A. Procedural Limitations under the EC Treaty

In the framework of the EC Treaty, it was well established, first of all, that the Community judicial system entitled the ECJ to control the legality of acts of the European institutions by virtue of actions for annulment (ex article 230 EC, now article 263 TFEU)Footnote ⁴⁰ and actions for failure to act (ex article 232 EC, now article 265 TFEU)Footnote ⁴¹ and to hold the European institutions liable for any damage caused by them (ex articles 288 and 235 EC, now articles 340 and 268 TFEU).Footnote ⁴² The system also empowered the ECJ to ensure that the Member States fulfil their obligations under the Treaty by deciding actions for infringement of Community law brought by the Commission (ex article 226 EC, now 258 TFEU) or by a Member State (ex article 227 EC, now article 259 TFEU) and imposing sanctions for a Member State's failure to comply with the ECJ's judgment in this regard (ex Article 228 EC, now article 260 TFEU).Footnote ⁴³ As a result, the ECJ was competent to ensure the achievement of the objectives falling within the Community pillar of the Area of Freedom, Security and Justice.Footnote ⁴⁴

Second, it should be stressed that the ECJ's enforcement of the principles of primacy and direct effect has had a significant impact on the implementation of Community law by national courts, the ‘juge de droit commun’ of Community law. Indeed, national courts were under a duty to apply Community law; to set aside provisions of national law which conflict with Community law; to interpret national law in conformity with Community law (which is referred to as the principle of ‘consistent interpretation’); and, where necessary, to hold a Member State liable to make good the damage caused as a result of any breach of Community law for which that Member State was responsible.Footnote ⁴⁵ In this way, national courts were obliged to enforce the Community aspects of the Area of Freedom, Security and Justice.

Third, it must be recalled that the uniform and effective application of Community law was maintained through cooperation between the ECJ and the national courts within the framework of the preliminary ruling procedure.Footnote ⁴⁶ This procedure gave the ECJ the opportunity to interpret, among other things, various provisions of the Brussels ConventionFootnote ⁴⁷ through the more than 150 judgments it has delivered concerning that ConventionFootnote ⁴⁸ on the basis of a protocol which provides for the ECJ's jurisdiction to give preliminary rulings in this regard.Footnote ⁴⁹ The ECJ was equally competent on the basis of the EC Treaty to interpret the various Community acts adopted under ex Title IV, such as the Brussels I Regulation,Footnote ⁵⁰ the Regulation on insolvency proceedings,Footnote ⁵¹ the Regulation on the service in the Member States of judicial and extrajudicial documents,Footnote ⁵² the Brussels II bis RegulationFootnote ⁵³ and the Rome IFootnote ⁵⁴ and Rome IIFootnote ⁵⁵ Regulations. Nevertheless, it should be emphasized that the ECJ's competence to give preliminary rulings in the Area of Freedom, Security and Justice was limited.Footnote ⁵⁶

Even though measures adopted on the basis of ex Title IV of Part Three of the EC Treaty were, by virtue of ex articles 220–245 EC, in principle subject to the ECJ's supervision, ex article 68 EC provided for certain exceptions to the standard procedure for preliminary rulings set out in ex article 234 EC.Footnote ⁵⁷ The ECJ did not have jurisdiction to rule on any measure or decision adopted with a view to ensuring the absence of any controls on persons, be they citizens of the Union or nationals of third countries when crossing internal borders which relate to ‘the maintenance of law and order and the safeguarding of internal security’.Footnote ⁵⁸ Moreover, and most importantly for the purposes of the present discussion, ex article 234 EC was only applicable to ex Title IV where a question on the interpretation of that Title or on the validity or interpretation of acts of the European institutions based on that Title was ‘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’.Footnote ⁵⁹ Thus, if a request for a preliminary ruling was made by a national court or tribunal against whose decisions there was a judicial remedy under national law, the ECJ would issue an order declaring that it had no jurisdiction to rule on the questions referred to it.Footnote ⁶⁰

This latter restriction on the ECJ's jurisdiction could be criticized on several grounds. In particular, as illustrated by Community acts adopted in the field of private international law, it represented a setback compared to the ECJ's competence to give preliminary rulings by virtue of the protocols attached to the BrusselsFootnote ⁶¹ and RomeFootnote ⁶² Conventions, which entitled national lower instance courts to make preliminary ruling requests to the ECJ. It also seemed unfortunate, in terms of the sound administration of justice, particularly the need to deliver justice without unreasonable delay, that problems of judicial and legislative competence or issues related to the service of documents or matters of parental responsibility,Footnote ⁶³ for example, could only be addressed before a court of last instance. In fact, this restriction was even more regrettable because it was somewhat paradoxical. On the one hand, preliminary rulings relating to matters falling within the Area of Freedom, Security and Justice were subject to the condition that the reference was made by a national court of last instance, which meant that important issues could not be resolved until no further appeal was available at national level. Yet, on the other hand, there was also the possibility for this court to request that the urgent preliminary ruling procedure be applied so that it could receive the ECJ's preliminary ruling more quickly.Footnote ⁶⁴ This difficulty could have been resolved on the basis of ex article 67(2) EC,Footnote ⁶⁵ and the Commission did indeed make a proposal to bring into line the provisions relating to the ECJ's preliminary ruling jurisdiction under ex article 68 EC with the procedure of ex article 234 EC.Footnote ⁶⁶

B. Modifications introduced by the Treaty of Lisbon

The FEU Treaty not only reproduces the framework of remedies set out by the EC Treaty, but improves upon it. In particular, in relation to actions for annulment, the application of the restrictive Plaumann case-lawFootnote ⁶⁷ is excluded in respect of actions brought by natural or legal persons against ‘a regulatory act which is of direct concern to them and does not entail implementing measures’. This shows that the Treaty of Lisbon sought to facilitate direct access of private parties to the Union judiciary where, in situations such as that examined in Jégo-Quéré,Footnote ⁶⁸ it is difficult for private parties to find national measures enabling indirect challenges against EU acts.

In addition, the duties of national judges as ‘juge de l'Union’ regarding the interpretation and application of EU law continue to be part and parcel of the ‘acquis de l'Union’. In fact, new specific Treaty provisions highlight the importance of the role of national judges in ensuring effective judicial protection of EU rights. For instance, article 19 TEU states that ‘Member States shall provide remedies sufficient to ensure effective legal protection in the fields covered by Union law’. Likewise, article 47 of the Charter of fundamental rights of the European UnionFootnote ⁶⁹ (‘the Charter’), which now stands on an equal footing with the new EU Treaty and the FEU Treaty,Footnote ⁷⁰ confers the right to an effective remedy against the violation of freedoms and rights guaranteed by EU law.

Most importantly, the limits placed on the ECJ's jurisdiction to give preliminary rulings disappear.Footnote ⁷¹ From now on, inferior courts may engage in dialogue with the ECJ in respect of issues relating to the Area of Freedom, Security and Justice. Consequently, urgent matters concerning visas, immigration, asylum or judicial cooperation in civil matters must no longer reach national courts of last instance before they can be addressed by the ECJ. Instead, an inferior court may refer an urgent question to the ECJ which, by having recourse to the urgent preliminary ruling procedure, will try to provide a ruling as quickly as possible. This is good news for litigants faced with important questions, such as child custody or deportation orders, as these modifications contribute to reinforcing the judicial protection of individuals by providing them with faster justice.

C. Procedural Limitations under the Old EU Treaty

In the framework of the old EU Treaty, the system of legal remedies and judicial procedures deriving from ex article 35 EU was not as complete or as effective as its Community counterpart. First of all, for measures adopted on the basis of ex Title VI of the old EU Treaty concerning police and judicial cooperation in criminal matters, the only direct remedy vis-à-vis Union acts was the action for annulment brought by a Member State or the Commission against framework decisions and decisions.Footnote ⁷² Moreover, the old EU Treaty did not provide for actions for infringement or actions for damages. Indeed, in Gestoras Pro-Amnistía and Segi,Footnote ⁷³ the ECJ confirmed that it was not competent to rule on an action for damages under the third pillar,Footnote ⁷⁴ despite the applicants' claim to have suffered damage as a result of being placed on a list of terrorist organizations by virtue of certain common positions adopted by the Council.Footnote ⁷⁵ The ECJ rejected the applicants' argument that they had been deprived of all judicial protection.Footnote ⁷⁶ This was because although its jurisdiction relating to preliminary rulings and actions for annulment under ex article 35 EU did not, in principle, include judicial review of common positions, the ECJ considered that, since the preliminary ruling procedure was ‘designed to guarantee observance of the law in the interpretation and application of the Treaty, it would run counter to that objective to interpret [ex] article 35(1) EU narrowly’.Footnote ⁷⁷ The ECJ inferred from this that the power for national courts to make a preliminary reference must exist ‘in respect of all measures adopted by the Council, whatever their nature or form, which are intended to have legal effects in relation to third parties’.Footnote ⁷⁸

