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THE CONTRIBUTION OF THE EUROPEAN COURT OF JUSTICE TO THE AREA OF FREEDOM, SECURITY AND JUSTICE

  • Koen Lenaerts (a1)

Abstract

The aim of this article is to provide an overview of the European Court of Justice's (‘ECJ’) past and present contribution— both procedurally and substantively—to the Area of Freedom, Security and Justice. While it is too early to speculate what the ECJ's contribution to this area will be under the provisions of the Treaty of Lisbon, which entered into force on 1 December 2009, the latter's modifications to the ECJ's jurisdiction merit close attention. After describing how the procedural limitations that were imposed on the ECJ's jurisdiction by ex Title IV of Part Three of the EC Treaty and by ex Title VI of the old EU Treaty have been almost entirely eliminated by the Treaty of Lisbon, this article posits that not only does the latter Treaty improve significantly the judicial protection of private individuals, but it also facilitates the dialogue between the Union and the national judiciaries in the Area of Freedom, Security and Justice. Next, the article briefly explores the special ECJ procedures which may be followed in the Area of Freedom, Security and Justice in cases where time is of the essence. There, it is argued that, when having recourse to these procedures, the ECJ strives to strike the right balance between, on the one hand, swift judging and, on the other hand, the preservation of a qualitative and fair judicial procedure. As to substantive issues, drawing on examples from the fields of judicial cooperation in civil matters, asylum and judicial cooperation in criminal matters, it is argued that the ECJ's contribution to this area is largely grounded in the protection of fundamental rights. Finally, a brief conclusion supports the contention that the ECJ's contribution to the Area of Freedom, Security and Justice has favoured a ‘mutual borrowing’ of concepts and principles as between this area and other fields in relation to which the EU has competences, such as the internal market and competition. The Treaty of Lisbon having entered into force, an unprecedented level of coordination between different areas of EU law on both the procedural and substantive levels is to take place. Respect for fundamental rights will definitely be a unifying factor binding them all together.

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1 See ex arts K-K.9 of the Treaty on European Union [1992] OJ C191/1.

2 See ex arts 1, point 11, and 2, point 15, of the Treaty of Amsterdam amending the Treaty on European Union, the Treaties establishing the European Communities and related acts [1997] OJ C340/1.

3 Ex art 2, fourth indent, EU and ex arts 61–69 EC.

4 Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European Community, signed at Lisbon, 13 December 2007 [2007] OJ C306/1; see also the consolidated versions of the Treaty on European Union (hereinafter ‘TEU’) and the Treaty on the Functioning of the European Union (hereinafter ‘TFEU’) [2008] OJ C115/1. See art 3(2) TEU and art 12 c) TEU, as well as art 4 j) TFEU and arts 67–89 TFEU. References to the new EU Treaty and the FEU Treaty are to be understood as references to the consolidated versions. The Treaty of Lisbon takes over the reforms set out in the Treaty establishing a Constitution for Europe [2004] OJ C310/1, which was concluded at Rome on 29 October 2004 but failed to be ratified after the negative outcome of the French and Dutch referenda.

5 See K Lenaerts and P Van Nuffel, Constitutional Law of the European Union (2nd edn, Sweet & Maxwell, London, 2005) paras 6-006–6-017.

6 See ex art K.1 TEU.

7 See ex art K.3(2) TEU. See eg Joint Position of 25 October 1996 defined by the Council on the basis of ex art K.3(2)(a) TEU, on Pre-frontier Assistance and Training Assignments [1996] OJ L281/1; Joint Action of 26 April 1999 adopted by the Council on the basis of ex art K.3 TEU, Establishing Projects and Measures to Provide Practical Support in Relation to the Reception and Voluntary Repatriation of Refugees, Displaced Persons and Asylum Seekers, Including Emergency Assistance to Persons Who Have Fled as a Result of Recent Events in Kosovo [1999] OJ L114/2; Joint Action of 29 November 1996 adopted by the Council on the basis of ex art K.3 TEU, on Cooperation between Customs authorities and business organizations in Combating Drug Trafficking [1996] OJ L322/3; and the Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Cooperation in respect of Parental Responsibility and Measures for the Protection of Children [2003] OJ L48/3.

8 Ex art 220, fourth indent (post 1999 numbering: ex art 293, fourth indent), EC.

9 See, eg, the Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters [1972] OJ L299/32; consolidated version in [2003] OJ C27/1 (hereinafter ‘the Brussels Convention’). It must nonetheless be observed that the EC Treaty (ex art 293, fourth indent) was not indispensable for the conclusion of international conventions between the Member States on subject-matter within the acquis communautaire: see in particular the Convention on the Law Applicable to Contractual Obligations [1980] OJ L266/1, consolidated version in [1998] OJ C27/34 (hereinafter ‘the Rome Convention’) which was concluded in the exercise of the general treaty-making powers of the Member States rather than formally adopted on the basis of the EC Treaty.

10 For a detailed analysis of the question of legal bases for the adoption of acts concerning private international law, see Ph-E Partsch, Le droit international privé européen— De Rome à Nice (Larcier, 2003) paras 15 and 297 ff.

11 See Tampere European Council, Presidency Conclusions, 15–16 October 1999. The Tampere Programme came to a close in 2004: see the Communication from the Commission to the Council and the European Parliament, Area of Freedom, Security and Justice: Assessment of the Tampere programme and future orientations, COM(2004) 401 final.

12 See Hague European Council, Presidency Conclusions, 4–5 November 2004, Annex I ‘The Hague Programme—Strengthening Freedom, Security and Justice in the European Union’. The Hague Programme came to an end in 2009. A new multi-annual programme—‘the Stockholm Programme’—has just been launched and will run until 2014. In June 2009, the Commission presented its final report on the Hague Programme: See Communication from the Commission to the Council, the European Parliament, the European Economic and Social Committee and the Committee of the Regions, Justice, freedom and security in Europe since 2005: an evaluation of The Hague programme and action plan, COM (2009) 263.

13 Council Regulation (EC) No 44/2001 of 22 December 2000 On Jurisdiction and the Recognition and Enforcement of Judgments in Civil And Commercial Matters [2001] OJ L12/1 (hereinafter ‘the Brussels I Regulation’).

14 Brussels Convention (n 9).

15 Council Regulation (EC) No 2201/2003 of 27 November 2003 Concerning Jurisdiction and the Recognition and Enforcement of Judgments in Matrimonial Matters and the Matters of Parental Responsibility, Repealing Council Regulation (EC) 1347/2000 [2003] OJ L338/1 (hereinafter ‘the Brussels II bis Regulation’).

16 Council Regulation (EC) No 1346/2000 of 29 May 2000 on Insolvency Proceedings [2000] OJ L160/1.

17 Council Regulation (EC) No 1348/2000 of 29 May 2000 on the Service in the Member States of Judicial and Extrajudicial Documents in Civil or Commercial Matters. This Regulation was repealed by Regulation (EC) No 1393/2007 of the European Parliament and of the Council of 13 November 2007 on the Service in the Member States of Judicial and Extrajudicial Documents in Civil or Commercial Matters [2007] OJ L324/79.

18 Council Regulation (EC) No 1206/2001 of 28 May 2001 on Cooperation between the Courts of the Member States in the Taking of Evidence in Civil or Commercial Matters [2001] OJ L174/1.

