Professional Documents
Culture Documents
Fundamental Rights in The Eu Area of Freedom Security and Justice Sara Iglesias Sanchez Online Ebook Texxtbook Full Chapter PDF
Fundamental Rights in The Eu Area of Freedom Security and Justice Sara Iglesias Sanchez Online Ebook Texxtbook Full Chapter PDF
https://ebookmeta.com/product/human-rights-and-transitional-
justice-in-chile-rojas/
https://ebookmeta.com/product/the-eu-in-southeast-asian-
security-1st-edition-ronja-scheler/
https://ebookmeta.com/product/documents-of-freedom-a-look-at-the-
declaration-of-independence-the-bill-of-rights-and-the-u-s-
constitution-gwenyth-swain/
https://ebookmeta.com/product/the-internet-and-constitutional-
law-the-protection-of-fundamental-rights-and-constitutional-
adjudication-in-europe-1st-edition-oreste-pollicino/
The Birth Of Digital Human Rights: Digitized Data
Governance As A Human Rights Issue In The EU 1st
Edition Rebekah Dowd
https://ebookmeta.com/product/the-birth-of-digital-human-rights-
digitized-data-governance-as-a-human-rights-issue-in-the-eu-1st-
edition-rebekah-dowd/
https://ebookmeta.com/product/religious-freedom-and-the-
universal-declaration-of-human-rights-1st-edition-linde-
lindkvist/
https://ebookmeta.com/product/coercive-human-rights-positive-
duties-to-mobilise-the-criminal-law-under-the-echr-hart-studies-
in-security-and-justice-1st-edition-laurens-lavrysen/
https://ebookmeta.com/product/the-chicago-freedom-movement-
martin-luther-king-jr-and-civil-rights-activism-in-the-north-
civil-rights-and-struggle-mary-lou-finley/
https://ebookmeta.com/product/economic-freedom-and-social-
justice-the-classical-ideal-of-equality-in-contexts-of-racial-
diversity-1st-edition-wanjiru-njoya/
Fundamental Rights in the EU Area
of Freedom, Security and Justice
Edited by
www.cambridge.org
Information on this title: www.cambridge.org/9781108488136
DOI: 10.1017/9781108769006
© Cambridge University Press 2021
This publication is in copyright. Subject to statutory exception
and to the provisions of relevant collective licensing agreements,
no reproduction of any part may take place without the written
permission of Cambridge University Press.
First published 2021
Printed in the United Kingdom by TJ International Ltd, Padstow, Cornwall
A catalogue record for this publication is available from the British Library.
Library of Congress Cataloging-in-Publication Data
Names: Iglesias, Sara (Editor on civil rights in EU), editor. | González Pascual, Maribel, editor.
Title: Fundamental rights in the EU area of freedom, security, and justice / edited by Sara Iglesias,
Court of Justice of the European Union; Maribel Pascual, University Pompeu Fabra of Barcelona.
Other titles: Fundamental rights in the European Union area of freedom, security, and justice
Description: Cambridge, United Kingdom ; New York, NY : Cambridge University Press, 2020. |
Includes bibliographical references and index.
Identifiers: LCCN 2020027993 (print) | LCCN 2020027994 (ebook) | ISBN 9781108488136
(hardback) | ISBN 9781108769006 (ebook)
Subjects: LCSH: Civil rights – European Union countries. | Asylum, Right of – European
Union countries. | Emigration and immigration law – European Union countries. |
Double jeopardy – European Union countries. | Due process of law – European Union countries. |
Justice, Administrationof – European Union countries.
Classification: LCC KJE5132 .F8595 2020 (print) | LCC KJE5132 (ebook) | DDC 341.4/8094–dc23
LC record available at https://lccn.loc.gov/2020027993
LC ebook record available at https://lccn.loc.gov/2020027994
ISBN 978-1-108-48813-6 Hardback
Cambridge University Press has no responsibility for the persistence or accuracy
of URLs for external or third-party internet websites referred to in this publication
and does not guarantee that any content on such websites is, or will remain,
accurate or appropriate.
A nuestras hijas, Margarita, Irene y Julia
Hasta la luna, ida y vuelta
Contents
List of Contributors x
Foreword xiii
Koen Lenaerts
Preface xvii
List of Common Abbreviations xviii
Index 446
Contributors
When the European integration project was first conceived, it was quite clear in
the minds of Europe’s founding fathers that the new pan-European body envis-
aged was to be – initially at least – an economic grouping. As Jean Monnet put
it, as early as 1943, ‘[t]he countries of Europe are not strong enough individu-
ally to be able to guarantee prosperity and social development for their peoples.
The States of Europe must therefore form a federation or a European entity that
would make them into a common economic unit.’ Thus, when such a unit was
first established, initially as the European Coal and Steel Community in 1952,
soon followed by the European Economic Community and EURATOM in 1957,
economic integration was the focus of the treaties that governed the operation of
those Communities.
Today, the European Union has moved well beyond that purely economic
paradigm and the internal market, important though it continues to be, has
become just one of the building blocks on which European integration is based.
Since 1 December 2009 – the date when the Lisbon Treaty entered into force – the
European Union has been operating on the basis of new constitutional founda-
tions. Those foundations are the Treaty on European Union, as modified by the
Lisbon Treaty; the Treaty on the Functioning of the European Union; and the
Charter of Fundamental Rights of the European Union, which is now fully bind-
ing and enjoys the same efficacy and force as those treaties. These are the texts
that determine the competences and govern the functioning of the Union and that
define the fundamental rights enjoyed by the Union’s citizens and other subjects
of Union law.
Through the Area of Freedom, Security and Justice, the Union has established a
shared European space governed by common values such as respect for democracy,
fundamental rights and the rule of law. In that European space without internal
borders, citizens of the Union may move freely and safely, integrate into the
society of the Member State of their choice and fulfil their ambitions free from all
discrimination.
However, in an area without internal frontiers, the exercise of free movement
should not undermine the jurisdiction of national courts and the effectiveness
of national law operating on a territorial basis. The ‘long arm of the law’ should
*
President of the Court of Justice of the European Union and Professor of European Union Law,
Leuven University. All views expressed are personal to the author.
xiv Foreword
1
CJEU, Opinion 2/13 (Accession of the European Union to the ECHR) of 18 December 2014,
EU:C:2014:2454, para 192.
Foreword xv
of the Area of Freedom, Security and Justice, both in civil and criminal law con-
texts. As such, it is a valuable collection for professionals and researchers alike,
focused on an important and fast-developing area of Union law, and I highly rec-
ommend it to those who are active within fields covered by the Area of Freedom,
Security and Justice, as well as to those with an academic interest in those fields.