As regards the duty of the Member States to fulfil their obligations pursuant to ex Title VI of the old EU Treaty and acts adopted on the basis of that Title, not only was there no possibility of bringing an infringement action, but Member States could even invoke the failure of another Member State to justify their own failure to perform their obligations (ie, the so-called ‘exceptio non adimpleti contractus’). Under the first pillar, the Community method left no room for a Member State to invoke, in the context of the infringement procedure, the breach of Community law by another Member State.Footnote ⁷⁹ The only remedy for one Member State against another Member State in breach of its obligations under Community law was to commence an infringement action, either indirectly by notifying the Commission or directly and independently of the Commission's assessment by itself initiating an action before the ECJ.Footnote ⁸⁰ However, this only concerned the first pillar and not the third pillar concerning police and judicial cooperation in criminal matters, since the latter was still subject to the intergovernmental cooperation method. This was clearly illustrated when, following the annulment by the German Constitutional CourtFootnote ⁸¹ of the German law implementing the Framework Decision on the European arrest warrant,Footnote ⁸² judges in SpainFootnote ⁸³ and GreeceFootnote ⁸⁴ refused the application of their national implementing provisions vis-à-vis Germany.Footnote ⁸⁵ It was precisely because the rules adopted under the third pillar were based on a system rooted in the intergovernmental method that the exceptio non adimpleti contractus was raised in that context,Footnote ⁸⁶ in accordance with the Vienna Convention on the Law of Treaties.Footnote ⁸⁷ It should also be noted that the Framework Decision on the European arrest warrant provides for further qualifications based on the constitutional rules of the Member States.Footnote ⁸⁸

The ECJ's jurisdiction to give preliminary rulings within the context of the third pillar was also significantly restricted by ex article 35 EU. Pursuant to this provision, the ECJ's jurisdiction had to be accepted by each Member State by means of a declaration made at the time of signature of the Amsterdam Treaty or at any time thereafter.Footnote ⁸⁹ While a large number of Member States has submitted a declaration allowing all their courts to make preliminary ruling requests,Footnote ⁹⁰ one Member State, Spain, has limited this possibility to the highest courts only, and several other Member States have not yet submitted any declaration whatsoever.Footnote ⁹¹

As demonstrated by the Pupino case,Footnote ⁹² however, these limits did not prevent the ECJ from extending the principle of ‘consistent interpretation’ to acts adopted under the third pillar. In that case, an Italian court made a preliminary reference to the ECJ as to whether, in view of the Framework Decision on the standing of victims in criminal proceedings,Footnote ⁹³ it was to allow several children claiming to be victims of abuse by Ms Pupino to give their testimony under special arrangements outside the confines of the trial proceedings even though the relevant Italian legislation greatly restricted the use of such arrangements.Footnote ⁹⁴ In response, the ECJ held that, in applying national law, the national court was required to interpret it as far as possible in the light of the wording and the purpose of the Framework Decision in order to attain the result that instrument sought to achieve, adding that, where necessary, the national court must consider ‘the whole of national law’ in this regard.Footnote ⁹⁵ Consequently, even though the Framework Decision at issue did not define the concept of a victim's vulnerability, the ECJ concluded that the children could be considered ‘particularly vulnerable’ so that recourse to special arrangements might be justified.Footnote ⁹⁶

It is worth noting that it was an Italian lower court that submitted the reference for a preliminary ruling in that case by virtue of Italy's declaration under ex article 35 EU allowing all courts to make such references in relation to the third pillar.Footnote ⁹⁷ That fact illustrates that where Member States have submitted declarations restricting references to the highest courts or failed to submit any such declaration altogether, this had significant implications for the relationship between the ECJ and the national courts and the effectiveness of EU law. In an attempt to resolve that problem, the Commission envisaged the possibility of implementing the ‘passerelle clause’ of ex article 42 EU,Footnote ⁹⁸ the extension of the Community method to the third pillar, but that attempt failed.

D. Modifications Introduced by the Treaty of Lisbon

The Treaty of Lisbon repeals the jurisdictional limitations contained in ex article 35 EU, subject to one specific exception provided for in paragraph 5 of that provision. However, in light of article 10 of Protocol (No 36) on transitional provisions annexed to the Treaty of Lisbon, a distinction must be drawn between EU acts in the field of police cooperation and judicial cooperation in criminal matters which had been adopted before the entry into force of the Treaty of Lisbon (‘pre-existing EU acts’) and EU acts adopted thereafter.

As to the former category of EU acts, article 10 provides that for a period of five years after the entry into force of the Treaty of Lisbon, the Commission may not bring infringement actions in respect of them. Article 10 also states that for the same period of time, the jurisdiction of the ECJ ‘in the field of police and judicial cooperation in criminal matters, in the version in force prior to entry into force of the Treaty of Lisbon, shall remain the same’. Stated differently, in relation to pre-existing EU acts, the jurisdiction of the ECJ continues to be governed by ex article 35 EU until 30 November 2014.Footnote ⁹⁹ Upon expiration of the transitional period, pre-existing EU acts are subject to the regime described below.

As to EU acts adopted after 1 December 2009 (which include pre-existing EU acts amended after that date),Footnote ¹⁰⁰ the ECJ enjoys jurisdiction to review the legality of acts adopted in the Area of Freedom, Security and Justice by way of actions for annulmentFootnote ¹⁰¹ or on the occasion of actions for damages.Footnote ¹⁰² Hence, if today the Council adopts an EU act containing a list of terrorist organizations in relation to which the EU aims to reinforce police and judicial cooperation, such organizations may bring an action for annulment as well as an action for damages against the Council. In other words, regarding EU acts adopted after the entry into force of the Treaty of Lisbon, there would be a different outcome to a case like Gestoras Pro-Amnistía and Segi. Likewise, the Commission (or a Member State) may bring proceedings against a Member State which fails to fulfil its obligations under Title V of Part Three of the FEU Treaty. This means that the exceptio non adimpleti contractus ceases to be a valid justification. In addition, the jurisdiction of the ECJ to issue preliminary rulings is no longer conditioned upon a declaration of a Member State to this effect. Nor is the preliminary reference procedure limited to national courts of last instance. However, when the EU exercises its powers regarding Treaty provisions on police cooperation and judicial cooperation in criminal matters, article 276 TFEU, which reproduces ex article 35(5) EU, provides that the ECJ lacks jurisdiction to ‘review the validity or proportionality of operations carried out by the police or other law-enforcement services of a Member State or the exercise of the responsibilities incumbent upon Member States with regard to the maintenance of law and order and the safeguarding of internal security’.

Moreover, in order to assess the legal effects of EU acts in the field of police and judicial cooperation in criminal matters, the distinction between pre-existing EU acts and acts adopted after the entry into force of the Treaty of Lisbon is also relevant. In this regard, article 9 of Protocol (No 36) states that the legal effects of pre-existing EU acts should be preserved until those acts are repealed, annulled or amended. In accordance with ex article 34(2)(b) EU, this means that pre-existing EU acts (Framework Decisions) may not have direct effect unless the EU legislator decides to amend them. Thus, the Pupino jurisprudence is still of paramount importance, requiring national courts to interpret national law in the light of the wording and the purpose of pre-existing EU acts. For acts adopted after 1 December 2009, the classic case-law on direct effect applies.Footnote ¹⁰³

Finally, the special regime applicable to the United Kingdom and Ireland in the Area of Freedom, Security and Justice merits brief comment.Footnote ¹⁰⁴ One should recall that two Protocols granted the United Kingdom and Ireland a right of opt-in/opt-out in matters pertaining to the Area of Freedom, Security and Justice, namely ex Protocol (No 2) integrating the Schengen acquis into the EU framework (in particular, articles 4 and 5)Footnote ¹⁰⁵ and ex Protocol (No 4) on the position of the United Kingdom and Ireland in relation to Community acts adopted under ex Title IV of Part Three of the EC Treaty.Footnote ¹⁰⁶ By contrast, no such right existed for acts adopted under the third pillar which were not Schengen-related. With the adoption of Protocol (No 21) on the position of the United Kingdom and Ireland in respect of the Area of Freedom, Security and Justice annexed to the Treaty of Lisbon,Footnote ¹⁰⁷ the United Kingdom and Ireland's right of opt-in/opt-out is expanded: it now covers all matters falling under Title V of Part Three of the FEU Treaty. This means that, for example, the United Kingdom and Ireland may henceforth opt-out of Directives harmonizing criminal offences.Footnote ¹⁰⁸ Apart from this important innovation, Protocol (No 21)—which largely follows ex Protocol (No 4)—adds a new article 4a and a new article 6a. The former provision states that ‘in cases where the Council determines that the non-participation of the United Kingdom or Ireland in the amended version of [a pre-existing EU measure] makes the application of that measure inoperable for other Member States or the Union’, the original version of this measure no longer applies to them.Footnote ¹⁰⁹ Article 6a indicates that as regards activities falling within the scope of EU acts involving police and judicial cooperation in criminal matters in relation to which the United Kingdom or Ireland does not participate, rules relating to the processing of personal data as provided for by article 16 TFEU are not binding upon them.