19 Council Regulation (EC) No 805/2004 of the European Parliament and of the Council of 21 April 2004 Creating a European Enforcement Order for Uncontested Claims [2004] OJ L143/15.

20 Council Regulation (EC) No 1896/2006 of the European Parliament and of the Council of 12 December 2006 Creating a European Order for Payment Procedure [2007] OJ L399/1.

21 Council Regulation (EC) No 864/2007 of the European Parliament and of the Council of 11 July 2007 on the Law Applicable to Non-Contractual Obligations [2007] OJ L199/40 (hereinafter ‘the Rome II Regulation’).

22 Council Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the Law Applicable to Contractual Obligations [2008] OJ L177/6 (hereinafter ‘the Rome I Regulation’).

23 Rome Convention (n 9).

24 Council Regulation (EC) No 861/2007 of the European Parliament and of the Council of 11 July 2007 establishing a European Small Claims Procedure [2007] OJ L199/1.

25 Council Framework Decision 2001/220/JHA of 15 March 2001 on the Standing of Victims in Criminal Proceedings [2001] OJ L82/1.

26 Council Framework Decision 2001/500/JHA of 26 June 2001 on Money Laundering, the Identification, Tracing, Freezing, Seizing and Confiscation Of Instrumentalities and the Proceeds of Crime [2001] OJ L182/1.

27 Council Framework Decision 2002/584/JHA of 13 June 2002 on the European Arrest Warrant and the Surrender Procedures between Member States [2002] OJ L190/1.

28 Council Framework Decision 2002/475/JHA of 13 June 2002 on Combating Terrorism [2002] OJ L164/3.

29 Council Framework Decision 2004/68/JHA of 22 December 2003 on Combating the Sexual Exploitation of Children and Child Pornography [2004] OJ L13/44.

30 Council Framework Decision 2004/757/JHA of 25 October 2004 Laying Down Minimum Provisions on the Constituent Elements of Criminal Acts and Penalties in the Field of Illicit Drug Trafficking [2004] OJ L335/8.

31 See Communication, Justice, freedom and security in Europe since 2005: an evaluation of The Hague programme and action plan (n 12) 13–14.

32 See for this Treaty, (n 4).

33 See K Lenaerts and P Van Nuffel, ‘La Constitution pour l'Europe et l'Union comme entité politique et ordre juridique’ (2005) Cahiers de droit européen 13, paras 38–39.

34 See M Dougan, ‘The Treaty of Lisbon 2007: Winning Minds, Not Hearts’ (2008) CMLR 617, 680–81.

35 Arts 77–80 TFEU.

36 Art 81 TFEU.

37 Arts 82–86 TFEU.

38 Arts 87–89 TFEU.

39 Case 294/83 Parti écologisteLes Verts’ v European Parliament [1986] ECR 1339, para 23. See K Lenaerts, ‘The Basic Constitutional Charter of a Community based on the Rule of Law—Case 294/83 Parti écologiste ‘Les Verts’ v European Parliament [1986] ECR 1339', in M Poiares Maduro and L Azoulai (eds), The Past and Future of EU Law; The Classics of EU Law Revisited on the 50th Anniversary of the Rome Treaty (Hart Publishing, Oxford, 2010).

40 See K Lenaerts, D Arts and I Maselis, Procedural Law of the European Union (2nd edn, Sweet & Maxwell, London, 2006) paras 7-001–7-188 (hereinafter ‘K Lenaerts, D Arts and I Maselis’).

41 ibid paras 8-001–8-019.

42 ibid paras 11-001–11-070.

43 ibid (n 40) paras 5-001–5-075.

44 Eg, in respect of the failure to transpose, within the time-limits provided, Council Directive 2003/9/EC of 27 January 2003 Laying Down Minimum Standards for the Reception of Asylum Seekers [2003] OJ L31/18, see Case C-72/06 Commission v Greece [2007] ECR I-57; and in respect of the failure to transpose, within the time-limits provided, Council Directive 2003/109/EC of 25 November 2003 Concerning the Status of Third-Country Nationals who are Long-Term Residents [2004] OJ L16/44, see Case C-5/07 Commission v Portugal [2007] ECR I-120, Case C-59/07 Commission v Spain [2007] ECR I-161; Case C-34/07 Commission v Luxembourg [2007] ECR I-175.

45 See K Lenaerts, D Arts and I Maselis, (n 40) paras 3-001–3-055; D Simon, Le système juridique communautaire (3rd edn, PUF, 2001) paras 343–346.

46 See generally K Lenaerts, D Arts and I Maselis (n 40) chapters 2, 6.

47 Brussels Convention (n 9).

48 See eg, Case 12/76 Tessili [1976] ECR 1473; Case 14/76 de Bloos [1976] ECR 1497; recently, Case C-292/05, Lechouritou and Others [2007] ECR I-1519.

49 Protocol on the Interpretation of the Brussels Convention by the Court of Justice [1998] OJ C27/1 (consolidated version).

50 Brussels I Regulation (n 13). See Case C-103/05 Reisch Montage [2006] ECR I-6827; Case C-283/05 ASML [2006] ECR I-12041 (on this case, see also n 188–191 and accompanying text); recently, Case C-462/06 Rouard [2008] ECR I-3965.

51 Council Regulation (EC) No 1346/2000, (n 16). See Case C-1/04 Staubitz-Schreiber [2006] ECR I-701; Case C-341/04 Eurofood [2006] ECR I-3813.

52 Council Regulation (EC) No 1348/2000, now replaced by Council Regulation (EC) No 1393/2007 (n 17). See Case C-443/03 Leffler [2005] ECR I-9611; Case C-14/07, Weiss und Partner [2008] ECR I-3367.

53 Brussels II bis Regulation (n 15). See Case C-435/06 C [2007] ECR I-10141; Case C-68/07 Lopez and Lopez Lizazo [2007] ECR I-10403; Case C-195/08 PPU Rinau [2008] ECR I-5271 (on the latter case, see also below, n 132–137 and accompanying text); Case C-523/07 A, judgment of 2 April 2009, not yet reported; Case C-403/09 PPU Detiček, judgment of 23 December 2009, not yet reported (on the latter case, see n 139–141 and accompanying text).

54 Rome I Regulation (n 22).

55 Rome II Regulation (n 21).

56 See K Lenaerts, D Arts and I Maselis (n 40) paras 22-001–22-008.

57 For example, ex art 68(3) EC provided that ‘[t]he Council, the Commission or a Member State may request the Court of Justice to give a ruling on a question of interpretation of this title or of acts of the institutions of the Community based on this title’, but ‘the ruling given by the Court of Justice in response to such a request shall not apply to judgments of courts or tribunals of the Member States which have become res judicata’.

58 Ex art 68(2) EC.

59 Ex art 68(1) EC.

60 See eg, Case C-24/02 Marseille Fret [2002] ECR I-3383, order of 22 March 2002; Case C-555/03 Warbecq [2004] ECR I-6041, order of 10 June 2004.

61 Brussels Convention and Protocol (n 9) and (n 49) respectively.

62 Rome Convention (n 9); see the First Protocol on the Interpretation of the Rome Convention by the Court of Justice and the Second Protocol Conferring on the Court of Justice Powers to Interpret the Rome Convention [1998] OJ C27/34 (consolidated version).

63 Council Regulation (EC) No 1393/2007 and Council Regulation (EC) No 2201/2003, (n 17) and (n 15) respectively.

64 See Case C-195/08 PPU Rinau (n 53), and further discussed below, (n 132)–(n 137) and accompanying text; as regards the urgent preliminary ruling procedure, see below, Part II.E.

