and Other Policies Related to Free Movement of Persons 18.1.2.1. General Considerations
The uniformity of the Community legal order characterised by a system of uniform and coherent remedies and a complete system of judicial pro- tection suffered a serious blow with the Treaty of Maastricht. The Court of Justice was excluded from the second and third pillars on Common Foreign and Security Policy and on Justice and Home Affairs. The impact of the measures adopted thereunder, and their interpretation was accord- ingly left to be determined, presumably, by the national courts. The Court of Justice demonstrated its concern over effective judicial protec- tion and uniformity in its report in the run-up to the Amsterdam
76 Case T–2/99 T Port v Council[2001] ECR II-2093; T–3/99 Bananatrading GmbH v Council [2001] ECR II-2123.
Intergovernmental Conference. While some improvements were achieved in respect of judicial protection in Amsterdam, further damage was done to the uniformity of the system of protection. With the Treaty of Amsterdam, part of the third pillar was moved to the first pillar to form a separate ‘ghetto’77within the system of Community law.78The transfer to the first pillar, or ‘communitarization’, implies a fundamental change:79 co-operation of Member States is replaced by action by the Community institutions by means of Community legislation,80in the form of regula- tions, directives, decisions and recommendations. The system of judicial review operating under Title IV differs from the system governing the rest of the first pillar, ‘mainstream Community law’.
It would appear that the Treaty provisions regarding the jurisdiction of the Court of Justice apply to Title IV,81but the jurisdiction of the Court has been modified on three counts: Under Article 68(1) EC only courts or tribunals against whose decisions there is no judicial remedy under national law can, and must, refer questions for preliminary ruling on the
77 For the first five years after the entry into force of the Treaty of Amsterdam, the Title is only partly under the Community umbrella and still forms a ‘ghetto’ since in some important respects, it diverges from mainstream Community law: the Commission shares inititatives with the Member States, decisions are all unanimous, the European Parliament is not directly involved in the decision-making: it is only consulted. These restrictions will be removed or re-analysed after this period of five years (Art. 67 EC).
78 On Title IV and the jurisdiction of the ECJ in it see inter aliaP Eeckhout, ‘The European Court of Justice and the ‘Area or Freedom, Security and Justice’: Challenges and Problems’, in Judicial Review in European Union Law. Liber Amicorum in Honour of Lord Slynn of Hadley, Vol. I, (The Hague, Kluwer Law International, 2000), 153; N Fennelly,
‘The Area of “Freedom, Security and Justice” and the European Court of Justice – A Personal View’, 49 ICLQ, 2000, 1; A Arnull, ‘Taming the Beast? The Treaty of Amsterdam and the Court of Justice’, in D O’Keeffe and P Twomey (eds), Legal Issues of the Amsterdam Treaty, (Oxford, Hart Publishing, 1999), 109; D O’Keeffe, ‘Can the Leopard Change its Spots? Visas, Immigration and Asylum – Following Amsterdam,’
above, 271; K Hailbronner, ‘European Immigration and Asylum Law under the Amsterdam Treaty’, 35 CML Rev, 1998, 1047; A Albors-Llorens, ‘Changes in the Jurisdiction of the European Court of Justice under the Treaty of Amsterdam’, 35 CML Rev, 1998, 1273; N Fennelly, ‘Preserving the Legal Coherence within the New Treaty.
The European Court of Justice after the Treaty of Amsterdam’, 5 MJ, 1998, 185; J Monar,
‘Justice and Home Affairs in the Treaty of Amsterdam: Reform at the Price of Fragmentation’, ELR, 1998, 320; A Ward, ‘The Limits of Uniform Application of Community Law and Effective Judicial Review: A Look Post-Amsterdam’, in C Kilpatrick, T Novitz and P Skidmore (eds), The Future of Remedies in Europe, (Oxford, Hart Publishing, 2000), 213.
79 Since the transfer does not amount to a full communitarization given the special provi- sions referred to above, there is a major disadvantage: It adds to the fragmentation of the system and increases its complexity. Since communitarization is not complete, it has a pendant in the form of the introduction of more ‘intergovernmental’ elements in a predominantly ‘supra-national’ pillar.
80 See K Hailbronner, ‘European Immigration and Asylum Law under the Amsterdam Treaty’, 35 CML Rev, 1998, 1047, at 1047.
81 See e.g. P Eeckhout, art. cit., at 155.
interpretation and validity of acts of the institutions based on Title IV.82 The route of Article 234 EC is not open to lower courts. Second, jurisdic- tion of the Court to rule on any measure or decision adopted pursuant to Article 62(1) relating to the maintenance of law and order and the safe- guarding of internal security is excluded under Article 68(2) EC.83And third, Article 68(3) EC has introduced a new procedural route to the Court:
The Council, the Commission or a Member State may ask the Court to give a ruling on a question of interpretation of Title IV or acts adopted by the Community institutions based on it.84 Domestic judgments which have become res judicataare not to be affected by Article 68(3) EC rulings of the Court.
