A criticism of the CJEU’s ruling that allowing London taxis to use bus lanes while prohibiting private hire vehicles from doing so does not appear to involve State aid (Eventech, C-518/13)

Dr Albert Sanchez Graells, School of Law, University of Leicester

In its judgment of 14 January 2015 in Eventech (C-518/13, EU:C:2015:9), the Court of Justice of the EU (CJEU) ruled on the preliminary question referred by the Court of Appeal (England and Wales) in the Addison Lee “taxis in bus lanes” case [as part of the challenge of the High Court’s decision in Eventech Ltd (R on the application of) v Parking Adjudicator (2012) [2012] EWHC 1903 (Admin)]. The CJEU decided that allowing London taxis (black cabs) to use bus lanes while prohibiting private hire vehicles (PHVs) from doing so does not appear to involve State aid. While the Eventech judgment leaves a minimum scope for the Court of Appeals to find differently in view of the specific facts of the case and the parts of the file not referred to the CJEU, this is most likely the end of the dispute.

The decision comes at a time when the regulation of the taxi sector is under significant pressure due to the political and economic waves that sharing economy initiatives (such as Uber) create – or, in the words of AG Wahl in the Eventech Opinion, “taxis and PHVs are engaged in fierce competition with each other across Europe, and London is not the only city where conflicts have arisen” (EU:C:2014:2239, para 2). This is a sector where competition rules have always been difficult to enforce due to the heavy regulation to which it is subjected (OECD, Competition Roundtable on ‘Taxi Services: Competition and Regulation’, 2007). Some claim that it is a sector ripe for proper deregulation and liberalisation, while others claim the opposite [for recent discussion, see L Eskenazi, ‘The French Taxi Case: Where Competition Meets—and Overrides—Regulation’ (2014) Journal of European Competition Law & Practice, and Publicpolicy.ie, The Taxi Market in Ireland: To Regulate or Deregulate? (2014)]. The discussion on the State aid implications of certain privileges derived from such regulation in crisis, and particularly the privileged use of bus lanes, added one layer of complication that the CJEU seems to have been keen on taking off the table.

The legal dispute in front of the CJEU can be condensed to opposing views on whether allowing black cabs to use bus lanes while prohibiting PHVs from doing so infringed the prohibition in Article 107(1) TFEU. It can be further narrowed down to the two key issues of whether this policy involves a commitment of State resources and whether it confers on taxis a selective economic advantage. Both elements need to be present for the prohibition of Article 107(1) TFEU to apply. The CJEU found in the negative on both aspects and determined that the practice of permitting, “in order to establish a safe and efficient transport system, black cabs to use bus lanes on public roads during the hours when the traffic restrictions relating to those lanes are operational, while prohibiting minicabs from using those lanes, except in order to pick up and set down passengers who have pre-booked such vehicles, does not appear, though it is for the referring court to determine, to be such as to involve a commitment of State resources or to confer on black cabs a selective economic advantage for the purpose of Article 107(1) TFEU” (C-518/13, para 63).

In my view, the Eventech judgment is criticisable in both areas. It fails to address the issues of economic advantage and selectivity in a functional manner—not least because the analysis of the selectivity of the measure ultimately relies on an assessment of ‘equality’ or ‘comparability’ of the legal position of black cabs vis-à-vis PHVs that falls into a logic trap derived from the pre-existing regulation of black cabs. Moreover, the analysis of the element of transfer of State resources is very counterintuitive and seems to contradict both economic theory (particularly as the use of public goods is concerned) and the case law on access to essential facilities under private ownership.

