‘Separation of powers and constitutional government’ in Richard Bellamy (ed) The Rule of Law and the Separation of Powers (Rutledge 2005)

every state actor must abide. Accordingly, it has been regarded as one of the core elements of constitutional democracy –14 and even as a ‘condition sine qua non for describing a system as constitutional’.15 The principal aim of the separation of powers is thus the restriction of governmental power. Consequently, a broader objective can be ascertained in that the principle serves the purpose of prevention of concentration and usurpation of state power in the hands of a single individual or institution by ensuring that each political actor exercises only the powers that have been assigned to them by law.16 This is further complemented by the notion of checks and balances, whereby the authorities check each other’s compliance with the constraints of their powers.17 By expanding upon these notions, its overarching constitutional purpose is revealed. Ultimately, the principle serves as a means to preserve constitutional democracy by preventing the potential shift towards authoritarianism.18 As Montesquieu already observed, if the branches were to be centralised in one actor, the state would be led into tyranny.19

3. The Interplay between the Separation of Powers and Forms of Government

As previously established, the separation of powers may be perceived as a tool to deconcentrate state power and consequently prevent the rise of authoritarianism in order to protect constitutional democracy. De facto, the principle is given shape through the horizontal structuring of governance or, in other words, governmental systems. The three main forms of government consisting of presidentialism, parliamentarism, and semi-presidentialism have been subject to comprehensive academic scrutiny already. Therefore, the present essay is concerned with the analysis of the suitability of each governmental regime vis-à-vis the aim of preserving democracy. Taking account of this nexus, the most suitable regime need not coincide with the regime in which the separation is laid down the most strongly.

14 Waldron (n 2) 438.

15 Levy (n 1) 2.

16 See for example Christoph Moellers, The Three Branches: A Comparative Model of Separation of Powers (Oxford University Press 2013) 48.

17 Moellers (n 16) 43.

18 On a similar note, see Henkin (n 3) 13.

19 Charles L. Montesquieu, The Spirit of the Laws (Anne M. Cohler et al. eds. & trans., Cambridge Univ. Press 1989) (1748) para 157.

3.1. Three Main Governmental Systems: Presidentialism, Parliamentarism, and SemiPresidentialism

3.1.1. Presidentialism

Presidential forms of government in constitutional regimes entail that the head of state and head of government coincide in the same individual who is directly elected by popular vote.20 This actor is the sole head of the executive branch. Moreover, their term is fixed and independent from the term of the legislative authority since their legitimacy is not at all dependent upon the legislature.21 The executive and the legislative thus have ‘double democratic legitimacy’ under presidentialism,22 which stems from two separate sources in the form of separate popular elections.23 For this reason, presidential systems have been widely praised as systems in which the separation of powers is implemented the most clearly.24 Additionally, presidentialism is frequently associated with the values of democratic and republican governance.25 Nowadays, the most prominent example of a classical presidential form of government are the United States of America rooted in the U.S. Constitution of 1787.26 The clear separation of powers is evidenced by articles I to III of the U.S. Constitution which distinguish between the executive, legislative, and judicial branches of government.

However, the fact that the powers of the government are considerably constitutionally separated does not in itself guarantee that the separation of powers principle will fulfil its constitutional purpose to its greatest potential. Indeed, the strongest criticism of presidentialism relates to its inherently substantial concentration of executive power under one authority.27 The president, being the head of state and government and, therefore, the sole head of the executive, is a powerful figure with direct constituent legitimacy. This undeniable weak spot creates an opportunity for the usurpation of power by the president and could even pave way towards authoritarianism.28 Nevertheless, the potential for presidential abuse of power to the point of

20 Héctor Fix-Fierro, ‘Presidentialism’ in Michel Rosenfeld and Andras Sajo (Eds.) Oxford Handbook of Comparative Constitutional Law (Oxford University Press 2012) 629. (Fix-Fierro)

21 Fix-Fierro (n 20) 631.

22 Giuseppe Ieraci, ‘Power in office: presidents, governments, and parliaments in the institutional design of contemporary democracies‘ (2020) 32 Constitutional Political Economy 413, 414.

23 Fix-Fierro (n 20) 630.

24 Fix-Fierro (n 20) 630.

25 Fix-Fierro (n 20) 628. Fix-Fierro (n 20) 631.

27 Anthony W Bradley, ‘Parliamentarism’ in Michel Rosenfeld and Andras Sajo (Eds.) Oxford Handbook of Comparative Constitutional Law (Oxford University Press 2012) 658.

28 See for example Fix-Fierro (n 20) 639 and 647.

threatening democracy is not inescapable and in countries with long and stable democratic tradition, such as the United States, the risk diminishes.29 Still, in the light of the assessment of the greatest compatibility of governmental regimes and the aims of tyranny prevention and the protection of democracy, such deficit that runs strictly counter these aims cannot be overlooked.

3.1.2. Parliamentarism

The two dominant models of parliamentarism are the British Westminster model and the German model of constrained parliamentarism.30 This essay focuses on the common characteristics of parliamentarism in general. In contrast to presidentialism, only the legislator (the parliament) has direct popular legitimacy.31 The executive, typically consisting of at least the prime minister or chancellor and their cabinet, shares the same source of legitimacy as the parliament since it is most frequently the party that gains the majority in parliamentary elections that forms it.32 For instance, in Germany, the federal executive is composed of the Federal President and the Federal Chancellor with their Ministers.33 Under articles 54 and 63 of the Basic Law respectively, both executive actors are to be elected indirectly. Additionally, the government remains accountable only to the parliament, not the constituency, and so one cannot speak of popular legitimacy of the government.34 This is exemplified by articles 61 and 67 of the Basic Law, whereby under the former, impeachment of the Federal President may be initiated by either of the two parliamentary chambers, and, under the latter, the lower chamber (Bundestag) may dismiss the Federal Government through a vote of no confidence.

The legitimacy and authority of the executive strongly depend on the confidence of the legislative.35 This makes the conceptual separation of powers in parliamentarism the weakest in comparison with other systems. Furthermore, as the executive intrinsically enjoys the support of the majority in the legislature, the threats of authoritarianism are not securely preventable. Under such governmental structuring, a ‘tyrannic’ prime minister, supported by parliamentary majority, could thus gain control over both the executive and the legislative sequentially, which would then weaken, if not render meaningless, the central checks-and-

29 Fix-Fierro (n 20) 639, 647.

30 Martinez (n 4) 556.

31 Moellers (n 16) 111.

32 Moellers (n 16)

33 The Basic Law of the Federal Republic of Germany of 1949 (as amended in 2022), arts 54-69

34 Moellers (n 16) 111.

35 Ieraci (n 22) 414.

balances mechanism in the form of executive accountability upon the legislative. Needless to say, such outcome is less than desirable in the pursuit of the aim of safeguarding democracy.

3.1.3. Semi-Presidentialism

The main elements of semi-presidentialism, as the most widely adopted of the so-called hybrid regimes, will be discussed. Semi-presidentialism has been accepted as a flexible and dynamic regime that oscillates between presidentialism and parliamentarism depending on the partisan affiliation of the two heads of the executive.36 On the other hand, it has likewise been subject to certain scepticism of academic scholars namely due to the ‘issue’ of so-called cohabitation, which will be further elaborated upon below.37

It must be acknowledged that there has been a shift with regard to the academic classification of systems as semi-presidential in that, originally, the emphasis tended to be placed on the role of the president and the strength of their powers, while nowadays, this criterion has been eliminated from the assessment.38 When defining semi-presidentialism, weight is placed primarily on the constitutional characteristics themselves. The core elements are: (i) a dual executive consisting of a head of state (a president) and a head of government (a prime minister), (ii) collective accountability of the government to the legislative, (iii) direct popular election of the head of state for a fixed term, and (iv) independence of the head of government’s term on the term of the head of state.39 This definition encompasses a much wider spectrum of subsystems and likewise includes systems in which the president is rather ceremonial but still elected directly, such as in Slovakia40 and Austria,41 or those in which the president is formally a part of the cabinet but their term is independent on that of the cabinet, such as in Sri Lanka.42 Elgie, a leading scholar in constitutional law and semi-presidential

36 Fix-Fierro (n 20) 645-646.

37 See for example Robert Elgie, ‘Semi-presidentialism, Cohabitation and the Collapse of Electoral Democracies, 1990-2008’ (2010) 45 Government and Opposition 29; Robert Elgie et al, ‘Semi-presidentialism and Democratic Performance‘ (2008) 9 Japanese Journal of Political Science 323.

38 Robert Elgie et al, Semi-Presidentialism and Democracy (Palgrave Macmillan 2011) 2-3.

39 Robert Elgie et al, Semi-Presidentialism and Democracy (n 38) 2-3.

40 The Constitution of the Slovak Republic of 1992 (as amended in 2017), art 101; classified as semipresidential in: Elgie Semi-Presidentialism and Democracy (n 38) 9.

41 The Constitution of Austria of 1920 (as amended in 2004), art 60; classified as semi-presidential in: Elgie Semi-Presidentialism and Democracy (n 38) 8.

42 The Constitution of the Democratic Socialist Republic of Sri Lanka of 1978 (as amended in 2020), art 43(2); classified as semi-presidential in: Elgie Semi-Presidentialism and Democracy (n 38) 8.

regimes in particular, admits that reliance exclusively on constitutional aspects is not flawless; nonetheless, it renders the assessment more objective and less selection-biased.43

3.2. Defending the Underdog: Semi-Presidentialism as the Most Suitable System

It has been established above that presidentialism, despite entailing the strongest separation of powers, is highly susceptible to abuse of power by the executive. It therefore cannot be regarded as the most suitable contender vis-à-vis the attainment of the objective of preventing the usurpation of power. Parliamentarism must likewise be dismissed due to the ineffectiveness of its core checks-and-balances mechanism of executive accountability upon the legislative, in case of a government with potentially authoritarian tendencies. For this reason, semipresidentialism will be designated as the most suitable out of the three systems.

From the outset, it is beneficial to distinguish the two subtypes of semi-presidential systems, namely premier-presidentialism and president-parliamentarism. The differentiation is determined based on the question whether the government remains accountable only to the legislative or also to the president or, put differently, which political actor has the power to dissolve the government.44 These aspects are closely interrelated with the issue of constitutional safeguards against abuses of power and must therefore be addressed.

The ‘premier-presidential’ subsystem of semi-presidentialism assigns the government’s accountability merely to the legislator, thereby tilting closer towards parliamentarism on the spectrum.45 This system is found for instance in France,46 Romania,47 Armenia,48 or Portugal.49 For example, article 20 of the French Constitution limits the government’s accountability solely to the parliament, with the latter then being empowered to dismiss the government through a vote of no confidence.50 As established above, these characteristics can also be observed under purely parliamentary systems. Conversely, the ‘president-parliamentary’ system also empowers the president to dissolve the government.51 This arrangement favours a powerful president and thus more closely resembles pure presidentialism. However, these systems have

43 Elgie, Semi-Presidentialism and Democracy (n 38) 2-4.

44 Elgie, Semi-Presidentialism and Democracy (n 38) 45.

45 Elgie, Semi-Presidentialism and Democracy (n 38) 45.

46 The Constitution of the French Republic, art 20.

47 The Constitution of Romania, art 109(1).

48 The Constitution of the Republic of Armenia of 1995 (as amended in 2015), art 115.

49 The Constitution of the Portuguese Republic, art 190.

50 The Constitution of the French Republic, art 49-50.

51 Elgie, Semi-Presidentialism and Democracy (n 38) 45.

often been found to lack adequate checks and balances as against the president52 and are consequently deemed to have lower potential for preserving democracy.53 Indeed, as has been found in several studies, the lack of controls against presidential powers has been among the most decisive factors behind democratic backsliding in these semi-presidential regimes.54 The problematic nature of president-parliamentary systems can be illustrated by the collapse of democracy in Germany’s Weimar Republic in 1933.55 Nevertheless, president-parliamentarism has found popularity particularly in African and post-Soviet countries and is currently instituted in states such as Mozambique,56 Taiwan,57 and Sri Lanka.58

Generally, despite academic dissatisfaction with democratic performance of semipresidentialism, various studies have in fact identified that the premier-presidential subsystem is equal to, and in some respects even supersedes, the high-ranking democratic success of parliamentarism.59 Alternatively, criticisms of powerful presidents under presidentparliamentarism and presidentialism, especially when unaccompanied by sufficient checks, remain unrebutted.60 Consequently, for the purposes of this essay, premier-presidentialism is regarded as the more favourable of the semi-presidential sub-regimes. The suitability of semipresidentialism towards tyranny prevention is highlighted by four mechanisms, which complement each other.

3.2.1. Dual Executive Authority: De-Concentration of Power

The most evident strength of premier-presidentialism lies in its intrinsic flexibility and foundation for power-sharing and cooperation.61 These characteristics stem from the ‘dual authority’ structuring of the executive in the form of a head of state (a president) and a distinct head of government (a prime minister).62 The executive power is thus vested in two authorities

Elgie, Semi-Presidentialism and Democracy (n 38) 265. Elgie, Semi-Presidentialism and Democracy (n 38) 45-46.

54 See for example Young Hun Kim, ‘A Troubled Marriage? Divided Minority Government, Cohabitation, Presidential Powers, President-Parliamentarism and Semi-Presidentialism‘ (2015) 50 Government and Opposition 652, 671.

55 Elgie, Semi-Presidentialism and Democracy (n 38) 45.

56 The Constitution of the Republic of Mozambique of 2004 (as amended in 2007), art 208.

57 The Constitution of the Republic of China (Taiwan) of 1947, art 57.

58 The Constitution of the Democratic Socialist Republic of Sri Lanka, art 43(1).

59 Thomas Sedelius and Jonas Linde, ‘Unravelling semi-presidentialism: democracy and government performance in four distinct regime types’ (2018) 25 Democratization 136, 137 and 144.

60 Sedelius and Linde (n 59) 137, 144

61 Robert Elgie et al, Explaining the Onset of Cohabitation under Semi-presidentialism (Political Studies Association 2011) 3.

62 Mathieu Turgeon and Éric Bélanger, ‘Institutions and attribution of responsibility outside the electoral context: A look at French semi-presidentialism‘ (2017) 9 European Political Science Review 209, 215.

as opposed to just one as in the case of (pure) presidentialism, which inevitably creates a system of division of executive power. Moreover, this arrangement is flexible since the strength of the role of each authority will often depend on which of the two enjoys the support of parliamentary majority at the given time, as illustrated by the French system.63 The French differentiation between the two categories of executive domains (low versus high politics) is of relevance here.64 Low politics is an umbrella term encompassing domestic policies, typically executed by the prime minister, whereas high politics refer to foreign affairs, which are the responsibility of the president.65 In times of ‘presidential’ majority in the parliament, the president tends to be relatively powerful and is the sole commander of high politics while he shares low politics with the cabinet, whereas in other cases the president’s role weakens and results in the sharing of both spheres of politics with the cabinet.66

3.2.2. Intra-Executive Checks and Balances

The aforementioned flexibility and decentralisation of the executive power stemming from its duality is then coupled with the notion of an intra-executive checks-and-balance mechanism, under which the president and prime minister are facilitated to ensure each other’s observance of the legal constraints of their powers, as well as other core democratic values.

The mechanism is unique compared to the other two governmental systems. Consequently, it establishes a constitutional means for the prevention of potential concentration of power and its usurpation. An example of such checks and balances is found in article 16 of the French Constitution which provides for presidential action to be taken in times of emergency while still requiring the president’s prior consultation with the prime minister. Similarly, articles 134 and 138 of the Portuguese Constitution mandate that a state of siege or emergency is to be declared by the president only when preceded by consultation with the government. These safeguards thus seek to steer clear of the main deficiency of purely presidential systems: unrestrained presidential action.

63 ibid.

Turgeon and Belanger (n 62) 209, 215

65 Turgeon and Belanger (n 62) 209, 215

Turgeon and Belanger (n 62) 209, 215

3.2.3. Legislative Oversight

The third argument relates to the accountability of the prime minister, and the whole cabinet for that matter, vis-à-vis the parliament. This is a common characteristic present in both semipresidentialism67 and parliamentarism –68 and its relevance is twofold. The party obtaining the majority in the parliament derives its legitimacy from the legislative election and thus generally forms the government. Reciprocally, this creates a checks-and-balances mechanism which requires that the government’s authority is subject to parliamentary confidence.69 It thus constitutes an important tool that allows the parliament to continuously exercise scrutiny over government’s actions and ultimately even dissolve the government through a vote of no confidence.70 Governmental accountability to the legislature is a well-established constitutional principle across all semi-presidential systems, which can be exemplified by the French,71 Taiwanese,72 Portuguese,73 and Romanian systems. 74

Despite the fact that this checks-and-balances mechanism exists in both parliamentarism and semi-presidentialism, upon closer inspection, the latter should be preferred for the following reasons. In contrast to parliamentarism, semi-presidentialism is arguably not as susceptible to concentration of power in the hands of one political party or coalition. As mentioned above, in both regimes, the majority-holder in the parliament is empowered to construct the government. This mechanism constitutes a core building block of parliamentarism.75 Nonetheless, under semi-presidentialism, it is complemented by the existence of a second executive authority – the president – who derives their own source of legitimacy based on distinct popular elections.76 This is a decisive safeguard lacking in parliamentary regimes which, furthermore, gains in strength during periods of cohabitation. These are periods of time when the president and the prime minister are not representatives of the same political party and, at the same time, the president’s party is not a part of the cabinet.77 In such cases, the president is most likely to pose as an independent authority and hold the

67 Elgie, Semi-Presidentialism and Democracy (n 38) 66.

68 Bradley (n 27) 651.

69 ibid

70 See for example The Constitution of Romania, art 85; The Constitution of the French Republic, art 49-50; The Constitution of the Portuguese Republic, art 194.

71 The Constitution of the French Republic, art 20, 49-50.

The Constitution of Taiwan, art 57.

73 The Constitution of the Portuguese Republic, art 190.

74 The Constitution of Romania, art 109(1).

75 Moellers (n 16) 111.

76 Bradley (n 27) 651.

77 Elgie, Explaining the Onset of Cohabitation (n 61) 1.

prime minister (and their parliamentary majority) accountable. Similarly, the presence of another head of state continues to be a noteworthy safeguard, even at times of unified government in combination with the second mechanism above – namely, the mutual constitutional oversight of the heads of the executive. This is because some of the powers are removed from the prime minister and assigned to a second executive authority.

3.2.4. Judicial Oversight

The fourth and final mechanism of checks and balances is the existence and accessibility of an independent judiciary as the final branch of trias politica The independent judiciary must be able to exercise some form of judicial review of state action as a mechanism of oversight over both the executive and the legislative.78 This is a requirement that lies at the core of all constitutional democracies and its role in the preservation of democracy cannot be overstated.79 However, as it is not unique to semi-presidentialism, it will not be subject to further argumentation.

3.2.5. The Most Suitable Mechanisms

In summary, four mechanisms have been elaborated upon to cumulatively support the proposition that semi-presidentialism – and specifically its premier-presidential subtype, entails the most suitable checks-and-balances mechanisms for the protection of democracy against the threats of authoritarianism. These were: (i) the flexibility and duality of the executive as the basis for the de-concentration of power, (ii) the role of the president and prime minister vis-à-vis each other as the basis for an intra-executive oversight, (iii) governmental accountability to the parliament as the basis for scrutiny of the parliament over the government, further complemented by the role of the president in this oversight, and (iv) the existence of an independent judiciary as the overarching check against abuses of state power. When taken together, these elements establish a comprehensive system of constitutional safeguards suitable to counter the rise of authoritarianism.

78 Martinez (n 4) 568-569. 79 Henkin (n 3) 14.

3.3 Cohabitation: A Threat to Democracy or Merely an Arrangement with Bad Reputation?

The most frequently reiterated scholarly criticism of semi-presidentialism will be addressed. Cohabitation, as defined in the previous subsections, may present a challenge to legislative and policy development, in that it could bring about the hindrance of cooperation between the prime minister and the president and, moreover, could even lead to political deadlock.80 Nonetheless, pursuant to the aims of the present essay, cohabitation shall only be discussed with regard to its contributions and impediments to the aim of tyranny prevention.

Cohabitation is often equated with conflict between the president and the prime minister based on the differences in their partisan background.81 Furthermore, it is also frequently portrayed as a potential threat to democracy and institutional stability, even though this has now been refuted by several studies.82 In fact, scholars further admit that conclusive evidence supporting such proposition is missing, while the only country where cohabitation indeed led to democratic breakdown remains to be Nigeria.83 The young Nigerian semi-presidential democracy collapsed in 1996, having been established only four years prior. Even though this occurred during a period of cohabitation, the collapse was preceded by a time of ‘institutional crisis’ and an uncompromising animosity between the two heads of the executive, i.e. the president and the prime minister.84 The ultimate blow to the democratic regime was then served by a military coup.85 Consequently, cohabitation cannot be regarded as the sole reason that put an end to the short-lived constitutional democracy in Nigeria. Additionally, Nigeria stands out as the sole example of democratic collapse out of 18 countries that have experienced (multiple) periods of cohabitation in recent history.86

Another study further establishes that there is no threat to democracy posed by cohabitation in consolidated and stable democratic regimes.87 In using France as an example, it has experienced almost 10 years of cohabitation in total since 1986 with its democracy still

80 Elgie, Semi-Presidentialism and Democracy (n 38) 46-47.

81 Turgeon and Bélanger (n 62) 212.

82 Elgie, Semi-Presidentialism and Democracy (n 38) 47.

83 Elgie, ‘Semi-presidentialism, Cohabitation and the Collapse of Electoral Democracies’ (n 37) 34.

84 Elgie, ‘Semi-presidentialism, Cohabitation and the Collapse of Electoral Democracies’ (n 37) 36

85 Elgie, ‘Semi-presidentialism, Cohabitation and the Collapse of Electoral Democracies’ (n 37) 36

86 The number of countries experiencing cohabitation relates to the period 1989 – 2008 as part of a study in: Elgie, Explaining the Onset of Cohabitation (n 61) 7.

87 Elgie, Explaining the Onset of Cohabitation (n 61) 2.

intact.88 Even though cohabitation could be indeed potentially problematic for young democracies, Nigeria being the sole example up to date, the bigger threats have in reality been identified to be, namely, the lack of sufficient checks and balances, an excessively powerful president, divided minority government, and/or general political context predating the cohabitation itself.89

It has therefore been recognised that cohabitation in practice does not threaten democracy and studies further demonstrate that cohabitation often tends to be linked with ‘relatively good democratic performance’ exemplified on Portugal and Finland.90 This can be explained by the fact that even at times of cohabitation, both executive authorities recognise the benefits of cooperation in pursuing their policies.91 Moreover, the cooperation may in itself be an established practice that the authorities consider binding.92 Lastly, cohabitation actually strengthens the separation of powers by underlining the intra-executive independence of the president and the prime minister.93 The partisan diversity of the two actors incentivises their willingness to ensure the legality and constitutional restraint of the other’s conduct. Cohabitation thereby advocates the aim of prevention of authoritarianism and hence does not pose a threat to the core rationale of the notion of separation of powers.

4. Conclusion

The principle of separation of powers provides for the de-concentration of state power among several actors. In connection with the principle of legality, each actor must act within the legal – and constitutional – confines of the powers accorded to them. The exercise of state power is consequently circumscribed through a variety of checks-and-balances mechanisms and other constitutional safeguards.

The purpose of these notions therefore extends beyond a mere division of powers, for separation of powers is the basis towards the preservation of constitutional democracy and prevention of authoritarianism. Understandably, constitutional safeguards and control mechanisms differ among the governmental regimes. The present essay undertook a

88 Turgeon and Bélanger (n 62) 214.

89 Kim (n 54) 671-672.

90 Elgie, ‘Semi-presidentialism and Democratic Performance’ (n 37) 338.

91 Tapio Raunio and Thomas Sedelius, Semi-Presidential Policy-Making in Europe: Executive Coordination and Political Leadership (Palgrave Macmillan 2020) 26.

Raunio and Sedelius (n 91) 26.

93 Elgie, Explaining the Onset of Cohabitation (n 61) 3.

comparative analysis of the main forms of government, namely presidentialism, parliamentarism, and semi-presidentialism, regarding the safeguards that serve the objective of preserving democracy. This paper designated semi-presidentialism, and its premierpresidential subsystem in particular, as the regime that provides for the most comprehensive framework of constitutional safeguards against democratic backsliding. The inherent duality of the executive creates a flexible system oscillating between almost-presidentialism and almost-parliamentarism in lieu of a near-uncontrollably powerful president under presidentialism and presents an intra-executive checks and balances lacking in the other regimes.

However, caution must be exercised when assessing the suitability of each regime in the pursuit of protecting democracy due to the complex contextual background inherent in each societal environment. None of the main forms of government can therefore be extracted and universally applied with a guaranteed successful outcome. The collapse of democracy in Nigeria in 1996 highlights this caveat. Instead, employment of semi-presidentialism has been deemed more preferable for stable, long-established democracies as opposed to the newly established ones.

1. Introduction

Born within the context of strong cooperation between agricultural policy and regional development policy,1 rural development aims at supporting the economic and social upliftment of rural areas within the European Union (EU).2 The Common Agricultural Policy (CAP),3 according to which ‘the internal market shall extend to agriculture, fisheries and trade in agricultural products’,4 is divided into two pillars. While the first pillar relates to the common organisation of markets in agricultural products and the direct payment to farmers, the second pillar relates to the rural development policy.5 The second pillar is co-financed by the European Agricultural Fund for Rural Development (EAFRD) – governed by the Rural Development Regulation (EAFRD Regulation)6 – and national budgets;7 its objectives are attained through the designing of programmes by Member States. For instance, one of the core priorities set out in the EAFRD Regulation is innovative technologies and the sustainable management of forests,8 which entails, inter alia, forestry investments, improvement of forest resources through afforestation, investments in forestry technologies and preventive actions against fires.9

Considering how essential forests are to rural areas and the ever-growing negative impact of climate change (reducing biodiversity, increasing forest fires), ensuring sustainability in forest management is highly relevant.10 Accordingly, the aim of this paper is to examine the level of

1 Francesco Mantino, ‘The Reform of EU Rural Development Policy and the Challenges ahead’ Notre Europe Policy 40 Paper, 2 < https://institutdelors.eu/en/publications/the-reform-of-eu-rural-development-policy-andthe-challenges-ahead/> accessed 19 October 2022.

2 Regulation (EU) 2020/2220 laying down certain transitional provisions for support from the European Agricultural Fund for Rural Development (EAFRD) and from the European Agricultural Guarantee Fund (EAGF) in the years 2021 and 2022 and amending Regulations (EU) No 1305/2013; (EU) No 1306/2013 and (EU) No 1307/2013 as regards resources and application in the years 2021 and 2022 and Regulation (EU) No 1308/2013 as regards resources and the distribution of such support in respect of the years 2021 and 2022 [2020] OJ L 437/1 (Transitional Regulation).

3 Consolidated version of the Treaty on the Functioning of the European Union [2012] OJ C 326/01 (TFEU), arts 38-39.

4 The legal basis of the CAP can be found in TFEU, arts 38-44.

5 ‘The Common Agricultural Policy’ (europarl.europa.eu)

<https://www.europarl.europa.eu/factsheets/en/section/196/the-common-agricultural-policy-cap> accessed 16 January 2023.

6 Regulation (EU) 1305/2013 on support for rural development by the European Agricultural Fund for Rural Development (EAFRD) and repealing Council Regulation (EC) No 1698/2005 [2013] OJ L 347/487 (EAFRD Regulation).

7 ibid preambles 6-7.

8 ibid, preambles 4, 20 and arts 4-5.

9 ibid, preamble 20

10 ‘EU forestry explained’ <https://agriculture.ec.europa.eu/sustainability/forestry/forestry-explained_en> accessed 19 October 2022.

cooperation of national administrations in relation to sustainable forest management. The focus is the Spanish and Portuguese administrations. The reason for this is that the relationship between these two bordering countries is characterised by extensive collaboration in numerous areas, such as environment and agriculture.

11 Therefore, the research question is: do the measures of cooperation taken by the Spanish and Portuguese administrations under the CAP 2014-2012 sufficiently achieve the objective of sustainable forest management set out in the EAFRD Regulation?

The paper follows a doctrinal methodology in that the relevant EU and Member States' national legal sources are analysed with the support of secondary sources. Three aspects will be considered. Firstly, the underlying principle of cooperation will be defined and then explained in the context of rural development. Secondly, the instruments of administrative cooperation chosen by the Spanish and Portuguese administrations during the CAP 2014-20 will be presented. This section will cover measures taken under the EAFRD Regulation as well as other measures that nonetheless pursue the same objective. Thirdly, the objectives of the New CAP13 regarding forest management will be outlined, and subsequently, it will be determined whether future cooperation between the national administrations would be possible based on the new Regulations and the Member States’ national strategic plans. Finally, the conclusion will summarise the findings of the paper and will ultimately answer the research question.

2. The Cooperation Principle

This section firstly defines sincere cooperation as a constitutional and administrative principle and explains how cooperation is required by different Treaty provisions. Secondly, it is explained how the duty of cooperation exists within the rural development policy at different levels. This is done by presenting the relevant provisions in the EAFRD Regulation, as well as the national view on administrative cooperation.

11 ‘Bilateral Relations with the Kingdom of Spain’ (Portuguese Government Portal)

<https://portaldiplomatico.mne.gov.pt/en/bilateral-relations/general-countries/spain> accessed 19 October 2022; ‘"We are convinced that together, Spain and Portugal will advance and make more progress", says Carolina Darias’ La Moncloa (2020)

<https://www.lamoncloa.gob.es/lang/en/gobierno/news/Paginas/2020/20201123spain-portugal.aspx> accessed 19 October 2022.

12 The 2014-20 CAP is implemented by Regulations (EU) Nos 1303 to 1308/2013 [2013] OJ L 347

13 The 2023-27 CAP is implemented by Regulations (EU) Nos 2021/2116 to 2117 [2021] OJ L 435.

2.1. Definition and Legal Basis

Sincere cooperation imposes a mutual obligation on the EU, as well as on Member States to ‘assist each other in carrying out tasks [flowing] from the Treaties’,14 and is considered to be a constitutional principle of EU law.15 Additionally, sincere cooperation can also be found implicitly in certain provisions which impose on Member States either the duty of coordination or abstention. The former requires the organisation of activities to achieve, for instance, a higher level of human health protection,16 or for developing policies or aid programmes.17 The latter obliges Member States ‘to abstain from any measure which could jeopardise the attainment of [Treaty objectives]’.18 The necessity for sincere cooperation in multiple policy areas shows its significance as an underlying principle to achieve EU objectives.19

In administrative law, the governments of Member States are required to take appropriate measures to ensure the fulfilment of their EU obligations.20 This can be done either through horizontal (i.e., between Member States) or vertical (i.e., between EU institutions and national administrations) cooperation.21 For instance, article 74 of the TFEU provides that the Council shall adopt measures to ensure administrative cooperation in the area of freedom, security and justice. In relation to the CAP, article 41 of the TFEU provides that effective coordination and joint measures may be taken to attain the objectives of the CAP.

2.2. Vertical Cooperation in Rural Development

The implementation of the rural development policy relies largely on the preparation and implementation of national and regional Rural Development Programs (RDPs), which are drawn up by the Member States, at a territorial level.22 The reason for this is that Member States are better placed than the EU administration to identify the most appropriate RDPs according to their national administrative and institutional framework.23 However, considering the disparities between the levels of development of regions across Member States, the objective

14 Consolidated Version of the Treaty on European Union [2008] OJ C115/13 (TEU), art 4(3) TEU

15 Marcus Klammert, The Principle of Loyalty in EU Law (OUP 2014) 9

16 TFEU, art 168.

17 TFEU, art 210

18 Case C-195/90 Commission v Germany [1992] ECR I-3141, para 36; TFEU, art 92

19 Klammert (n 14).

20 Herwig C.H. Hofmann, Research Handbook on EU Administrative Law (Elgar 2017) 21

21 TFEU, art 197(3)

22 EAFRD Regulation, preambles 7-11.

23 Mantino (n 1) 7.

of the EAFRD Regulation seems rather ambitious and unattainable by Member State power alone.24 For this reason, in accordance with the principle of subsidiarity, the EU intervenes by guaranteeing EU finance to support the Member States in the achievement of the sustainable forest management objective.25

This type of cooperation is categorised as vertical, whereby Member State action is supported by the EU, in this case, through the EAFRD fund. Funding is provided for in the preamble of the EAFRD Regulation, which deems cooperation a necessary element to the meeting of objectives contained in the Regulation.26 Moreover, the EAFRD covers transnational cooperation projects between groups and organisations in the agricultural sector in several Member States and relates to several focus areas including the promotion of sustainable management of forests.27

2.3. Horizontal Cooperation in Rural Development

With regard to cooperation between Member States, article 35(1) of the EAFRD Regulation constitutes a measure by which EU support shall be granted to promote forms of cooperation between two entities or more.28 Furthermore, it is specified that such cooperation shall relate to, for instance, the drawing up of forest management plans or equivalent instruments.29

At the national level, the Hispano-Portuguese (or Iberian) Summits have resulted in the creation of several instruments of cooperation between Spain and Portugal,30 such as the Joint CrossBorder Development Strategy (hereinafter, the Joint Strategy),31 adopted following the Iberian Summit in 2018. One of the Joint Strategy’s objectives is ensuring the future sustainability of the territories, which requires, inter alia, strengthening the scientific and administrative cooperation in the protection and management of forests.32 Moreover, the Joint Strategy is

24 EAFRD Regulation, recital 3.

25 ibid

26 EAFRD Regulation, recital 29

27 ibid, recitals 4, 32

28 ‘Guidance document: ‘Co-operation’ measure’ (ec.europa.eu) (2014)

<https://ec.europa.eu/eip/agriculture/sites/agri-eip/files/16_measure_fiche_art_35_co-operation.pdf > accessed

19 October 2022.

29 EAFRD Regulation, art 35(1)

30 Sagrario Moran Blanco, ‘Spain and Portugal: towards shared security in priority sectors for the bilateral relations’ (Ministerio de defensa) (2019) < https://www.ieee.es/en/publicaciones-new/documentos-deinvestigacion/2019/DIEEEINV03-2018Portugal.html > accessed 19 October 2022

31 Joint-Cross Border Development Strategy (Spain-Portugal) (September 2020)

32 ibid, 8-9.

described as a ‘flexible tool’ which allows the adoption of various measures that will ultimately enhance the actions and cooperation by both countries in territorial development.33

3. Forms of Administrative Cooperation

This section explains the ways in which the administrations collaborate – namely, the measures taken by the Portuguese and Spanish authorities under the CAP 2014-20 to attain the EAFRD Regulation forest management objective. Firstly, information exchange networks for rural development, namely the European Network for Rural Development and the National Rural Networks are discussed. Secondly, measures that constitute joint action of the two administrations are explained. Lastly, other measures not provided for in the EAFRD Regulation but that nevertheless contribute to the achievement of its objective are presented.

3.1. Information Sharing

In its preamble, the EAFRD Regulation envisages a European network for rural development, as it would improve the quality of the RDPs through which the rural development policy is implemented.34 Therefore, in conformity with article 52 of the EAFRD Regulation, the European network was set up to facilitate and promote information exchange and cooperation across rural Europe, with the purpose of supporting the improvement and effective implementation of RDPs.35 Moreover, the European Network does not require contributors to become members of the organisation but rather connects stakeholders such as national networks and RDP Managing Authorities and Paying Agencies.36

At Member State level, a national rural network operates in each one to bring together national organisations, bodies and administrations involved in rural development. This type of rural development network is formal and is established by the Member State authorities to support the European-level network.37 In Spain and Portugal, while there are several RDPs applying to

33 ibid

34 EAFRD Regulation, recitals 29, 40

35 European Network for Rural Development (enrd.ec.europa.eu) <https://enrd.ec.europa.eu/home-page_en> accessed 19 October 2022.

36 ibid.

37 ‘Long-Term Vision for Rural Areas’ (2021) 32 EU Rural Review <https://enrd.ec.europa.eu/publications/eurural-review-32-long-term-vision-rural-areas_en accessed >10 December 2022; EAFRD Regulation, recital 43 and art 54.

specific regions, they all operate under a broader National Network Support Unit in each Member State.38

In creating and financing the national rural networks in compliance with the EAFRD Regulation,39 the Spanish and Portuguese administrations aim to increase stakeholders’ involvement in forestry.40 Although this does not involve active cooperation between the Member States, and is therefore considered of a rather low intensity, information sharing is of paramount importance in forestry, where a variety of rural actors provide knowledge and information to the networks.41 Additionally, the increase in cooperation between the administrations results in an improvement of the quality of implementation of RDPs, which contain the sustainable management objective.42

3.2. Joint Action in Cross-Border Territory

Article 6 of the EAFRD Regulation provides that it is the Member States that give effect to the EAFRD through RDPs, which implement a strategy to meet the rural development objectives. Accordingly, Spain and Portugal adopted RDPs for the 2014-20 period. In these two countries there exists a national framework, and consequent RDP, alongside regional RDPs.43 Spain designed 17 regional RDPs, one for each autonomous community, and Portugal designed two, one for Azores and one for Madeira.44 In their national RDPs,45 both Spain and Portugal

38 Portuguese Rural Network (enrd.ec.europa.eu) <https://enrd.ec.europa.eu/networking/nrn-profiles/portugueserural-network_en> accessed 19 October 2022; Spanish Rural Network https://enrd.ec.europa.eu/networking/nrnprofiles/spanish-rural-network_en accessed 19 October 2022.

39 ibid

40 EAFRD Regulation, art. 52-54.

41 ‘Long-Term Vision for Rural Areas’ (2021) 32 EU Rural Review <https://enrd.ec.europa.eu/publications/eurural-review-32-long-term-vision-rural-areas_en accessed >10 December 2022; EAFRD Regulation, recital 12

42 EAFRD Regulation, art 54.

43 ‘Overview of the Rural Development Programmes for 2014-20’

<https://agriculture.ec.europa.eu/document/download/5ca48161-5b83-4d93-bf265587c20c59b1_en?filename=rdp-2014-20-list_en.pdf> accessed on October 16

44 ‘Rural development programmes by country’ (ec.europa.eu) <https://agriculture.ec.europa.eu/commonagricultural-policy/rural-development/country_en> accessed 19 October 2022.

45 It is worthy to note that there is a general national Rural Development Program complemented by regional Development Programs; Rural Well-Being: Geography of opportunities (OECD Rural Studies 2020).

highlight the great area that forests cover in their territories – that being 27.2%46 and 39% respectively –47 and therefore give special attention to forestry.

While the Portuguese RDP focused on enhancing farm viability and promoting the sustainable management of forests and allocated 565 million EUR to this end, forest investments play a minor role in the Spanish RDP, with 88 million EUR allocated to measures for sustainable forestry.48 Despite the different priorities established in the national RDPs, cooperation between the administrations is still possible, and is in fact envisaged in the Joint Strategy.49 As a result, the two countries compromised to strengthen administrative cooperation in risk management and management of agricultural forest pests and diseases.50

Furthermore, the Joint Strategy, abiding by the forest management objective of the EAFRD Regulation, establishes an increase of resources destined for this purpose as one of the joint targets.51 This is particularly relevant for the cross-border area between Spain and Portugal which requires cooperation of all levels of government.52 However, this type of cooperation cannot be accomplished based solely on measures provided by the EAFRD Regulation, but is reinforced by additional EU-funded cross-border programmes.53

3.3. Cooperation outside the EFRD Regulation

In relation to forest management, there are various instruments and projects outside the scope of the EAFRD Regulation that involve cooperation between Member States which contribute towards the Regulation’s objective.

46 ‘Factsheet on 2014-2020 National Rural Development Programme for Spain’

<https://agriculture.ec.europa.eu/document/download/668b3e06-d3bb-45fb-99dc54698fcb048b_en?filename=rdp-rdp-factsheet-spain-rural-network_en.pdf> accessed 19 October 2022.

47 ‘Factsheet on 2014-2020 National Rural Development Programme for Portugal’

<https://agriculture.ec.europa.eu/document/download/ff3226bd-00a7-45bd-bf6fb5f614c75924_en?filename=rdp-factsheet-portugal-continente_en.pdf> accessed 19 October

48 ibid.

49 Joint-Cross Border Development Strategy (n 30).

50 ibid

51 ibid

52 S. Valiente ‘Sustainable Forest Management in Portugal: transition from global policies to local participatory strategies’ (2015) 17(3) Int. Forestry Review.

53 José Manuel Jurado-Almonte, Francisco José Pazos Garcia, ‘Eurocities of the Iberian Borderland: A Second Generation of Border Cooperation Structures. An Analysis of Their Development Strategies’ (2020) 12(6) Sustainability.

3.3.1. The Cross-Forest Project

The Connecting Europe Facility is an instrument involving targeted infrastructure investment at EU level, which, facilitates cross-border interaction between public administrations, businesses and citizens.54 The Connecting Europe Facility co-financed the Cross-Forest project,55 which was conducted between 2018-2021 and was designed with the objective of increasing the care and protection of forests in Spain and Portugal by way of promoting communication between the public administrations of the two countries. 56 In practice, the administrations of each country were required to publish and combine their datasets of forest inventories and maps to create models supporting forest management and forest protection.57 The national institutions that carried out the project were the Spanish Ministry for Ecological Transition and the Demographic Challenge and the Portuguese Directorate-General for Territory', which provided the necessary data for the project.58

In summary, the Cross-Forest project presents a means of procedural cooperation between the two Member States which entails the sharing of information, and consequent successful creation of a database.59 Although this can be considered a rather low intensity of cooperation, it nevertheless contributes towards the objective of forest management set out by the EAFRD Regulation.

3.3.2. The Iberian Centre for the Investigation and Fighting of Forest Fires

Another project that exists outside the EAFRD Regulation, is the Iberian Centre for the Investigation and Fighting of Forest Fires, a cross-border cooperation project between Spain and Portugal. Given the increasing number of forest fires and their severity, the project aims to

54 Connecting Europe Facility (ec.europa.eu) <https://ec.europa.eu/inea/en/connecting-europe-facility> accessed 19 October 2022.

55 Agreement No INEA/CEF/ICT/A2017/1566738.

56 ‘Cross-Forest, a project for harmonisation and promotion of open forest data’ (datos.gob.es) (2021)

<https://datos.gob.es/en/noticia/cross-forest-project-harmonisation-and-promotion-open-forest-data> accessed 19 October 2022.

57 ‘Presentation’ (crossforest.eu) <https://crossforest.eu/presentation/> accessed 19 October 2022.

58 ‘EU forestry explained’ (n 9).

59 Alexandra Fonseca, Ana Luisa Gomes ‘Evaluation of Cross-Forest project developments: preliminary results’ (dgterritorio.gov.pt) (2020)

<https://www.dgterritorio.gov.pt/jiide2020/pdfs/resumos/JIIDE2020_Evaluation_CrossForest_project_develop ments_preliminary_results_ALexandra_Fonseca.pdf> accessed 19 October 2022.

fight forest fires by establishing a centre for cooperation, research and training.60 The project is not funded by the EAFRD but rather the European Rural Development Fund61 and within the framework of the 2014-20 Interreg Cross-Border Cooperation Program V-A SpainPortugal.62 This latter framework foresees joint action between Spain and Portugal with the objective of improving their administrative performance in the cross-border region. The crossborder project involved cooperation between two bordering regions: Andalusia (Spain) and Algarve and Alentejo (Portugal).63 The project was conducted for a period of three years (201921)and enhanced the coordination of border resources related to civil protection and fire and emergency teams’ action protocols.64

Although measures proposed by the project are funded by the European Regional Development Fund rather than the EAFRD,65 the objectives pursued by its framework are in line with those established in the EAFRD Regulation. In particular, article 35(2)(f) – providing for measures contributing to adapting to climate change – and article 21(c) – including measures for the prevention and restoration of damage from forest fires – seem to overlap with the aim of the project.66

4. The future of forest management plans: the New CAP

Thus far, the paper has presented the measures taken by the Spanish and Portuguese administrations under the 2014-20 CAP. However, considering that it will soon be replaced by the New CAP for the period between 2023-27, examining how the transition might influence the sustainability of forest management becomes relevant. For the period from 2021 to 2022 –i.e., the transitional period – Regulation 2020/2220 (the Transitional Regulation) was adopted

60 Centro Ibérico para la Investigación y Lucha contra Incendios Forestales (Iberian Center for the Investigation and Fighting of Forest Fires) <https://cilifo.eu/project?lang=en> accessed 19 October 2022.

61 The European Rural Development Fund (ERDF) and the EAFRD are two different funds that support economic development across all EU countries, in line with the objectives of the Europe 2020 strategy; Regulation (EU) 2015/1017 on the European Fund for Strategic Investments, the European Investment Advisory Hub and the European Investment Project Portal and amending Regulations (EU) No 1291/2013 and (EU) No 1316/2013 the European Fund for Strategic Investments [2015] OJ L 169.