The restriction of the preliminary rulings procedure to final instance courts is said to be inspired by a concern for the potentially high number of cases at national level involving a point of Community law under Title IV and aimed to avoid a flood of cases in Luxembourg. There may also have been an issue of expediency: Member States governments were seeking a swift resolution of disputes, especially in the area of asylum and immigration, and references to the European Court could be used as a delaying tactic.85It is deplorable, however, that the possibility of send- ing references to the Court of Justice should be restricted in exactly the area where the need for judicial protection and concern for fundamental rights seem greater than in any other area of Community law: Title IV is after all the area of the Schengen acquis and of the evolving common immigration policy.
As mentioned, the other provisions concerning the jurisdiction of the Court of Justice in the first pillar will apply. Accordingly, actions for annulment, for damages and actions for failure to act will be available, possibly subject also to the Article 68(2) EC exclusion of decisions con- cerning maintenance of law and order and the safeguarding of internal security.86
82 Art. 68 EC reads: ‘1. Article 234 shall apply to this Title under the following circumstances and condition: where a question on the interpretation of this Title or on the validity or interpretation of acts of the institutions of the Community based on this Title is raised in a case pending before a court or a tribunal of a Member State against whose decisions there is no judicial remedy under national law, that court or tribunal shall, if it considers that a decision on the question is neces- sary to enable it to give judgment, request the Court of Justice to give a ruling thereon’.
83 ‘2. In any event, the Court of Justice shall not have jurisdiction to rule on any measure or deci- sion taken pursuant to Article 62(1) relating to the maintenace of law and order and the safe- guarding of internal security’.
84 ‘3. The Council, the Commission or a Member State may request the Court of Justice to give a rul- ing on a question of interpretation of this Title or of acts of the institutions of the Community based on this Title. The ruling given by the Court of Justice in response to such a request shall not apply to judgments of courts or tribunals of the Member States which have become res judicata’.
85 So P Eeckhout, art. cit., at 155.
86 See also A Ward, ‘The Limits of Uniform Application of Community Law and Effective Judicial Review: A Look Post-Amsterdam’, in C Kilpatrick, T Novitz and P Skidmore (eds), The Future of Remedies in Europe (Oxford, Hart Publishing, 2000) 213, at 218.
18.1.2.2. Supremacy of Title IV Acts
In principle, decisions adopted by the Community under Title IV are binding, and capable of having direct effect within the national legal orders.87 Given that Title IV is part of the first pillar, and does not make special provision with respect to the direct effect or supremacy of measures adopted under it, there seems to be no reason why they should not produce direct effects and be superior over conflicting national legislation. Van Gend en Loos, Costa ENEL, Simmenthal, and Internationale Handelsgesellschaftwill likely apply to measures adopted under Title IV.
18.1.2.3. Title IV and Foto-Frost
A difficult question concerns the applicability of the Foto-Frostprinciple in the context of Title IV of the EC Treaty post-Amsterdam. The question is whether Foto-Frostapplies at all: The prohibition imposed on the national courts to hold a Community measure invalid was concomitant with the duty to refer a question on the validity of the measure to the Court of Justice, which has sole power to declare Community measures invalid. In the context of Title IV, however, the lower courts do not even have the option of referring the issue to the Kirchberg. On the other hand, the same three arguments that led the Court to decide Foto-Frostare pertinent here as well. First, the need for uniform application of Community law: diver- gences between national courts as to the validity of Community law would be liable to place in jeopardy the very unity of the Community legal order and detract from the fundamental requirement of legal cer- tainty. These considerations impose themselves with the same force in the context of Title IV. The third argument is likewise relevant in the context of Title IV: The Court of Justice is better equipped to rule on the validity of Community law, and the institutions and the Member States are enti- tled to participate in the proceedings. However, the second limb of the Court’s reasoning in Foto-Frost, the ‘coherent system of legal remedies and procedures’ established by Articles 230 EC and 241 EC on the one hand and Article 234 EC on the other hand which is designed to permit the Court of Justice to review the legality of measures adopted by the institu- tions is devoid of its persuasive force. As for mainstream Community law, the Court has exclusive competence to declare void a Title IV act under Article 230 EC. Nonetheless, it becomes, therefore, an uneasy position to maintain that the power to declare such act invalid must also be reserved to it, since there is a problem of access. If lower national courts are pre- cluded from holding a Title IV act invalid, they must be in a position to