The finding that State resources are not involved is partial and flawed

Following the Opinion of AG Wahl, the CJEU engages in a rather counterintuitive approach to the issue of the transfer of State resources, which focusses on whether the State is forfeiting revenue by not charging black cabs for access to the bus lanes or by not imposing fines on them when they use the bus lanes, as it does with PHVs (judgment, paras 36-46). This approach comes from the AG Opinion, where he had decided to assess the question from the perspective of the regulatory powers of the Member State and fundamentally concluded that, in the exercise of those regulatory powers, there is no obligation to impose a charge for access to public infrastructure (Opinion, paras 24-35). Continue reading

Case Comment: McCarthy (C-202/13) (Grand Chamber), 18th December 2014

Catherine Taroni

Context

This case was referred from the High Court R (on the application of McCarthy and ors.) v the Secretary of State for the Home Department [2012] EWHC 3368 (Admin), and considered the applicability of Directive 2004/38 to situations not traditionally falling within the concept of a Union citizen moving to another Member State, and derivative rights for third-country family members.

The O and B decision of the CJEU had addressed some issues in relation to the rights of TCN family members of EU citizens residing in their home Member State, and this case sought to address the issue of what can be required of third-country national family members of EU citizens entering the UK.

Facts

Mr McCarthy is a dual UK/Irish national, his wife is a Colombian national, and their daughter is also a dual UK/Irish national. Mr McCarthy has lived in Ireland for 52 years, only residing in the UK for six years, from 1967 – 1973. The family has lived in Marbella, Spain since May 2010 where they own a property; they also own a house in the UK, to which they regularly travel. Mrs McCarthy has to travel to Madrid to renew her family permit every time she wishes to travel to the UK with her family. She has been refused permission to board flights to the UK when she has presented her residence card without the family permit.

The Secretary of State for the Home Department issued guidance to carriers to discourage them from transporting TCNs who are not in possession of a residence permit issued by the UK authorities. Under section 40 of the Immigration and Asylum Act 1999, a carrier who fails to meet that requirement is required to pay a ‘charge’.

The Advocate General’s Opinion

AG Szpunar gave his Opinion on 20th May 2014, and argued that the provisions of Directive 2004/38 should apply by analogy to the current situation, which involved visits to the UK, where Mr McCarthy is a national, rather than to a Member State of which he was not a national. The Advocate General advised the Grand Chamber that the UK is in breach of free movement law in relation to the requirement of the family visa In addition to residence card, and that the UK’s Frontier Protocol did not give it an opt out in relation to restricting fundamental free movement principles. Continue reading

After Opinion 2/13: how to move on in Strasbourg and Brussels?

John Morijn

In its recent Opinion 2/13 the Luxembourg Court found that plans for the EU to accede to the ECHR are not compatible with Union law as it currently stands. This ruling has been critically received, including on this blog (see here (Lock), here (Besselink), here (Michl), here (Douglas-Scott), here (Peers) and here (O’Neill)). The immediate focus has been on how the Opinion should be evaluated as a matter of Union law and followed up inside the EU. To that effect it has been suggested that the draft accession treaty would need renegotiation, or that a text with Treaty status (a Protocol) should be added to the existing EU Treaty texts which would themselves be left intact. Are other options available too in Brussels, for example freezing accession ambitions for a while or changing existing Treaty texts?

Clearly, no matter what solution is eventually found, it will (once again) take years. This raises another important prior question: what is the Strasbourg Court likely to do until an EU accession solution 2.0, or any EU-internal alternative is in place? In particular, will Opinion 2/13, and its revealing reasoning for how the Luxembourg Court currently views the place of human rights protection in Union law and the leeway that Member States have in diverting from Union law if their ECHR obligations so require, have implications for the Strasbourg Court’s “EU approach” (see here and here for its own factsheets regarding its general approach and that in Dublin cases)? This contribution offers some first reflections on moving on in Strasbourg and Brussels.

The Opinion: first a step back

It is quite understandable that the Luxembourg Court’s ruling has met with considerable disappointment. It has been suggested that it has prioritised the protection of its own position over EU human rights protection. But, taking a step back, perhaps this time there was actually (also) a veritable case for “blaming Brussels” too. For were the instructions laid out in the Treaty and the Protocols sufficiently clear to begin with? Is it at heart at all possible to establish independent external judicial review, apparently for reason that human rights protection was felt not to be properly safeguarded in the existing set-up (article 6 TEU), without redistributing competences to the disadvantage of the Luxembourg Court (Protocol 8)? In other words, if the whole point of accession actually was to change something in the institutional design of the EU, the make-up of legal remedies and even the way in which Union law had been interpreted so far by the Luxembourg Court, why not state that more clearly from the outset? From that perspective the Opinion by the Court may be a reflection of the convoluted drafting of the EU accession instructions by the Herren der Verträge.

