Judicial Infringements at the Court of Justice – A brief comment on the phenomenal Commission/France (C-416/17)

One of the fascinating features of EU law is that no matter how well established its classics may be, they are revisited over and over again. If you thought you had seen it all about preliminary references, think twice. Always think twice, because you can never be fully sure until the Court’s next judgment.

Last week, many of us saw something that could have happened years ago, but which has taken more than six decades to occur. For the very first time, the Court of Justice has ruled that a Member State failed to fulfil its obligations under Article 267 TFEU in an infringement action, as a result of the decision of a national Supreme Court to refuse to make a preliminary reference. It’s a first that could become a ground-breaking development for the future. It’s also a first that could alter the way in which Supreme Courts cooperate with the Court of Justice and their executives. The complex repercussions of this judgment are still early to envisage, but it is clear that the decision is a tremendous step forward in the development of a coherent system of remedies in Europe.

But first, the facts and the background of the case.

In the year 2011, in the judgment in the case of Accor (C-310/09), the Court ruled that France had breached the Treaties due to the difference in tax treatment of dividends according to the Member State of residence of subsidiaries. The Court also ruled on the conditions in which the evidence required by the tax authorities could be established. Shortly after, the Conseil d’État followed the Court’s decision, but it ruled on a point that had not been addressed in Accor: the tax treatment applicable for the case of sub-subsidiaries. Even though the Court rendered a decision after Accor on this point, the Conseil d’État considered that the precedent was distinguishable. As a result, and with no prior preliminary reference to the Court, the Conseil d’État ruled that the tax paid by a sub-subsidiary did not have to be taken into account in determining advance payments to the parent company. The Conseil d’État also established certain conditions on the evidence that must be provided by the company to the tax authorities, in terms not fully coincidental with the ones enunciated by the Court in Accor.

Following the judgments of the Conseil d’État, the Commission received several complaints from undertakings unable to request reimbursements of advance payments made by French companies which had received dividends of foreign origin. The Commission sent a letter of formal notice to the French authorities and eventually sent a reasoned opinion which, finally, ensued in an action of infringement on the grounds of Article 258 TFEU. Among the grounds of review, the Commission introduced a novelty. For the first time, a Member State was brought before the Court of Justice due to a failure of its supreme court to make a preliminary reference pursuant to the third paragraph of Article 267 TFEU.

In a groundbreaking judgment rendered on 4 October 2018, the Court sided with the Commission and declared that the Conseil d’État had erred in law when refusing reimbursements of the advance payments of sub-subsidiaries in another Member State. However, the Court rejected the Commission’s concerns on the grounds based on the evidentiary requirements imposed by the Conseil d’État. But having declared one of the three alleged breaches on the substance of the case, the Court went on to determine whether the Conseil d’État should have made a preliminary reference in the case at hand.

According to the Court, the Conseil d’État faced a legal framework in which the judgment in Accor made no specific reference to sub-subsidiaries. Therefore, despite the fact that the Court had later rendered a ruling on the matter, it had not done so on the specific point in question before the French court. In addition, the Conseil d’État decided to depart from the case-law of the Court following Accor, with the argument that the said case-law concerned UK law, which differed from French law. The Court rejected this approach and stated that, precisely because the Conseil d’État had confirmation that the Court’s case-law was developing in a different direction to the one that the Conseil had in mind, it was under a particularly imperative duty to make a preliminary reference. As a result, the French Republic (ie, the Conseil d’État) failed to fulfil its obligations under the third paragraph of Article 267 TFEU.

This might sound like a rather obscure and technical judgment, but it hides a revolutionary development for the EU’s judiciary.

First, the Court has sent a powerful message to national supreme courts, a message that complements its decision in Ferreira da Silva (C-160/14), a case in which, for the first time, it declared a breach of the Cilfit doctrine of acte claire. Now the Court takes a step forward and goes as far as declaring a breach by a Member State, in the context of an infringement action, when the Cilfit doctrine is breached by a supreme court. Therefore, Cilfit has fully sharpened its teeth and the Court is willing to bite with it.

Second, the Court has come full circle in a process that has taken almost fifteen year to develop. In Commission/Italy (C-129/00), the Court dealt for the first time with the tricky question of whether a national judiciary’s decisions can trigger a Member State’s breach of EU law in the context of an infringement procedure. The case was deliberated at the same time as Köbler, but the ruling tried to strike a balance: the Court stated that indeed, a case-law of the national judiciary could entail a breach of EU law subject to infringement proceedings, but not as a result of isolated judgments, but as the outcome of a consolidated case-law, or a principled single decision. In the case at hand, Italy was declared in breach of EU law, but not due to the judgments of the judiciary, but to the legislature’s ambiguous rules (which led the judiciary to a set of decisions in breach of EU law).

A few years later, in Commission/Spain (C-154/08) the Court declared a breach of EU law as a result of a single judgment of a national supreme court. That was the first time that the Court took such a step, but the breach only concerned the substance of the case. Although the Commission has raised the fact that the Spanish Supreme Court made no reference to the Court, the judgment argued that the Commission had not raised this ground of review until the action was filed. Thus, the new ground of review was declared inadmissible.

And now, at last, almost fifteen years later, we have the final piece of the puzzle. The Court is clear when it states that the French Republic is in breach of the Treaties for having failed to comply with the duty imposed on the third paragraph of Article 267 TFEU.

