FREE News: 16th February

CJEU case-law:

OPINION 2/13 ON EU ACCESSION TO THE ECHR: LOOKING FOR THE SILVER LINING (by Catherine Barnard, Trinity College, Cambridge)

Opinion 2/13 is a judgment for lawyers, not politicians, albeit one with major political ramifications. It engages in a detailed legal analysis of the relevant provisions of the Draft Accession Agreement (DAA), as well as key principles of EU law. This does not always make it an easy read. Others have helpfully explained the Opinion (see the Editorial comments in (2015) 52 Common Market Law Review 1); a number have been have been highly critical of it (eg Douglas-Scott, Peers, Lock). I want to see whether it is possible to adopt a more positive reading of the Opinion. My remarks focus on three points:

  • Was there a failure to see the wood for the trees in the negotiations?
  • Was Opinion 2/13 really a case of judicial vanity?
  • What are the effects of Opinion 2/13 on relations between the CJEU and the European Court of Human Rights?

Was there a failure to see the wood for the trees in the negotiations?

The submissions of the Member States and the AG’s Opinion focused on the content of the Draft Accession Agreement: are the various clauses of the agreement compatible with EU law? But I think the Court felt that the focus on the nuts and bolts of the DAA meant that the negotiators failed to look at the bigger picture, namely (1) that the EU is not a state; and (2) that EU law has special characteristics (the language of Article 1 of Protocol 8[1]) which had not been sufficiently accommodated by the DAA.

In other words, the DAA focused on the state of the soft furnishings of the house – the carpets and curtains – rather than on the structural soundness of the entire edifice. But the Court was much more concerned with the edifice rather than the soft furnishings. This is why it devoted a substantial part of its Opinion (paragraphs 153-177) to identifying the ‘specific characteristics’ of EU law which it thought risked being undermined by accession to the ECHR. It identified these specific characteristics as supremacy, direct effect, conferral of powers, institutional structure[2], as well as the principle of mutual trust[3] and fundamental rights (why so far down the list?).[4] The Court also emphasised the importance of the autonomy of EU law – that is its autonomy from both the laws of the Member States and international law.[5] The Court said that the autonomy of EU law, together with its specific characteristics, were preserved by the judicial system intended to ensure consistency and uniformity in the interpretation of EU law.[6] And the key to this system is the Article 267 TFEU preliminary reference procedure.[7] It was against this backcloth, said the Court, that the DAA had to be considered.

Having set out its stall, the Court was, I think, trying to indicate that anything in – or about – the Accession agreement which jeopardised this core contravened EU law. Putting it another way, the discussion in paragraphs 153-177 was not put there simply to teach EU lawyers to suck EU eggs; these paragraphs are integral to the logic that followed. They provided the context for the Court to consider not just the points raised by the Member States in their submissions but also the bigger constitutional picture.

This broader constitutional context also helps to explain the focus on the three substantive issues: Article 53, mutual trust and Protocol No. 16 which had featured little in the submissions and the AG’s Opinion. At first sight, it is particularly surprising that Protocol No. 16 was considered at all. It allows national courts of last resort of states signed up to the Protocol to make ‘references’ to the European Court of Human Rights for an interpretation of the Convention.[8] It was concluded after the DAA had been agreed and it has not yet been brought into force. Yet the mere existence of Protocol 16 gave the Court the opportunity to express its views on the centrality of Article 267 TFEU to the EU system and how the reference procedure might be undermined.

In other words, for the Court, the EU’s team negotiating the DAA had failed to consider this important constitutional ‘wood’, focusing too much on the ‘trees’. Addressing the concerns about the potential infringement of Article 267 TFEU, together with the issues raised about Article 53 TFEU, the principle of mutual trust and Protocol No 16, was essential before accession could take place.


Read all on EU Law Analysis Blog

EU: CJEU: Advocate General (AG) Shartston: Opinion: 12 February 2015, Case C.554/13 (pdf): The AG says that if an undocumented person is suspected of a criminal offence then the authorities do not need to wait for the legal process to be completed in order to deport the person” (

UK in Europe:


British parliamentary elections are set for 7 May. Britons will go to the polls amid rising public support for the anti-European Union UK Independence Party and calls for the Conservative government of David Cameron to bring forward to 2016 a promised referendum on the country’s continued EU membership.

Four decades after the 1975 referendum in which the British electorate voted by a two-to-one majority to join the EU’s predecessor, the European Economic Community, Britain’s relationship with the Continent remains a divisive issue in UK politics.

The generation that voted to join the EEC has now turned against the EU. And Britain’s future relationship with Europe may well depend on the views of its Millennials – Britons born after 1980. But this younger, generally pro-EU generation, has a history of not voting.

Age is a stark determinant of British views on the EU and Britain’s continued membership in that organisation. Just 40 percent of those ages 50 and older hold a favorable view of the European Union, compared with 71 percent who voice a positive judgment among those ages 18 to 33, according to a Spring 2014 Pew Research Center survey.