Preface
This book is the result of a passion shared by the editors, who have eagerly fol-
lowed and discussed over the last decade the developments in the EU Area of
Freedom, Security and Justice and in the field of EU fundamental rights. The idea
of putting together such a collection of essays became urgent when, several years
after the entry into force of the Lisbon Treaty, the body of case law and legislation
in this field had grown to such an extent that it started fuelling heated debates
about the essential role, the scope and the standards of EU fundamental rights in
the fields covered by the AFSJ.
The editors had the chance to discuss the project underlying this book at a
workshop at Pompeu Fabra University (Barcelona) in February 2017. This meeting
enabled the authors to agree on the theoretical approach, to ensure the coherence
of the volume and to include additional topics. Several authors joined the project
afterwards, including a number from the Court of Justice of the European Union,
greatly enriching the scientific team. We are extremely grateful for their support
and openness and for all the valuable exchanges that took place during the prep-
aration of the book.
Both the kick-start workshop and the book itself received the support of the
Research Group on Constitutional European law and on Supranational Integration
(2017 SGR 549). In particular, the editors are indebted to the head of this research
group, Alejandro Saiz Arnaiz, for the invaluable support he has given to the pro-
ject, and to Michal Bobek for always enriching our discussions (and for sharing
with us a part of the brains of his team).
Common Abbreviations
The normative consolidation of the Area of Freedom, Security and Justice (AFSJ)
and the entry into force of the Charter of Fundamental Rights of the EU (the
Charter) has transformed the Union as we know it.
It is common knowledge that the AFSJ has undergone impressive normative
and jurisprudential developments in recent times. An abundance of new instru-
ments were adopted in the years following the entry into force of the Treaty of
Lisbon, joining the already vast body of pre-Lisbon secondary law in the vari-
ous fields covered by the AFSJ: civil and criminal judicial cooperation, as well
as matters related to borders, migration and asylum. National authorities and
courts have now become, or at least are becoming, well acquainted with the AFSJ
acquis, which is shown by the impressive increase in the number of preliminary
references made by national courts. It is today beyond doubt that the AFSJ has
become one of the most prolific areas of litigation before the Court of Justice of
the European Union (CJEU).1
This development has gone hand in hand with the entry into force of the
Charter as a legally binding instrument by virtue of the Treaty of Lisbon. EU fun-
damental rights have been codified and granted the same rank as the Treaty on
European Union (TEU) and the Treaty on the Functioning of the European Union
(TFEU) (the Treaties). The increased visibility they acquired quickly led to a rise
in direct actions and preliminary references to the CJEU concerning fundamental
rights. Fundamental rights litigation is today not only extremely frequent but also
increasingly central to the debate about the EU’s constitutional structure and that
structure’s relationship with national law and European human rights law.
The combined effect of the two aforementioned trends is a qualitative change
in the shape and content of European integration. Fundamental rights lie at the
heart of the AFSJ.2 It was only a matter of time (and of eliminating pre-existing
1
CJEU, Annual Report 2018: Judicial Activity, mentioning eighty new requests for a preliminary
ruling and seventy-four cases completed in the AFSJ that year.
2
For some general theoretical approaches to the subject, see D Leczykiewicz, ‘Human Rights
and the Area of Freedom, Security and Justice’ in E Fletcher, E Herin-Karnell and C Matera
(eds), The European Union as an Area of Freedom, Security and Justice (Routledge 2017); S
2 Sara Iglesias Sánchez and Maribel González Pascual
limitations on the jurisdiction of the CJEU), before the AFSJ became the most
dynamic area of interpretative development of EU fundamental rights. Fundamental
rights do not only constitute the basic pre-requisite for the proper functioning of
the various rules that constitute the AFSJ acquis; they serve as the bedrock on
which the principles of mutual recognition and mutual trust rest. As a result, fun-
damental rights have progressively unveiled their core function as prerequisites
and, ultimately, limits to the principles of mutual recognition and mutual trust.
Furthermore, the progressive normative development of the AFSJ has confirmed
the need to buttress mutual trust and recognition through harmonisation and
normative development. This has led to the adoption of various instruments of
secondary law in the blocks of asylum, migration and borders, civil judicial coop-
eration and cooperation in criminal matters. Those harmonising rules are based
on, but go well beyond, the inter-state dynamics of mutual recognition and trust
and the promotion of free movement. They establish new common standards that
not only make judicial and administrative cooperation possible but also contribute
to creating a common and solid ground of shared (although often minimal) EU
protection standards.
Now that the Charter has reached its critical tenth anniversary as a binding
instrument, this book looks at the intersection of these two constellations – the
AFSJ and EU fundamental rights – within the constitutional framework erected
by the Treaty of Lisbon.
It hardly needs saying that the EU has gone beyond a predominantly economic
approach to integration. At a symbolic level, this process has led to the evolution
of conceptual labels. Described initially as a common market and later as an
internal market, the EU is today referred to as an Area of Freedom, Security and
Douglas-Scott, ‘The EU’s Area of Freedom, Security and Justice: A Lack of Fundamental Rights,
Mutual Trust and Democracy?’ (2009) 11 Cambridge Yearbook of European Legal Studies 53;
V Bazzocchi, ‘The European Charter of Fundamental Rights and the Area of Freedom, Security
and Justice’ in G Di Federico (ed), The EU Charter of Fundamental Rights: From Declaration to
Binding Instrument (Springer 2011); FJ Donaire Villa, ‘Los Derechos en el Espacio de Libertad,
Seguridad y Justicia’ in J Goizueta and M Cienfuegos (eds), La Eficacia de los Derechos
Fundamentales de la UE (Thomson Reuters Aranzadi 2014); M Heikkilä and others, ‘Report
Critically Assessing Human Rights Integration in AFSJ Policies’ (FRAME Deliverable 11.2, 2015),
https://doi.org/20.500.11825/107; JI Ugartemendia and H Labayle (eds), La Tutela Judicial de
los Derechos Fundamentales de la Unión Europea en el Espacio de Libertad, Seguridad y Justicia,
Curso de Verano UPV/EHU, IVAP/CDRE (Oñate European Inklings 8, 2016).
Introduction: Fundamental Rights at the Core of the AFSJ 3
Justice (alongside the pre-existing labels). This notion abandons the market as
the reference point and signals a territorial conception of the Union as an area.3
The triad of freedom, security and justice amplifies and extends the old market
objective of freedom, embodied from the outset in the four fundamental free-
doms. It evokes the wider substantive scope of integration, which now extends
to the basic functions of security and justice in both civil and criminal matters.
In short, the AFSJ entails a significant constitutional reconfiguration of the inte-
gration project.4
Since the entry into force of the TFEU, EU competences framed under the AFSJ
can no longer be conceived as spin-offs or mere complements to the internal mar-
ket. Pursuant to Article 3(2) TEU, the AFSJ has become an objective of the Union
in its own right. Moreover, the fragmented approach to justice and home affairs
inherited from the Treaty of Maastricht has finally been superseded. Title V of
the TFEU now brings together the formerly separate blocks of migration, asylum
and borders; judicial cooperation in civil matters; judicial cooperation in criminal
matters; and police cooperation.