62 Interreg V-A Spain-Portugal (POCTEP) (ec.europa.eu)

<https://ec.europa.eu/regional_policy/en/atlas/programmes/2014-2020/europe/2014tc16rfcb005> accessed 19 October 2022.

63 ‘Spain and Portugal cooperate to tackle destructive megafires’ (ec.europa.eu)

<https://ec.europa.eu/regional_policy/en/newsroom/news/2020/02/02-05-2020-spain-and-portugal-cooperate-totackle-destructive-megafires accessed> 19 October 2022.

64 Joint-Cross Border Development Strategy (n 30).

65 ‘Spain and Portugal cooperate to tackle destructive megafires’ (n 57)

66 See also EAFRD Regulation, art 14.

to enable a smooth transition to the New CAP. The Transitional Regulation has already introduced some novelties, for instance, the new obligation on Member States to, from 2020 onwards, draw up CAP Strategic Plans,67 and to implement them after Commission approval.68

At an EU level, pursuant to the Green Deal,69 which stresses the increasing pressure under which forest ecosystems are due to climate and environmental challenges, the Commission adopted the New EU Forest Strategy for 2030. 70 The purpose of this strategy is ‘setting a vision and concrete actions to improve the quantity and quality of EU forests as well as strengthening their protection, restoration and resilience’.71 The New Forest Strategy provides that all measures be designed and implemented in close cooperation with the Member States, taking into account the national and local authorities and forest stakeholders. Additionally, it promotes forest-related interventions in the New CAP.72

Regarding the two Member States discussed in the paper, the Spanish and Portuguese CAP National Strategic Plans have been already submitted and have received Commission approval,73 pursuant to Regulation 2021/2115 (the Strategic Plan Regulation).74 Following the new policy, which favours a greener CAP,75 both countries pledged a large amount of their budget to fight forest fires and promote afforestation.76 Additionally, at the 32nd Iberian Summit, the two countries expressed their willingness to maintain bilateral relations and to

67 Roberto Cagliero, Francesco Licciardo, and Marzia Legnini ‘The Evaluation Framework in the New CAP 2023–2027: A Reflection in the Light of Lessons Learned from Rural Development’ (2021) 13(10) Sustainability.

68 Transitional Regulation, recital 2

69 Commission ‘The European Green Deal’ COM (2019) 640 Final

70 Commission ‘New EU Forest Strategy for 2030’ COM (2021) 572 Final.

71 ibid.

72 ibid.

73 ‘Brussels approves strategic plans for the CAP of seven countries, including Spain’ <https://thediplomatinspain.com/en/2022/09/brussels-approves-strategic-plans-for-the-cap-of-seven-countriesincluding-spain/> accessed 16 October 2022; ‘Portugal presents to the European Commission the CAP Strategic Plan’ <https://www.portugal.gov.pt/en/gc22/communication/news-item?i=portugal-presents-to-the-europeancommission-the-cap-strategic-plan> accessed 16 October 2022

74 Regulation (EU 2021/2115 establishing rules on support for strategic plans to be drawn up by Member States under the common agricultural policy (CAP Strategic Plans) and financed by the European Agricultural Guarantee Fund (EAGF) and by the European Agricultural Fund for Rural Development (EAFRD) and repealing Regulations (EU) No 1305/2013 and (EU) No 1307/2013 [2021] OJ L 435/1.

75 ibid, recital 125

76 At a glance: Spain’s CAP Strategic Plan < https://agriculture.ec.europa.eu/system/files/2022-09/csp-a-aglance-spain_en.pdf> accessed 15 October 2022.; At a glance: Portugal’s CAP Strategic Plan < https://agriculture.ec.europa.eu/document/download/4d36a2f6-3400-4f5a-89223cb20f91d02a_en?filename=csp-at-a-glance-portugal_en.pdf> accessed 15 October 2022.

carry out joint work.77 This is furthered by the renewal of the Treaty of Friendship and Cooperation,78 which promotes the development of economic activities in the two countries, especially in the agriculture sector.79

5. Conclusion

The paper conducted a study of the Spanish and Portuguese administrations’ relationship in the area of rural development, and more specifically in sustainable forest management. The goal of the paper was to determine whether the cooperation between the administrations of Spain and Portugal during the 2014-20 CAP sufficiently achieved the objective of sustainable forest management as set out in the EAFRD regulation. To this end, three aspects were considered. Firstly, the principle of cooperation was explained as a constitutional principle and then its role in rural development was assessed. Secondly, measures taken by the administrations during the CAP 2014-20 were analysed, encompassing EAFRD and otherwise funded measures that pursued the sustainable forest management objective. Thirdly, the objectives of the New CAP were presented with the purpose of establishing the possible repercussions on the current state of cooperation between Spain and Portugal.

The principle of cooperation, explicitly mentioned in EU legislation – the TFEU and the EAFRD Regulation – connects the EU and the Member States vertically and horizontally in a way in which they work together towards the achievement of rural development goals. At Member State level, cooperation is ensured by the Spanish and Portuguese Joint Strategy, which aims at improving the administrative coordination. As a result, the two countries have a legislative basis at both EU and national level at their disposal allowing them to take the necessary measures in achieving sustainable forestry management.

Moreover, measures which show cooperation between the Spanish and Portuguese administrations were demonstrated. Firstly, the administrative bodies involved in rural development in each Member State are united under a national network, which in turn operates

77 ‘Portugal and Spain sign eight new agreements at the Portuguese-Spanish conference’ (portugal.gov.pt)

<https://www.portugal.gov.pt/en/gc22/communication/news-item?i=portugal-and-spain-sign-eight-newagreements-at-the-portuguese-spanish-conference> accessed 15 October 2022

78 Jesús Cabaleiro Larrán, ‘La 32 cumbre hispano-portuguesa renueva el Tratado de Amistad y Cooperación’ https://aqui.madrid/la-32-cumbre-hispano-portuguesa-renueva-el-tratado-de-amistad-y-cooperacion/> accessed 15 October 2022

79 Treaty of Friendship and Cooperation between Spain and Portugal (Documento [1978] BOE-A-1978-13831 or Resolução 59-A/78), art 4.

under another network at EU level. The purpose of these networks, following the EAFRD Regulation, is to share information as a low intensity form of cooperation. Secondly, given the importance of achieving sustainable management of forests, the large budget allocated to this end by the Spanish and Portuguese RDPs allowed for different measures of cooperation involving different levels of the administrations. However, joint action measures, which imply a higher level of cooperation between administrations, are seen more prominently in crossborder areas and are adopted under additional frameworks. Thirdly, other measures involving information sharing and joint action not provided for in the EAFRD Regulation are also relevant, as they were taken to pursue the same objective of improving forest management.

Lastly, the future of the cooperation between Spain and Portugal was briefly explained. The relevance of this is the possibility that the transition towards the New CAP might alter the forms of cooperation that are currently in place. However, the Spanish and Portuguese New CAP Strategic Plans both allocate a large budget to forest management, and declarations confirming willingness to maintain the relation of cooperation by both governments show their intentions for the future.

In conclusion, the Spanish and Portuguese administrations have taken a range of administrative measures of cooperation to comply with their obligation to improve forest management set out in the 2014-20 CAP and specified in the EAFRD Regulation. However –to the detriment of attaining a sustainable management of forests – most of the measures taken still present a low intensity of cooperation, while higher levels of cooperation through jointaction is still largely limited to cross-border regions and dependent of additional frameworks. This indicates that despite the insufficiency of the cooperation measures envisaged in EAFRD Regulation to attain its own sustainable forest management objective, the Member States have resorted to additional forms of cooperation outside the EAFRD Regulation to comply with their obligation. Finally, it is unlikely that the New CAP will alter the relation of cooperation between Spain and Portugal. However, it is yet to be seen whether the transition will entail greater cooperation to better ensure sustainability in forestry management.

In recent decades investor-state disputes have been on the rise, resulting in an increasing number of international investment agreements (hereinafter IIAs) being concluded. And while IIAs have made it possible for foreign investors as natural persons to initiate different types of proceedings, including arbitration, directly against the state which the investment has been made in,1 many IIAs do not clearly mention what specific rights investors have when bringing their claim before a tribunal.2 In today’s highly globalised world, the number of dual national citizens is constantly growing and private investors holding a nationality of more than one country have faced numerous issues when trying to invoke their right to investment protection, guarded by the applicable IIA.3 With a lack of proper regulation contained in IIAs, courts and tribunals have reached contrasting decisions in the past years on whether dual nationals can sue one of their respective countries under the rules of international investment law and thus invoke their rights which derive from their status as a “foreign” investor.

A bilateral investment treaty (hereinafter BIT) is a type of international investment agreement concluded between two countries in order to promote and protect private investments made by nationals of the signatory states in the other country’s territory.4 Bilateral investment treaties belong to the most widely used IIAs in the world, with 2221 currently in force.5 Despite their extensive use in investor-state dispute settlement cases, many bilateral investment treaties fail to provide a proper definition of the term “investor,” leaving questions on whether a natural person, as a national of both contracting states to the BIT, would qualify as an “investor” under the definition provided by that relevant treaty. The most recent BIT in force concluded between Hungary and the United Arab Emirates6 defines the term “investor” as “any natural or legal person of one Contracting Party that has made an investment in the territory of another Contracting Party.” The definition of “natural person” is further explained

1 Julien Chaisse, Leila Choukroune and Sufian Jusoh, Handbook of International Investment Law and Policy, vol 1(Springer Singapore 2021) 14.

2 SW Schill, International Investment Law and Comparative Public Law (Oxford University Press 2010) 6.

3 Kabir Duggal and Naghmeh Javadpour, “Dual Nationality of Investor” (Jus Mundi) <https://jusmundi.com/en/document /publication/en-nationality-of-investor-dual-nationality> accessed 6 December 2022.

4 “Bilateral Investment Treaty (Bit) | Practical Law” <https://uk.practicallaw. thomsonreuters.com> accessed 19 January 2023.

5 UNCTAD, International Investment Agreements Navigator, UNCTAD Investment Policy Hub <https://investmentpolicy.unctad.org/international-investment-agreements> accessed 5 December 2022.

6 Agreement between the Government of Hungary and the Government of the United Arab Emirates for the Promotion and Reciprocal Protection of Investments (10 April 2022) (Hungary–UAE BIT), art 1(2).

as “any individual having the citizenship of either Contracting Party in accordance with its laws.” This example goes to show that even the BIT which has come into force most recently does not explicitly exclude dual nationals from bringing an action against the host state. In practice however, dual national investors have faced various predicaments in which they have been denied jurisdiction when bringing such claims against the host state.

This article will focus on the frequently arising issues in investor-state dispute settlement cases involving dual national investors as claimants. It will aim to answer the question of how consistent have tribunals and courts across the globe been in adjudicating cases of dual national investors. In order to answer this question, the concept of personal jurisdiction and how the nationality of the investor relates to it will be examined in the first section of this article. In the second and third section, primary legal sources, specifically the ICSID Convention7 and the UNCITRAL Arbitration Rules,8 will be evaluated and compared to each other, pointing out major differences between them with regard to how they regulate the standing of dual national investors. Subsequently, case law involving dual national investors as claimants will be described and compared, illustrating how in certain situations, dual national investors were successful in bringing their claims to a tribunal, whereas in other instances, tribunals declared themselves not to have jurisdiction over the case at hand due to the investor’s dual nationality. This article adopts a descriptive and comparative approach, aiming to highlight the urgent need for fixed rules on the regulation of dual national investors as claimants.

2. Exercising ratione personae Jurisdiction Over Dual National Investors

A crucial prerequisite to investors bringing claims against the state which their investment has been made in, is the valid jurisdiction of the tribunal.9 Personal jurisdiction, the so-called ratione personae jurisdiction, concerns the question of whether a claimant qualifies as a “foreign investor” in order to claim protection under the relevant investment treaty.10 It is generally accepted that initiating proceedings against the state of the investor’s own nationality

7 ICSID Convention, Regulations and Rules. Washington, D.C.: International Centre for Settlement of Investment Disputes 2003.

88 Arbitration Rules of the United Nations Commission on International Trade Law (UNCITRAL Arbitration Rules) (1976).

9 Mark Mangan and Noah Rubins, The Guide to Investment Treaty Protection and Enforcement (Law Business Research Ltd 2021).

10 Filip Balcerzak, Investor - State Arbitration and Human Rights (BRILL 2017) 108.

may give rise to treaty abuse, but what about potential claimants who happen to be citizens of both countries to the applicable BIT? Would a dual national investor be able to qualify as a foreign investor in order to invoke their rights under international investment law and thus initiate proceedings against the host state of their investment, which also happens to be one of their two home countries?

Given that for the purposes of investment-treaty protection, investors must always be defined by their nationality,11 establishing whether tribunals have ratione personae jurisdiction over such investors is particularly problematic. As was seen in the aforementioned example of the Hungary–UAE BIT, most BITs still define the terms “investor” and “national” rather vaguely. Hence, courts and tribunals have often had to rely on public international law to fill the lacunae caused by the lack of specificity regarding the ratione personae jurisdiction of dual nationals in IIAs.12

3. The Nottebohm Test of Dominant and Effective Nationality

Having established that a claimant holds more than one nationality of the Contracting Parties to the dispute, tribunals have often applied the customary international law rule of “dominant and effective nationality test” to determine which of the two nationalities the investor has closer ties to. This test was first applied in 1955 in the Nottebohm case.13 The case examines the question of whether the state of Lichtenstein could exercise diplomatic protection over Mr. Nottebohm who, although a German national by birth, later in life also acquired the nationality of Lichtenstein. Mr. Nottebohm had only applied to become a national of Lichtenstein after the Second World War began in order to replace his German nationality with the nationality of a neutral state. The International Court of Justice held that Mr. Nottebohm’s ties with Lichtenstein were not as strong to allow Lichtenstein the exercise of diplomatic protection over Mr. Nottebohm, given that his dominant and effective nationality was clearly the one of Germany.14 The principle of dominant and effective nationality must therefore entail a meaningful connection to the respective state, which Mr. Nottebohm was lacking in this case.

11 Zachary Douglas, The International Law of Investment Claims (Cambridge University Press 2012) 20.

12 C Vijayvergia, “Dual Nationality of a Private Investor in Investment Treaty Arbitration: A Potential Barrier to the Exercise of Jurisdiction Ratione Personae” (ICSID Review) <https://academic.oup.com/icsidreview/articleabstract36/1/150/6252394> accessed 6 December 2022.

13 Nottebohm (Lichtenstein v Guatemala), Judgement of 6 April 1955.

14 ibid.

Although the Nottebohm case did not concern investment-treaty arbitration, the principle of dominant and effective nationality survived and has even gained significant importance for tribunals when deciding on whether they may exercise jurisdiction ratione personae over an investor of dual nationality. This is due to the fact that the investor-state dispute settlement mechanisms are based on the idea that investment protection under the relevant treaty extends to foreign investors, therefore investors that are nationals of a contracting state other than the one which the investment is made in.15 The Nottebohm test thus aims to establish which of the two nationalities of the investor is the “genuine” one for the purpose of treaty protection.

4. Defining an “Investor” Under ICSID Arbitration Rules

All current BITs in force mention which forums are available to the claimant in order to settle a dispute between a foreign investor and the state of their investment.16 The leading institution devoted to settling investor-state disputes is the International Centre for Settlement of Investment Disputes (hereinafter ICSID), established by the ICSID Convention. While some BITs, such as the Netherlands–UAE BIT,17 only allow for ICSID fora to settle international investment disputes, other BITs may include additional international forums, or perhaps even domestic ones. This is exemplified in the Netherlands-Serbia BIT,18 which, alongside ICSID arbitration, includes an additional international forum for dispute settlement for ad hoc tribunals to hear and decide on the matter. A forum widely used for investor-state dispute settlement is UNCITRAL, which will be introduced and evaluated in Section 3 of this article.

The ICSID Convention, as one of the very few international investment treaties, gives a clear definition of the term “investor,” and therefore regulates the standing of dual national investors before its tribunals. Article 25(1) of the ICSID Convention19 states that for an ICSID tribunal to exercise its jurisdiction over an investor, there must be a dispute between a contracting state and a national of another contracting state. The investor must therefore fall

15 Mezzera MV and Duggal Kabir, “Dominant and Effective Nationality” (Jus Mundi) <https://jusmundi.com/ en/document/publication/en-dominant-and-effective-nationality> accessed December 8, 2022.

16 “IIA navigator” (International Investment Agreements Navigator | UNCTAD Investment Policy Hub). Available at: https://investmentpolicy.unctad.org/international-investment-agreements (Accessed: December 6, 2022).

17 Netherlands-United Arab Emirates BIT (2013).

18 Netherlands-Serbia BIT (2002).

19 ICSID Convention, Regulations and Rules. Washington, D.C.: International Centre for Settlement of Investment Disputes 2003, art 25.

under the definition of a “national of another contracting state.” Article 25(2)(a) of the Convention20 then continues to specify what “national of another contracting state” means. It does so by setting out two requirements, the first one being a positive requirement where the investor must be a national of a contracting state to the investment treaty. The second requirement, which is the negative one, lays down that the investor may not be a national of the host state.21 These definitions provided by Article 25 of the Convention are thus clear to exclude dual nationals wishing to initiate proceedings under the ICSID tribunals against the host state of their investment, which they are also citizens of.

5. The Nottebohm Test in ICSID Jurisdiction

In the Champion Trading case,22 the claimants were dual nationals of both the United States of America and The Arab Republic of Egypt and filed an arbitral request against Egypt under the ICSID forum. The dual nationals claimed that under the international law principle of dominant and effective nationality as established in the Nottebohm case, they could not be considered Egyptian citizens as their dominant and effective nationality was the one of the United States.23 The tribunal, however, reached a different conclusion given the strict prohibition to sue the country which the claimant is also a national of, and declared itself as not having jurisdiction over the individual claimants.24 Thus, the customary international law test of “dominant and effective nationality” established in the Nottebohm case is particularly irrelevant under ICSID jurisdiction, as ICSID rules strictly prohibit claims of dual national investors under all circumstances.25 However, ICSID is not the only forum available for international investment claims to be brought. In fact, alternative arbitration rules have been much preferred by dual national claimants for obvious reasons.26

20 ibid, art 25(2)(a).

21 Julien Chaisse, Leila Choukroune and Sufian Jusoh, Handbook of International Investment Law and Policy, vol 1(Springer Singapore 2021) 53.

22 Champion Trading Company, Ameritrade International, Inc v Arab Republic of Egypt, ICSID Case No ARB/02/9, Decision on Jurisdiction (21 October 2003).

23 ibid, para 37.

24 ibid, paras 59 and 64.

25 Julien Chaisse, Leila Choukroune and Sufian Jusoh, Handbook of International Investment Law and Policy, vol 1(Springer Singapore 2021) 61.

26 IIA navigator (International Investment Agreements Navigator, UNCTAD Investment Policy Hub) <https://investmentpolicy.unctad.org/international-investment-agreements>accessed 6 December 6 2022.

6. (Not) Defining an “Investor” Under UNCITRAL Arbitration Rules

Unlike ICSID rules, the United Nations Commission on International Trade Law (hereinafter UNCITRAL) arbitration rules are completely silent on whether a dual national investor would fall within or outside the scope of the term “investor.”27 Since UNCITRAL rules were primarily developed in the context of commercial arbitration, they do not contain any provision similar to the one found in Article 25 of the ICSID Convention. Therefore, arguments that dual nationals are allowed to bring claims against the host state, which they happen to also be a citizen of, have been brought forward on many occasions. As a result of the more lenient arbitration rules, dual national investors have favoured initiating arbitral proceedings under UNCITRAL rules over those of ICSID.28

6.1.Acceptance of Jurisdiction in Serafín García Armas v Venezuela

A landmark decision in an investment-treaty arbitration case concerning dual national investors as claimants was reached in the Serafín García v Venezuela case29 (hereinafter Serafín), brought on the basis of UNCITRAL arbitration rules. In 1995, the Republic of Venezuela and the Kingdom of Spain concluded a BIT,30 which defined an investor as “any physical person who possesses the nationality of one contracting party and makes investments in the territory of the other contracting party.”31 Despite no clear exclusion of dual national investors, Venezuela nonetheless argued that the tribunal does not have jurisdiction ratione personae over the claimants, as they fail to qualify as “investors” given their double nationality of Spain and Venezuela, which would result in the claimants suing their own state in an international forum.32

Since neither UNCITRAL arbitration rules nor the Spain-Venezuela BIT properly regulated the standing of dual nationals, Venezuela turned to public international law, particularly the test of dominant and effective nationality, to support its claims.33 Despite the

27 C Vijayvergia, “Dual Nationality of a Private Investor in Investment Treaty Arbitration: A Potential Barrier to the Exercise of Jurisdiction Ratione Personae” (ICSID Review) <https://academic.oup.com/icsidreview/articleabstract36/1/150/6252394> accessed 6 December 2022.

28 ibid.

29 Serafín García Armas and Karina García Gruber v Bolivarian Republic of Venezuela, PCA Case No 2013-3, Decision on Jurisdiction (15 December 2014)

30 Spain-Venezuela BIT (1995).

31 Spain-Venezuela BIT (1995) art 1 (a).

32 Serafín, Decision on Jurisdiction. para 83.

33 ibid. para 107-117.

fact that the claimants’ dominant and effective nationality was shown to be the one of Venezuela,34 the tribunal accepted jurisdiction over the case, rendering Venezuela’s claims unsuccessful. The tribunal held that the principle of dominant and effective nationality established in the Nottebohm case of diplomatic protection could not be applied to investorstate disputes where an existing BIT was in place and hence prevailed over customary international rules as lex specialis, despite the BIT being indistinct.35 The Serafín García v Venezuela case therefore established that silence on the exclusion of dual nationals as investors in the relevant investment treaty suffices to allow dual national investors to bring claims against their state of nationality under UNCITRAL arbitration rules, regardless of whether the Nottebohm test was fulfilled.

In a more recent development, the International Chamber of the Paris Court of Appeal annulled the famous Serafín decision on the grounds that the dual national investors did not have the Spanish nationality at the time of making the investment.36 In 2001, when the investment had been made, the investors did not yet have the Spanish nationality and were only nationals of Venezuela. As a result, Venezuela argued that the investment failed to qualify as a “foreign investment.”37 For an investment to be protected under the Spain-Venezuela BIT, it must be made by an investor of another contracting state for it to fulfil the ratione materie requirement,38 known also as subject-matter jurisdiction.39 As a result, in 2017, the Paris Court of Appeal annulled the Serafín decision in part due to the lack of jurisdiction ratione materiae. The French Court of Cassation however claimed that the Paris Court of Appeal did not draw sufficient consequences to its findings and decided to refer the case back to the Paris Court of Appeal.40 Therefore, in 2020, the Paris Court of Appeal reached the decision to annul the Serafín case in full, given that the tribunal failed to verify which nationality the investors had on the day of their investment, and thus wrongly declared itself to have jurisdiction to hear the

34 ibid. para 57-67.

35 Olmedo JG, ‘Claims by Dual Nationals under Investment Treaties: Are Investors Entitled to Sue Their Own States?’ (2017) Journal of International Dispute Settlement vol. 8, 3-5.

36 Serafín García Armas and Karina García Gruber v Bolivarian Republic of Venezuela, PCA Case No 2013-3, Judgement of Paris Court of Appeal (3 June 2020), paras 36 and 59.

37 ibid, para 37.

38 ibid, para 51.

39 S Weber, ‘Wiki Note: Jurisdiction Ratione Materiae’ (Jus Mundi)

<https://jusmundi.com/en/document/publication/en-jurisdiction-ratione-materiae> accessed 19 January 2023

40 ibid.

claim.41 Although the International Chamber of the Paris Court of Appeal only found a lack of jurisdiction ratione materiae, it nevertheless decided to annul the case in full.

Despite its recent annulment, the Serafín case was a ground-breaking case paving a way for dual nationals to bring claims before a tribunal simply on the basis that the BIT does not contain any provision prohibiting them from doing so. Moreover, the annulment of the case only related to the jurisdiction ratione materiae, and courts have referred to the Serafín case with issues surrounding the jurisdiction ratione personae relating to dual nationals even after its annulment, as will be seen when assessing the Bahgat v Egypt case in Section 5 of this article.

It can therefore be argued, that despite its annulment, Serafín still remains a crucially important case as it established that the tribunal may have jurisdiction ratione personae even when the relevant BIT is silent on the matter of dual nationality, when brought under UNCITRAL arbitration rules.

6.2. Comparing ICSID and UNCITRAL: Who is an “Investor?”

While under ICSID arbitration rules, the investor is strictly forbidden from initiating proceedings against one of the states of his nationality due to the specific clause in Article 25 of the Convention, UNCITRAL rules have shown a broader and more liberal approach to this matter. From the original ruling of the above-mentioned case of Serafín, which for many years was referred to by arbitral tribunals when deciding on a case, it could be assumed that dual national investors are always permitted to bring their claims before the appropriate tribunal to exercise personal jurisdiction over them. This assumption is, however, incorrect, as the silence of UNCITRAL arbitration rules on the definition of a foreign investor does not guarantee the standing of an investor in front of a tribunal.

On many occasions, there has been inconsistency when it comes to the acceptance of cases brought by dual national investors. Some claims brought by dual national investors under UNCITRAL have been rejected, while other claims have been accepted. In fact, the two recent cases which have made their way up to the Hague Court of Appeal have reached opposite outcomes on the standing of dual nationals, despite both cases being brought on the basis of

41 Serafín García Armas and Karina García Gruber v Bolivarian Republic of Venezuela, PCA Case No 2013-3, Judgement of Paris Court of Appeal (3 June 2020), para 53.

UNCITRAL arbitration rules.42 The first case brought before the Hague Court of Appeal was the case of Manuel Garcia v Venezuela, 43 in which the investors’ claims were denied due to lack of jurisdiction ratione personae. On the other hand, in the second case of Bahgat v Egypt,44 the Hague district court allowed the dual national investor to bring claims against the host country to his investment, Egypt, and even made references to the aforementioned Serafín case when deciding on the jurisdiction ratione personae. Moreover, the Hague Court of Appeal agreed with the conclusion made by the Hague District when deciding on jurisdiction. This inconsistency in the decisions of courts and tribunals, alongside the absence of clear provisions in investment agreements, raises serious questions concerning the lack of legal certainty.45

7. The Denial of Jurisdiction in Manuel García and others v Venezuela

The claimants in the case of Manuel García and others v Venezuela (hereinafter Manuel), being nationals of both Spain and Venezuela, initiated arbitration proceedings against the host state of their investment, Venezuela, for wrongful expropriation. The rules which the claims chose to bring their claims on were the UNCITRAL arbitration rules. According to the facts of the case, some of the claimants were born in Spain and subsequently moved to Venezuela, whereas others were already born in Venezuela but retained their Spanish nationality. Similar to the Serafín case, Venezuela raised an objection and argued a lack of jurisdiction ratione personae. To properly establish the nationality of the claimants, the tribunal opted to apply the Nottebohm test, which determined the claimants’ dominant and effective nationality to be that of Venezuela.46 The claimants turned to the Serafín case in which the court rejected Venezuela’s objection to the dual nationality of the claimants.47 Unlike in Serafín however, the tribunal decided that the silence of the Spain-Venezuela BIT on who qualifies as an “investor” does not automatically authorise dual national claimants to initiate proceedings against a state they are a citizen of.

42 Hezewijk Jvan and Pangrazio ED, “Dutch District Court Rules on Dual Nationality Issue under Finland-Egypt Bit” (Lexology May 5, 2022) <https://www.lexology.com/commentary/arbitration-adr/netherlands/freshfieldsbruckhaus-deringer-llp/dutch-district-court-rules-on-dual-nationality-issue-under-finland-egyptbit#Arbitral%20tribunal> accessed 7 December 2022.

43 Manuel García Armas and others v Bolivarian Republic of Venezuela, PCA Case No 2016-08, Judgement of the Hague Court of Appeal (19 January 2021).

44 Mohamed Abdel Raouf Bahgat v Arab Republic of Egypt, PCA Case No 2012–07, Judgement of the Hague Court of Appeal (16 November 2021).

45 Stoll PT, International investment Law and the Rule of Law 281.

46Manuel García Armas and others v Bolivarian Republic of Venezuela, PCA Case No 2016-08, Award on Jurisdiction (13 December 2019)

47 ibid. para 334.

Additionally, the tribunal concluded that principles of international law would apply in cases where the applicable BIT does not provide an express provision on dual nationals.48 Consequently, this decision was upheld in the Hague Court of Appeal, deviating entirely from the decision and reasoning brought forward in the original Serafín ruling. Even though initially, the Permanent Court of Arbitration in the Hague explicitly stated that the 2017 decision of the Paris Court of Appeal had not annulled the ratione personae jurisdiction in the Serafín case, it still held that the claimants could not fully rely on it due to it being referred to the Paris Court of Appeal for a second time by the French Cassation Court. Thus, the Hague Court of Appeal has upheld the verdict given by the arbitral tribunal in the Hague, reaching a different conclusion than was given in Serafín on the jurisdiction ratione personae, despite both cases being brought under the Spain-Venezuela BIT and having chosen UNCITRAL rules to govern the procedure. This demonstrates that, despite the fact the Serafín case had still not been fully annulled, and its ratione personae jurisdiction conclusion was still intact at the time of the Manuel ruling, a diverging decision on the admissibility of the claims of dual nationals had nonetheless been reached.

8. The Acceptance of Jurisdiction in Bahgat v Egypt

The second case brought to the Dutch Courts, specifically the District Court of the Hague, is the Bahgat v Egypt case. The main issue in this case was whether the claimant, Mr. Bahgat, as a citizen of both Finland and Egypt, could initiate proceedings against the host-state of his investment, Egypt.49 Mr. Bahgat acquired Egyptian nationality by birth and later also became a citizen of Finland.50

To establish whether the dual national claimant would be able to bring such claims against Egypt, the court turned to the applicable BIT, which was the Egypt-Finland BIT. This BIT defines an “investor” as “any natural person who is a national of either Contracting Party in accordance with its laws.”51 With yet another vague definition, and, with no regulation by the UNCITRAL rules, the tribunals and courts were therefore left with more discretion over the matter. The case was decided in favour of the Finish-Egyptian investor, as the Hague District Court held that as UNCITRAL rules do not prohibit dual national investors from

48 ibid. para 404.

49 Mohamed Abdel Raouf Bahgat v Arab Republic of Egypt, PCA Case No 2012–07, Decision on Jurisdiction, para 79.

50 ibid para 84-87.

51 Finland-Egypt BIT, art 1(3).

bringing a claim.52 The Hague District Court referred to the case of Serafín, which held that no explicit prohibition in the pertinent BIT does not pose a bar to the exercise of ratione personae jurisdiction of the tribunal. This ruling was upheld during the appeal in the Hague Court of Appeal in November 2021, after the Serafín case has already been annulled. This demonstrates that even after the Serafín ruling, which enabled a dual national to bring claims against one of their countries of nationality simply on the grounds that the applicable BIT does not prohibit them from doing so, had been annulled, the Bahgat v Egypt case has nevertheless accepted personal jurisdiction over a dual national investor just like in Serafín. Moreover, the Court did not apply the doctrine of dominant and effective nationality at full, as it was clearly indicated that Mr. Bahgat’s stronger nationality was the one of Finland. Mr. Bahgat lived in Finland since 1971 and acquired Finnish nationality long before he had brought arbitral proceedings against Egypt or made any investments there. Mr. Bahgat also paid taxes in Finland, therefore, his ties to the country were undoubtedly seen as genuine.53

The cases of Manuel García v Venezuela and Bahgat v Egypt demonstrate the inconsistency of courts when deciding on whether the dual nationality of investors presents an obstacle to the exercise of ratione personae jurisdiction over the claimants. While in Bahgat v Egypt the claimant was successful in commencing arbitral proceedings against one of his countries which was also the host state to the investment, in the Manuel García v Venezuela case, the dual national claimants were denied jurisdiction.

9. Conclusion

This article aimed to answer the question of how consistent have tribunals and courts around the globe been in adjudication over dual national investors. Based on the assessment of the case law in this article, it can be concluded that courts and tribunals have not been adjudicating over dual national investors consistently. This is because in certain situations dual national investors were able to successfully bring their claims against one of their states of nationality, such as in the Bahgat v Egypt case. In other cases, however, tribunals declared themselves incompetent to hold personal jurisdiction over the claimants and therefore rejected the claims of dual national investors, as was exemplified in the Manuel García case. The issue underlying this question is the lack of a clear set of rules on whether a dual national investor fits into the

52 Mohamed Abdel Raouf Bahgat v Arab Republic of Egypt, PCA Case No 2012–07, Decision on Jurisdiction, para 224.

53 ibid, para 231.

definition of “investor” in cases where neither the relevant BIT, nor the arbitration rules in use explicitly exclude dual nationals.

The source of discrepancies between court and tribunal judgements on whether dual nationals are in fact permitted to bring claims against their country on the basis of their second nationality, is the reality that no uniform rules exist, which would apply to all investor-state disputes involving dual nationals. The investors’ options are rather limited when selecting a forum for arbitration, as under ICSID they will be automatically excluded. However, in choosing ad hoc rules for arbitration, such as the UNCITRAL rules, the principle of legal certainty may be at stake with such diverging decision being reached in the past.

What can undeniably be concluded is the fact that the rights of dual national investors to bring claims against one of their states vary significantly, depending on the forum they choose to resolve their dispute under. While it clearly stems from Article 25 of the ICSID Convention that dual nationals are excluded from the tribunal’s jurisdiction ratione personae, UNCITRAL rules, on the contrary, provide no guidance whatsoever on the standing of dual national investors. And while under ICSID arbitration rules the Nottebohm test of dominant and effective nationality does not play a role, it has been demonstrated that UNCITRAL tribunals have on some occasions looked to this customary international principle to establish stronger ties to one of the claimant’s countries.

This article also briefly compared the two UNCITRAL cases, brought under the SpainVenezuela BIT concerning dual national investors from both Spain and Venezuela. Despite the numerous similarities in the facts of the case, as well as applying the same set of rules, the tribunals reached opposite verdicts, demonstrating the lack of legal certainty which dual national investors must face. Moreover, the Manuel case had been brought all the way to the Hague Court of Appeal, which upheld that the lenient provisions in the BIT do not guarantee the claimant of dual nationality automatic standing before tribunals.

Once again, in contrasting the Manuel decision against the Bahgat case which was referred to the Dutch District Court and subsequently the Hague Court of Appeal, opposite decisions were reached, although both cases concerned the issue of dual nationals and were both brought before Dutch courts in very recent years. Given the silence of UNCITRAL rules on the ratione personae jurisdiction of dual national investors and no clear guidance on how to interpret definitions as “investor” or “national,” future fixed rules which would apply to

investors holding two nationalities would be of the essence. With more and more countries around the world allowing their nationals to also hold a citizenship of another country,54 IIAs should adopt clauses regulating the personal jurisdiction of such dual national investors in order to avoid future disparities between the rights of private investors.

54 Global Dual Citizenship Database (Maastricht Centre for Citizenship, Migration and Development (MACIMIDE) 29 May 2020) <https://macimide.maastrichtuniversity.nl/dual-cit-database/> accessed 19 January 2023.

For European Union (EU) nationals, the Netherlands is one of the most attractive countries to pursue their higher education. Some of the most prominent international institutions are established there and many programmes are taught in English. Moreover, since Brexit, the number of non-Dutch EU students in the Netherlands has been increasing rapidly.1 In light of this, the topic of this paper concerns the situation of many non-Dutch EU nationals studying in the Netherlands who have made use of the country's public transport and have found that Dutch students get de facto different treatment, that is, they pay significantly less for public transport thanks to a so-called reisproduct falling under financial aid for students. Many authors have written about the free movement of persons and the principle of non-discrimination in the European Union.2 The added value of this article lies in its assessment of the specific and practically relevant situation of public transport for non-Dutch EU students. The topic can be assessed from different legal bases, such as Dutch law or the European Convention on Human Rights, or the EU law. For the feasibility of the research, the evaluation will be limited to the perspective of EU and Dutch law. The research question in this article is: Under what conditions does European Union law allow for different treatment of non-Dutch European Union citizens studying in the Netherlands, compared to Dutch citizens studying in the Netherlands, in regard to the factual cost of public transport?

Article 18 of the Treaty on the Functioning of the European Union (TFEU) prohibits any discrimination on grounds of nationality. However, despite the importance of this provision for free movement rights,3 the principle of non-discrimination is subject to several limitations.4 The applicability of non-discrimination depends upon the specific situation in individual cases. Two situations that are specifically relevant to the purpose of this article will be examined in more detail. Firstly, the article assesses the situation of an EU citizen who does not possess the status of a worker. Secondly, the article assesses the situation of an EU national who is

1 Statistics Netherlands, '40 percent international first-year students at Dutch universities' (Statistics Netherlands, 28 March 2022) <https://www.cbs.nl/en-gb/news/2022/11/40-percent-international-first-yearstudents-at-dutch-universities> accessed 2 January 2023

2 Gareth Davies, Nationality Discrimination in the European Internal Market (Kluwer Law International, 2003); Catherine Barnard, ‘Free movement of natural persons and citizenship of the Union’ in Catherine Barnard and Steve Peers (eds), European Union Law (4th edn, OUP 2020); Niamh Nic Shuibhne, The coherence of EU free movement law: constitutional responsibility and the Court of Justice (OUP, 2014).

3 Nigel Foster, EU Law (4th edn, OUP 2013) 281

4 Gareth Davies, Nationality Discrimination in the European Internal Market (Kluwer Law International, 2003) 187-188.

considered to be a worker. Lastly, the public transportation benefit in the Netherlands is considered in more detail along with the interplay between the applicable EU and Dutch law.

2. Non-Discrimination of Foreign EU Students Concerning Public Transport by Virtue of European Citizenship in the Netherlands

The concept of European citizenship was formally introduced in the Maastricht Treaty, with the aim of fostering the rights of nationals of the EU Member States.5 This can be understood in a broader context as a part of the transformation from the EU as an economic community to a political community. 6

2.1. Non-Discrimination of European Citizens under Primary EU Law

Based on article 20(1) of the TFEU, all nationals of the Member States of the EU are considered citizens of the Union. Importantly, this citizenship is complementary to national citizenship.7Citizenship rights are enumerated under article 20(2) of the TFEU. Although this provision does not mention the right to non-discrimination, the principle of freedom of movement can be found here.8 This is a broad concept encompassing, inter alia, the right to move throughout the Union without a passport, the right to equal access to work, and the right to residence. Importantly for EU citizens, the Court of Justice of the European Union (CJEU or Court) has confirmed the direct effect of articles 20 and 21 TFEU.9 Citizens can, therefore, rely on these articles and invoke them before national courts.

2.2. Non-Discrimination of European Citizens under Secondary EU Law

Further rights have been elaborated in the Citizens’ Rights Directive 2004/38 (Citizenship Directive). The Directive consolidated pre-existing law and created a single legal regime for free movement and residence within the context of citizenship.10 The right to equal treatment can be found under article 24; this protects any European citizen residing in another Member State from being treated differently from the nationals of that Member State. In this context,

5 Consolidated version of the Treaty on the Functioning of the European Union [2012] OJ C326/49 (TFEU), arts 20-24.

6 Paul Craig and Gráinne de Búrca, European Union Law: Substantive Law (OUP 2017) 246

7 Consolidated version of the Treaty on the Functioning of the European Union [2012] OJ C326/49 (TFEU) art 20 (1).

8 Paul Craig and Gráinne de Búrca, European Union Law: Substantive Law (OUP 2017) 746

9 Nigel Foster, EU Law (4th edn, OUP 2013) 322

10 Paul Craig and Gráinne de Búrca, European Union Law: Substantive Law (OUP 2017) 857.

equal treatment and non-discrimination are used interchangeably and can be treated as synonyms.11 Importantly, out of fear that foreign students would live off the generous student grants provided for by some Member States,12 the legislator has stipulated in article 24(2) that Member States are not obliged to grant students social assistance during the first three months of residence in another Member State or for a longer period before the acquisition of a permanent residence. With article 24(2) of the Citizenship Directive, the legislator effectively excluded ‘maintenance aid for studies, including vocational training, consisting in student grants or loans’ from the scope of provisions on non-discrimination under both primary and secondary law. Case law deals more specifically with the implications of the provision. In the case of Bidar, 13 the Court had to determine whether a student could still be eligible for a student grant relying on the combined reading of articles 18 and article 21 of the TFEU.

The Court recognised that there might be situations in which the host State can decide to restrict access to student maintenance grants,14 namely, when the Member State proves that the student in question lacks a sufficient degree of integration into its society.15 However, what would constitute sufficient degree of integration remained unclear. The CJEU clarified the question of the legality of the requirement of five years of permanent residence in the case Förster v Netherlands 16 A German national studying in the Netherlands was denied a maintenance grant by the Dutch authorities after she stopped working.17 The question that arose before the Court was whether the student could still be entitled to the grant due to the sufficient degree of her integration despite not residing in the Netherlands for five years. The Court sided with the Netherlands and declared that it was possible to deny the grant to Ms. Förster. In line with the Court's ruling, to be sufficiently integrated, one needs to lawfully reside in that

11 Nigel Foster, EU Law (4th edn, OUP 2013) 379

12 Damian Chalmers and Gareth Davies and Giorgio Monti, European Union Law: Text and Materials (4th edn, Cambridge University Press 2019) 491.

13 Case C-209/03 The Queen, on the application of Dany Bidar v London Borough of Ealing and Secretary of State for Education and Skills [2005] ECR I-05969, paras 31– 42

14 Paul Craig and Gráinne de Búrca, European Union Law: Substantive Law (OUP 2017) 879

15 Case C-209/03 The Queen, on the application of Dany Bidar v London Borough of Ealing and Secretary of State for Education and Skills [2005] ECR I-05969 paras 31 – 42

16 Case C-158/07 Jacqueline Förster v Hoofddirectie van de Informatie Beheer Groep [2008] ECR I-08507, para 52

17 Case C-158/07 Jacqueline Förster v Hoofddirectie van de Informatie Beheer Groep [2008] ECR I-08507, paras 34–42.

Member State for an uninterrupted period of five years.18 This condition has been declared proportionate and in line with EU law.19

2.3. Implications for the Non-working Non-Dutch EU Students in the Netherlands

Considering the applicable EU primary and secondary law and its interpretation by the CJEU, Member States such as the Netherlands can lawfully deny maintenance aid for students who are nationals of other Member States unless the students are permanent residents. Under article 16(1) of the Citizenship Directive, permanent residence can be given to a citizen who has lawfully resided for five years in another Member State.

In this context, article 7(1) of the Citizenship Directive indicates that lawful residence is granted to Union citizens, or their accompanying family members, who are either workers or have sufficient resources for themselves and do not become a burden on the social assistance system of the host Member State. This same provision provides that lawful residence is, additionally, granted to EU students in another Member State.

3. Non-discrimination of Foreign EU Students Concerning Public Transport by Virtue of Working Status in the Netherlands

3.1. Non-discrimination of Workers under Primary European Union Law

Unlike European citizenship, workers’ rights are more extensively protected under EU primary law. The reason for this is that the free movement of workers lies at the very core of the free movement of persons, which is one of the four fundamental freedoms guaranteed by Union law.20 The non-discrimination of workers has a basis in the second paragraph of article 45 TFEU, which establishes that the freedom of workers entails ‘the abolition of any discrimination based on nationality…’ Such rights are subject to limitations under paragraph 3, including grounds of public policy, public security, and public health. Subsequent case law has clarified that these rights have not only vertical but also horizontal direct effect.21 This

18 Niamh Nic Shuibhne, The coherence of EU free movement law: constitutional responsibility and the Court of Justice (OUP, 2014) 78-79

19 Case C-158/07 Jacqueline Förster v Hoofddirectie van de Informatie Beheer Groep [2008] ECR I-08507, para 52

20 Paul Craig and Gráinne de Búrca, European Union Law: Substantive Law (OUP 2017) 744

21 Case C-281/98 Roman Angonese v Cassa di Risparmio di Bolzano SpA. [2000] ECR I-04139, paras 34-35.

allows EU citizens to invoke their worker’s rights not only against governmental bodies but also against other citizens and private entities in the Member States.

3.2. Non-discrimination of Workers under Secondary European Union Law

Apart from the Citizenship Directive, other secondary EU law instruments provide for workers’ rights, as evidenced in Regulation 492/2011. Article 7(1) of this regulation highlights that ‘a worker who is a national of a Member State may not, in the territory of another Member State, be treated differently from national workers by reason of his nationality in respect of any conditions of employment and work…’. Article 7(2) of the regulation extends this to equal treatment concerning social and tax advantages. The advantages do not need to be attached to the contract of employment.22 Hence, maintenance aid for studies, such as grants, or loans falls clearly within the scope of article 7(2) of Regulation 492/2011 and are available to foreign working students.