Moreover, article 10(4) of Protocol (No 36) states that upon expiration of the transitional period, the United Kingdom must decide whether pre-existing EU acts continue to apply to it and, if so, that it must then accept the extension of the ECJ's powers in respect of them.Footnote ¹¹⁰ If the reply is in the negative, those pre-existing acts will cease to apply in the United Kingdom.Footnote ¹¹¹ The UK's repudiatory opt-out is an innovative feature of the Treaty of Lisbon. It is the first time that a Member State has been entitled to withdraw from parts of the existing acquis. Footnote ¹¹²

E. Accelerated and Urgency Procedures in the Area Of Freedom, Security And Justice

The ECJ's contribution to the Area of Freedom, Security and Justice is greatly facilitated by certain special procedures which allow particular cases to be dealt with more rapidly when required. In all matters that fall within the Area of Freedom, Security and Justice, swift decision-making is of the essence. This is the case not only in the field of immigration and asylum or in respect of criminal proceedings, but also in family matters, particularly as far as the custody of children is concerned. In all of these fields, the maxim ‘justice delayed is justice denied’ is particularly relevant. This requirement for swift decision-making is now explicitly set out in the last paragraph of article 267 TFEU, which requires the ECJ to act with minimum delay ‘if [the] question [referred] is raised in a case pending before a court or tribunal of a Member State with regard to a person in custody’. This requirement for swift decision-making must not, however, be applied to the detriment of the protection of fundamental rights—particularly with respect to the rights of the defence—or by weakening the EU's judicial system based on a dialogue between the ECJ and national courts.

It is well-known that preliminary rulings given on the basis of article 267 TFEU have binding legal effects not only ex tunc, but also erga omnes, meaning that the ECJ's findings on points of law bind not only the referring court, but also all of the Member States. This is the reason why, on the one hand, a preliminary ruling issued by the ECJ must be translated into all official languages of the Union and why, on the other hand, all Member States are entitled, by virtue of the Statute of the Court of Justice, to submit written and/or oral observations to the ECJ concerning issues raised by a reference for a preliminary ruling.Footnote ¹¹³ To reconcile all these requirements, the preliminary ruling procedure has been the object of two important procedural developments which make it possible for the ECJ to deal with cases concerning the Area of Freedom, Security and Justice more quickly.

First, by virtue of article 104a of the Rules of Procedure of the Court of Justice, at the request of the national court, the President may exceptionally decide to apply an accelerated procedure where the circumstances concerned establish that a ruling on the question put to the ECJ is a matter of exceptional urgency.Footnote ¹¹⁴ In contrast to the urgent preliminary ruling procedure, the accelerated procedure is not limited to matters pertaining to the Area of Freedom, Security and Justice.Footnote ¹¹⁵ The accelerated procedure was recently applied in the Kozłowski case,Footnote ¹¹⁶ which concerned the execution by the German authorities of a European arrest warrant issued by the Polish authorities against Mr Kozłowski, a Polish national. The referring court submitted that the execution of the European arrest warrant issued against Mr Kozłowski was likely to be compromised to the extent that his detention in Germany would normally come to an end in November 2009.Footnote ¹¹⁷ In view of the relevant provisions of German criminal law concerning stays of execution of a criminal sentence, Mr Kozłowski could obtain an early release from custody after serving two-thirds of the duration of his sentence, namely from 10 September 2008 onwards.Footnote ¹¹⁸

In response, the President of the Court found that it would undoubtedly be possible for the referring court to order, before the said date and taking into consideration the Polish request to surrender Mr Kozłowski, his arrest for the purposes of complying with that request.Footnote ¹¹⁹ However, in any event, his detention had to be for a short time only, since it had to be proportional to the five-month imprisonment to which he was sentenced for crimes committed in Poland.Footnote ¹²⁰ The President of the Court then considered that the case raised problems of interpretation in a sensitive field of legislation which touched upon central aspects of the functioning of the European arrest warrant which was before the ECJ for the first time.Footnote ¹²¹ Furthermore, the interpretation of the relevant provisions of the Framework Decision requested by the referring court was liable to have consequences more generally both for national authorities required to cooperate within the framework of the European arrest warrant system and for the rights of the persons whose surrender was requested as they were liable to find themselves in situations of uncertainty.Footnote ¹²² Therefore, a swift reply to the questions referred to the ECJ in the instant case was needed to enable the national judicial authority seised of the surrender request to respond to it in an informed way and thereby to perform its obligations under the Framework Decision.Footnote ¹²³ It should further be noted that the referring court had requested the ECJ to decide the case pursuant to the urgent preliminary ruling procedure,Footnote ¹²⁴ but that this procedure was not yet applicable ratione temporis. On the substance of the case, the ECJ was asked to clarify article 4(6) of the Framework Decision, which provides a ground for optional non-execution of the European arrest warrant. This provision states that where, for the purposes of executing a custodial sentence or a detention order, the requested person ‘is a national’, ‘is staying in’ or ‘is a resident of’ the executing State, the executing judicial authority may refuse to execute the arrest warrant in so far as this State undertakes to execute the sentence or detention order in accordance with its domestic law. In the case at hand, the German executing judicial authority asked whether it could rely on article 4(6) of the Framework Decision as implemented by German law to refuse execution of a European arrest warrant issued by a Polish court in proceedings involving Mr. Kozłowski, a Polish national residing illegally in Germany, staying there interruptedly, and serving a custodial sentence for having committed crimes therein. From the need for uniform application of EU law and the principle of equality, the ECJ inferred that ‘staying’ and ‘resident’ are two autonomous concepts, that is to say, Member States are precluded from giving those terms a different meaning.Footnote ¹²⁵ Next, in light of the information provided, the ECJ noted that Mr Kozłowski was not a resident in Germany and proceeded to define ‘staying’. A large definition of ‘staying’ was ruled out, given that it would run counter the objective pursued by the Framework Decision, namely simplifying and facilitating extradition procedures. Yet, ‘staying’ could not be interpreted too narrowly either, so as to exclude situations where the person requested had established connections with the executing State that would increase his chances of reintegrating into society upon completion of his sentence. Thus, when evaluating whether the person requested is ‘staying’ in the executing State, it is for the executing judicial authority ‘to make an overall assessment of various objective factors characterising the situation of that person, which include, in particular, the length, nature and conditions of his presence and the family and economic connections which he has with the executing Member State [without any of them being decisive of itself]’.Footnote ¹²⁶ For Mr Kozłowski this meant that he was not ‘staying’ in Germany for the purposes of article 4(6), given ‘in particular the length, nature and conditions of his stay, the absence of family ties and his very weak economic connections with the executing Member State’.Footnote ¹²⁷

Second, the urgent preliminary ruling procedure enshrined in article 104b of the Rules of Procedure of the Court of Justice constitutes an additional, new mechanism with crucial implications for preliminary rulings in the context of the Area of Freedom, Security and Justice.Footnote ¹²⁸ Following a request from the Council, the ECJ proposed the introduction of this new procedure in order to be able to deal more quickly with the most sensitive issues arising in respect of the Area of Freedom, Security and Justice, particularly where the answer to the question referred is decisive for the assessment of the legal situation of the person detained by national authorities or in proceedings concerning the parental custody of children. In other words, national courts cannot afford to wait for the replies to questions such as these for the time normally required for the consideration of preliminary rulings.

The urgent procedure, which came into force on 1 March 2008, makes a clear distinction between those who may participate in the written stage of the procedure and those entitled to participate in the oral stage only, with a view to making it possible to reach a decision quickly.Footnote ¹²⁹ When a request to apply that procedure is granted, or when the President of the Court proposes of his own motion that it should be applied, the handling of the case is accelerated considerably. All cases which might potentially be decided under the urgent procedure are, from the moment they reach the ECJ, referred to a Chamber of five judges specifically designated for a period of one year to be responsible for the screening and processing of such cases.Footnote ¹³⁰ Moreover, to avoid hold-ups resulting from the service of documents, communications under the urgent procedure can be conducted via electronic means.Footnote ¹³¹

As of April 2010, five cases have been dealt with under the urgent procedure. It was applied for the first time in Rinau Footnote ¹³² concerning the Brussels II bis Regulation.Footnote ¹³³ In that case, the Lithuanian Supreme Court was seised of an application for the non-recognition of a judgment of a German court awarding custody of a child to her father, who lived in Germany, and ordering her mother, who lived in Lithuania, to return the child to him. The referring court requested that the reference for a preliminary ruling be dealt with under the urgent procedure, since the Brussels II bis Regulation provides for the return without delay of a child who has been removed or retained and sets a deadline of six weeks by which time the court to which an application for return is made must deliver its judgment.Footnote ¹³⁴ The referring court found that it was necessary to act urgently on the ground that any delay would be unfavourable to the relationship between the child and the non-custodial parent.Footnote ¹³⁵ It also relied on the need to protect the child against any possible harm and to ensure a fair balance between the interests of the child and those of her parents.Footnote ¹³⁶ Taking those observations into account, the ECJ granted the referring court's request that the case be dealt with pursuant to the urgent procedure.Footnote ¹³⁷ On the substance of the case, the ECJ decided that once a non-return decision has been taken and brought to the attention of the court of origin, it is irrelevant, for the purposes of issuing the certificate provided for in article 42 of the Brussels II bis Regulation, that that decision has been suspended, overturned, set aside or, in any event, has not become res judicata or has been replaced by a decision ordering return, in so far as the return of the child has not actually taken place. The ECJ further specified that, since no doubt had been expressed as regards the authenticity of that certificate and since it was drawn up in accordance with the standard form set out in Annex IV to the Regulation, opposition to the recognition of the decision ordering return was not permitted and it was for the requested court only to declare the enforceability of the certified decision and to allow the immediate return of the child.Footnote ¹³⁸