Third, the Court has sent the Commission a very clear signal: if national supreme courts misbehave, and they do so without making a reference, the last chance for the losing party will be an infringement action, a remedy that is in the sole hands of the Commission (as well as a Member State, but we all know the use of that). Unfortunately, it is not uncommon to find judgments of national supreme courts that openly depart from the Court’s case-law. It is very frustrating to see that the only alternative to that outcome is an action for damages against the Member State for breach of EU law, particularly when the action has to be brought against the judiciary itself. In such cases, the helping hand of the Commission can be a very valuable tool in overcoming arbitrary or simply erroneous judicial decisions of supreme courts (which every now and then, unfortunately, do happen).

This last point leads me to a final observation, which raises a more conceptual issue. If the Commission is entitled to bring an action before the Court as a result of a supreme court’s failure to interpret EU law correctly and to make a preliminary reference,  the infringement procedure thus becomes a pseudo-direct appeal against national court decisions before the Court of Justice. It is exactly the kind of remedy that the Treaties avoided for decades: direct actions against national judgments. A system of the kind would fully integrate national judiciaries with the EU court system, and the Member States, when drafting the Treaties, were well aware of the impact of such development and had the caution to not step so far.  But after Commission/France, with the help of the Commission and motivated litigants, we are on the road towards a system in which national judicial decisions can be subject to review, in a direct and transparent way, by the Court. The EU judicial system is certainly more federal as of 4 October 2018. And in genuine EU method, the decision was hardly noted, it did not make the news, it was rendered by a chamber of five judges and, nevertheless, its effects will be felt for years and years to come. That’s a classic methodology, the methodology of discrete disruption, that will never die at the Court.

 

Religion at the Court

The European Union is no longer a community of interests, it is a community of values. If anyone had any doubts about it, a brief look at the cases being brought before the Court of Justice on the thorny issue of religion provides a very blunt answer. In sixty years of European integration, religion has been a missing part of Europe’s narrative, both in policy and in law. Religion only made its appearance in very discreet cases, when, for example, the right of a staff member to practice his or her religion was constrained by staff regulations, or when a national court questioned if the data gathered for a web page of the local parish was subject to data protection rules. Religion was not an issue at the heart of the discussions on integration, and the Court of Justice made no effort in bringing the subject to the forefront of the debate.

This has changed radically in the shortest of time-spans.

In only a year and a half, the Court of Justice has been forced to deal with crucial issues such as the Islamic headscarf at work (Achbita and Bougnaoui), the scope of constitutional autonomy of religious organizations (Egenberger), the due protection of religious rites in EU regulatory provisions (LMIOPA), the enforcement of State Aid rules to religious schools (Congregación de Escuelas Pías), as well as issues of data protection applied to door-to-door activities by religious organizations (Tietosuojavaltuutettu). It’s not a bad record for a court that has kept a conscious distance from the issue for six decades. Out of the blue, to the surprise of many, religion is now a source of key societal issues being brought at the forefront of the Court’s agenda.

First, it’s important to focus on the way in the way in which the cases are reaching the Court. All the cases are being brought through preliminary references made by national courts. There is not a single infringement action or action of annulment. National courts are the promoters of this new trend in the case-law, not EU Institutions nor Member State governments. Once again, it is thanks to the dialogue between judges that key societal issues make it to the Luxembourg court.

Second, all the cases (with the exception of Congregación de Escuelas Pías) focus on the Charter and how it can condition the interpretation or validity of EU secondary rules. National judges are not so much concerned about the data protection Directive, or the equality Directive. What they really are questioning is the interpretation of these instruments in light of the Charter, because they are aware that the Charter has introduced change. The barrage of cases on religion is good proof that the Charter is not business as usual, but quite the contrary.

Third, it is interesting to see how Member States are shying away from these cases in the course of the proceedings. The judgments show that Member States do not really want to be involved in these discussions and therefore they do not submit written or oral observations. The governments of the Member States from where the reference comes will usually intervene, but considering the stakes at hand it is surprising to watch how other countries that struggle with many of these issues at home prefer to keep a low profile at the European level. The only Member State that seems to have an interest and intervenes in most of the cases is the United Kingdom.

Fourth, it is also striking to see how the Court of Justice deals with the very well-established case-law of the European Court of Human Rights, either by ignoring it or minimizing its relevance. There is an odd citation here and there, but that is it. It is obvious that the Court of Justice wants to have its own say in the matter, but at the same time it is aware that it cannot fully ignore the findings of the Strasbourg court, which has been dealing with these matters for decades. There is no engagement with the Strasbourg case-law, only a diplomatic gesture recognizing its existence, but not much more. This is, yet again, another example of how the Court of Justice, as a general rule, wants to keep an autonomous interpretation of the Charter, using Strasbourg as a minimal reference for basic orientation and not much more.

And lastly, what about the substance of the rulings? What is the Court of Justice really saying about religion and, more specifically, freedom of religion? In this regards, I am afraid to say that the answer is: “not much”! Once again, the Court of Justice is relying on the effectiveness of EU law and other familiar tools as a means to avoid the thorny issues. In Egenberger it is quite clear: the substance of the case is relegated to the question of whether the fundamental right to an effective judicial protection must be safeguarded, thus allowing labor courts to review the hiring decisions of religious schools in Germany. Therefore, in the eyes of the Court it is not so much about religious autonomy, but mostly about effective judicial protection. The same applies to Achbita and Bougnaoui, in which a key issue, such as the wearing of the headscarf at work, is handled as a question of discrimination on the grounds of religion, not religious freedom, and eventually it is dealt through a rather poor proportionality test. And of course, if there are superfundamental rights involved, freedom of religion will not stand a chance and will be sacrificed in the name of the what seems to be Court’s true religion: privacy.

