Category: Case notes

Humanitarian Visas and the X and X v. Belgium judgment (Case C-638/16 PPU)

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by Teresa Alves, masters' student at University of Minho
▪

The judgment in Case C-638/16 PPU, delivered by the Court of Justice of the European Union, on 7th March 2017[i] could represent a milestone in the history of the European Union, opening the door to an important legal path of access to international protection in the Member States and improving the Europe’s asylum policy. Particularly in a context of migration crisis that the European Union is trying to solve, adopting different measures. These measures include strengthening border controls, preventing human trafficking and trying to dismantle illegal forms of access to Member States’ borders through organized networks. Another measure is the EU-Turkey Statement that, despite some legal doubts, intends, not only, but also, to create a legal path of access to international protection in the Member States.

The story dates back to October 2016, when a Syrian family (mother, father – married to one another – and their three young children, from Aleppo) applied for a humanitarian visa at the embassy of Belgium in Lebanon. They hoped, with this, to legally enter in Belgium and to request asylum. They claimed that one of them had been abducted by an armed group, beaten and tortured, before being released on payment of a ransom. They emphasized, specially, the deterioration of the security situation in Syria, in general, and in Aleppo, in particular, as well as the fact that, as Orthodox Christians, they were at risk of persecution because of their religious beliefs. This family added that they could not register as refugees in neighboring countries, particularly in view of the fact that the Lebanese-Syrian border had been closed in the meantime.

The competent Belgian authorities promptly rejected the request, explaining that (i) the applicants planned to remain in Belgium for more than 90 days, and under the Visas Code, in accordance with Article 1, the issue of transit visas or visas within the territory of the Member States shall not exceed 90 days in a period of 180 days; (iii) in addition, Article 3 of the ECHR, according to which «no one shall be subjected to torture or inhuman or degrading treatment or punishment», shall not require States Parties to admit «persons living a catastrophic situation» and, lastly, they considered that (iii) Belgian diplomatic posts are not part of the authorities to which a foreigner may apply for asylum. For the reason that, authorizing an entry visa to the applicants in the main proceedings, for the purpose of submitting an application for asylum in Belgium, would be equivalent to allowing them to request this application for asylum in the diplomatic post.

The family appealed against the decision before the Conseil du Contentieux des Étrangers (Council for asylum and immigration proceedings, Belgium), which decided to refer to the Court of Justice questions relating to the granting of humanitarian visas. That is, «must Article 25(1)(a) of the Visa Code be interpreted as meaning that, subject to its discretion with regard to the circumstances of the case, a Member State to which an application for a visa with limited territorial validity has been made is required to issue the visa applied for, where a risk of infringement of Article 4 and/or Article 18 of the Charter or another international obligation by which it is bound is established?», «Does the existence of links between the applicant and the Member State to which the visa application was made (for example, family connections) affect the answer to that question?».
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Unveiling the meaning of freedom of religion in the workplace – or, unveiling the Achbita and Bougnaoui judgments

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by Sophie Perez Fernandes, Junior Editor
▪

Our editorial of November 2016 related to two preliminary references proceedings at the time pending before the Court of Justice of the European Union (ECJ) concerning the question of religious expression at work and, particularly, the highly sensitive issue of the wearing of Islamic headscarves (and not the full veil) in the workplace. The issues raised in both cases required the interpretation of the concept of ‘discrimination on the grounds of religion or belief’ within the meaning of the Anti-Discrimination Directive – the Directive 2000/78[i]. Let us recall the fundamental questions at issue: is a private employer allowed to prohibit a female employee of Muslim faith from wearing a headscarf in the workplace?; is the dismissal of an employee who refuses to comply with such rules restricting the wearing of religious symbols at work unlawful?

On 14 March 2016, the Grand Chamber delivered both the Achbita (C-157/15) and the Bougnaoui (C-188/15) judgments, two significant decisions in relation to discrimination in employment on grounds of religion. The facts at the origin of each case were slightly different.

In the first case, Ms Achbita started to work for G4S as a receptionist in 2003 and complied with the rule according to which workers could not wear visible signs of their political, philosophical or religious beliefs in the workplace, an unwritten rule at the time. In 2006 Ms Achbita informed her employers that she intended, in future, to wear an Islamic headscarf at work and, in reply, was informed that such intention was contrary to G4S’s position of neutrality. Shortly afterwards, the above mentioned unwritten rule was written down: the workplace regulations thus stipulated that «employees are prohibited, in the workplace, from wearing any visible signs of their political, philosophical or religious beliefs and/or from engaging in any observance of such beliefs». Shortly after the amendment was approved, Ms Achbita was dismissed on account of her continuing insistence that she wished to wear the Islamic headscarf at work.