In the field of judicial cooperation in civil matters, the ECJ has decided to apply the urgent procedure in another case, Detiček, also concerning the Brussels II bis Regulation.Footnote ¹³⁹ The facts of the case may be summarised as follows. In the course of divorce proceedings between Ms Detiček, a Slovenian national, and Mr Sgueglia, an Italian national, the competent court in Tivoli (Italy) provisionally granted the custody of their daughter to Mr Sgueglia. On the same day this decision was issued, Ms Detiček left Italy with her daughter to go to Slovenia. With a view to having his daughter returned to Italy, Mr Sgueglia sought to enforce the order of the Italian court in Slovenia. The order of the Italian court was declared enforceable in Slovenia but its enforcement was suspended until final disposal of the main proceedings. For her part, Ms Detiček obtained a provisional and protective measure from the Regional Court of Maribor (Slovenia) giving her custody of the child. The Regional Court of Maribor based its jurisdiction to adopt such a measure on article 20 of the Brussels II bis Regulation, holding that there had been a change of circumstances that militated against removing the child from her social environment in Slovenia. This decision was challenged by Mr Sgueglia before the Court of Appeal of Maribor, which sought guidance from the ECJ. Hence, the questions referred to the ECJ boiled down to determining whether the Regional Court of Maribor had made an appropriate use of the provisions conferring exceptional jurisdiction laid down in article 20 of the Regulation. The referring court also requested for a preliminary ruling to be dealt with under the urgent procedure on the grounds that a delayed decision would be contrary to the interests of the child, would adversely affect the relationship between Mr Sgueglia and his daughter, and would prolong the state of legal uncertainty.Footnote ¹⁴⁰ In light of these considerations, the ECJ upheld the request from the Court of Appeal of Maribor.Footnote ¹⁴¹ On the substance of the case, the ECJ began by observing that in so far as article 20 of the Brussels II bis Regulation is an exception to the system of jurisdiction laid down therein, this provision must be interpreted strictly. Next, the ECJ recalled the three cumulative conditions that must be fulfilled for the application of article 20, namely that the measures concerned [1] must be urgent, [2] must be taken in respect of persons or assets in the Member States where those courts are situated, and [3] must be provisional. The ECJ noted that the circumstances mentioned by the referring court did not satisfy the condition of urgency. First, the ECJ found that applying article 20 to circumstances such as those in the main proceedings would run counter to the principle of mutual recognition of judgments which underpins the Brussels II bis Regulation. Indeed, if the integration of the child into a new environment were sufficient to trigger the application of article 20, this would encourage the courts of the requested Member State to block the enforcement of a judgment rendered by a court of another Member State that had been declared enforceable.Footnote ¹⁴² Second, the ECJ acknowledged that in the present case the change in the child's circumstances resulted from wrongful removal. Accordingly, the interpretation of article 20 suggested by the Regional Court of Maribor ‘would amount, by consolidating a factual situation deriving from wrongful conduct, to strengthening the position of the parent responsible for the wrongful removal’.Footnote ¹⁴³ Moreover, the ECJ also found that the second condition for the application of article 20 was not satisfied either, given that Mr Sgueglia, who did not reside in Slovenia, was concerned by the measure ordering the change of custody of his daughter. Finally, the ECJ pointed out that article 20 ‘cannot be interpreted in such a way that it disregards article 24(3) of the Charter’. Stated differently, this provision cannot favour situations where as a result of wrongful removal, a child is deprived from maintaining on a regular basis a personal relationship and direct contact with one of his or her parents.Footnote ¹⁴⁴

In the field of visas, asylum and immigration, the ECJ has applied the urgent procedure only once, namely in Kadzoev Footnote ¹⁴⁵ concerning the interpretation of the Return Directive.Footnote ¹⁴⁶ In that case, Mr Kadzoev, a third country national born in the Chechnya region of Russia, was detained by Bulgarian authorities, which imposed on him a coercive administrative measure of deportation. In November 2006, he was placed in a detention centre until the relevant travelling documents as well as the necessary funds to travel to Chechnya were obtained. This turned out to be impossible as Russia refused to issue him travelling documents on the ground that it did not recognize him as a Russian citizen. While being detained, Mr Kadzoev applied unsuccessfully for refugee status and for his detention to be replaced by a less severe measure. Efforts to find a safe third country willing to receive him also failed. As a result of this ongoing state of ‘legal limbo’, the detention of Mr Kadzoev continued given that his deportation order could not be executed. Nor could he be released since, unlike article 15 of the Return Directive, the Bulgarian law applicable at the time did not provide for a maximum duration of detention in such circumstances. This impasse led the Bulgarian immigration authorities to commence administrative proceedings before the Sofia City Administrative Court so that the latter could rule of its own motion on the continued detention of Mr Kadzoev. Given that this case raised questions on the interpretation of article 15 of the Return Directive, the Sofia City Administrative Court decided to seek guidance from the ECJ.Footnote ¹⁴⁷ The opening of the urgent procedure was also requested by the referring court on the ground that the case raised questions the answers to which had a bearing on the decision whether Mr Kadzoev should be kept in detention or released. In addition, the referring court argued that bearing in mind that Mr Kadzoev had been in detention for more than three years, the national proceedings should not be suspended for a prolonged period.Footnote ¹⁴⁸ The Second Chamber of the ECJ upheld the request of the referring court and, in light of the importance of the questions referred,Footnote ¹⁴⁹ the case was assigned to the Grand Chamber.Footnote ¹⁵⁰ On the substance of the case, the ECJ held that the purpose of the Directive is ‘to guarantee that in any event the detention [of a third country national] for the purpose of removal does not exceed 18 months’. There are four implications that flow from this objective. First, ‘the maximum duration of detention must include a period of detention completed in connection with a removal procedure commenced before rules in that directive became applicable’.Footnote ¹⁵¹ Second, when calculating the maximum duration of detention under article 15 of the Return Directive, the period during which the execution of a removal decision is suspended because of the examination of an application for asylum of a third country national who is being held in a detention facility must be taken into account, unless national authorities adopt a decision whereby the stay of the person concerned in a detention facility complies with the conditions laid down by the provisions of EU and national law concerning asylum seekers.Footnote ¹⁵² Likewise, the period during which the execution of the deportation decree is suspended because of judicial review proceedings brought against that decree by a third country national who is being held in a detention facility must also be included for the purpose of removal under article 15.Footnote ¹⁵³ Third, once the maximum duration of detention has been exhausted, the national court does not need to examine whether a reasonable prospect of removal exists.Footnote ¹⁵⁴ As a matter of fact, ‘a reasonable prospect of removal’ does not exist where it seems unlikely that the person concerned will be deported to a third country prior to the expiration of the periods laid down in articles 15(5) and 15 (6).Footnote ¹⁵⁵ Last but not least, public order and public safety do not constitute grounds for detention under the Return Directive.Footnote ¹⁵⁶

The urgent procedure was also applied in the field of police and judicial cooperation in criminal matters in Santesteban Goicoechea Footnote ¹⁵⁷ and in Leymann and Pustovarov,Footnote ¹⁵⁸ both cases concerning the Framework Decision on the European arrest warrant.Footnote ¹⁵⁹ In the former case, the French referring court's request was granted by the ECJ because Mr Santesteban Goicoechea was being detained, after serving a sentence of imprisonment, on the sole basis of detention for the purpose of extradition ordered in the extradition proceedings in which the reference was made.Footnote ¹⁶⁰ In this way, the ECJ was able to provide its response to the referring court's questions in about one month's time.Footnote ¹⁶¹ On the substance of the case, the Court held that article 31 of the Framework Decision on the European arrest warrant refers only to the situation in which the European arrest warrant system is applicable, which is not the case where a request for extradition relates to acts committed before a date specified by a Member State in a statement made pursuant to article 32 of that Framework Decision.Footnote ¹⁶² The ECJ further held that article 32 of the Framework Decision does not preclude the application by an executing Member State of the Convention relating to extradition between the Member States of the European Union drawn up by Council Act of 27 September 1996 and signed on that date by all the Member States, even where that convention became applicable in that Member State only after 1 January 2004.Footnote ¹⁶³