Unfortunately, we are not really grasping what is the Court’s vision of religion, but at the same time we are envisioning how a fundamental right is born, takes its first steps and slowly evolves in EU law. It is always a sluggish and gradual process in which the Court hides under its more familiar tools, but eventually it is dragged (mostly by national courts) into taking a stance. I am optimistic and I believe that it will take some time, maybe a few years, until religion becomes another relevant pillar of the Court’s fundamental rights case-law. But for the time being, it is work in progress.

The Legal Acrobatics of Fundamental Rights – Coman and Gay Marriage as a Case Study

The Court of Justice rendered yesterday a landmark judgment in the case of Relu Adrian Coman, in which the Court ruled that gay marriage must be recognized in all Member States for the purposes of free movement of persons and the right to legal residence under EU Law. It is a fair decision that confirms a trend in the West in favour of gay rights and equality on the grounds of sexual orientation and identity. When tolerance prevails, the world is a better place. And Europe is a better place today than yesterday thanks to Mr. Coman, his husband, the Romanian Constitutional Court (that had the courage to make the reference to Luxembourg) and the Court of Justice.

This post is not about the substance and specifics of the Coman case, a matter that will be undergone in detail by commentators in the months and years to come. Coman will stand as a leading case in the Court’s fundamental rights case-law and rightly so. Therefore, this post is not about the place of Coman in the Court’s overall citizenship and fundamental rights case-law, but about the audacity of the Court’s legal reasoning. In fact, Coman is a rich recollection of the argumentative tricks and somersaults that the Court can play in order to reach a specific outcome. As a case study on the Court’s legal acrobatics, Coman is an excellent case study.

First, there is the issue of the relationship between primary and secondary law. Coman has been portrayed as a standard free movement of persons case, but in fact it raises a tricky issue that the Advocate General handled with care and eloquence. Mr. Coman is not an outbound free mover, but quite the opposite: he is a Romanian returning back to Romania, and thus he is not an EU citizen in a host Member State. Of course, this is not a new scenario for free movement law and the Court has handled it many times in the past (see Kraus, O and B, Dereci, McCarthy, etc…) but it is (at least to my knowledge) the first time it happens in a context in which the Member State invokes national identity against its own nationals. An awkward situation indeed: my citizens are upending the identity of the nation by means of EU law.

The Court has solved this in the same way that it solved similar situations in the past: relying on the Treaties in the absence of a Directive. Inasmuch Directive 2004/38 does not apply to cases of inbound free-movers, Article 21 TFEU is the relevant rule that allows the Court to give an answer to rule on Mr. Coman’s case. The acrobatics begin when the Court has to set limits to Article 21 TFEU, and it is quite surprising to see that such limits are found in… Directive 2004/38! In past cases the Court went as far as to argue that Article 21 TFEU had to be interpreted in light of Directive 2004/38, a troubling approach that was rightly criticized by AG Szpunar in his Opinion in the McCarthy case. The Court has learned better and has now stopped referring to Directive 2004/38 as the source of interpretation of the Treaties, but the outcome is pretty much the same. Mr. Coman’s husband will have a derivative right of residence under Article 21 TFEU, but it will be under the terms of Article 7 of Directive 2004/38, a provision that is not applicable to the case, but… voilà!

The second acrobatic exercise appears in the way in which the Court introduces the fundamental rights argument. It is a very welcome development that the Court is willing to openly state that the recognition of gay marriage has a fundamental rights dimension. But the way it does it is a good example of how tricky the implementation of fundamental rights can be in EU Law. Because Coman is a free movement case, the issue of fundamental rights appears when the Court explores the justification to a restriction. But Coman is not so much about restrictions on the grounds of fundamental rights (Omega, Schmidberger, etc…), it is a more sophisticated case which has its roots in the ERT case-law. Coman raises the issue of fundamental rights as a means of review of the justifications invoked by Member States. In other words, the question is not whether Romania could invoke the protection of fundamental rights to restrict Mr. Coman’s free movement rights, but whether such restrictions are in line with fundamental rights. It is a much more incisive approach that puts the Member State under a fundamental rights scrutiny by the Court of Justice in light of EU law (usually coined as the “derogation situation”). And that’s exactly what the Court does, although in such a cryptic way that we hardly know what standard it is aiming at. Nevertheless, we now know that gay marriage is a legal status covered and subject to protection under Article 7 of the Charter, as part of the fundamental right to private life.