3.3. Definition of a Worker

The Lawrie-Blum case lays out the definition of a worker: any person who engages, for a certain time, in performing services for and under the direction of another person, in return for remuneration.23 In the case Levin v the Netherlands, the Netherlands alleged that a part-time job did not entitle the claimant to the status of a worker. The CJEU has rejected this view and introduced a broad definition of worker. Based on this, if the person concerned is engaged in an effective and genuine activity, which is not purely marginal and ancillary, they should be entitled to the status of a worker.24 EU law treats the purpose behind a professional activity as immaterial; the number of hours and the salary are also irrelevant. What is of relevance is that the activities of the person concerned must not be so insignificant as to be considered purely marginal and ancillary.25 In subsequent case law, the Court has upheld the view that part-time jobs can constitute a genuine and effective activity.26 The CJEU has further clarified the definition of a worker in the case of Lair. A French national, after having engaged in several working activities, decided to stop working with the intention of focusing on her studies. Consequently, she was denied maintenance aid by her university in Germany. The Court held

22 Robert Schütze, An Introduction to European Law (3rd edn, OUP 2020) 265

23 Case 66/85 Deborah Lawrie-Blum v Land Baden-Württemberg [1986] ECR I-2121, para 17.

24 Case 53/81 D.M. Levin v Staatssecretaris van Justitie [1982] ECR 1035, para 17

25 Case 53/81 D.M. Levin v Staatssecretaris van Justitie [1982] ECR I-1035, paras 15–17

26 Case 66/85 R. H. Kempf v Staatssecretaris van Justitie [1986] ECR I-2121, para 14.

that even when a person ceases to work, as long as there is some continuity between the work activities in which the person was engaged, the person is still entitled to social benefits.27

3.4. Implications for the Working Non-Dutch EU Students in the Netherlands

Given the wider protection of the rights of workers stemming from EU law, non-Dutch EU citizens studying in the Netherlands who fall within the definition of workers cannot be treated differently than students with Dutch nationality. The only way for the Netherlands to lawfully treat foreign workers differently is to prove the applicability of one of the exceptions under article 45(3) TFEU. The exceptions include grounds of public policy, public security, and public health. It is important, however, to note that these exceptions are narrow and highly limited in their scope.28 Bearing this in mind, in the context of social benefits for students, none of the exceptions seems to be applicable. Consequently, so long as the non-Dutch EU students fall into the EU definition of ‘workers’, they cannot be discriminated against.

4. Public Transport for Non-Dutch Students in the Netherlands

4.1. Student Public Transport as a Benefit in the Netherlands

In the Netherlands, public transport for students falls within the studiefinanciering, which is a maintenance aid for students. In the Dutch legal system, article 1.1 of the Wet studiefinanciering 2000 (Wsf) defines a travel product as an electronic product which students can load on their OV-chipkaart (public transport card) when they want to use public transport.

Article 3.2(1) of the Wsf indicates that the grant includes, inter alia, financial support for travel costs in the form of a conditional loan. In case students make use of this benefit and obtain their degree within ten years, the loan is converted to a gift as mentioned under article 5.5 Wsf. Costs of public transport are thus, covered by the state. Effectively, an OV-chipkaart grants users the right to free transportation during either the workdays or the weekends, based on their choice as mentioned under article 3.26(2) Wsf, while granting the users the right to travel at a reduced rate during the remaining days of the week.29

27 Case 39/86 Sylvie Lair v Universität Hannover [1988] ECR 3161, paras 28–36.

28 Catherine Barnard, ‘Free movement of natural persons and citizenship of the Union’ in Catherine Barnard and Steve Peers (eds), European Union Law (4th edn, OUP 2020) 432

29 Case C 233/14 European Commission v Kingdom of the Netherlands [2006] ECR I-00801, para 57.

4.2. Scope of the Public Transport Benefit

Studiefinanciering can be granted to those individuals who study at accredited universities between the ages of 18 and 30, as established under articles 2.3 and 2.4 of the Wsf. The scope of student finance concerning nationality can be found under article 2.2 Wsf. Firstly, the scope extends to those individuals who have Dutch nationality. Student finance is also granted to those who do not have Dutch nationality but are to be treated equally with Dutch nationals in the field of student finance according to a treaty or a decision of an organisation under international law. Lastly, the scope encompasses individuals who are to be treated equally based on other national regulations. In the context of non-Dutch EU citizens, the second situation is especially relevant here,30 since article 45 TFEU guarantees the right to equal treatment to those individuals who fall within the EU definition of workers.

4.3. Differing Treatment in the Area of Costs for Public Transport and its compliance with EU law

From the requirements of Wsf, it is apparent that non-working students from Member States of the EU are not entitled to the travel benefit unless they have resided in the Netherlands for a consecutive period of at least five years.31 Whether and how this complies with pertinent EU law is dealt with in the case of Commission v the Netherlands. 32The Commission has claimed that the Netherlands was subjecting non-working Erasmus students to discrimination in public transport by not providing them with the same benefits Dutch students receive, on the sole ground of their nationality. According to the Commission, the Netherlands in doing this has, breached several European citizens’ rights enshrined under articles 18, 20, and 21 of the TFEU, as well as article 24 of the Citizenship Directive.33 The Commission has supported its argumentation by citing the case Commission v Austria, 34 in which there was a violation of EU law as Austria had discriminated against foreign students by allowing reduced fares on public transport only to those students whose parents received family allowances in Austria.35 On the other hand, the Netherlands stipulated that, unlike in the case of reduced fares under Commission v Austria, the conditional loan in the form of a student travel product falls within

30 Rechtbank Rotterdam, ECLI:NL:RBROT:2022:3631, r o 4.1.

31 Beleidsregel controlebeleid migrerend werknemerschap HO&S/463528 1

32 Case C 233/14 European Commission v Kingdom of the Netherlands [2006] ECR I-801

33 Case C 233/14 European Commission v Kingdom of the Netherlands [2006] ECR I-801, para 61.

34 Case C 233/14 European Commission v Kingdom of the Netherlands [2006] ECR I-801, paras 58–68

35 Case C-147/03 Commission of the European Communities v Republic of Austria [2005] ECR I-05969, paras 58–67.

the exception under article 24(2) of the Citizenship Directive.36 The CJEU ruled in favour of the Netherlands and accepted the literal reading of the Citizenship Directive, ruling that the travel product must be, within the meaning of article 24(2), regarded as ‘consisting in student grants or student loans’. 37 It is therefore considered to be an exception for equal treatment. This case has been instrumental before Dutch courts when facing questions of interpretation of EU law in assessing the situation of non-working foreign students.38

4.4. Assessment of the Status of a Worker by Dutch Authorities

The relevant authority to decide the status of a worker in the Netherlands is the Dutch Executive Agency for Education (DUO).39 This is established under the Migrant Employee Control Policy Rule (policy rule HO&S/463528). Although the EU law definition of a worker is acknowledged by the policy rule HO&S/463528, the rule also indicates that such a definition lacks clarity. In this context arose the famous ‘56-hour rule’, which invites DUO to treat a person who worked at least 56 hours a month with a presumption that they are a worker.40 Policy rule HO&S/463528 further mentions that DUO can, in any case, conduct further investigation in the event that the 56-hour rule is not fulfilled.41 Dutch case law, however, shows that the threshold of 56 hours remains to be significant in determining the status of the worker.42 In contrast to the assessment under policy rule HO&S/463528, the CJEU has ruled that the amount of remuneration and the number of hours worked are irrelevant, as long as someone is engaged in a genuine activity that is not only marginal and ancillary.43 Yet, the requirement of 56 hours does not conflict with European law so long as DUO still observes the individual circumstances of the case at hand if there is a failure to fulfil the 56-hour rule.44

4.5. Students with Part-time Jobs as Workers in the Netherlands

In the case of Levin, the CJEU ruled that those who undertake part-time jobs can be considered workers.45 Dutch courts largely acknowledge the broad definition of a worker.46 In practical

36 Case C 233/14 European Commission v Kingdom of the Netherlands [2006] ECR I-00801, para 61

37 Case C 233/14 European Commission v Kingdom of the Netherlands [2006] ECR I-00801, para 90.

38 Centrale Raad van Beroep, ECLI:NL:CRVB:2019:3700, r o 5.3.1

39 HO&S/463528 (n 31)

40 ibid.

41 ibid.

42 Rechtbank Rotterdam, ECLI:NL:RBROT:2015:1238, r o 7.5

43 Case 53/81 D.M. Levin v Staatssecretaris van Justitie [1982] ECR I-1035, paras 15-17.

44 Rechtbank Rotterdam, ECLI:NL:RBROT:2015:1238, r o 7.4

45 Case 53/81 D.M. Levin v Staatssecretaris van Justitie [1982] ECR I-1035, para 17

46 Rechtbank Rotterdam, ECLI:NL:RBROT:2022:3419, r o 7.4.

terms, this means that the courts consider other criteria than solely the number of hours. Already in 2015, quite shortly after the introduction of the 56-hour requirement, there was an indication that this requirement might be too burdensome to be accepted as a standard under EU law. This is illustrated by the Dutch case where a French student worked for 11 months, on average approximately 44 hours per month. DUO claimed that for failing to fulfil the 56-hour requirement, the student was not entitled to equal treatment. The Dutch court rejected this, referring to the test under EU law, deciding that the French national was a worker entitled to student finance.47 In 2021, the Dutch district Court of the Northern Netherlands decided on a case concerning a Romanian national studying at Groningen University who had a part-time job in a restaurant. By the time the Romanian student had been working in the company for five months, the restaurant changed owners. In this complex situation, the Romanian student could not provide the payslip for October. DUO argued that the student did not work at all during this month, despite the student receiving a payment of €456.40 on the first of November named ‘October 2018 salary’.

Moreover, the Romanian student failed to fulfil the 56-hour requirement in the following two months, working only 26,38 hours in November and 4335 hours in December. The argument brought forth by DUO was that someone who only worked 6973 hours in three months cannot be considered a worker.48The court not only stated that the salary from October should be accepted as proof that the Romanian student worked, but it also stated that the assessment of the status of a worker under article 45 TFEU is restrictive, meaning that the policy decisions such as the 56-hour rule have no actual bearing on the assessment by the court, which is concerned with the applicable EU law definition. The court, thus, ruled that the Romanian student fell under the definition of a worker under EU law.49 It can thus be inferred that working 40 hours a month would likely suffice to achieve the status of a worker.

4.6. Students with Internships as Workers

EU law treats remuneration as a necessary condition to be considered a worker.50 Thus, in cases where the internship is unpaid, the student concerned is clearly excluded from the student benefits. As for paid internships, however, under Dutch case law, it appears to be problematic

47 Rechtbank Den Haag, ECLI:NL:RBDHA:2015:14608, r o 11-14.

48 Rechtbank Noord-Nederland, ECLI:NL:RBNNE:2021:3648, r o 1.4

49 Rechtbank Noord-Nederland, ECLI:NL:RBNNE:2021:3648, r o 6-7.

50 Case 66/85 Deborah Lawrie-Blum v Land Baden-Württemberg [1986] ECR I-2121, para 17.

whether interns can be considered workers. One of the reasons for this is that the remuneration in the case of internships tends to be significantly lower than in the case of a usual part-time job. For example, recently the Limbourg’s district Court in Roermond ruled that an intern was not entitled to student finance despite having an internship contract for 36 hours a week. The plaintiff was a Portuguese national studying Data Science at Maastricht University who had an internship contract. The student undertook activities under the supervision of the company Maastro for 156 hours in a month for a monthly remuneration of approximately €400.51 The Ministry of Education, Culture and Sciences doubted whether the plaintiff was a worker in the eyes of the law. The Ministry argued that the plaintiff could not be considered engaged in real and genuine work activities because he engaged in the activities to learn and develop, not to work productively for economic reasons. Also, the internship allowed for exceptions in the required minimum number of hours in case the intern had to focus on his studies. Another argument was that the remuneration was disproportionately smaller than the minimum wage applicable to the plaintiff.52

Contrary to CJEU case law, which treats the purpose behind the work and the amount of remuneration as irrelevant,53 the Limbourg district court upheld these arguments and ruled that the plaintiff was not entitled to student finance.54 The CJEU had previously ruled that national courts should apply the EU law test for workers analogically to interns,55 disregarding the definition of a worker under national law.56 Despite the recent judgement by the Limbourg district court, other Dutch courts largely recognise paid internships to constitute real and genuine work, entitling the student to equal treatment alongside Dutch nationals.57 For example, in one of the cases before the Rotterdam district court, a student worked on average 87 hours per month, for which he was paid €250 per month. The Dutch court has expressly pointed out that it is settled case law that low remuneration does not exclude someone from being considered a worker. Furthermore, contrary to the view of the Limbourg district court, the Rotterdam court ruled that when the standard of 56 hours a month is met, the student must automatically be regarded as a worker.58 The district court of Amsterdam provides another

51 Rechtbank Limburg, ECLI:NL:RBLIM:2022:9107, r o 4 – 5.2

52 Rechtbank Limburg, ECLI:NL:RBLIM:2022:9107, r o 5.2.

53 Case 66/85 R. H. Kempf v Staatssecretaris van Justitie [1986] ECR I-2121 para 14

54 Rechtbank Limburg, ECLI:NL:RBLIM:2022:9107, r o 7

55 Case C-3/90 M. J. E. Bernini v Minister van Onderwijs en Wetenschappen ECR I-1071 [1992] paras 13–15.

56 Rechtbank Amsterdam, ECLI:NL:RBAMS:2022:5270, r o 2.1

57 Rechtbank Rotterdam, ECLI:NL:RBROT:2022:3418, r o 7-9.

58 Rechtbank Rotterdam, ECLI:NL:RBROT:2022:9115, r o 7-10.

illustration of the increased tendency of Dutch courts to regard interns as workers. A Hungarian national worked as an intern for 40 hours a week, for which she received €365 a month.59 The court regarded this as sufficient to consider the student as an intern within the meaning of article 45 TFEU and ruled in favour of the Hungarian national who was entitled to student finance.60

5. Conclusion

Non-Dutch students are in many areas not immune to different treatment by the Netherlands in comparison to Dutch students. The Netherlands protects its interests through article 24(2) of the Citizenship Directive, which excludes the maintenance for studies from the areas in which non-Dutch EU citizens cannot be discriminated against. Unfortunately for non-Dutch students, public transport in the form of a reisproduct falls within the definition of ‘maintenance for studies’.61 In this way, the Netherlands can lawfully deny a reisproduct to many student nonDutch EU citizens, thereby treating them differently concerning the factual costs of public transport. Nevertheless, non-Dutch EU students are entitled to equal treatment if they are workers under EU law. As workers’ rights are more extensively protected, the Netherlands cannot discriminate against workers in most cases. This includes benefits not related to the course of work such as student grants, or loans.62 It follows that an EU citizen as a worker cannot be discriminated against concerning the factual costs of public transport. The real difficulty arises regarding the definition of workers.

EU law defines a worker as anyone who engages for a certain time in performing services for and under the direction of another person in return for some form of remuneration.63 Dutch policy differs in this and establishes as the default requirement that a person must work for at least 56 hours a month. Cases of people who do not fulfil this requirement can potentially be individually assessed.64 While some courts regard the 56-hour rule laid down in policy rule HO&S/463528 as a sufficient condition for being considered a worker,65 other courts disregard it completely, considering, inter alia, the level of remuneration.66 Whether the 56-hour rule is a sufficient condition or not a condition at all thus

59 Rechtbank Amsterdam, ECLI:NL:RBAMS:2022:5519 r o 1

60 Rechtbank Amsterdam, ECLI:NL:RBAMS:2022:5519, r o 9-11.

61 Case C 233/14 European Commission v Kingdom of the Netherlands [2006] ECR I-801 para 90

62 Case 39/86 Sylvie Lair v Universität Hannover [1988] ECR -3161 paras 28–36

63 Case 66/85 Deborah Lawrie-Blum v Land Baden-Württemberg [1986] ECR -2121 para 17.

64 HO&S/463528 (n 31) 1.

65 Rechtbank Rotterdam, ECLI:NL:RBROT:2022:9115 r o 7 – 10

66 Rechtbank Limburg, ECLI:NL:RBLIM:2022:9107, r o 4 – 4.1.

remains questionable. In this respect, one can encounter conflicting decisions by Dutch courts,67 resulting in an undermined legal certainty for non-Dutch EU students. Another problematic aspect of the 56-hour rule is that Dutch courts tend to accept that a person is a worker even when the person concerned works on average significantly less than 56 hours, thus instead referring to the test under EU law.68 Although formally the default requirement for DUO is one of 56 hours, in practice, it is unclear how many hours an EU student needs to work to be entitled to student benefits. Lastly, the Dutch Ministry in several cases claims that it is problematic to consider a remunerated intern as a worker, given the Dutch policy rule.69 Dutch courts increasingly rule that a student who is undertaking an internship should also be considered a worker despite the low amount of remuneration.70 Nevertheless, one can also find exceptions to these increased tendencies.71

67 Rechtbank Limburg, ECLI:NL:RBLIM:2022:9107, r o 5.2; Rechtbank Amsterdam, ECLI:NL:RBAMS:2022:5270 r o 1–2.1

68 Rechtbank Den Haag, ECLI:NL:RBDHA:2015:14608 r o 11–14

69 Rechtbank Limburg, ECLI:NL:RBLIM:2022:9107, r o 5.2; Rechtbank Amsterdam, ECLI:NL:RBAMS:2022:5270 r o 1 - 2.1

70 Rechtbank Rotterdam, ECLI:NL:RBROT:2022:9115 r o 7-10

71 Rechtbank Limburg, ECLI:NL:RBLIM:2022:9107, r o 5-6.

The starting point when looking at the administrative action of the European Union (EU) is that its institutions are subject to EU law, including any general principles developed by the Court of Justice (hereinafter ‘the Court).1 Within the implementation of EU law, there exists a fundamental distinction between direct and indirect administration. This is a traditional classification of EU administrative action: direct administration comprises of instances where the Union has exclusive competences to act, whereas indirect administration is where administration takes place via the Member States.2 Although indirect administration tends to prevail, direct administration continues to be vital in order to flesh out principles contained in legislative statutes, since the legislature does not have the time nor the expertise to address all the issues and possible ramifications of the original legislation.3

One of the mechanisms introduced to achieve such aims are implementing acts; article 291(2) of the TFEU empowers the legislature, where uniform conditions for implementing legally binding acts are needed (and thus cannot be left to the Member States), to confer power to the Commission to deal with complex technical matters in order to execute a primary act. This delegates the power to adopt acts of general application or individual decisions, which, although they are considered non-legislative acts are nevertheless binding. The use of the advisory procedure to adopt such acts continues to use a system of comitology: a system of committees composed of expert national representatives.4 The adoption process requires that the Commission presents the draft act to the expert committee who then votes using qualified majority voting (from hereinafter QMV) on whether to adopt it.5

Although there are many advantages to using such a procedure, specifically relating to the expertise of these committees in their respective subject matters and enabling the ability to adopt rules in a swifter and more flexible manner, there is also much criticism of the process. Specifically, concerns surround the power delegated to the Commission and whether this affects the inter-institutional balance of the EU, as guaranteed by the Treaties. Although there

1 Alexander Türk, ‘Organisational Arrangements for EU Administrative Action’, in Hofmann H, Rowe G.C. (eds), Administrative Law and Policy of the European Union (Oxford University Press 2011).

2 ibid.

3 ibid.

4 Directorate-General for Communication, Comitology (EU Commission website); Council Regulation (EU) 182/2011 [2011] OJ L 55/13, art 5

5 Council Regulation (EU) 182/2011 [2011] OJ L 55/13, art 5.

are limits placed on the Commission’s discretion when adopting implementing acts, it is questionable whether the mechanisms currently in place suffice to keep the Commission in check.

Another issue surrounds the debate whether the process of adoption of implementing acts respects the EU administrative principles, specifically that of transparency. Respect for this principle is crucial, not only to ensure that the hierarchy of Union norms are given due regard, but also to ensure the legitimacy and accountability of this process, since this is a key principle for a well-functioning democracy.6 This begs the question to what extent does the process of adopting implementing acts pose a threat to principles of EU law, namely the interinstitutional balance and the principle of transparency? Further, what can be done to ensure such principles are followed in the future?

This paper will tackle the aforementioned topics as follows: firstly, section (2) will deal with issues surrounding the inter-institutional balance, starting with defining this term, how implementing acts impact this balance and the effects of this, followed by potential remedies which could be used in the future to correct this. Section (3) will focus on the administrative principle of transparency. First, the principle of transparency will be explained, followed by an analysis of whether implementing acts respect this principle and the implications resulting from this, finishing with any potential remedies to be considered in the future. Section (4) will consist of the conclusion summarising the findings of this paper and some final thoughts.

2. The EU Inter-Institutional Balance

2.1. What is the EU Inter-Institutional Balance?

The key concept surrounding the EU inter-institutional balance is the concept of separation of powers: the idea that the [supra]national powers are separated into the legislature, executive and the judiciary. The rationale for such separation is to ensure that one part of the government does not become overly powerful and potentially dictatorial, which is achieved by the other institutions checking that the body continues to act within the competences afforded to it.

7

Although it is true that the EU inter-institutional balance ensures a separation of the key

6 Paul Craig, ‘Chapter 15: Comitology’ in Paul Craig and Academy of European Law (Florence Italy) (eds), EU Administrative Law (Oxford University Press 2018).

7 Gerard Conway, ‘Recovering a Separation of Powers in the European Union’ [2011] European Law Journal <https://onlinelibrary.wiley.com/doi/full/10.1111/j.1468-0386.2011.00552.x> accessed 12 December 2022.

functions of each of the institutions, it does not follow a strict separation of powers. 8 This is demonstrated by the overlap in the types of powers granted to each institution.9

The main prerogative granted to the European Parliament and the Council is that of colegislators of the Union. 10 In addition to this, the Parliament plays the role of ensuring political oversight of the other branches of the EU, while the Council also occasionally exercises executive functions such as coordinating tasks, where the Treaty provides this.11 The Commission can be seen as the dominant executive power, but it also has important legislative functions, namely the right of legislative initiative.12

Moreover, the EU inter-institutional balance is not focused on achieving a strict separation of powers per se, but rather ensuring that each institution acts within the limits of its powers. This is also highlighted in article 13(2) of the TEU: ‘each institution shall act within the limits of the powers conferred on it in the treaties’. The concept of balance involves deconcentrating the power within a given department or branch, which is vital for the wellfunctioning of a democratic government.13 In order to ensure that the inter-institutional balance is respected, checks and balances are also present in the legal order; including requirements of consent,14 veto rights,15 rights of censure,16 and judicial review.17

2.2. Prerogatives Article 291 TFEU Grants Each Institution

To assess whether implementing acts truly respect the inter-institutional balance, one must look at the prerogatives which implementing acts grant to each of the institutions. In relation to the Commission, article 291 of the TFEU confers implementing powers onto the Commission where this is necessary to implement legally binding acts. What constitutes implementing powers, however, still remains unclear. The Court has ruled that this concept must be given a

8 European Parliament Resolution 2008/2073 (INI) on the impact of the Treaty of Lisbon on the development of the institutional balance of the European Union [2009] C 212 E/82, section A.

9 For example, the Commission legislative power of right of legislative initiative (art 17(2) TEU)

10 Consolidated Version of the Treaty on European Union [2008] OJ C115/13, art 14(1) and art 16(1).

11 ibid; European Parliament Resolution 2008/2073 (INI) on the impact of the Treaty of Lisbon on the development of the institutional balance of the European Union [2009] C 212 E/82

12 Consolidated Version of the Treaty on European Union [2008] OJ C115/13, art 17(1) and (2).

13 Gerard Conway, ‘Recovering a Separation of Powers in the European Union’ [2011] European Law Journal <https://onlinelibrary.wiley.com/doi/full/10.1111/j.1468-0386.2011.00552.x> accessed 12 December 2022

14 See for examples art 49 TEU on access of new Member States and art 19(1) TFEU on anti-discrimination

15 See for example art 48(7) TFEU which gives the parliament a right of veto.

16 See for example art 234 TFEU granting Parliament a right of censure of the Commission

17 Consolidated Version of the Treaty of the Functioning of the European Union [2007] OJ C 202, arts 258 and 259.

wide interpretation.18 What can be conferred from case law is that the Court seems to be rather reluctant on setting any strict delineations on the Commission’s power. The Court has stated that adoption of acts that require political choices fall within the responsibilities of the EU legislature and cannot be determined by implementing acts.19 This would have set some clear limitations on the Commission’s power if the court had not later ruled that even if a decision involved certain ‘compromises with technical and political dimensions’, such a decision would not be considered a political choice falling within the competence of the legislature.20 This creates the possibility for the Commission to deal with political topics without very little actual democratic input, since the Parliament plays a menial role in the procedure of implementing acts.

The vagueness of the Court continues when describing how the limits of power of the Commission must be judged; regard must be given to the basic general objectives and essential aims of the legislation in question.21 The Court has gone as far as allowing the Commission to add new elements even if the basic act did not envisage this, provided they are not contrary to it.22 What can be interpreted from this is that the Commission’s power seems to be relatively extensive as long as it aims to achieve the objectives of the legislation in question and is not expressly contrary to this. As a result, much leeway is afforded to the Commission to act. Some may question why this is a problem, since implementing acts consist only of small pieces of technical law surrounding unimportant matters only relevant to small groups of people. Nevertheless, implementing acts produce law that is legally binding on the public, which can therefore affect the legal spheres of individuals. Further, this provides a route via which policy can be dismantled or weakened behind closed doors.23

Moreover, the Commission’s prerogatives extend to highly politically sensitive areas. An example of this is the recent transformation of the VAT Committee into a comitology committee. The result of this is that an area of taxation decision-making that was previously

18 C-23/75 Rey Soda v Cassa Conguaglio Zucchero [1975] ECLI:EU:C:1975:142, para 10

19 C-355/10, European Parliament v Council of the European Union [2015] ECLI:EU:C:2012:516, paras 64-65.

20 C-363/14 European Parliament v Council of the European Union [2015] ECLI:EU:C:2015:579, para 51

21 C-23/75 Rey Soda v Cassa Conguaglio Zucchero [1975] ECLI:EU:C:1975:142, para 14; C14/06; C-295/06

European Parliament and Kingdom of Denmark v Commission of the European Communities [2008]

ECLI:EU:C:2008:176, para 52

22 C-295/06 European Parliament and Kingdom of Denmark v Commission of the European Communities [2008] ECLI:EU:C:2008:176, para 52.

23 Charlotte Burns et al., ‘Crisis, Climate Change and Comitology: Policy Dismantling Via the Backdoor?’ [2019] Journal of Common Market Studies 58 (3) 527-544

<https://onlinelibrary.wiley.com/doi/full/10.1111/jcms.12996> accessed 1 December 2022.

based on a vote of unanimity by the Member States is now being decided through the examination procedure, which uses QMV. Moreover, this gives the Commission more room for maneouvre and to pass acts, since it is harder to obtain a simple majority than a qualified majority. This power is strengthened due to the fact that where no majority is reached resulting in the outcome of ‘no opinion’, the Commission can adopt the act regardless. This further lowers the threshold of scrutiny such acts must pass in order to be enacted. There are several exceptions to the Commission’s ability to pass acts which received no opinion: where the subject matter is sensitive or where the act was opposed by a simple majority of members.24 However, if the act is referred to the Appeals Committee and the vote results again in a ‘no opinion’, the Commission can pass the act regardless, no longer subject to any exceptions.25 Therefore, the Commission can pass acts that directly affects Member States’ national tax revenues even where no opinion was reached within the Committee and the Appeal Committee.26 This comes across as a powerful legislative competence with no input from any democratically elected individuals. The Commission therefore retains the power to decide on ambivalent politically sensitive matters.27

The main control mechanism within the process of enacting implementing acts over the Commission is to be exercised by the Member States through their national representatives sitting in the Committees.28 However, the effect of such a control is weakened due to the fact that if no opinion is reached, the Commission can pass the acts regardless. Further, the relationship between the Member States and their national representatives is rather disconnected, due to the fact that these representatives are policy experts rather than members of the government.29 This poses further problems regarding democratic accountability within this legislative process and to what extent this control is truly effective.

24 Council Regulation (EU) 182/2011 laying down the rules and general principles concerning mechanisms for control by Member States of the Commission’s exercise of implementing powers [2011] OJ L 55/13, art 5(4)

25 Council Regulation (EU) 182/2011 laying down the rules and general principles concerning mechanisms for control by Member States of the Commission’s exercise of implementing powers [2011] OJ L 55/13, art 6(3)

26 John Gruson and Madeleine Merkz ‘The Comitology Proposal: Shifting the Legislative Balances in EU VAT’ [2021] EC Tax Review 3: 99-110 <https://kluwerlawonlinecom.mu.idm.oclc.org/journalarticle/EC+Tax+Review/30.3/ECTA2021012 ECTA_30_0303 99..110> accessed 17 October 2022

27 Zamira Xhaferri ‘Delegated Acts, Implementing Acts, and Inter-Institutional Balance. Implications PostLisbon.’ [2013] Maastricht Journal of European and Comparative law 557 <https://journals.sagepub.com/doi/pdf/10.1177/1023263X1302000406> accessed 12 December 2022.

28 Alexander Türk, ‘Organisational Arrangements for EU Administrative Action’, in Hofmann H, Rowe G.C. (eds), Administrative Law and Policy of the European Union (Oxford University Press 2011).

29 Alexander Türk, ‘Comitology’, in Arnull, A. and Chalmers, D. (Eds.); The Oxford Handbook of European Union Law (Oxford University Press 2015).

In addition, the Commission has an influential role within the comitology committees themselves. The Commission enjoys a margin of political discretion to decide on the subject matter being deliberated within the committees, hence formally steering these committee meetings.30

There are several prerogatives granted to the Parliament and Council to keep the Commission in check: the right to information and the right of scrutiny.31 However, the latter is extremely limited; the Council or Parliament can only indicate to the Commission that they believe the draft implementing act to exceed the implementing powers provided, but the Commission is under no obligation to drop the act in question.32 It must only take such information into account. Therefore, the extent of oversight is extremely limited and there is little opportunity for meaningful scrutiny.33

The Parliament’s power is further restricted if the act empowering the implementing acts was adopted via the special legislative procedure which only requires consultation of the Parliament.34 Therefore, since the power of scrutiny only extends to implementing powers granted on the basis of an act passed via the ordinary legislative procedure,35 the amount of democratic control in such a procedure is extremely minimal.36 The Parliament’s even footing as ‘co-legislator’ with the Council is further undermined by the fact that the Council still has a holding within the comitology procedure, due to the presence of representatives from the Member States sitting in the Committees. In reality, members of the Council also communicate with their national representatives within the committees.37

30 Zamira Xhaferri ‘Delegated Acts, Implementing Acts, and Inter-Institutional Balance Implications PostLisbon.’ [2013] Maastricht Journal of European and Comparative law 557 <https://journals.sagepub.com/doi/pdf/10.1177/1023263X1302000406> accessed 12 December 2022.

31 Council Regulation (EU) 182/2011 laying down the rules and general principles concerning mechanisms for control by Member States of the Commission’s exercise of implementing powers [2011] OJ L 55/13, arts 10 and 11

32 Council Regulation (EU) 182/2011 laying down the rules and general principles concerning mechanisms for control by Member States of the Commission’s exercise of implementing powers [2011] OJ L 55/13, art 11.

33 Alan Hardacre and Micheal Kaeding ‘The European Parliament and the Future of Comitology after Lisbon’ [2013] European Law Journal 19: 382. <https://doi.org/10.1111/eulj.12029> accessed 17 October 2022

34 Consolidated Version of the Treaty on European Union [2008] OJ C115/13, art 289(2).

35 Council Regulation (EU) 182/2011 laying down the rules and general principles concerning mechanisms for control by Member States of the Commission’s exercise of implementing powers [2011] OJ L 55/13, art 11

36 Paul Craig ‘Delegated Acts, Implementing Acts and the New Comitology Regulation’ [2011] European Law Review 36 661. <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1959987> accessed 17 October 2022.

37 Alexander Türk, ‘Organisational Arrangements for EU Administrative Action’, in Hofmann H, Rowe G.C. (eds), Administrative Law and Policy of the European Union (Oxford University Press 2011).

2.3. How Do These Prerogatives Affect the Inter-Institutional Balance?

Although the Treaties suggest that the Parliament is on an equal footing with the Council regarding rights of control over the Commission,38 in practice this is not the case, mainly because the Council representatives can communicate with their national representatives within the comitology committees. Further, it severely undermines the position of the Parliament guaranteed within the Treaties, since there is a lack of political and democratic input. This results in no officials being directly elected by the public taking part in the adoption of implementing acts.

Moreover, there does not seem to be any effective control measures afforded to the Parliament and Council to exercise in cases where they believe the Commission has overstepped its powers. As a last resort, the institutions can always bring the issue to the Court.39 However, as demonstrated above, the Court does not seem willing to restrict the Commission’s power except in instances where the Commission’s acts are manifestly contrary to the aims of the empowering act. As a result, this puts the inter-institutional balance in jeopardy since there are little mechanisms available to keep the Commission in check and ensure it respects the inter-institutional balance and the powers it is granted within the Treaties.

The result of all these factors is that the inter-institutional balance of the Union can be considered ‘unbalanced’. The Commission is afforded several powers by article 291 TFEU, which in itself is not problematic for the inter-institutional balance since such powers are conferred by the Treaties. The problem lies in the fact that the current oversight mechanisms are ineffective in placing limits on the Commission’s power and also fail to assure it acts within the powers conferred by the Treaties. The Commission can significantly extend and create acts without any effective oversight, due to the lack of controls offered to the other institutions, the lack of a parliamentary role within the procedure of implementing acts, and the hesitation of the court to strictly interpret the boundaries of the Commission’s discretion in this area. The control of the Member States’ representatives does not seem to be powerful enough to solve this imbalance; since these representatives are not governmental figures, and the Commission can continue to pass acts in the case of a ‘no opinion’ vote. This leaves a significant margin of

38 See Council Regulation (EU) 182/2011 laying down the rules and general principles concerning mechanisms for control by Member States of the Commission’s exercise of implementing powers [2011] OJ L 55/13, arts 10 and 11 which affords these control rights to both institutions equally

39 Consolidated Version of the Treaty of the Functioning of the European Union [2012] OJ C 326/47, art 263 via action for annulment.

discretion for the Commission which opens the possibility for it to overstep its powers and give itself a larger legislative role, including in politically sensitive areas, which, according to the Treaties, should be left to the co-legislators (the Parliament and the Council).

2.4. Potential Remedies

To remedy the imbalance created by implementing acts, several solutions could be considered. Firstly, one such solution could be using impact assessments on the implementing rulemaking, which would work as a quality guarantee and compensate for the lack of Parliamentary control present.40 This would act as a control mechanism, as well as ensuring the Parliament is informed on the impacts of the potential policy options. 41 Through such information, the Parliament would be able to determine whether the Commission is acting within its powers before acts have been passed. Therefore, Parliament’s right of scrutiny would be greatly enhanced. However, a counterargument to using such a remedy would be the increased proceduralism, taking away one of the main benefits of implementing acts: the effectiveness of creating such acts without the need of the Council and the Parliament, who do not have the time nor the expertise to deal with such matters. A balance between these two arguments would be to have impact assessments in instances in which the legislation surrounds political elements or sensitive matters.

Another remedy would be for the Court to clearly outline the limitations of the power conferred to the Commission in implementing acts. This would allow other institutions to clearly and quickly identify whenever the Commission has overstepped in the power afforded to it and hence ensure that the inter-institutional balance remains unaffected. It is unclear why the Court has, thus far, been hesitant to do so. One argument is that the Court wants to ensure the Commission can do its task properly, considering that implementing acts are essential to give legislation proper practical effect. The Court may be of the opinion that if the Commission slightly over-steps its competences in creating these acts but this seems necessary to obtain the aim in question, to turn a blind eye to this.

Finally, members within the expert committees should have some sort of dialogue with their respective Member State governments and the public in general. This would enhance such

40Alberto Alemanno and Anne Meuwese, ‘Impact Assessment of EU non-legislative rulemaking: The Missing Link in ’New Comitology’’ [2013] European Law Journal 19: 76.

<https://onlinelibrary.wiley.com/doi/full/10.1111/eulj.12014> accessed 12 December 2022.

41 ibid.

control mechanism by increasing democratic accountability within the Commission in ensuring that the Committees are kept in check by the Member States, who could also keep a closer eye on the activities of the Committees.

3. THE ADMINISTRATIVE PRINCIPLE OF TRANSPARENCY

3.1. What is Transparency?

Transparency is one of the fundamental principles of good administration and a general feature of all modern democratic governments.42 A past European Ombudsman, Jacob Soderman describes transparency as ‘the process through which public authorities make decisions [ensuring that] they should be understandable and open; the decisions themselves should be reasoned; and as far as possible, this information should be available to the public’.43

This principle is further codified within article 11(2) of the TEU, article 15(1) and (3) of the TFEU, as well as article 42 of the EU Charter of Fundamental Rights, which codifies the public right of access to documents. The Comitology Regulation also mentions transparency, stating that references to documents of the composition of the committees, summaries, voting results, final draft acts, information concerning the adoption of the final act and statistical data on the work of the committees, should be made public in the Comitology register.44 Article 13(2) states, however, that the committees’ decisions shall remain confidential. The Regulation regarding access to Parliamentary, Council and Commission documents further states that the principles and conditions on public access to documents shall apply to committees.45 Transparency is a vital precondition for accountability since accountability cannot take place if the facts to be evaluated are not known.46 This, in turn, promotes the legitimacy of the institutions concerned.

42 Tero Erkkila, ‘Transparency in Public Administration’ [2020] Oxford Research Encyclopedia of Politics 29. <https://doi.org/10.1093/acrefore/9780190228637.013.1404> accessed 7 December 2022.

43 Christian Joerges, ‘What is left of the European Economic Constitution?’ [2004] SSRN Electronic Journal, 20 <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=635402> accessed 12th December 2022.

44 Council Regulation (EU) 182/2011 laying down the rules and general principles concerning mechanisms for control by Member States of the Commission’s exercise of implementing powers [2011] OJ L 55/13, arts 10(1) and (5).

45 Council Regulation (EC) 1049/2001regarding public access to European Parliament, Council and Commission documents [2001] OJ L 145, art 9(2)

46 Christian Joerges, ‘What is left of the European Economic Constitution?’ [2004] SSRN Electronic Journal, 20 <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=635402> accessed 12th December 2022.

3.2. Does the Process Surrounding the Adoption of Implementing Acts Follow These Requirements in Practice?

The key issue surrounding transparency of the comitology procedure is that article 10(5) of the Comitology Regulation only extends to references to the documents in question, and not the documents in their entirety. When looking into the Comitology Register, the reality is that many draft implementing acts are not published. This results in an inability for citizens to challenge draft implementing acts before they are passed and can also result in individuals’ legal situations suddenly changing without any prior notification which may have troublesome effects for such individuals, usually economic repercussions. Further, it is not possible to see which State voted for or against a certain act (only the overall voting results) – nor is it possible to see who actually sits within these committees. This poses a serious issue for accountability, as information is being withheld from the public not only regarding draft acts, but also regarding who is actually representing them. Hence, this mode of operation is severely opaque, with much of the ongoings happening behind closed doors which has been the subject of much criticism from academics and practitioners.47

Another key issue is that for many documents in the comitology procedure, individuals must request access to be granted. Such a route is extremely demanding for citizens since they must first conduct extensive and time-consuming research within the Comitology Register to determine which documents have not been published.48 Further, there is no information regarding what exactly motivates the institutions to grant some requests and reject others. The Commission has been resistant to granting access in the past, arguing the need to protect cooperation between the Member States as well as the need to protect the mutual trust between the Commission and the Member States.49 However, the Court has disregarded such reasoning, ruling that the Commission cannot take the view that comitology excludes public access to the individual positions of the Member States.50

As a result, it cannot be said that the comitology procedure used to adopt implementing acts truly respects the principle of transparency. Firstly, the information provided in the register

47 Emiliano Alonso Pelegrin, ‘Mobility Negotiated Once Again in the Shadows of EU Comitology’ (2016) <www.alonsoasociados.com/mobility-negotiated-once-again-in-the-shadows-of-eu-comitology/> accessed 12 December 2022.

48 Christian Joerges, ‘What is left of the European Economic Constitution?’ [2004] SSRN Electronic Journal, 20 <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=635402> accessed 12th December 2022.

49 T371/20 and T55/20 Pollinis France v European Commission [2022] ECLI:EU:T:2022:556, para 111 50 ibid, para 98.

is incomplete and not extensive, the quality of the information provided is poor. Secondly, the need for individuals to request access to documents is a cumbersome process, which is offputting to citizens. Moreover, the mere use of an online database to strengthen the informational transparency surrounding this procedure is not enough to result in actual, effective transparency.

3.3. The Effects of a Lack of Transparency

A lack of transparency results in a lack of accountability. Access to relevant information is crucial for the understanding of reasoning behind governmental action.51 Individuals should have the opportunity to check and challenge the soundness of information. Moreover, it must be clear to citizens who they are being represented by, which interests officials represent and how inclusive that representation is.52 The Commission has repeatedly stressed the need to bring individual citizens closer to the decision-making processes in Brussels and strengthen their belonging to the EU and in turn boost social legitimacy.53 Implementing acts do not seem to reflect this aim. There is much alienation of citizens, who have little to no input in the process of adopting implementing acts, and do not know who represents them. Further, they have no power to challenge any draft acts which may have a serious impact on their legal spheres. This affects the legitimacy of the EU in general – since such opaque procedures ignite skepticism within the EU.54

The lack of accountability and the resulting disconnect between the public and the Union was confirmed by the ‘Glyphosate controversy’. Glyphosate is a plant pesticide whose marketing authorisation was previously restricted due to its potential harm to human health.55 In accordance with Regulation 1107/2009, concerning the placing of plant protection products on the market, the Commission was empowered to adopt Regulations concerning conditions of

51 Gijs Jan Bransdsma, Deirdre Curtin and Albert Meijer, ‘How Transparent are EU Comitology Committees in Practice?’ 2008 European Law Journal 14 819. <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1540579> accessed 12 December 2022.

52 Deirdre Curtin and Albert Meijer; Does Transparency Strength Legitimacy? 2006 Information Polity 11: 109 <https://www.researchgate.net/publication/228993285_Does_Transparency_Strengthen_Legitimacy> accessed 17 October 2022.

53 European Commission, ‘Openness and Transparency in the European Institutions’ press release.

54 Deirdre Curtin and Albert Meijer; Does Transparency Strength Legitimacy? 2006 Information Polity 11: 109 <https://www.researchgate.net/publication/228993285_Does_Transparency_Strengthen_Legitimacy> accessed 17 October 2022.

55 EU Directorate-General for Health and Food Safety ‘Earlier Assessment of Glyphosate’ in Food Safety < Earlier Assessment (europa.eu)> accessed 8 December 2022.

approval of such substances.56 In 2015, around the time where the conditions of approval for Glyphosate were about to expire, new scientific evidence arose demonstrating that Glyphosate was not carcinogenic.57 As a result, the Commission wanted to expand the Glyphosate market approval from 5 years to 15 years. However, when this draft was presented to the Standing Committee on Plants, Animals, Food and Feed, the majority of Member States were reluctant to vote on such a matter and abstained from voting.58 The proposal received widespread controversy from the public, many believing that the evidence was flawed. As a result, the EU was subject to pressure and outrage from environmental activists and NGOs such as Greenpeace and Pesticide Action Network.59 France’s Minister for the Environment at the time, Ségolène Royal, publicly denounced Glyphosate and expressed an aggressive, anti-glyphosate stance.60 However, it was later revealed that France had actually abstained from voting in the proposal for expanding the renewal. Hence, the Member State Minister was portraying one view, while the Member State representative within the Standing Committee was not acting in accordance with this portrayal. Such a disconnect between the Member State government and their committee representative results in a State not pursuing aims communicated to the public. Consequently, Member States cannot be held responsible if voting results are not published (which is usually the case), and blame is deflected onto the EU as it appears to the public that Union acts are passed that are seemingly contrary to the stances the Member States had publicly stated

56 Regulation (EC) No 1107/2009 of the European Parliament and of the Council of 21 October 2009 concerning the placing of plant protection products on the market and repealing Council Directives 79/117/EEC and 91/414/EEC [2009] OJ L309/1

57 Per Kudsk and Solvejg Kopp Mathiassen 'Pesticide regulation in the European Union and the glyphosate controversy' 2019 Weed Science 68 <www.cambridge.org/core/journals/weed-science/article/abs/pesticideregulation-in-the-european-union-and-the-glyphosate-controversy/280701D3315D9AF5E80B2EB383CF593D> accessed 12 December 2022.