65 Under ex art 67(2) EC, after a transitional period of five years following the entry into force of the Amsterdam Treaty, the Council, acting unanimously after consulting the European Parliament, had to take a decision with a view to ‘adapting the provisions relating to the powers of the Court’.

66 See the Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee, the Committee of the Regions and the Court of Justice of the European Communities, Adaptation of the provisions of Title IV of the Treaty establishing the European Community relating to the jurisdiction of the Court of Justice with a view to ensuring more effective judicial protection, COM(2006) 346 final. See further Editorial comment, ‘Preliminary rulings and the area of freedom, security and justice’ (2007) CMLR 1, 2–5.

67 Case 25/62 Plaumann v Commission [1963] ECR 95.

68 In broad terms, art 263 TFEU codifies the ruling of the European General Court (formerly the Court of First Instance) in Case T-177/01 Jégo Quéré v Commission [2002] ECR II-2365, and consequently supersedes the ruling of the ECJ in Case C-263/02 P Commission v Jégo-Quéré [2004] ECR I-3425.

69 See the Charter of Fundamental Rights of the European Union, proclaimed in Nice on 7 December 2000 [2000] OJ C364/1. See also the recently published version of the Charter of Fundamental Rights [2007] OJ C303/01, which specifies that it ‘adapts the wording of the Charter proclaimed on 7 December 2000, and will replace it as from the date of entry into force of the Treaty of Lisbon’.

70 Art 6 TEU.

71 Art 2, point 67 of the Treaty of Lisbon provides that ex art 68 EC is to be repealed.

72 See ex art 35(6) EU.

73 Case C-354/04 Gestoras Pro Amnistía and Others v Council [2007] ECR I-1579; Case C-355/04 P Segi and Others v Council [2007] ECR I-1657. Given that the relevant considerations of the ECJ in both cases are nearly identical, mention will be made to the first case only for the purposes of this discussion. For detailed discussion of these judgments and their significance, see, eg S Peers, ‘Salvation Outside The Church: Judicial Protection In The Third Pillar After The Pupino And Segi Judgments’ (2007) CMLR 883; M-G Garbagnati Ketvel, ‘Almost but not quite: The Court of Justice and Judicial Protection of Individuals in the Third Pillar’ [2007] European Law Reporter 223; M Nettesheim, ‘UN Sanctions Against Individuals—A Challenge To The Architecture Of European Union Governance’ (2007) CMLR 567.

74 Case C-354/04 Gestoras Pro Amnistía and Others v Council (n 73), paras 46–48.

75 ibid para 1.

76 ibid para 51.

77 ibid paras 52–53.

78 ibid para 53. The ECJ added that it would also have jurisdiction to review the lawfulness of such acts where an action had been brought by a Member State or the Commission on the conditions fixed by ex art 35(6) EU. It also stressed that it is for courts and tribunals of the Member States to interpret and to apply national procedural rules governing the exercise of rights of action in a way that enables natural and legal persons to challenge before such courts the lawfulness of any decision or other national measure relating to the drawing up of an act of the European Union or to its application to them and to seek compensation for any loss suffered. ibid paras 55–56.

79 See Case 52/75 Commission v Italy [1976] ECR 277, para 11; Case C-265/95 Commission v France [1997] ECR I-6959, para 63.

80 On infringement actions brought by a Member State on the basis of art 227 EC, see Case 141/78 France v United Kingdom [1979] ECR 2923, Case C-388/95 Belgium v Spain [2000] ECR I-3146; Case C-145/04 Spain v United Kingdom [2006] ECR I-7917. See further K Lenaerts, D Arts and I Maselis (n 40), para 5-029.

81 Judgment of the Bundesverfassungsgericht of 18 July 2005, 2 BvR 2236/04, Deutsches Verwaltungsblatt 2005, 1119–1128. In its judgment, the German Constitutional Court emphasized the differences, on the level of judicial enforcement, between the Community pillar and the third pillar.

82 Council Framework Decision 2002/584/JHA (n 27).

83 See the decision of the Audienica Nacional of 20 September 2005, reported (in French) in the Bulletin ‘Reflets’, Informations rapides sur les développements juridiques présentant un intérêt communautaire, 2005, n° 3, p. 14, available on the ECJ's website (http://curia.europa.eu/fr/coopju/apercu_reflets/common/recdoc/reflets/frame1.htm).

84 See the judgment of the Areios Pagos (Greek Supreme Court) of 20 December 2005, reported (in French) in Bulletin ‘Reflets’, Informations rapides sur les développements juridiques présentant un intérêt communautaire, 2006, n° 1, p 21, available on the ECJ's website (http://curia.europa.eu/fr/coopju/apercu_reflets/common/recdoc/reflets/frame1.htm).

85 It must be noted that, in its judgment n° P 1/05 of 27 April 2005 (ZU 2005/4A/42, Dz U 2005.77.680 of 4 May 2005), the Trybunal Konstytucyjny (the Polish Supreme Court) considered that the provisions of the criminal code implementing the Framework Decision on the European arrest warrant violated the Polish Constitution. See D Leczykiewicz, Case note, (2006) CMLR 1181.

86 See further K Lenaerts and T Corthaut, ‘Of Birds And Hedges: The Role Of Primacy In Invoking Norms Of EU Law’ (2006) ELRev 288.

87 See arts 60 and 72 of the Convention on the Law of Treaties, concluded at Vienna on 23 May 1969.

88 The 12th recital, second para, of the Preamble to the Framework Decision on the European Arrest Warrant, (n 27) provides that it ‘does not prevent a Member State from applying its constitutional rules relating to due process, freedom of association, freedom of the press and freedom of expression in other media’.

89 Information concerning the declarations by the Republic of Hungary, the Republic of Latvia, the Republic of Lithuania and the Republic of Slovenia on their acceptance of the jurisdiction of the Court of Justice to give preliminary rulings on the acts referred to in Article 35 of the Treaty on European Union [2008] OJ L70/23; [2008] C69/1.

90 This is the case for the following 18 Member States: Austria, Belgium, Cyprus, the Czech Republic, Finland, France, Germany, Greece, Hungary, Italy, Latvia, Lithuania, Luxembourg, the Netherlands, Portugal, Romania, Slovenia and Sweden.

91 This is the case for the following eight Member States: Bulgaria, Denmark, Estonia, Ireland, Malta, Poland, Slovakia and the United Kingdom.

92 Case C-105/03 Pupino [2005] ECR I-5285. For further discussion of this judgment, see, eg, S Peers, (n 73); M Fletcher, ‘Extending “Indirect Effect” to the Third Pillar: The Significance of Pupino’ (2005) ELRev 862; C Lebeck, ‘Sliding Towards Supranationalism? The Constitutional Status of EU Framework Decisions after Pupino’ (2007) German Law Journal 501; T Magno, ‘The Pupino Case: Background in Italian Law and Consequences for the National Judge’ (2007) ERA Forum 215; E Spaventa, ‘Opening Pandora's Box: Some Reflections on the Constitutional Effects of the Decision in Pupino’ (2007) EuConst 5; A Weyembergh, P De Hert and P Paepe, ‘L'effectivité du troisième pilier de l'Union européenne et l'exigence de l'interprétation conforme: la Cour de justice pose ses jalons’ (2006) Revue trimestrielle des droits de l'homme 269.