The next somersault is the use of the European Convention of Human Rights. The Strasbourg court has dealt in the past with issues concerning gay rights, but its stance has been very cautious. There is no right under the ECHR to gay marriage and signatory States, according to the Strasbourg court, retain a large margin of discretion in this field. However, the Strasbourg case-law does recognize that in certain situations, when gay marriage or civil partnerships are recognized under domestic law, equality applies and so does the protection to private life. The Court of Justice has picked up a very cautious case-law and turned it into a more aggressive standard by silencing the real scope of the Strasbourg approach and making a muted reference to the cases of Vallianatos vs. Greece and Orlandi vs. Italy, two cases quoted in the judgment in Coman, but with no mention of the actual content of such decisions. When one reads those two judgments, it is obvious that the relevance of Article 8 ECHR was the result of very specific circumstances that differ from the case of Mr. Coman. But their appearance in the judgment of the Court of Justice reinforce a very blunt assertion on the part of the Luxembourg court: Member States have to comply with fundamental rights when they restrict free movement rules, and as long as gay marriage can be covered by the protection of family life, Romania’s decision to not recognize Mr. Coman husband’s residence right under EU law breached Article 7 of the Charter. I wonder if Strasbourg would have reached the same outcome in light of Article 8 ECHR only. But what is interesting is that now, through the means of EU law, in its complex but sophisticated acrobatic means of reasoning, Article 7 of the Charter, with the help of Article 8 ECHR, is probably going further than Strasbourg has gone before.

The fourth juggling exercise has to do with national identity and Article 4.2 TEU. Romania relied on this clause to protect its decision not to recognize gay marriage under its domestic law. Once again, the Coman judgment is not breaking any new ground, because the Court has handled national identity in the past in the free movement cases (remember Sayn-Wittgenstein?). However, if we contrast the reasoning in Coman with the reasoning in Sayn-Wittgenstein (surprisingly omitted in the Coman judgment), the outcome is quite surprising.

In Coman, the Court argues that EU law is not imposing gay marriage in Romanian law, it is only setting a duty to recognize the legal status of the couple under the law of another Member State in Romania. That is very reasonable and I completely agree with it. But take a look at Sayn-Wittgenstein and the reader will notice that the Court came to exactly the opposite conclusion. Although the name acquired under German law was perfectly in line with the provisions of that Member State, a prohibition of registration of aristocratic names under Austrian law found a justification on the grounds of… national identity! The Court was very sensitive to the fact that Austria’s republican form of State under its Constitution had specifically provided for an ad hoc treatment to the use of aristocratic treatments and names, and therefore the national identity clause was triggered with success. Of course, EU law would have not overruled those constitutional provisions in Austria, it would have only required Austrian law to recognize a name as granted under the law of another Member State. The parallelisms are so obvious that they need no further comment, but it seems clear to me that the Court is departing from the national identity clause when fundamental rights are at stake. And that’s a very important development.

Overall, the Coman judgment comes to a fair and reasonable outcome, but through very complex elaborations that only EU lawyers are used to. Considering how relevant this judgment is for free movement law and EU fundamental rights, I tend to worry that EU law is becoming too obscure and ungraspable for non-EU lawyers. In the same way that crucial areas of EU law, such as the direct effect of Directives, are becoming oversaturated with exceptions, derogations and subtle developments, fundamental rights law in the EU is following a similar path. It might be an inevitable outcome, considering the complexity and sensitivity of the issue, but we should not lose track of the fact that the final audience are generally not the EU experts. The main reader of this case-law is a national judge sitting in a court-house in a distant town in norther Sweden or in southern Italy. And I sincerely wonder if the acrobatics of our Luxembourg intellects are becoming too sophisticated for the audience to follow.

Welcome Mr. Coman and welcome yesterday’s ruling of the Court of Justice. But a little more simplicity, and less legal acrobatics, will do just as good to the noble cause of fundamental rights protection in Europe.

 

 

 

 

The April Revolution for European Human Rights Law

April has been an important month for human rights law in Europe. Two events have taken place rather discretely, but with a momentous impact on the future of human rights protection in many European countries. The development is technical, very technical. But the consequences can be revolutionary for citizens, courts and lawyers working in this field.

Last week, France was the tenth signatory country to ratify Protocol 16 to the European Convention of Human Rights (ECHR). This obscure piece of news hardly found any echoes in the press or in the academic community. However, its consequences are far-reaching and, as of 1 August 2018, national supreme courts of the ratifying States (only ten so far) will be able to request advisory opinions from the European Court of Human Rights on the interpretation and application of the ECHR.

Early this month, Directive 2016/343 on presumption of innocence in criminal proceedings came fully into force, once the time-limit for incorporation into national law expired. This is an extraordinary piece of legislation that introduces what could be termed as a mini-code of human rights protection in criminal procedural law. It is the most far-reaching example of a harmonization of human rights standards in national judicial procedures to date, a legislative effort that, in addition, does not deny the crucial influence that the ECHR has exerted over the initiative.

Protocol 16 will allow the highest courts of its ratifying States to enter into a direct dialogue with the European Court of Human Rights, in a format that is traditional for EU law, but not so much for the ECHR. The highest courts will have the power to request a non-binding advisory opinion, but through a dialogue between judges and not by way of the direct review that Strasbourg has traditionally undergone when making use of its powers of review. Advisory opinions will allow high courts to profit from a friendlier contribution from Strasbourg, more focused on the interpretation of the Convention, rather than stating how right or wrong was the last national court to have a say in the case. Once the high courts realize that it is better to work in active cooperation rather than in passive resignation vis-à-vis Strasbourg, it is probable that advisory opinions will become a frequent source of judicial communication among European courts.