58 EU Directorate-General for Health and Food Safety ‘Earlier Assessment of Glyphosate’ in Food Safety < Earlier Assessment (europa.eu)> accessed 8 December 2022.

59 Per Kudsk and Solvejg Kopp Mathiassen 'Pesticide regulation in the European Union and the glyphosate controversy' 2019 Weed Science 68 <www.cambridge.org/core/journals/weed-science/article/abs/pesticideregulation-in-the-european-union-and-the-glyphosate-controversy/280701D3315D9AF5E80B2EB383CF593D> accessed 12 December 2022.

60 Le Monde ‘Royal demande l’interdiction d’herbicides contenant du glyphosate mélangé à certains adjuvants’ (2016) <Royal demande l’interdiction d’herbicides contenant du glyphosate mélangé à certains adjuvants (lemonde.fr)> 8 December 2022; Lorraine Chow ‘French Ecology Minsiter Calls for Ban on Glyphosate Formulations’ (2016) Organic Consumers Association <www.organicconsumers.org/news/french-ecologyminister-calls-ban-glyphosate-formulations> accessed 8 December 2022.

3.4. Future Remedies

It is not sufficient in a democratic environment that only some documents surrounding draft implementing acts are published while others either require individuals to request access or cannot be accessed at all. The main remedy to be considered here would be to elevate the quality and amount of information included within the Comitology Register. This would provide citizens a clear image of what the current ‘behind-closed-doors’ decision-making process consists of which would sequentially enhance the legitimacy of the overall process. Further, the search and browse function should be enhanced, since currently there is no key word function and the only ways to search for a specific document is to filter by year, type of decision, or type of committee. The use of ‘tracking’ should also be considered: this allows users to follow acts through their various stages which would effectively improve transparency and user engagement.61 Another feature to consider would be a complaint, or voting mechanism online. For example, Austria’s government website has a feature where citizens can vote on initiatives and petitions online.62 Although this would not be binding, it would help the Committees make more informed decisions and enable citizens to have a more active role in the adoption process. For this to be achieved, more funding should be allocated to develop and maintain the Comitology Register.

Another remedy would be to clearly state the members of the comitology committees. The argument put forward in favour of such anonymity is that it protects cooperation between the Member States as well as the need to protect the mutual trust. Though this is important, there is no evidence that such an approach is truly effective in achieving this aim. The negative effects presented above greatly outweigh the potential benefit of achieving mutual trust. Removing anonymity would highly boost accountability since it would be clear who exactly is making these decisions and who these individuals are accountable to. Finally, the detailed results of voting outcomes should be published so individuals know the stances their governments take surrounding each act, hence providing the opportunity to see whether their views are being represented and if not, to make their voices heard.

61 Tariq Ahmad, Hanibal Goitom & Andrew Weber, ‘Tech Trends Improving Open Government’ [2018] 22 AALL Spectrum 38 <https://heinonline.org/HOL/P?h=hein.aallar/spectrum0022&i=276> accessed 12 December 2022.

62 ibid.

4. Conclusion

From the findings of this paper, it is clear that implementing acts are not completely in accordance with the principle of the inter-institutional balance and the principle of transparency. Regarding the inter-institutional balance, in the realm of implementing acts, the Commission is afforded much legislative power. This in itself is not a problem, since these powers are afforded to the Commission by the Treaties, which does not affect the interinstitutional balance per se. What does pose as a threat, however, is the lack of control mechanisms in place to limit this power, to ensure each institution acts within the powers granted to it by the Treaties – the result being that the Commission can act beyond what they are empowered to do by the Treaties. There is a lack of meaningful scrutiny granted to the Parliament and the Council, and there is no strict delimitation by the Court of the limits of the Commission’s power. Furthermore, implementing acts undermine the position of the Parliament as an ‘equal’ vis-à-vis the Council. This is demonstrated by the Parliament having no control powers in cases of acts created by the special legislative act, and also through the members of the Council having a communicative avenue with the representatives in the committees.

Regarding transparency, it is evident that the process of adopting implementing acts has a long way to go to truly respect this principle. The dominant issues surrounding this mainly link to the lack of information within the Comitology Register, the demanding processes individuals must go through to access some documents, and the general opacity of the entire procedure. The effects of this being a lack of accountability as well as legitimacy, since the public has no way to scrutinise what is being done within the process for adoption since little information is released.

There are a multitude of remedies that should be considered to amend these issues in the future. Regarding the inter-institutional balance, impact assessments could be considered to inform the Parliament in a clearer fashion what is exactly being decided. Impact assessments would also make it easier to identify whether the Commission has overstepped the powers afforded to it. Furthermore, the Court should give a clear interpretation of the limitations of the Commission’s power here, which would help in swiftly identifying whether a breach has occurred. Finally, there should be communication between the committee representatives and their respective governments and public which would act as a further control mechanism in

ensuring accountability. Regarding transparency, the information contained within the comitology register should be greatly expanded, especially with regards to the voting outcomes for each Member State, and the identities of representatives of the committees. As such, much could be improved in the realms of the EU inter-institutional balance and the transparency surrounding implementing acts in the future.

Among the Western countries that, from the ‘60s onward, liberalised abortion laws, we can find Italy, whose parliament passed an act on May 22nd, 1978, called Legge n.194, “Norme per la tutela sociale della maternità e sull’interruzione volontaria di gravidanza”.1 This act calls for the protection of two fundamental rights in particular: the right to health and the right to selfdetermination. Through this, the State guarantees the right to procreation. At the same time, it also allows women to resort to voluntary termination of pregnancy within the first trimester for economic, family, health or personal reasons. After several political and religious compromises, the enactment of the legislation gave a legitimate right to women – but nonetheless included an objection clause: the possibility for medical practitioners to refuse to perform abortions on grounds of conscience, religion or moral beliefs.

As of 2020, 64,6% of gynaecologists in Italy declared themselves conscientious objectors to abortion,2 resulting in a widespread phenomenon all over Italy, that affects the concrete opportunity for women to seek a safe termination of pregnancy, “making objection the rule and abortion the exception”.3 Two sets of rights, equally important, but the question of where to strike the balance arises thereafter? This paper will aim to answer the following question: how are women’s rights to health and safe access to abortion weighed against the right to conscientious objection of practitioners according to Italian laws and courts and in the judgment of the violation of the European Social Charter?

The purpose of this research is to analyse how these rights are considered when applied to the current Italian social situation, which sees the reproductive freedom and autonomy of women impaired due to a major gap of non-objecting practitioners, especially in Southern Italy.

To address this, the paper will begin with a description of Legge n. 194/78, the reasoning behind the legislator’s formulation and how the right to abortion is legally guaranteed in Italy. For the purposes of this article, only the circumstances and the possibilities of obtaining a pharmacological abortion within the first trimester will be discussed, and the therapeutic,

1 “For the social protection of maternity and on the voluntary termination of pregnancy”; Legge 22 maggio 1978, n. 194.

2 Serena Donati, Ministry of Health report on the implementation of the law regulating social protection of motherhood and voluntary termination of pregnancy, National Centre for Disease Prevention and Health Promotion, ISS, 9 July 2020. <https://www.epicentro.iss.it/en/voluntary-termination-pregnancy/epidemiology> accessed 24 January 2023

3 Wendy Chavkin, Laurel Swerdlow, Jocelyn Fifield, Regulation of conscientious objection to abortion: an international comparative multiple-case study [2017] 19 Health and Human Rights 1 55-68

surgical abortion regulated in provisions 6 and 7 of Act No.194/784 will not be taken into consideration. The focus will then shift to an observation of the right to conscientious objection in Italy and how it is protected by the Italian Constitution. Afterward, an analysis will be conducted on the decisions of the Italian Constitutional Court, on the admissibility of referendums under Act No.194/78 and on a 10-year-old judgment of a criminal case in La Corte di Cassazione (the Court of Cassation), to see how these two courts stand on the merits of abortion and conscientious objection. The second part of the paper will be built around the point of view of the Council of Europe on the right to conscientious objection to abortion, standing under ECtHR case law and Parliamentary Assembly resolutions. On those premises, particular attention will be paid to analysing the decisions of the European Committee of Social Rights on the merits of the complaints filed by the International Planned Parenthood Federation (IPPF-EN) and the Confederazione Generale Italiana del Lavoro (CGIL) against Italy on the alleged violation of article 11 of the ESC and to the Italian Government’s answer.

2. The Italian “Scale”

This section will explain the history behind the birth of Act No.194/78 and the reasoning behind the legislator's choices. An analysis will then be provided of the article that allows for abortions within the first trimester only – as well as the right to conscientious objection.

2.1. Legge 194/78 – how it came to exist and what it is

Before 1978, the voluntary termination of pregnancy was considered a criminal offence under ex-article 546 of the Italian Penal Code,5 for which both the woman and the practitioner could have been sentenced to 2 to 5 years of reclusion. The first feminist revolutions which began in the 1970s started changing the popular perception towards abortion.6 The first turning point was marked in 1975 when 800.000 signatures for an abrogative referendum were collected to abolish the articles of the penal code against abortion,7 but before there ever was the opportunity to vote, the Constitutional Court expressed its opinion in the historical judgment

4 Legge 22 maggio 1978, n 194.

5 Codice penale, art 546; Legge 22 maggio 1978, n. 194.

6 Nadia Maria Filippini, “L’utero è mio e lo gestisco io”: contraccezione e aborto nel movimento femminista degli anni Settanta, Unione degli Atei e Agnostici Razionalisti, 2018 <https://www.uaar.it/uaar/ateo/archivio/118/utero-mio-gestisco-io-contraccezione-aborto-movimentofemminista> accessed 22 November 2022.

7 Sara Bianchi, Ricorda 1978: La legge 194, Lo spiegone, 22 agosto 2018 <https://lospiegone.com/2018/08/22/ricorda-legge-194-978/>, accessed 17 October 2022.

No. 27/1975.8 Here, the difference between the health of someone who is already a “person”, referring to the pregnant woman, and the life of the fetus, which is still in development, was highlighted. The court, for the first time, declared ex-article 546 of the penal code constitutionally unlawful, in the paragraphs where it was not provided for women to interrupt the pregnancy when continuing it would have led to serious, medically verified, danger to their health. On 22nd May 1978, after years of discussion and compromises, Legge n.194/78 came to be, abrogating the penal code’s articles, decriminalising abortion and laying down the rules to seek and practice a voluntary termination of pregnancy legally.9

The main goals of the provision, introduced in articles 1 and 2,10 sought the protection of motherhood, applying a positive duty on the State to guarantee and recognise the right to responsible procreation and the social value of life from its beginning and to discard abortion as a birth control method. Moreover, article 2 includes a list of duties the health clinics owe to pregnant women when seeking assistance. To facilitate the responsible choice of motherhood, the clinics ought to inform women of their rights and help them overcome obstacles, so the termination of pregnancy is not the first choice.

2.2. The Legal Guarantee of Abortion in the Act

Article 4 of Legge n.194/78 officially introduces the right for women to get a voluntary termination of pregnancy.11 We have seen that, according to article 1, abortion cannot be practiced as a birth control method, hence some restrictive conditions apply to the woman who seeks an abortion.

Firstly, the voluntary termination of pregnancy can be obtained within the first 90 days of the pregnancy.12 The choice of 90 days as a limit was accepted by the Parliament, in Relazione della maggioranza, 13 where the standard of fetus autonomy was discussed concerning the complete development of the placenta, which happens after 3 months. Secondly, abortion is reserved for a woman who, within the time limit, experiences circumstances for which bringing about the pregnancy would result in severe dangers for her physical or mental 8

13

Aldo Bozzi, Ennio D'Aniello, Antonio Del Pennino, Relazione della maggioranza, 8 gennaio 1976.

health, in relation to (a) her health state, (b) economic situation, (c) social and family situations, (d) the circumstances concerning the conceiving or (e) foreseen fetus malformations. If one of these conditions is fulfilled, a voluntary termination of pregnancy can be legally guaranteed to a woman. She can then contact a counselling office or consult her general practitioner.

According to paragraphs 1 and 2 of article 5,14 the counselling office or GP has the obligation to (1) guarantee the necessary medical examinations, (2) review, together with the woman (and the father of the conceived, in cases where the woman consented to it) the possible solutions to the issues she is facing, (3) help her removing the causes that motivate her choice of aborting and (4) promote every action to support her with the necessary help both during the pregnancy and after, but also (5) to inform her of her rights, of the social help she can request and the clinics to which she can go. In the eventuality that the woman decides to go through with her choice, paragraphs 3 and 415 distinguish between urgent and non-urgent cases. If the counselling doctor or her GP, after thorough examinations, recognises the existence of circumstances such that an urgent procedure is necessary, he will issue a certificate declaring the urgency, to be presented to one of the authorised clinics for obtaining a voluntary termination of pregnancy.16 In the opposite case, if the urgent procedure is not deemed necessary, the doctor, in the presence of such a request, will sign a document certifying the pregnancy state and the request, inviting the woman to reflect upon it for 7 days. After this time elapses, the woman can obtain the abortion procedure already authorised by the document.17 In many cases, this 7-day waiting period ends up being one more obstacle in the path to getting an abortion, as women may fall out of the maximum timeframe for an abortion.

2.3. The Constitutional Court’s Decisions on the Merits of the Act

The focus of this section will be turned toward the judgments of the Italian Constitutional Court, called to rule on the abrogative referendums not long after the Act entered into force. For the purpose of the research, only two of the proposals of the first ruling will be taken into consideration.

Decriminalising the termination of pregnancy should have served the purpose of reducing illegal abortion. However, its approval was not seen positively by a portion of the

14 Legge 22 maggio 1978, n. 194, art 5, para 1-2.

15 Legge 22 maggio 1978, n. 194, art 5, para 3-4.

16 Legge 22 maggio 1978, n. 194, art 5, para 3.

17 Legge 22 maggio 1978, n. 194, art 5, para 4.

population, including the Catholic Church, which was one of the main promoters of a referendum against this act. After Act No. 194/78 was promulgated, the Italian Constitutional Court was seized multiple times and called to judge upon different points and provisions of it.18 This first happened in the judgment No. 26/1981,19 when the Court had to rule on the admissibility of three different proposals of abrogative referendums.

In the Italian legal system, referendums are considered an essential institution of direct democracy, especially the abrogative referendum for their relevance in the political life of the country.20 According to article 75 of the Italian Constitution, an abrogative referendum can be requested to repeal, in whole or in part, a law or a measure having such force when requested by five hundred thousand voters or five regional councils.21 After collecting more than 500.000 signatures, the Court was seized to judge on the admissibility of three referendum proposals (the “radical”, the “maximal” and the “minimal”) before they were brought to the polls. Of the three, the Court considered admissible and referred the choice to the people on two proposals: the “radical” referendum, which asked for the abrogation of specific parts of the Act relative to the procedures in place to request termination of pregnancy, hence a full liberalisation of abortion. On the contrary, the “minimal” one asked for the abrogation of all the justifications and modes to obtain an abortion, except for the therapeutic one because considered a safeguard for the health of the woman in grave situations.22

Basing its decision upon the previous ruling No. 27/1975,23 the Court affirmed that the right to abortion, recognised in the Act, is not “absolute” because it was created not as a “subjective right” but only as a “legitimate interest” of the woman, protected if certain requirements are fulfilled.24 Nevertheless, the Court could not help but notice that such

18 Mauro Ronco, “La tutela della vita nell’ordinamento giuridico italiano, considerazioni sull’aborto”, 11 febbraio 2020, <https://l-jus.it/la-tutela-della-vita-nellordinamento-giuridico-italiano-considerazionisullaborto/> accessed 15 October 2022.

19 Corte Costituzionale 10 Febbraio 1981 n. 26, in Giur. cost., 1981 3.

20 Roland Ricci, “Financing Referendum Campaigns in Italy: How Abrogative Referendum Can Regulate Electoral Financing” in Lutz, K.G., Hug, S. (eds) Financing Referendum Campaigns. (Palgrave Macmillan 2010).

21 Costituzione della Repubblica Italiana 1947, art 75, para 1.

22 A therapeutic surgical abortion is considered such when done after the first trimester of pregnancy, to avoid grave danger to the health of the woman or when, after tests have shown it would result in a child with severe abnormalities.

23 Corte Costituzionale 18 Febbraio 1975 n. 27, in Giur. cost. 1975 3-4.

24 Corte Costituzionale 10 Febbraio 1981 n. 26, in Giur. cost. 1981 3.

modifications of the Act would also conflict with the woman's right to health, which is enshrined in article 32 of the Constitution.25

However, the people responded negatively to the referendums because a “quorum” was never reached. According to paragraph 4 of article 75 of the Constitution, a referendum can only bring the results wanted when a majority of those eligible voted and a majority of valid votes was reached.26

Some years later, the Court was called to rule again in the judgment No. 35/1997,27 on another abrogative referendum proposal. The formation of such an abrogative request, similar to the ‘radical’ one of 16 years prior, aimed to remove the article on the legal procedures necessary to request an abortion within the first trimester. This time, the Court declared this proposal inadmissible. It ruled that the abrogation of these provisions “would minimise the protection level of those constitutionally protected fundamental rights, such as the right to life [of the fetus] and health [of the mother]28 and the necessary protection of motherhood,29 […]”.30 The legislator must, therefore, guarantee the necessary protections to avoid abortions to be executed without thorough checks on the foreseeable dangers the woman could encounter.31

2.4. The Right to Conscientious Objection in Italy

When speaking of the right to abortion in Italy, it is inevitable to also discuss the conscientious objection as well, given the current impact of the latter on the factual possibility for women to seek a safe abortion. The right to conscientious objection is the right to refuse to comply with a law considered unjust, in contrast with another fundamental right, if so perceived by personal conscience.32 It was first recognised in Constitutional Judgment No. 467/1991,33 concerning the refusal of mandatory military service for conscience reasons. There, the Court declared that “the protection of the individual conscience can be derived from the safeguarding of

25 Costituzione della Repubblica Italiana 1947, art 32.

26 Costituzione della Repubblica Italiana 1947, art 75.

27 Corte Costituzionale 10 Febbraio 1997 n. 35, in Giur. cost., 1997 3.

28 Costituzione della Repubblica Italiana 1947, art 32.

29 Costituzione della Repubblica Italiana 1947, art 31.

30 Corte Costituzionale 10 Febbraio 1997 n. 35, in Giur. cost. 1997 3.

31 ibid, para 2.

32 Obiezione di coscienza Enciclopedia Treccani.

33 Corte Costituzionale 16 Dicembre 1991 n. 467, in Giur. cost. 1991, paras 4-5.

fundamental freedoms and inalienable rights recognised and guaranteed to the person, under articles 2, 13, 19 and 21 of the Italian Constitution”.34

The right to conscientious objection to abortion is found in the first paragraph of article 9 of Legge n.194/78.35 Through this article of the Act, members of the medical staff can preventively declare to the provincial office and the director of the hospital of employment and invoke the objection on the grounds of conscience. In this way they will be exempted from taking part in the process listed in article 5 and the procedure for the termination of pregnancy. The possibility of objecting on these grounds was introduced in the Act provided that the law remains ‘tolerant’ towards the objection: this clause results admissible only if it does not represent an obstacle to the aims sought in the Act.36 With the present situation in Italy, where there is an average of 65% objectors, invoking this right today represents an impairment for women to access health services in a timely manner.

At the time of its formulation, article 9 was added to the Act as a safeguard for practitioners who were now requested to comply with new regulations. However, since 1978, the Act has not been modified and neither adapted to the current organisation of the Italian healthcare system that sees women’s rights concretely affected. This is not even after the Constitutional Court ruled that the legislator must balance the conscientious objection with contrasting constitutional duties and rights and calibrate the possibilities to not adversely affect the organisational structures and services for the public interest.37 It is important not to forget, however, that the individual conscience represents a constitutional value high enough to justify even such exemptions from public duties.

2.5. Where the Right to Conscientious Objection stops

When defining the limits to the right of conscientious objection, adding a conscientious objection clause within the same Act that guarantees the right to voluntary termination of pregnancy was intended as a mechanism to give these two rights the same level of legal protection. However, in many cases, moral integrity is seen as an absolute value, which may

34 Costituzione della Repubblica Italiana 1947, arts 2, 13, 19, 21

35 Legge 22 maggio 1978, n. 194, art 9, para 1.

36 Davide Paris, Riflessioni di diritto Costituzionale sull’obiezione di coscienza all’interruzione volontaria di gravidanza a 30 anni dalla legge n.194 del 1978, [2008] 26 Quaderni regionali 3 1079-1102

37 Corte Costituzionale, 16 dicembre 1991, n. 467, in Giur. Cost. 1991, paras 4-5.

override the relative value of women’s rights. Therefore, it is of the utmost importance to define the timeframe in which the right to conscientious objection can be invoked.

In judgment n. 14979,38 la Corte di Cassazione upheld the decisions of the lower courts in considering guilty an emergency care doctor working in the gynaecology ward for committing a crime under article 328 of the Italian penal code.39 According to this article, a public officiant who unduly refuses to perform actions in line with their job, which need to be performed without delay for reasons of (1) justice, (2) public security, (3) public order, (4) hygiene or (5) health, may be sentenced to 6 months to 2 years of imprisonment. The doctor in this case refused, for conscience reasons, to help a patient who already underwent a pharmacological termination of pregnancy and was now seeking help due to following complications.40

Pharmacological abortions don’t require surgery and are usually obtained through the Mifepristone pill, called “RU486”, together with misoprostol.41 These abortion pills, if taken within the first 9 weeks of pregnancy, stop the pregnancy hormone and provoke the detachment of the nestled fetus from the uterine lining, which will subsequently be ejected. For these reasons, this delicate procedure needs to be done in a hospital structure, and the woman must be hospitalised until the abortion process was complete (usually one day), following the provisions of article 8.42 Practitioners can invoke the right of conscientious objection, according to article 9 of the Act, if requested to assist during the procedures: they are exempted from the sole activities specifically and necessarily directed to operate the termination of pregnancy.43

The court analysed whether the right to conscientious objection had been invoked in compliance with the requirements and limits of the Act. In this case, the doctor was called to intervene and assist the patient following the procedure, as the abortion had already been induced before.44 Such behaviour was not accepted under the conscience clause, and it was therefore recognised as an offence under article 328 of the penal code.45 The Court went on to

38 Corte di Cassazione, Sez. VI pen., 27.11.2012 (dep. 2.4.2013), n. 14979.

39 Codice Penale, Rifiuto di atti d’ufficio. Omissione. (R.D. 19 ottobre 1930, n. 1398), art 328

40 Corte di Cassazione, Sez. VI pen., 27.11.2012 (dep. 2.4.2013), n. 14979.

41 Determinazione AIFA n. 865/2020 di “Modifica delle modalità di impiego del medicinale Mifegyne a base di mifepristone (RU486)”, Gazzetta Ufficiale, Serie generale n. 203 del 14-08-2020.

42 Legge 22 maggio 1978, n. 194, art 8, para 1.

43 Legge 22 maggio 1978, n. 194, art 9, para 1.

44 Corte di Cassazione, Sez. VI pen., 27.11.2012 (dep. 2.4.2013), n. 14979.

45 Codice Penale, Rifiuto di atti d’ufficio. Omissione. (R.D. 19 ottobre 1930, n. 1398), art 328.

add that the right to conscientious objection does not apply in respect of those useful activities necessary to avoid a major detriment to a patient’s health.46

3. Strasbourg’s perspective on the issue

3.1. The right to conscientious objection in Europe

Although there is no explicit right to conscientious objection in the European Convention on Human Rights, in Bayatyan v Armenia, 47 the European Court of Human Rights established a link between conscientious objection and freedom of thought, conscience and religion as enshrined in article 9 of the ECHR.48 Even if applied to different contexts, these freedoms are considered “one of the foundations of a democratic society; more specifically, the European judges regard religious freedom as a vital factor in forming the identity of believers and their conception of life”.49

On these premises, the parliamentary assembly of the Council of Europe adopted Resolution 1763.50 In the Resolution, the assembly invited the Member States to develop clear and comprehensive regulations that define and regulate conscientious objection regarding health and medical services.51 The first point of the resolution imposes a positive obligation on the states to not hold liable or discriminate against any person, hospital, or institution for refusing to perform or submit to an abortion, […].52 In the second point, the resolution wanted to draw attention to the need to establish the right of conscientious objection together with the right of patients to be able to access lawful medical care promptly.53 In light of the States’ obligations to ensure the right to health and safe access to medical care and respect of freedom of thought, conscience and religion, the assembly invited them to develop, where missing, regulations (1) to guarantee the right to conscientious objection regarding the participation in the medical procedure in question, (2) to ensure that patients are promptly informed of any

46 Corte di Cassazione, Sez. VI pen., 27.11.2012 (dep. 2.4.2013), n. 14979.

47 Bayatyan v. Armenia, App no 23459/03, (ECtHR, 7 July 2011).

48 Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights, as amended) (ECHR), art 9.

49 Guide on article9 of the European Convention of Human Rights, Freedom of thought, conscience, and religion, European Court of Human Rights, 31 August 2022 <https://www.echr.coe.int/documents/guide_art_9_eng.pdf> assessed on the 26.01.2023

50 Council of Europe (CoE), Parliamentary Assembly (35th Sitting), Resolution 1763 ‘The right to conscientious objection in lawful medical care’ (7th October 2010).

51 ibid.

52 ibid, para 1.

53 ibid, para 2.

conscientious objection and (3) to ensure that patients receive the necessary care, especially in emergency cases.54

If one were to stop reading this resolution after the first point, one would think that the assembly’s goal is to protect the right to conscientious objection and make it prevail over women’s rights. However, the resolution aims to push States to implement more of a balance between the two rights in their legislation, to regulate the right to conscientious objection in order to not disproportionately affect women’s rights.55 This rationale of the resolution was also upheld by the ECtHR in R.R. v. Poland, 56 where the court established that the State has “to organise its health system in a way as to ensure that the effective exercise of freedom of conscience by health professionals in the professional context does not prevent the provision of such services”.57

3.2. The violation of the European Social Charter

In the previous paragraphs, we have seen how the right to abortion in Italy is legally guaranteed by article 4 of Act No.194/78 and how article 5 imposes an obligation on the medical facilities to provide and guarantee these activities to be accessible.58 However, in practice, the right to abortion is impaired by the high number of conscientious objectors present all over Italy that see their right protected under article 9 of the same Act.59 In this regard, the European Committee of Social Rights, a body of the Council of Europe that oversees compliance with the European Social Charter (ESC), was called to give its judgment twice on two similar complaints.60

The first complaint was filed in mid-2012 by the International Planned Parenthood Federation (IPPF-EN) and the second one in early 2013 by the Confederazione Generale Italiana del Lavoro (CGIL); both the IPPF-EN and the CGIL accused Italy of not sufficiently

54 ibid, para 4.

55 ibid, para 2.

56 RR v Poland, App no 27617/04, (ECtHR, 26 May 2011).

57 ibid; Simona Zaami, Raffaella Rinaldi & Gianluca Montanari Vergallo, ‘The highly complex issue of conscientious objection to abortion: can the recent European Court of Human Rights ruling Grimmark v. Sweden redefine the notions of care before freedom of conscience?’ [2021] 26 The European Journal of Contraception & Reproductive Health Care 4, 349-355, <https://pubmed.ncbi.nlm.nih.gov/33821720/>, accessed 24 November 2022.

58 Legge 22 maggio 1978, n. 194, arts 4-5, para 1.

59 Legge 22 maggio 1978, n. 194, art 9, para 1.

60 European Commitee of Social Rights, International Planned Parenthood Federation – European Network (IPPF EN) v Italy (10 September 2013) Complaint No. 87/2012; European Committee of Social Rights,Confederazione Generale Italiana del Lavoro (CGIL) v Italy (12 October 2015) Complaint No. 91/2013

applying article 11 of the ESC (either read alone or in conjunction with the non-discrimination clause in article E), where the right to the protection of health is enshrined on the basis that article 9 of Act No.194/78 does not sufficiently guarantee women the actual right of accessing the abortion procedures.61 In filing the complaint, the IPPF-EN saw an opportunity in the Charter to challenge the Italian system as a whole before the Committee, arguing that access to abortion is a matter of the right to health, instead of making it a case of the right to private life, under ECHR.62

To strengthen their cases, the associations recognised that, although the right to conscientious objection qualifies as a subjective right in those sectors where the Italian legal system provides for it, such as for the voluntary termination of pregnancy, it can only be guaranteed insofar as the legislator can strike a fair balance in respect of all the other rights concerning the termination of pregnancy, including the right to health and self-determination of women.63 For these rights to be exercised accordingly, it is important therefore that in each medical facility there is a proportionate number of non-objecting practitioners for the requests of abortion procedures.64

In giving its judgment, the committee considered the present legal framework of the Act to have a substantial balance between the right to health concerning termination of pregnancy and the right to conscientious objection, sufficient to fulfil the Act's goals.65 Especially the obligations and the conditions imposed on the medical facilities as laid down in article 5 of the Act, “represent a suitable legal basis to ensure a satisfactory application of article 11 (ESC)”.66 However, abortion services must be organised to guarantee safe and legal access to those in need. In this regard, the medical facilities do not put any measures in place to compensate for the deficiency of non-objecting staff due to the high number of practitioners

61 ibid.

62 Emmanuelle Bribosia, Ivana Isailovic, Isabelle Rorive, “Objection ladies! Taking IPPF-EN v. Italy one step further”, 29 September 2017, <https://www.centreperelman.be/content/uploads/2022/09/ir_eb_ii_objection_ladies_-_2015_-_5.pdf>, accessed 5 January 2023.

63 European Commitee of Social Rights, International Planned Parenthood Federation – European Network (IPPF EN) v Italy (10 September 2013) Complaint No. 87/2012.

64 European Committee of Social Rights,Confederazione Generale Italiana del Lavoro (CGIL) v Italy (12 October 2015) Complaint No. 91/2013

65 Council of Europe (CoE), Committee of Ministers (Deputies’ Meeting, 1198th session), International Planned Parenthood Federation – European Network (IPPF EN) v. Italy, Complaint No. 87/2012 (30 April 2014) Resolution CM/ResChS (2014) 6.

66 ibid, section 1, para 2.

invoking the right to conscientious objection.67 In the end, the committee found a violation of article 11 of the Charter in both cases. They highlighted how, given the current situation, women face difficulties in accessing abortion services to which they have a legal entitlement in line with the provisions of Act No. 194/78, and how they are forced to travel to other medical facilities, in Italy or abroad, or terminate their pregnancy without the support or control of competent practitioners.68 There is a systematic failure of the State to organise a health system so that it is mindful of women’s reproductive rights.

The Italian government in charge at that time answered to the first complaint that, although “the management of health structures is under the competence of the Regions, given the importance of women’s health and motherhood in Italy also at the political level, the Minister of Health presents a report every year on the application of Act No.194/78 to be discussed in the Parliament with nationally aggregated data”.69 Moreover, the government guaranteed the creation of a “technical table” to remedy any kind of difficulties that may arise in women’s access to pregnancy termination services.70 In July 2022, the Parliament received the latest report on the 2020 data on the implementation of the Act. The report shows how the situation on the issue has not changed much, since Italy has one of the lowest abortion rates in the world, 5.4 per 1,000 women aged 15-49 years, while the percentage of conscientious objectors still remains high, especially in the South.

4. Conclusion

With the introduction of Act No.194/78 in the Italian normative landscape, regulations and procedures on how to legally seek a safe termination of pregnancy were finally put in place. At the same time, the Act included a provision to allow practitioners to refuse to perform abortions and to invoke the right to conscientious objection.71 However, if invoked by too many practitioners, this provision restricts the possibility for women to seek an abortion in a safe and timely manner.

67 ibid, section 1, para 3.

68 ibid, section 2, para 1.

69 See the appendix ‘Italian intervention on the first examination of Complaint No. 87/2012 International Planned Parenthood Federation ‒ European Network (IPPF EN) v. Italy, (GR-SOC, 13 and 18 March 2014)’, para 3.

70 ibid, para 6.

71 Legge 22 maggio 1978, n. 194, arts 4, 9.

This paper aimed to tackle the issue of how women’s rights to health and safe access to abortion are weighed against the right to conscientious objection of practitioners in Italy, according to Italian laws, Courts and in the judgment of the violation of the European Social Charter.

The first decision of the Italian Constitutional Court72 in decriminalising abortions defined this practice as being a ‘legitimate interest’ of women which was later linked to the right to health enshrined in article 32 of the Constitution. It was underlined how the abrogation of certain parts of the articles on the procedures of abortion would undermine and make void the right to health of the woman: her right to self-determination in making the choices she deems more appropriate would be at stake.73 But at the same time, the Italian jurisprudence gave the right to conscientious objection the status of fundamental right, as it derives protection from the Constitution itself, for being part of the expression of the human personality.74

The right to health of the woman was then made a priority in the Court of Cassation judgment of 2013, where specific limits to the right to conscientious objection were established for cases that do not concern the actual aborting procedure. What can be derived is that conscientious objection to abortion is accepted insofar as it does not turn into an omission of essential acts that could compromise individuals’ constitutional rights.75

With Resolution 1763 (2010) of the Parliamentary Assembly of the Council of Europe, the importance of balancing these two rights correctly was observed from a European perspective. The right to conscientious objection, protected under article 9 of the ECHR, must be well-regulated so to not affect women disproportionately.76 In Italy’s case, it violated the European Social Charter, as declared by the Committee that examined the two complaints brought forward against Italy by the IPPF-EN and CGIL. The way the right to conscientious objection is administered takes away the concrete possibility for women to access safe abortions, resulting in a violation of the right to health enshrined in article 11 of the ESC.77

72 Corte Costituzionale 18 Febbraio 1975 n. 27, in Giur. cost., 1975.

73 Corte Costituzionale 10 Febbraio 1981 n. 26, in Giur. cost., 1981; Corte cost. 18 Febbraio 1997 n. 35, in Giur. cost., 1997.

74 Corte Costituzionale 16 dicembre 1991, n. 467, in Giur. Cost. 1991.

75 Corte Costituzionale 10 Febbraio 1981 n. 26, in Giur. cost., 1981.

76 Council of Europe (CoE), Parliamentary Assembly (35th Sitting), Resolution 1763 ‘The right to conscientious objection in lawful medical care’ (7 October 2010).

77 European Commitee of Social Rights, International Planned Parenthood Federation – European Network (IPPF EN) v Italy (10 September 2013) Complaint No. 87/2012; European Committee of Social Rights,Confederazione Generale Italiana del Lavoro (CGIL) v Italy (12 October 2015) Complaint No. 91/2013

What should be changed is not the Act, but the way health facilities are implementing and organising the objectives of the Act.

At this stage, it is possible to see how the State must uphold the right to conscientious objection, which can be justified by the principles of autonomy and integrity: “it is worth protecting, but its protection can only be meaningful in an environment that enables abortion provisions.”78 If it clashes with women's reproductive and self-determination rights, it cannot be considered an absolute right.

In a time where the world is taking a step back by applying more restrictions to women’s rights, the issue at hand should be taken more seriously and consciously by the legislator. The current conscientious objection regulations need to be improved, both at State and regional level: to ensure the right to conscientious objection doesn't interfere with women's ability to exercise their right to terminate the pregnancy safely, 79 the State should work toward having better administration and relocation of objecting and non-objecting practitioners within Italian territory.

Laura Florence Harris, Jodi Halpern, Ndola Prata,Wendy Chavkin, Caitlin Gerdts, ‘Conscientious objection to abortion provision: Why context matters’ [2018] 15 Global Public Health 5 556-566 <http://www.tandfonline.com/doi/abs/10.1080/17441692.2016.1229353> accessed 5 December 2022.

79 Gustavo Ortiz-Millán, ‘Abortion and conscientious objection: rethinking conflicting rights in the Mexican context’ [2018] 29 Global Bioethics 1 1-15 <https://pubmed.ncbi.nlm.nih.gov/29249919/> accessed 5 December 2022.

An estimated 600 asylum seekers are believed to have drowned in the Mediterranean Sea in their attempts to reach Italy when their boat capsized on 18th April 2015 – just one tragedy out of many examples that have made the news in recent years.1 The European Union’s (EU) laws governing asylum have been subject to much change and reformation, especially during times of crisis. 2015 has been remembered as a year in which the world, and especially the European Union, faced enormous pressures in tackling migration crises. Seven years later, the EU is again facing turmoil, as a result of Russia’s invasion of Ukraine. Just as in 2015, once more thousands of individuals are fleeing their home country, aiming to find protection within the borders of EU Member States. To tackle such crises, the EU has passed several different measures to manage the disproportionate influx of asylum seekers. Temporary mechanisms were introduced with the aim of alleviating the burden of national asylum systems when faced with a strong influx of refugees trying to enter their country.2 Measures that were passed by the EU most notably include two Council Decisions (Council Decision 2015/15233 and 2015/16014) in September 2015 and the Temporary Protection Directive, which has been activated for the first time this year.5

The question this paper aims to address is: ‘how do the temporary mechanisms introduced in the 2015 Relocation Decisions and the Temporary Protection Directive address the concept of burden-sharing within the European Union in large-scale refugee movements?’ The focus will be a comparison of the similarities and differences between these mechanisms and the successes and failures they have encountered within the Union. The research will primarily revolve around the legal sources mentioned above and relevant case law. To conceptualise the notion of burden-sharing and apply it to the aforementioned legal sources, it

1 William Spindler, ‘2015: The Year of Refugee Crises’ (unhcr.org, 08 December 2015) <https://www.unhcr.org/news/stories/2015/12/56ec1ebde/2015-year-europes-refugee-crisis.html> accessed 1 November 2022.

2 Jan Schneider, ‘EU Policy Options to Manage the Migration and Refugee Situation: An Insufficient Toolbox?’ (iemd.org) <https://www.iemed.org/publication/eu-policy-options-to-manage-the-migration-and-refugeesituation-an-insufficient-toolbox/> accessed 14 November 2022.

3 Council Decision (EU) 2015/1523 of 14 September 2015 establishing provisional measures in the area of international protection for the benefit of Italy and of Greece [2015] OJ L239/146 (Council Decision 2015/1523).

4 Council Decision (EU) 2015/1601 of 22 September 2015 establishing provisional measures in the area of international protection for the benefit of Italy and of Greece [2015] OJ L248/80 (Council Decision 2015/1601).

5 Council Directive 2001/55/EC on minimum standards for giving temporary protection in the event of a mass influx of displaced persons and on measures promoting a balance of efforts between Member States in receiving such persons and bearing the consequences thereof [2001] OJ L 212 (Temporary Protection Directive).

will be necessary to further investigate opinions and conclusions made by legal scholars in secondary sources. Additionally, reports made by the European Union will help in examining the overall advancements made with the mechanisms discussed. Therefore, a comparative legal research methodology will be used in this paper.

A comparative analysis of the two different legal mechanisms, in light of the concept of burden-sharing during a refugee crisis, will be examined. One can argue that such legal mechanisms retain their significance, considering past and present developments. Conflict, for example, appears to occur in many parts of the world, driving many to seek refuge. Furthermore, an imminent climate crisis may force individuals to soon flee not only conflict but also nature. It will therefore be of interest to the European Union to assess past legal mechanisms introduced to tackle such refugee crises. More precisely, it is of great importance to examine the extent of their success and to improve upon potential shortcomings.

To successfully address the research question, it will be important to gain a better understanding of the concept of burden-sharing throughout chapter 1. Chapter 2 will then provide a brief overview of why the Council Decisions 2015/1523 and 2015/1601 came into existence and the mechanism they introduced. Additionally, chapter 2.1 will explore the execution of this mechanism in practice and its successes and failures across the Union. More specifically, chapters 2.1.1 and 2.1.2 will explore the responses by the Member States to the Decisions and any final conclusions that can be drawn from the mechanisms introduced. The same line of reasoning will also be followed when addressing the Temporary Protection Directive in light of the 2022 Ukrainian refugee crises in chapters 3 and 3.1.

2. Conceptualising Burden-Sharing

The discourse surrounding the concept of “burden-sharing” has long been contested within the international community and was, notably, introduced in the 1951 Refugee Convention.6 Paragraph D of the final act of the Convention recommends that governments must 'act in concert in true spirit of international cooperation.'7 International burden-sharing concerns itself with how the costs of joint initiatives should be shared among the participating States. Within the context of the European Union, it means how the resulting costs ought to be shared among

6 Convention Relating to the Status of Refugees (adopted 28 July 1951, entered into force 22 April 1954) 189 UNTS 137 (Refugee Convention)

7 ibid, para D.

the Member States.8 The concept has once again attracted interest following the conflict in Syria in 2015 and the resulting refugee crisis. The crisis was one out of many examples that highlighted the unequal distribution of asylum seekers across the Union: in 2014, the Commission noted that five Member States were primarily responsible for 72% of asylum applications.9

In essence, the burden-sharing mechanism aims to ensure that asylum seekers coming into the Union are distributed in a fair and just manner to minimise the respective burdens that are put upon the national asylum systems when facing migratory pressures.10 This concept is particularly attractive to Member States for several reasons; for instance, to promote solidarity with other countries, which is arguably one of the guiding principles of the EU. This can be achieved by showing solidarity with asylum seekers or the Member States in need of support. Other reasons as to why burden-sharing might be attractive include that it may serve as insurance against mass migratory inflow, that it supports the Member States in adhering to international obligations, and that it may provide for an efficient instrument to achieve EU objectives at a lower cost.11 Burden-sharing in the EU can primarily be achieved through three instruments, these being policy harmonisation, financial assistance, and the physical sharing of asylum seekers among the Member States involved.12

3. The Relocation Decisions of 2015

During the Syrian refugee crises in 2015, over 1.2 million Syrian asylum seekers sought international protection within the European Union.13 The number of applications had increased significantly in comparison to previous years, which meant that the national asylum systems of the Member States were faced with an unprecedented burden.14 As a result of the subsequent disproportionate migratory pressures upon the Union’s borders, the Council decided on a temporary derogation from the Dublin System, which had previously governed

8 Eiko R. Thielemann, 'Between Interests and Norms: Explaining Burden-Sharing in the European Union' (2003) 16 J Refugee Stud 253.

9 Meltem Ineli-Ciger, 'Time to Activate the Temporary Protection Directive' (2016) 18 Eur J Migration & L 1 30.

10 ibid, 29.

11 Eiko R. Thielemann, ‘Burden Sharing: The International Politics of Refugee Protection’ (2006) The Center for Comparative Immigration Studies Working Paper 134 <https://ccis.ucsd.edu/_files/wp134.pdf> accessed 30 November 2022 13-16.

12 ibid, 17.

13 Eiko R. Thielemann, 'Why Refugee Burden-Sharing Initiatives Fail: Public Goods, Free-Riding and Symbolic Solidarity in the EU' (2018) 56 J Common Mkt Stud 63 66.

14 ibid

asylum applications.15 The Council Decisions 2015/1523 and 2015/1601 established a temporary and exceptional relocation measure which sought to establish provisional measures in the area of international protection for the benefit of Italy and Greece. They introduced an emergency relocation scheme, in an attempt to alleviate the burden that had been put upon Italy’s and Greece’s borders and national asylum systems. Council Decision 2015/1523 was adopted on the 14th of September 2015 and Council Decision 2015/1601 was adopted on the 22nd of September of the same year, and together they sought the relocation of 160,000 asylum seekers in a period of two years.16

The two decisions had a very narrow scope in regard to the persons eligible for relocation and several elements had to be taken into consideration. Only asylum seekers who had already lodged an application in Italy or Greece in addition to fulfilling a nationality criterion fell within the scope of the decisions.17 This criterion included persons in clear need of international protection belonging to a nationality for which the EU-wide recognition rate was 75% or higher at first-instance decisions according to Eurostat.18 Furthermore, individuals eligible for relocation did not enjoy the discretion to choose the Member State to which they were to be relocated.19

The second Council Decision, Council Decision 2015/1601, not only introduced an additional number of asylum seekers in need of relocation, but also a mandatory relocation key that assigned Member States responsibility. According to the Commission’s proposal of the Decision, the distribution of applicants across the Member States was based upon the following: the size of the population, total GDP, the unemployment rate, and the past numbers of asylum seekers and resettled refugees.20 Based on this distribution key, the second Council Decision included two annexes and provided for a detailed description of how many asylum seekers needed to be relocated to a specific Member State. The Member States were bound to

15 Jan Schneider, ‘EU Policy Options to Manage the Migration and Refugee Situation: An Insufficient Toolbox?’ (iemd.org) <https://www.iemed.org/publication/eu-policy-options-to-manage-the-migration-andrefugee-situation-an-insufficient-toolbox/> accessed 14 November 2022.

16 Elspeth Guild and others, ‘Implementation of the 2015 Council Decisions Establishing Provisional Measures in the Area of International Protection for the Benefit of Greece and Italy’ (Directorate-General for Internal Policies 2017) 7.

17 Council Decision 2015/1523, art 3(1).

18 ibid, art 3(2).