87 K Hailbronner, above, at 1048.
pass the issue on the a competent court. Under the principle of the rule of law and the right to effective judicial protection, which have both been embraced by the Court, there must be a cause of action to bring the case before a competent court. Regard must also be had to the wider context of the ‘complete system of judicial protection designed by the Treaty’:
The Court finds support for a restrictive interpretation of standing for private applicants under Article 230 EC in the alternative route via the national courts, in combination with Article 234 EC.88The latter clarifica- tion is crucial because the reference to the preliminary rulings procedure includes the Foto-Frostobligation imposed on national courts to refer the case in case of prima facie invalidity. However, this argument cannot apply to Title IV cases since there simply is no recourse to Article 234 EC for lower courts. Does this mean that the European Courts would have to relax the conditions for standing under Article 230 EC within the scope of Title IV?89
Several options have been suggested to resolve the dilemma. A first position is that Foto-Frost90should apply with the same force in the con- text of Title IV measures as for mainstream Community measures: the Court of Justice has exclusive power to rule on the validity of Community law, and national courts may not hold a Community measure invalid.
Given that lower courts are not entitled to make referrals in the context of Title IV, they must consider the relevant act as valid. Various suggestions have been made to have the questions referred by the courts of final instance in the case, but these seem convoluted and are hardly realistic.91 The (partial) application of Foto-Frostdoes justice to concerns of unifor- mity and legal certainty, but it flies in the face of the principle of the rule of
88 See for instance Case C–231/95 PGreenpeace v Commission [1998] ECR I–1651; Case C–70/97 PKruidvat BVBA v Commission[1998] ECR I–7183; Case C–50/00 PUnión de Pequeủos Agricultores[2002] I–6677.
89 This has been suggested by Arnull who argues that Foto-Frostdoes not apply to Title IV and national courts are free to declare invalid acts adopted under Title IV (includ- ing those covered by Article 68(2) EC). Only if standing for non-privileged applicants under Article 230 EC is relaxed would the opposite be acceptable, A Arnull, ‘Taming the Beast? The Treaty of Amsterdam and the Court of Justice’, in D O’Keeffe and P Twomey (eds), Legal Issues of the Amsterdam Treaty (Oxford, Hart Publishing, 1999) 109, at 117.
90 Or at least: the principle that national courts do not have jurisdiction to declare Community measures invalid; the second limb of Foto-Frost, that ‘may’ in Art. 234 EC must be read as ‘must’, is not so easy to extend to Title IV.
91 Steve Peers has suggested, roughly, that the lower court could grant interim measures under Atlanta, on the condition that appeals would be made until the final court which would then be under an obligation to refer, S Peers, ‘Who’s Judging the Watchmen?
The Judicial System of the ‘Area of Freedom Security and Justice’, YEL, 1998, 337, at 354–55. It is hard to imagine that a national court would actually impose as a condition that its decision is appealed; one may even wonder whether it is at all possible under national law.
law,92 the right to effective judicial protection93 and poses questions of fundamental rights protection.94
Another option would be that, in the absence of the possibility of engaging the Court of Justice, the lower national courts wouldbe compe- tent to hold a Community measure invalid or inapplicable, and that accordingly Foto-Frostwould not apply to its full extent in the context of Title IV.95Gaja, for instance, stated: ‘When, by contrast, courts are not enti- tled to make a referral, they should not be regarded as barred from ruling on the validity of Community acts. The existence of an exclusive power of the Court pre- supposes first of all that a power is granted – which is not the case with regard to the Community acts mentioned in Article 68(2) – and then that the national courts can engage the Court’.96 The peculiarity of this position is that the power to declare a Community measure invalid would only lie with the lower courts, while the highest courts would be under an obligation to refer the matter to the Court of Justice for decision. A declaration made by a national court that a Title IV measure is invalid can only have limited effect: it is restricted to the Member State of the court making the declara-
92 As expressed in Art. 6(1) EU and inCase 294/83 Les Verts v European Parliament [1986] ECR 1365.
93 See e.g. Case 222/84 Johnston v Chief Constable of the RUC[1986] ECR I1651; Case 222/86 Heylens v UNCTEF[1987] ECR 4097; Case 213/89 R v Secretary of State for Transport, ex parte Factortame (Factortame I)[1990] ECR I–2433, all in the context of judicial protection against the Member States before national courts. In the context of its own jurisdiction and review of acts of the Community institutions, the ECJ has extended its jurisdiction in order to fill a lacuna in ‘the complete system of legal remedies and procedures designed to permit the Court to review the legality of acts adopted by the institutions’, for instance in Case 294/83 Les Verts v European Parliament[1986] ECR 1365; note, however, that the decision is not phrased in terms of the right to effective judicial protection of individu- als, but rather in terms of the system of remedies and procedures. On the contrary, in Case T–398/94 Kahn Scheepvaart BV v Commission[1996] ECR II-477, at para 50, the CFI held that the absence of a cause of action under national law was no reason for the Court to extend its jurisdiction under Article 230(4) EC, even if that would not amount to an interpretation contra legem of the Treaty, as the Court wants us to believe: it is for the Court to interpret ‘direct and individual concern’; in Case C–50/00 PUniún de Pequeủos Agricultores[2002] ECR I–6677, at para 41 and 42, the ECJ turned the reasoning around:
given that there was no access to the European Court, the Member States must ensure that there is a cause of action under national law and it is for the national courts to inter- pret national procedural rules so as to allow individuals to challenge the legality of national implementing measures.