Looking at the state of affairs from another perspective, perhaps the fact that it is now “back to the drawing board” is also a unique second (or third) chance to ask the basic prior question of the Lisbon Treaty text: quite how can the application of an EU internal human rights document (the Charter) that the Luxembourg Court is under an obligation to apply, be combined with external judicial review by the Strasbourg Court of the EU’s (including the Luxembourg Court’s) performance with regard to the ECHR, if that ECHR and the way in which it is interpreted are themselves part (but only part) of the normative content of the Charter? This is not an easy one. A binding Charter and EU accession, it should be remembered in this context, were initially alternative solutions to “fill the EU human rights gap”. Only later did they become cumulative elements in the EU treaties, as a “solution” without a prior problem analysis justifying this double-headed approach. Yet, curiously, given the great stress accorded to EU accession so far their development has somehow remained unconnected. Additional instructions on how to dovetail their two separate logics may be unavoidable.

Then Opinion 2/13 itself. In fact, by the standards of any Court ruling, it offers a surprisingly candid, concise and (mostly) clear analysis. Some of us may not like what we read, and some cross-translation from Union law to human rights law expertise may be required to clarify its full significance, but it is extremely helpful for considering future directions in Strasbourg and Brussels. In particular the reasoning under the headings “preliminary considerations” (par. 153-177) and “the specific characteristics and the autonomy of EU law” (par. 179-200) is revealing in a number of different respects, including with regard to

  • the Court’s extension of its Melloni-reasoning to ECHR Member States’ freedom to go beyond what is required by ECHR minimum norms, as well as further (unstated) implications of this reasoning with regard to interpreting the Charter and the ECHR side-by-side, and
  • the Full Court’s approach to mutual trust in the EU in the light of EU Member States’ parallel ECHR commitments, and its reference to the 2011 Luxembourg Grand Chamber ruling in NS.

These two elements will be briefly highlighted below. I agree with Scheinin that in thinking about responses to the Court’s Opinion it seems more fruitful to consider these (and many other relevant) elements of the analysis rationally, in the light of the broader questions of post-Lisbon Union human rights protection architecture, rather than being stuck in disappointment for too long. Continue reading

Kaltoft – a step (in the wrong direction?) towards protection from weight discrimination under EU law

Dr Iyiola Solanke

Over the last two to three decades the prevalence of overweight and obese[1] people has become a major public health issue across countries, age-groups, class, race and ethnicity. As long ago as 2003, research estimated that 61% of Americans were overweight, and 20% were obese. In 2006, the OECD ranked Britain’s overweight and obesity rate (62%) as the worst in Europe and the third-worst in the world, behind Mexico (69.5%) and the U.S (67.3%). In 2008, more than 1.4 billion adults were overweight, including over 200 million obese men and nearly 300 obese million women. More than 40 million children under the age of five were overweight in 2011. Children and adults are getting fatter.

The rise in body size is a public health issue because of its cost: medical experts link numerous ailments to excess weight, such as diabetes, angina, osteoarthritis, stroke, gout, gall bladder disease, breast cancer, cancer of the colon and ovarian cancer. Overweight and obese people are said to be more prone to heart disease, stroke, high blood pressure, diabetes, chronic depression and many other life threatening conditions. An overweight child is likely to become an overweight adult. The cost to the public purse could be billions of pounds.

The CJEU has now confirmed that obesity is also a matter for equality law. EU law does not formally prohibit fattism – like other public health issues, this remains within the competence of the member states[2] – but in the first case of its kind, the CJEU decided that discrimination on the grounds of obesity can fall within the disability strand of the Equal Treatment Directive 2000/78. This was stated in answer to questions arising before a Danish court during a case concerning the weight of a childminder.