The Treaty of Lisbon has therefore culminated in the ‘constitutionalisation’ of
the AFSJ. As a result, the general decision-making procedures now largely apply
to this area of law. The fragmented typology of acts brought about by the special
instruments of the third pillar has been consolidated, with the entire AFSJ now
being developed through normal EU legal acts. The previous limits on the jurisdic-
tion of the CJEU in this field have been eliminated.
However, the specificity of the AFSJ has not completely vanished. The unique-
ness of the former third pillar remains in place to a certain extent. Certain rules
concerning decision-making procedures still affect judicial cooperation in crim-
inal matters.5 Transitional rules govern the effects of acts adopted under the
3
H Lindahl, ‘Inside and Outside the EU’s “Area of Freedom, Security and Justice”: Reflexive
Identity and the Unity of Legal Space’ (2004) 90 Archives for Philosophy of Law and Social
Philosophy 478.
4
See eg M Fichera, ‘Sketches of a Theory of Europe as an Area of Freedom, Security and Justice’
in E Fletcher, E Herin-Karnell and C Matera (eds), The European Union as an Area of Freedom,
Security and Justice (Routledge 2017).
5
See eg arts 82(3) and 83(3) TFEU establishing the so-called emergency break mechanisms.
Recourse to a special legislative procedure is provided for passports, IDs and residence permits
(art 77(3) TFEU); sudden inflows of third-country nationals (art 78(3) TFEU); family law matters
with cross-border implications (art 81(3) TFEU); the European Public Prosecutor’s Office (art 86
TFEU); and operational police cooperation (art 87(3) TFEU). See generally S Peers, ‘Finally “Fit
for Purpose”: The Treaty of Lisbon and the End of the Third Pillar Legal Order’ (2008) 27 YEL
47; C Ladenburger, ‘Police and Criminal Law in the Treaty of Lisbon: A New Dimension for the
Community Method’ (2008) 4 European Constitutional Law Review 20.
4 Sara Iglesias Sánchez and Maribel González Pascual
6
Protocol 36 on transitional provisions concerning acts adopted on the basis of titles V and VI of
the former version of the TEU prior the entry into force of the Treaty of Lisbon. H Satzger, ‘Legal
Effects of Directives Amending or Repealing Pre-Lisbon Framework Decisions’ (2015) 6 New
Journal of Criminal Law 528; V Mitsilegas, S Carrera and K Eisele, The End of the Transitional
Period for Police and Criminal Justice Measures Adopted Before the Lisbon Treaty: Who Monitors
Trust in the European Criminal Justice Area? (CEPS Paper in Liberty and Security in Europe
74, 2014), www.ceps.eu/ceps-publications/end-transitional-period-police-and-criminal-justice-
measures-adopted-lisbon-treaty-who/.
7
See D Curtin ‘Brexit and the EU Area of Freedom, Security and Justice: Bespoke Bits and Pieces’
in Federico Fabbrini (ed), The Law & Politics of Brexit (OUP 2017).
8
See K Lenaerts, ‘The Contribution of the European Court of Justice to the Area of Freedom,
Security and Justice’ (2010) 59 International and Comparative Law Quarterly 255.
Introduction: Fundamental Rights at the Core of the AFSJ 5
The distinct subject matters covered by the different blocks of the AFSJ – EU rules
on judicial cooperation (civil and criminal) and migration, asylum and borders –
are intrinsically intertwined with fundamental rights in a particularly intense
fashion. Integrating the AFSJ has become crucial to the most pressing challenges
of our time, such as international terrorism or the refugee crisis. When EU law
is adopted, transposed and implemented in these and other fields of the AFSJ,
fundamental rights issues are liable to arise at every step. Moreover, the overall
guarantee of EU fundamental rights has become dependent on the progress of
integration in the AFSJ. Indeed, the Charter itself affirms the importance of the
AFSJ in its preamble: together with Union citizenship, this field of integration
ensures that the individual is at the heart of the activities of the Union.
Against this background, EU law in the areas covered by the AFSJ has proved
problematic from the point of view of fundamental rights standards. This is
because, firstly, the whole area relies on mutual trust and mutual recognition in
the (initial) absence of harmonisation. Maintaining mutual recognition and trust
across the EU, regarded as a unified area for the application of the law, relies on a
presumption of equivalent protection among Member States. Whether innocent or
not, this fiction challenges the traditional understanding of the protective respon-
sibilities of national administrative and judicial authorities. Secondly, harmoni-
sation in the different spheres of the AFSJ is often defined in terms of required
minimums or is realised only to a limited extent. This leads to additional hurdles
9
See Chapter 22.
10
See Commission, ‘A new EU Framework to strengthen the Rule of Law’ (Communication)
COM/2014/0158 final; case C-216/18 PPU LM EU:C:2018:586 (deficiencies in the system of justice).
6 Sara Iglesias Sánchez and Maribel González Pascual
when assessing the scope of national discretion and interaction with EU funda-
mental rights standards. Indeed, it is in this field that national differences and
entrenched, competing legal traditions can be very sensitive, as the issues con-
nected with the AFSJ often pertain to the treasured core of sovereignty. Indeed,
the AFSJ is symbolically linked to the affective foundations of national constitu-
tional identity. Third, the matters covered by the AFSJ are, by their very nature,
more susceptible to fundamental rights violations.
In this framework, the fundamental rights obligations placed on Member States
by their constitutions and the ECHR are put under particular pressure in the AFSJ.
The European Court of Human Rights (ECtHR) and national constitutional and
supreme courts are crucial components of the European fundamental rights space,
and they all keep a watchful eye on the protection standards provided by EU law
in the AFSJ. In particular, this makes the AFSJ the best case study for determining
whether the current EU fundamental rights system has adjusted to the specificities
of integration in particularly sensitive areas, and whether the progressive con-
struction of the AFSJ meets the standards of the ECHR.