19 Elspeth Guild and others, ‘Implementation of the 2015 Council Decisions Establishing Provisional Measures in the Area of International Protection for the Benefit of Greece and Italy’ (Directorate-General for Internal Policies 2017) 21.

20 Meltem Ineli-Ciger, 'Time to Activate the Temporary Protection Directive' (2016) 18 Eur J Migration & L 1 7-8.

the asylum seekers assigned to them and relocation was mandatory. Moreover, according to the decision, the Member States involved were also granted financial compensation by the Union for their efforts. 6.000€ would be granted to the Member State of relocation per person relocated and Greece or Italy were to be given an additional 500€.21 Hence, it can be said that the two Council Decisions addressed burden-sharing in the European Union by introducing a mandatory relocation mechanism, that was based on a quota, to relieve extensive asylum pressures that were disproportionately experienced by Italy and Greece.

3.1.

The Successes and Failures of the Relocation Decisions within the context of the 2015 Refugee Crisis

3.1.1. Reactions by the Member States

Only a few months after the adoption of the Decisions, Slovakia and Hungary filed a legal action before the Court of Justice of the European Union (CJEU) against Council Decision 2015/1601.22 Since the scheme introduced in the first Council Decision was still voluntary for the Member States, it was primarily this second Council Decision that Member States sought to annul, as it introduced a mandatory quota they were obliged to follow. As well as Slovakia and Hungary, Poland also supported some of their pleas by means of its intervention. The decision had previously been adopted by the Council by qualified majority where Slovakia, Hungary, the Czech Republic, and Romania had voted against it.23 The final judgement of the CJEU was given almost exactly two years later on the 6th of September in 2017.24 With Slovakia having six pleas in law and Hungary ten, the two cases were combined and the pleas of the two Member States were joined into three distinct categories.

The first category of pleas alleged that article 78(3) of the Treaty of the Function of the European Union (TFEU)25 was not the correct legal basis. Hungary and Slovakia believed that the decision was adopted through the wrong procedure, as it had led to the amendment of

21 Council Decision 2015/1601, art 10.

22 Joined Case C-643/15 and C-647/15 Slovak Republic and Hungary v Council of the European Union [2017]

ECLI:EU:T:2017:631.

23 Jan Schneider, ‘EU Policy Options to Manage the Migration and Refugee Situation: An Insufficient Toolbox?’ (iemd.org) <https://www.iemed.org/publication/eu-policy-options-to-manage-the-migration-andrefugee-situation-an-insufficient-toolbox/> accessed 14 November 2022.

24 Joined Case C-643/15 and C-647/15 Slovak Republic and Hungary v Council of the European Union [2017]

ECLI:EU:T:2017:631.

25 Consolidated Version of the Treaty on the Functioning of the European Union [2012] OJ C326/47.

significant legislative acts such as the Dublin III Regulation.26 The plea was rejected by the court as they viewed that the Council Decision only provided for a temporary derogation with no intentions of permanently amending any legislative provisions.27 The second category of pleas claimed that there was an alleged breach of essential procedural requirements for the adoption of the decision. The Member States argued, among other things, that the decision had to be adopted unanimously due the politically sensitive nature of the topic and the mandatory quota it introduced.28 The CJEU also rejected this claim, with one of its main arguments being that the Council was not subject to the requirement of unanimity,29 since it was not the Council but the Commission that exercised its power under article 293(2) TFEU.30 Additionally, several pleas were made concerning the substance of the Decision. These pleas included claims that the decision was disproportionate to the objectives it sought to obtain.31 One of the reasons why the CJEU rejected this claim was because statistical data at the time suggested that the mechanism was necessary to aid Italy and Greece,32 and that it was well within the Council’s discretion to adopt such mandatory relocation scheme given the urgency of the situation.33 Ultimately, the CJEU rejected all claims made and ruled that the Council Decision remained fully applicable and therefore rejected the action for annulment. As a result of the ruling, the Commission subsequently launched successful infringement proceedings under article 258 TFEU against the Czech Republic, Poland, and Hungary for non-compliance with the Relocation Decisions.34

It would be naive to ignore that although the pleas were legal in nature, Hungary and Slovakia were also promoting their political agenda. The developments of the case in front of the CJEU, were consistently accompanied by propaganda from Hungary’s and Slovakia’s leadership.35 Hungary perhaps has been the most vocal towards its position of the Relocation

26 Joined Case C-643/15 and C-647/15 Slovak Republic and Hungary v Council of the European Union [2017]

ECLI:EU:T:2017:631, para 47.

27 ibid, para 79.

28 ibid, para 137, 138.

29 ibid, para 188.

30 ibid, para 187.

31 ibid, para 225.

32 ibid, para 240.

33 ibid, para 246.

34 European Commission, ‘Relocation: Commission launches infringement procedures against the Czech Republic, Hungary, and Poland’ (ec.europa.eu, 14 June 2017) <https://ec.europa.eu/commission/presscorner/detail/en/IP_17_1607> accessed 25 November 2022.

35 Katerina Linos and others, ‘Hungary and Slovakia challenged Europe’s refugee scheme. They just lost badly’ The Washington Post (8 September 2017) <https://www.washingtonpost.com/news/monkeycage/wp/2017/09/08/hungary-and-slovenia-challenged-europes-refugee-scheme-they-just-lost-badly/> accessed 29 December 2022.

Decisions. The Hungarian Prime Minister Victor Orban did not shy away from using antimigration rhetoric, even stating that refugees were a threat to state security and sovereignty.36 As well as many policy changes, the Hungarian government also organised a referendum in 2016 on the question of whether the EU can mandate the relocation of refugees to Hungary without its approval. 98.36% of Hungarian citizens voted “no”, however, the referendum had been subject to a considerable low turnout of under 50%.37 Slovakia’s reservations were primarily of a religious nature and concerned the fear of an expanding Muslim community within its nation.38 It was also made clear by the disapproving Member States that they were open to help the migration crisis through other means that were not obligatory.39

Even after the judgement given, according to the fifteenth report on relocation and resettlement by the Commission issued in 2017, Hungary and Poland remained the only Member States who had not relocated a single person under the scheme.40 The report also highlighted other failures by the Member States to fulfil their obligations. Almost two years after the introduction of the scheme, only 27.700 individuals out of the original 120,000 had been relocated. As well as Poland and Hungary, the Czech Republic has also failed to pledge to take in a single person since 2016, and Italy had still been facing high migratory pressure in their asylum system. Only a couple of days before the end of the stipulated time period, the Commission deemed the current state of relocation as insufficient and called for an acceleration of relocation.41

Despite these shortcomings, the scheme also enjoyed some success. The Member States of Malta, Latvia, and Norway fulfilled their commitments and Finland, Lithuania, and Luxembourg had also received high numbers of relocated individuals. Furthermore, the Commission stated in their last report that the situation in Greece had sufficiently stabilised.42

36 Maciej Duszczyk and others, ‘From mandatory to voluntary. Impact of V4 on the EU relocation scheme’ (2019) European Politics and Society 470 474.

37 ibid.

38 ibid, 475.

39 ibid.

40 European Commission, ‘Fifteenth Report on Relocation and Resettlement’ (September 2017). <https://eurlex.europa.eu/resource.html?uri=cellar:9ca86f51-93d9-11e7-b92d01aa75ed71a1.0001.02/DOC_1&format=PDF> accessed 7 December 2022.

41 ibid.

42 ibid.

3.1.2. Final Remarks

The scheme introduced by the Relocation Decisions, primarily intended to address the concept of burden-sharing through the physical distribution of asylum seekers. However, with the twoyear application period having long passed, only limited success has been achieved in the given time period. Since the second Council Decision introduced a mandatory relocation quota, it was met with resistance by many Member States. Ultimately, it can be argued that it did not sufficiently succeed, in the physical burden sharing of asylum seekers. However, this was not necessarily due to the legal instrument adopted, but rather due to the lack of political motivation of some Member States such as Slovakia and Hungary to participate in the scheme. Moreover, the mechanism was also seen by some as controversial, as asylum seekers were denied the choice of choosing the Member State, they would be relocated in.43 Some legal scholars even argued that it was inadequate, as the distribution key did not take into account previous experiences by the Member States.44 Furthermore, it may even be argued that the number of individuals eligible for relocation were too few to sufficiently address the pressures Italy and Greece were facing.45 All factors considered, this led to a very slow implementation of the scheme. The migration challenge within the Union remains, but important lessons were learned through the introduction of the Relocation Decisions, which should not be ignored in the search for solutions on burden-sharing.

4. The Temporary Protection Directive

As a response to Russia’s invasion of Ukraine in 2022 and the ensuing streams of asylum seekers, the European Union activated the Temporary Protection Directive in record time through the Council Implementing Decision 2022/382. Unlike the Relocation Decisions of 2015, the Temporary Protection Directive has been in existence since its adoption in 2001 but only become applicable on the 4th of March 2022.46 The Directive aims primarily to provide for the temporary protection of asylum seekers, and to support Member States in achieving a

43 Eiko R. Thielemann, 'Why Refugee Burden-Sharing Initiatives Fail: Public Goods, Free-Riding and Symbolic Solidarity in the EU' (2018) 56 J Common Mkt Stud 63 77-78.

44 Agustin Jose Menendez, 'The Refugee Crisis: Between Human Tragedy and Symptom of the Structural Crisis of European Integration' (2016) 22 Eur LJ 388 399.

45 ibid.

46 Council Implementing Decision 2022/382 of 4 March 2022 establishing the existence of a mass influx of displaced persons from Ukraine within the meaning of Article 5 of Directive 2001/55/EC, and having the effect of introducing temporary protection [2022] OJ L 71/1 (Council Implementing Decision 2022/382).

balanced effort between the Member States to address the refugee crisis.47 Similar to the two Relocation Decisions, the protection scheme activated by the directive is also of a temporary nature, and can be granted for a maximum of three years.48 However, the scope of the persons eligible for temporary protection is wider, encompassing a much larger group of people. According to article 2 of the Implementing Decision, the Directive applies to Ukrainian nationals residing in Ukraine before Russia’s invasion, stateless persons, or nationals of third countries who enjoyed international protection before the invasion, as well as family members of the two former categories.49

The Directive introduced to prevent the blockage of national asylum systems is also not a relocation mechanism but rather a solidarity mechanism based on “double volunteerism.50 This type of mechanism is dependent on the willingness of the Member States to receive asylum seekers and commitment from the persons seeking protection. As well as the physical sharing of asylum seekers based on articles 25 and 26 of the Directive, the solidarity mechanism is also complemented by the financial sharing of resources across the Member States according to article 24. Financial sharing is specifically addressed through emergency assistance by the European Refugee Fund, and its primary aim is to support the Member States in their actions concerning receiving asylum-seeking persons in relation to the conditions of reception. The conditions taken into consideration include, but are not limited to, the state of infrastructure, health care, accommodation, and others.51 In an effort to distribute the physical sharing of asylum persons in a balanced manner, each Member State is obliged to indicate their exact capacity to receive persons in need of protection, and are then also obliged to receive persons eligible.52 Furthermore, the organisation of redistribution is further laid down in the Directive, and as a result, Member States enjoy simplified and shortened procedures.53 This is, therefore, not a strict obligatory regime, but rather heavily decisive on the voluntary commitments of the Member States. As a result, the Temporary Protection Directive tackles the issue of burden-

47 Hanne Beirens and others, ‘Study on the Temporary Protection Directive’ (Directorate-General for Migration and Home Affairs 2016) 5.

48 Temporary Protection Directive, art 4.

49 Council Implementing Decision 2022/382, art 2.

50 Karoline Kerber, ‘The Temporary Protection Directive' (2002) 4 Eur J Migration & L 193 211.

51 ibid.

52 Temporary Protection Directive, art 25.

53 Hanne Beirens and others, ‘Study on the Temporary Protection Directive’ (Directorate-General for Migration and Home Affairs 2016) 9.

sharing by introducing a flexible instrument that is primarily based on solidarity and the Member States’ political will in receiving asylum persons.

5. The Temporary Protection Directive in 2022

5.1. Quantity of Persons relocated

Unlike the Relocation Decisions of 2015, the Temporary Protection Directive was activated unanimously and was not immediately faced with opposition after its adoption. The Temporary Protection Directive applies to all Member States except Denmark, which has nevertheless introduced a similar national protection scheme.54 According to the most recent data from the United Nations High Commissioner for Refugees, the number of refugees from Ukraine recorded across Europe is as high as 7,891,977, where an estimated 4,891,977 persons enjoy protection under the Directive or similar national protection schemes.55 The numbers recorded in Slovakia, Hungary, and Poland make for an interesting comparison to the Relocation Decisions. According to data from the 29th of November 2022, Hungary has registered 32.271 persons for temporary protection or similar national protection schemes, whereas Slovakia has recorded 102.278 and Poland 1.521.08.56 The numbers differ significantly from the persons relocated under the Relocation Decisions of 2015, where some Member States had failed to even relocate a single person.

5.1.2. Additional efforts by the Member States and the EU

In addition, numerous Member States have introduced additional legislation to widen the category of persons eligible to enjoy protection under the scheme. Germany, for instance, has extended temporary protection to non-Ukrainian third-country nationals who were residing in Ukraine before the Russian attacks, and whose country of origin is unsafe for return.57 Spain

54 Meltem Ineli-Ciger, ‘Reasons for the Activation of the Temporary Protection Directive in 2022: A Tale of Double Standards’ (asileproject.eu, 6 October 2022) <https://www.asileproject.eu/reasons-for-the-activation-ofthe-temporary-protection-directive-in-2022-a-tale-of-doublestandards/?utm_source=rss&utm_medium=rss&utm_campaign=reasons-for-the-activation-of-the-temporaryprotection-directive-in-2022-a-tale-of-double-standards> accessed 3 December 2022.

55 UN Refugee Agency, ‘Ukraine Refugee Situation’ (data.unhcr.org, 29 November 2022) <https://data.unhcr.org/en/situations/ukraine> accessed 29 November 2022.

56 ibid.

57 Meltem Ineli-Ciger, ‘Reasons for the Activation of the Temporary Protection Directive in 2022: A Tale of Double Standards’ (asileproject.eu, 6 October 2022) <https://www.asileproject.eu/reasons-for-the-activation-ofthe-temporary-protection-directive-in-2022-a-tale-of-doublestandards/?utm_source=rss&utm_medium=rss&utm_campaign=reasons-for-the-activation-of-the-temporaryprotection-directive-in-2022-a-tale-of-double-standards> accessed 3 December 2022.

has introduced a similar legislative act, therefore proving that some Member States even went beyond of what was demanded of them under the Temporary Protection Directive. With regards to burden-sharing, it is evident that the burden has been spread across numerous Member States within the Union, whereas in 2015 Italy and Greece were significantly affected. Nevertheless, most asylum seekers fled to a majority of four Member States, these being Poland, Hungary, Slovakia, and Romania, with Germany, Italy, and Spain also hosting many individuals in their respective Member States.58

Several measures have been introduced by the Commission to further aid the Member States in their efforts of welcoming asylum seekers under the scheme. According to the Report on Migration and Asylum issued on the 6th of October 2022, a 10-point plan was devised.59 A few measures introduced by the plan included a temporary protection registration form, an EU anti-trafficking plan, transport and information hubs, a common European contingency plan, and others. Financial burden-sharing was also addressed in the report, as it was stated that the Member States were aided by several funds such as the Cohesion Policy Fund, European Social Fund, European Regional Development Fund or Home Affairs Fund to aid their efforts.60 At the time of writing, in December of 2022, it remains uncertain how long the war in Ukraine will last and how many more individuals will seek refuge in the EU. At present, however, the Temporary Protection Directive, with the additional efforts made by the Commission, has proven to be an efficient instrument to prevent the overburdening and congestion of national asylum systems.

6. Burden-Sharing in the Future

Recent activities by the European Commission prove that the concept of burden-sharing remains relevant in migration and asylum policy. As a response to the pressures faced in 2015, the European Commission proposed a new pact on migration and asylum on the 23rd of September 2020.61 One of the legislative proposals tabled aims to replace the Dublin system with a new common framework, again based on a concept of burden-sharing. The proposal

58 ibid.

59 European Commission, ‘On the Report on Migration and Asylum’ (October 2022).

<https://ec.europa.eu/info/sites/default/files/com_2022_740_1_en_act_part1_v4.pdf> accessed 7 December 2022.

60 Ibid.

61 European Council, ‘EU Asylum Reform’ (consilium.europa.eu, 5 December 2022)

<https://www.consilium.europa.eu/en/policies/eu-migration-policy/eu-asylum-reform> accessed 3 December 2022.

aims to address burden-sharing, once more, through the relocation of individuals across the Member States, in the form of a permanent solidarity mechanism that ensures an efficient processing of asylum applications. According to the proposal, the mechanism would be triggered if the Commission considers that a Member State is facing particular pressures to their national asylum system.62 Other Member States would then be called to offer their assistance in the hosting of asylum seekers in their own Member State, to help in taking responsibility for returning individuals to their country of origin or to provide financial assistance. Important to highlight is that the mechanism is supposed to offer a 'great deal of flexibility' and is completely voluntary.63 Therefore, Member States would be free to decide whether to accept the relocated asylum seekers or assist in their return. With nothing being officially adopted as yet, this remains a work in progress, however, it serves to prove that the topic of burden-sharing has not lost its appeal within the European Union.

7. Conclusion

The European Union’s policies and ambitions have been subject to much reform in the 21st century, and it is likely that it will continue to do so in the following decades. The concept of burden-sharing has remained an important element throughout these discussions and has gained new momentum with the recent Ukrainian refugee crisis in 2022. Both Relocation Decisions of 2015 and the recently activated Temporary Protection Directive aimed to address the problem of burden-sharing among the Member States in face of unprecedented times. As outlined throughout the paper, these temporary mechanisms did share similarities in their approach but ultimately differed significantly from each other in the type of mechanism they introduced and the success they enjoyed across the Union. Although the Temporary Protection Directive has been activated recently, making it difficult to come to any definite conclusions, one can already deduce fundamental differences in its ability to tackle the issue of burdensharing.

Both mechanisms tackled the issue by introducing elements of financial assistance, the physical sharing of asylum seekers, and, in case of the Temporary Protection Directive, policy harmonisation. Ultimately, the Relocation Decisions introduced a mandatory relocation

62 European Commission, ‘Effective Solidarity’ (ec.europa.eu) <https://ec.europa.eu/info/strategy/priorities2019-2024/promoting-our-european-way-life/new-pact-migration-and-asylum/effective-solidarity_en> accessed

scheme which stipulated a quota of asylum seekers that Member States had to relocate based on a distribution key. In contrast, the Temporary Protection Directive introduced a voluntary solidarity scheme, which is dependent on the efforts made by the asylum seekers and the Member States. As a result, the inflow of asylum seekers is not forcefully controlled by the EU but rather by the asylum seekers themselves.

Another decisive factor in the success of the legal instruments was the political motivation of the Member States to participate in the schemes. The Relocation Decisions were immediately faced with adversity and questioned amongst the Member States, with Slovakia and Hungary even starting annulment procedures before the EU courts. Although, they had little success in their complaint, the Member States failed to fulfil their obligations stipulated by the decisions within the given time frame. Although theirs is the most drastic example, they do not remain the only Member States to fail to do so. Furthermore, the opposing Member States, such as Hungary and Slovakia, did not shy away from making their political motivations well known. Meanwhile, the Temporary Protection Directive has been received almost wholeheartedly across the Union with millions of asylum seekers being welcomed by the Member States.

The reactions of the European Union and the Member States prove that a different attitude towards asylum policy is very possible if such policy is sufficiently desired by the Member States. Where there is a clear political commitment to accept asylum seekers, even higher numbers than initially predicted may be received, which calls for reconsideration of the still somewhat prevailing nationalistic views among the Member States.

Section IV: Dissertations

1. Introduction

In 2014, the terrorist group Islamic State of Iraq and the Levant (ISIL)1 established a selfproclaimed caliphate in several regions within the territories of Iraq and Syria. In conquering the Sinjar region in Northern Iraq home to the Yazidis, an ethnic and religious minority of the Middle East, the members of ISIL committed mass crimes against the population, including committing mass executions, forcefully converting young children to Islam and enslaving Yazidi women and girls.2

In accordance with the Convention on the Prevention and Punishment of the Crime of Genocide (Genocide Convention), the crime of genocide is committed when an individual commits a prohibited act with the intention to destroy, in whole or in part, a group because of their nationality, ethnicity, religion or race.3 These prohibited acts are (a) killing members of the group; (b) causing serious physical or mental harm to the members of the group; (c) intentionally inflicting conditions on the group that are calculated to bring its physical destruction; (d) imposing measures aiming at preventing births within the group, or (e) forcefully transferring children of the group to another group.4 The cruelties faced by the Yazidi people have been widely recognised as genocide, for example by several agencies of the United Nations (UN), by the European Parliament and by several national parliaments.5

1 The self-declared official name of the terrorist group is “Dawlat al-Islamiyah f'al-Iraq wa al-Sham”, and in Arabic it is often shortened to “Da’esh”. In many English sources, this is translated to “Islamic State of Iraq and Syria” and the acronym “ISIS” or “IS” is used. In the present paper, the acronym “ISIL” shall be used throughout as this is generally used by the UN officials.

2 Samar El-Masri, ‘Prosecuting ISIS for the sexual slavery of the Yazidi women and girls’ (2018) 22 The International Journal of Human Rights 1047; Zeyad Jaffal, ‘Rape as Genocide Crime in International Criminal Law - The Case of Yazidi Women in Iraq’ (2020) 15 International Journal of Criminal Justice Sciences 230, 233; Rania Abouzeid, ‘When the Weapons Fall Silent: Reconciliation in Sinjar After ISIS’ (2018) European Council on Foreign Relations, Policy Brief 2; Noman Benotman & Nikita Malik, The Children of Islamic State (The Quillam Foundation, London 2016) 15; UNAMI & OHCHR, ‘Report on the Promotion and Protection of Rights of Victims of Sexual Violence Captured by ISIL/or in Areas Controlled by ISIL in Iraq’ (22 August 2017) <https://reliefweb.int/report/iraq/promotion-and-protection-rights-victims-sexual-violence-captured-isilorareas-controlled> accessed 11 December 2022

3 The United Nations Convention on the Prevention and Punishment of the Crime of Genocide (adopted 9 December 1948, entered into force 12 January 2951) 78 UNTS 277 (Genocide Convention), art 2.

4 ibid.

5 See for example UNHRC, ‘”They came to destroy”: ISIS Crimes Against the Yazidis’ (2016) UN Doc A/HRC/32/CRP.2; Jack Moore ‘European Parliament Recognizes ISIS Killing of Religious Minorities as Genocide’ Newsweek (New York, 4 February 2016) <https://www.newsweek.com/european-parliamentrecognizes-isis-killing-religious-minorities-genocide-423008> accessed 11 December 2022; UNSC, ‘Sixth report of the Special Adviser and Head of the United Nations Investigative Team to Promote Accountability for Crimes Committed by Da’esh/Islamic State in Iraq and the Levant’ (2021) UN Doc S/2021/419; Layal Shakir,

To come to terms with genocidal acts, feelings of vengeance need to be remedied with justice.6 As there are several forms of justice, the word can have divergent meanings for different people. For most Yazidis, however, it means retributive justice: they want the perpetrators to be held accountable through criminal prosecutions for the crimes committed.7 However, beyond punitive justice, many Yazidi survivors long for measures of restorative justice, such as establishing Truth and Reconciliation Commissions (TRCs), as well as those of social justice, such as revising the Iraqi education system to be more inclusive of the history and culture of the Yazidis.8

Bringing the perpetrators of the crimes committed by ISIL to justice is a concern of the international community as well 9 Considering the gravity of the crimes committed, as well as the fact that ISIL got people from all around the world to their ranks, both the establishment of an ad hoc or hybrid tribunal and a referral to the International Criminal Court (ICC) have been suggested.10

However, instead of these fully international mechanisms, the UN Security Council (UNSC) decided to set up an investigative team, the United Nations Investigative Team to Promote Accountability for Crimes Committed by Da'esh (UNITAD). The team is in charge of investigating the crimes committed by ISIL, whilst leaving the possible prosecutions to be conducted domestically by Iraqi courts.11 UNITAD’s principal mandate is to support Iraqi state

‘Netherlands, Belgium officially recognize Yazidi genocide’ Rudaw (Erbil, 7.7.2021) <https://www.rudaw.net/english/world/07072021> accessed 11 December 2022.

6 OHCHR, ‘Genocide: "Never again" has become "time and again"’ (18 September 2018)

<https://www.ohchr.org/en/stories/2018/09/genocide-never-again-has-become-time-and-again> accessed 11 December 2022.

7 Shakir Muhammad Usman, ‘History of Shia, Sunni and Yazidi Conflict: A Political, Social or Religious Conflict and its Impact on the Peace Process in the Middle East With Special Focus on Kurdistan -Northern Iraq’ (Thesis, the American University of Iraq 2021) 117.

8 Payam Akhavan et al., ‘What Justice for the Yazidi Genocide? Voices from Below’ (2020) 42 Human Rights Quarterly 1, 15; Peyre-Costa T. & Jenssen T., ’Close to 200,000 Yazidis remain displaced’ Norwegian Refugee Council (Oslo, 13 November 2018) <https://www.nrc.no/several-hundred-thousand-yazidis-remain-displaced> accessed 11 December 2022; Fenna Mahler, ‘“We Will Not Stop”: The Yazidis’ Visions of Transitional Justice’ (Thesis, Utrecht University 2021), 19; Somini Sengupta, ‘For a Yazidi Woman, Justice for ISIS Crimes Is Still Elusive’ The New York Times (New York, 17.8.2017)

<https://www.nytimes.com/2017/08/17/world/middleeast/for-a-yazidi-woman-justice-for-isis-crimes-is-stillelusive.html> accessed 11 December 2022.

9 Mirza Ali, ‘Recognizing Yezidi Genocide: Perspectives and Challenges of Initiating an (Inter)National Tribunal for the Crimes of ISIS against Yezidi Minority’ (Thesis, Maastricht University 2019) 55.

10 El-Masri (n 2).

11 Zachary D. Kaufman, ‘New UN Team Investigating ISIS Atrocities Raises Questions About Justice in Iraq and Beyond’ Just Security (New York, 28 September 2017) <https://www.justsecurity.org/45411/expect-teaminvestigating-isis-atrocities-iraq/> accessed 11 December 2022

efforts to prosecute the fighters of ISIL by ‘collecting, preserving, and storing evidence in Iraq of acts that may amount to war crimes, crimes against humanity and genocide’.12

However, the practical implementations of the chosen mechanism have generated several legal challenges. Firstly, there is a dichotomy between UNITAD’s mandate to act by UN best practice and international standards, and the primary recipients of its investigations, the Iraqi courts, which violate rules on fair trials and allow for capital punishment. Secondly, UNITAD has the mandate to investigate only international crimes, that is, crimes that gravely violate international law, which are not incorporated into the legislation of Iraq. Thirdly, there is uncertainty as to whether the investigations conducted by UNITAD have complied with the procedural rules of obtaining evidence, as codified in Iraq’s Law on Criminal Proceedings No. 23.13

Even though UNITAD possesses a great amount of detailed information that could be used to prosecute ISIL fighters for the Yazidi genocide, due to the aforementioned factors this is effectively impossible.14 Nearly eight years have passed since the Sinjar massacre, but no domestic prosecutions have acknowledged the genocide faced by the Yazidi community. Instead, ISIL fighters are constantly charged under the strongly criticised Anti-Terrorism Law No. 13,15 thereby depriving retributive justice of the victims. Therefore, the research question of this paper is: What are the limitations in the mandate of UNITAD and the Iraqi legal framework and how do these hinder the just prosecution of ISIL fighters for the Yazidi genocide? The paper aims to identify the restraints of UNITAD and seeks to find practical solutions to make it possible to prosecute ISIL fighters for the crime of genocide, and consequently, provide justice to the Yazidi community.

In order to provide an answer to the research question, this paper will look into Iraqi domestic law and its international obligations as well as the mandate of UNITAD and general rules on UN-instigated bodies. As UNITAD is not mandated to provide information to

12 UNSC Res 2379 (21 September 2017) UN Doc S/RES/2379, para 2.

13 Law on Criminal Proceedings with Amendments No. 23 of 1971 of Iraq <https://www.vertic.org/media/National%20Legislation/Iraq/IQ_Criminal_Procedings_23_1971.pdf> accessed

11 December 2022

14 UNSC, ‘ISIL/Da’esh Committed Genocide of Yazidi, War Crimes against Unarmed Cadets, Military Personnel in Iraq, Investigative Team Head Tells Security Council’ (10 May 2021) UN Doc SC/14514.

15 Anti-Terrorism Law No. 13 of 2005 of Iraq <https://www.refworld.org/docid/5bd093414.html> accessed 11 December 2022

Kurdistan, the efforts and legislation of the regional government will not be assessed but the focus will be solely on the Iraqi Federal Government.

This legal assessment will be divided into three sections. Firstly, an overview of UNITAD’s mandate and formation will be given. Secondly, the limitations posed by the mandate of UNITAD will be explicated, focusing on the question of death penalty and fair and independent proceedings. After this, the challenges posed by the Iraqi substantive and procedural law will be assessed. Subsequently, recommendations to the Iraqi government and UNITAD will be presented.

2. The UN Efforts to Prosecute ISIL Fighters

Since the defeat of ISIL in 2017, holding the members of the terrorist organisation accountable for the crimes they committed has been the subject of wide international concern, mainly due to the gravity of the crimes as well the involvement of nationals of many Western countries.16

The complexity of the situation has raised an unprecedented challenge in transnational justice, that is, how to prosecute thousands of ISIL fighters from all around the world that are in the custody of the authorities of Iraq.17 Although different international accountability mechanisms have been suggested, it needs to be borne in mind that the burden of prosecuting ISIL fighters lies primarily with the States themselves, and international measures should be complementary.18

2.1. Proposed Mechanisms

Several accountability mechanisms have been suggested,19 such as establishing either an international ad hoc tribunal, as was done in the case of the former Yugoslavia and Rwanda,20 or a hybrid tribunal, as was the case with Sierra Leone and Lebanon.21 However, due to the

16 Ali (n 9).

17 Scott A. Gilmore, ‘Introductory Note to the United Nations Security Council Resolution 2379’ (2018) 57 International Legal Materials 960; European Commission Radicalisation Awareness Network, ‘Responses to returnees: Foreign terrorist fighters and their families’(2017) RAN Manual 6 <https://ec.europa.eu/homeaffairs/system/files_en?file=2020-09/ran_br_a4_m10_en.pdf> accessed 11 December 2022.

18 Cholpon Orozobekova et al., ‘Establishing an Ad Hoc Tribunal to Bring ISIS Fighters into Justice: Prospects, Limits and National Alternatives’ (2021) Bulan Institute for Peace Innovations, Policy Paper 11, 6.

19 Omtzigt & Ochab (n 11) 77.

20 UNSC Res 827 (25 May 1993) UN Doc S/RES/827; UNSC Res 955 (8 November 1994) UN Doc S/RES/955.

21 UNSC Res 1315 (14 August 2000) UN Doc S/RES/1315; UNSC Res 1664 (29 March 2006) UN Doc S/RES/1664.

costs and length of these procedures, wide international support has not been achieved.22 Moreover, the Minister of Foreign Affairs of Iraq has stated that the Iraqi government will not support the establishment of such an international court, at least on the territory of Iraq, as it goes against the Constitution of the State.23 Thus, such a court would have to be established without the consent of Iraq, which would have several limitations on efficiency, as most evidence is held by the Iraqi national authorities.24

Prosecuting ISIL fighters under the ICC framework has also been proposed. However, this causes jurisdictional obstacles as Iraq is not a party to the Rome Statute, meaning that the ICC does not have territorial jurisdiction over crimes committed in Iraq.25 Furthermore, in 2015 the ICC Chief Prosecutor Fatou Bensouda declared that the court also has very limited competence to prosecute ISIL fighters under its personal jurisdiction.26 In addition, referral of the conflict to the ICC by the UNSC seems unlikely due to the internationalised and complex nature of the conflict in Iraq; the proposal will most likely be vetoed due to political motivations.27 By virtue of these difficulties, the UNSC decided to set up an investigative team, UNITAD, to support domestic prosecutions in lieu of the aforementioned international accountability mechanisms.

Prosecuting in Iraq provides closer proximity to victims, witnesses and the alleged crime scene, as well as to the accused, which minimises evidentiary challenges.28 However, the sheer number of detainees for ISIL-affiliated crimes in the custody of Iraqi authorities would

22 Orozobekova et al. (n 19) 15; Anthony Dworkin, ‘A tribunal for ISIS fighters?’ European Council on Foreign Relations (31 May 2019). <https://ecfr.eu/article/commentary_a_tribunal_for_isis_fighters/> accessed 11 December 2022

23 Constitution of 2005 of Iraq, <https://www.constituteproject.org/constitution/Iraq_2005.pdf?lang=en> accessed 11 December 2022, art 95; Frances Topham Smallwood, Marjolein Wijninckx & Mazen Darwish, ‘ISIS-only tribunal: selective, politicised justice will do more harm than good’ (2019) PAX for Peace 2 <https://paxforpeace.nl/media/download/policybrief-iraq-isis-tribunal-2019-eng.pdf> accessed 11 December 2022.

24 Andé Nollkaemper, ‘Legal advice: International Tribunal ISIS’ (2019) University of Amsterdam & Nuhanovic Foundation 2.

25 The United Nations Rome Statute of the International Criminal Court (adopted 17 July 1998, entered into force 1 July 2002) 2187 UNTS 3 (Rome Statute), art 12.

26 ‘Statement of the Prosecutor of the International Criminal Court, Fatou Bensouda, on the alleged crimes committed by ISIS’(2015) International Criminal Court <https://www.icc-cpi.int/news/statement-prosecutorinternational-criminal-court-fatou-bensouda-alleged-crimes-committed-isis> accessed 19 April 2022.

27 Cóman Kenny, ‘Prosecuting Crimes of International Concern: Islamic State at the ICC?’ (2017) 33 Utrecht Journal of International and European Law 120, 123.

28 Tanya Mehra, ‘Bringing (Foreign) Terrorist Fighters to Justice in a Post-ISIS Landscape Part I: Prosecution by Iraqi and Syrian Courts’ (2017) The International Centre for Counter-Terrorism.

provide a challenge to even a well-functioning judiciary, not to mention the judiciary in the post-conflict context of Iraq.29

2.2. UNITAD: Formation and Mandate

On 21 September 2017, UNSC adopted Resolution 2379 establishing UNITAD.30 The Resolution was adopted at the Iraqi government’s request to receive international assistance in order to ensure that ISIL members are held accountable for crimes that may amount to ‘crimes against humanity’.31 UNITAD is composed of both international experts and Iraqi officials and is headed by a Special Adviser.32 lieu of the aforementioned international accountability mechanisms.

In accordance with the Terms of Reference (ToR), which serve as a guideline for the work of UNITAD,33 the tasks of the investigative team include

1) supporting Iraqi authorities in holding members of ISIL accountable for crimes against humanity, war crimes and genocide, 2) gathering evidence in Iraq in accordance with international standards, and 3) promoting accountability throughout the world for acts committed by ISIL that may amount to international crimes.34 The material scope of UNITAD is limited to crimes against humanity, war crimes and genocide, leaving out the possibility to investigate crimes of terrorism, human trafficking or other crimes committed by ISIL that do not constitute one of these international crimes.35 Operationally, UNITAD is mandated to collect, preserve and store evidence, thus precluding its involvement in any trial process.36

29 ibid

30 UNSC Res 2379 (21 September 2017) UN Doc S/RES/2379.

31 UNSC, ‘Letter dated 14 August 2017 from the Chargé d’affaires a.i. of the Permanent Mission of Iraq to the United Nations addressed to the President of the Security Council’ (16 August 2017) UN Doc S/2017/710.

32 UNSC, ‘Terms of reference of the Investigative Team to support domestic efforts to hold Islamic State in Iraq and the Levant (Da’esh) accountable for acts that may amount to war crimes, crimes against humanity and genocide committed in Iraq, established pursuant to Security Council resolution 2379 (2017)’ (14 February 2018) UN Doc S/2018/118, para 14.

33 ibid, para 1.

34 UNAMI, ‘UNITAD Special Adviser Karim A. A. Khan QC addresses Global Coalition to Defeat ISIS’ (6 February 2019) <https://reliefweb.int/report/iraq/unitad-special-adviser-karim-khan-qc-addresses-globalcoalition-defeat-isis-enarku> accessed 26 April 2022.

35 UNSC S/RES/2379 (n30) para 1; Gilmore (n18) 961.

36 UNSC S/2018/118 (n32) para 2.

As UNITAD lacks any prosecutorial powers, its mandate is solely to assist Iraqi domestic efforts to hold ISIL members accountable. However, the evidence gathered by the investigative team may also be used, upon request, in criminal proceedings by national courts in third States.37 Thus, States exercising active or passive personality jurisdiction or universal jurisdiction are eligible to receive information from the investigative body.38

3. Challenges Posed by the Mandate of UNITAD

The aim of UNITAD is to investigate international crimes committed by the fighters of ISIL in Iraq, but its mandate and scope pose challenges, that require further examination. Firstly, the mandate of UNITAD has an inherent dichotomy: on the one hand, it emphasises the need to act in accordance with ‘UN best practice’, while, on the other hand, it requires UNITAD to operate ‘with full respect for Iraq’s sovereignty and its jurisdiction over crimes committed in its territory’. This raises issues as the UN is lobbying for the abolishment of the death penalty, while this is a widely used practice in Iraq, that is unlikely to be removed from the legislation in the near future.39

Secondly, issues may arise concerning the proper use of evidence in court. The use of evidence gathered by UNITAD in criminal proceedings should adhere to international rules of fair and independent procedures, but the courts of Iraq are reported to violate these rules in multiple areas.40 Lastly, the limited focus of the investigations solely on crimes committed by ISIL raises questions of impartiality, as crimes committed by other parties do not fall under the scope of investigations of UNITAD.41 Human Rights Watch, for example, has accused Iraqi Government Forces of committing abuses that might amount to war crimes.42 Regardless, these cannot be investigated by UNITAD. It does not seem that the government of Iraq would be

37 ibid

38 Gilmore (n 18) 961.

39 Mohamad Ghazi Janaby & Ahmed Aubais Alfatlawi, ‘UN Efforts to Make ISIS Accountable for International Crimes: The Challenges Posed by Iraq’s Domestic Law’ (2021) 21 International Criminal Law Review 1103, 1126.

40 UNAMI & OHCHR, ‘Human Rights in the Administration of Justice in Iraq: Trials under the anti-terrorism laws and implications for justice, accountability and social cohesion in the aftermath of ISIL’ (28 January 2020)

12 <https://reliefweb.int/sites/reliefweb.int/files/resources/Iraq_-_ISIL_trials_under_the_antiterrorism_laws_and_the_implications_for_justice_28012020.pdf> accessed 22 January 2023.

41 Zachary D. Kaufman, ‘The Prospects, Problems and Proliferation of Recent UN Investigations of International Law Violations’ (2018) 16 Journal of International Criminal Justice 93, 104.

42 ‘Iraq: Investigate Possible Mosul Abuse’ Human Rights Watch (13 July 2017)

https://www.hrw.org/news/2017/07/13/iraq-investigate-possible-mosul-abuse accessed 11 May 2022; ‘Iraq: USTrained Forces Linked to Mosul War Crimes’ Human Rights Watch (27 July 2017)

https://www.hrw.org/news/2017/07/27/iraq-us-trained-forces-linked-mosul-war-crimes accessed 11 May 2022; ‘Iraq: Execution Site Near Mosul’s Old City’ Human Rights Watch (19 July 2017)

https://www.hrw.org/news/2017/07/19/iraq-execution-site-near-mosuls-old-city accessed 11 May 2022.

investigating the possible abuses committed by any other armed groups, including its own forces. Although such a limitation on the personal scope will not hinder the possibility of collecting evidence for the genocide faced by Yazidis, it is an impediment to equal justice.43

3.1. UN Best Standards and Capital Punishment

The mandate of UNITAD states that the investigative team should act in accordance with UN best practice, and that the evidence gathered should be used in “criminal proceedings, consistent with the applicable international law”.44 In accordance with the UN Security Council’s views, this means that evidence should not be shared for proceedings in which the death penalty may be imposed.45 Issues arise here, however, due to the high rate at which the death penalty is utilised in Iraq, and its imposition on a wide range of crimes.46 There has been a broadening international consensus about the abolishment of death penalty, as many states acknowledge it as being in opposition to the very nature of human dignity. 47 The general position of the UN is against the use of death penalty,.48 Issues related to evidence sharing are compounded even further by the growing consensus within the UN that it should move towards the abolition of the death penalty.49

43 Kaufman, ‘New UN Team Investigating ISIS Atrocities Raises Questions About Justice in Iraq and Beyond’ (n 11); ‘Statement on Today’s UN Security Council Resolution on Da’esh Accountability’ Global Centre for the Responsibility to Protect (21 September 2017)

http://gcr2p.cmail20.com/t/ViewEmail/j/27D4C5151C4F82092540EF23F30FEDED/9A528AF75E9ECF6C143 99806BE9B4083 accessed 11 May 2022.

44 UN Doc S/RES/2379 (n 30), paras 5-6.

45 UNSC, ‘September 2020 - Monthly Forecast’ (31 August 2020) 22

<https://www.securitycouncilreport.org/atf/cf/%7B65BFCF9B-6D27-4E9C-8CD3CF6E4FF96FF9%7D/2020_09_forecast.pdf> accessed 11 December 2022.

46 UNHRC, ‘Iraq: Wave of mass executions must stop, trials are unfair’ (20 November 2020)

<https://reliefweb.int/report/iraq/iraq-wave-mass-executions-must-stop-trials-are-unfair-un-experts> accessed

10 May 2022; The Advocates for Human Rights, ‘Iraq’s Compliance with the International Covenant on Civil and Political Rights Suggested List of Issues Relating to the Death Penalty’ (1 June 2020)

<https://www.theadvocatesforhumanrights.org/res/byid/8730> accessed 11 May 2022; UNAMI & OHCHR, ‘Report on the Death Penalty in Iraq’ (10 October 2014) <https://reliefweb.int/report/iraq/report-death-penaltyiraq-october-2014> accessed 10 May 2022; Death Penalty Information Center, ‘Executions Around the World’

<https://deathpenaltyinfo.org/policy-issues/international/executions-around-the-world> accessed 11 May 2022.

47 William A. Schabas, The Abolition of Death Penalty in International law (3rd edn, Cambridge University Press 2002) 373; Sadakat Kadri, ‘Forced to Kill: The Mandatory Death Penalty and its Incompatibility with Fair Trial Standards’ [2016] A report of the International Bar Association’s Human Rights Institute 12.

48 UNHRC, ‘Iraq: Wave of mass executions must stop, trials are unfair’ (20 November 2020)

<https://reliefweb.int/report/iraq/iraq-wave-mass-executions-must-stop-trials-are-unfair-un-experts> accessed 10 May 2022; The Advocates for Human Rights, ‘Iraq’s Compliance with the International Covenant on Civil and Political Rights Suggested List of Issues Relating to the Death Penalty’ (1 June 2020)

<https://www.theadvocatesforhumanrights.org/res/byid/8730> accessed 11 May 2022; UNAMI & OHCHR, ‘Report on the Death Penalty in Iraq’ (10 October 2014) <https://reliefweb.int/report/iraq/report-death-penaltyiraq-october-2014> accessed 10 May 2022; Death Penalty Information Center, ‘Executions Around the World’ <https://deathpenaltyinfo.org/policy-issues/international/executions-around-the-world> accessed 11 May 2022.

49 Beth Van Schaack, ‘UN Releases Guidelines for Team Investigating ISIS Crimes in Iraq – Death Penalty Debate Dodged’ Just Security (New York, 19 February 2018) <https://www.justsecurity.org/52628/iraqi-

Even prior to the emergence of UNITAD, Iraq had sentenced several ISIL fighters to death on the basis of its Anti-Terrorism Law,50 and with the UN’s stance being anti-death penalty, many of its institutions have voiced their concerns regarding the high number of executions given in Iraq on a yearly basis.51 Due to this, it was evident that there was to be debate over the applicability of capital punishment in proceedings where evidence gathered by UNITAD would be used. In an early draft of the ToR, it was indicated that “the Investigative Team will only share evidence for use in criminal proceedings in which capital punishment will not be carried out”.52 Several abolitionist Member States of the UN stated that this was an extremely important condition for them to support the work of the UNITAD.53 Debate over this matter delayed the issuing of the final ToR, as Iraq strongly opposed this position,54 but it was concluded in the end that there would be no reference to the death penalty in the final ToR.