In Leymann and Pustovarov, the ECJ granted the Finnish referring court's request for a preliminary reference to be dealt with under article 104b of the Rules of Procedure, on the ground that a clarification on the interpretation of article 27 of the Framework Decision could lead the national court to reduce the sentence imposed on Mr Pustovarov and, consequently, to bring forward his release.Footnote ¹⁶⁴ Given that in any event, Mr Pustovarov was due to be released on parole a few months later, the urgency of the matter was particularly pressing.Footnote ¹⁶⁵ On the substance of the case, the ECJ was called upon to clarify the meaning of an offence other than that for which the person was surrendered, as provided for by article 27(2) of the Framework Decision. In essence, the case boiled down to determining whether there was an offence other than that for which the person was surrendered ‘where both the arrest warrant and the final prosecution were based on a (serious) narcotics offence but the description of the offence was subsequently altered so that the prosecution concerned a different kind of narcotics [hashish] from that referred to in the arrest warrant [amphetamines]’.Footnote ¹⁶⁶ In the light of the objectives pursued by the Framework Decision, the ECJ ruled that the national court had to evaluate whether the constituent elements of the offence described in the arrest warrant matched those described in the later procedural document. Additionally, the national court had to examine whether the information contained in the arrest warrant sufficiently corresponded to that contained in the later procedural document. Further, alterations to the place and time of the offence as described in the arrest warrant were allowed, provided that [1] they resulted from subsequent investigations undertaken in the issuing State in relation to the offence described in the arrest warrant, [2] they did not modify the nature of the offence and [3] they did not fall within the non-execution grounds laid down in articles 3 and 4 of the Framework Decision.Footnote ¹⁶⁷ For the case at hand this meant that a modification in the description of the offence concerning the kind of narcotic was not sufficient to trigger the application of article 27(2), given that ‘the offence concerned is still punishable by imprisonment for a maximum period of at least three years and comes under the rubric ‘illegal trafficking in narcotic drugs’ in article 2(2) of the Framework Decision'.Footnote ¹⁶⁸ Finally, in the light of article 27(3)(c) in conjunction with article 27(4) of the Framework Decision, the ECJ added that where there is an offence other than that for which the person was surrendered, consent from the executing judicial authority must be obtained, in so far as ‘a penalty or measure involving deprivation of liberty is to be executed’. Prior to that, the issuing State may carry on with its criminal proceedings, but it may not enforce any penalty or measure involving deprivation of liberty, unless the imposition of such a penalty or measure results from other (unmodified) charges already contained in the arrest warrant.Footnote ¹⁶⁹

A. Judicial Cooperation in Civil Matters

In the context of its interpretation of various measures concerning judicial cooperation in civil matters, the ECJ seeks to uphold the protection of fundamental rights in the form of procedural guarantees embodied by the rule of law in the EU legal order. The ECJ's case law contributes to the further development of the Area of Freedom, Security and Justice, particularly as regards the notion of ‘public policy’, which is central to the present analysis. For example, in the Krombach case,Footnote ¹⁷⁰ the interpretation of the ‘public policy’ clause provided in article 27 of the Brussels ConventionFootnote ¹⁷¹ enabled the ECJ to set some crucial guidelines on the application of this exception to the ‘free movement of judgments.Footnote ¹⁷² The facts of the case may be summarised as follows. Following preliminary investigations, Mr. Krombach was committed for trial before the Paris Court of Appeal in respect of the death in Germany of a French girl. A civil claim brought by the father of the victim was joined to the criminal proceedings. Mr Krombach was ordered to appear in person at the hearing but he failed to do so. As a result, the Paris Court of Appeal found Mr Krombach guilty of contempt of court. The French Code of Criminal Procedure provided that no defence counsel could appear on behalf of the person in contempt. This meant that the Paris Court of Appeal would reach its decision without hearing the defence counsel instructed by Mr Krombach. The Paris Court of Appeal found Mr Krombach guilty of manslaughter and also ordered him to pay compensation to the father of the victim in the amount of FRF 350 000. When the father of the victim sought to enforce the judgment of the Paris Court of Appeal in Germany pursuant to the Brussels Convention, Mr Krombach argued that, since he had been unable effectively to defend himself against the judgment given against him by the Paris Court of Appeal, the latter's decision should not be enforced. On appeal on a point of law, the Bundesgerichtshof asked the ECJ whether article 27 of the Brussels Convention could be relied upon to deny the enforcement of a judgment such as that of the Paris Court of Appeal.

The ECJ began by pointing out that article 27 of the Brussels Convention must be interpreted strictly inasmuch as it constitutes an obstacle to the attainment of one of the fundamental objectives of the Convention and therefore must be applied in exceptional cases only.Footnote ¹⁷³ While making clear that it was not for the ECJ to define the content of the ‘public policy’ of a particular Contracting State, it was nonetheless required to set the limits within which the court of a Contracting State may have recourse to that concept for the purpose of refusing recognition to a judgment emanating from a court in another Contracting State.Footnote ¹⁷⁴ In its reply, the ECJ focused its analysis on the protection of fundamental rights which form an integral part of the general principles of law whose observance the ECJ ensures and for the purpose of which it draws inspiration from the ECHR in particular. The ECJ recalled that it had in earlier cases expressly recognized the general principle of law that everyone is entitled to fair legal process, which draws on those fundamental rights and that ex article F(2) (post 1999 numbering: ex article 6(2))Footnote ¹⁷⁵ EU embodies that case law.Footnote ¹⁷⁶

The ECJ also took the opportunity to define more clearly the notion of ‘public policy’ in this context. It considered that the ‘public policy’ exception of article 27 of the Brussels Convention could be invoked only where the recognition or the enforcement of a judgment delivered in another Contracting State would be incompatible, to an unacceptable degree, with the legal order of the State in which enforcement is sought inasmuch as it infringes a fundamental principle of national law.Footnote ¹⁷⁷ The ECJ specified that such infringement would have to constitute a manifest breach of a rule of law regarded as essential in the legal order of the State in which enforcement is sought or of a right recognized as being fundamental within that legal order.Footnote ¹⁷⁸ The ECJ further observed that the right to be defended occupies a prominent position in the organization and conduct of a fair trial and that it is one of the fundamental rights deriving from the constitutional traditions common to the Member States.Footnote ¹⁷⁹ Having regard to the case law of the European Court of Human Rights (‘ECtHR’),Footnote ¹⁸⁰ the ECJ found that a court of a Member State is entitled to hold that the refusal to hear the defence of an accused person who is not present at the hearing constitutes a manifest breach of fundamental rights.Footnote ¹⁸¹

This case-law concerning the protection of fundamental rights was subsequently applied to the Regulation on insolvency proceedings.Footnote ¹⁸² In Eurofood,Footnote ¹⁸³ the ECJ considered that the right to be notified of procedural documents and, more generally, the right to be heard occupy a crucial position in the organization and conduct of a fair trial and that, in the context of insolvency proceedings, the right of creditors or their representatives to participate in accordance with the ‘equality of arms’ principle is of particular importance.Footnote ¹⁸⁴ Accordingly, the ECJ ruled that a Member State may refuse to recognize insolvency proceedings opened in another Member State where the decision to open the proceedings was taken in flagrant violation of the fundamental right to be heard which a person concerned by such proceedings enjoys, especially in the case of creditors or their representatives.Footnote ¹⁸⁵

The interpretation of the ‘public policy’ exception in Krombach is also valid in the context of the Brussels I Regulation,Footnote ¹⁸⁶ which has in fact codified the Krombach judgment in certain respects.Footnote ¹⁸⁷ In judgments concerning the Brussels I Regulation, the ECJ has emphasised its concern that the principle of the free movement of judgments should not be implemented to the detriment of respect for fundamental rights. For example, in ASML,Footnote ¹⁸⁸ the ECJ ruled that article 34(2) of the Brussels I RegulationFootnote ¹⁸⁹ is to be interpreted as meaning that it is ‘possible’ for a defendant to bring proceedings to challenge a default judgment against him only if he was in fact acquainted with its contents under circumstances where it was served on him in sufficient time to enable him to arrange for his defence before the courts of the State in which the judgment was given.Footnote ¹⁹⁰ To justify this conclusion, the ECJ considered that the objective of the Brussels I Regulation, namely to ensure the free movement of judgments from Member States in civil and commercial matters by simplifying the formalities with a view to their rapid and simple recognition and enforcement, must not be achieved at the expense of undermining, in any way, the right to a fair hearing.Footnote ¹⁹¹ In the same vein, in Apostolides,Footnote ¹⁹² the ECJ held that a fair balance between the free movement of judgments in civil and commercial matters and respect for the rights of the defence did not oppose the recognition or enforcement of a default judgment in so far as the defendant was able to commence proceedings against it, and those proceedings gave him an opportunity to argue that the relevant documents had not been properly served on him, thus ensuring protection of his rights of defence.Footnote ¹⁹³

The ECJ confirmed this line of reasoning in relation to the Regulation on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters.Footnote ¹⁹⁴ In Weiss und Partner,Footnote ¹⁹⁵ for instance, the ECJ considered that ‘every effort must be made to reconcile the objectives of effectiveness and speed in the transmission of procedural documents, which are necessary for the sound administration of justice, with that of the protection of the rights of the defence’.Footnote ¹⁹⁶

As defined by the ECJ, the notion of ‘public policy’ demonstrates that the free movement of judgments in civil and commercial matters is not absolute but must comply with fundamental rights. Mutual respect and deference among national courts cannot lead to a situation that is detrimental to basic procedural rights. However, once fundamental rights are sufficiently protected, mutual trust prevents a court of Member State ‘A’ from questioning the jurisdiction of a court of Member State ‘B’ on grounds of expediency, bad faith of the applicant, or a better position to rule on the merits. Otherwise, national courts would distrust each other's capacity to examine their own jurisdiction, triggering the fragmentation of the Area of Freedom, Security and Justice. The importance of fundamental rights in the field of judicial cooperation in civil matters is highlighted by contrasting Krombach and the case-law of the ECJ on anti-suit injunctions.Footnote ¹⁹⁷