At the core of the challenges are the principles of mutual trust and mutual
recognition, portrayed as the constitutional principles underpinning the AFSJ.11
The proper construction of the AFSJ – and particularly the smooth operation of
the instruments based on mutual recognition – depends on the solidity of its archi-
tecture of rights. Mutual trust has become a principle of ‘fundamental importance
in EU law’.12 The centrality of this principle is intrinsically connected to mutual
trust among Member States as the articulating element of the AFSJ – and as a core
component of the Union’s uniqueness. This uniqueness was one of the key argu-
ments put forward by the CJEU when finding the draft agreement on accession to
the ECHR to be incompatible with EU primary law.13 According to Opinion 2/13
of the CJEU, mutual trust requires each of the Member States, ‘save in exceptional
circumstances, to consider all the other Member States to be complying with EU
law and particularly with the fundamental rights recognised by EU law’.14
Despite the potential for conflict,15 in the pre-accession status quo the ECtHR
confirmed its position of deference (the Bosphorus presumption of equivalent
11
K Lenaerts ‘The Principle of Mutual Recognition in the Area of Freedom, Security and Justice’
[2015] Il Diritto dell’Unione Europea 530; E Herlin-Karnell, ‘Constitutional Principles in the
EU Area of Freedom, Security and Justice’ in D Acosta and C Murphy (eds), EU Security and
Justice Law (Hart 2014).
12
Opinion 2/13 (Accession of the European Union to the ECHR) EU:C:2014:2454 (18 December
2014) para 191.
13
ibid. 14
ibid (emphasis added).
15
A Kornezov, ‘The Area of Freedom, Security and Justice in Light of the EU Accession to the
ECHR: Is the Break-Up Inevitable?’ (2012) 15 Cambridge Yearbook of European Legal Studies
227; E Brouwer, ‘Mutual Trust and Human Rights in the AFSJ: In Search of Guidelines for
National Courts’ (2016) 1 European Papers 893.
Introduction: Fundamental Rights at the Core of the AFSJ 7
[I]f a serious and substantiated complaint is raised before [the Member States] to the
effect that the protection of a Convention right has been manifestly deficient and that
this situation cannot be remedied by European Union law, they cannot refrain from
examining that complaint on the sole ground that they are applying EU law.18
National constitutional and supreme courts have continued to underline the ‘hard
limits’ of trust19 and have progressively engaged in judicial dialogue with the
CJEU in order to dispel pertinent doubts over the congruent functioning of the
interlocking levels of protection.20
In this context, the CJEU has been progressively building on the idea that
mutual trust is not equivalent to ‘blind trust’.21 The CJEU is designing system
safeguards to deal with ‘exceptional circumstances’ that justify departing from the
quasi-automaticity of mutual recognition. Case law has been gradually determin-
ing the role that fundamental rights imperatives play in the operation of EU legal
acts based on mutual recognition and mutual trust and specifying the conditions
under which they do so. Starting with the NS case concerning asylum within the
so-called Dublin system22 following a strong message by the ECtHR,23 the jurispru-
dential consolidation of fundamental rights as potential limits to mutual trust is
today also firmly embedded in the field of judicial cooperation in criminal matters
after the seminal judgments in Aranyosi and Căldăraru, ML and LM.24
16
See Bosphorus Airways v Ireland (ECtHR, 30 June 2005).
17
See Povse v Austria (ECtHR, 18 January 2011).
18
Avotin‚š v Latvia (ECtHR, 23 May 2016) para 116.
19
See German Constitutional Court, BVerfG, Order of the Second Senate of 15 December 2015, 2
BvR 2735/14.
20
See eg Case C-303/05 Advocaten voor de Wereld EU:C:2007:261; Case C-399/11 Melloni
EU:C:2013:107; Case C-168/13 PPU F EU:C:2013:358.
21
See K Lenaerts, ‘La Vie après l’Avis: Exploring the Principle of Mutual (Yet Not Blind) Trust’
(2017) 54 CMLRev 805.
22
See Joined Cases C-411/10 and C-493/10 NS and Others EU:C:2011:865; Case C-394/12 Abdullahi
EU:C:2013:813.
23
MSS v Belgium and Greece, App no 30696/0921.
24
Joined Cases C-404/15 and C-659/15 PPU Aranyosi and Căldăraru EU:C:2016:198; Case
C-220/18 PPU ML EU:C:2018:589 (conditions of detention in Hungary); LM (n 10).
8 Sara Iglesias Sánchez and Maribel González Pascual
It is true that the courts’ case law according to which fundamental rights con-
stitute sufficient and practical grounds for limiting mutual trust and recognition
continues to be debated and needs to be developed.25 This is a necessary con-
sequence of the incremental and casuistic nature of case law. However, it has
become clear that the role of fundamental rights in limiting mutual trust cannot
be automatically restricted to instances of systemic deficiencies, as made clear by
the CJEU in CK and Others26 (again in the asylum field and after a strong message
from the ECtHR).27
Furthermore, derogations from mutual recognition and trust are justified not
only by violations of absolute or non-derogable fundamental rights, such as the
prohibition of torture and inhuman or degrading treatments in Article 4 of the
Charter.28 The Court has also confirmed without hesitation the essential role played
by the right to effective judicial protection and the rule of law – which is funda-
mental to mutual trust – in the field of judicial cooperation. Breaches of the funda-
mental right to a fair trial guaranteed by Article 47 of the Charter which result from
systemic or generalised deficiencies affecting the independence of the judiciary
may also justify refusing execution of a European arrest warrant.29 That said, case
law never produces a neat classification grid with mathematical clarity. However,
more developments are to be expected along the lines of the general criteria that
have already begun to emerge.30 It would appear that the assessment carried out by
executing judicial authorities must not disregard the specific risk, severity and con-
sequences of a violation, the nature of the fundamental right at stake – its absolute
nature or its connection to the rule of law or other fundamental EU values – or the
specific level of harmonisation and safeguards embedded in the EU act at issue.
Despite the practical challenges that the application of the new developments
will undoubtedly raise, the fundamental rights exceptions are buttressing pillars
rather than ‘cracks’ in the wall of mutual trust.31 Recent jurisprudential develop-
ments in the Strasbourg Court show that a coherent approach to mutual trust that
25
On this debate see E Xanthopoulou, ‘Mutual Trust and Rights in the EU Criminal and Asylum
Law: Three Phases of Evolution and the Uncharted Territory beyond Blind Trust’ (2018) 55
CMLRev 489.
26
Case C-578/16 PPU CK and Others EU:C:2017:127. See S. Montaldo, ‘On a Collision Course!
Mutual Recognition, Mutual Trust and the Protection of Fundamental Rights in the Recent Case-
Law of the Court of Justice’ (2016) 1 European Papers 965; S Prechal, ‘Mutual Trust Before the
Court of Justice of the European Union’ (2017) 2 European Papers 75.
27
Tarakhel v Switzerland (4 November 2014) CE:ECHR:2014:1104JUD 002921712.
28
See I Canor, ‘My Brother’s Keeper? Horizontal Solange: “An Ever Closer Distrust Among the
Peoples of Europe”’ (2013) 50 CMLRev 383, 403.
29
LM (n 10). 30
See eg Case C-128/18 Dorobantu EU:2019:857.
31
On the intensity of the executing judicial authority’s review of the EAW, see C-128/18 Dorobantu
EU:C:2019:334, Opinion of AG Campos Sánchez-Bordona.