Kaltoft

Mr Kaltoft was hired by the Municipality of Billund in 1998 on a permanent contract as a childminder. He was obese at the time of his initial employment and, despite periods of weight loss, remained such throughout his 15 years in this post. From March 2010, he appeared to be under informal review, being visited by his boss and asked about his weight. During 2010, when the number of children in Billund fell, he was given fewer children to look after. That same year, he was chosen to be dismissed. When Kaltoft asked why he was the only childminder to be dismissed, he was told it was due to his decreased workload. Kaltoft was convinced that it had something to do with his weight.

His trade union brought an action before the District Court seeking compensation for him, arguing that he had been subjected to weight discrimination. The Danish court stayed proceedings to ask the CJ four questions, of which only the first and fourth were answered: whether it is contrary to EU law (for example Article 6 TEU on fundamental rights) for a public-sector employer to discriminate on grounds of obesity in the labour market; and whether obesity could be deemed to be a disability covered by Directive 2000/78/EC.

The first question was dealt with relatively swiftly: the Fourth Chamber of the Court of Justice did not emulate the boldness of the Grand Chamber in Mangold but citing Chacon Navas and Coleman declared that ‘EU law must be interpreted as not laying down a general principle of non-discrimination on grounds of obesity as such…’[40]. The Fourth Chamber then considered whether obesity is a disability. Its reasoning began from the purpose of Directive 2000/78: to set out a ‘general framework for combating discrimination, as regards employment and occupation, on any of the grounds referred to in that article, which include disability.’ It then noted the meaning of direct discrimination in this Directive and its scope of application – per Article 3(1)(c) it covers all persons in the public and private sectors, and all phases of employment including dismissals. Citing HK Danmark and Glatzel, where the CJ – taking inspiration from the EU ratification of the United Nations Convention on the Rights of Persons with Disabilities – stated that

53…the concept of ‘disability’ must be understood as referring to a limitation which results in particular from long-term physical, mental or psychological impairments which in interaction with various barriers may hinder the full and effective participation of the person concerned in professional life on an equal basis with other workers

It concluded that in order to be compatible with Directive 2000/78, the concept of ‘disability’ a)‘must be understood as referring not only to the impossibility of exercising a professional activity, but also to a hindrance to the exercise of such an activity’ [54] and moreover that b) the concept had to be open-ended in relation to the ‘origin of the disability’ [55] – it could not be dependent upon ‘the extent to which the person may or may not have contributed to the onset of his disability.’ [56] Thus while obesity itself is not a ‘disability’ within the meaning of Directive 2000/78 [58], it decided that obesity could be covered by the concept of ‘disability’ in that Directive where

  1. ‘the obesity of the worker concerned entails a limitation which results in particular from physical, mental or psychological impairments that in interaction with various barriers may hinder the full and effective participation of that person in professional life on an equal basis with other workers, and the limitation is a long-term one, obesity can be covered by the concept of ‘disability’ within the meaning of Directive 2000/78.
  2. Such would be the case, in particular, if the obesity of the worker hindered his full and effective participation in professional life on an equal basis with other workers on account of reduced mobility or the onset, in that person, of medical conditions preventing him from carrying out his work or causing discomfort when carrying out his professional activity.

It was left for the Danish court to decide whether, despite the fact that he was able to work effectively for 15 years as a childminder, his obesity during his term of employment nonetheless limited Kaltoft in the way envisaged by the EU concept of ‘disability’. He would then have to prove that his dismissal was because of his obesity. Continue reading

Case C-364/13 – Patentability of embryonic stem cells and parthenotes: Inherently Uncertain?

plomerAurora Plomer

On 18th December 2014, the Grand Chamber of the CJEU revisited the scope of the moral exclusion on industrial and commercial uses of “human embryos” in Article 6(2) (c) in Directive 98/44/EC on the legal protection of biotechnological inventions (Biotech Directive) and held that the exclusion does not cover unfertilized human eggs produced by parthenogenesis (parthenotes).