Given such sentiments, it is not surprising that 59 percent of British Millennials favour the UK remaining in the EU, while 49 percent of those ages 50 and above want to leave.


Younger Britons clearly favour a continuing UK relationship with the European Union. And, as the generation that has to live with Brussels in the future, their views carry special significance. But in an ageing society, where older Britons have both a demographic preponderance and are more committed to exercising their right to vote, Millennials’ claim to shaping the future is tenuous.

Their EU consciousness may not necessarily trump EU scepticism on election day.


Terrorism; Charlie Hebdo:


Danish Prime Minister Helle Thorning-Schmidt on Sunday (15 February) said she would propose new measures in the fight against extremism and radicalisation, following the shootings in Copenhagen over the weekend which left three people dead, including the suspected gunman, as well as five policemen injured.

On Saturday (14 February) around 3:30 PM, a gunman,later confirmed by the police to be the 22-year old Omar Abdel Hamid El-Hussein, opened fire outside the culture house Krudttønden in Copenhagen where artists such as the two Swedes Lars Vilks and Dan Park as well as the French Ambassador to Denmark, François Zimeray, were debating freedom of speech following the terror attacks in France a month ago. Vilks is famous for his controversial cartoons of the Prophet Muhammad, including one depiction of the Prophet as a dog.

The attack left one man, the 55-year old Danish film director Finn Nørgaard, dead, while three policemen were injured. Hours later in a separate attack, the police said El-Hussein shot dead a member of the Jewish community in Denmark, Dan Uzan, outside a synagogue, while also shooting two policemen.

The killings were possibly inspired by the terror attacks in France a month ago, which targeted the French satirical weekly Charlie Hebdo, as well as a Jewish supermarket, leaving 17 people dead. While the gunmen in France had links to the Islamic militant group al-Qaida, El-Hussein was only known to Danish police for gang-related crime.

Thousands of young people from Western Europe have headed to the war zones in Syria and Iraq to join extremists. While paying a visit to the synagogue on Sunday, Thorning-Schmidt said she was unaware whether El-Hussein had been a foreign fighter, but still promised to “introduce measures in the nearest future to fight these people who choose to leave their peaceful, democratic country to fight elsewhere”.

Read the full article on Euractiv

Migration; irregular migration; refugees:


Migration from the Western Balkans towards the EU is not new. But the size of the exodus from Kosovo surprised many in early February, when the media began reporting that a large number of Kosovar Albanians were trying to enter Hungary via Serbia. EurActiv Serbia reports.

There is no precise information on the number of Albanians who ave left Kosovo. Estimates in early February cite several hundred leaving daily. According to data provided by security forces, over the past two months, more than 50,000 have left, while media estimate 100,000 since August 2014.

Such claims are dismissed by Kosovo government officials, who stress that even the smaller number they know of is cause for concern and is a heavy burden on Pristina.

This led the Kosovo Assembly to pass a special resolution on stopping illegal migration and to request that the Kosovo government earmark between 40 and 50 million euros, which would be used to create new jobs and solve social problems.

At the same time, Kosovo President Atifete Jahjaga started touring the municipalities from which the biggest number of illegal migrants had left, and spoke about the matter directly with the those she met on the street and in restaurants.

As one of the measures aimed at stemming the flow of migrants, on 5 February, the government decided to form a commission that would consider the possibility of writing off all of their debts to institutions and public enterprises created between 1999 and the end of 2008. The possibility of writing off interest on the debts of citizens and companies incurred after 2008 was also announced.

Authorities facing difficult task

Kosovo Premier Isa Mustafa has said that migration is a heavy burden on the authorities, and announced the undertaking of numerous measures that will forestall migration, while simultaneously creating better living conditions.

On 12 February, Mustafa told the Beta News Agency that “measures are being taken with the Interior Ministry of Kosovo to disable the departure of citizens from Kosovo”, and that the authorities are working on informing citizens that they cannot be granted asylum in the EU for economic reasons.

The Kosovo government is also preparing an economic development program, in order to ensure that citizens remain in Kosovo, and currently has at its disposal about 50 million euros primarily for the development of agriculture, said Mustafa, adding that, if necessary, more funds will be set aside.

More on Euractiv


The number of Syrian refugees now in Lebanon exceeds one third of the country’s population. There are roughly 150 Syrian refugees per square kilometer in Lebanon according to Foreign Minister of Lebanon Gebran Bassil.

This fact has caused the Lebanese government to close its border with Syria, for the first time in it’s history.

Lebanon, one of the smallest countries in the region, is quickly running out of space and resources to continue aiding the estimated 1.5 million refugees residing there.  But beyond this and even with outside emergency aid, the political and security ramifications of the long term crisis is even more troubling to the Lebanese government.

Bassil sat down with New Europe to discuss the current state of Lebanon and what he hopes will come of his time in Brussels.

Lebanon does not have the means, space or infrastructure to maintain a long-term influx of refugees. Bassil said it is “miraculous’” they have been able to take in as many refugees as they have, given a lagging economy and lack of resources.