93 Council Framework Decision 2001/220/JHA, (n 25).

94 Case C-105/03 Pupino (n 92) paras 12–18.

95 ibid paras 43–47.

96 ibid paras 53–56, 61. At the same time, the ECJ pointed out that the Framework Decision concerned had to be interpreted so as to ensure respect for Ms. Pupino's fundamental rights, particularly the right to a fair trial under art 6 of the European Convention on Human Rights as interpreted by the European Court of Human Rights. ibid paras 57–60.

97 See (n 90).

98 See the Communication from the Commission to the Council and the European Parliament, Implementing The Hague Programme: the way forward, COM(2006) 331 final, particularly point 3.2. In the relevant passage, ex art 42 EU provided that the Council ‘acting unanimously on the initiative of the Commission or a Member State, and after consulting the European Parliament, may decide that action in areas referred to in ex art 29 [EU] shall fall under [ex] Title IV of the [EC Treaty], and at the same time determine the relevant voting conditions relating to it’.

99 See M Dougan, (n 34) 683, who argues that the transitional regime of the Treaty of Lisbon may be praised and despised at the same time. On the one hand, this transitional regime is ‘unobjectionable’ because it seemed the only way for some Member States to accept the full legal order of Title V of the FEU Treaty. Indeed, it mirrors the gradual integration in the field of justice and home affairs that began with the Maastricht Treaty, continued with the Amsterdam Treaty and is supposed to end with the expiration of the transitional period laid down in art 10 of Protocol (No 36). On the other hand, this transitional regime has given rise to considerable criticism. Since the level of judicial protection under the former third pillar was clearly insufficient, this transitional regime cannot be justified.

100 See art 10 (2) of Protocol (No 36) on Transitional Provisions Annexed to the Treaty of Lisbon.

101 Under art 263 TFEU, the ECJ is competent to review the legality of acts of the institutions and other bodies of the Union intended to produce legal effects vis-à-vis third parties.

102 On this point, the Treaty of Lisbon does not bring substantial changes to ex arts 235 and 288(2) EC.

103 Indeed, the application of the classic case-law on direct effect to new EU acts adopted under Title V of Part Three of the FEU Treaty is confirmed by the fact that legal instruments specific to the third pillar are abolished and replaced by Regulations, Directives and Decisions.

104 For an historical overview of the United Kingdom's right to opt-in/opt-out, see M Fletcher, ‘Schengen, the European Court of Justice and Flexibility Under the Lisbon Treaty: Balancing the United Kingdom's “Ins” and “Outs”’ [2009] EuConst 71.

105 In two cases decided in 2007, the ECJ provided useful guidance as to the relationship between arts 4 and 5 of ex Protocol (No 2). See Case C-77/05 United Kingdom v Council [2007] ECR I-11459 and Case C-137/05 United Kingdom v Council [2007] ECR I-11593. In essence, the ECJ ruled that in order for the United Kingdom to opt-in to a Community measure building on the Schengen acquis, it first must have accepted the relevant Schengen acquis upon which the measure is built.

106 M Fletcher (n 104) 80–81.

107 Protocol (No 21) on the Position of the United Kingdom and Ireland in respect of the Area of Freedom, Security and Justice.

108 Art 83 (2) TFEU.

109 It is worth noting that an analogous regime is provided by the amendments introduced by the Treaty of Lisbon to the new Schengen Protocol. Art 5(2) of the new Schengen Protocol provides that where the United Kingdom and Ireland have opted-in to an existing Schengen measure in accordance with art 4, they retain a right to opt-out of an EU measure building on this Schengen acquis. However, if they exercise the right to opt-out, the Council may decide that the original Schengen measure no longer applies to them in whole or in part. Art 5(3) of the new Schengen Protocol states that the Council must take its decision in accordance with the following criteria: it must ‘seek to retain the widest possible measure of participation of the Member State concerned without seriously affecting the practical operability of the various parts of the Schengen acquis, while respecting their coherence’. Further, in order not to render art 5(1) of the new Schengen Protocol redundant, it seems that the United Kingdom and Ireland would enjoy an unconditional right of opt-in in respect of new measures building on the Schengen acquis. Does this mean that the new Schengen Protocol overrules the decisions of the ECJ in Case C-77/05 United Kingdom v Council (n 105), and Case C-137/05 United Kingdom v Council (n 105) ? Has the relationship between arts 4 and 5 of the old Schengen Protocol been modified by the Treaty of Lisbon? M Dougan (n 34) 685, and M Fletcher (n 104) 92, suggest that these rulings remain good law at least in part. With a view to preserving the effet utile of art 4, the United Kingdom and Ireland's right to opt-in should be limited to measures building on the Schengen acquis which can be applied autonomously. See also the Opinion of AG Trstenjak in these cases.

110 Ireland is not subject to these transitional arrangements.

111 Art 10 (5) of Protocol (No 36) on Transitional Provisions Annexed to the Treaty of Lisbon provides that the United Kingdom may subsequently notify to the Council that it wishes to participate in specific pre-existing acts. In that case, the new Protocol on the Schengen acquis or Protocol (No 21) shall apply.

112 See M Dougan (n 34) 684 (arguing that it is very unlikely for the United Kingdom to exercise its repudiatory opt-out in practice). By contrast, see M Fletcher (n 104) 94 (opining that art 10(4) and (5) of Protocol (No 36) ‘present a much greater danger to the coherence of the Area of Freedom, Security and Justice than does [Protocol (No 21)]’. In her view, these transitional arrangements may have ‘a perverse incentive for the UK government dissatisfied with some of the measures adopted under [the former third pillar]’, since the UK government may opt-out of chunks of pre-existing legislation adopted under ex Title VI of the old EU Treaty so that it may later ‘re-accept only those measures it thinks are palatable’).

113 See art 23 of the Statute of the Court of Justice.

114 In that event, those mentioned in art 23 of the Statute of the Court of Justice may, within a period prescribed by the President which shall not be less than fifteen days, lodge written observations, and the President may request them to restrict the matters addressed in their oral statements or written observations to the essential points of law raised by the question referred. Art 104a, paras 2–3, of the Rules of Procedure of the Court of Justice.

115 See Case C-127/08 Metock [2008] ECR I-06241, para 63.

116 As regards the application concerning the accelerated procedure, see Case C-66/08 Kozłowski, order of 22 February 2008. As for the ECJ's judgment, see Case C-66/08 Kozłowski [2008] ECR I-6041.

117 Case C-66/08 Kozłowski, order of 22 February 2008, para 10.

118 ibid.

119 ibid.

120 ibid.

121 ibid para. 11.

122 ibid.

123 ibid para. 12.

124 ibid paras 5–7

125 Case C-66/08 Kozłowski (n 116) paras 42–43.

126 ibid para 48

127 ibid. See also Case C-123/08 Wolzenburg, judgment of 6 October 2009, not yet reported.

128 See Council Decision 2008/79/EC, Euratom of 20 December 2007 Amending the Protocol on the Statute of the Court of Justice [2008] OJ L24/42; and Amendments to the Rules of Procedure of the Court of Justice [2008] OJ L24/39.