The referral followed the refusal of the UKIPO to grant two national patents to International Stem Cell Corporation (‘ISCO’) [2013] EWHC 807 (Ch) on the ground that the patents fell within the definition of the term ‘human embryo’ adopted by the Grand Chamber in Brüstle (EU:C:2011:669) .     The first patent, GB0621068.6, entitled “Parthenogenetic activation of oocytes for the production of human embryonic stem cells” covered both the methods for producing pluripotent human stem cell lines from parthenogenetically-activated oocytes and the stem cell lines themselves.   The second application GB0621069.4 , entitled “Synthetic cornea from retinal stem cells” similarly included claims to methods and ‘product-by-process’. The UKIPO applied the Grand Chamber’s reasoning in Brustle that parthenotes were ‘capable of commencing the process of development of a human being just as an embryo created by fertilisation of an ovum can do so’ and therefore fell within the meaning of paragraph 36 of the judgment in Brüstle (C‑34/10, EU:C:2011:669). ISCO appealed on the grounds that, according to current scientific knowledge, mammalian parthenotes can never develop to term because, in contrast to a fertilised ovum they do not contain any paternal DNA, which is required for the development of extra-embryonic tissue (para 17). In this light, the High Court of Justice (England & Wales), Chancery Division (Patents Court), decided that the appeal “raised a question of considerable importance. What is meant by the term “human embryos” in Article 6(2)(c) of the Biotech Directive? In particular, what was meant by the CJEU in Brüstle by the expression “capable of commencing the process of development of a human being”? Does that contemplate the commencement of a process which must be capable of leading to a human being? Or does it contemplate the commencement of a process of development, even though the process cannot be completed, so that it is incapable of leading to a human being?” (At para. 3).

Continue reading

A Tale of Two Referendums

Aidan O’Neill QC

Reflecting on the French Revolution in the opening lines of A Tale of Two Cities, Charles Dickens wrote:

“It was the best of times, it was the worst of times, it was the age of wisdom, it was the age of foolishness, it was the epoch of belief, it was the epoch of incredulity, it was the season of Light, it was the season of Darkness, it was the spring of hope, it was the winter of despair, we had everything before us, we had nothing before us, we were all going direct to Heaven, we were all going direct the other way…”

This passage may serve equally well as a description of the competing claims that were made by the opposing sides in this year’s Scottish independence referendum.

The pro-independence campaign claimed that voting for an independent Scotland would open the way to the best of times, to the age of wisdom, to the epoch of (self)-belief, to the season of Light, to the spring of hope, in which Scots would have had everything before them and which would lead directly to an earthly (Caledonian) paradise.

The pro-union campaign, in response, struck a primarily negative note, seeming unable to find the words to sing the virtues of a British union continuing into the future.   Instead, they said that an independent Scotland would open the doors to the worst of times, that voting in favour of separation would be an act of foolishness and of self-delusion which the voters in Scotland would live to regret in a winter of despair, with nothing before them but a road paved with good intentions and broken dreams.

I fear that similarly competing and irreconcilable claims will be made by the opposing sides in the campaign around the anticipated referendum on the United Kingdom’s continuing membership of the European Union, following the coming general election.   Those wishing the UK to break from the EU will doubtless extol the mythic virtues and heroic vigour of Albion unbound. Those advocating the UK’s continued membership of the EU – like those who campaigned for Scotland’s to stay in the (British) Union – will find it difficult to articulate a positive vision of Europe which will resonate with (particularly English) voters and will, instead, fall back on emphasising the economic dangers and market uncertainties which will come with our “turning our back on Europe” and falling prey to those vices etymologically associated with island life: isolationism and insularity. Continue reading

Review: EU Law and Integration: Twenty Years of Judicial Application of EU Law, José Luís Da Cruz Vilaça

Joelle Grogan, University of Oxford

EU Law and Integration is a collection of articles written by the author over the course of his eminent career as an academic, an Advocate General, the first President of the Court of First Instance (now the General Court), and now as a Judge at the Court of Justice of the European Union. Some of the contributed articles have been translated from their original language of publication, while others have been written with collaborators. Divided into sections broadly concerning EU constitutional law; the judicial structure of the EU; judicial protection of individuals; competition and state aid; and more general studies in law and economic integration in the EU, this volume has a very broad scope.