In the second case, Ms Bougnaoui was informed at a student recruitment fair by a representative of Micropole that the wearing of an Islamic headscarf might pose a problem when she was in contact with customers of the company. When Ms Bougnaoui began to work at Micropole in 2008 as an intern, she was initially wearing a bandana and subsequently an Islamic headscarf. Micropole nevertheless employed her at the end of her internship. Almost a year later, Ms Bougnaoui was dismissed. A customer of Micropole’s with whom Ms Bouganoui had worked informed her employers that her wearing the headscarf had upset some of their employees and requested that there should be «no veil next time». Despite the request of her employers, Ms Bouganoui refused to agree not to wear the headscarf in the future and was thus fired in 2009.

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Implications of the declaration of invalidity of the Directive 2006/24 on the retention of personal data (metadata) in the EU Member States: an approach to the judgment Tele 2 of 21 December 2016

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by Alessandra Silveira, Editor
and Pedro Freitas, Member of CEDU
▪

In the decision Digital Rights Ireland of 2014[i], the ECJ was called upon to assess the validity of the Directive 2006/24 (on the retention of data generated or processed in connection with the provision of publicly available electronic communications services or of public communications networks) in the light of Articles 7 (Respect for private and family life) and 8 (Protection of personal data) of the Charter of Fundamental Rights of the European Union (CFREU) and considered that the obligation imposed by the Directive 2006/24 on providers of electronic communications services constituted an interference with the aforementioned fundamental rights. [ii]

The issue at hand is that the directive concerned all those who used electronic communications services in Europe – even those whose conduct were not in any way linked with criminal activities.  Furthermore, while seeking to fight against serious crime, the Directive did not provide for any differentiation, limitation or exception to the retention of data of persons whose communications are subject to professional secrecy. In addition to a general absence of limits, the Directive 2006/24 did not lay down any objective criterion to limit the access of the competent national authorities to the data and its subsequent use. Furthermore, the Directive did not require that the data in question should be kept within the territory of the Union, and thus a supervision by an independent body was not fully guaranteed.

While it is true that the fight against serious crime is of prime importance in ensuring public safety and that its effectiveness may depend on the use of modern investigative techniques, such objective, be that as it may, cannot in itself justify a retention measure such as the one established by Directive 2006/24 as necessary for those purposes[iii]. By adopting Directive 2006/24, the European Union legislature had exceeded the limits imposed by the principle of proportionality in the light of Articles 7, 8 and 52(1) of the CFREU, and for that reason the ECJ ruled the invalidity of the directive, without reservations as to the temporal effects of its decision (ex tunc).

However, following the judgment in the Digital Rights Ireland case, the reaction of the Member States was not consensual, which led to an unlawful differentiation of treatment between European citizens. The decision of the ECJ raised the problem of the effects of that invalidity in relation to the national provisions transposing the directive. According to data released by the Portuguese Public Prosecutor’s Office, ten of the EU Member States have declared invalid the national laws that transposed the data retention directive, either by parliamentary decision or through their constitutional courts. In other Member States, including Portugal, this was not the case because the substantial requirements of the ECJ’s decision were deemed satisfied by the national legislation that transposed it. [iv]

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Case law Pebros Servizi concerning the European enforcement order for uncontested claims – The enforcement procedure as the next phase… Novelty or reality?

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by Joana Covelo de Abreu, Junior Editor
▪
  1. The dispute in the main proceedings

Pebros Servizi sued before an Italian national court several companies and, among them, we could find Aston Martin. However, the latter was duly noticed to present itself in court allowing it to participate in those proceedings, what did not happen. Aston Martin was condemned in absentia to pay to Pebros Servizi the total amount of 18.000,00€ “together with interest at the statutory rate running from the publication of the judgment until payment in full and the legal costs, comprising EUR 835 for sundry expenses and EUR 9 500 for professional fees, plus VAT and other incidental social security expenses under national law”[i].

Aston Martin did not present any appeal and that judgement became final.

On October 2014, Pebros Servizi asked that Italian court to certify that decision as a European enforcement order. However, that court expressed its doubts concerning using Regulation 805/2004 enforcement order in such a case. Those doubts derived from the fact that, in Italian law, a judgment made in default of the defendant does not mean the latter recognises the facts brought against him in the litigation. So, national court had doubts if “a judgment in default [might] be regarded as a judgment for an uncontested claim”[ii]. In this sense, national court called upon two doctrinal positions: 1) One, based on national law, where a default procedure does not amount for an uncontested claim; 2) Another, where “that concept of ‘absence of contestation’ is defined autonomously by EU law and covers also a failure to appear during proceedings”[iii].