Introduction: Fundamental Rights at the Core of the AFSJ 9
32
With respect to the EAW, see Romero Castaño v Belgium (ECtHR, 9 July 2019)
CE:ECHR:2019:0709JUD000835117.
33
See Case C-105/03 Pupino EU:C:2005:386; Case C-439/16 PPU Milev EU:C:2016:818; Case
C-573/17 Popławski EU:C:2019:530. In relation to criminal sanctions concerning TVA, see Case
C-105/14 Taricco and Others EU:C:2015:555; Case C-42/17 MAS and MB EU:C:2017:936.
10 Sara Iglesias Sánchez and Maribel González Pascual
fundamental rights protection calls for a rethinking of the function and content
of mutual trust.
The principles of mutual recognition and mutual trust have challenged tra-
ditional conceptions of fundamental rights protection in Member States. Three
chapters analyse those challenges prefiguring the subsequent parts of the book
devoted to the three thematic blocks of the AFSJ.
Chapter 4 by Violeta Moreno-Lax explores how mutual trust is becoming an
organising principle that underpins the mechanisms of (implicit) mutual rec-
ognition in the fields of migration and asylum within the AFSJ. By classifying
measures as either rights-conferring or rights-restricting, the chapter unveils a
contradictory dynamic: whereas mutual recognition of rights-restricting measures
is close to automatic and practically unconditional, the mutual recognition of
rights-conferring measures is virtually non-existent. The author explains that the
most plausible reason for this paradox lies in the interplay between presumed
(abstract) trust, as required by the case law of the CJEU, and real (practical) distrust,
manifested horizontally and vertically in the day-to-day exercise of EU migration
and asylum governance. The negative effects of this interplay on third-country
nationals are considerable, particularly in the case of asylum seekers, and leads to
the ‘exceptionalisation’ of their fundamental rights.
Chapter 9, written by Magdalena Ličková and Crístian Oró Martínez, examines
the principles of mutual trust and mutual recognition in the field of civil judicial
cooperation. The nature and operation of judicial recognition and enforcement
within the Union is based on mutual trust in other Member States’ judicial systems.
Under this framework, recognition and enforcement operate quasi-automatically.
The chapter outlines the major phases in the development and shaping of the Union’s
system of judicial recognition and enforcement system. In addition, the chapter
examines developments in case law concerning the substantive and formal require-
ments that condition, albeit minimally, the free circulation of judgments within
the Union. It concludes with some remarks inspired by the recent move to make
judicial independence one of the fundamental prerequisites for the mutual trust
upon which the very functioning of judicial cooperation within the Union relies.
Chapter 13 by Valsamis Mitsilegas analyses the extent to which the harmoni-
sation of fundamental rights in EU secondary law provides a basis for enhanced
mutual trust and thus facilitates the operation of mutual recognition in criminal
matters. The evolution of CJEU case law, particularly with regard to the EAW, and
the development of EU harmonising legislation facilitating mutual recognition
in respect of defence rights signal a move towards effective and real compliance
with fundamental rights. This evolution represents a progressive shift from blind
to earned trust in Europe’s area of criminal justice. The chapter also identifies
practical problems and unresolved questions concerning the operation of this new
approach to mutual recognition and trust.
Introduction: Fundamental Rights at the Core of the AFSJ 13
Following the introductory chapters on mutual recognition and trust, Parts II,
III and IV of the book are devoted to an analysis of normative and jurisprudential
developments in the AFSJ. The chapters in these three parts focus on the effects
of these developments on particular fundamental rights or a bundle of interlinked
fundamental rights. As already mentioned, the book does not provide a commen-
tary of Charter rights article by article. The chapters concentrate instead on the
most salient fundamental rights issues in each block of the AFSJ. This structuring
of the analysis around particular fundamental rights is better suited to scrutinising
the impact of EU secondary law and case law on the standard of protection in EU
law, taking the Charter as its point of reference. It also makes it possible to explore
parallel developments in the three blocks and identify points of convergence and
divergence in legislative development and case law.
Particular attention is given to procedural rights, with the analyses reflecting
the complexities inherent in each of the AFSJ’s three blocks.
As explained by Nathan Cambien in Chapter 8, procedural rights have had
a very strong influence in the field of immigration, asylum and borders. They
play a crucial role in establishing fundamental guarantees for substantive rights.
In particular, the right to an effective remedy and the right to be heard have
acquired greater importance in the case law of the CJEU and in EU secondary
legislation, raising the standard of protection in this field. Other fundamental pro-
cedural rights, such as the right to access records, the right to legal assistance and
representation and the right to legal aid, remain in a comparatively embryonic stage,
but they could prove extremely relevant to future developments in the EU acquis.
Two chapters are devoted to the protection of procedural rights in the field
of civil judicial cooperation. In Chapter 11, Dominik Düsterhaus focuses on the
implementation and scrutiny of fair trial guarantees under EU law in civil mat-
ters. Düsterhaus argues that both normatively and institutionally the framework
of civil judicial cooperation is structurally deficient insofar as domestic courts’
assessments of whether proceedings are fair remains largely exempt from EU
oversight. This deficiency is attributed to the limited scope of CJEU jurisdiction
over fundamental rights. It is nevertheless suggested that the CJEU’s use of the
second subparagraph of Article 19(1) TEU as a benchmark for judicial organisa-
tion may eventually lead to a tightening of the Court’s grip.
Chapter 12 by Agnieszka Fra˛ckowiak-Adamska takes the analysis further by
considering whether the EU’s legislators and judiciary strike the right balance
between two fundamental procedural rights stemming from the right to a fair
trial – right of access to the court and right of defence – in the field of judicial
cooperation in civil matters. The analysis focuses on secondary law and case law,
with particular regard to the obligation of the defendant to exhaust all remedies
available in the state of origin and the importance of introducing EU-wide stand-
ards in civil cases.
14 Sara Iglesias Sánchez and Maribel González Pascual
It is noteworthy that in the field of criminal law, in stark contrast to the situ-
ation in the field of judicial cooperation in civil matters, procedural rights have
been the subject of a major operation of harmonisation through EU secondary leg-
islation. As shown by Coral Arangüena in Chapter 15, this minimal approach has
strengthened basic elements for mutual recognition. Six directives on procedural
rights have been enacted, providing a point of reference for procedural guarantees.
Incorporated in the EU legal order through secondary legislation, those guarantees
should be regarded as an integral part of the protection afforded by Article 48(2)
of the Charter. The chapter offers an overview of the procedural directives, high-
lighting shortcomings that have come to light during the implementation process
as well as difficulties encountered in their application by judicial authorities.