As a judge, and an academic, the author provides practical insight as well as keen analysis into the areas of the law upon which he focuses. Articles concerning the judicial architecture of the Union provide some of the most interesting reading in the volume. Writing the Foreword to the book, the Vice-President of the Court of Justice of the EU, Koen Lenaerts, aptly refers to this section as the ‘cornerstone’ of the volume. The author’s analysis of the problems facing the Court of First Instance in its first year has particular historical value and relevance, as he was the founding President of the Court. It is interesting to read – with hindsight – of the first struggles of the Court in terms of administration and the preparation of rules of procedure. The author’s rationalisation of the relatively long length of CFI judgments is illustrative of how the Court of First Instance viewed its duties with regard to the appellate jurisdiction of the Court of Justice. The concluding perspectives on the future of judicial architecture of the EU are also interesting as the author advocated incremental, rather than radical, changes in the judicial system, and the reader is sometimes left to wonder what conclusions he would make in light of the Lisbon Treaty reforms (and whether they were not reforms in name only), and the push towards judicial networking.

Seminal cases concerning economic integration feature prominently in the work, and readers are well advised to read the author’s consideration of the impact of the Pfizer case on the Precautionary Principle in EU law. The author illustrates the early caution show by the Courts which clearly advocated a prudential approach as regards determining the risks for human and animal health, and the environment. While the author acknowledges that this judicial approach probably did not pave the way to the ultimate systemic application of the principle, it did clearly foreshadow it. Readers, however, might be curious as to how the author would consider the Precautionary Principle’s current status under Article 191 TFEU, which does not feature in the republished 2004 article.

This absence of reference to the Lisbon Treaty reforms leads to an issue the reader may experience with this collection. Republished material can seem out-dated, especially in the fast-evolving European Union. Analysis and insight, while apt, would have benefitted in some articles from an updated account, or at least reference to the current situation. The cases analysed in this book, while seminal (for example Keck and Mithouard, Azores, and Alpine Investments) have had a new life in the courts which is not addressed by the book, leaving the reader at some points feeling as if they are missing part of the story. One further example of this is that ‘current case law’ of state aid relates to cases from, at the most recent, 2006. The absence of important reforms to the law over the last five years, most notably in light of Lisbon, also do not feature at all in the book, which can appear odd to the contemporary lawyer. Continue reading

EU Free Movement as a Legal Construction – not as Social Imagination

Daniel Thym

Monetary union demonstrates that some EU projects are realised without preparation for all eventualities. In the case of the euro, the financial crisis revealed lacunae in the field of economic and budgetary supervision, which the euro countries had to bridge through the introduction of new instruments. In the case of Union citizenship the legal gaps are less dramatic, but nonetheless visible – in particular with regard to access to social benefits for persons who do not work. It was these uncertainties that the European Court of Justice (ECJ) had to confront in the Dano judgment of last Tuesday. It opts for a surprisingly conventional solution, which abandons earlier attempts to conceive of Union citizenship as a projection sphere for political visions of a good life and just society.

The European Court of Justice as Legal Technician

A reminder of the debate about the Free Movement Directive demonstrates the absence of clear political guidance. Initially, the EU Commission had suggested to lay down explicitly that Union citizens who do not work should not have access to social benefits during the first five years of their stay in another EU country (Art. 21.2). It later abandoned the project after the ECJ had ruled in Grzelczyk that similar provisions on study grants do not pre-empt recourse to the Treaty guarantee of non-discrimination. As a result, the final version of the Free Movement Directive reiterated existing Treaty rules, whose precise bearing for people like Ms Dano remained unclear. Otherwise put, there was never a positive political agreement at EU level on the status of Union citizens who do not work. This shifted the responsibility upon judges to resolve open questions.

