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By Dr. Jasper Krommendijk and Kris van der Pas, Radboud University

In recent years, the use of strategic litigation by NGOs has grown, especially in migration law.  Strategic litigation can be defined as the use of judicial procedures in order to create change beyond the individual interest or individual case. Aside from initiating and being a direct party to legal proceedings, one could also think of third-party interventions as a more subtle form of strategic litigation. Intervention can be compared to the (common law) practice of amicus curiae, Latin for ‘friend of the court’. Although certain differences exist between amicus curiae and third-party interventions in different legal systems, their purpose in legal proceedings is largely similar.

When it comes to strategic litigation, NGOs have also geared their attention to the Court of Justice of the European Union (CJEU). Especially in the field of migration and asylum, the increasing Europeanisation of the law has led to the CJEU becoming an attractive route for litigation, as the catalogue of available rights has expanded and CJEU judgments have radiating effects throughout the Union. Nevertheless, there are also downsides to this legal pathway. Gaining direct access to the CJEU as a litigant is difficult: in preliminary reference procedures there is a dependency on the national judge to ask a question, while it is nearly unthinkable for NGOs to challenge EU migration and asylum legislation directly before the CJEU because of the Plaumann requirements of direct and individual concern to introduce an action for annulment. For this reason, third-party intervention could form a suitable alternative. On the basis of an article published earlier this year, we explore the legal possibilities and reality of intervention in migration law cases before the CJEU. As we will show, intervening before the CJEU is difficult (part I), especially when compared to the ECtHR (part II). In the last section of the blog, we will argue that the possibilities to intervene should be broadened, especially in preliminary references (part III).

I. Intervention before the CJEU in preliminary rulings

The legal possibilities for interested natural or legal persons, including NGOs, to intervene in the context of the preliminary ruling procedure (Article 267 TFEU) are limited. The possibility to intervene depends on national procedural rules and the ‘willingness’ of the national court to abide by requests to intervene in the national proceedings. This limitation has been derived by the CJEU itself from Article 40 of the Statute that limits intervention to a ‘case before the Court’. The latter only includes direct actions, such as the action for annulment on the basis of Article 263 TFEU.  When the questions are pending before the CJEU, these persons are simply too late if they did not intervene earlier at the national level. The limited possibility for natural or legal persons to intervene stands in sharp contrast with the unlimited rights of Member States and the European Commission to intervene on the basis of Article 23(2) of the Statute. Intervention is also substantively limited to supporting the grounds already put forward, according to Article 40(4) of the Statute. Article 97 of the Rules of Procedures provides that the (intervening) party ‘must accept the case as he finds it’. This means that no new grounds can be submitted.

Actual third-party interventions that have occurred in migration cases before the CJEU are also limited, as our empirical study shows. No interventions were found in the period 2015-2020. Nevertheless, it appears from the literature that there have been some national interventions before 2015. There are four cases in which the UNHCR joined as intervener at the national level and intervened formally at the CJEU level, according to their own website: Manjit Kaur (1999), N.S. and M.E. (2010), El Kott (2011) and X, Y, and Z (2012). It is remarkable that three of these four interventions took place in a two years’ time span. Aside from these formal interventions, the UNHCR has issued its observations in fifteen other cases. It has sometimes managed to have its observations appended in the annex to the observations of the lawyer of the asylum seeker. In such a way, the CJEU was reached in a creative and informal way. The latter also happened in recent joined cases on ex officio review of detention of illegally staying foreign nationals or asylum seekers. An expert opinion was written by the VU Migration Law Clinic at the request of the applicants’ lawyer.

One actor who has intervened in multiple cases as well is the specialist legal charity AIRE Centre (Advice on Individual Rights in Europe). The AIRE Centre is regarded highly by UK courts and its requests to refer questions to the CJEU and its interventions, pointing out points of general importance, have been frequently heeded by UK courts. A notable point here is that the relative extensive intervention practice of the AIRE Centre before UK courts illustrates that UK procedural rules are rather welcoming in this respect. A last particular actor who has found a creative way of reaching the CJEU in informal submissions is the Committee Strategic Litigation that the Dutch Council for Refugees established in 2014. This Committee has never intervened formally before a Dutch court or the CJEU, but they have supported litigation of individual applicants and their lawyers. An example is the recent case of LH. Even though this role is not explicated in the actual judgment, the Committee’s involvement was mentioned in a blog. Likewise, the Hungarian Helsinki Committee provided representation to the applicants in the Joined Cases leading to the CJEU judgment in FMS finding that the obligation to remain permanently in a transit zone amounts to unlawful detention. Still, this section draws a grim picture: the possibilities for third-party intervention before the CJEU in preliminary reference cases are limited from a legal perspective, necessitating the use of creative, informal and rather untransparent channels

II. Interventions before the ECtHR

The Strasbourg Court is, unlike the CJEU, known for its rather relaxed attitude towards third-party interventions, although this was not always the case historically. Nowadays, interventions (also by NGOs) are a common practice before this court. Unlike in CJEU cases, interventions are open to third-parties once a case is communicated. Multiple (empirical) studies show the flourishing practice that has occurred as a result of this relaxing stance.