Although procedural rights seem omnipresent in the cases discussed, other fun-
damental rights also feature prominently in certain fields of the AFSJ. Such is the
case of the right to family life, which is of great relevance to the fields of migra-
tion and asylum law in addition to civil judicial cooperation. Such is also the case
of the right to liberty and security, which occupy centre stage not only in the
fields of immigration and asylum law but also in the field of judicial cooperation
in criminal matters.
The right to family life is of paramount importance in asylum and migration
law and in civil judicial cooperation. In Chapter 6, Ciara M Smyth offers a thor-
ough and critical assessment of jurisprudential developments concerning the fam-
ily reunification directive, the key piece of secondary legislation regulating the
right to family life in the field of immigration – a field she describes as ‘differen-
tiated and fragmented’. She analyses whether and to what extent the CJEU relies
on fundamental rights in giving shape and meaning to the directive, focusing on
the Court’s ambiguous position regarding the role that fundamental rights should
play in this controversial policy area.
In Chapter 10, Vesna Lazić analyses the right to family life and the best inter-
ests of the child in judicial cooperation in civil matters. Her contribution provides
insight into how certain rights of the child – definition of the child, best interests
and hearing of the child – have been incorporated in the recently revised Brussels
II bis Regulation. The focus is on the ‘overriding mechanism’ in child abduction
cases. The chapter points out major flaws in the current regulation’s scheme, as
illustrated in relevant CJEU case law. It looks at how the recast regulation addresses
the weaknesses of the current framework and assesses the appropriateness and
effectiveness of the amendments, – critically examining whether the revised regu-
lation is likely to overcome the difficulties that have been encountered.
Several EU instruments in the field of EU immigration and asylum law, and
some in the field of EU criminal law, allow for, or even presuppose, the possibility
of Member States adopting measures entailing deprivation of liberty. Hence, two
Introduction: Fundamental Rights at the Core of the AFSJ 15
chapters examine how the right to liberty and security operates in the fields of
immigration and asylum on the one hand and criminal law on the other.
Chapter 5 by Justine N Stefanelli and Elspeth Guild analyses how the CJEU
has dealt with the competing interests of the right to liberty and an effective sys-
tem for immigration, asylum and borders in the EU in the context of the Return
Directive, the Reception Conditions Directive and the Dublin III Regulation. Where
explicit rules governing detention exist, the authors point out that the standard of
protection guaranteed by EU law goes beyond the standard offered by the ECHR.
Moreover, the case law relating to the Return Directive has relied on effective-
ness in a way that has enhanced the right to liberty. However, it is not clear how
solid this ‘liberty enhancing’ effect is, as the case law of the CJEU interpreting
the Return Directive does not rely on fundamental rights arguments. The chapter
concludes that, although the CJEU has in many cases aligned its approach with
that of the ECtHR, distinct, EU-specific jurisprudence on the right to liberty is
beginning to emerge.
In the field of criminal law, while the European arrest warrant was initially the
principal subject of debate, discussions on the impact of EU criminal law on the
right to liberty have since broadened in scope. Chapter 14 by Leandro Mancano
addresses this development and the role of the right to liberty in three scenarios:
EU measures triggering cases of continued detention through mutual recogni-
tion; EU measures safeguarding the right to liberty; and EU measures facilitating
alternatives to detention. The chapter argues that, while progress has undoubtedly
been made, much remains to be done for the liberty of persons in criminal pro-
ceedings and judicial cooperation procedures to be adequately protected.
Some fundamental rights have a particular imprint in specific areas, or a scope
of application that is limited to specific thematic issues. This is the case of the
right of asylum, whose unique role and development within the EU fundamental
rights system is analysed by Madalina Moraru in Chapter 7. Moraru’s discussion of
the scope and effects of the EU fundamental right to asylum delves chiefly into the
scope of Article 18 of the Charter as compared to the principle of non-refoulement
guaranteed by the 1951 Refugee Convention. It also covers the extraterritorial
application of the EU fundamental right to asylum and its content, and the actors
who contribute to the normative clarification of the right to asylum. The chapter
demonstrates the added value of the EU fundamental right to asylum as reflected
in the various functions it plays at EU and national levels.
Criminal law merits special attention with regard to several charter rights,
including the principle of legality, the ne bis in idem principle and the rights of
the victims.
The role of the principle of legality as a fundamental right in criminal law is
examined by Christina Peristeridou in Chapter 17. Peristeridou identifies several
16 Sara Iglesias Sánchez and Maribel González Pascual
The chapter analyses the use of these instruments, the involvement of third parties
and the principle of interoperability from the perspective of the right to privacy
and data protection.
In Chapter 20, Annette Schrauwen examines the impact of AFSJ policies on
the fundamental rights linked to EU citizenship and on the non-discrimination
principle. Indeed, the AFSJ was said to have been created to foster free move-
ment. The chapter discusses that claim by highlighting the interaction between
the traditional rights of free movement and non-discrimination of EU citizens on
the one hand and the specific AFSJ measures on immigration and criminal and
civil matters on the other. The author shows that the law has not evolved unidi-
rectionally and that it is difficult to predict how the objectives of the AFSJ will be
interpreted when the rights of free movement and non-discrimination are taken
as points of reference.
The consideration and protection of vulnerable groups in the three blocks of the
AFSJ are addressed by Francesca Ippolito in Chapter 21. She explains that we are
witnessing a process of progressive ‘vulnerabilisation’ in EU law. After explaining
this notion, she examines the normative effects of vulnerability within the frame
of fundamental rights protection in the AFSJ. The chapter claims that the notion
of vulnerability could enhance the effectiveness of fundamental rights protection
and raise the profile of the justice aspect of the AFSJ, since it requires the devel-
opment of a more sophisticated ethic of Member State duties.
In his epilogue in Chapter 22, Michal Bobek reflects on the difficulties and
challenges that the notion of trust presents for judges. Through a historical excur-
sion, he demonstrates how basing the operation of an area of law on trust is likely
to clash with a rich and powerful bundle of ideas and historical experience at
national level. Capturing the essence of the overall conclusion that may be drawn
from this volume, he eloquently invites us to consider a change of paradigm from
law based on trust to trust based on law: ‘[T]rust is not a pre-requisite for the law,
but rather something that the law and social interaction generate. Trust becomes
the end destination, not the starting point.’
PART I
The General Framework for
Fundamental Rights Protection
in the AFSJ
1 The Scope of EU Fundamental Rights in
the Area of Freedom, Security and Justice
SARA IGLESIAS SÁNCHEZ
1.1 Introduction
After ten years of application, heated debates continue to question the boundaries
of fundamental rights as determined by the Charter of Fundamental Rights of the
EU (the Charter). This instrument has brought fundamental rights to the fore in
EU law. The number of fundamental rights cases brought before the CJEU began
to multiply as soon as the Charter became part of mainstream EU legal language.1
Therein lies the challenge: in a union of law based on the principle of attributed
competences, the scope of application of these rights is limited, which in turn
limits the jurisdiction of the CJEU.