Judges in Luxembourg used this room for manoeuvre for progressive decisions on various occasions. Judgments such as Grzelczyk, Martínez Sala, Collins, Trojani, Bidar, Vatsouras and Ruiz Zambrano constitute the most ambitious and tantalising line of case law in recent memory. They are characterised by an attempt to breathe life into the abstract Treaty provisions on Union citizenship by granting equal access to social benefits for various categories of economically inactive citizens irrespective of the limits laid down in secondary legislation. It would have been possible for the Court to decide the Dano case differently under recourse to the argumentative arsenal of these judgments.

That did not happen. For more than a decade, the ECJ had ignored the arguments put forward by his most outspoken academic critic, Kay Hailbronner – but they now dominate its reasoning on why citizens like Ms Dano cannot claim social benefits. This presents us with a noteworthy shift of emphasis from a promise of equality inherent in EU citizenship towards the ‘limitations and conditions’, which primary law had always provided for (Art. 21.1 TFEU). Judges abandon the aspirational underpinning of the citizenship concept to the benefit of conventional doctrinal arguments such as the wording or the systematic structure. In short, the Court turns into a legal technician.

Anuscheh Farahat criticises the Court’s outcome and, yet, she follows a similar path as the ECJ, when she argues that the technical rules on inter-state social security coordination mandated a different outcome. It is not convincing to maintain that this specialised field of secondary law should have defined the answer, not least since doing so would have required the Court to disconnect the interpretation of the non-discrimination principle in Article 4 of Regulation (EC) Nr. 883/2004 from primary law. A fundamental question, such as this one, should be answered primarily on the basis of the EU Treaties and the citizenship concept – even by those who disagree with the Court’s conclusion.

It seems to me that the outcome of the Dano case is no coincidence. Judges in Luxembourg are not autistic and listen to the general political context. The Pringle judgment on the compatibility of the ESM Treaty with the rules on monetary union was a case in point – and the same held for the Förster ruling, in which the Court shied away from open conflict with the EU legislator, when it accepted a five-year waiting period for access to study grants for incoming EU students in line with the Free Movement Directive. The Grand Chamber deciding the Dano case will have considered potential implications of its judgment for the overall support for the integration project at a time, when eurosceptic political parties are on rise across the continent, not only in the United Kingdom. Continue reading

The End of Free Movement of persons? The CJEU Decision in Dano

Dr Iyiola Solanke

In January 2014, I wrote a post discussing the plans of the UK Coalition government to withhold some benefits from ‘jobless’ EU migrants. I suggested that this group would be hard to define and that the most obvious persons to fall into this category would be those who are not only unemployed but also for some reason unemployable, such as Wadi Samin, an Austrian army veteran deemed permanently unable to work due to ill health. In Dano, the Grand Chamber of the CJEU seems to have confirmed that this is indeed the case. This decision has been welcomed by leaders including but not limited to David Cameron. However, it does not place major new restrictions on the right of free movement – rather it provides a welcome affirmation of the existing restrictions in the Treaties and secondary legislation. It does this by establishing that ‘sufficient resources’ in Article 7 of the Citizenship Directive refers to ‘own’ resources.

Ms Dano grew up in Romania but migrated to Germany where her 2-year old son, Florin, was born in 2009. Both are Romanian nationals. She settled in Leipzig with her sister and was issued with a permanent residence card in July 2011. She received no support from the child’s father but in addition to help provided by her sister, Dano received child benefit for her son, as well as an additional amount in maintenance payments. (totalling around EUR 317 per month). In 2011 she applied for a series of basic provision benefits (‘Grundsicherung’) provided under German legislation to jobseekers – subsistence benefit (‘existenzsichernde Regelleistung’) for herself, social allowance (‘Sozialgeld’) for her son as well as a contribution to accommodation and heating costs. This application was refused, as was a second application in 2012. An administrative challenge to the 2012 decision, based on Article 18 and 45 TFEU, failed. It was held that she was not eligible to receive these benefits under the relevant German legislation (Paragraph 7(1) of SGB II and Paragraph 23(3) of SGB XII).