Also in the field of migration specifically, many NGOs make use of this opportunity. For example, the European Council on Refugees and Exiles (ECRE) has submitted interventions in 21 cases after 2013. Many of these recent interventions have been collaborative efforts, together with the  Dutch Council for Refugees, the AIRE Centre, and/or the International Commission of Jurists. The ECtHR thus allows for a level playing field, where both governments, NGOs, but also companies and unions are allowed to participate and submit their observations. The possibilities to intervene do not depend on national procedural rules.

III. Broadening the possibilities to intervene

The foregoing analysis warrants the question as to whether the CJEU should broaden the official possibilities to intervene for third parties, as advocated for by NGOs. There are two possibilities for the CJEU. Firstly, changing (its practice with respect to) Articles 23 and 40 of the Statute so as to enable intervention by natural and legal persons in preliminary references at a CJEU level without requiring that the potential intervener becomes a party to the dispute at the national level. An amendment of the relevant provisions in the Statute does not seem necessary since the CJEU can simply change its interpretation and approach towards the requirement in Article 40 of a ‘case before the Court’. Secondly, and perhaps an even easier option, would be to use Article 70 of the Rules of Procedure more often. This provision stipulates that ‘The Court may order that an expert’s report be obtained.’ The provision does not contain any requirements. To our knowledge, it has never been used. The CJEU itself has recently also opened an informal door to receive information from NGOs while applying Article 23 of the Statute. The CJEU referred to letters of the Polish Ombudsman in its Grand Chamber judgment in Miasto Łowicz about the Polish rule of law backsliding situation. Groenendijk observed that this judgment could be ‘the first step in the direction of amicus curiae in Luxembourg’ because the CJEU did not reject the possibility to take into account the information.

There are two main reasons why the CJEU should reconsider its restrictive practice and follow its slightly more welcoming approach in Miasto Łowicz. Firstly, by dropping the requirement that the potential interveners become a party to the dispute at the national level, the potential interveners no longer depend on national court judges’ willingness to allow them in the procedure. This thus creates a level playing field in the EU for NGOs wishing to intervene. At the moment, national procedural rules on intervention differ considerably. It should, however, be noted that the limited uniformity is not a problem from a purely legal perspective and the current state of EU law. Procedural autonomy of EU Member States allows for differences in procedural rules provided that the principles of equivalence and effectiveness are complied with. The principle of effectiveness requires that national procedural rules ‘must not render practically impossible or excessively difficult the exercise of rights conferred by EU law’. Article 47 of the EU Charter of Fundamental Rights, containing the right to an effective remedy and access to an impartial tribunal, could also be of relevance in this context.

Secondly and most importantly, intervention could have clear added value for the substance and quality of the resulting CJEU judgments. Other studies showed that the CJEU is sometimes criticised for judgments that contain factual errors or rely on a wrong depiction of the national legal framework, sometimes as a result of submission of the biased government of the Member State concerned. Third-party interveners can provide the CJEU with helpful assistance, especially when the parties in the case fail to do so or do not even show up in Luxembourg. Third-party intervention provides the CJEU with contextual information, (new) factual circumstances as well as expertise. Former Advocate-General Bobek recently criticised the more limited possibilities of intervention in preliminary references: ‘the Court is often left to adjudicate on deeply scientific, factual matters with little data from either the intervening parties or the referring court’. He noted that the Court does not collect evidence or hears experts and leaves the establishment of the facts to the referring national court. Bobek thus emphasised the advantages of intervention for the CJEU in terms of better informed judgments. This argument in favour outweighs the contra-argument of furthering lengthens the proceedings. At a more principled level, a better reasoned and contextualised CJEU judgment is to be preferred over a small delay. It is even unclear whether the argument of delay is true since intervention is always possible for Member States and the Commission.

We do not explicitly address intervention in infringement procedures (258 TFEU) or actions for a declaration of failure to fulfil obligations by Member States. The legal answer is obvious. Article 40 of the Statute precludes intervention in such cases: ‘Natural or legal persons shall not intervene in cases between Member States, between institutions of the Union or between Member States and institutions of the Union.’ This impossibility has, however, not precluded NGO reports from playing a role in infringement procedures in the migration context. Documentation of NGOs has, for instance, been relied on by Advocate Generasl. One example is a report of the Hungarian Helsinki Committee that was cited by AG Pikamäe in Commission v Hungary. UNHRC Reports are sometimes annexed to the application of the Commission, as mentioned by the CJEU in the same infringement procedure. NGOs also have the possibility to complain to the Commission in the hope that it starts an infringement procedure. The Commission has, nonetheless, a wide discretion and is not even obliged to respond to the complaints made. Factual information and evidence provided by NGOs could be especially helpful for the CJEU (and Commission) in infringement procedures when the CJEU has to determine an actual breach.

In sum, third-party interventions before the CJEU are difficult. The legal reality of this difficulty translates into a rare number of actual interventions in migration cases as found in empirical research. By contrast, third-party intervention before the ECtHR is entirely different. The Strasbourg court is known for its relaxed attitude towards third-party interventions (also due to a proper legal basis) and an active practice of NGO interventions has arisen. The practice before the ECtHR creates a level playing field between civil society and states. The CJEU should follow the more accommodating approach of the ECtHR towards third-party intervention by broadening the possibilities to intervene in preliminary references. This would have positive repercussions for the substance and quality of CJEU judgments.