129 In the urgent procedure, only the parties to the main proceedings, the Member State of the court making the reference, the Commission and, if appropriate, the Council and the European Parliament, if one of their measures is at issue, are authorised to lodge written observations in the language of the case within a short period of time. The other interested parties and, in particular, the Member States other than that of the referring court, are not given the opportunity to submit written observations, but they are invited to a hearing at which they may submit their oral observations on the questions referred by the national court and on the written observations related thereto. See art 104b(2)–(3) of the Rules of Procedure of the Court of Justice.

130 If that Chamber decides to grant the request for the urgent procedure to be applied, it will proceed to give its ruling at the close of the oral stage of the proceedings after hearing the Advocate General. See art 104b(5) of the Rules of Procedure.

131 Communication between the ECJ and the national courts, the parties to the main proceedings, the Member States and the Community institutions will, as far as possible, be conducted electronically. Court of Justice Information for the Press No 12/08 of 3 March 2008, available at the ECJ's website, http://curia.europa.eu.

132 Case C-195/08 PPU Rinau (n 53).

133 Council Regulation (EC) No 2201/2003 (n 15).

134 Case C-195/08 PPU Rinau (n 53) para 44.

135 ibid.

136 ibid para 45.

137 ibid para 46.

138 ibid para 89.

139 Case C-403/09 PPU Detiček (n 53).

140 ibid para 30.

141 The referring court submitted the reference on 19 October 2009, and the ECJ's ruling was delivered on 23 December 2009.

142 Case C-403/09 PPU Detiček (n 53) para 47.

143 ibid para 49.

144 ibid para 57.

145 Case C-357/09 PPU Kadzoev, judgment 30 November 2009, not yet reported.

146 Council Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on Common Standards and Procedures in Member States for Returning Illegally Staying Third-Country Nationals [2008] OJ L 348/98.

147 In essence, the Sofia City Administrative Court asked four questions: [1] Must the maximum duration of detention laid down in art 15 include a period of detention completed before the rules in Directive 2008/115 became applicable? [2] When calculating the period of detention for the purposes of removal under arts 15 (5) and (6) of Directive 2008/115, must the period during which the execution of the removal decision was suspended because of the examination of an application for asylum of (or because of judicial review proceedings brought against the decree of deportation by) a third country national who is being held in a detention facility be taken into account? [3] Does the concept of ‘reasonable prospect of removal’ remain relevant after the expiration of the period laid down in arts 15 (5) and 15 (6)? [4] May grounds of public order and public safety be put forward by national authorities to keep a person in a detention facility?

148 Case C-357/09 PPU Kadzoev (n 145) para 32.

149 This was the first time that Directive 2008/115 was interpreted by the ECJ.

150 The referring court submitted the reference on 10 August 2009, and the ECJ's ruling was delivered on 30 November 2009.

151 Case C-357/09 PPU Kadzoev (n 145) para 39.

152 ibid para 47.

153 ibid para 53.

154 ibid para 61.

155 ibid para 66.

156 ibid para 70. It is worth nothing that, as a result of the ruling of the ECJ, Mr Kadzoev was released on 3 December 2009. Information available at: http://lcrien.wordpress.com/2009/12/03/said-kadzoev-has-been-released-from-the-busmantsi-detention-centre/.

157 Case C-296/08 PPU Santesteban Goicoechea [2008] ECR I-6307.

158 Case C-388/08 PPU Leymann and Pustovarov, judgment of 1 December 2008, not yet reported.

159 Council Framework Decision 2002/584/JHA, (n 27).

160 Case C-296/08 PPU Santesteban Goicoechea (n 157) para 33.

161 The referring court submitted the reference on 3 July 2008, and the ECJ's ruling was delivered on 12 August 2008.

162 Case C-296/08 PPU Santesteban Goicoechea (n 157) para. 63.

163 ibid para 81.

164 Case C-388/08 PPU Leymann and Pustovarov (n 158) para 38.

165 The referring court submitted the reference on 5 September 2008, and the ECJ's ruling was delivered on 1 December 2008.

166 Case C-388/08 PPU Leymann and Pustovarov (n 158) para 36.

167 ibid para 57.

168 ibid para 62.

169 ibid para 76.

170 Case C-7/98 Krombach [2000] I-1935.

171 Brussels Convention (n 9).

172 By virtue of art 27, point 1, of the Brussels Convention, a judgment will not be recognized ‘if such recognition is contrary to public policy in the State in which recognition is sought’.

173 Case C-7/98 Krombach (n 170) paras 21–22. For a selection of earlier cases, see eg, Case 145/86, Hoffmann [1988] ECR 645, para. 21; Case C-78/95 Hendrikman and Feyen [1996] I-4943 para 23.

174 Case C-7/98 Krombach (n 170) para 23.

175 Ex art F(2) (post 1999 numbering: ex art 6 (2)) EU provided: ‘The Union shall respect fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms signed in Rome on 4 November 1950 and as they result from the constitutional traditions common to the Member States, as general principles of Community law’. The concepts contained in this provision are now reproduced in art 6 TEU. In addition, art 6 TEU grants to the Charter the same legal value as the Treaties (art 6 (1)) and provides for the accession of the EU to the ECHR (art 6(2)).

176 Case C-7/98 Krombach (n 170) paras 25–26. See also Case C-185/95 P Baustahlgewebe v Commission [1998] ECR I-8417, paras 20–21; Joined Cases C-174/98 P and C-189/98 P The Netherlands and van der Wal v Commission [2000] ECR I-1, para 17.

177 Case C-7/98 Krombach (n 170) para 37.

178 ibid.

179 ibid para 38.

180 See European Court of Human Rights, judgment of 23 November 1993 in Poitrimol v France, Series A No 277-A; judgment of 22 September 1994 in Pelladoah v Netherlands, Series A No 297-B; judgment of 21 January 1999 in Van Geyseghem v Belgium, No 26103/95.

181 Case C-7/98 Krombach (n 170) paras 38–40. More recently, in Case C-394/07 Gambazzi, judgment of 2 April 2009, not yet reported, an Italian court made a reference asking whether art 27(1) of the Convention could be relied upon with a view to denying execution of a British judgment adopted in proceedings where the defendant was excluded by an order, holding that he had not complied, within the prescribed time-limit, with the disclosure obligations imposed by an order adopted at an earlier stage. The ECJ held that though, for the purposes of defining ‘public policy’, the right of defence occupied a prominent position in the organization and conduct of a fair trial, this right was subject to restrictions. These restrictions had to correspond to a legitimate objective of public interest and not be a manifest and disproportionate breach of the right of defence. Said differently, it is for the national court to carry out a balancing exercise. Given that excluding the defendant from participating in the proceedings is the most serious restriction on the rights of defence, the ECJ ruled that ‘such a restriction must satisfy very exacting requirements’. ibid para 33. As a result, the ECJ was very thorough in listing all the circumstances that the Italian court had to examine before ruling out the exception contained in art 27(1). Indeed, the ECJ compelled the national court in which enforcement was sought to undertake a ‘comprehensive assessment of the proceedings’. ibid paras 41-45.

182 Council Regulation (EC) No 1346/2000 (n 16).

183 Case C-341/04 Eurofood [2006] ECR I-3813.

184 ibid para 66.

185 ibid para 67.

186 Brussels I Regulation, (n 13).

187 For instance, it is made explicit that the ‘public policy’ clause of art 34(1) of the Brussels I Regulation can only apply in cases that are ‘manifestly’ contrary to public policy, in conformity with the ECJ's judgment in Krombach (n 170 ) on the Brussels Convention, which did not state this explicitly.