Due to the position of its institutions and member states on the death penalty, it seems counter-intuitive that the UN is partaking in a measure where the evidence gathered could be used in proceedings where capital punishment is likely to be imposed. UNITAD is clearly facing an ethical dilemma, given that it has committed to following international standards but may have to breach the best standard principle when sharing evidence with Iraqi courts.55

3.2. Courts of Iraq as Primary Beneficiaries

3.2.1 Fair and Independent Proceedings

In accordance with the mandate of UNITAD, the courts of Iraq are the primary beneficiaries of the investigations conducted by the investigative team.56 The evidence gathered by UNITAD

investigative-team-terms-reference-released-death-penalty-debate-dodged/> accessed 10 May 2022; UN, ‘Transparency and the Death Penalty – What’s to Hide?’ (10 October 2017) 8:45

<https://www.youtube.com/watch?v=b2lrsBq99CM> accessed 10 May 2022; Amnesty International, ‘UN: Opposition to the death penalty continues to grow’ (16 December 2020)

<https://www.amnesty.org/en/latest/news/2020/12/un-opposition-to-the-death-penalty-continues-to-grow/> accessed 20 May 2022.

50 Yolande Knell, ‘Inside the Iraqi courts sentencing IS suspects to death’ BBC (London, 2 September 2017)

<https://www.bbc.com/news/world-middle-east-41110412> accessed 11 May 2022; ‘Mass execution in Iraq’ Amnesty International (25 September 2017) <https://www.amnesty.org/en/latest/news/2017/09/mass-executionin-iraq-2/> accessed 11 May 2022; ‘Iraq: Execution of 31 piles injustice on top of bloodshed’ Amnesty International (24 January 2017) https://www.amnesty.org/en/latest/news/2017/01/iraq-execution-of-31-pilesinjustice-on-top-of-bloodshed-2/ accessed 11 May 2022.

51 UNAMI & OHCHR, ‘Report on the Death Penalty in Iraq’ (n 46).

52 Van Schaack, ‘UN Releases Guidelines for Team Investigating ISIS Crimes in Iraq’ (n 47).

53 UNSC, ‘Security Council Requests Creation of Independent Team to Help in Holding ISIL (Da’esh) Accountable for Its Actions in Iraq’ (21 September 2017) Un Doc SC/12998.

54 Beth Van Schaack, ’The Iraq Investigative Team and Prospects for Justice for the Yazidi Genocide’ (2018) 16 Journal of International Criminal Justice 113, 135.

55 Janaby & Alfatlawi (n 40) 1112.

56 UN Doc S/2018/118 (n 32), para 19.

must only be used in “fair and independent criminal proceedings”,57 the rules of which are further expanded on the International Covenant on Civil and Political Rights (ICCPR), to which Iraq is a party.58 However, Iraq has been criticised for not following its international treaty obligations, as well as its own domestic laws, as there are several reports on violations in terms of the fairness and independence of criminal procedures.59

In terms of prosecutions of ISIL members, there have been reports of a great number of fighters being sentenced to death in trials that barely last 15 minutes,60 and a report by the United Nations Assistance Mission for Iraq (UNAMI) shows that the hearings of ISIL fighters in the courts of Iraq do not live up to the standards required by article 14 of the ICCPR, as no adequate time to prepare or effective legal representation are provided.61 Moreover, UNAMI reports show that in 69% of terrorism-related cases it observed, anonymous witness statements were the primary evidence relied upon.62 This puts defendants in an extremely disadvantageous position, as they are not able to contest the evidence held against them.63

Furthermore, even though the separation of powers is enshrined in the Constitution of Iraq,64 in practice the Iraqi judiciary is pressured by the executive and cannot be considered to be fully independent.65 According to Freedom House, which is a non-profit organisation conducting research on political freedom and human rights, Iraq’s judicial system is highly influenced by corruption, political pressure and religious interests.66 Due to a widespread lack

57 UN Doc S/RES/2379 (n 30), para 5.

58 The International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171 (ICCPR), art 14.

59 ‘Detention and Prosecution of Former ISIS Fighters in Iraq: Lessons Learned and an Assessment of the Deficits of the Judicial System’ (2020) The Bulan Institute for Peace Innovations, Policy Paper 4; The Advocates for Human Rights (n 46) 7-8; Human Rights Watch, ‘The Quality of Justice Failings of Iraq’s Central Criminal Court’ (3 December 2008) <https://www.hrw.org/sites/default/files/reports/iraq1208web.pdf> accessed 11 December 2022

60 Margaret Coker & Falih Hassan, ‘A 10-Minute Trial, a Death Sentence: Iraqi Justice for ISIS Suspects’ The New York Times (New York, 17 April 2018) <https://www.nytimes.com/2018/04/17/world/middleeast/iraq-isistrials.html> accessed 11 December 2022

61 UNAMI & OHCHR, ‘Human Rights in the Administration of Justice in Iraq’ (n 40) 6-8.

62 ibid, 8.

63 ibid

64 Constitution of 2005 of Iraq <https://www.constituteproject.org/constitution/Iraq_2005.pdf?lang=en>

accessed 11 December 2022, art 47.

65 The Advocates for Human Rights (n 46) 3; Renad Mansour & Saad Aldouri, ‘Rebuilding the Iraqi State: Stabilisation, Governance, and Reconciliation’ (2018) European Parliament Committee on Foreign Affairs 24 <https://www.europarl.europa.eu/RegData/etudes/STUD/2017/603859/EXPO_STU(2017)603859_EN.pdf> accessed 11 December 2022; Jennifer Schoeberlein, ‘Iraq: Overview of corruption and anti-corruption’ (2020) U4 Anti-Corrpution Resource Centre 7 <https://www.u4.no/publications/iraq-overview-of-corruption-and-anticorruption-2020.pdf> 11 December 2022

66 Freedom House, ‘2022 Iraq Country Report’ <https://freedomhouse.org/country/iraq/freedom-world/2022> accessed 11 December 2022.

of trust in the court system, many Iraqis turn to tribal bodies for dispute settlement.67 As a result of the high level of politicisation and corruption within the judicial system, the judiciary acts only in a fraction of cases investigated by the Integrity Commission which is responsible for fighting corruption in Iraq.68

In addition, Yazidi victims have collective concerns regarding the ability of the Iraqi justice system to administer justice to the victims, and most Yazidis would favour an international court over a national one.69 Therefore, the choice to have Iraqi courts as primary beneficiaries of the investigations of UNITAD seems reasonably questionable. However, it is not likely that any investigative body would have emerged were Iraqi courts not the principal recipients of the outcome of UNITAD’s research, as the Iraqi Government has been strongly advocated for retaining Iraq’s jurisdiction over the crimes committed by ISIL on its territory.70

3.2.2. Providing Assistance to Courts of Third States

Regardless of Iraqi courts being the primary beneficiaries, third states can request information from UNITAD.71 So far, assistance has been given to 14 states mainly in the form of gathering testimonial evidence from witnesses as well as identifying corroborating documentation from battlefield evidence.72 In addition, UNITAD has established a database for the purpose of collating and cross-referencing evidence relating to foreign fighters.73

Many countries have held proceedings against ISIL fighters for international crimes, primarily for war crimes.74 In November 2021, the High Regional Court of Frankfurt created history as it sentenced an ISIL fighter Taha Al-J. to life imprisonment for the crime of genocide.

75 Germany used universal jurisdiction, which allows a national court to prosecute individuals

67 ibid.

68 ibid

69 Dave Van Zoonen & Khogir Wirya, ‘The Yazidis: Perceptions of Reconciliation and Conflict’ (2017) Middle East Research Institute 10 <http://www.meri-k.org/wp-content/uploads/2017/10/Yazidis-Report.pdf> accessed

11 December 2022.

70 UNSC, ‘Investigative Team Making ‘Significant Progress’ Gathering Evidence to Prosecute ISIL/Da’esh for Atrocity Crimes in Iraq, Special Adviser Tells Security Council’ (15 July 2019) UN Doc SC/13882.

71 UN Doc S/2018/118 (n 32), para 26.

72 UNSC, ‘Seventh report of the Special Adviser and Head of the United Nations Investigative Team to Promote Accountability for Crimes Committed by Da’esh/Islamic State in Iraq and the Levant’ (24 November 2021) UN Doc S/2021/974, paras 112-113.

73 ibid, para 115.

74 Eurojust, ‘Cumulative Prosecution of Foreign Terrorist Fighters for Core International Crimes and Terrorismrelated Offences’ (2020) <https://www.eurojust.europa.eu/sites/default/files/Partners/Genocide/202005_Report-on-cumulative-prosecution-of-FTFs_EN.PDF> accessed 11 December 2022

75 Matthias Von Hein, ‘German court finds former 'IS' member guilty of genocide’ Deutsche Welle (Bonn, 30 November 2021) <https://www.dw.com/en/german-court-finds-former-is-member-guilty-of-genocide/a59976226> accessed 11 December 2022

for serious violations of international law even though no other jurisdictional link can be established.76 Therefore, Germany was able to prosecute an Iraqi man residing in Greece who together with his wife enslaved a Yazidi woman and her 5-years old daughter, resulting in the death of the latter.77 The verdict generated a landmark case as it was the first judgment to legally recognise the genocide faced by Yazidis.78 Similarly to this case, final convictions involving UNITAD’s assistance have been given in Sweden.79 Considering that the information obtained by UNITAD has been used merely by third states, rather than the courts in Iraq, it may be questioned whether its mandate is actually suited to its purpose.

4. Challenges Posed by the Iraqi Legal Framework

Notwithstanding the inherent setbacks the mandate and scope of UNITAD, the main hinderance in terms of accountability for the Yazidi genocide is the insufficiency of Iraqi legislation to address international crimes, including the crime of genocide. Even though codifying international crimes into national law has been suggested by the international community for a long period of time, the Iraqi legislator has not acted upon this.80

In addition to this, the inability of the Iraqi legal framework to prosecute international crimes creates the paradoxical effect of the evidence gathered by UNITAD to be used at court possibly being unusable in Iraqi courts. If the outcome of its investigations is to be used only in proceedings relating to international crimes, how can they be used before Iraqi courts when these crimes do not exist within the legal framework of Iraq? Furthermore, where the investigations are not made in accordance with the procedural rules of Iraqi criminal law, what is their legal value before courts?

76 International Justice Resource Center, ‘Universal Jurisdiction’ (Ijrcenter.org) <https://ijrcenter.org/casesbefore-national-courts/domestic-exercise-of-universal-jurisdiction/> accessed 22 January 2023.

77 Alexandra Lily Kather & Johanna Gross, ‘Truly Historic: The World's First Conviction for Genocide against the Yazidi’ (Völkerrechtsblog, 17 December 2021) <https://voelkerrechtsblog.org/truly-historic/> accessed 11 December 2022; Robin F.C. Schmahl, ‘Universal Jurisdiction as Iustitia ex Machina: Speaking Justice for the Victims of ISIS and the Syrian Civil War in Germany’ (2021) 3 The Greater European Journal 35, 40.

78 Kather & Gross (n 77).

79 ‘UNITAD Special Adviser Christian Ritscher Welcomes Landmark Genocide Conviction of ISIL Member’ (30 November 2021) <https://www.unitad.un.org/news/unitad-special-adviser-christian-ritscher-welcomeslandmark-genocide-conviction-isil-member> accessed 11 December 2022; ‘UNITAD Welcomes Swedish Court Ruling of ISIL Woman Committing Grave Violations of International Law’ (7 March 2022) <https://www.unitad.un.org/Swedish%20Conviction%20Press%20Release> accessed 11 December 2022

80 Janaby & Alfatlawi (n 40) 1115.

4.1. Jurisdiction over International Crimes

As aforementioned, Iraqi legislation does not include international crimes, thus eliminating the possibility for domestic courts to prosecute individuals for war crimes, crimes against humanity or the crime of genocide. Although Iraq is a party to the Convention on the Prevention and Punishment of the Crime of Genocide (Genocide Convention), it has not complied with its treaty obligations and Iraqi the Penal Code (IPC) is silent in terms of the crime of genocide.81

The Iraqi High Criminal Court Law No. 10 of 2005 (IHCCL), which established the Iraqi High Tribunal (IHT), did incorporate international crimes as a part of the Iraqi legal framework.82 However, it limited the tribunal’s jurisdiction to crimes committed during Saddam Hussein’s period of governance, thus between 18 July 1968 and 1 May 2003.83 Due to this restricted temporal and subject-specific scope, the IHT is not competent to prosecute ISIL fighters.84 Further, as the IHCCL applies only to proceedings of the IHT, its implementation of international crimes is irrelevant to the current Iraqi judiciary.85

4.2. Current Domestic Legal Framework

4.2.1. Iraqi Penal Code and Law Combatting Trafficking in Persons

Although the international criminal law canon is absent from the IPC, there are a number of offences for which ISIL fighters can be prosecuted, such as murder or assault, which form a part of genocidal acts.86 However, charging for these crimes alone lacks the recognition of these acts as part of a genocide, as this would require other specific elements such as the intention to destroy a group.87

The IPC does cover some crimes falling under sexual and gender-based violence, although it is clearly flawed in this regard.88 The most relevant offences that could be used here

81 Penal Code No. 111 of 1969 of Iraq <https://www.refworld.org/docid/452524304.html> accessed 19 May 2022; Global Justice Center, ‘Iraq: Submission to the UN Human Rights Council Universal Periodic Review –34th Session’ (28 October 2019) 5 <https://www.globaljusticecenter.net/files/GJC_-

_UPR_Cover__Submission_-_Iraq_-_34th_Session_Nov_4-15_2019.pdf> accessed 11 December 2022.

82 High Criminal Court Law No. 10 of 2005 of Iraq <https://ihl-databases.icrc.org/applic/ihl/ihlnat.nsf/0/62dfa419b75d039cc12576a1005fd6c1/$FILE/IST_statute_official_english.pdf> accessed 11 December 2022.

83 ibid, art 1(2).

84 Janaby & Alfatlawi (n 40) 1115.

85 ibid

86 Penal Code No. 111 (n 81), arts 405, 410; John B. Quigley, The Genocide Convention: an International Law Analysis (Ashgate Publishing 2006) 10.

87 Janaby & Alfatlawi (n 40) 113.

88 El-Masri (n 2) 1056; Van Schaack, ‘The Iraq Investigative Team and Prospects for Justice for the Yazidi Genocide’ (n 57) 126.

are that of rape and sexual assault, which can be applied in conjunction with the crime of kidnapping, thus better addressing the acts of sexual slavery committed by ISIL. However, the Iraqi legislative definition of rape cannot be said to be compatible with international standards, and charges under it can be automatically vacated if the perpetrator subsequently marries the victim, creating an inadequate and discriminatory basis for achieving justice for the victims.89 Even though the UN and Iraq signed a Joint Communiqué in 2016 to facilitate cooperation, prevention and response to, conflict-related sexual violence in Iraq, the Iraqi government has yet to act in this area.90

In addition to the IPC, Iraq adopted the Law Combatting Trafficking in Persons, modelled after the UN’s Protocol to Prevent, Supress, and Punish Trafficking in Persons (Palermo Protocol). This allows perpetrators to be prosecuted for trafficking individuals for the purpose of, inter alia, sexual abuse, enslavement, and prostitution.91 Despite this law not being fully in compliance with the Palermo Protocol aiming to prevent and punish trafficking in human beings, it does provide an additional tool to bring justice to the Yazidi victims.92

However, even though the criminal offences can be used to address individual criminal conduct, they leave out the genocidal context of these acts: the widespread and systematic violations with the intention to destroy a religious group.93 Thus, even though individual perpetrators face a sentence for the criminal conduct they have committed, the genocide itself is left unacknowledged, meaning ISIL fighters are not prosecuted for this, which leaves Yazidi victims with no communal retributive justice.

89 Penal Code No. 111 (n 81), arts 393, 396 & 398; Global Justice Center (n 80) 2.

90 UNAMI, ‘The United Nations and the Government of Iraq Sign Landmark Agreement on the Prevention and Response to Conflict-Related Sexual Violence’ (23 September 2016) https://reliefweb.int/report/iraq/unitednations-and-government-iraq-sign-landmark-agreement-prevention-and-response accessed 20 May 2022; Van Schaack (n 51) 127.

91 Law No. 28 Combatting Trafficking in Persons of 2012 of Iraq, art 1

<https://sherloc.unodc.org/cld/en/legislation/irq/law_of_2012_trafficking_in_persons_/article_114/law_of_2012_trafficking_in_persons.html> accessed 24 May 2022.

92 International Organization for Migration, ‘The protection of victims of trafficking in Iraq: Review of the applicable legal regime and assessment of related practices in the field’ (4 February 2020)

<https://reliefweb.int/report/iraq/protection-victims-trafficking-iraq-review-applicable-legal-regime-andassessment> accessed 11 December 2022

93 Marieke De Hoon, ‘Accountability for the Yazidi Genocide’ [2022] Position Paper for the Dutch Government 6; Global Justice Center, ‘Iraq: Submission to the UN Human Rights Council Universal Periodic Review – 34th Session’ (28 October 2019) 5 <https://www.globaljusticecenter.net/files/GJC_-_UPR_Cover__Submission__Iraq_-_34th_Session_Nov_4-15_2019.pdf> accessed 11 December 2022

4.2.2. Anti-Terrorism Law

Most ISIL fighters against whom proceedings have been initiated have not been charged with offences from the IPC but instead under the Anti-Terrorism Law.94 Such prosecutions almost always carry death penalty, regardless of the degree of participation of the accused or the gravity of the offence, and the trials do not adhere to rules of fair proceedings with international standards.95 In addition, issues on several other fronts are raised.

Firstly, the definition of terrorism is ambiguous and encompasses a great range of acts allowing for extensive interpretation.96 Further, no distinction is made between those who are actually responsible for violent crimes and those who were either coerced into the troops of ISIL or joined merely to survive.97 Thus, a person who has worked as a taxi driver under the ISIL regime may face the same punishment as a fighter who has committed murders or sexual assaults.98 This disregards the culpability of the perpetrator, as voluntary and involuntary collaboration are not separated.99 There is an Amnesty Law applicable, which gives amnesty to anyone who can demonstrate they joined ISIL, or another terrorist group, against their will and did not commit any serious offences.100 However, there is no consistency by the courts in applying this law,101 and one judge, for example, said to Human Rights Watch that he refuses to apply this law as he believes anyone who supported ISIL is just as culpable.102

Secondly, most of the accused are exclusively prosecuted under the charge of ‘membership of a terrorist group’, for which the courts require a mere proof of membership or association with ISIL rather than any evidence that the alleged conduct was done in the

94 Van Schaack (n 57) 127.

95 Anti-Terrorism Law No. 13 (n 16), art 4(1); Human Rights Watch, ‘Flawed Justice: Accountability for ISIS Crimes in Iraq’ (5 December 2017) 6, 1 <https://www.hrw.org/report/2017/12/05/flawed-justice/accountabilityisis-crimes-iraq> accessed 11 December 2022; Ali Abel Sadah, ‘Iraq in Crisis Over Terror Death-Penalty Law’ Al-Monitor (Washington DC, 31 January 2013) <https://www.al-monitor.com/originals/2013/01/irp-terrorismsadah-w-arabic-version.html> accessed 11 December 2022.

96 UNAMI & OHCHR, ‘Human Rights in the Administration of Justice in Iraq’ (n 40) 10

97 Jo Becker, ‘Iraq’s ISIS Trials Don’t Deliver Justice – Including for Children’ Human Rights Watch (31 January 2020) https://www.hrw.org/news/2020/01/31/iraqs-isis-trials-dont-deliver-justice-including-children accessed 21 May 2022.

98 Human Rights Watch, ‘Flawed Justice’ (n 95) 3; Tanya Mehra, ‘Bringing (Foreign) Terrorist Fighters to Justice in a Post-ISIS Landscape Part I: Prosecution by Iraqi and Syrian Courts’ (2017) The International Centre for Counter-Terrorism.

99 UNAMI & OHCHR, ‘Human Rights in the Administration of Justice in Iraq’ (n 40) 11.

100 General Amnesty Law No. 26 of 2016 of Iraq <https://www.refworld.org/pdfid/5c764e217.pdf> accessed 11 December 2022

101 Kristin Smith & Sonali Dhawan, ‘“Yazidi Female Survivors Law” in Iraq is groundbreaking but not enough’ Open Global Rights (New York, 13 October 2020) <https://www.openglobalrights.org/yazidi-female-survivorslaw-in-iraq-is-groundbreaking-but-not-enough/> accessed 11 December 2022

102 Human Rights Watch, ‘Flawed Justice’ (n 95) 5.

furthering of a specific underlying crime.103 As the actual conduct – such as killing or rapingdoes not need to be formally addressed, victims and witnesses are most often not heard, disregarding their rights to participate and see their perpetrators be sentenced for the harm caused. 104

As long as the prosecutions of ISIL fighters are based on the Anti-Terrorism Law, they are not prosecuted for the genocide, which leads to a failure to provide victims their deserved acknowledgment that genocide has indeed taken place. Recognition of the moral injuries, trauma and sorrow the victims have faced is central in terms of healing.105 If this is forgotten, the communal restorative aspect of justice for the victims is neglected.106 According to some of the Yazidi population, prosecuting members of ISIL solely for terrorism crimes is a further denial of the genocide.107

Lastly, these broad counterterrorism prosecutions hinder the establishment of a correct judicial record for the wide range of crimes committed against the entire Iraqi population, including the Yazidi community.108 Therefore, due to the aforementioned factors, the prosecutions under the Anti-Terrorism Law are not adequate to address the harm done, especially to Yazidis, and might constitute a seed for future grievances.109

4.2.3. Yazidi Survivors Law

In March 2021, the Iraqi Government adopted the Yazidi Female Survivor’s Law No. 8, the aim of which is to compensate, rehabilitate and reintegrate the female survivors of sexual abuse committed by ISIL.110 Article 1 of this law defines a female survivor as any woman or girl who has been the victim of sexual violence committed by ISIL by means of kidnapping, sexual enslavement, being sold in slave markets, forceful separation from family, forceful conversion to Islam, forced marriage, forceful impregnation or being subject to other forms of physical or

103 UNAMI & OHCHR, ‘Human Rights in the Administration of Justice in Iraq’ (n 40) 10, 54.

104 ibid ; Belkis Wille, ‘KRG: Why ISIS Trials are Robbing Victims of Their Rights’ Human Rights Watch (5 December 2017) <https://www.hrw.org/news/2017/12/05/krg-why-isis-trials-are-robbing-victims-their-rights> accessed 11 December 2022.

105 Paula Green, Peacebuilding in Divided Communities (Karuna Center for Peacebuilding 2012) 75; ‘Nadia’s Initiative Statement on Recognition of the Yazidi Genocide by Governments of Belgium and the Netherlands’ Nadia’s Initiative (15 July 2021) <https://www.nadiasinitiative.org/news/nadias-initiative-statement-onrecognition-of-the-yazidi-genocide-by-governments-of-belgium-and-the-netherlands> accessed 11 December 2022.

106 ibid

107 Mahler (n 8) 19.

108 Human Rights Watch, ‘Flawed Justice’ (n 94) 4; El-Masri (n 2) 1056.

109 Van Zoonen & Wirva (n 69) 10.

110 Yazidi Female Survivor’s Law No. 8 of 2021 of Iraq, art 4 <https://ekurd.net/yazidi-female-survivors-law2021-03-04> accessed 11 December 2022

psychological harm. Originally, the law was intended only for Yazidi women and girls but has been subsequently expanded to include survivors of Turkmen, Christian, and Shabak communities.111

Passing the law marks an important milestone as it formally recognises the aforementioned acts as genocide towards the Yazidis as well as other ethnoreligious communities,112 and it specifically addresses different forms of sexual and gender-based violence.113 However, the law neither defines genocide nor refers to any national or international rules defining such act.114 Furthermore, the law does not include any legal consequences for the commission of genocide; thus, ISIL fighters will continue to be tried as offenders of terrorism crimes.115 This hinders the true effectiveness of the law as it lacks practical implications in terms of retributive justice for the genocide.

The law does, however, mention steps that the government of Iraq is required to take to provide restorative justice to the victims, such as financial compensation and rebuilding the destroyed Sinjar region;116 but the implementation of these has been non-existent so far.117 Therefore, the adoption of the law has not enforced any action within Iraq but seems to be merely a move to seemingly show solidarity to the victims of the atrocities without taking concrete steps.

4.3. Procedural Challenges: Evidence Gathered by UNITAD

In accordance with the ToR, the procedures followed by UNITAD should be based on ‘the highest possible standards’ and ‘to ensure the broadest possible use before national courts’.118 Furthermore, the investigative team shall take into consideration the Iraqi criminal and procedural laws, bearing in mind that Iraqi courts are the primary beneficiaries of the

111 ibid, art 2(2); Ceasefire Center for Human Rights, ‘The Yazidi Survivors’ Law: A step towards reparations for the ISIS conflict’ (11 May 2021) 2 <https://www.ceasefire.org/wp-content/uploads/2021/05/YazidiSurvivors-Law-Briefing.pdf> accessed 11 December 2022.

112 Yazidi Female Survivor’s Law (n 108), art 7(1).

113 ‘2022 Critical for successful implementation of the Yazidi Survivor’s Law’ Coalition for Just Reparations (1 March 2022) <https://c4jr.org/010320223896> accessed 11 December 2022.

114 Janaby & Alfatlawi (n 40) 1117.

115 ibid

116 Yazidi Female Survivor’s Law (n 108), art 5.

117 ‘Six months after adoption of the Law on Yazidi Female Survivors no tangible progress has been made toward implementation’ Dak Organization for Ezidi Women Development (1 September 2021)

<https://dakngo.org/six-months-after-adoption-of-the-law-on-yazidi-female-survivors-no-tangible-progress-hasbeen-made-toward-implementation/> accessed 11 December 2022; ‘Iraq: Yezidi reparations law progress welcome, but more must be done to assist survivors’ Amnesty International (2 November 2021)

https://www.amnesty.org/en/latest/news/2021/11/iraq-yezidi-reparations-law-progress-welcome-but-more-mustbe-done-to-assist-survivors/ accessed 11 December 2022

118 UN Doc S/2018/118 (n 32), paras 2, 19.

information gathered.119 Thus, the investigation team is under the obligation to follow the rules on criminal procedure regulated by the Law on Criminal Proceedings No. 23.

By November 2020, UNITAD had already taken several investigative measures, including excavating mass graves and gathering testimonial evidence from victims and witnesses.120 In its sixth report, UNITAD mentioned it had introduced new investigative instruments ‘including the expanded use of remote interviews and screenings’ due to the ongoing Covid-19 pandemic.121 In accordance with Iraqi rules of criminal procedure, interviewing witnesses can be undertaken only by an investigative judge or judicial investigator.122 It is unclear to what extent these rules have been followed by UNITAD while gathering this information.123

Furthermore, searching any person or a premise is not allowed unless specifically stipulated by law, and the search should be undertaken by an investigative judge, a judicial investigator, or a member of the police with the authorisation of the investigative court.124 In addition, anyone else who has been granted authority by the law to conduct searches is allowed to do so.125 However, the criminal procedural law, or any other Iraqi law for that matter, does not at any point grant international investigative teams the authority to conduct searches of persons or premises.126

Thus, the legal status of UNITAD within the Iraqi legal system is unclear, as its authorisation stems from international law instead of domestic law. As Iraq is a dualist country, any international law it is a party to must be transposed via a legislative instrument into the national system. Thus, Iraq’s international obligations, including those imposed by the UNSC, have no direct effect unless expressly incorporated into national legislation. Therefore, as the Resolution 2379 has not been incorporated into national law, nor has there been an act giving

119 ibid.

120 UNSC, ‘Fifth report of the Special Adviser and Head of the United Nations Investigative Team to Promote Accountability for Crimes Committed by Da’esh/Islamic State in Iraq and the Levant’ (11 November 2020) UN Doc S/2020/1107.

121 UNSC, ‘Sixth report of the Special Adviser and Head of the United Nations Investigative Team to Promote Accountability for Crimes Committed by Da’esh/Islamic State in Iraq and the Levant’ (3 May 2021) UN Doc S/2021/419, para 54.

122 Law on Criminal Proceedings with Amendments (n 14), art 59.

123 Janaby & Alfatlawi (n 53) 1127.

124 Law on Criminal Proceedings with Amendments (n 14), art 72.

125 ibid

126 Janaby & Alfatlawi (n 40) 1129.

UNITAD officials the competence to gather information, the activities conducted by UNITAD have no legally binding force before Iraqi courts.127

The ToR of UNITAD mentions different ways in which the government of Iraq must ensure that UNITAD is capable of acting in accordance with its mandate.128 These include allowing free movement within the country and the freedom of the investigative team to meet with all national, local and military authorities considered necessary.129 However, there is no mention of ensuring the usability of the information obtained by UNITAD as evidence.

Furthermore, in the third report of UNITAD’s actions, it was mentioned that the investigative team was granted access to relevant files held by the lead investigative judge at a Counter-Terrorism Court.130 However, this has been the only time such a statement is made, which raises the question of whether investigative judges or judicial investigators have been directly involved in the collection of other information. If UNITAD has not followed the Iraqi criminal procedural rules, which appears to be the case, this will pose challenges for domestic courts in admitting the information gathered as evidence.131

5. Observations

The mandate and the ToR of UNITAD oblige the investigative body to respect the sovereignty of Iraq and its jurisdiction over the crimes committed by ISIL on its territory. However, practical challenges make it difficult for UNITAD to act in accordance with its mandate, particularly due to the lack of codification of international crimes under Iraqi law. This means that the prosecution of ISIL fighters for these crimes does not fall under the jurisdiction of the Iraqi judiciary. Due to these challenges, reforms need to be made in the Iraqi legal framework in order for the domestic courts to be able to use the outcome of the investigations of UNITAD as evidence. Furthermore, for UNITAD to act in accordance with ‘UN best standards’, as promised by its mandate, certain aspects of its work and cooperation with the Iraqi government

127 Hawre Ahmad & Sheraz Ibrahim, ‘Domesticating International criminal law in the Kurdistan Region of Iraq’ (2022) Kurdistan Centre for International Law 63, <https://www.researchgate.net/publication/365841379_domesticating_International_criminal_law_in_the_Kurdi stan_Region_of_Iraq#pf2c> accessed 22 January 2023.

128 UNSC S/2018/118 (n 32) 44.

129 ibid

130 UNSC, ‘Third report of the Special Adviser and Head of the United Nations Investigative Team to Promote Accountability for Crimes Committed by Da’esh/Islamic State in Iraq and the Levant’ (13 November 2019) UN Doc S/2019/878, para 28.

131 Janaby & Alfatlawi (n 40) 1129.

need to be further clarified. Below are some reforms suggested to remove the legal paradox of the work of UNITAD.

5.1. For the Iraqi Government

5.1.1. Incorporation of International Crimes into Iraqi Legal Framework

In order for Iraqi courts to prosecute ISIL fighters for war crimes, crimes against humanity and genocide, a domestic legal basis for these crimes needs to be established. This has been one of the top priorities of UNITAD from the very beginning, but so far no results have emerged.132 Thus, the Iraqi government should enact legislation codifying international crimes, ensuring that they align with international standards.133 Moreover, this way Iraq would fulfil its treaty obligations arising from the Genocide Convention. This legislation would be most effective if brought about in a timely manner, as until it is passed, ISIL fighters will continue to be prosecuted under the Anti-Terrorism law framework.

Additionally, it would be advisable for Iraq to become a party to the Rome Statute, giving the ICC jurisdiction over international crimes committed on its territory.134 By making a declaration under article 12(3) of the Rome Statute, Iraq could give the court jurisdiction to hear cases of crimes committed before the entry into force of the Statute in Iraq, this way giving the ICC jurisdiction over crimes committed in the non-international armed conflict against ISIL.135

On 15 February 2005, the Council of Ministers of Iraq announced their decision to accede to the Rome Statute, but this decision was withdrawn in two weeks.136 In 2016, the Iraqi Prime Minister of that time, Haider al-Adabi, told Human Rights Watch that Iraq has no intention to become a member of the ICC.137 This is presumably due to the fact that the court would then have jurisdiction over crimes committed by all parties, including crimes committed

132 UNSC, ‘Second report of the Special Adviser and Head of the United Nations Investigative Team to Promote Accountability for Crimes Committed by Da’esh/Islamic State in Iraq and the Levant’ (17 May 2019) UN Doc S/2019/407, para 95.

133 Global Justice Center (n 80) 6.

134 This has been suggested for Iraq for years, see for example ‘Iraq: PGA Calls on Iraq to Ratify the Rome Statute of the International Criminal Court’ Parliamentarians for Global Action (New York, 21 August 2014) <https://www.pgaction.org/news/pga-calls-on-iraq-to-ratify-rome-statute.html> accessed 11 December 2022

135 Rome Statute (n 26), art 11(2).

136 Parliamentarians for Global Action, ‘Iraq and the Rome Statute’ (Pgaction.org)

<https://www.pgaction.org/ilhr/rome-statute/me-med/iraq.html> accessed 29 May 2022.

137 Human Rights Watch, ‘Flawed Justice’ (n 95) 65.

by Iraqi Government Forces.138 Thus, it seems unlikely that Iraq will become a party to the Rome Statute in the near future.

5.1.2. Enacting Legislation Enabling the Use of Results Gathered by UNITAD to Be Used as Evidence before National Courts

For UNITAD to be able to fulfil its mandate, the ability to use the outcome of its investigations before the courts of Iraq needs to be assured. The legal value of the investigations of UNITAD is questionable as it is not certain whether the procedural rules arising from the Law on Criminal Proceedings have been followed. Hence, for the Iraqi judges to be bound to follow the results of the investigations, the legal status of UNITAD in Iraq must be made concrete. Therefore, this paper suggests that the Iraqi legislator enacts a law rendering UNITAD investigative activities lawful. This law should give the investigative team the authority to conduct interviews, ensuring that the methods used do not risk of re-traumatising the victims or witnesses.139 Moreover, it should permit the investigative team to administer searches on persons and premises that can then be used as evidence before the courts.140 Alternatively, UNITAD could request the permission of an investigative court each time it wishes to conduct new searches.141 This, however, would hinder its efficiency as it can take some time for the court to make a decision concerning each specific search. This, in turn, can increase the risk of misuse and may allow for courts to give permissions for searches that do not fulfil the criteria required by the criminal procedural law of Iraq.142 Regardless, it would tackle the problem regarding the usability of the information obtained by UNITAD.

5.1.3. Establishing a National Strategy for Prosecutions

Due to the high number of detainees held in Iraqi custody,143 it is understandable that prosecuting under the Anti-Terrorism law framework provides for efficient solutions as merely establishing a connection with the individual and a terrorist organisation is sufficient. As one of the judges of the Counter-Terrorism Court in Baghdad stated, there is no need to prosecute

138 ibid.

139 Human Rights Watch, ‘Flawed Justice’ (n95) 76.

140 Janaby & Alfatlawi (n 39) 1133.

141 ibid

142 ibid

143 Vera Mironova, ‘Iraq's Broken Justice System for Islamic State Fighters’ (Lawfare Blog, 24 July 2020) <https://www.lawfareblog.com/iraqs-broken-justice-system-islamic-state-fighters> accessed 11 December 2022

fighters for each specific crime as prosecuting for membership of a terrorist group is already enough to order a maximum sentence.144

As previously assessed, this approach has several issues and reveals that currently there is no national strategy in place guiding the prosecutions of ISIL fighters.145 A new way to approach these prosecutions should be taken and the first step should be prioritising the prosecutions of those individuals who have been involved in the most serious crimes.146 The perpetrators should be held accountable for the full range of crimes they have committed, and not solely for being a member of ISIL.147 Thus, these trials should not be aimed at being over as fast as possible, but instead, all relevant evidence should be brought forward, this way allowing for accurate documentation and victim participation.148

Second, coordinated efforts should be made to make a clear distinction between those who joined ISIL voluntarily and those who joined out of necessity or merely stayed in the territories controlled by ISIL. In all cases, where individuals participated in crimes committed by ISIL involuntarily, the Amnesty Law should be consistently applied by all courts. Furthermore, divergent forms of involvement in crimes should be differentiated from one another. During its peak time, ISIL employed thousands of civil servants acting in different occupations, who could all now be sentenced to death for being affiliated with ISIL.149 There is no gain in prosecuting these people who were not complicit in any crimes other than supporting the organisation. Instead, such action can serve as a fruitful basis for future conflicts in Iraq. Moreover, all charges against people who worked in health care services under the ISIL regime need to be dropped.150 The Iraqi counter-terrorism courts are considering prosecuting, and some have already prosecuted, physicians who worked in ISIL-ran hospitals.151 This,

144 Human Rights Watch, ‘Flawed Justice’ (n 95) 31.

145 ibid, 27.

146 ibid.

147 ‘Iraq: Key Courts Improve ISIS Trial Procedures’ Human Rights Watch (New York, 13 March 2019)

<https://www.hrw.org/news/2019/03/13/iraq-key-courts-improve-isis-trial-procedures> accessed 11 December 2022.

148 ibid, 31.

149 Matthew Rosenberg, Nicholas Kulish & Steven Lee Myers, ‘Predatory Islamic State Wrings Money From Those It Rules’ The New York Times (New York, 29 November 2015); Tessa Fox, Iraq government employees face prosecution for working under ISIL’ Al Jazeera (Doha, 9 July 2019) <https://www.aljazeera.com/news/2019/7/9/iraq-government-employees-face-prosecution-for-working-underisil> accessed 11 December 2022. <https://www.nytimes.com/2015/11/30/world/middleeast/predatory-islamicstate-wrings-money-from-those-it-rules.html> accessed 11 December 2022

150 For more information about health care personnel under the ISIL regime see Craig Klugman ‘How Medicine Has Fared Under ISIS’ (Bioethics Today -blog, 25 May 2015) <https://bioethicstoday.org/blog/how-medicinehas-fared-under-isis/#> accessed 11 December 2022

151 Human Rights Watch, ‘Flawed Justice’ (n 95) 30.

however, goes against international humanitarian law which prohibits the prosecution of medical personnel performing medical duties.152

5.1.4. Forming a Truth and Reconciliation Commission

Providing justice to the victims of the acts committed by ISIL should go beyond criminal prosecutions. Although providing retributive justice is important, due to the gravity of the harm caused in Iraq – especially in the Sinjar region – other measures need to be taken to ensure that people will feel safe and can return to their homes.153 Moreover, forms of restorative justice can be more sufficient to address the grievances of the victims than mere punitive justice.

154

Certain reconciliation measures have been already taken, such as the creation of the Judicial Investigation Board for Crimes Against the Yazidis by Iraq’s High Judicial Council.155

The aim of this board is for Yazidi victims to be able to file claims under the counter-terrorism law for the wrongdoings they faced. However, the executive director of Yazda, Murad Ismael, said that the Yazidi community was not consulted regarding the creation of such board and most Yazidis were utterly unaware of its existence.156 Moreover, he opposed certain aspects of the board, such as the fact that all the judges were Muslims.157

Additionally, Iraq’s National Reconciliation Committee formed a local council in Sinjar tasked with formulating an agenda for re-establishing governance in the area.158 This council has formulated a 13-step roadmap to restore the Sinjar region and reopen public facilities that are crucial for the livelihood of individuals.159 In practice, however, steps towards the realisation of these measures have not been taken, and the council has been criticised for not including the voices of all victims, such as those of the young women enslaved by ISIL.160

Neither of these measures have received widespread from the Yazidi community due to their top-down nature, limited participation of women, and their lack of addressing the social

152 Francoise Bouchet-Saulnier, ‘Counterterrorism and Sanctions: How counterterrorism throws back wartime medical assistance and care to pre-Solferino times’ (2021) 103 International Review of the Red Cross 479, 502.

153 Abouzeid (n 2) 11.

154 ibid.

155 Human Rights Watch, ‘Flawed Justice’ (n 95) 59.

156 ibid.

157 ibid

158 Abouzeid (n 2) 13.

159 ibid

160 ‘Way Forward for Sinjar’ International Crisis Group (Brussels, 14 December 2018)

<https://www.crisisgroup.org/middle-east-north-africa/gulf-and-arabian-peninsula/iraq/way-forward-sinjar> accessed 11 December 2022

dynamics of the Yazidis.161 Therefore, this paper suggests setting up a TRC in order to address the public grievances of the victims as well as establish a full strategy of reconciliation measures. This would allow forming of a broader picture of the events that have taken place while providing genocide recognition to the community as a whole.162

The aim of TRCs is to uncover the truth about the crimes that have taken place and thereby create a collective memory among civilians, as well as foster an environment suitable for peaceful co-existence in an area that is deeply divided.163 TRCs advocate for victims to formulate the historical narrative and require perpetrators and bystanders to come forward and acknowledge publicly the harm done, thus promoting the healing process of victims.164

An important aspect of TRCs is the holistic approach taken, meaning the inclusion of all stakeholders.165 The truth-seeking functions should aim at ensuring that the harm is known to the wider public,166 whereas the reconciliating functions should focus on repairing the damaged infrastructure, ensuring security in the area as well as increasing economic opportunities in the Sinjar region, thereby improving prospects for return for the displaced.167 A necessary condition for reconciliation should be the full application of the Yazidi Female Survivor’s law, thus providing female survivors the adequate means to better continue with their lives.

Having a TRC alongside criminal prosecutions would contribute to compensating for the impairment caused by the lack of victim participation in criminal proceedings, therefore increasing the victim-centred approach to acknowledging the genocide. The international community should, however, support the establishment of a TRC, however in a way that does not hijack the process.168 To ensure approval from the Yazidi community, a bottom-up approach needs to be taken.169

161 Mahler (n 8) 37.

162 Alexander Dukalskis, ‘Interactions in Transition: How Truth Commissions and Trials Complement or Constrain Each Other’ (2011) 13 International Studies Review 432, 439.

163 ibid, 434.

164 Mahler (n 8) 9.

165 Louise Monique Janssen, ‘Transitional Justice in Iraq: Justice and reconciliation for the Yazidi minority in northern Iraq for crimes committed by ISIS’ (Thesis, University of Vienna 2018) 65.

166 Abouzeid (n 2) 26.

167 International Crisis Group, ‘Winning the Post-ISIS Battle for Iraq in Sinjar’ (20 February 2018) 18 <https://d2071andvip0wj.cloudfront.net/183-winning-the-post-isis-battle-for-iraq-in-sinjar_0.pdf> accessed 11 December 2022

168 Sarah Sanbar, ‘Barriers to post-ISIS reconciliation in Iraq: Case study of Tel Afar, Ninewa’ (Kuwait Program at Sciences Po, 2020) 14 <https://www.sciencespo.fr/kuwait-program/wp-content/uploads/2021/02/SarahSanbar-Post-ISIS-Reconciliation-in-Iraq.pdf> accessed 11 December 2022

169 Mansour & Aldouri (n 65) 36.

5.2.1. The Question of the Death Penalty

In line with the longstanding policy of the UN to not support or assist in processes leading to a death penalty, the investigative team should refrain from providing evidence to proceedings where capital punishment can be imposed.170 While advocating for the complete abolishment of the death penalty could be favourable, a more feasible option would be for UNITAD to urge the authorities of Iraq to suspend capital punishment proceedings in which it will provide evidence.

In the case of the Special Tribunal for Lebanon, for example, the Lebanese government agreed that the tribunal would not have the power to impose capital punishment although it is generally applicable under domestic law.171 This could, however, result in a mismatch considering that perpetrators prosecuted for international crimes with the help of UNITAD’s investigations would only face imprisonment while lower-level perpetrators, who would be liable merely for terrorism crimes or crimes under the IPC, would face the death penalty.

172

Regardless of this discrepancy, the suspension of capital punishment in at least the proceedings to which UNITAD has contributed could serve as a precedent for the whole Iraqi judicial system. Lebanon, for instance, has not executed any inmates since 2004 primarily due to international pressure on the Lebanese government.173 Moreover, as it is not even currently possible to have proceedings in Iraq using UNITAD-obtained information as international crimes are not transposed into domestic law, UNITAD still has time to negotiate with the government of Iraq.

5.2.2. Monitoring Fair and Independent Proceedings

After the commencement of proceedings in which information obtained by UNITAD may be used, it will be of utmost importance that the international and domestic rules on fair and independent proceedings are adhered to.174 Due to the fact that, in accordance with its ToR, UNITAD is to give assistance to the government of Iraq in building the capacity of its courts

170 Human Rights Watch, ‘Flawed Justice’ (n 95) 63.

171 Steven Freeland, ‘No longer acceptable: the exclusion of the death penalty under international criminal law’ (2010) 15 Australian Journal of Human Rights 1, 28.

172 ibid, 25.

173 ALEF Act for Human Rights, ‘Snapshot on the Death Penalty in Lebanon’ (October 2015) <https://www.europarl.europa.eu/meetdocs/2014_2019/documents/dmas/dv/dpsnapshot_2015_final1/dpsnapshot_2015_final-1en.pdf> accessed 11 December 2022

174 UNSC S/2018/118 (n 32) para 28; Mansour & Aldouri (n 65) 35.

and judicial system,175 this paper suggests that UNITAD provides training for domestic prosecutors and judges to better ensure that the rules on fair proceedings are coherently applied. This training should especially focus on urging Iraq to comply with its own constitution and criminal procedural laws.