Directive 2016/343 is an extraordinary piece of legislation. Member States will be under EU supervision when their criminal courts rule on how the accused is to be treated in the course of the proceedings. The Directive deals with the treatment that public authorities give to suspects or the accused when being exposed in public, or when speaking publicly about the them. Rules on the burden of proof have been introduced, as well as rules on the right to remain silent. Specific provisions on the right to be present, and the conditions in which a person can be trialed in absentia are also a relevant part of the Directive. In sum, the basic rights of any individual in a criminal procedure have now been codified by EU law, irrespective of whether the case involves the application of EU rules or not. Every case in every Member State involving a criminal proceeding in which a physical person is a suspect or accused, is now under the scope of Directive 2016/343.

It’s not an exaggeration to say that, after April 2018, human rights law in Europe will be going through a revolution.

To start with, the European Court of Human Rights will feel the first symptoms of a typical Luxembourg syndrome. Having Supreme Courts knocking at your door will bring Strasbourg straight into the field of judicial diplomacy through judgments, something that the Court of Justice in Luxembourg has been used to for the past decades. But above all, Supreme Courts will have an incentive to communicate directly with Strasbourg, while parties will have a new argument in their applications and defenses, in search of an early opinion from Strasbourg that saves them from fighting a direct action later on, with uncertain chances of admissibility and/or success. The role of the ECHR in current litigation will assume a new dimension, becoming a novel instrument in the toolbox of national courts and practitioners. This could be revolutionary in the case of Constitutional Courts, which will find an inexcusable course of action to communicate with Strasbourg in a field in which they can hardly deny the importance of Council of Europe law: the protection of human rights.

The same development, but with an EU twist, will take place as a result of the full entry into force of Directive 2016/343. EU law will now become a crucial benchmark in criminal procedures when questions about human rights show up. And in contrast with Strasbourg case-law, EU law is directly effective and has primacy over national law and case-law. National courts, all courts, now have the power to set aside whatever standard the national criminal code provides, or the supreme or constitutional court has confirmed, as long as such standard is not in line with Directive 2016/343. Counsel for the accused will have a tremendously valuable new ally in Luxembourg, and a very useful tool as part of the defense strategy in the shape of the preliminary reference procedure.

However, what seem more striking to me is that, in the same way that Strasbourg will suffer the Luxembourg symptoms, the same will apply to the Court of Justice, but in the form of a Strasbourg headache. Directive 2016/343 explicitly states that the standards thereby provided are in line with the case-law of the European Court of Human Rights. In fact, a quick reading of the provisions of the Directive will immediately bring to one’s mind landmark decisions of the Strasbourg court. The Directive has introduced, by way of harmonization, a considerable part of the European Court of Human Rights’ jurisprudence. And it has done so unashamedly and in a transparent way, explicitly pointing at the relevance of the ECHR in its recitals. Autonomous interpretations of Directive 2016/343 will be difficult to make. The shadow of the ECHR in this Directive is all-embracing, in a way that will certainly condition the Court of Justice’s interpretation of it in the future.

As a result of this April revolution, national criminal courts will start looking into issues of human rights with the eyes of an EU Directive which codifies ECHR case-law under EU law, in cases that need no link whatsoever with EU law. In the meantime, supreme courts can start making requests for advisory opinions to the European Court of Human Rights, at times sacrificing a preliminary reference to Luxembourg, in the understanding that the Strasbourg court is a more specialized human rights court.

In criminal proceedings, the scene can be rather striking: a case raises a point of interpretation of Directive 2016/343, but in a specific issue that has been subject to specific attention in the case-law of the Strasbourg court. Because Directive 2016/343 is very explicit about the importance of the ECHR in the interpretation of its provisions, the national high court can well decide that there is no point in making a preliminary reference of interpretation on Directive 2016/343. It’s better to go straight to the main source: the ECHR and its supreme interpreter in Strasbourg. As a result of the advisory opinion, if the Strasbourg court finally rules that national law is not in line with the ECHR, despite the fact that the opinion is non-binding, the national high court can profit from the Directive in order to set aside the national provisions at stake. Through a novel synergy between EU law and ECHR law, national courts can make key questions to Strasbourg with new conventional instruments under Protocol 16, whilst profiting from the direct effect and primacy of EU law. A new and revolutionary way in which national courts, EU courts and the European Court of Human Rights interact in a cooperative and synchronized way will be born, in support of the individual and his or her human rights.

In contrast with the Court of Justice’s dark omens about the impact of Protocol 16, we could be facing an efficient new form of European judicial protection in the field of human rights, in which the different systems of judicial control interact with a common goal. Instead of putting each remedy in its isolated case, a synchronized interaction between direct effect, primacy, ECHR law and national remedies could provide the first signs of a truly European system of human rights protection.

If this is finally the outcome of April’s developments, then it is true that we are, indeed, before an April revolution for European human rights law.

The Strange (German) Case of Mr. Puigdemont’s European Arrest Warrant

The Court of Justice is being kept busy with European arrest warrants lately. First, the Irish courts wondered if they should enforce European arrest warrants from the UK in light of the imminent withdrawal of this country from the EU. Then another Irish court raised its concerns about the enforcement of arrest warrants coming from Poland, in the aftermath of a reform of the Polish judiciary that has put the country on the brink of an Article 7 TEU procedure. Last week, the high court of Schleswig-Holstein ruled on another tricky case by refusing to enforce an arrest warrant launched by the Spanish Supreme Court, requesting the surrender of Carles Puigdemont, Catalonia’s ill-fated former President, in hiding in Belgium since October 2017 in order to escape from the current criminal proceedings taking place in Spain against the instigators of the terrible secessionist acts that took place then.