188 Case C-283/05 ASML (n 50).

189 Art 34(2) of the Brussels I Regulation provides that a judgment will not be recognised where it was given in default of appearance ‘if the defendant was not served with the document which instituted the proceedings or with an equivalent document in sufficient time and in such a way as to enable him to arrange for his defence, unless the defendant failed to commence proceedings to challenge the judgment when it was possible for him to do so’.

190 Case C-283/05 ASML (n 50) para 49.

191 ibid paras 23–24.

192 Case C-420/07 Apostolides, judgment of 28 April 2009, not yet reported.

193 ibid para 78.

194 Council Regulation (EC) No 1348/2000, now replaced by Council Regulation (EC) No 1393/2007, (n 17).

195 Case C-14/07 Weiss und Partner (n 52).

196 ibid para 48.

197 An anti-suit injunction may be defined as an order issued by a national court (usually a common law court) precluding the opposing party from bringing proceedings in another jurisdiction. Failure to comply with this order is a contempt of court, for which sanctions may be imposed. In addition, the foreign judgment may not be recognised or enforced in the jurisdiction where the anti-suit injunction was issued.

198 A Clarke, ‘The Differing Approach to Commercial Litigation in the European Court of Justice and the Courts of England and Wales’ (2007) EBL Rev 101, 105.

199 Art 23 of the Brussels I Regulation (n 13); art 17 of the Brussels Convention (n 9).

200 Art 27 of the Brussels I Regulation (n 13); art 21 of the Brussels Convention (n 9).

201 Opinion of AG Léger in Case C-116/02 Gasser [2003] ECR I-14693, para 83.

202 Case C-116/02 Gasser [2003] ECR I-14693; Case C-159/02 Turner [2004] ECR I-3565; Case C-185/07 Allianz, judgment of 10 February 2009, not yet reported.

203 In order to determine whether a dispute falls within the substantive scope of the Brussels I Regulation, the ECJ ruled that ‘reference must be made solely to the subject-matter of the proceedings’, that is, to ‘the nature of the rights which the proceedings in question serve to protect’. See Case C-185/07 Allianz (n 202) para. 22

204 ibid para 24. See also Opinion of AG Kokott in the same case, paras 53 and 54.

205 ibid paras 24–26.

206 Case C-116/02 Gasser (n 202) para 51.

207 A Clarke (n 198) 117.

208 The ECJ has taken a similar approach in relation to the common law doctrine of ‘forum non conveniens’. See Case C-281/02 Owusu [2005] ECR I-1383, paras 37–46 (where the ECJ held that ‘[i]t is common ground that no exception on the basis of the forum non conveniens doctrine was provided for by the authors of the Convention’ and that ‘[a]pplication of the forum non conveniens doctrine, which allows the court seised a wide discretion as regards the question whether a foreign court would be a more appropriate forum for the trial of an action, is liable to undermine the predictability of the rules of jurisdiction laid down by the Brussels Convention, […] and consequently to undermine the principle of legal certainty, which is the basis of the Convention’).

209 TC Hartley, ‘The European Union and the Systematic Dismantling of the Common Law of Conflict of Laws’ (2005) ICLQ 813.

210 See, for example, A Briggs, ‘Anti-suit Injunctions and Utopian Ideals’ [2004] LQR 529, 533 (holding that ‘[s]uch answers, patched together from the law of remedies, may be little to be proud of. But with the anti-European-suit injunction having been destroyed by enemy action or friendly fire, all a litigant can do is salvage what he may from the wreckage, while the rest of us redouble our trust in the legal systems of the other Member States’).

211 See, for example, TC Hartley (n 209) 822 (stating that ‘[t]hanks to the European Court, a litigant can now bring proceedings in bad faith in Italy simply to prevent himself from being sued elsewhere. Pacta servanda sunt no longer appears to apply to choice-of-court agreements’).

212 A Giannakoulias and H Meidanis, Case note (2009) CMLR 1709, 1724 (concluding that ‘the solution given by the ECJ was the only possible one in the EU context. It is certainly a matter of future policy and of the new text of the Regulation to face the problem that may arise in case an arbitration (or a jurisdiction) clause is not honoured by one of the parties’).

213 For a detailed analysis of the concept of ‘mutual trust’, see F Blobel and P Spath, ‘The Tale Of Multilateral Trust And The European Law Of Civil Procedure’ [2005] ELRev 528.

214 Case C-116/02 Gasser (n 202) paras 48–49; Case C-185/07 Allianz (n 202) para 29.

215 T Kruger, ‘Case Comment— The Anti-Suit Injunction in the European judicial space: Turner v Grovit’, (2004) ICLQ 1030, 1036. Case C-159/02 Turner (n 202) paras 25–26.

216 Case C-159/02 Turner (n 202) para 24; Case C-116/02 Gasser (n 202) para 72; Case C-185/07 Allianz (n 202) para 30.

217 Case C-116/02 Gasser (n 202) para 41.

218 Case C-159/02 Turner (n 202) para 30.

219 Opinion of AG Kokott in Allianz (n 202) para 58. See also Case C-185/07 Allianz (n 202) para 31. The ECJ has also deployed the principle of effective judicial protection to exclude the application of the forum non coveniens doctrine, see Case C-281/02 Owusu (n 208) para 42.

220 It is worth noting, however, that, in Gasser, the United Kingdom argued that the lis pendens rule should not be automatically applied where ‘(1) the claimant has brought proceedings in bad faith before a court without jurisdiction for the purpose of blocking proceedings before the courts of another Contracting State which enjoy jurisdiction under the Brussels Convention and (2) the court first seised has not decided the question of its jurisdiction within a reasonable time.’ Put simply, the court second seised should continue with the proceedings in the event of an ‘Italian torpedo’. The United Kingdom relied on art 6 ECHR, which guarantees that everyone has a right to a fair hearing within a reasonable period of time to determine his civil rights and obligations. The ECJ dismissed this suggestion. First, it argued that art 21 of the Brussels Convention does not cease to apply because of the length of proceedings before the courts of the Contracting State concerned. Second, even if the legal systems of some Contracting States are far from being perfect, Contracting States must continue to trust each other. Finally, an exception to the automatic application of the lis pendens rule would undermine legal certainty. Case C-116/02 Gasser (n 202) paras 71–72.

221 C Teitgen-Colly, ‘The European Union and Asylum: An Illusion of Protection’ (2006) CMLR 1503.

222 M Gil-Bazo, ‘The Charter of Fundamental Rights of the European Union and the Right to Be Granted Asylum in the Union's Law’ [2008] Refugee Survey Quarterly 33, 42 (holding that ‘[a]n examination of the Charter's travaux préparatoires provides insight into art 18 and confirms that the right to asylum was conceived as a right of individuals’).

223 Council Directive 2001/55/EC of 20 July 2001 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 212/12 (hereinafter ‘the Temporary Protection Directive’).

224 Council Directive 2003/9/EC of 27 January 2003 Laying Down Minimum Standards for the Reception of Asylum Seekers [2003] OJ L 31/18 (hereinafter ‘the Reception Directive’).

225 Council Regulation (EC) No 343/2003 of 18 February 2003 Establishing the Criteria and Mechanisms for Determining the Member State Responsible for Examining an Asylum Application Lodged In One of the Member States by a Third-Country National [2003] OJ L 50/1 (hereinafter ‘the Dublin II Regulation’).