The minister said he hopes the EU will understand Lebanon’s current position and respond positively to the country’s requests and needs. Lebanon needs to be able to arm their security forces, develop their communities, and boost their economy in order to not only support the Syrian refugee crisis, but to preserve the future of it’s own people, he said.

Read the entire article on Neurope

EU: Fundamental Rights Agency (FRA): Criminalisation of migrants in an irregular situation and of persons engaging with them (pdf): “FRA research has highlighted the risk that domestic EU Member State legislation on the facilitation of entry and stay may lead to the punishment of those who provide humanitarian assistance…” ” (


“Racist” asylum and immigration policies have led to the UK having one of the highest death rates of migrants across Europe over the past five years, according to an audit examining the state’s treatment of asylum seekers.

Analysis by the London-based Institute of Race Relations thinktank found that the highest numbers of deaths of asylum seekers and migrants were in some of the most affluent countries, with the UK having the third largest death toll, during a period mostly governed by the Conservative-Lib Dem coalition.

The audit’s figures, which do not include the thousands of migrants who have died trying to enter “fortress Europe”, are due to be published next month.

Liz Fekete, director of the IRR, said the findings demonstrated that the lives of migrants were still considered inferior and that asylum seekers were not just dying while attempting to enter Europe. “Some lives simply don’t matter. These deaths reflect exactly the same indifference to human life that we see at the border. Europe still sees itself as a world leader in human rights, but its treatment of foreigners brings this vision into question,” she added.

Harmit Athwal of the IRR said: “Racism seeps throughout the immigration-asylum system and the situation appears to be getting worse in the UK and Europe as a whole.”

The institute uncovered 22 deaths in the UK that it claims are directly attributable to immigration and asylum policies, with 10 individuals dying in detention, mainly immigration removal centres, and 10 taking their own lives, usually after a failed asylum claim. Germany had the highest migrant death toll with 29, followed by Norway with 23, then the UK with 22 and France with 13.



Processus De Rabat:

“Use of Civil Registration and Vital Statistics in support of Good Governance in Africa” :


The Third Ministerial Conference will be held in Yamoussoukro, Cote d’Ivoire from 9-13 February 2015 under the theme “Promoting the use of Civil Registration and Vital Statistics in support of Good Governance in Africa”. All African Ministers responsible for Civil Registration, Ministers of Health, Heads of Civil Registration Offices (CROs) and National Statistics Offices (NSOs), representatives of regional and international organizations, concerned UN agencies, and representatives of Non-Governmental Organizations are expected to participate.

The First Ministerial meeting that was held in Addis Ababa, Ethiopia in August 2010 recognized the importance of Civil Registration and Vital Statistics (CRVS) and identified it as one of the continent’s key development imperatives. Following the ministers’ resolutions, African Heads of State and Government in their 2012 African Union summit institutionalized the ministerial conference as statutory body of the African Union Commission (AUC) and directed the conference to report on progress and challenges to the summit every two years .

At the Second Conference of African Ministers responsible for Civil Registration held in Durban, South Africa in September 2012, ministers re-iterated the continuing importance of CRVS in advancing Africa’s development agenda, including accelerating regional integration, attaining the priorities of the New Partnership for Africa’s Development (NEPAD); an African Union strategic framework for pan-African socio-economic development, and meeting the Millennium Development Goals (MDGs). They noted in their Declaration at the end of the meeting:

(a)          The central role that CRVS plays in governance and economic development;

(b)          The role of CRVS in improving access to basic services at all levels, including meeting the MDGs; and

(c)          The pervasive way in which CRVS impacts on individuals in their daily, social, political and economic lives.

Among the key outcomes of the Durban meeting was (a) the endorsement of the Africa Programme on Accelerated Improvement of Civil Registration and Vital Statistics (APAI-CRVS) that provided the policy and programmatic framework for implementation of CRVS on the continent; and (b) the decision that all countries will undertake comprehensive assessments of CRVS systems and prepare costed national plans irrespective of the state of development of their systems.

This Third Ministerial Conference will aim at contextualizing CRVS in the realm of governance and discuss ways in which a complete and efficient CRVS system can help countries to achieve ‘good governance’. The conference is expected to mobilize member States in envisioning this important linkage and guide them in developing and implementing specific strategies and operational plans that will facilitate the realization of good governance as well as help mainstream a good governance approach in CRVS.

This conference is for the first time is being organized under the auspices of AUC following the resolution of the Heads of State and Government in January 2012. This conference and all future conferences will therefore be conducted under the rules and procedures of business followed by AUC in such ministerial level meetings. The conference is being organized in collaboration with the Regional CRVS Core Group comprising of African Development Bank (AfDB), United Nations Children’s fund (UNICEF), United Nations Population Fund (UNFPA), United Nations High Commissioner for Refugees (UNHCR), World Health Organization (WHO), INDEPTH Network, Plan International, the Secretariat of the African Symposium on Statistical Development (ASSD) represented by Statistics South Africa, and UNECA (which serves as the secretariat of the APAI-CRVS).


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