Brexit, Illiberal democracies and now Catalonia. The European arrest warrant (EAW) is proving to be the laboratory of many of the EU’s current headaches, many of them resulting from a new type of techno-populism based on propaganda, lies, obscure finance and a call on the sacred will of “the people”. Brexit, Poland and Catalonia find their roots in an ill-conceived conception of democracy, in which the people speak, no matter under what circumstances (fake news, lies, on-line ballots, violent-driven pseudo-referendums) and once the people have spoken the Constitution is put on hold in order to give way to the will of the people. British politicians are terrified of questioning Brexit, even of suggesting a second referendum, because of the will of the people. Illiberal democracies like Poland and Hungary are drifting towards autocratic democracies thanks to the will of the people. Catalan authorities decided to repeal the Constitution, the Catalan Statute of Autonomy and any inconvenient judgment of the Spanish Constitutional Court, because of the will of the people.

The will of the people is the revolutionary new normal, with an ability to destroy all the valuable achievements that European democracies have earned since post-war times. It is thus unsurprising that the will of the people has put its eyes now on the EU itself. As an apéritif, the first victim might be the European arrest warrant.

Last week, the Oberlandesgericht of Schleswig-Hosltein shocked everybody in Spain (and elsewhere too) by refusing to surrender Mr. Puigdemont on the grounds of rebellion, following the European arrest warrant (EAW) issued by the Spanish Supreme Court on two counts (rebellion and embezzlement). In addition, the German court requested additional information from the Spanish Supreme Court on the other crime presumably committed by Mr. Puigdemont (embezzlement), in order to make a definitive decision on that point of the request.

The decision is astonishing on many grounds, and it is not a surprise that the Spanish Supreme Court and the Prosecutor’s office made it clear, shortly after, that once the final decision of the German court is rendered, the Spanish Court will make a reference to the Court of Justice.

There is an ongoing discussion in Spain on whether the Supreme Court can make such a reference, which, in my opinion, is a non-issue. The requesting court can always make a reference to the Court of Justice, even if the result is an indirect review of the decision of the executing judge. In the context of European judicial cooperation, disagreements between national courts must be resolved by the Court of Justice, as long as the discussion is based on a point of EU law. In this case, the Spanish Supreme Court has good reasons to disagree with the Oberlandesgericht’s interpretation of the EAW Framework Decision, a disagreement which is exclusively based on a question of interpretation of a rule of EU law which, eventually, must be solved by the Court of Justice.

What strikes me about the Puigdemont case is the euphoria and epic cries with which the Oberlandesgericht’s decision has been received by those most close to the Catalan independence movement. These voices have equated the decision to the House of Lords’ judgment in the Pinochet case, or to the US Supreme Court’s decision in Brown versus Board of Education, another example of the contribution of western courts to the defense of human rights.

Nothing is further from the truth.

The Oberlandesgericht’s decision is a flawed ruling that seriously undermines the EAW’s effectiveness, and I would even say its future survival. It is also a manifest example of mistrust between courts of Member States, the type of conduct that destroys the foundations of mutual recognition and judicial cooperation. The fact that the request is coming from a Member State’s highest court and it is being rejected by a regional court does not help in keeping the enthusiasm of Supreme Courts with the Area of Freedom, Security and Justice. Quite the contrary. And we all know that once the Supreme Courts of the Member States rebel against EU law, the countdown of the finale has begun.

First and foremost, there is a procedural flaw in the German court’s decision. In deciding on the provisional measures imposed on Mr. Puigdemont, the Oberlandesgericht rules ad limine that the request of surrender based on the offence of “rebellion” is inadmissible, because the conduct would not amount to a conviction in Germany. However, in Aranyosi and Caldararu (unquoted in the decision), the Court of Justice, sitting in Grand Chamber, clearly stated that when an executing judge has doubts that can lead to a refusal to enforce an EAW, it has a duty to request further information from the issuing judge (see Aranyosi and Caldararu, points 91 to 98). Despite the Court of Justice’s ruling, the Oberlandesgericht has decided unilaterally and ad limine, without giving the chance to the Spanish Supreme Court of enriching the German court’s understanding of the case, that Mr. Puigdemont cannot be surrendered on the grounds of the crime of “rebellion”. And this decision impedes the Spanish Supreme Court from putting Mr. Puigdmont on trial for this offence. The Oberlandesgericht has thus provoked, in a decision ruled in 48 hours and without full knowledge of the facts of the case, Mr. Puigdemont’s acquittal on this ground, which is the most serious of them all. Mr. Puigdemont cannot be put on trial in Spain now for that offence.

But above all, the decision provides a profound misunderstanding of the principle of double incrimination provided in Article 2(4) of the EAW´s Framework Decision. It is true that when an offence is not among those listed in Article 2(2), the enforcement judge must determine “whether the acts for which the European arrest warrant has been issued constitute an offence under the law of the executing Member State, whatever the constituent elements or however it is described”. Thus, the Oberlandesgericht must appreciate if the conduct of Mr. Puigdemont constitutes an offence in Germany (in Germany, the equivalent to “rebellion” is the offence of “high treason”).