226 Council Directive 2004/83/EC of 29 April 2004 on Minimum Standards for the Qualification and Status of Third Country Nationals or Stateless Persons as Refugees or as Persons who Otherwise Need International Protection and the Content of the Protection Granted [2004] OJ L 304/12 (hereinafter ‘the Qualification Directive’).

227 Council Directive 2005/85/EC of 1 December 2005 on Minimum Standards on Procedures in Member States for Granting and Withdrawing Refugee Status [2005] OJ L 326/13 (hereinafter ‘the Procedures Directive’).

228 C Costello, ‘The Asylum Procedures Directive in Legal Context: Equivocal Standards Meet General Principles’ in A Baldaccini, E Guild and H Toner (eds), Whose Freedom, Security and Justice? (Hart Publishing, Oxford, 2007) 192.

229 M Gil-Bazo, ‘Refugee Status and Subsidiary Protection under EC Law: The Qualification Directive and the Right to Be Granted Asylum’ in A Baldaccini, E Guild and H Toner, (n 228) 262. See also C Teitgen-Colly, (n 221) 1562 (arguing that ‘[m]oderate progress and some truly regressive steps, these are the two trends that predominate in the [Qualification Directive]’); J McAdam, ‘The European Union Qualification Directive: The Creation of a Subsidiary Protection Regime’ [2005] Intl J Ref L 461, 516 (concluding that ‘[t]he Directive should not be viewed as an example of complementary protection for universal adoption. […] its scope is far narrower than protection principles under international human rights law, humanitarian law and international criminal law provide’).

230 See M Costello (n 228) (184–188) (who argues that general principles ‘provide a legal tool to read exceptions in the Procedures and Qualification Directives narrowly’. For example, she draws on the general principle of effective judicial protection—Case 222/84 Johnston [1986] ECR 165—to argue that the qualification of a third country or of a country of origin as ‘safe’ must be open to judicial scrutiny in individual cases).

231 See art 19 of the Charter. See also M Gil-Bazo (n 229) 245–252 (opining that, although art 21 of the Qualification Directive may be consistent with art 33 (2) of the 1951 Geneva Convention as regards the security derogations to non-refoulement, this provision may raise tensions with ‘broader international law obligations of the Member States’, in particular the case-law of the ECtHR on art 3 ECHR. See Chahal v United Kingdom judgment of 15 November 1996, Reports of Judgments and Decisions 1996-V. Recently confirmed by Saadi v Italy, judgement of 28 February 2008, Application No 37201/06).

232 For a discussion on the application of general principles to minimum harmonization, see F de Cecco, ‘Room To Move? Minimum Harmonization and Fundamental Rights’ (2006) CMLRev 9 (The author reckons that there are three different scenarios where general principles may apply to the upwardly-flexible area, namely: (1) where it is impossible to separate the stricter national measure from the minimum EU standard (‘non-severability of national measures’); (2) where national legislation refers back to concepts defined in EU secondary legislation (‘EU law concepts’); and (3) where ‘sufficient connections exist between the [EU] regulatory framework and national legislation to justify the latter being subjected to judicial review as a matter of [EU] law’).

233 S Peers, ‘Legislative Update: EU Immigration and Asylum Competence and Decision-Making in the Treaty of Lisbon’, [2008] EJML 219, 233.

234 See, for example, for the Temporary Protection Directive: C-455/04 Commission v United Kingdom [2006] ECR I-32; for the Reception Directive: C-102/06 Commission v Austria [2006] ECR I-111; Case C-72/06 Commission v Greece (n 44); for the Qualification Directive: C-356/08 Commission v United Kingdom, judgment of 30 April 2009, not yet reported. For a case involving an inter-institutional conflict between the European Parliament and the Council, see Case C-133/06 Parliament v Council [2008] ECR I-3189.

235 In Case C-357/09 PPU Kadzoev (n 145) para 45, the ECJ also interpreted art 18 of the Procedures Directive and art 21 of the Reception Directive, although these two articles were not the main focus of the case. The ECJ pointed out that detention for the purpose of removal under these two Directives and detention for the purpose of removal under Directive 2008/115, (n. 146), ‘fall under different legal rules’.

236 Case C-19/08 Petrosian, judgment of 29 January 2009, not yet reported.

237 Case C-465/07 Elgafaji, judgment of 17 February 2009, not yet reported.

238 Joined Cases C-175, 176, 178 and 179/08 Salahadin Abdulla and Others, judgment of 2 March 2010, not yet reported.

239 Case C-19/08 Petrosian (n 236) para 38.

240 ibid para 46.

241 ibid para 49.

242 ibid para 52.

243 Note that in Petrosian the ECJ decided that no Advocate General's Opinion was required and that the case should be allocated to a Chamber of 5 judges for deliberation.

244 These reasons are: race, religion, nationality, political opinion or membership of a particular social group.

245 It is worth noting that in pending Case C-31/09 Bolbol the ECJ has been asked to interpret art 12 (1) (a) of the Qualification Directive. According to this provision, a person receiving the protection or assistance of a UN organ or agency (other than the UNHCR) cannot have refugee status. Art 12 (1) (a) adds that ‘[w]hen such protection or assistance has ceased for any reason, without the position of such persons being definitely settled in accordance with the relevant resolutions adopted by the General Assembly of the United Nations, these persons shall ipso facto be entitled to the benefits of this Directive’. In essence, the referring court asked three questions. First, is refugee status excluded where the person concerned is entitled to protection or assistance of the UN agency or is it also necessary for him actually to avail himself of that protection or assistance? Second, when does the cessation of the agency's protection or assistance take place? Finally, if the agency's protection has ceased as regards the person concerned, is he recognised as a refugee (or, alternatively, awarded subsidiary protection) automatically or does he simply fall within the scope ratio personae of the Directive?

246 See J McAdam (n 229) 469–487.

247 Art 2(e) of the Qualification Directive defines ‘person eligible for subsidiary protection’ as ‘a third country national or a stateless person who does not qualify as a refugee’.

248 The Qualification Directive provides exclusion clauses applicable to subsidiary protection with a far wider reach than those for refugees (compare art 12 (refugees) with art 17 (subsidiary protection) of the Qualification Directive). Beneficiaries of subsidiary protection do not enjoy similar working conditions, social welfare entitlements, and access to health care as refugees do. See J McAdam (n 229) 498–514.

249 See J McAdam (n 229) 499–500.

250 UN High Commissioner for Refugees, UNHCR's Observations on the European Commission's Proposal for a Council Directive on Minimum Standards for the Qualification and Status of Third Country Nationals and Stateless Persons as Refugees or as Persons Who Otherwise Need International Protection (Brussels, 12 September 2001, COM(2001) 510 final, 2001/0207 (CNS)), 1 November 2001, available at: <http://www.unhcr.org/refworld/docid/3c6a69254.html>.

251 Note that, in contrast to the 1951 Geneva Convention which applies to ‘any person’, the Qualification Directive excludes EU citizens. This is due to the Protocol (No 24) on asylum for nationals of Member States of the European Union.

252 J McAdam (n 229) 471 (observing that ‘the substantial grounds test requires an analysis of the country conditions and human rights standards as a prerequisite for determining whether persecution or serious harm may exist in a given situation’).

253 See J McAdam (n 229) 476–479.

254 See Salah Sheekh v the Netherlands, judgment of 11 January 2007, Application no 1948/04 (where the ECtHR appears to give a broader content and scope to art 3 ECHR).