Additionally, a monitoring body could be established and tasked with observing the compliance with rules on fair proceedings in litigations for which UNITAD has conveyed evidence to. The team of UNITAD is a varied mix of international and domestic experts in the field of international criminal law, human rights law as well as Iraqi criminal and procedural law;176 hence, the personnel is well equipped to monitor whether such rules are complied with.

This may not be immediately favoured by the Iraqi government given that it wants to ensure its sovereignty and jurisdiction over criminals in its territory.177 However, the mandate of the monitoring body should be to merely observe trials and point out possible cases of noncompliance with rules that Iraq is bound by. Thus, its aim would not be to question the independence of the judiciary but solely to give guidelines for better administration of fair trials.

6. Conclusion

The nature of the actions committed by ISIL raised the crimes beyond merely the interest of the domestic system and into the concern of the international community as a whole. To investigate and address these crimes, the UNSC established an investigative team to conduct research on international crimes committed by ISIL. However, despite its intentions, the investigative team and its work have ambiguous: in fulfilling its mandate, UNITAD has faced several challenges causing impediments in holding ISIL fighters accountable for the genocide encountered by the Yazidi community.

This paper assessed factors hindering the prosecution of ISIL fighters for the crime of genocide faced by Yazidis, focusing on the dichotomy in the mandate of UNITAD, the insufficiency of the Iraqi legislation to address international crimes and the possible limitations caused by the Iraqi rules on criminal procedure. The analysis of these issues was used to form the suggestion that in order to give punitive justice to the victims of the genocide, war crimes, crimes against humanity and the crime of genocide need to be included as part of the domestic

175 ibid, para 39.

176 ibid, para 15.

177 UNSC, ‘Investigative Team Making ‘Significant Progress’ (n 70).

legal system. As long as this is not done, the questionable Anti-Terrorism Law will continue to dominate domestic prosecutions. Additionally, the paper proposed the clarification of the legal status of UNITAD within Iraq to ensure that the results of its investigations can be used as evidence before domestic courts. If this is not done, the whole purpose of UNITAD may be called into question.

Moreover, forming a national strategy was emphasised, and establishing a TRC was suggested, to ensure a holistic approach to providing transitional justice to the Yazidi victims. Lastly, the paper addressed the need for UNITAD to clarify certain aspects of its mandate to ensure that while giving aid to the government of Iraq, it is not acting against the basic principles of the UN.

Currently, there are no concrete ways to prosecute fighters of ISIL for the crime of genocide in Iraq. Even though there have been successful prosecutions of foreign fighters in Germany legally confirming that genocidal acts have been committed, using universal jurisdiction should be an alternative measure and it is not sufficient on its own to bring justice to the victims. As most of the ISIL fighters committing crimes in Iraq are within the borders of the state, solutions need to be found allowing for prosecuting them in Iraq. What is important, however, is to push the government of Iraq to comply with its international obligations and transform its judicial system to be fairer towards all parties. As the fog of yet another conflict is slowly lifting, it is crucial that the necessary retributive justice is granted to the victims of the acts committed by ISIL.

In order to maintain the rule of law in the European Union (EU), the enforcement of EU law is essential. According to the Treaties, the Commission is tasked with ensuring such enforcement by Member States through infringement procedures regulated in article 258 of the Treaty on the Functioning of the European Union (TFEU).1 The Commission has, however, discretion on whether to start such proceedings, even upon complaints from citizens, businesses or other stakeholders.2

With the introduction of the preliminary reference procedure in the Treaty of Rome as regulated by article 267 TFEU and the related case law of the Court of Justice of the European Union (CJEU), the EU is equipped with a peculiar procedure that works as a bottom-up tool for national courts to refer questions to the CJEU. The preliminary reference mechanism works as an indirect means for the preservation of the rule of law by enhancing the uniform interpretation of EU law throughout the Member States and by reviewing the validity of EU acts. Due to its particularities, the scope of the preliminary ruling procedure has gradually expanded. In recent times, citizens themselves have begun using this tool as an infringement procedure by raising questions on the compatibility of national law with Community law.3

A more efficient enforcement of EU law may have great impact within the Member States and the EU as a whole. Greece, for instance, is facing a rule of law crisis with regards to asylum regulations due to the lack of enforcement of the EU Asylum Acquis. This evidently has consequences on international protection for asylum seekers: several NGOs have documented the inhumane situation of asylum seekers in Greece for whom asylum applications have been rejected according to the EU-Turkey Agreement.4 Up until now, the Commission has not initiated infringement proceedings against Greece, even if violations have been reported various times.5 Could, then, the preliminary ruling procedure fill this gap and serve as a tool to

1 Consolidated Version of the Treaty on the Functioning of the European Union [2012] OJ C 326/47.

2 Luca Prete, Infringement Proceedings in EU Law (Kluwer Law International 2017).

3 EUI TV, ‘The Mobilization of European Law (MobEL): Origins, Developments and Perspectives’ (YouTube, 22 January 2022) < https://www.youtube.com/watch?v=f2NZxmNNiIw > accessed 26 May 2022;

4 ‘Greece: Asylum Seekers Being Illegally Detained in New EU-Funded Camp’ (Amnesty International, 2 December 2021) < https://www.amnesty.org/en/latest/news/2021/12/greece-asylum-seekers-being-illegallydetained-in-new-eu-funded-camp/ > accessed 26 May 2022.

5 See for instance De Brauw Blackstone Westbroek, WeMoveEurope and Oxfam, Complaint to the European Commission Concerning Infringments of EU Law by Greece [22 September 2020] available at < https://oi-filesd8-prod.s3.eu-west-2.amazonaws.com/s3fs-public/2020-09/wemove-oxfam-complaint-to-ec-asylum-greeceeu.pdf > accessed 26 May 2022.

preserve the rule of law in the European Union? This work will focus on the following research question: to what extent is the preliminary ruling procedure, as a tool for the enforcement of EU law, an effective means for maintaining the rule of law in the EU in light of the migration crisis in Greece?

To do so, two sub-questions must be answered. The second section of this paper will analyse what role the preliminary ruling procedure has in preserving the rule of law in the European Union. This will be assessed by analysing what role the rule of law has in the EU and the scope of the preliminary ruling procedure within the European judicial framework. In the third part of this paper, the effectiveness of the preliminary ruling procedure as a tool for the enforcement of EU law will be questioned. To do so, the procedure will be analysed according to three parameters: the possibility to access the procedure, the likelihood of the activation of the procedure and the enforcement mechanisms that are in place in case of failure to refer preliminary questions. Finally, in the last part of this paper, suggestions to improve the effectiveness of the procedure will be presented.

To answer the research question, an evaluative methodology will be applied. More specifically, to answer the first sub-question, the doctrinal method will be used to analyse the most prominent literature on the rule of law and the preliminary ruling procedure. With regard to the second sub-question, a qualitative analysis will be applied on the basis of three different parameters. To contextualise the theoretical analysis, a decision of the Greek Council of State from which a preliminary ruling procedure could have originated will be examined. In section two, this case will be used to demonstrate the role that the preliminary ruling procedure could potentially play for the maintenance of the rule of law in Greece and ultimately in the EU by analysing what potential barriers could hinder the activation of the procedure. In the third section, the case from the Greek Council of State will instead function as an example to show to what extent the preliminary ruling as an enforcement tool is effective for the preservation of the rule of law.

2. What is the Role of the Preliminary Ruling Procedure for the Safeguarding of the Rule of Law in the European Union?

2.1. The Rule of Law in the EU

The rule of law is a disputed term and has different connotations depending on the relevant context.6 Within the context of the European Union, the rule of law is a constitutional principle and is conceptualised alongside other principles such as democracy and the respect of fundamental rights, thus making it part of an interdependent constitutional formula of the Union.7 Article 2 of the Treaty on the European Union (TEU), states that the Union is “founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities”. These principles, the rule of law included, must be understood as shared values to “underlie and inform the purposes of the character of the Union”.8 Shared values encompass not only those values found in the constitutional traditions of the Member States, but also those upheld both on the national level as well as on the European level. This is certainly reflected in article 49 TEU regulating EU membership, where the respect of the rule of law is a fundamental condition for a country to be a candidate member of the European Union.9 Accordingly, with the Amsterdam Treaty, a new regime has been established wherein, through article 7 TEU, the Council may impose sanctions in case of serious and persistent breaches of the principles enshrined in article 2 TEU. Moreover, the rule of law is mentioned in the Preamble of the EU Charter of Fundamental Rights which, according to article 6(1) TEU, has the same constitutional value as the treaties. Finally, the fundamental value of the rule of law in the European Union was underlined in Les Verts, according to which “the Economic Community is a Community based on the rule of law”.10

6 Gulliermo O’Donnel, ‘The Quality of Democracy: Why the Rule of Law Matters’ [2004] 15/4 Journal of Democracy 32.

7 Laurent Pech, ‘A Union Founded on the Rule of Law: Meaning and Reality of the Rule of Law as a Constitutional Principle of EU Law’ [2010] 6/3 European Constitutional Law Review 359.

8 Laurent Pech, ‘The Rule of Law as a Constitutional Principle of the European Union’ [2009] 4 Jean Monnet Working Paper 1.

9 The rule of law falls within the political requirement of the Copenhagen Criteria.

10 Case C-294/83 Parti ecologiste “Les Verts” v European Parliament [1986] ECR 01339.

Alongside the constitutionalisation process of the European Union, the concept of the rule of law has developed assuming different meanings.11 Firstly, this principle assumed the scope of “the rule of EU law” as an instrument for the transformation of the European Community into a federal type of structure, thanks to which the superiority and the direct effect of EU law have been established. Progressively, the focus shifted to the “rule of law at EU level” when there was a need to enforce constitutional values within the EU institutions. Since the 1990s, when the European Union was established, it has become important to enforce the rule of law within the Union as a whole, namely in its institutions and its Member States. These phases, however, “rather than consecutive periods […], they represent distinct layers that, so to say, stratify, and consolidate and reinforce the underlying layers”.12 This means that if, for instance, the rule of EU law is prejudiced, the rule of law within the Union as a whole would suffer from it.

2.1.1. The Judicial System of the European Union

Different to other legal orders, the European judicial system is governed by the principle of sincere cooperation. This means that the Court of Justice of the European Union and the national courts must work together for the enforcement and uniform application of EU law.13 In order to uphold the principle of the rule of law, such an interlocked and decentralised system of jurisdiction needs a complete and coherent legal order.14

With regards to completeness as a requirement, the European legal system provides sufficient legal remedies to ensure judicial review of the legality of the acts of the institutions.15 Certainly, with the last major developments dictated by Unión de Pequeños Agricultores16 and JégoQuéré, 17 , the completeness of the EU legal system has improved significantly ensuring direct action according to article 263 TFEU even when there is no individual concern. Regarding coherence, it means that a judicial system shall have both direct and indirect routes for the

11 Monica Claes and Matteo Bonelli, ‘The Rule of Law and the Constitutionalisation of the European Union’ in Werner Schroeder (ed), Strengthening the Rule of Law in Europe. From a Common Concept to Mechanism of Implementation (Hart Publishing 2016) 265.

12 ibid.

13 Consolidated Version of the Treaty on the Functioning of the European Union [2012] OJ C 326/47, art 4

14 Koen Lenaerts, ‘Rule of Law and the Coherence of the Judicial System of the European Union’ [2007] 44/6 Common Market Law Review 1625.

15 ibid.

16 Case C-50/00 P Unión de Pequeños Agricultores v Council of the European Union [2002] ECR I-06677.

17 Case T-177/01 Jégo-Quéré & Cie SA v Commisssion of European Communities [2002] ECR II-02365.

review of acts of the institutions.18 In the European Union, this shall be in accordance with the respective tasks assigned to the CJEU and national courts.19

The decentralised EU judicial system relies, however, mainly on Member State courts. According to article 19(1) TFEU, in fact, “Member States shall provide remedies sufficient to ensure effective legal protection in the fields covered by Union law” meaning that the legal protection of individual rights falls foremost and most frequently within the scope of national courts. Consequently, national judges are therefore required to enforce EU law ex officio. If, however, doubts about the interpretation or the validity of EU law arise, the EU judicial system provides national courts with a peculiar and unique procedure, which links them directly to the CJEU: the preliminary ruling procedure.20

2.2. The Preliminary Ruling Procedure and its Role as an Enforcement Tool of EU Law

The preliminary ruling procedure is regulated in article 267 TFEU. As an alternative indirect route to the infringement action, where Member States act within the scope of EU law, the preliminary ruling procedure comes into play in multiple circumstances. According to article 267 TFEU, the CJEU shall have jurisdiction on two types of questions: questions on the interpretation of the Treaties and questions on the validity and interpretation of acts of the Union.21

Despite being an indirect measure, the preliminary ruling procedure holds some characteristics which allow it to heavily impact the evolution of European law. The rulings given by the CJEU to preliminary ruling references have an erga omnes effect, namely, the operational part as well the ratio of the ruling become binding to all national courts of the Member States.22 The Court’s interpretation is declaratory of the wording of the piece of EU

18 Koen Lenaerts, ‘Rule of Law and the Coherence of the Judicial System of the European Union’ [2007] 44/6 Common Market Law Review 1625.

19 ibid.

20 Case 314/85 Foto-Frost v Hauptzollamt Lübeck-Ost. [1987] ECR 04199; case C-188/92 TWD Textilwerke Deggendorf GmbH v Bundesrepublik Deutschland [1994] ECR I-00833; case C-344/04 The Queen, on the application of: International Air Transport Association and European Low Fares Airlines Association v Department for Transport [2006] ECR I-00403; case C-441/05 Roquette Frères v Ministre de l'Agriculture, de l'Alimentation, de la Pêche et de la Ruralité [2007] ECR I-01993.

21 Consolidated Version of the Treaty of the Functioning of the European Union [2012] OJ C 326/47, art 267.

22 Morten Broberg, ‘Preliminary References as a Means for Enforcing EU Law’ in András Jakab and Dimitry Kochenov (eds), The Enforcement of EU Law and Values: Ensuring Member States’ Compliance (Oxford University Press 2017) 99.

law; it lays down the correct interpretation of a legislation from the day of its entry into force.23 This implies that the rulings of the Court on preliminary questions have ex tunc effect: the interpretation given reflects what the concerned piece of legislation was meant to regulate when entering into force. Preliminary ruling judgments have, therefore, retroactive effect as from when the EU law in question was enacted.24 The power of the preliminary ruling procedure is also showcased in the fact that following a preliminary ruling from which it is apparent that national legislation is incompatible with EU law, it is for the Member State to take measures to ensure that EU law is complied with, and the rights conferred upon individuals by EU law are given full effect.25

Due to these characteristics, the preliminary ruling procedure has been responsible for some of the most important judgments of the CJEU fostering EU legal integration such as Costa v ENEL and Van Gend en Loos 26 Through this procedure, national courts are “indirectly responsible for the boldest judgements the Court has made”.27 This concept prompts the judicial empowerment thesis, which states that the preliminary reference mechanism is an opportunity for national courts to exercise de facto judicial review on national law and the executive’s acts. 28 This increases the powers of lower courts vis-à-vis the other branches of government and other courts in the national judicial system.29 Moreover, it ensures that national court’s rulings have a greater impact on policy outcomes.30 Lower courts in particular fit this theory, since, being just as able as last instance courts to bring preliminary questions to the CJEU, they are able to circumvent decisions of higher courts, obtaining new powers.31 This

23 Morten Broberg, ‘Judicial Coherence and the Preliminary Reference Procedure: Article 267 TFEU as a Private Party Remedy for Ensuring Judicial Coherence in Europe’ [2015] 8/2 Review of European Administrative Law 9.

24 Case 61/79 Amministrazione delle Finanze dello Stato v Denkavit Italiana Srl [1980] ECR 01205; See Nina Półtorak, ‘Ratione Temporis Application of the Preliminary Rulings Procedure’ [2008] 45/5 Common Market Law Review 1357.

25 Joined cases C-231/06 to C-233/06 National Pensions Office v Emilienne Jonkman, Hélène Vercheval and Noëlle Permesaen v National Pensions Office [2007] ECR I-05149, para 41.

26 Amedeo Arena, ‘From an Unpaid Electricity Bill to the Primacy of EU Law: Gian Galeazzo Stendardi and the Making of Costa v ENEL’ [2019] 30/3 European Journal of International Law 1017.

27 Federico Mancini, ‘Making of a Constitution for Europe’ [1989] 26 Common Market Law Review 595.

28 Maarten Vink, Monica Claes and Christine Arnold, ‘Explaining the Use of Preliminary Reference by Domestic Courts in EU Member States: A Mixed-Method Comparative Analysis’ [2009] (Unpublished).

29 Joseph H.H. Weiler, ‘A Quiet Revolution: The European Court of Justice and its Interlocutors’ [1994] 26/4 Comparative Political Studies 510; Karen J. Alter, Establishing the Supremacy of EU Law: The Making of an International Rule of Law in Europe (Oxford University Press 2003).

30 Karen J. Alter, Establishing the Supremacy of EU Law: The Making of an International Rule of Law in Europe (Oxford University Press 2003).

31 ibid.

theory, therefore, provides an explanation as to why national courts could be willing to refer preliminary rulings.

A preliminary ruling may have great impact on the Member State concerned since a ruling on the incompatibility of national law with EU law forces Member States to amend their legislation. Thus, even though the CJEU has held that article 267 TFEU does not work as a remedy available to the parties to a case before a national court, 32 de facto the preliminary ruling procedure also plays a role in the enforcement of EU law. Working as an “indirect enforcement” procedure, private parties may, upon a decision of the court concerned to ask a preliminary ruling question to the CJEU, enforce EU law against a Member State when it is not in compliance with said law 33 To summarise, three types of questions can be posed to the CJEU: (1) a “pure” question of interpretation of EU law; (2) questions about legal factors that may affect the application of EU law by national courts; (3) a question of compatibility between EU and national law.34

In light of the raison d’étre of article 267 TFEU, when the procedure is used to ask questions on the interpretation of EU law or the validity of EU acts, CJEU rulings have an impact on the coherence of the European judicial system, and thus the rule of EU law. In the next section, the impact of the preliminary ruling procedure on the preservation of the rule of law when used as an enforcement tool for EU law will be analysed. To do so, the legal situation revolving around asylum applications in Greece will be introduced and joint cases of the Greek Council of State will be analysed.

In the area of asylum, Greece has struggled to maintain the rule of law in accordance with EU law and fundamental rights. In 2020, an official complaint on behalf of WeMoveEurope and Oxfam was filed to the European Commission concerning the breaches of EU law stating that,

32 Case C-344/04 The Queen, on the application of: International Air Transport Association and European Low Fares Airlines Association v Department for Transport [2006] ECR I-00403 and case C-496/04 J. Slob v Productschap Zuivel [2006] ECR I-08257

33 Morten Broberg, ‘Preliminary References as a Means for Enforcing EU Law’ in András Jakab and Dimitry Kochenov (eds), The Enforcement of EU Law and Values: Ensuring Member States’ Compliance (Oxford University Press 2017) 99.

34 Bruno De Witte, ‘The Impact of Van Gend en Loos on Judicial Protection at European and National Level: Three Types of Preliminary Questions’ in Antonio Tizzano, Julianne Kokott and Sacha Prechal (eds), 50th Anniversary of the Judgment in Van Gend en Loos 1963-2013 (Conference Proceedings Luxembourg 13 May 2013) (Office des Publications de l’Union Européenne 2013) 93.

2.3 The Greek Council of State and the Decisions 2347/2017 and 2348/2017

“the EU rules for the receipt and processing of asylum applications and for the reception of asylum seekers prior to, pending and following their application process are fully disregarded”.35 Due to these incongruencies between national and EU law, Greece is relevant to research the Greek jurisdiction for identifying the impact of the preliminary ruling procedure and its role in maintaining the rule of law. So far, national courts have had, and potentially still have, the opportunity to enforce the EU Asylum Acquis and the EU Charter in Greece by filing preliminary ruling questions.

In Greece, asylum is domestically regulated by the International Protection Act (IPA)36 of November 2019, which was amended in May 2020 and transposed the Reception Condition Directive (RCD),37 the Asylum Procedure Directive (APD)38 and the Qualification Directive (QD) into Greek law.39 Moreover, Greek asylum procedures are regulated by the EU-Turkey Statement in 2016,40 which states that all irregular immigrants who enter into the Greek islands from Turkey after 20th March 2016 can be ruled inadmissible and returned to Turkey.41 This can happen on the grounds of two legal possibilities: first country of asylum (article 35 APD) and safe third country (article 38 APD).42

For the sake of this research, focus will be placed on the regulation of the concept of “safe third country” since, as will be elaborated in the next sections, it has been a matter of dispute. This concept is founded on the notion that a State’s obligations towards asylum seekers whose application has been rejected do not go beyond the principle of non-refoulement.43 It

35 De Brauw Blackstone Westbroek, WeMoveEurope and Oxfam, Complaint to the European Commission Concerning Infringments of EU Law by Greece [22 September 2020] available at < https://oi-files-d8prod.s3.eu-west-2.amazonaws.com/s3fs-public/2020-09/wemove-oxfam-complaint-to-ec-asylum-greece-eu.pdf > accessed 26 May 2022.

36 Νόμος 4636/2019 ‘Περί Διεθνούς Προστασίας και άλλες διατάξεις’ (Law 4636/2019 ‘On International Protection and Other Provisions’) [2019] Gov. Gazette 169/A/1-11-2019

37 Directive 2013/33/EU of the European Parliament and of the Council of 26 June 2013 ‘Laying down Standards for the Reception of Applicants for International Protection’ (recast) [2013] OJ L 180/96.

38 ibid.

39 Directive 2011/95/EU of the European Parliament and of the Council of 13 December 2011 ‘On Standards for the Qualification of Third-Country Nationals or Stateless Persons as Beneficiaries of International Protection, for a Uniform Status for Refugees or for Persons Eligible for Subsidiary Protection, and for the Content of the Protection Granted’ (recast) OJ L 337/9.

40 European Council, EU-Turkey Statement, 18 March 2016.

41 European Council on Refugees and Exiles (ECRE), Asylum in Greece: A Situation beyond Judicial Control? [2021] 9 Legal Note available at < https://ecre.org/wp-content/uploads/2021/06/ECRE-Legal-Note-9-onAsylum-in-Greece-A-Situation-Beyond-Judicial-Control-June-2021.pdf > accessed 26 May 2022.

42 European Commission, ‘EU-Turkey Statement: Questions and Answers’ [19 March 2016] < https://ec.europa.eu/commission/presscorner/detail/en/MEMO_16_963 > accessed 26 May 2022.

43 Agnès Hurwitz, The Collective Responsibility of States to Protect Refugees (Oxford University Press 2009) 16; María-Teresa Gil-Bazo, ‘The Safe Third Country Concept in International Agreements on Refugee Protection. Assessing State Practice’ [2015] 33/1 Netherlands Quarterly of Human Rights 42.

can be found, among other legislative acts, in article 38 Asylum Procedures Directive, where it is specified that asylum seekers can be returned to a country where they could have requested and received refugee status when certain grounds that ensure their international protection are fulfilled.

According to the complaint filed to the Commission, article 84(1)(f) IPA is not in compliance with EU law because it sets additional conditions that diminish the possibility of asylum seekers to be granted asylum, among others, as part of the grounds for consideration of a safe third country.44 A further incompatibility between Greek and EU law has been identified in relation to the former's lack of a methodology to be followed by the authorities to assess whether a country qualifies as a safe third country for an applicant which, according to article 38(2)(b) APD, shall be included within national law. As will be pointed out later, this failure results in many different bodies interpreting and analysing the concept of connection differently.

The effective access to asylum procedures was challenged in the Greek Council of State in September 2017.45 The Council of State in a Plenary Session finally heard two appeals by Syrian applicants for the annulment of two decisions:46 the negative decisions of the Independent Appeals Committees on second instance upon the decision of the Regional Asylum office of Lesbos not to grant asylum, and the consequent expulsion decisions.47 There were multiple grounds on which the parties deemed the Appeal Committee decisions were to be annulled.48 With regards to the first decision, the Council of State ruled that the application

44 De Brauw Blackstone Westbroek, WeMove Europe and Oxfam, Complaint to the European Commission Concerning Infringments of EU Law by Greece [22 September 2020] < https://oi-files-d8-prod.s3.eu-west2.amazonaws.com/s3fs-public/2020-09/wemove-oxfam-complaint-to-ec-asylum-greece-eu.pdf > accessed 26 May 2022..

45 Greek Council of State, Joint Decisions 2347/2017 and 2348/2017, 22 September 2017.

46 Four applications for annulment were submitted for joint consideration to the Fourth Chamber of the Council of State, which referred the cases to the Plenary Session of the Council of State due to their importance.

47 Asterios Kanavos, ‘A Critical Approach to the Concept of Turkey as a Safe Third Country under the Scope of the EU-Turkey “Common Statement” as Interpreted by the Greek Council of State and two Different Independent Appeals Committees’ (EDAL-European Database of Asylum Law, 10 July 2018) < https://www.asylumlawdatabase.eu/en/journal/critical-approach-concept-turkey-safe-third-country-under-scopeeu-turkey-%E2%80%9Ccommon-statement%E2%80%9D > accessed 26 May 2022.

48 The legality of fast-track border procedures; the involvement of EASO; the legal status of the EU-Turkey agreement and the assessment of Turkey as a “safe third country”. See Asterios Kanavos, ‘A Critical Approach to the Concept of Turkey as a Safe Third Country under the Scope of the EU-Turkey “Common Statement” as Interpreted by the Greek Council of State and two Different Independent Appeals Committees’ (EDALEuropean Database of Asylum Law, 10 July 2018) < https://www.asylumlawdatabase.eu/en/journal/criticalapproach-concept-turkey-safe-third-country-under-scope-eu-turkey-%E2%80%9Ccommonstatement%E2%80%9D > accessed 26 May 2022.

was indeed inadmissible on the basis of article 54 Law 4375/2016,49 since Turkey was found to be a safe third country for the applicants, which allowed for no examination of the merits of the case. Consequently, the expulsion decision was also upheld.50

Among the other grounds for annulment, in its ruling, the Council of State has put the greatest of attention to the assessment of Turkey as a safe third country in accordance with Law 4375/2016. Every time a refugee submits an asylum application that falls within the scope of the EU-Turkey Joint Declaration, the assessment of Turkey as complying with article 38 APD must be conducted. Such assessment must be performed on a case-by-case basis according to the principle of individual assessment.51

The Council of State’s classification of Turkey as a safe third country has been described as “without caring too much for EU law”,52 “based on doubtful documentation”53 leading to questions like “iura novit curiae?” (does the court know the law?).54 Firstly, the Council of State has analysed Turkey’s compliance with the principle of non-refoulement. 55

49 Iannis F. Papageorgiou, ‘Η έννοια και τα χαρακτηριστικά της ‘ασφαλούς τρίτης χώρας’ μετά την Κοινή

Δήλωση ΕΕ-Τουρκίας° Σκέψεις για τις αποφάσεις της Ολομέλειας του Συμβουλίου της Επικρατείας 2347/2017

και 2348/2017’ (‘The Concept and Characteristics of a “Safe Third Country” after the EU-Turkey Joint Declaration. Reflections on the Decisions of the Plenary Session of the State Council 2347/2017 and 2348/2017’) in Ύπατη Αρμοστεία του ΟΗΕ για τους Πρόσφυγες (UNHCR) (ed), Επετηρίδα Δικαίου Προσφύγων και Αλλοδαπών (Yearbook of Refugee and Foreign Law 2016-2017) (Εκδόσεις Αντ. Ν. Σάκκουλα 2020) (Publications Ant. N. Sakkoula 2020) 433.

50 Greek Council of State, Joint Decisions 2347/2017 and 2348/2017, 22 September 2017, para 64.

51 Rosemary Byrne and Andrew Shacknove, 'The Safe Country Notion in European Asylum Law' [1996] 9 Harvard Humans Rights Journal 185.

52 Angeliki Tsiliou, ‘When Greek Judges Decide whether Turkey is a Safe Third Country without Caring Too Much for EU Law’ (EU Immigration and Asylum Law and Policy, 29 May 2018) < https://eumigrationlawblog.eu/when-greek-judges-decide-whether-turkey-is-a-safe-third-country-withoutcaring-too-much-for-eu-

law/#:~:text=The%20Supreme%20Administrative%20Court%20of%20Greece%20was%20essentially%20aske d%20to,violate%20international%20and%20European%20law > accessed 26 May 2022.

53 ‘Greek Council of State Dismisses All Complaints on Fast Track Border Procedure and Declares Turkey “Safe Third Country” Based on Doubtful Documentation’ (ECRE-European Council on Refugees and Exiles, 6 October 2017) < https://ecre.org/greek-council-of-state-dismisses-all-complaints-on-fast-track-borderprocedure-and-declares-turkey-safe-third-country-based-on-doubtfuldocumentation/#:~:text=and%20Exiles%20(ECRE)-

,Greek%20Council%20of%20State%20dismisses%20all%20complaints%20on%20fast%20track,country'%20ba sed%20on%20doubtful%20documentation > accessed 26 May 2022.

54 From Latin: “Does the court know the law?”; ‘Jura Novit Curiae? A Critical Review of the Judgments 2347/2017 and 2348/2017 by the Plenary of the Council of State’ (Group of Lawyers for the Rights of Migrants and Refugees, 25 October 2017) < http://omadadikigorwnenglish.blogspot.com/2017/10/jura-novit-curiae.html > accessed 26 May 2022.

55 Iannis F. Papageorgiou, ‘Η

Concept and Characteristics of a “Safe Third Country” after the EU-Turkey Joint Declaration. Reflections on the Decisions of the Plenary Session of the State Council 2347/2017 and 2348/2017’) in

The Council of State deemed Turkey as being compliant with the principles of international refugee law –56 stating that the applicants failed to prove a particular threat for their lives or freedom, and that Turkey implemented a generalised detention policy.57 The Council of State, secondly, analysed whether an application for asylum can be granted under the protection of the Geneva Convention. Taking into consideration that Turkey had ratified the Geneva Convention with a geographical reservation, the Council of State found that equivalent protection is granted there.58 Contrary to the majority, two judges had dissenting opinions in which they criticise the credibility of the sources that support Turkey as a safe third country.59 The last criterium analysed was the degree of connection between the applicant and the safe third country. According to the Council of State, this requirement was complied with, since, upon examination of the duration of the stay and the third country’s proximity to the country of origin, transit through Turkey suffices as a connection.60 One judge, however, expressing a dissenting opinion, believes that a non-voluntary stay of the applicant for 1.5 months does not comply with the requirements in article 38(2)(a) APD.61

For this research, however, the most interesting critique of the Council of State’s assessment is that it was done “arbitrarily […] in violation of human rights”.62 As seen above, the assessment based on the Asylum Procedures Directive and the assessment made by the Council of State reached the conclusion that Turkey is a safe third country based on its own interpretation of article 38 and of the EU Charter. According to article 267 TFEU, when a last instance court has doubts on the interpretation of EU law, a preliminary reference must be made

Προσφύγων και Αλλοδαπών (Yearbook of Refugee and Foreign Law 2016-2017) (Εκδόσεις Αντ. Ν. Σάκκουλα 2020) (Publications Ant. N. Sakkoula 2020) 433

56 Greek Council of State, Joint Decisions 2347/2017 and 2348/2017, 22 September 2017, paras 52-53.

57 Angeliki Tsiliou, ‘When Greek Judges Decide whether Turkey is a Safe Third Country without Caring Too Much for EU Law’ (EU Immigration and Asylum Law and Policy, 29 May 2018) < https://eumigrationlawblog.eu/when-greek-judges-decide-whether-turkey-is-a-safe-third-country-withoutcaring-too-much-for-eulaw/#:~:text=The%20Supreme%20Administrative%20Court%20of%20Greece%20was%20essentially%20aske d%20to,violate%20international%20and%20European%20law > accessed 26 May 2022.

58 According to the Council of State, article 38 Asylum Procedures Directive does not explicitly require that the third country in question shall operate in compliance with the Geneva Convention as a whole but it is sufficient what equivalent protection is granted. See Greek Council of State, Joint Decisions 2347/2017 and 2348/2017, 22 September 2017, paras 54-56.

59 Greek Council of State, Joint Decisions 2347/2017 and 2348/2017, 22 September 2017, para 60; ‘Jura Novit Curiae? A Critical Review of the Judgments 2347/2017 and 2348/2017 by the Plenary of the Council of State’ (Group of Lawyers for the Rights of Migrants and Refugees, 25 October 2017) < http://omadadikigorwnenglish.blogspot.com/2017/10/jura-novit-curiae.html > accessed 26 May 2022.

60 Greek Council of State, Joint Decisions 2347/2017 and 2348/2017, 22 September 2017, para 61.

61 ibid, para 62..

62 Minos Mouzourakis, ‘Greece Arbitrarily Deems Turkey a “Safe Third Country” in Flagrant Violation of Rights” (RSA-Refugee Support Aegean, 1 March 2022) < https://rsaegean.org/en/turkey-safe-third-country/ > accessed 26 May 2022.

to the CJEU. The Greek Council of State has decided, however, on the smallest possible majority of 13-12 not to refer any preliminary question to the CJEU, reasoning its decision by stating that “there is no reasonable doubt as to the meaning of article 38 of Directive 2013/32/EU”.63 No further explanation as to why there is no such doubt or how it resolved was presented

The decision not to refer a preliminary question is not only “bad news for the effectiveness of EU law”64 , but a referral could also potentially have had a great effect on all three scopes of the preliminary ruling procedure. Firstly, the fact that no preliminary question has been sent to the CJEU is a missed opportunity for the Court to take a position on key provisions of the APD,65 avoiding leaving this task to other bodies.66 In addition, a preliminary question would have given the CJEU a chance to comment on the meaning of article 18 of the EU Charter of Fundamental Rights concerning the right to asylum, with respect to the Geneva Convention.

Secondly, this judgement could have potentially impacted all Syrian refugees. Even if the assessment must be done on a case-by-case basis, the Appeal Committees decided to put on hold all the decisions on Syrian asylum seekers while awaiting the Council of State’s judgment, which clearly indicates that the joint decision would have been taken into consideration by lower courts in the application of the safe third country concept for refugees with Syrian nationality.67 In addition, leaving the concept not sufficiently clarified could lead to a more generalised use of the safe third country concept, which may cause a substantial

63 Greek Council of State, Joint Decisions 2347/2017 and 2348/2017, 22 September 2017, para 63.

64 Angeliki Tsiliou, ‘When Greek Judges Decide whether Turkey is a Safe Third Country without Caring Too Much for EU Law’ (EU Immigration and Asylum Law and Policy, 29 May 2018) < https://eumigrationlawblog.eu/when-greek-judges-decide-whether-turkey-is-a-safe-third-country-withoutcaring-too-much-for-eulaw/#:~:text=The%20Supreme%20Administrative%20Court%20of%20Greece%20was%20essentially%20aske d%20to,violate%20international%20and%20European%20law > accessed 26 May 2022.

65 European Council on Refugees and Exiles (ECRE), Asylum in Greece: A Situation beyond Judicial Control? [2021] 9 Legal Note available at < https://ecre.org/wp-content/uploads/2021/06/ECRE-Legal-Note-9-onAsylum-in-Greece-A-Situation-Beyond-Judicial-Control-June-2021.pdf > accessed 26 May 2022.

66 The Commission, through a communication has given a further interpretation of the such as the sufficient correlation requirement. See European Commission, Communication on the State of Play of Implementation of the Priority Actions under the European Agenda on Migration [2016] COM/2016/085 final.

67 ‘ΣτΕ: Ασφαλής τρίτη χώρα η Τουρκία’ (CoE: Turkey is a Safe Third Country) (Efsyn, 22 September 2017) < https://www.efsyn.gr/ellada/dikaiosyni/124567_ste-asfalis-triti-hora-i-toyrkia > accessed 26 May 2022.

denial of the right to asylum and concerning increases in the extra-territorialisation of asylum in the EU.68

Thirdly, the validity and scope of the EU-Turkey agreement could have been greatly affected by a ruling of the CJEU. The Joint Declaration has always been criticised for infringing international and European refugee law especially for the implicit acceptance that Turkey is a safe country for refugees.69 However, the Court of Justice has already expressed its lack of jurisdiction to rule on the legality of the agreement.70 According to the Court, this agreement was concluded by representatives of the Member States in their capacities as heads of states or governments and not as members of the European Council. Ruling on the Joint Declaration, therefore, would have clashed with the implied external powers doctrine set in ERTA in relation to international agreements between the EU and third countries.71 If the Council of State had submitted preliminary references, the Court could have, instead, indirectly ruled on the legal and political dimension of the agreement.

Lastly, a referral to the CJEU would also have forced the EU to reconsider its general position on international protection. Since 2015, the European Union seems to be shifting towards a more restrictive policy, in which the goal of the permanent resettlement of refugees has been set aside for a less welcoming policy that ensures only basic international protection. According to Papageourgiou, this shift has reached its culmination with the EU-Turkey Agreement.

του Συμβουλίου της Επικρατείας 2347/2017

και 2348/2017’ (‘The Concept and Characteristics of a “Safe Third Country” after the EU-Turkey Joint Declaration. Reflections on the Decisions of the Plenary Session of the State Council 2347/2017 and 2348/2017’) in Ύπατη Αρμοστεία του ΟΗΕ για τους Πρόσφυγες (UNHCR) (ed), Επετηρίδα Δικαίου Προσφύγων και Αλλοδαπών (Yearbook of Refugee and Foreign Law 2016-2017) (Εκδόσεις Αντ Ν Σάκκουλα 2020) (Publications Ant. N. Sakkoula 2020) 433.

69 ‘EU-Turkey Deal: A Shameful Stain on the Collective Conscience of Europe’ (Amnesty International, 17 March 2017) < https://www.amnesty.org/en/latest/news/2017/03/eu-turkey-deal-a-shameful-stain-on-thecollective-conscience-of-europe/ > accessed 26 May 2022.

70 Case T-192/16 NF v European Council [2017] ECLI:EU:T:2017:128; Case T-193/16 NG v European Council [2017] ECLI:EU:T:2017:129; Case T-257/16 NM v European Council [2016] ECLI:EU:T:2017:130.

71 Case C-22/70 Commission of the European Communities v Council of the European Communities [1971] ECLI:EU:C:1971:32; Paula García Andrade, ‘External Competence and Representation of the EU and its Member States in the Area of Migration and Asylum’ (EU Immigration and Asylum Law and Policy, 17 January 2018) < https://eumigrationlawblog.eu/external-competence-and-representation-of-the-eu-and-its-memberstates-in-the-area-of-migration-and-asylum/ > accessed 26 May 2022.

72 Iannis F. Papageorgiou,

και 2348/2017’ (‘The Concept and Characteristics of a “Safe Third Country” after the EU-Turkey Joint

With no preliminary reference submitted, a chance was missed to uphold the rule of law in Greece. The Greek government has de facto received the green light to push its political agenda on the matter, reinforcing the shift of responsibility to protect refugees to third countries and regulated by the EU-Turkey Statement.73 With a Ministerial decision, the Greek government has designated Turkey as a “safe third country” for families, men, women and children of five nationalities, including Syria.74 This regulatory act attempts to dismantle Greece’s obligation to assess asylum applications on their merits which, according to the Greek Council of Refugees, amounts to a violation of the rule of law, of the Greek Constitution, of its international obligation as well as EU law.75 The impact of this decision is significant: three of the nationalities concerned by the Ministerial decision have significantly high recognition rates for international protection. Syrian refugees, for example, in 91,6% of the cases had their asylum requests positively decided.76

Upon the adoption of the decision, an increase of 126% in dismissed applications has been registered.77 In addition, further restrictions on the access of asylum procedures have been introduced through Law 4825/202178 and Ministerial Decision 472687/202179. For example, it has made it impossible for non-EU nationals to get a national health case number and access

Declaration. Reflections on the Decisions of the Plenary Session of the State Council 2347/2017 and 2348/2017’) in Ύπατη Αρμοστεία του ΟΗΕ για τους Πρόσφυγες (UNHCR) (ed), Επετηρίδα Δικαίου Προσφύγων και Αλλοδαπών (Yearbook of Refugee and Foreign Law 2016-2017) (Εκδόσεις Αντ Ν Σάκκουλα 2020) (Publications Ant. N. Sakkoula 2020) 433.

73 Action for Education and Others, ‘Greece Deems Turkey “Safe”, but Refugees are not: The Substantive Examination of Asylum Applications is the Only Safe Solution for Refugees’ (ReliefWeb, 15 June 2021) < https://reliefweb.int/report/greece/greece-deems-turkey-safe-refugees-are-not-substantive-examination-asylumapplications > accessed 26 May 2022.

74 Joint Ministerial Decision (JMD) 42799/2021, Gov. Gazette 2425/Β/7-6-2021.

75 ‘Decision Declaring Turkey a “Safe Third Country” Brought before Greek Council of State’ (Greek Council for Refugee, 7 October 2021) < https://www.gcr.gr/en/news/press-releases-announcements/item/1823-decisiondeclaring-turkey-a-safe-third-country-brought-before-greek-council-of-state > accessed 26 May 2022.

76 ‘Asylum Statistics for 2020: A Need for Regular and Transparent Official Information’ (Refugee Support Aegean, 12 February 2021) < https://rsaegean.org/en/asylum-statistics-for-2020-a-need-for-regular-andtransparent-official-information/ > accessed 26 May 2022.

77 Action for Women and Others, ‘Letter to EC Commissioner Ms Ylva Johansson’ (Human Rights 360°, 8 March 2022) < https://www.humanrights360.org/joint-letter-to-ec-commissioner-ms-ylva-johansson/ > accessed 26 May 2022.

78 Νόμος 4825/2021 ‘Αναμόρφωση διαδικασιών απελάσεων και επιστροφών πολιτών τρίτων χωρών, προσέλκυση επενδυτών και ψηφιακών νομάδων, ζητήματα αδειών διαμονής και διαδικασιών χορήγησης

διεθνούς προστασίας, διατάξεις αρμοδιότητας Υπουργείου Μετανάστευσης και Ασύλου και Υπουργείου

Προστασίας του Πολίτη και άλλες επείγουσες διατάξεις’ (Law 4825/2021 ‘Reform of Deportation and Return Procedures of Third Country Nationals, Attraction of Investors and Digital Nomads, Residence Permit Issues and Procedures for Granting International Protection, Provisions of the Ministry of Immigration and Asylum and the Ministry of Civil Protection and Other Urgent Provisions’), [2021] Gov. Gazette A' 157/4-9-2021.

79 Joint Ministerial Decision (JMD) 472687/2021, Gov. Gazette 6246/Β/27-12-2021.

health care.80 This shows the government’s unwillingness to comply with its obligations while making ineffective any effort to remedy such systematic infringements through informal or diplomatic channels.81

Upon the analysis of the joint decision of the Greek Council of State, it must be acknowledged that if the preliminary procedure was employed to enforce EU law, it would have greatly impacted the preservation of the rule of law in Greece. In fact, if preliminary questions had been referred, the CJEU would have recognised the incongruences of Greek law with respect to the EU Asylum Acquis and Greece would have been obliged to amend its legislation, repeal the ministerial decisions and restore the rule of law. The rule of law being a layered concept, in which the rule of EU law in the Member States is needed to ensure the rule of law in the European Union, the restoration of the rule of law in Greece would have consequently also had an impact at an EU level. This also holds in relation to effects that preliminary questions might have had, due to the erga omnes effect, on the application of the Asylum Procedures Directive and EU-Turkey Agreement, which also impacts the preservation of the rule of law in the EU.

3. The Preliminary Ruling Procedure as a Tool for the Enforcement of EU Law: is it Working Properly?

Having assessed the role that the preliminary ruling procedure plays in the enforcement of EU law and preservation of the rule of law in the EU, it is important to assess whether, considering how it is regulated and how the mechanism concretely works, it is an effective measure.

3.1. The Effectiveness of the Preliminary Ruling Procedure for the Safeguard of the Rule of Law

As mentioned in section 2.1.1, at the heart of article 267 TFEU exists the principle of sincere cooperation. However, although this was intended in the Treaty to be a co-operation procedure, this is not self-evident in practice, especially when national judges abuse their discretion to refer preliminary questions. Opposed to the judicial empowerment thesis, the sustained

80 ‘The New Law on Asylum in Greece’ (NIEM All In For Integration, s.d.) < http://www.forintegration.eu/pl/the-new-law-on-asylum-in-greece > accessed 26 May 2022.