However, what the enforcement judge cannot do is go through a full review of the case and rule as if it was ruling on the substance of the case. This is what the Court of Justice has been debating lately in the cases of Grundza and Piotrowski (the latter in Grand Chamber, also ignored by the Oberladesgericht), coming to the conclusion that the review by the executing judge of the application of legal requirements under its domestic law must be made in abstracto and not in concreto. The executing judge must make sure that the legal requirements under its national law are complied with through an abstract reasoning, but not entering into the details of the specific case, for the simple fact that, otherwise, the executing judge replaces the role of the issuing judge. And it is the issuing judge the one that has the information, the knowledge and the closeness to the facts, witnesses and locations relevant for the criminal proceedings.

I recommend the reader to read the Oberlandesgericht’s ruling, because it is a perfect example of what an enforcement judge is not supposed to do when evaluating if the facts constitute an offence under its domestic law. The decision basically states that the “violence” used in the events of October 2017 did not put the State or the authority of the State at risk, and that the violence used was insufficient to question the State’s ability to impose order. The decision relies on a judgment of the German Supreme Court of the 1950’s, in which the violent protests opposing the enlargement of a runway of the Frankfurt airport were considered not to be sufficiently severe to undermine the State’s ability to impose order. The Oberlandesgericht states that this is an “almost identical case” to Mr. Puigdemont’s.

And thus, in 48 hours, ruling ad limine, without requesting further information from the Supreme Court, and on the grounds of a precedent based on an environmental protest of the 1950’s, Mr. Puigdemont has become acquitted of the most serious of the offences for which he would be put on trial before the Spanish Supreme Court.

The case is a good example of a flawed understanding of the Framework Decision and of the case-law of the Court of Justice, because it evidences how catastrophic this approach can be for the EAW as such. For the sake of argument, let’s suppose that Mr. X has a criminal plan that will take place, for example, in France. The first thing he must do is to adapt the plan and his conducts to one of the offences that are not enumerated in the list of Article 2(2) of the Framework Decision. Immediately after committing the offence, Mr. X moves to a nearby Schengen Member State, which is quite an easy thing to do, considering that Schengen provides an area of free movement with no frontier controls. It is important that Mr. X moves to a Schengen country in which the offence is slightly different to the offence under French law. And now, if Mr. X is requested to be surrendered by a French judge, he can be quite assured that nothing of the kind will happen. And if he is lucky, the executing judge will act as quickly as the Oberlandesgericht and in only 48 hours, after making a ruling ad limine on the substance of the case with no knowledge of the details nor testimony of the prosecutor, it will have acquitted Mr. X. A new category of free movement of presumed criminals, benefitting from the EAW and Schengen, would have emerged, to the surprise and joy of criminals throughout the EU (and beyond). Once “acquitted” by the executing judge, the French courts cannot put Mr. X on trial for that offence. Mr. X is now free to move, thanks to Schengen, and with the help of the EAW and a law-motivated (but naïve) executing judge.

There are no two identical offences between Member States, all of them have their own nuances, mostly as a result of the case-law of the courts of each Member State. The drafters of the EAW Framework Decision were well aware of this, and that is why they insisted in Article 2(4) that the acts have to constitute an offence, “whatever the constituent elements or however it is described”. This is a way to remind the executing judge that it cannot go into a detailed analysis of the offence in itself, nor of the facts of the case. Otherwise the EAW would become useless, or it would produce an anomalous substitution of roles by turning the executing judge into the judge of the case.

The Court of Justice, sitting in Grand Chamber, has also made this point quite clear when ruling on one of the grounds of non-enforcement of the EAW: that the person concerned is under sixteen years of age. In the case of Piotrowski, when an executing judge questioned if that ground could be applied to other persons older that sixteen, but considered to be in an equivalent position due to their specific psychological features in the law of the Member State of the executing judge, the Court of Justice argued as follows:

[…] as an exception to the general rule that a European arrest warrant must be executed, the ground for mandatory non-execution provided for in Article 3(3) of Framework Decision 2002/584 cannot be interpreted as enabling the executing judicial authority to refuse to give effect to such a warrant on the basis of an analysis for which no express provision is made in that article or in any other rule of that framework decision, such as the rule which calls for a determination of whether the additional conditions relating to an assessment based on the circumstances of the individual, to which the prosecution and conviction of a minor are specifically subject under the law of the executing Member State, are met in the present case.

[…] such a determination may cover matters which are, as in the main proceedings, subjective, such as the individual characteristics of the minor concerned and of his family and associates, and his level of maturity, or objective, such as reoffending or whether youth protection measures have previously been adopted, which would in fact amount to a substantive re-examination of the analysis previously conducted in connection with the judicial decision adopted in the issuing Member State, which forms the basis of the European arrest warrant. As the Advocate General observed in point 56 of his Opinion, such a re-examination would infringe and render ineffective the principle of mutual recognition, which implies that there is mutual trust as to the fact that each Member State accepts the application of the criminal law in force in the other Member States, even though the implementation of its own national law might produce a different outcome, and does not therefore allow the executing judicial authority to substitute its own assessment of the criminal responsibility of the minor who is the subject of a European arrest warrant for that previously carried out in the issuing Member State in connection with the judicial decision on which the warrant is based.

It seems clear to me that the Court of Justice is very much worried about the enlargement of powers of executing judges, and that includes, of course, the powers to determine that certain facts “constitute an offence” in the executing Member State. If the executing judge is to undergo a detailed analysis of the facts of the case without having sufficient knowledge of the relevant facts, this, in the words of the Court of Justice (and AG Bot, who is well informed on these issues) would “allow [it] to substitute its own assessment […] for that previously carried out in the issuing Member State in connection with the judicial on which the warrant is based”.