94 Art. 6(2) EU states that ‘the Union shall respect fundamental rights’ etc.
95 There does not appear to be a legal difference in practical effect between a declaration made by a national court that a measure is invalidor inapplicable. In both cases the measure remains in existence and both declarations are necessarily limited to one Member State.
96 G Gaja, ‘The Growing Variety of Procedures concerning Preliminary Rulings’, in D O’Keeffe and A Bavasso (eds), Judicial Review in European Union Law.Liber Amicorum in Honour of Lord Slynn of Hadley, Vol. I, (The Hague, Kluwer Law International, 2000), 143, at 148; see also A Arnull, ‘Taming the Beast? The Treaty of Amsterdam and the Court of Justice’, in D O’Keeffe and P Twomey (eds), Legal Issues of the Amsterdam Treaty, (Oxford, Hart Publishing, 1999), 109, at 117, who suggests that Foto-Frostcan only apply if the con- ditions for standing of private applicants under Art. 230 EC are relaxed.
tion, and the measure remains in existence and remains binding. The uni- form application of the measure would be in jeopardy. The decision of a lower court to hold a Title IV measure invalid could be appealed ulti- mately to the final instance court, which would then be under an obliga- tion to refer the case to Luxembourg. Yet, what if no appeal is made?
Probably, the time limit for a Member State or an institution to bring an action for annulment of the measure will have passed. The Council, the Commission or a Member State may, then, request the Court to give a rul- ing on a question of interpretation97of the relevant act under Article 68(3) EC. Such a ruling does not apply to national judgments that have become res judicata,98but they do carry effect as for the future, and are binding on the national courts.
A third solution would be for the Court to accept references by lower courts on validity issues, contrary to the text of Article 68(1) EC. There have been instances in the past where the Court has extended its own jurisdiction contrary to the text of the Treaty: Foto-Frostitself, remember, sits ill with the wording of Article 234 EC; other examples are Les Verts99 and Chernobyl.100Yet, in the context of Title IV it seems unlikely that the Court will extend its jurisdiction contra legem: Article 67 EC provides that after the initial period of five years, the Council shall take a decision with a view to adapting the provisions relating to the powers of the Court of Justice. If the Court aspires a change in its jurisdiction,101 it should not cause annoyance on the part of the Member States in the Council. It may well be that the issue never comes up in real terms before the end of the five-year period. Yet, one would hope that the Council would make use of
97 Apparently, the Court cannot hold a measure invalid under this procedure.
98 Article 68(3), second sentence EC.
99 Case 294/83Les Verts v European Parliament [1986] ECR 1339 where the ECJ held that acts of the European Parliament were susceptible to review by the ECJ.
100Case C–70/88 European Parliament v Council [1990] ECR I–2041 where the ECJ held that despite the ‘procedural gap’ resulting from the fact that the EP was not among the institutions mentioned in Article 173, the Parliament could bring an action for annulment against acts of the Council or the Commission in order to safeguard its prerogatives.
101It is not certain that it does: in the context of Art. 230 EC the Court goes out of its way to prevent more cases being brought to it by refusing to extend standing for private applicants. The Courts’ Paper and the Due Report – also referred to as the Report by the Working Party on the Future of the European Communities’ Court System or the
‘Wise Persons’ Report – drafted in the run-up to the Nice IGC focus almost exclusively on the problem of the workload of the European Courts. However, both reports argue against the extension of the limitation to final instance courts in Art. 68(1) EC as a method of limiting the ECJ’s case law under Art. 234 EC. See A Dashwood and A Johnston, The Future of the Judicial System of the European Union (Oxford, Hart Publishing, 2001) where both reports are re-printed and discussed; see on this issue also G de Búrca and JHH Weiler, The European Court of Justice (Oxford, OUP, 2001), H Rasmussen, ‘Remedying the Crumbling EC Judicial System’, 37 CML Rev, 2000, 1071; A Arnull, ‘Judicial architecture or judicial folly? The challenge facing the European Union’, 24 ELR, 1999, 516.