As might be expected, the general debate over the scope of EU fundamental
rights is accentuated in the Area of Freedom, Security and Justice (AFSJ). This
area of EU law thus represents a particularly apt testing ground for gauging the
implications of expanding the scope of EU fundamental rights. Even though it is
now clear that fundamental rights can be affected in any field of EU law, the legal
spheres covered by the AFSJ – civil and criminal law, plus border, migration and
asylum policies – all, by their very nature, touch directly on especially funda-
mental-rights-sensitive matters. This deep connection is already apparent in the
Charter’s preamble, which emphasises that the Union ‘places the individual at the
heart of its activities … by creating an area of freedom, security and justice’. Here,
we have a vivid illustration of the key impact that the development and consolida-
tion of EU fundamental rights through the Charter, combined with their applica-
tion in a fully communitarised AFSJ, has on the process EU constitutionalisation.2
A great many EU fundamental rights are affected, if not exclusively then pre-
dominantly, by the thematic content of the AFSJ. Examples are the right to liberty
All the opinions expressed in this chapter are personal to the author.
1
See, generally, G De Burca, ‘After the EU Charter of Fundamental Rights: The Court of Justice as a
Human Rights Adjudicator?’ (2013) 20 MJ 2168.
2
On the CJEU’s role in the AFSJ as part of this constitutionalisation process, see E Herlin-Karnell,
‘The European Court of Justice as a Game-Changer’ in A Ripoll and F Trauner (eds), The Routledge
Handbook of Justice and Home Affairs Research (2017).
22 Sara Iglesias Sánchez
and security, the right to asylum and the non-refoulement principle. Other funda-
mental rights, such as the procedural guarantees enshrined in Articles 47 to 50 of
the Charter, or the right to family life in Article 7 of the Charter, are also central
to the AFSJ. One could therefore say that the Charter’s relevance is enhanced in
the AFSJ, for it is there that many provisions of the Charter that would otherwise
remain dormant or scarcely used in practice come into play.
Furthermore, the AFSJ broadens EU law by bringing within its scope not only
new fields of material law but also new dynamics of interaction between EU
law and national law. Indeed, the common migration and asylum policy directly
regulates rights and personal status regardless of EU free movement rules.
Similarly, rules on judicial cooperation in the civil and criminal fields introduce
EU procedural law into areas whose substantive content is not harmonised. Lastly,
mutual recognition of decisions both in the civil and criminal fields, as well as the
application of the principle of mutual trust in the fields of migration and asylum,
have a direct and intense effect on individual rights and raise new questions con-
cerning the protective responsibilities of two (or more) Member States engaged in
judicial or administrative cooperation. The AFSJ therefore opens up new avenues
of interaction between national and EU law which challenge the traditional under-
standing of the scope of EU fundamental righthood. Moreover, the approach to the
scope of EU fundamental rights in this field has key implications for the allocation
of the power of review and the application of competing standards in national
fundamental rights systems.3
Against this background, the purpose of this chapter is twofold. First, keeping
in mind the variety and complexity of the themes covered by this compilation,
it seeks to show how the competences and rules in the AFSJ expand the scope
of EU fundamental rights. Second, this chapter seeks to identify the particular-
ities of the AFSJ that are relevant to delineating the scope of the Charter. For
these purposes, Section 1.2 will outline the regime governing the application of
the Charter pursuant to its Article 51(1) and describe how this regime plays out
in the AFSJ. Section 1.3 will then clarify the role of other criteria traditionally
used to determine scope of application, such as territorial, personal and temporal
considerations. After that, Section 1.4 will focus on some of the particularities
affecting the determination of the scope of the Charter in the AFSJ. In Section
1.5, by way of conclusion, I suggest that the AFSJ is more than just an interest-
ing field for testing the general limits of EU fundamental rights; it represents a
specific area of law that has moved the Charter into a more central position in EU
case law, thereby consolidating the role and identity of the CJEU as a guardian
of fundamental rights.
3
At greater length, see Chapter 2.
The Scope of EU Fundamental Rights in the AFSJ 23
4
This chapter uses ‘EU fundamental rights’ and ‘Charter rights’ interchangeably, it being assumed
that, on the whole, the scope of application of the rights of the Charter corresponds to that of
fundamental rights as EU general principles of law. That said, some general principles differ in
scope from the Charter. On the principle of effective judicial protection in art 19(2) TEU, see Case
C-64/16 Associação Sindical dos Juízes Portugueses EU:C:2018:117, paras 29, 37, 40.
24 Sara Iglesias Sánchez
content of the Charter. The scope of several Charter rights is limited to EU insti-
tutions, bodies, offices and agencies. This is notably the case with the citizenship
rights set forth in Articles 41 to 44 of the Charter.5
The Charter’s focus on EU public powers is also demonstrated by Article 51(1),
which does not make the application of the Charter to those powers conditional on
any functional criterion, as is the case with Member States, whose action comes
within the scope of the Charter ‘only when they are implementing EU law’. EU
public powers, by contrast, are always bound by the Charter. Regardless of the
capacity in which they act and irrespective of whether they act within the limits
of their attributed competences, their nature as EU public powers automatically
brings them within the scope of the Charter. This is so even if they are serving
as surrogates for other organisations or for Member States, or acting outside the
powers that EU law bestows on them. As confirmed by the CJEU, ‘the Charter
is addressed to EU institutions, including … when they act outside the EU legal
framework’.6 As a consequence, even when EU institutions adopt acts outside the
legal framework of the EU, which may place them beyond the Court’s jurisdiction
in annulment proceedings,7 the measures taken by EU powers are always justicia-
ble in an action for compensation for damages.8
The Charter has often been applied in the AFSJ as a parameter for assessing
the validity and interpretation of acts of EU public powers. Significantly, it was
in an AFSJ case that the Court first mentioned the Charter, at a time when it was
not even in force. In Parliament v Council,9 the European Parliament initiated an
annulment action contesting (unsuccessfully, as it happened) the compatibility
of several aspects of the Family Reunification Directive10 with the right to family
life. The Charter has also been used as a parameter for determining the legality of
draft EU international agreements in the AFSJ, as when the Court found the draft
agreement between Canada and the EU on the transfer and processing of passen-
ger name record data to be incompatible with several Charter provisions.11
5
It is still unclear to what extent those rights can be extended to Member States via general
principles. The right to good administration (art 41), or at least some aspects of it, have been
extrapolated to the Member States. On this debate, see Case C-298/16 Ispas EU:C:2017:650,
Opinion of AG Bobek, paras 77–91.
6
In relation to acts adopted under the European Stability Mechanism, see Joined Cases C-8/15 P
to C-10/15 P Ledra Advertising and Others v Commission and ECB EU:C:2016:701, para 67.