She subsequently brought an action before the Social Court in Leipzig, challenging the refusal to grant these basic benefits. The Leipzig Court, although it agreed with the decision under appeal, was unsure that the German provisions were compatible with EU law, in particular the general principle of non-discrimination resulting from Article 18 TFEU, the general right of residence resulting from Article 20 TFEU and Article 4 of Regulation No 883/2004. It therefore referred four questions to the CJEU.

Question 1: the scope ratione personae of Article 4 Regulation No 883/2004

The first question concerned the scope ratione personae of Article 4 Regulation No 883/2004, which replaced Regulation No 1408/71 from 1 May 2010.  Article 4, headed ‘Equality of treatment’, provides:

‘Unless otherwise provided for by this Regulation, persons to whom this Regulation applies shall enjoy the same benefits and be subject to the same obligations under the legislation of any Member State as the nationals thereof.’

Having decided that the basic provision benefits sought were ‘special non-contributory cash benefits’ (within the meaning of Article 70(2) of Regulation No 883/2004) the Leipzig Court asked whether such benefits were covered by Article 4. The Grand Chamber confirmed that they did. Continue reading

Very private lives: “acceptable questioning” in sexual orientation asylum cases

Anita Davies

The CJEU’s judgment in the case of A, B and C is due by the end of the year. Ahead of the expected judgment, this post recaps the opinion handed down by Advocate General Sharpston in July.

In February 2014 The Guardian published details of the lines of questioning used by the UK Home Office in questioning gay and lesbian asylum seekers. The questions considered appropriate to ask vulnerable asylum seekers were shocking; including queries such as “what is it about men’s backsides that attracts you?”.

The Home Office’s prurient interest in the very private lives of asylum seekers has been attributed in part to the Supreme Court judgment in HJ (Iran) and HT (Cameroon) v Secretary of State for the Home Department [2010] UKSC 31, where the Court found that asylum could not be refused on the basis that an individual would not face persecution due to their sexuality if they behaved with discretion when returned. The onus in questioning therefore shifted from conditions facing gay communities in the country of return to proving sexual orientation, resulting in the Home Office seeking to verify sexual orientation via intrusive questioning. Verifying sexual orientation in asylum claims is an issue that a number of EU states have sought to deal with, and Advocate General Sharpston’s opinion in ABC constitutes guidance as to what is considered acceptable questioning. However, as will be seen below, Sharpston’s opinion has to grapple with the central problem: how do you legally “verify” human sexuality? By its very nature sexuality is impossible to “prove” by reference to anything other than what an individual considers their sexuality to be.

  1. B and C were individuals who submitted asylum claims to the Netherlands authorities on the grounds of a well founded fear of being persecuted in their respective countries of origin because they were gay men. All were refused on the basis that their claims of sexual orientation were not “credible”. Two of the applicants had gone to some lengths to prove their sexual orientation: C had submitted a video depicting him performing sexual acts with a man, and A had been willing to submit to a test to prove that he was gay.

In her opinion, Advocate General Sharpston sought to set out some guidelines as to what was an appropriate method for assessing declared sexual orientation, and if the limits were different from the limits applied to an assessment of the credibility of other grounds of persecution. Sharpston recognised that an “individual’s sexual orientation is a complex matter, entwined inseparably with his identity, that falls within the private sphere of his life” [38], therefore, an applicant’s averred sexual orientation must always be the starting point in assessing a claim, however:

The competent national authorities are entitled to examine that element of his claim together with all other elements in order to assess whether he has a well-founded fear of persecution within the meaning of the Qualification Directive and the Geneva Convention.

It therefore follows ineluctably that applications for refugee status on the grounds of sexual orientation, like any other applications for refugee status, are subject to a process of assessment as required by Article 4 of the Qualification Directive. That assessment must, however, be carried out in a way that respects the individual’s rights as guaranteed by the Charter.” [48 -49]

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