255 Opinion of AG Poiares Maduro in Elgafaji (n 237) of 9 September 2008, not yet reported, para 31.

256 See Opinion of AG Poiares Maduro in Elgafaji (n 255) para 16. See also UN High Commissioner for Refugees, Asylum in the European Union. A Study of the Implementation of the Qualification Directive, November 2007, available at: <http://www.unhcr.org/refworld/docid/473050632.html>, 71–73.

257 UN High Commissioner for Refugees, Asylum in the European Union. A Study of the Implementation of the Qualification Directive (n 256) 74.

258 ibid 15.

259 Case C-465/07 Elgafaji (n 237) para 28.

260 ibid paras 32–34.

261 ibid para 35.

262 ibid para 36.

263 ibid para 39.

264 Opinion of AG Poiares Maduro in Elgafaji (n 255) para 38.

265 Case C-465/07 Elgafaji (n 255) 35.

266 Joined Cases C-175, 176, 178 and 179/08 Salahadin Abdulla and Others (n 238 ).

267 ibid para 69.

268 ibid para 70. See also the Opinion of AG Mázak in the same Case, of 15 September 2009, not yet reported, para 54.

269 ibid para 72.

270 ibid para 75.

271 ibid para 79.

272 ibid para 80.

273 ibid para 90.

274 Case C-303/05 Advocaten voor de Wereld [2007] ECR I-3633.

275 Framework Decision 2002/584/JHA, (n 27).

276 Case C-303/05 Advocaten voor de Wereld (n 274) paras 11–13.

277 ibid paras 27–43.

278 Case C-354/04 Gestoras Pro Amnistía (n 73).

279 Case C-355/04 P Segi (n 73).

280 Case C-303/05 Advocaten voor de Wereld (n 274) para 45. The ECJ further specified that those principles include the principle of the legality of criminal offences and penalties and the principle of equality and non-discrimination, which are also reaffirmed in arts 49, 20 and 21, respectively, of the Charter, (n 69).

281 Case C-303/05 Advocaten voor de Wereld (n 274) para 48.

282 ibid para 49, where the ECJ referred to Cases C-189/02 P, C-202/02 P, C-205/02 P – C-208/02 P and C-213/02 P Dansk Rørindustri and Others v Commission [2005] I-5425, paras 215–219.

283 Case C-303/05 Advocaten voor de Wereld, (n 274) para 52.

284 ibid.

285 ibid para 53.

286 With regard, first, to the choice of the thirty-two categories of offences listed in art 2(2) of the Framework Decision, the ECJ held that the Council was able to form the view, on the basis of the principle of mutual recognition and in the light of the high degree of trust and solidarity between the Member States, that, whether by reason of their inherent nature or by reason of the punishment incurred of a maximum of at least three years, the categories of offences in question feature among those the seriousness of which in terms of adversely affecting public order and public safety justifies dispensing with the verification of double criminality. With regard, second, to the fact that the lack of precision in the definition of the categories of offences in question risks giving rise to disparate implementation of the Framework Decision within the various national legal orders, the ECJ pointed out that it is not the objective of the Framework Decision to harmonise the substantive criminal law of the Member States and that nothing in ex Title VI of the old EU Treaty, ex arts 34 and 31 of which were indicated as forming the legal basis of the Framework Decision, makes the application of the European arrest warrant conditional on harmonization of the criminal laws of the Member States within the area of the offences in question. ibid paras 56–60.

287 Convention implementing the Schengen Agreement of 14 June 1985 between the Governments of the States of the Benelux Economic Union, the Federal Republic of Germany and the French Republic on the Gradual Abolition of Checks at their Common Borders, signed at Schengen (Luxembourg) on 19 June 1990 [2000] OJ L239/19 (hereinafter ‘CISA’).

288 Art 54 of the CISA provides: ‘A person whose trial has been finally disposed of in one Contracting Party may not be prosecuted in another Contracting Party for the same acts provided that, if a penalty has been imposed, it has been enforced, is actually in the process of being enforced or can no longer be enforced under the laws of the sentencing Contracting Party.’

289 See Joined Cases C-187/01 and C-385/01 Gözütok and Brügge [2003] ECR I-1345, para 38; Case C-469/03 Miraglia [2005] ECR I-2009, para 32; Case C-297/07 Bourquain, judgment of 11 December 2008, not yet reported, para 41; Case C-491/07 Turanský, judgment of 22 December 2008, not yet reported, para 41.

290 See Case C-436/04 Van Esbroeck [2006] ECR I-2333, paras 36, 42; Case C-150/05 Van Straaten [2006] ECR I-9327, paras 48, 53; Case C-467/04 Gasparini and Others [2006] ECR I-9199, para 54; Case C-288/05 Kretzinger [2007] ECR I-6441, para 29. The latter case, Kretzinger, concerned the transport by lorry through Italy and Germany, and bound for the United Kingdom of cigarettes from countries that were not members of the European Union, which had previously been illegally smuggled into Greece by third parties. The question referred to the ECJ was whether it is a criminal prosecution of ‘the same acts’ within the meaning of art 54 of the CISA if a defendant has been convicted by an Italian court of importing contraband foreign tobacco into Italy and of being in possession of it there, as well as of failing to pay duty at the border on importing the tobacco, and is subsequently convicted by a German court—in connection with his earlier receipt of the same goods in Greece—of being party to evasion in relation to the (technically) Greek import duty that arose when the goods were previously imported by third parties, in so far as the defendant had intended from the outset to transport the goods to the United Kingdom via Italy, after taking delivery of them in Greece. The ECJ considered that the conduct described constituted conduct which may be covered by the notion of ‘same acts’ within the meaning of art 54, but added that it was for the competent national courts to make the final assessment in that respect. ibid para 36.

291 See Case 7/72 Boehringer Mannheim v Commission [1972] ECR 1281, para 3; Joined Cases C-238/99 P, C-244/99 P, C-245/99 P, C-247/99 P, C-250/99 P -C-252/99 P and C-254/99 P Limburgse Vinyl Maatschappij and Others v Commission [2002] ECR I-8375, para 59; Case C-308/04 P SGL Carbon v Commission [2006] ECR I-5977, para 26.

292 See Cases C-238/99 P, C-244/99 P, C-245/99 P, C-247/99 P, C-250/99 P-C-252/99 P and C-254/99 Limburgse Vinyl Maatschappij (n 291) para 59. Admittedly, in competition law, the application of this condition is subject to three conditions: identity of the facts, unity of offender and unity of the legal interest protected. See further K Lenaerts, ‘Some thoughts on evidence and procedure in European Community competition law’ [2007] Fordham Int LJ 1463, 1491–1494. The application of the principle in the context of art 54 of the CISA will be slightly different. This is because it serves different objectives in these respective fields. In competition matters, the principle is invoked in relations with third countries, whereas in the context of art 54 of the CISA, it invariably relates to interactions between Member States. Furthermore, between Member States, it is presumed that the legal interest to be protected is a common one. In competition matters, by contrast, no such presumption exists regarding the legal interest protected by the Union, on the one hand, and by a third country, on the other.

THE CONTRIBUTION OF THE EUROPEAN COURT OF JUSTICE TO THE AREA OF FREEDOM, SECURITY AND JUSTICE

  • Koen Lenaerts (a1)

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