7
Joined Cases C-105/15 P to C-109/15 P, Mallis and Others v Commission and ECB,
EU:C:2016:702.
8
Under TFEU arts 268 and 340. See Joined Cases C-8/15 P to C-10/15 P Ledra Advertising (n 6)
para 55.
9
Case C-540/03 Parliament v Council EU:C:2006:429.
10
Council Directive 2003/86/EC of 22 September 2003 on the right to family reunification [2003]
OJ L251/12.
11
Opinion 1/15 (EU-Canada PNR Agreement) EU:C:2017:592.
The Scope of EU Fundamental Rights in the AFSJ 25
It is notable, however, that most of the annulment procedures in the AFSJ have
concerned the inter-institutional allocation of powers and the legal basis of related
issues,12 as was already the case before the Charter’s entry into force.13 That said,
some of those institutional cases involved an underlying layer of constitutional
considerations concerning the appropriateness of the measures introduced by the
democratic legislator given their impact on fundamental rights.14 Furthermore,
the growing relevance of fundamental rights to annulment proceedings is also
reflected in cases where Member States have attacked the validity of EU acts. In
particular, the Charter has featured prominently in cases concerning the system of
asylum quotas, where it has been relied on to uphold the validity of EU acts in the
face of Member States’ arguments for their dismissal.15
In this context, national courts have uncontestably played a leading role in
policing the conformity of EU acts with fundamental rights in the AFSJ. Through
requests for preliminary rulings on the validity of EU acts, they have questioned
the legality of legislative provisions such as those regulating the detention of for-
eign nationals in asylum laws;16 the conditions for revoking refugee status in light
of Article 18 of the Charter;17 the compatibility of the European Arrest Warrant
Framework Decision with the legality principle18 and with rules concerning pro-
cedures in absentia;19 and the obligation to take fingerprints of persons applying
for passports.20 Although the cases mentioned did not result in any declaration of
invalidity, the CJEU’s interpretation of the acts at issue have often been strongly
worded in relation to fundamental rights, which suggests that the validity of those
acts could be ‘saved’ only if they were interpreted in a manner that conformed
with the Charter.
The application of the Charter to EU public powers in the AFSJ has not, how-
ever, been free of controversy. First, the action of EU institutions and bodies in
12
See eg Joined Cases C-317/13 and C-679/13 Parliament v Council EU:C:2015:223; Case C-43/12
Commission v Parliament and Council EU:C:2014:298; Case C-88/14 Commission v Parliament
and Council EU:C:2015:499; Case C-595/14 Parliament v Council EU:C:2015:847.
13
See eg Case C-176/03 Commission v Council EU:C:2005:542; C-257/01 Commission v Council
EU:C:2005:25; Case C-133/06 Parliament v Council, EU:C:2008:257.
14
See esp Case C-355/10 Parliament v Council EU:C:2012:516, paras 76, 77, regarding the
provisions conferring powers of public authority on border guards. On the establishment of
secondary legal bases for adopting a list of safe third countries in connection with EU asylum
rules, see Case C-133/06 Parliament v Council EU:C:2008:257.
15
See Joined Cases C-643/15 and C-647/15 Slovakia and Hungary v Council EU:C:2017:631, para
305.
16
See Cases C-18/16 K EU:C:2017:680; C-601/15 PPU N EU:C:2016:84.
17
See Joined Cases C-391/16, C-77/17 and C-78/17 M and Others EU:C:2019:403.
18
See Case C-303/05 Advocaten voor de Wereld EU:C:2007:261.
19
See Case C-399/11 Melloni EU:C:2013:107.
20
See Case C-291/12 Schwarz EU:C:2013:670.
26 Sara Iglesias Sánchez
the AFSJ consists not only of law- and decision-making but also direct admin-
istration. A great number of EU agencies operate in the AFSJ.21 The allocation of
responsibility between Member States and agencies is a much-debated question,
particularly given the fact that agencies often act in coordination with or in sup-
port of actions of Member States. However uncertain this allocation may therefore
be, Article 51(1) of the Charter nonetheless confirms in no uncertain terms that EU
agencies have an obligation to abide by the Charter, no matter in what capacity
they may be acting. This obligation has been given concrete expression in specific
fundamental rights compliance mechanisms, particularly in the case of Frontex,
an agency that requires heightened scrutiny due to the nature of its tasks, which
include operational involvement in interceptions at sea.22
Second, the practice of outsourcing certain administrative tasks to private
actors, in particular in the context of the common visa policy, further complicates
the challenges of ensuring fundamental rights accountability.23
Third, given the political sensitivity of the action of Member States and EU insti-
tutions in the AFSJ, that action is susceptible to fall back on intergovernmental
dynamics which could blur the legal nature of the acts and the fundamental rights
responsibilities of EU and Member State public powers. This risk has materialised
in the wrongly named ‘EU-Turkey’ deal concerning the agreement to resettle one
Syrian refugee in a Member State for every person readmitted by Turkey under the
terms of the agreement. Although the agreement was made public in an EU press
release and it included references to the EU and members of the European Council,
the General Court found that the authors of the statement were the heads of state
and government, not the EU institutions. For that reason, the agreement did not
involve an EU legal act and, as a result, escaped the jurisdiction of the Court in
annulment proceedings.24
21
See the report to the EP’s Committee on Civil Liberties, Justice and Home Affaires (LIBE): E Guild
and others, ‘Implementation of the EU Charter of Fundamental Rights and its Impact on EU
Home Affairs Agencies: Frontex, Europol and the European Asylum Support Office’ (EP 2011) 43.
22
The agency can be held liable and the CJEU has jurisdiction under art 60(4) of Regulation
(EU) 2016/1624 of the European Parliament and of the Council of 14 September 2016 on the
European Border and Coast Guard [2016] OJ L251/1. There is a specific fundamental rights
complaint mechanism in art 72. On this problematic topic, see eg M Fink, Frontex and Human
Rights (OUP 2018).
23
See F Mc Namara, ‘Externalised and Privatised Procedures of EU Migration Control and Border
Management: A Study of EU Member State Control and Legal Responsibility’ (LLD thesis,
European University Institute 2017).
24
See Orders T-192/16 NF v European Council EU:T:2017:128; T-193/16 NG v European Council
EU:T:2017:129; T-257/16 NM v European Council EU:T:2017:130; T-834/16 QC v European
Council EU:T:2018:984. See Order in Joined Cases C-208/17 P to C-210/17 P, NF and Others v
European Council EU:C:2018:705, dismissing the related appeals.
Another random document with
no related content on Scribd:
lisäsi nuorukainen auttaessaan sydämensä valittua ylös. Samalla
onnistui hän painamaan suukkosen tyttönsä valkoiselle kaulalle.
KÖYHTYNYT KREIVI.