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The scope of application of the Services Directive – in need of clarification?

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by Sophie Perez Fernandes, Junior Editor
▪

Two requests for a preliminary ruling concerning the Directive 2006/123[i] on services in the internal market were recently made to the ECJ. The joined cases concerned raise some fundamental questions relating to its scope of application.

The first case (C-340/14) concerns the application of Mr. Trijber for an authorisation for the transportation of passengers by water. Mr. Trijber wishes to use his boat, an open sloop powered by an electrical motor suitable for transporting small groups of persons, to carry passengers, in return for payment, on tours of Amsterdam by waterway for festive occasions. The second case (C-341/14) concerns the application of Mr. Harmsen for the operation of two window prostitution businesses in Amsterdam as well. Mr. Harmsen specified in his application that he would not rent out rooms to prostitutes with whom he could not communicate in English, Dutch or any other language comprehensible to him. Both applications were, for different reasons, denied by the competent national authorities.

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Analysis of the Taricco Judgement: The EU’s Financial Interests Come First

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by Daniela Guimarães, Collaborating Member of CEDU
 ▪

On 8th, September 2015, the Court of Justice of the European Union reached a decision that draws consequences from the case law Åkerberg Fransson, C-617/10, considering the standpoint of the protection of the financial interests of the European Union.

Mr. Ivo Taricco and other defendants, Italian citizens, were charged before the Tribunale di Cuneo (Italy), for having formed and organised during the fiscal years 2005 to 2009 a conspiracy to commit various offenses in relation to VAT. During their legal prosecution, several matters have arisen in the case causing delays in the process. Such delays can have serious consequences once the limitation period for each of the accused goes from six to seven years and even though that limitation period can be interrupted, it cannot be extended beyond a quarter of its initial duration (Articles 160 and 161, Italian Penal Code). According to the referring court, it is certain that all the offences will be time-barred before a final judgement can be delivered regarding the accused. The referring judge says that situations of “de facto impunity” in cases related to tax evasion are rather normal due to the mentioned Italian norms as they do not allow an extension of the limitation period in crimes such as the ones at stake. Being the criminal investigations, in most cases, of great complexity, often, the time-limit compromises an effective criminal prosecution. In practical terms, the statute of limitations regime in Italy can, actually, function as a “way out” for white collar crime offenders.

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State liability for judicial decisions – between the Portuguese regime and EU law, some lights in the Ferreira da Silva judgment

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by Alessandra Silveira, Editor
and Sophie Perez Fernandes, Junior Editor
▪

In the recent Ferreira da Silva ruling[1], the ECJ was given the opportunity to assess the compliance of the applicable Portuguese legal regime of State liability for damages caused in the exercise of judicial functions with the principles of EU law on State liability.

The facts of the main proceedings took place in 1993[2] and concerned the wound up of a company. After the dissolution, ninety-seven workers brought proceedings to challenge the collective redundancy. These proceedings first took place before the Tribunal de Trabalho de Lisboa (Lisbon Labour Court), and were subject to an appeal, first before the Tribunal da Relação de Lisboa (Lisbon Court of Appeal) and then (an appeal of cassation) before the Supremo Tribunal de Justiça (Supreme Court of Justice, henceforth STJ).  Some of the applicants asked the STJ to make a reference for a preliminary ruling to the ECJ. The problem concerned the interpretation of the concept of ‘transfer of a business’ within the meaning of the Directive 2001/23[3]. The STJ denied the requests considering that there were no doubts regarding the interpretation of the relevant provisions of EU law that could justify the reference for a preliminary ruling[4]. The reasoning of the STJ, the court adjudicating at last instance, was based on the Cilfit ruling[5].

Unsatisfied, the applicants brought proceedings regarding the non-contractual civil liability of the State, arguing that, in its decision, the STJ (i) had erroneously interpreted the concept of ‘transfer of a business’ within the meaning of the Directive 2001/23 and (ii) had not made a reference for a preliminary ruling to the ECJ when such a reference was mandatory under Article 267/3 TFEU[6]. In turn, the Portuguese State argued that, under Article 13/2 of the non-contractual civil liability of the State and other public bodies’ regime (RRCEE)[7], a claim for damages must be based on the prior setting aside, by the court having jurisdiction, of the decision that caused the loss or damage. Therefore, as the decision of the STJ had not been set aside, the damages sought were not payable[8].

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