The purpose of anti-suit injunctions is to protect an exclusive jurisdiction clause or an arbitration agreement from delaying tactics, by preventing a party from bringing an abusive action before ‘a forum renowned for slow moving civil process […], caus[ing] undue delay and unnecessary costs and thereby pressuris[ing] the other party to settle at an unduly low level’.Footnote ¹⁹⁸ By discouraging oppressive and abusive procedural tactics, anti-suit injunctions are intended to reinforce the effectiveness of jurisdiction clauses and arbitration agreements,Footnote ¹⁹⁹ while limiting the automatic application of the lis pendens rule.Footnote ²⁰⁰ Bearing in mind that rationale, AG Léger in Gasser suggested that the court second seised, which enjoys exclusive jurisdiction by virtue of a jurisdiction clause, should not always stay proceedings until the court first seised declines jurisdiction in its favour. Instead, the court second seised should give judgment ‘where there is no room for any doubt as to [its] jurisdiction’.Footnote ²⁰¹ However, the ECJ has repeatedly rejected this approach. In cases such as Gasser, Turner, and Allianz Footnote ²⁰² it has held that anti-suit injunctions are not compatible with the scheme set out by the Brussels I Regulation (the Brussels Convention). Not only are anti-suit injunctions precluded in civil or commercial disputes whose subject-matter falls within the scope of application of the Brussels I RegulationFootnote ²⁰³ (the Brussels Convention), but also in proceedings which, while falling outside its scope, undermine its effectiveness.Footnote ²⁰⁴ This would be the case for anti-suit injunctions which ‘prevent a court from another Member State from exercising the jurisdiction conferred on it by [the Brussels I Regulation]’.Footnote ²⁰⁵

In essence, the ECJ has put forward three reasons justifying the incompatibility of anti-suit injunctions with the Brussels I Regulation (the Brussels Convention), namely legal certainty, mutual trust, and the effet utile. First, inspired by civil law systems, the Brussels I Regulation (the Brussels Convention) seeks to guarantee the predictability and inviolability of rules on jurisdiction.Footnote ²⁰⁶ Consequently, a balancing approach such as that traditionally followed by common law systems in the context of conflict of laws was discarded by the Union legislator.Footnote ²⁰⁷ This legislative choice explains why the ECJ has held that the principle of legal certainty excludes anti-suit injunctions.Footnote ²⁰⁸ Since anti-suit injunctions would require a case-by-case assessment, they seem incompatible with a clear and predictable lis pendens rule. Further, critiques accusing the ECJ of civilising the common law,Footnote ²⁰⁹ of supporting utopian solutions,Footnote ²¹⁰ and of encouraging abusive practicesFootnote ²¹¹ do not seem well-founded as it is the Union legislator who opted for a choice-of-court scheme inspired by the ‘virtues and vices’ of civil law systems. If anything, the ECJ is deferential to the legislative choices which result from the political process.Footnote ²¹² Second, the principle of mutual trustFootnote ²¹³ implies that ‘the court second seised is never in a better position than the court first seised to determine whether the latter has jurisdiction’.Footnote ²¹⁴ Put simply, ‘[h]ow can in this sisterly union, one court think itself superior to the extent of telling another court what its job is?’Footnote ²¹⁵ Hence, the offensive and extra-territorial character of anti-suit injunctions runs counter to a system based on mutual trust.Footnote ²¹⁶ Third, the principle of effet utile mandates the ECJ to be extremely cautious when introducing ‘holes’ into the system set out by the Brussels I Regulation (the Brussels Convention) that may adversely affect the uniform application of the rules on jurisdiction contained therein. This means that EU secondary legislation adopted in the field of judicial cooperation in civil matters must be interpreted so as to avoid ‘parallel litigation’ which could lead to conflicting decisions. It follows that provisions such as article 27 of the Brussels I Regulation, which facilitate free movement by preventing contradictory rulings, must be interpreted broadly.Footnote ²¹⁷ Conversely, procedural tools of national law derogating from these provisions are subject to important limitations.Footnote ²¹⁸

Apart from being contrary to legal certainty, mutual trust and effet utile, it could be argued that anti-suit injunctions are difficult to reconcile with article 6 ECHR in so far as they restrict access to justice. As noted by AG Kokott in Allianz, ‘[by virtue of an anti-suit injunction], a claimant who has brought the matter before the court because he considers that the agreement is invalid or inapplicable would be denied access to the national court. That would be contrary to the principle of effective judicial protection which, according to settled case-law, is a general principle of [Union] law and one of the fundamental rights protected in the [Union].’Footnote ²¹⁹

In summary, while the Krombach case-law shows that fundamental rights may operate as a limit to the free movement of judgments in civil matters, a careful reading of cases such as Allianz would suggest that the ECJ will normally stand in the way of procedural tools of national law which, in addition to restricting free movement, might limit the right to effective judicial protection.Footnote ²²⁰

B. The Role of the ECJ in the Field Of Asylum

Arguably, EU policy on asylum is governed by two often conflicting dimensions.Footnote ²²¹ On the one hand, in order to create an Area of Freedom, Security and Justice, EU policy on asylum must contribute to strengthening the controls on the external borders of the Union, so that asylum is not used as a means of circumventing the rules on entry into the Union. Put differently, the ‘control of migration flows’ dimension of EU policy on asylum aims to limit protection to those who genuinely deserve it. On the other hand, EU policy on asylum must also ensure that the Union is seriously committed to respecting the standards set out by international law, in particular by the Geneva Convention of 28 July 1951 and the Protocol of 31 January 1967 relating to the status of refugees. From the standpoint of international law, asylum does not focus on ‘State border control’, but on granting an effective protection to asylum seekers. Not only is the human rights dimension of EU asylum policy inspired by international legal instruments, but it is also recognised by the EU legal order itself. In particular, article 18 of the Charter recognises asylum as a right vested in individuals (‘the right to receive asylum’), rather than as a prerogative of States (‘the right to grant asylum’).Footnote ²²²

To date, the EU legislator has adopted five major pieces of legislation in the field of asylum, namely the Temporary Protection Directive,Footnote ²²³ the Reception Directive,Footnote ²²⁴ the Dublin II Regulation,Footnote ²²⁵ the Qualification Directive,Footnote ²²⁶ and the Procedures Directive.Footnote ²²⁷ Some scholars have criticised the approach followed by the legislator, arguing that it has paid too much attention to the control of migration flows, while disregarding human rights. For example, in relation to the Procedures Directive, they posit that this Directive ‘should have established clear minimal guarantees, but instead cast a negotiated settlement in law, apparently reinvesting national administrations with discretion that they had lost in some measure, due to domestic and ECtHR rulings’.Footnote ²²⁸ As to the Qualification Directive, it has been criticised as falling ‘short of international standards in a number of ways, notably, in relation to the qualifying grounds and the status of individuals under subsidiary protection and to the provisions on exclusion, revocation and non-refoulement, which should never have found their way into the Directive’.Footnote ²²⁹ Yet, it is argued that the margin of discretion enjoyed by national authorities in implementing these Directives is limited by the general principles of EU law. Hence, national courts and the ECJ would be bound to interpret and, where appropriate, declare invalid national implementing or EU measures that fail to comply with general principles. Reliance on general principles would then be the appropriate method for raising the level of protection offered by EU secondary legislation to asylum seekers (or to persons seeking subsidiary protection)Footnote ²³⁰ as well as a means of reconciling EU law with international standards.Footnote ²³¹ However, before the entry into force of the Treaty of Lisbon, one could raise two objections to such an application of general principles. First, the EC Treaty restricted the scope of Community measures adopted in the field of asylum to minimum harmonization. Regarding pre-existing Community legislation in the field of asylum, it remains unclear whether general principles apply to national measures located above the ‘regulatory floor’ set out by the Community legislator (‘the upwardly-flexible area’).Footnote ²³² Second, due to the restrictions on its jurisdiction to issue preliminary rulings, the capacity of the ECJ to guide national courts in interpreting general principles was seriously undermined. Currently, these two objections no longer apply. As opposed to setting only minimum standards, new EU measures adopted in the field of asylum will aim to establish a ‘uniform status’ for refugees as well as for persons benefiting from subsidiary protection.Footnote ²³³ As mentioned above, the ECJ now enjoys jurisdiction to answer questions referred by inferior courts, which will certainly contribute to improving the dialogue between the judiciary at national and EU level.