81 Minos Mouzourakis, ‘Greece Arbitrarily Deems Turkey a “Safe Third Country” in Flagrant Violation of Rights” (RSA-Refugee Support Aegean, 1 March 2022) < https://rsaegean.org/en/turkey-safe-third-country/ > accessed 26 May 2022.

resistance theory sheds light on the reasons why submitting a preliminary reference to the CJEU can be undesirable: the procedure regulated in article 267 TFEU challenges the domestic judicial control over policy outcomes;82 legal integration, prompted by the preliminary ruling procedure, may undermine legal certainty and coherence in the Member States;83 and scepticism and political pressure from Member State governments further discourages courts from submitting.84

The lack of cooperation may become so evident that the conflict between national courts and the CJEU can even be reduced to a matrix of a non-cooperative game.85 Bobek, studying such phenomenon, has applied the game theory of Nash equilibrium, according to which their equilibrium point is where neither player can do better by choosing a strategy different from that of the other.86 If we consider the assertion of the full and unconditional effectiveness of EU law as payoff for the CJEU, and no referral of preliminary questions to the CJEU at all for the national courts,87 the equilibrium point would be upholding to some extent the effectiveness and the primacy of EU law while still leaving some strategic space to have discretion on the referral of preliminary rulings.88 This non-cooperative sentiment may, however, hinder the application of the preliminary ruling procedure and endanger the respect of the rule of law. This means that, if it is not activated, the great potential this procedure might have on the European judicial system is not unlocked.

Therefore, it is necessary to evaluate the effectiveness of the preliminary ruling procedure. To do so, emphasis must be placed on the factors that might have influenced a noncooperative sentiment and, therefore, resulted in resistance to referring preliminary questions. To identify these factors, three different aspects within the unfolding of the procedure are to be analysed: 1) the possibility to access the procedure; 2) the likelihood for the procedure to

82 Jonathan Golub, ‘The Politics of Judicial Discretion: Rethinking the Interaction between National Courts and the European Court of Justice’ [1996] 19/2 West European Politics 360.

83 Renhaud Dehousse, The European Court of Justice: The Politics of Judicial Integration (1st French edition Montchrestien 1994, Macmillian 1998).

84 Marlene Wind, Dorte Sindbjerg Martinsen and Gabriel Pons Rotger, ‘The Uneven Legal Push for Europe: Questioning Variation when National Courts go to Europe’ [2009] 10/1 European Union Politics 63.

85 Michal Bobek, ‘On the Application of European Law in (not Only) the Courts of the New Member States: “Don’t do as I Say?”’ [2008] 10 Cambridge Yearbook of European Legal Studies 1.

86 John Nash, ‘Non-Cooperative Games’ [1951] 54/2 2 Annals of Mathematics 286.

87 Urška Šadl, ‘The Role of Effet Utile in Preserving the Continuity and Authority of European Union Law: Evidence from the Citation Web of the Pre-Accession Case Law of the Court of Justice of the EU’ [2015] 8/1 European Journal of Legal Studies 18.

88 Michal Bobek, ‘On the Application of European Law in (not Only) the Courts of the New Member States: “Don’t do as I Say?”’ [2008] 10 Cambridge Yearbook of European Legal Studies 1.

activate and 3) the enforcement mechanisms in place in case of failure to refer a preliminary question.

3.1.1. The Possibility to Access the Procedure

The first factor to consider when assessing the effectiveness of the referral of a preliminary question is the possibility to access the procedure enshrined in article 267 TFEU. As mentioned, the preliminary reference has an indirect role in the European legal system. Individuals cannot present a question directly to the CJEU but need to go through national proceedings – national judges are the sole actors able to refer a question to the CJEU. For this reason, in the following section the discretion of national judges will be analysed. In the past years, a new branch of research has started taking into consideration national courts as reactive institutions for social and political change. 89 Therefore, the role of the litigants and the concept of legal mobilisation demand further analysis.

3.1.2. The Discretion of National Judges

How judges are meant to act in case of a preliminary reference is already enshrined in article 267 TFEU. According to the Treaty, courts “against whose decision there is not judicial remedy under national law”90 are obliged to make a referral, while lower instance courts have discretion on whether to refer it or not.

The CJEU has, however, produced case law though which some exceptions are provided. With regards to lower courts, according to Foto-Frost, judges are obliged to refer a preliminary question when the validity of EU law is at stake.91 With regards to last instance courts, three situations have been identified in CILFIT in which there is no obligation to refer:92 firstly, when the court ruling is irrelevant for the resolution of the dispute or it would not be conclusive;93 secondly, when the same question has already been answered by the CJEU (acte

89 Virginia Passalacqua, ‘Legal Mobilisation via Preliminary Reference: Insights from the Case of Migrant Rights’ [2021] 58/3 Common Law Market Law Review 751.

90 Consolidated Version of the Treaty on the Functioning of the European Union [2012] OJ C 326/47, art 267

91 Case 314/85 Foto-Frost v Hauptzollamt Lübeck-Ost. [1987] ECR 04199.

92 Case 283/81 Srl CILFIT and Lanificio di Gavardo SpA v Ministry of Health [1982] ECR 03415.

93 Takis Tridimas, ‘Knocking on Heaven’s Door: Fragmentation, Efficiency and Defiance in the Preliminary Reference Procedure’ [2003] 40/1 Common Market Law Review 9.

éclairè doctrine);94 and thirdly, when the application of EU law is so obvious that no other interpretation could reasonably be expected from the CJEU (acte clair doctrine).95

The latter situation has, however, in practice not been properly employed: such vague justification allows judges, in fact, to claim that beyond reasonable doubt no different interpretation would be given by the ECJ even when this is not the case.96 For this reason, the Court has further explicated, most recently in Consorzio Italian Management and Catania Multiservizi SpA v Rete Ferroviaria Italiana SpA,97 that the absence of reasonable doubt must be assessed in light of the characteristic features of EU law, the particular difficulties to which the interpretation of the latter gives rise, as well as the risk of divergences in judicial decisions within the EU. This entails that when last instance courts do not refer according to the acte clair doctrine they, firstly, do not have reasonable doubt that the interpretation proposed by the CJEU is not equally obvious to other last instance courts of the Member States and to the CJEU. Secondly, last instance courts must have vigilantly assessed diverging approaches within the case law on the matter in question so to rule out any doubt on the correct interpretation of EU law. Thirdly, last instance courts that decide not to refer a preliminary question to the CJEU shall reason the decision not to refer any preliminary question according to the CILFIT criteria.98 Even if such further clarification from the CJEU on the act clair doctrine contributes to a more correct use of the CILFIT criteria by national courts, no substantial change to this line of case law has taken place.

Article 267 TFEU leaves, therefore, a great room for discretion to national judges on whether to refer a preliminary ruling question. Moreover, where there is an obligation to refer, last instance courts circumvent the acte claire and the acte éclairè doctrine by poorly applying it and, until Consorzio Italian Management, without justifying the decision not to refer, undermining even further the effectiveness of the preliminary ruling mechanism.

94 Case 283/81 Srl CILFIT and Lanificio di Gavardo SpA v Ministry of Health [1982] ECR 03415, para 21.

95 Case 66/80 International Chemical Corporation v Amministrazione delle Finanze dello Stato [1981] ECR 01191; Case C-337/95 Parfums Christian Dior SA and Parfums Dior BV v Evora BV [1997] ECR I-06013.

96 Not only such practice permits for circumventing the obligation to refer for last instance courts as drafted in the TFEU, but lower instance courts have also been reported to base their discretion not to refer questions to the CJEU on such justification. See Marlene Wind, Dorte Sindbjerg Martinsen and Gabriel Pons Rotger, ‘The Uneven Legal Push for Europe: Questioning Variation when National Courts go to Europe’ [2009] 10/1 European Union Politics 63.

97 Case C-561/19 Consorzio Italian Management and Catania Multiservizi SpA v Rete Ferroviaria Italiana SpA. ECLI:EU:C:2021:799.

98 Thomas Wahl, ‘CJEU Clarifies Duty to Refer for National Last Instance Courts’ (Eucrim, 26 October 2021) < https://eucrim.eu/news/cjeu-clarifies-duty-to-refer-for-national-last-instance-courts > accessed 26 May 2022.

3.1.3. Private Parties and Legal Mobilisation

If we consider the preliminary ruling procedure as an indirect enforcement tool, focus should be put on the litigants and the role that legal mobilisation has in influencing national judges’ discretion.99 For a private party to use the preliminary reference to enforce EU law against a Member State, there needs to be an existing case from which such reference may arise.100 Three situations that allow to do so are: (1) where private parties litigate against public authorities;

(2) where a real conflict arises between two private parties in which one party invokes national law and the other, a conflicting EU law measure and (3) where a conflict arises between two parties, and they have a joint interest in having a legal issue referred.

101

However, it must be kept in mind that the Foglia principle applies,102 according to which any case contrived solely for the sake of having a preliminary question referred to the CJEU is inadmissible.103 Therefore, no case can be theoretically constructed to enforce EU law through the preliminary ruling procedure and, consequently, preserve the rule of law.

As seen in section 2.2, national courts are the sole competent authority that can decide whether to make a preliminary reference. However, private parties may induce courts to make a reference in three ways: 1) by putting forward convincing arguments that a reference will be useful or necessary to decide the case; 2) by presenting the case in such a way that the EU law element is decisive; 3) by designing the case so that the national court will be obliged to refer under EU law. This latter case can happen 1) where a last instance court is required to rule on the interpretation of EU law and the acte clair doctrine does not apply; 2) where the ruling of a national court entails the invalidation of an EU measure; 3) when the national court’s intended

99 Monika Glavina, ‘To Submit or not to Submit - That is the (Preliminary) Question: Explaining National Judges’ Reluctance to Participate in the Preliminary Ruling Procedures’ [2020] 16/1 Croatian Yearbook of European Law and Policy 25

100 Marc Galanter, ‘The Radiating Effects of Courts’ in Keith O. Boyum and Lynn M. Mather (eds), Empirical Theories about Courts (Longman 1983) 117.

101 Morten Broberg, ‘Preliminary References as a Means for Enforcing EU Law’ in András Jakab and Dimitry Kochenov (eds), The Enforcement of EU Law and Values: Ensuring Member States’ Compliance (Oxford University Press 2017) 99.

102 Case 104/79 Pasquale Foglia v Mariella Novello [1980] ECR 00745 and case 244/80 Pasquale Foglia v Mariella Novello [1981] ECR 03045.

103 Morten Broberg, ‘Preliminary References as a Means for Enforcing EU Law’ in András Jakab and Dimitry Kochenov (eds), The Enforcement of EU Law and Values: Ensuring Member States’ Compliance (Oxford University Press 2017) 99.

ruling departs from the CJEU’s interpretation.104 Nevertheless, this does not mean that the court will necessarily comply with the obligation to refer.

Due to the great influence that litigants may have in the activation of the preliminary ruling procedure, phenomena like legal mobilisation have arisen. This concept has been described as “the use of law or courts to achieve social change”105 and it may be approached both on a theoretical and an empirical level.106 As far as the former approach, when shifting the focus from courts to litigants, national courts are seen as reactive institutions. From a more empirical perspective, litigants may use the preliminary procedure to achieve socio-political goals.107 This bottom-up procedure becomes particularly relevant when collective actors come into play, even if most of the time they are not manifest in court proceedings.108 This is justified by the hostility of the CJEU towards collective action and the necessity of collective actors to find informal strategies to participate in litigation at the EU level.109

According to Passalacqua, three factors in particular influence the emergence of legal mobilisation via the preliminary reference procedure: 1) altruism, 2) Euro-expertise, and 3) an open EU legal opportunity structure.110 The first factor, altruism, comes into play when someone other than the beneficiary of the political goal mobilises the court, in light of a shared political goal. Euro-expertise, meanwhile, is the knowledge of the EU legal system and the litigation possibilities it provides in comparison to national litigation. EU litigation can be conducted with more limited financial means than national courts proceedings, but, on the other hand, calls for more extensive legal knowledge. Here, collective actors can again play a strong

104 Morten Broberg, ‘Preliminary References as a Means for Enforcing EU Law’ in András Jakab and Dimitry Kochenov (eds), The Enforcement of EU Law and Values: Ensuring Member States’ Compliance (Oxford University Press 2017) 99.

105 Lisa Vanhala, Legal Mobilization (Oxford University Press 2012).

106 Virginia Passalacqua, ‘Legal Mobilisation via Preliminary Reference: Insights from the Case of Migrant Rights’ [2021] 58/3 Common Law Market Law Review 751.

107 Bruno De Witte, ‘The Impact of Van Gend en Loos on Judicial Protection at European and National Level: Three Types of Preliminary Questions’ in Antonio Tizzano, Julianne Kokott and Sacha Prechal (eds), 50th Anniversary of the Judgment in Van Gend en Loos 1963-2013 (Conference Proceedings Luxembourg 13 May 2013) (Office des Publications de l’Union Européenne 2013) 93.

108 EUI TV, ‘The Mobilization of European Law (MobEL): Origins, Developments and Perspectives’ (YouTube, 22 January 2022) < https://www.youtube.com/watch?v=f2NZxmNNiIw > accessed 26 May 2022; Virginia Passalacqua, ‘Legal Mobilisation via Preliminary Reference: Insighs from the Case of Migrant Rights’ [2021] 58/3 Common Law Market Law Review 751.

109 Harm Schepel and Erhard Blankenburg, ‘Mobilizing the European Court of Justice’ in Grainne De Burka and Joseph H.H. Weiler (eds), The European Court of Justice (Oxford University Press 2001) 9; Virginia Passalacqua, ‘Who Mobilizes the Court? Migrant Rights Defenders before the Court of Justice of the EU’ [2022] 15/2 Law and Development Review 1.

110 Virginia Passalacqua, ‘Legal Mobilisation via Preliminary Reference: Insighs from the Case of Migrant Rights’ [2021] 58/3 Common Law Market Law Review 751.

role, being able to provide free legal aid. Lastly, an open EU legal opportunity structure refers to all other external factors influencing the possible actions of collective actors. Firstly, there must be available legal stock, namely, EU law must present a comparative advantage to national law. Secondly, access to the CJEU needs to be granted, which entails having a judge that is willing to refer a preliminary ruling. Lastly, judicial receptivity plays a major role, which identifies in Euro-expertise still the most relevant trait in national judges that favours legal mobilisation.111

In light of the legal framework built around the preliminary ruling procedure, it can be concluded that private citizens are not able to access the procedure, but rather, its activation is solely dependent upon national judges’ discretion. However, the influence of litigants over judges can play an important role, especially when cases are brought by collective actors. This, however, needs to be addressed to an EU-friendly judge since judicial receptivity is a fundamental condition for litigants’ influence to be effective in obtaining a preliminary reference. Thus, power is ultimately with national judges, leaving private actors very little possibility to activate the procedure.

3.1.4. Likelihood for the Procedure to be Activated

Contrary to what has been dictated by the TFEU and CJEU jurisprudence, national judges still have, in most cases, great discretion on whether to refer a case to the CJEU. Such discretion results in evident cross-national variations in the rate of referral of preliminary questions among Member States.

According to the CJEU Judicial Activity report of 2020, the number of preliminary references from each Member State varies substantially, with Germany having referred 139 preliminary questions out of 556 in the whole EU in 2020, while countries such as Cyprus, Malta and Greece have sent overall only between 3 or no preliminary questions at all.112 In this section, therefore, the likelihood for the preliminary ruling procedure to be activated will be analysed by giving an overview of all the non-legislative factors that may influence the discretion of national judges to refer.

111 Virginia Passalacqua, ‘Legal Mobilisation via Preliminary Reference: Insights from the Case of Migrant Rights’ [2021] 58/3 Common Law Market Law Review 751.

112 Court of Justice of the European Union, Annual Report 2020. Judicial Activity (Court of Justice of the European Union/Communications Directorate-Publications and Electronic Media Unit 2021).

3.1.5. Other Factors Influencing the Discretion of National Judges

Rich social science literature has been produced over the years to assess the factors that play a role when judges decide upon referring preliminary questions. The independent variable of such research on the geographical application of EU law is the probability of referring a preliminary question to the CJEU in case of interpretative doubts and, to assess so, the literature has identified multiple dependent variables.113 Depending on the level at which judges’ actions are considered, whether as individuals, part of a sub-national region or part of a country, the literature can be classified into three different approaches.

The first category focuses on the national level and how the specific characteristics of Member States can play a role in the rate of referrals per state. The literature regarding the national level points out that different variables can be influential: intra EU-trade,114 legal culture,115 Member State litigation rates,116 country size and population levels,117 social capital and civic engagement,118 material resources,119 diffusion,120 spatial clustering,121 and public support for EU membership.122

The second category, which focuses on the sub-national level, is mainly represented by the work of Kelemen and Pavone.123 According to them, using countries as a unit of analysis is problematic because the different factors taken into consideration are very unlikely to be uniformly distributed within a state. In their work, Kelemen and Pavone have taken into

113 Monika Glavina, ‘To Submit or not to Submit - That is the (Preliminary) Question: Explaining National Judges’ Reluctance to Participate in the Preliminary Ruling Procedures’ [2020] 16/1 Croatian Yearbook of European Law and Policy 25

114 Walter Mattli and Anne-Marie Slaughter, ‘Revisiting the European Court of Justice’ [1998] 52/1 International Organization 177.

115 Maarten Vink, Monica Claes and Christine Arnold, ‘Explaining the Use of Preliminary Reference by Domestic Courts in EU Member States: A Mixed-Method Comparative Analysis’ [2009] (Unpublished).

116 ibid.

117 Alec Stone Sweet and Thomas L. Brunell, ‘The European Court and the National Courts: A Statistical Analysis of Preliminary References, 1961-95’ [1998] 5/1 Journal of European Public Policy 66.

118 Rachel A. Cichowski, The European Court and the Civil Society: Litigation, Mobilization and Governance (Cambridge University Press 2007). The greater the levels of civic engagement within a region the higher the rate of references to the ECJ originating from courts in that region.

119 John D. McCarthy and Mayer N. Zald, ‘Resource Mobilization and Social Movements: A Partial Theory’ [1977] 82/6 American Journal of Sociology 1212.

120 R. Daniel Kelemen and Tommaso Pavone, ‘Mapping European Law’ [2016] 23/8 Journal of European Public Policy 1118.

121 ibid.

122 Clifford J. Carrubba and Lacey Murrah, ‘Legal Integration and Use of the Preliminary Ruling Process in the European Union’ [2005] 59/2 International Organization 399.

123 R. Daniel Kelemen and Tommaso Pavone, ‘Mapping European Law’ [2016] 23/8 Journal of European Public Policy 1118.

consideration seven variables identified by national level research (trade, population, domestic litigiousness, social capital and civic engagement, materials resources, diffusion and spatial clustering) and have drawn some conclusions challenging these hypotheses when applied at sub-national level. For example, the association between domestic litigation rates and EU litigation rates differs across regions, showing that a cross-national analysis can be biased. Furthermore, the diffusion of reference activity, when analysed at sub-national level, cannot be explained by changes in population, economic resources, trade, or social capital but tends to be spatially clustered by issue area.124

The third category focuses on individual judges. According to Glavina, not only are the majority of references the output of individual judges but the failure of referring a preliminary question shall be attributed to them.125 For the purposes of this research, judges are seen as public social workers who have varying resources available to process and, in order to decide cases, are influenced by different factors,126 such as workload,127 experience with and knowledge of EU law,128 the level of the court, attitudes towards the EU and EU law, court resources and parties’ input.129

Additionally, from Glavina’s research, two different contexts seem to have a strong effect on the choice to refer a preliminary question to the CJEU. Firstly, the individual profiles of judges play an important role as they are constrained by several factors: policy outcomes consistent with their ideological viewpoint, lack of knowledge of foreign languages, as well as lack of experience with the procedure and the consequent time-consuming considerations, reputational costs, leisure time and legal rules. On the other side, the institutional context in which these judges operate plays also an important role. In fact, the decision-making process of individual judges in case of the need for clarification of EU law is influenced by several

124 R. Daniel Kelemen and Tommaso Pavone, ‘Mapping European Law’ [2016] 23/8 Journal of European Public Policy 1118.

125 Monika Glavina, ‘To Submit or not to Submit - That is the (Preliminary) Question: Explaining National Judges’ Reluctance to Participate in the Preliminary Ruling Procedures’ [2020] 16/1 Croatian Yearbook of European Law and Policy 25

126 See Lee Epstein, William M. Landes and Richard A. Posner, The Behaviour of Federal Judges: A Theoretical and Empirical Study of Rational Choice (Harvard University Press 2013).

127 Arthur Dyevre, Monika Glavina and Angelina Atanasova, ‘Who asks Most? Institutional Incentives and Referral Activity in the European Union Legal Order’ (Scholarly Paper 2017).

128 Juan A. Mayoral, Urszula Jaremba and Tobias Nowak, ‘Creating EU Law Judges: The Role of Generational Differences, Legal Education and Judicial Career Paths in National Judges' Assessment Regarding EU Law Knowledge’ [2014] 21/8 Journal of European Public Policy 1120.

129 Monika Glavina, ‘To Submit or not to Submit - That is the (Preliminary) Question: Explaining National Judges’ Reluctance to Participate in the Preliminary Ruling Procedures’ [2020] 16/1 Croatian Yearbook of European Law and Policy 25.

factors related to this. These include workload, quotas, poor court resources, lack of a systematic and continuous education of EU law, the propensity of last instance courts to submit preliminary references to the CJEU, the attitudes of their audience as well as recognition for the effort invested in sending a preliminary question to the CJEU.

What can be concluded by this extensive socio-political research is that there are multiple and variegated factors that influence national judges when deciding upon a referral of a preliminary ruling. Such high degree of influence added to the possibility to circumvent the CILFIT criteria and the general tendency towards not sending preliminary rulings to the CJEU, makes it very unlikely that the procedure is activated.

3.1.6. Enforcement in Case of Failure to Activate the Procedure

As the previous sections have pointed out, the preliminary ruling procedure is neither easily accessible to private citizens nor is it likely that the national judges activate it. Consequently, it is reasonable to expect that the procedure, as enshrined in the Treaty, can be enforced by legal remedies when the obligation to refer is not complied with. Therefore, in this section, the legal consequences that arise upon the failure to refer a preliminary reference will be analysed. Focus will be placed, in particular, on the different levels within the European judicial system and the effective possibility for such remedies to arise.

3.1.7. Legal Consequences for the Failure to Refer a Preliminary Question

In the TFEU, no specific sanction is envisaged if national courts fail to refer a preliminary question to the CJEU. However, failure to comply with article 267 TFEU may have consequences on three different levels.130

At the national level, the decision of the national judge can be subject, firstly, to a review by the national Constitutional Court.131 Failure to comply with the obligation to present a preliminary ruling procedure can be constructed as a violation of various constitutional principles such as the right to lawful judge and the right to access to court, which, more

130 Edita Turičnik, ‘Legal Consequences for not Referring a Question for Preliminary Ruling’ [2014] 69/9-10 Pravnik 603.

131 BVerfGE 73, 339 [1987] 3 CMLR 225.

generally, fall within the right to fair trial and to the right to judicial protection.132 However, this aforementioned remedy can be used only if three conditions are satisfied: firstly, there must be a constitutional court which reviews constitutionality separately from the supreme court; secondly, the constitutional court must be able to review decisions of last instance courts in the form of a constitutional complaint filed by an individual; lastly, the right to a lawful judge or the more general right to a fair trial must be enshrined in the judicial system.133 Nevertheless, such a review can be performed only to the extent that the application was manifestly unjustifiable, excluding, therefore, procedural mistakes.134 Such a remedy is, however, not available in all Member States of the EU and it is solely up to the domestic systems that envisage such a review to activate it.

Secondly, damages proceedings can be initiated at the national level for the failure of a national Supreme Court to comply with EU law. According to the principle of State liability as established in Francovich135 and in Brasserie de Pȇcheur, 136 an individual can claim damages for the infringement of EU law in front of national courts if three criteria are fulfilled: firstly, the law must be intended to confer rights on individuals; secondly, the breach must be sufficiently serious; thirdly, there must be a causal link between the breach and the damage. Such a possibility also applies to breaches by the judiciary if there is a manifest infringement of EU law. As mentioned in Köbler, non-compliance with the obligation imposed by article 267 TFEU falls within such criterion.137 However, in Traghetti del Mediterraneo SpA the CJEU has asserted that when last instance courts breach EU law by interpreting provisions of law or assessing facts or evidence, this precludes any State liability.138 This greatly restricts the scope of this remedy, making it possible, in relation to a failure to refer a preliminary question, only when there is an intentional fault and serious misconduct.139 At the EU level, the sole body that is entitled to act upon a failure to comply with article 267 TFEU is the European Commission,

132 Markéta Navrátilová, ‘The Preliminary Ruling before the Constitutional Courts’ in Vladimír Tyč (ed), International and European Dimension of Law Applied by Institutions of Member States (Masaryk University 2008) 695.

133 Edita Turičnik, ‘Legal Consequences for not Referring a Question for Preliminary Ruling’ [2014] 69/9-10 Pravnik 603.

134 ibid.

135 Joined cases C-6/90 and C-9/90 Andrea Francovich and Danila Bonifaci and Others v Italian Republic [1991] ECR I-05357.

136 Joined cases C-46/93 and C-48/93 Brasserie du Pȇcheur SA v Federal Republic of Germany and The Queen v Secretary of State for Transport, ex parte Factortame Ldt and Others [1996] ECR I-01029.

137 Case C-224/01 Gerhard Köbler v Republik Österreich [2003] ECR I-10239, para 55.

138 Xavier Groussot and Timo Minssen, ‘Res Judicata in the Court of Justice Case-Law: Balancing Legal Certainty with Legality?’ [2007] 3 European Constitutional Law Review 385.

139 Case C-173/03 Traghetti del Mediterraneo SpA v Repubblica italiana [2006] ECR I-05177..

by bringing an infringement procedure in front of the CJEU according to article 258 TFEU. However, there is no obligation for the Commission to bring such action against a Member State: in fact, the Commission has full discretion on whether to initiate proceedings, having identified the infringement through its own investigation or upon complaints from citizens, businesses or other stakeholders.140 However, such action has rarely been initiated by the Commission in the past in relation to a breach of article 267 TFEU: in 2004 the Commission presented a letter of formal notice to Sweden;141 in 2018, for the first time, the CJEU ruled that the French Conseil d’État breached EU law for not making a preliminary reference regarding the interpretation of EU law.142 This reluctance can be explained by the fear of the CJEU to have such rulings perceived as an attempt to undermine the independence of the last instance courts.143 The CJEU and national courts are in a horizontal relationship based on close cooperation.144

Lastly, at the international level, proceedings for breaches of article 6 ECHR can be brought in front of the European Court of Human Rights.145 As it has been mentioned, the failure to refer a preliminary question to the CJEU can be seen as a breach of the right to a fair trial which, in the ECHR, is regulated in article 6. However, the ECtHR has ruled in Coëme and Others v Belgium that the Strasbourg court does not guarantee any right to have a case referred146, and moreover, article 6 ECHR can only come into play where the refusal appears arbitrary.147 It is the practice of the ECtHR that this latter requirement is to be interpreted restrictively for exceptional circumstances.148 This can also be easily deduced from Canela Santiago v Spain,149 which explains why most of the applications that have been presented on

140 Case 247/87 Star Fruit Company SA v Commission of the European Communities [1989] ECR 00291, para 11.

141 Niels Fenger and Morten P. Brober, ‘Finding Light in the Darkness: On the Actual Application of the Acte Clair Doctrine’ [2011] 30/1 Yearbook of European Law 180.

142 Case C-416/17 European Commission v French Republic [2018] ECLI:EU:C:2018:811.

143 Frans Vanistendael, ‘Consequences of the Acte Clair Doctrine for the National Courts and Temporal Effects of an ECJ Decision’ in Ana Paula Dourado and Ricardo da Palma Borges (eds), The Acte Clair in EC Direct Tax Law (IBFD 2008) 157.

144 Court of Justice of the European Union, ‘Recommendations to National Courts and Tribunals in Relation to the Initiation of Preliminary Ruling Proceedings’ [2018] OJ C257/01.

145 Case C-224/01 Gerhard Köbler v Republik Österreich [2003] ECR I-10239, Opinion of AG Léger

146 Coëme and Others v Belgium ECHR 2000-VII, para 114; Dotti v Italy Reports 1997-II.

147 André Desmois v France ECHR 2001-XI, para 2; Peter Moosbrugger v Austria App no 44861 (ECtHR, 25 January 2000). para 2; Coëme and Others v Belgium ECHR 2000-VII, para 114; Canela Santiago v Spain App no 60350/00 (ECtHR, 4 October 2001); Bakker v Austria App no 43454/98 (ECtHR, 10 April 2003), para 2.

148 Council of Europe/European Court of Human Rights, Practical Guide on Admissibility Criteria (European Court of Human Rights 2022).

149 Canela Santiago v Spain App no 60350/00 (ECtHR, 4 October 2001).

the matter were ruled inadmissible.150 Upon consideration of the feasibility of remedies against the failure to refer a preliminary ruling, the legal protection provided is “far from ideal”.151 However, just the possibility of any type of remedy works as a deterrent and may be used to remind judges not to abuse of the CILFIT criteria.152

Taking into consideration these three parameters, it is evident that the preliminary ruling procedure is not effective as a tool of enforcement of EU law and, consequently, for the preservation of the rule of law. In fact, access to the procedure is reserved only to national judges, who themselves are influenced by a great number of factors, both internal as well as external. In addition, practically no enforcement mechanism is activated upon failure to refer preliminary questions which allows for undisturbed circumvention of the obligation to refer, enshrined in article 267 TFEU. In the following section, such analysis will be applied to the joint decision of the Greek Council of State.

3.2. To Refer or not to Refer: What has gone wrong?

If the three factors identified to assess the efficiency of the preliminary ruling procedure are applied in this case, the Joint Decisions 2347/2017 and 2348/2017 of the Greek Council of State represent a perfect example of the inefficiency of the preliminary ruling system in the European Union. With regards to the access to the procedure, the phenomenon of legal mobilisation must be identified as having an important role. In fact, this case was brought by three NGOs: the Refugee Support Aegean,153 the Greek Council of Refugees (GCR) and the Lawyers’ Group for Refugee and Migrant Rights.154 This is not uncommon in migration cases: refugees do not have the financial resources to bring such cases to court, especially when they reach last instance courts.155 Moreover, in this case, the applicants played an active role in

150 Edita Turičnik, ‘Legal Consequences for not Referring a Question for Preliminary Ruling’ [2014] 69/9-10 Pravnik 603.

151 ibid

152 ibid.

153 Minos Mouzourakis, ‘Greece Arbitrarily Deems Turkey a “Safe Third Country” in Flagrant Violation of Rights’ (RSA-Refugee Support Aegean, 1 March 2022) < https://rsaegean.org/en/turkey-safe-third-country/ > accessed 26 May 2022.

154 Iannis F. Papageorgiou, ‘‘Η έννοια και τα χαρακτηριστικά της ‘ασφαλούς τρίτης χώρας’ μετά την Κοινή Δήλωση ΕΕ-Τουρκίας° Σκέψεις για τις αποφάσεις της Ολομέλειας του

Συμβουλίου της Επικρατείας 2347/2017

και 2348/2017’ (‘The Concept and Characteristics of a “Safe Third Country” after the EU-Turkey Joint Declaration. Reflections on the Decisions of the Plenary Session of the State Council 2347/2017 and 2348/2017’) in Ύπατη Αρμοστεία του ΟΗΕ για τους Πρόσφυγες (UNHCR) (ed), Επετηρίδα Δικαίου

Προσφύγων και Αλλοδαπών (Yearbook of Refugee and Foreign Law 2016-2017) (Εκδόσεις Αντ. Ν. Σάκκουλα 2020) (Publications Ant. N. Sakkoula 2020) 433.

155 Virginia Passalacqua, ‘Legal Mobilisation via Preliminary Reference: Insights from the Case of Migrant Rights’ [2021] 58/3 Common Law Market Law Review 751.

requesting the courts, including at the Appeals Committees level, to send questions for a preliminary ruling.156 Even though, at the first and second instance, such a request was not given much attention, the majority that voted for the Council of State not to refer any preliminary question was the smallest one possible. It is not unrealistic to believe, therefore, that part of the reason that twelve judges had dissenting opinions was due to them being influenced by the applicant’s request.

With regards to the factors influencing the discretion of the judges, two different aspects must be pointed out. Firstly, the domestic judicial reality may have influenced the propensity of the judges to consider using article 267 TFEU. The Greek last instance courts are known to be reluctant to refer matters to the CJEU. Especially on matters concerning asylum, Greece is one of the Member States that use the CJEU machinery the least.157 Moreover, this judgment was a highly politicised case and has been influenced by political pressures, both domestically as well as at the European level.158

In not referring any question to the CJEU and leaving certain questions unanswered, this judgment has two main effects. Firstly, having asserted that Turkey is a safe third country, an examination of the application on its merits is no longer necessary. This reduces the administrative burden and shortens the asylum procedure. Secondly, it works as a deterrent to appeals, especially when the rejection is accompanied by expulsion decisions.159 The second aspect influencing the judges’ discretion is, according to Papageorgiou, that the Council of State has decided for a more political reading of the EU-Turkey Agreement rather than a more doctrinal one, in order to avoid raising questions that would prejudice the legality or the effective enforcement of the agreement.160

156 Interview with Alexandros Konstantinou, Attorney at Law, Greek Council of Refugees, via phone call (25 May 2022).

157 European Council on Refugees and Exiles (ECRE), Asylum in Greece: A Situation beyond Judicial Control? [2021] 9 Legal Note available at < https://ecre.org/wp-content/uploads/2021/06/ECRE-Legal-Note-9-onAsylum-in-Greece-A-Situation-Beyond-Judicial-Control-June-2021.pdf > accessed 26 May 2022.

158 ibid

159 Iannis F. Papageorgiou, ‘Η έννοια και τα χαρακτηριστικά της ‘ασφαλούς τρίτης χώρας’ μετά την Κοινή

Δήλωση ΕΕ-Τουρκίας° Σκέψεις για τις αποφάσεις της Ολομέλειας του Συμβουλίου της Επικρατείας 2347/2017

και 2348/2017’ (‘The Concept and Characteristics of a “Safe Third Country” after the EU-Turkey Joint Declaration. Reflections on the Decisions of the Plenary Session of the State Council 2347/2017 and 2348/2017’) in Ύπατη Αρμοστεία του ΟΗΕ για τους Πρόσφυγες (UNHCR) (ed), Επετηρίδα Δικαίου

Προσφύγων και Αλλοδαπών (Yearbook of Refugee and Foreign Law 2016-2017) (Εκδόσεις Αντ Ν Σάκκουλα, 2020) (Publications Ant. N. Sakkoula, 2020) 433.

160 ibid.

With regards to the enforcement, three different remedies have been mentioned in response to this case. Upon the vote of the majority of the Plenary of the Greek Council of State to not refer any preliminary question to the CJEU, one of the vice presidents expressed concerns regarding the possibility that a State liability claim could result from it.”161 according to the Köbler162 case. With regards to ECtHR proceedings, in an article by the Group of Lawyers for the Rights of Migrants and Refugees, reference is made to the fact that the choice to not refer any questions results not only in the violation of the obligations of the Greek authorities under international and European refugee law, but also of article 6 of the ECHR.163

According to the analysis presented in the previous section, the legal remedy most likely to be put in place is an infringement procedure by the European Commission. The Commission has been questioned multiple times on the legality of the application of the “safe third country” concept by Greek authorities through written questions by MEPs,164 oral questions165 as well as letters.166 From asylum seekers, the Commission has received at least three complaints with regards to the incorrect transposition and implementation of article 38 APD by Greek authorities.167 In its replies, the Commission states that it will not hesitate to launch, if appropriate, infringement proceedings.168

So far, the Commission has solely sent a letter in which it warns the Greek authorities that article 38 “has not been fully transposed into national legislation”169 through the EU

161 Greek Council of State, Joint Decisions 2347/2017 and 2348/2017, 22 September 2017, para 63.

162 Case C-224/01 Gerhard Köbler v Republik Österreich [2003] ECR I-10239, para 55.

163 ‘Jura Novit Curiae? A Critical Review of the Judgments 2347/2017 and 2348/2017 by the Plenary of the Council of State’ (Group of Lawyers for the Rights of Migrants and Refugees, 25 October 2017) < http://omadadikigorwnenglish.blogspot.com/2017/10/jura-novit-curiae.html > accessed 26 May 2022.

164 Elissavet Vozemberg-Vrionidi, ‘Turkish Provocation off the Islets of IMIA’, E-000064/202, 7 January 2021; Tineke Strik, Bettina Vollath, Domènec Ruiz Devesa, Damian Boeselager, Dietmar Köster, Pernando Barrena Arza, Malin Björk, Cornelia Ernst, Erik Marquardt, Damien Carême, Alice Kuhnke, ‘Inadmissibility of Syrian Asylum Applications in Greece’, E-004131/2021, 8 September 2021; Erik Marquardt, ‘Doubts on Greece’s Compliance with EU Law in the Processing of Asylum Applications’, E-005103/202, 12 November 2021.

165 European Parliament, ‘Exchange of Views on the Situation in Greek Islands’ (Multimedia Center, 27 January 2021) < https://multimedia.europarl.europa.eu/en/video/exchange-of-views-on-the-current-situation-in-greekislands-and-memorandum-of-understanding-in-libe-committee_I201634 > accessed 26 May 2022.

166 European Parliament, Letter D(2022)3974, 10 February 2022; Tineke Stik, ‘Letter to Mr Margaritis Schinas and Ms Ylva Johanson’ [26 May 2021] available at < https://tinekestrik.eu/sites/default/files/202105/Letter%20to%20Vice%20President%20Schinas%20and%20Commissioner%20Johansson%20by%20Tineke %20Strik%20.pdf > accessed 26 May 2022; Action for Women and Others, ‘Letter to EC Commissioner Ms Ylva Johansson’ (Human Rights 360°, 8 March 2022) < https://www.humanrights360.org/joint-letter-to-eccommissioner-ms-ylva-johansson/ > accessed 26 May 2022.

167 CHAP (2021)02261, CHAP (2021) 02274 and CHAP (2021) 02994. See Minos Mouzourakis, ‘Greece Arbitrarily Deems Turkey a “Safe Third Country” in Flagrant Violation of Rights” (RSA-Refugee Support Aegean, 1 March 2022) < https://rsaegean.org/en/turkey-safe-third-country/ > accessed 26 May 2022.

168 European Commission, Reply to Parliamentary Question P-005159/2021, 19 January 2022.

169 European Commission, Letter EUP (2021)9874, 4 March 2021.

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PILOT system but, at the moment, no infringement proceeding has been initiated. It must be noted, however, that such dialogue with the Commission is not focused on the lack of preliminary references but on the incongruence of Greek legislation and EU law. This fits well with the reluctance of the Commission to initiate proceedings for violations of article 267 TFEU due to the horizontal relationship between national courts and the CJEU. If an infringement proceeding will be eventually initiated, focus will be put on the violations of the EU Asylum Acquis and very likely not on the compliance with article 267 TFEU. Although even a single decision can result in a breach of EU law,170 infringement proceedings are more likely to be initiated on systematic breaches.

4. What is next?

The joint decision of the Greek Council of State is only an example of the reluctance of national courts, especially last instance courts, to comply with article 267 TFEU. As we have seen, many factors influence such non-cooperative sentiment, which results concretely in unlimited and uncontrolled discretion of the national judges. Unlimited, because they are the only ones that may activate the procedure and if there is an obligation, they can circumvent it through the acte clair doctrine without a thorough justification. Uncontrolled, because no legal consequence arises in practice, leaving them under no supervision. This means there is no safeguard to ensure that preliminary questions are referred, and the preliminary reference procedure relies solely on the good judgement of national judges.

To make the procedure more effective, three steps should be implemented. Firstly, as Advocate General Bobek has recently stated in his opinion in Consorzio Italian Management, Catania Multiservizi SpA v Rete Ferroviaria Italiana SpA, the CJEU should make a comprehensive revision of its previous case law on the exceptions to the last instance courts’ obligation to refer preliminary references.172 As analysed in section 3.1.4, the acte clair doctrine is in practice easily misused as a justification by last instance courts not to refer any questions. Secondly, more control should be exercised over national judges, in particular last instance courts’ judges, and enforce the obligation to refer regulated by the Treaties and the Court’s case law. Commission v France is a landmark case in this regard: more interest from

170 Case C-154/08 Commission of the European Communities v Kingdom of Spain [2009] ECR I-00187.

171 Manuel Escudero López, ‘Case C-154/08, Commission v Spain, Judgment of the Court (Third Chamber) of 12 November 2009, not yet Reported’ [2011] 48/1 Common Market Law Review 227.

172 Case C-561/19 Consorzio Italian Management, Catania Multiservizi SpA v Rete Ferroviaria Italiana SpA [2021] ECLI:EU:C:2021:291, Opinion of AG Bobek.

the Commission in enforcing article 267 TFEU through infringement proceedings would surely make last instance courts judges more accountable towards the European Union. This, however, implies a more vertical relationship between national courts and the CJEU, which would not uphold the principle of cooperation. Lastly, what can also be improved is the national judges’ knowledge of European law. As demonstrated in section 3.1.3, this is one of the most influential factors impacting the judges’ discretion to refer preliminary questions.

Further research should be conducted on whether Commission v France has changed the relationship between national courts and the CJEU, and if the fact that the Commission’s ruling for the first time on a breach of article 267 TFEU makes the procedure more effective and, therefore, more suitable for the preservation of the rule of law in the EU.

5. Conclusion

The preliminary ruling procedure is one of the more peculiar procedures within the European judicial framework and, in practice, its scope has the potential to go beyond what the Treaty had envisaged it for. With its use as citizens’ infringement tool, for example, the preliminary ruling procedure departs from article 267 TFEU by enforcing EU law within the Member States and fostering the maintenance of the rule of law in the EU. This research, therefore, has investigated to what extent the preliminary ruling procedure is an effective tool for maintaining and fostering the rule of law in the EU.

The first sub-question aimed at analysing the role of the preliminary ruling procedure in the preservation of the rule of law in the European Union. Here, it was pointed out that the rule of law as an EU constitutional principle consists of different layers, in which the rule of EU law contributes to the maintenance of the rule of law of the Union as a whole. Subsequently, the preliminary ruling procedure was analysed. Firstly, it was concluded that the procedure, given its characteristics, can be very impactful due to, especially, its erga omnes and its ex tunc effect. Secondly, it has been asserted that, in addition to the aims of interpreting EU law and questioning the validity of EU acts, the preliminary ruling procedure has assumed a third purpose: a tool for the enforcement of EU law in the European Union. A ruling of the CJEU that points out the incompatibility of national law with EU law forces, in fact, Member States to amend their legislation. When contextualising such findings in the examination of the joint decisions of the Greek Council of State, it has been demonstrated that if the preliminary ruling procedure is used as citizens’ infringement procedure, it may have a great impact on the

maintenance of the rule of law internally as well as in the EU in multiple ways. The referral of a preliminary question would have likely restored the power imbalance on matters of migration, which have been regulated mainly at a governmental level, as well as it would have obliged Greece to align its asylum law to the EU Asylum Acquis, restoring the rule of EU law. At the European Union level, a referral would have given the opportunity to the CJEU to further elaborate on article 18 of the EU Charter, on the legality of the EU-Turkey Statement and, more broadly, on the position of the EU on international protection of asylum seekers.

In section three, it was established that the preliminary ruling procedure as a tool for the enforcement of EU law and, consequently, a tool to maintain the rule of law in the EU is in most cases ineffective. Firstly, private citizens do not have access to the procedure since referrals are exclusively up to discretion of the national judges. However, even when there is an obligation to refer, national judges tend to circumvent it through the act eclair doctrine, which makes judges’ discretion unlimited. Private citizens and collective actors may influence their choice by bringing to court cases from which preliminary questions can originate. However, the power to activate the position relies ultimately on the national judges and thus, private parties’ influence is limited by multiple factors, among others, addressing their request to EU-friendly judges. Secondly, the discretion of national judges is subject to the influence of a high number of factors, either internal or external, which diminishes the likelihood to refer preliminary questions even further. Lastly, the discretion of national judges is de facto uncontrolled since close to no enforcement mechanisms, neither at national nor EU nor international level, are in play in case of the failure to refer preliminary questions as regulated in the Treaties. Here, the Greek Council of State case has provided a great example of the limited effectiveness of the preliminary ruling procedure as an enforcement tool to maintain the rule of law in Greece and, therefore, in the EU. Firstly, the case analysed was brought to court within the scope of the legal mobilisation phenomenon, whose efforts in fostering for a preliminary question have resulted in being limited. Moreover, the decision of the judges not to refer was very likely politically influenced.

In conclusion, it is clear that the preliminary reference procedure is not an effective tool to enforce EU law and, consequently, maintain the rule of law in the EU. This means that the enforcement of EU law in the European Union cannot rely on the preliminary ruling procedure as an indirect enforcement means to repair eventual shortcomings of the infringement procedure.

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