It seems obvious to me that the Oberlandesgericht is not in a position to rule on the substance of the case, and the best proof of this is the way in which it compares Mr. Puigdemont with the leader of an environmental protest in the Frankfurt airport.

Mr Puigdemont was the President of an Autonomous Community in Spain, with full powers and command over all the departments of the regional administration, including the Police, which, in Catalonia, is fully autonomous and replaces in its territory the National Police (this only happens in the Basque Country and Catalonia). After voting in the Catalan Parliament a Referendum Bill that precluded the opposition of submitting amendments or having a debate in the Catalan Parliament, and after disregarding the judgments of the Constitutional Court declaring the Referendum Act (once voted) unconstitutional, Mr. Puigdemont called a referendum on 1 October 2017. This referendum had no electoral guarantees and was facilitated by the inaction of the Catalan Police, under the orders of the Catalan Minister of the Interior, following instructions of the Catalan Government (chaired by Mr. Puigdemont). A few days before the referendum took place, the Guardia Civil (after the High Court of Catalonia decided not to rely on the Catalan Police’s authority for obvious reasons) and the High Court’s staff were mass-assaulted while carrying a search in the Catalan Ministry of the Economy, in a pursuit for documents that proved that the referendum had been financed with public funds (another offence, embezzlement, on which the Oberlandesgericht has been requested to enforce the EAW).  Special forces had to evacuate the agents of the Guardia Civil and the High Court through the roof-tops of the Ministry’s premises, while demonstrators vandalized the vehicles of the Guardia Civil parked outside the building. Many of the remains of these vehicles were found several hours later in Barcelona’s cemetery of Montjuïc (a nice final message from the demonstrators to the Guardia Civil).

A week later, on the day of the so-called referendum, police charges of the Guardia Civil took place, with the result of the awful images we all saw that day in the news. The Catalan Police refused to close down the electoral colleges (despite the Constitutional Court’s judgment ruling that the referendum was illegal, followed by an instruction of the High Court of Catalonia ordering all Police authorities to prevent it from happening) and the Guardia Civil was left all alone to enforce it. As a result of the Guardia Civil’s action, four civilians were hospitalized (one of them suffered a heart attack). In contrast, four-hundred and thirty-one police officers suffered injuries. Indeed, four civilians were hospitalized, but international media (the BBC and the Washington Post, among others) have confirmed that there was a spectacular use of fake news on social media, which manipulated and magnified the violence actually exerted on that day by the Guardia Civil.

On 10 October 2017, the Catalan Parliament, with Mr. Puigdemont among its leading members, declared the independence of Catalonia, relying on the “will of the people” after the results of the so-called referendum. Shortly before, Catalonia’s main credit institutions, CaixaBank and Banco de Sabadell, changed seats outside of Catalonia (to Valencia and Alicante, respectively), to calm investor and depositor unrest. Since late September until December 2017, a total of 3217 companies have changed seats from Catalonia to other parts of Spain. The Bank of Spain has confirmed in March 2018 that, since October 2017, 31.400 million euros in deposit accounts have fled from credit institution in Catalan branches.

These facts prove that the perception in Spain and in Catalonia was not that Mr. Puigdemont was leading a peaceful movement, similar to an environmental protest. As Joseph Weiler has recently argued, Mr. Puigdemont is no Nelson Mandela nor a Gandhi, quite the contrary. Mr. Puigdemont was the leader of a well-orchestrated political movement of break-up of a State, that has put a Member State of the EU in an untenable position, close to the brink of secession, with the assistance of the entire Catalan administrative machinery (including its Police and a well-dosed budget), in an effort to divert the attention of its voters from their real concerns (unemployment, austerity, corruption), of which the Catalan government is, of course, co-responsible.

A majority of Catalans see Mr. Puigdemont in the same way (there is no pro-independence majority in Catalonia, it’s only thanks to the electoral rules that there is a majority of pro-independence seats in the Catalan Parliament). And I know of no fellow Spaniard outside of Catalonia that considers Mr. Puigdemont a peaceful protester. It is also very telling that the majority of Basque nationalists disagree completely with the way in which Mr. Puigdemont handled the events in Catalonia.

But the Oberlandesgericht of Schleswig-Holstein did not see it this way, ruling in 48 hours, inadmitting the EAW ad limine, comparing Mr. Puigdemont with an environmental protester, irrespective of  whatever other facts might have been relevant and which the Spanish Supreme Court could have provided, and ignoring the case-law of the Court of Justice of the past fifteen years.

The decision is good evidence that a strict scrutiny of the principle of double incrimination when enforcing EAWs is a questionable practice. The Spanish Supreme Court has now the perfect excuse to cry foul and become an EAW skeptic and, who knows, maybe a euro-skeptic court thereafter. The judge of the Spanish Supreme Court that issued the EAW is currently under Police protection and his summer house in Catalonia was vandalized two weeks ago, provoking a reaction from the European Association of Judges in support of the judge. Seeing Mr. Puigdemont (the leader of the revolt) turned into the heroic victim, and the law-enforing judge as the villain,  with the help of a regional court of another Member State, are the kind of situations that turn a Court, particularly a Supreme Court, into a believer or a disbeliever in integration.

Or it can rely on the tools of the Treaty and make a reference to the Court of Justice, so that the Luxembourg court fixes this terrible and potentially devastating mistake.