The jurisdictional limitations imposed on the preliminary reference procedure may explain why the case-law of the ECJ in the field of asylum is scarce. Most of litigation has focused on infringement actions brought by the Commission against Member States failing to implement asylum Directives on time.Footnote ²³⁴ As of April 2010, only three cases dealing directly with the interpretation of EU legislation in the field of asylum have been decided under the preliminary reference procedure,Footnote ²³⁵ namely Petrosian,Footnote ²³⁶Elgafaji Footnote ²³⁷ and Salahadin Abdulla and Others.Footnote ²³⁸

In Petrosian, the ECJ was asked to clarify the meaning of article 20(1)(d) of the Dublin II Regulation. One should recall that, in accordance with article 16 of the Dublin II Regulation, the Member State that has rejected the asylum application of a person who is in the territory of another Member State without permission is obliged to take that person back. Article 20 provides that the transfer must be carried out ‘at the latest within six months of acceptance of the request that charge be taken by another Member State or of the decision on an appeal or review where there is a suspensive effect’. In essence, the referring court asked whether the period of six months for implementation of the transfer begins to run as from the time of the provisional judicial decision suspending the implementation of the transfer procedure or only as from the time of the judicial decision ruling on the merits of that procedure. In the light of the wording of article 20(1)(d) of the Dublin II Regulation, the ECJ drew a distinction between two situations. Where national rules of procedure do not provide for an appeal to have suspensive effect, ‘the period for implementation of the transfer starts to run as from the time of the decision, explicit or presumed, by which the requested Member State agrees to take back the person concerned’. This is so regardless of ‘the uncertainties surrounding the appeal against the decision ordering the transfer’.Footnote ²³⁹ Conversely, where an appeal produces suspensive effects, the period for the implementation of the transfer begins to run ‘only as from the time of the judicial decision which rules on the merits of the procedure and which is no longer such as to prevent its implementation’.Footnote ²⁴⁰ The ECJ held that this finding was supported by two sets of considerations. First, a Member State which had opted for a high level of judicial protection in the context of implementing a transfer by setting out appeal remedies with suspensive effect could not be placed in a less favourable position than those Member States which did not provide such remedies.Footnote ²⁴¹ Second, the principle of procedural autonomy opposes an interpretation of article 20 (1) (d) whereby the period for the implementation of the transfer would always begin to run as from the time of the provisional judicial decision having suspensive effects. Indeed, the ECJ acknowledged that such an interpretation would place enormous time pressure on national courts wishing to honour both the suspensive effects of the provisional judicial decision and the time limit of six months. Owing to the complexity of the proceedings, this would have been a very difficult, if not impossible, task.Footnote ²⁴²

While Petrosian was confined to questions of statutory interpretation,Footnote ²⁴³ albeit important ones, Elgafaji may be regarded as the first important contribution of the ECJ to building-up the EU acquis in the field of asylum. In Elgafaji, the ECJ was asked by the Dutch Raad van State to provide some guidance on the definition of ‘subsidiary protection’. Before examining this case, it is worth providing a brief description of the two alternative types of international protection offered by the EU under the Qualification Directive, namely ‘conventional protection’ and ‘subsidiary protection’.

As its name clearly indicates, conventional protection under the Qualification Directive is largely based on the 1951 Geneva Convention. In accordance with article 2(c) of the Qualification Directive, this type of protection applies to ‘a third country national who, owing to a well-founded fear of being persecuted [for the reasons listed in article 1A(2) of the 1951 Geneva Convention],Footnote ²⁴⁴ is outside the country of nationality and is unable or, owing to such fear, is unwilling to avail himself or herself of the protection of that country, or a stateless person, who, being outside of the country of former habitual residence for the same reasons as mentioned above, is unable or, owing to such fear, unwilling to return to it, and to whom [the exclusion grounds laid down in] article 12 [do] not apply’.Footnote ²⁴⁵ Persons falling within the scope of conventional protection acquire refugee status.

Taking the view that the 1951 Geneva Convention did not address other categories of persons in need of international protection, the European Council decided, at its special meeting in Tampere, that the EU should adopt a complementary regime. In relation to the definition of subsidiary protection,Footnote ²⁴⁶ one must first observe that this protection only applies where the person concerned does not qualify as a refugee.Footnote ²⁴⁷ Granting subsidiary protection to an applicant who was actually entitled to refugee status is by no means a trivial mistake. Given that persons enjoying refugee status are placed in a more favourable legal position than those awarded subsidiary protection,Footnote ²⁴⁸ national authorities are indeed obliged to confer refugee status whenever the conditions laid down in the Directive are met by the applicant. This difference in treatment has been criticised by some scholarsFootnote ²⁴⁹ and the UNHCR,Footnote ²⁵⁰ urging the EU to put an end to it. Second, just as it happens with conventional protection, subsidiary protection is limited to third country nationals and stateless persons. Hence, EU citizens are excluded from the scope ratio personae of the Qualification Directive.Footnote ²⁵¹ Last but not least, in order to be granted subsidiary protection, the person concerned must demonstrate that there are ‘substantial grounds for believing’Footnote ²⁵² that if the person concerned is returned, he ‘would face a real risk of suffering serious harm’. Article 15 of the Qualification Directive states that ‘serious harm may consist of (a) death penalty or execution; or (b) torture or inhuman or degrading treatment or punishment of an applicant in the country of origin; or (c) serious and individual threat to a civilian's life or person by reason of indiscriminate violence in situations of international or internal armed conflict’.

The legal basis of articles 15(a) and 15(b) of the Qualification Directive stems from the ECHR.Footnote ²⁵³ Article 15(a) implements the prohibition laid down in Protocol 6 to the ECHR, whereby the death penalty is prohibited in peace time. Article 15(b) aims to guarantee a legal status to persons classified as non-removable, that is, to persons covered by article 3 ECHR as interpreted by the ECtHR.Footnote ²⁵⁴

In contrast to articles 15(a) and 15(b), it appears that the situation described in article 15(c) of the Qualification Directive is more difficult to apprehend. Perhaps, this is due to the prima facie semantic tension between, on the one hand, the terms ‘serious and individual threat’ and, on the other hand, the terms ‘indiscriminate violence’.Footnote ²⁵⁵ The questions referred in Elgafaji were specifically directed to resolving the apparent contradiction in terms contained in article 15(c). The facts of the case may be summarised as follows. In 2006, Mr and Mrs Elgafaji, two Iraqi nationals, applied for temporary residence permits in the Netherlands. They argued that there would be a risk of serious harm, if they were sent back to Iraq. Before moving to Europe, Mr Elgafaji had worked for a British company providing security clearance between the Baghdad airport and the ‘green zone’. His uncle had been killed by a terrorist attack and a threatening letter stating ‘death to collaborators’ had been fixed on his door. However, the Dutch Minister for Immigration considered that Mr and Mrs Elgafaji had failed to demonstrate ‘a serious and individual threat to their lives’. The Dutch Minister for Immigration reckoned that the degree of individualization of the threat required by article 15(c) was identical to that required by article 15(b). Stated differently, the armed conflict in Iraq that prompted indiscriminate violence was not sufficient to award subsidiary protection. The applicants also had to demonstrate that they were individually targeted by reasons of factors particular to them. It is worth observing that the Dutch Minister for Immigration was not alone in defending his interpretation as other Member States had endorsed the same approach.Footnote ²⁵⁶ Additionally, he relied on Recital 26 of the Qualification Directive, which reads ‘[r]isks to which a population of a country or a section of the population is generally exposed do normally not create in themselves an individual threat which would qualify as serious harm’. However, Mr and Mrs Elgafaji challenged those assertions. In light of Recital 25 of the Qualification Directive, they posited that a high degree of individualization of the threat would fall foul of international refugee and human rights law which provide the basis on which the elegibility criteria for awarding subsidiary protection are drawn.Footnote ²⁵⁷ Their approach echoes that of the UNHCR, which recommended the EU legislator to amend article 15(c) of the Qualification Directive so as to delete the term ‘individual’ from its wording as well as from Recital 26.Footnote ²⁵⁸ Hence, when interpreting article 15(c) of the Qualification Directive, the ECJ was confronted with two conflicting views. The one supported by the Dutch Ministry reflected national fears of excessively broadening the scope of article 15(c) so that Member States would be unable to control the flow of persons coming from countries embroiled in armed conflict. The other view, supported by the applicant and the UNHCR, emphasized that EU subsidiary protection must not become an ‘empty promise’, merely codifying at EU level the rights already guaranteed by virtue of the ECHR.

The ECJ began by shedding some light on the relationship between article 15 of the Qualification Directive and article 3 ECHR, a provision which forms part of the EU legal order as general principle, observance of which the EU judiciary ensures. The ECJ noted that ‘it is […] Article 15(b) which corresponds, in essence, to article 3 of the ECHR’.Footnote ²⁵⁹ By contrast, article 15(c) is an autonomous concept whose interpretation must be carried out independently but without prejudice to fundamental rights as guaranteed by the ECHR.

Next, the ECJ embarked on a systematic interpretation of article 15 of the Qualification Directive, comparing the three types of ‘serious harm’ defined therein. It pointed out that articles 15(a) and 15(b) of the Qualification Directive both require the applicant to be ‘specifically exposed to the risk of a particular type of harm’. Conversely, article 15(c) covers ‘more general risks of harm’.Footnote ²⁶⁰ Indeed, the degree of individualization applicable to articles 15(a) and 15(b) cannot be transposed to situations covered by article 15 (c). Otherwise, this latter provision would become redundant. Besides, the terms ‘armed conflict’ and ‘indiscriminate violence’ imply general situations where many people are at risk.

The ECJ then proceeded to link the terms ‘individual threat’ to the concept of ‘indiscriminate violence’. It held that ‘indiscriminate violence’ puts at risk all persons located in the geographical zone of the armed conflict. Hence, it would be logically impossible to interpret the terms ‘individual threat’ as requiring a link between the threat and factors particular to the applicant. Instead, the ECJ reasoned that article 15(c) covers situations where the level of indiscriminate violence resulting from an armed conflict is so high that the mere presence of the person concerned in the relevant country or region puts him at real risk of being subject to the serious threat referred to in article 15(c) of the Directive.Footnote ²⁶¹ The ECJ added that this definition of ‘individual threat’ does not run counter to Recital 26. While the latter covers risks to which the population generally is exposed, article 15(c) is limited to ‘exceptional situations’.Footnote ²⁶² The ECJ observed that the level of indiscriminate violence and the level of individualization are not unrelated concepts. On the contrary, as regards the standard of proof they are inversely proportional: ‘the more the applicant is able to show that he is specifically affected by reason of factors particular to his personal circumstances, the lower the level of indiscriminate violence required for him to be eligible for subsidiary protection’.Footnote ²⁶³

This case demonstrates that the ECJ is fully aware of the conflicting dimensions governing EU policy on asylum. It did its best to strike the right balance between an excessive broadening of article 15(c) and the effectiveness of subsidiary protection. From the standpoint of human rights protection, the solution followed by the ECJ in Elgafaji seems correct. First, it renders subsidiary protection effective by interpreting article 15(c) as offering supplementary protection to that guaranteed by article 3 ECHR. Second, as noted by AG Poiares Maduro, the interpretation followed in Elgafaji was ‘the only one that made it possible to fulfil the priority objective of the Directive’,Footnote ²⁶⁴ namely to grant international protection where a risk of harm to human rights is likely to arise. Indeed, a reading of article 15(c) requiring applicants to prove factors particular to their personal circumstances would lead to the absurd result that the higher the level of indiscriminate violence was, the greater the numbers of persons adversely affected would be, and the harder it would therefore be for individual applicants to rely on the protection of article 15(c). Third, in light of Elgafaji, the Qualification Directive offers individual protection to victims of serious violations of human rights, regardless of whether the applicant has been a victim of discrimination. This narrows down the differences between conventional and subsidiary protection as regards the degree of individual risk to an individual's human rights which is required. Finally, in deferring the assessment of the level of indiscriminate violence to the competent national authorities,Footnote ²⁶⁵ the ECJ entrusted the latter with a key aspect of article 15(c), namely the turning point at which indiscriminate violence becomes an exceptional situation.

Moreover, how must article 11(1)(e) of the Qualification Directive concerning the cessation of refugee status be interpreted? What would happen if there were a change in the circumstances in connection with which a person was recognised as a refugee but she were still exposed to serious harm pursuant to article 15 of the Qualification Directive? Does she lose her refugee status or does she keep it? In Salahadin Abdulla and Others, the ECJ was asked to answer these questions by clarifying the concept of ‘cessation of refugee status’ as well as its legal implications.Footnote ²⁶⁶ In this respect, the ECJ held that ‘refugee status ceases to exist where the national concerned no longer appears to be exposed, in his country of origin, to circumstances which demonstrate that that country is unable to guarantee him protection against acts of persecution against his person for one of the five reasons listed in article 2(c) of the [Qualification] Directive’.Footnote ²⁶⁷ Put simply, article 11(1)(e) only applies where the refugee's country of nationality offers protection from persecution. Such protection only exists if it can be shown that this country has ‘an effective legal system for the detection, prosecution and punishment of acts constituting persecution and that the national concerned will have access to such protection if he ceases to have refugee status’.Footnote ²⁶⁸ The ECJ added that the cessation of refugee status only occurs in the event of a ‘significant and non-temporary’ change in the circumstances in connection with which a person was recognised as a refugee.Footnote ²⁶⁹ It also noted that multinational troops operating under the mandate of the international community may offer protection from persecution, provided that they comply with the standards set out in article 7 of the Qualification Directive.Footnote ²⁷⁰ The ECJ also considered that ‘the cessation of refugee status cannot be made conditional on a finding that a person does not qualify for subsidiary protection status’.Footnote ²⁷¹ Otherwise, there would be a serious distortion of the respective domains of the two types of international protection laid down in the Qualification Directive. In the same way, the possible cessation of refugee status does not adversely affect the right of the person concerned to request the granting of subsidiary protection status as provided for by article 15 of the Qualification Directive.Footnote ²⁷² Most importantly, the ECJ stressed that, in assessing the extent of the risk of suffering from acts of persecution, the competent authorities ‘must, in all cases, [operate] with vigilance and care, since what are at issue are issues relating to the integrity of the person and to individual liberties, issues which relate to the fundamental values of the Union’.Footnote ²⁷³ Therefore, just as in Elgafaji, Salahadin Abdulla and Others confirms that the ECJ is seriously committed to respecting the ‘fundamental rights dimension’ of EU asylum policy.

C. Police and Judicial Cooperation in Criminal Matters

The ECJ is driven by the same concern to uphold the protection of fundamental rights in the context of the Area of Freedom, Security and Justice as far as police and judicial cooperation in criminal matters is concerned. In this context, mention must be made of the ECJ's seminal judgment in Advocaten voor de Wereld. Footnote ²⁷⁴ That case concerned a reference for a preliminary ruling made by the Belgian Constitutional Court in the context of an action seeking to annul the Belgian law transposing the Framework Decision on the European arrest warrant.Footnote ²⁷⁵ The applicants in the national proceedings contested the legal basis of the Framework Decision and argued that it violated the principles of legality in criminal matters and of equality and non-discrimination.Footnote ²⁷⁶

After dismissing the first argument, namely that it followed from ex article 34(2)(b) EU that the subject-matter of the European arrest warrant ought to have been implemented by way of a convention,Footnote ²⁷⁷ the ECJ rejected the applicants' second argument based on the protection of fundamental rights. Recalling its judgments in Gestoras Pro Amnistía Footnote ²⁷⁸ and Segi,Footnote ²⁷⁹ the ECJ observed that ‘by virtue of [ex] article 6 EU, the Union is founded on the principle of the rule of law and it respects fundamental rights, as guaranteed by the ECHR, and as they result from the constitutional provisions common to the Member States, as general principles of Community law’ and that ‘the institutions are subject to review of the conformity of their acts with the Treaties and the general principles of law, just like the Member States when they implement the law of the Union’.Footnote ²⁸⁰

In particular, the applicants submitted that under article 2(2) of the Framework Decision the list of more than thirty offences in respect of which the traditional condition of double criminality would be abandoned if those offences were punishable in the issuing Member State by a custodial sentence or detention order for a maximum period of at least three years was so vague and imprecise that it breached the principle of legality in criminal matters, given that the offences set out in that list were not accompanied by their legal definition.Footnote ²⁸¹ In response, the ECJ, referring to its case law in the field of competition, recalled that the principle of the legality of criminal offences and penalties (nullum crimen, nulla poena sine lege) was one of the general legal principles underlying the constitutional traditions common to the Member States and that it was also enshrined in various international treaties, including article 7(1) of the ECHR.Footnote ²⁸²

On that basis, the ECJ ruled that even if the Member States reproduce word-for-word the list of the categories of offences set out in article 2(2) of the Framework Decision for the purposes of its implementation, the actual definition of those offences and the penalties applicable are those which are provided for by the law of the issuing Member State.Footnote ²⁸³ It followed that the Framework Decision did not seek to harmonize the criminal offences in question in respect of their constituent elements or of the penalties which they attract.Footnote ²⁸⁴ Likewise, the ECJ found that, in defining the offences and the penalties applicable, the issuing Member State must respect fundamental rights as set out in ex article 6 EU and hence the principle of the legality of criminal offences and penalties.Footnote ²⁸⁵ This in fact obliges the Member States to recognize their respective definitions of criminal offences and applicable penalties and therefore strengthens the principle of mutual recognition based on the confidence that each Member State will, when defining these offences and penalties, respect the same fundamental rights as a central component of the Area of Freedom, Security and Justice. Applying a similar rationale, the ECJ also rejected the applicants' argument in so far as it was based on the infringement of the principle of equality and non-discriminationFootnote ²⁸⁶ by pointing to the case law concerning the Convention implementing the Schengen Agreement (the ‘CISA’).Footnote ²⁸⁷

The CISA case law represents a significant contribution of the ECJ to the Area of Freedom, Security and Justice, especially as far as the principle of non bis in idem embodied in article 54 of the CISA is concerned.Footnote ²⁸⁸ This provision, the objective of which is to ensure that no one is prosecuted on the basis of the same facts in several Member States on account of his having exercised his right to freedom of movementFootnote ²⁸⁹ has been the object of abundant case law. For the purposes of this discussion, suffice it to say that the ECJ has made clear that the only relevant criterion for the purposes of the application of article 54 of the CISA is the identity of the material acts, understood as the existence of a set of facts which are inextricably linked together and that this criterion applies irrespective of the legal classification given to those acts or the legal interest protected.Footnote ²⁹⁰ In any event, it is important to point out that the principle of non bis in idem is applicable beyond the fields falling within the Area of Freedom, Security and Justice. In the field of EU competition law, it has been confirmed as a fundamental principle of EU law.Footnote ²⁹¹ In competition matters, this principle precludes an undertaking from being found guilty or proceedings from being brought against it a second time on the grounds of anti-competitive conduct in respect of which it has been penalised or declared not liable by a previous decision against which no further appeal is possible, which is reminiscent of the ECJ's case law on article 54 of the CISA.Footnote ²⁹²