Towards ‘Judicial Passivism’ in EU Migration and Asylum Law? Preliminary Thoughts for the Final Plenary Session of the 2018 Odysseus Conference
By Iris Goldner Lang,* Jean Monnet Professor of EU Law and Holder of the UNESCO Chair on Free Movement of People, Migration and Inter-Cultural Dialogue, University of Zagreb.
Unlike “judicial activism”, the term “judicial passivism” has not been used in relation to EU law. In order to understand its meaning, it is necessary to briefly address and define the term “judicial activism”.
In EU law, judicial activism is most often understood as cases when the judiciary oversteps its judicial powers. The problem with this definition is that the delimitation of the CJEU’s powers often lies in the eye of the beholder. In other words, a case which one person might define as an example of the Court transgressing its powers (activism) might be seen by somebody else as an example of the Court staying within its boundaries, and the other way round. The perception of the existence or non-existence of judicial activism would partly depend on the ideology, beliefs and the background of the person you ask. It is also difficult, if not impossible, to tear the case away from its political and social setting. If we start from the premise that a judge is homo politicus and that he/she does not decide a case in a vacuum, every case is bound to carry a policy, social and political message.
Defining and determining cases of judicial passivism is equally problematic. Despite the fact that one might semantically consider judicial passivism as the opposite of judicial activism, this text will argue that judicial passivism is just a subgroup of judicial activism. In this regard, a self-standing definition of judicial passivism would apply to cases where the CJEU is consciously (actively) not using its powers where it should, and thereby sending a message to EU institutions, its Member States and other political actors in the EU. This phenomenon can happen in one of the two following ways. First, “judicial passivism in its narrow sense” would refer to cases in which the Court chooses not to decide on the issue by declaring that it lacks jurisdiction. In other words, by identifying a certain situation as falling outside the scope of EU law, the CJEU is not addressing the substance of a given case and is actively choosing not to act. Second, “judicial passivism in the extensive sense” would also encompass situations where the Court is using its judicial (e.g. interpretative) role, but it does so in a manner which deviates from the teleological interpretation to which the Court has accustomed us over the past decades of its adjudication. Significantly, judicial passivism in both its narrow and its extensive sense can be understood as the flipside of judicial activism – as the Court’s conscious decision not to decide or to decide in a strict, formalistic way.
The phenomenon of judicial passivism will be discussed by looking at recent judgments of the CJEU in the area of migration and asylum: the judgments on the EU-Turkey Statement, the judgment on humanitarian visas in X & X, and the judgments on the Western Balkans route in A.S. and Jafari. These judgments encourage us to reassess the role of the Court for the future course of EU integration and evolution of EU law, in general, and for EU migration and asylum law, in particular. They open up the question of the Court’s role and responsibility in the context of the past years of the refugee influx into Europe and in terms of the consequent legal and policy developments.
Judicial Passivism in the Narrow Sense
There are strong arguments to view the judgments of the General Court on the legality the EU-Turkey Statement as examples of judicial passivism in its narrow sense. When asked to review the legality of the EU-Turkey Statement – in three cases initiated by two Pakistani nationals and an Afghan national who feared being returned from Greece to Turkey if their asylum applications were rejected by the Greek authorities – the General Court declared that it lacked jurisdiction to hear and determine the cases and, accordingly, dismissed them. In its judgments, the General Court accepted the arguments put forward by the EU institutions, which claimed that they were not the authors of the Statement, but that it was a measure concluded by the EU Member States. The Court, therefore, ascertained that the EU-Turkey Statement was not adopted by the European Council, but by the Heads of State or Government of the EU Member States, as actors of international law, and the Turkish Prime Minister. Therefore, the Court concluded that the EU-Turkey Statement could not be considered to be an act of an EU institution pursuant to Art. 263 TFEU. Having said this, the Court declared that it lacked jurisdiction to review the Statement’s legality and decided not to rule on the issue whether it was a political statement (as suggested by the European Council, the Council and the Commission) or an agreement producing binding legal effects.
This text will not enter a discussion of the EU-Turkey Statement (for a discussion related to this, see my chapter on Human Rights and Legitimacy in the Implementation of EU Asylum and Migration Law here – or of the arguments put forward by the General Court to support its finding that the EU-Turkey Statement is not an EU act. This would require much more space, and a considerable amount of ink has already been spilled on this (see e.g. here). This text starts from the premise that there is room for a different reading of the EU-Turkey Statement (from the one given by the General Court), supporting the view that the EU-Turkey Statement should be considered as an EU act. One of the strong arguments in favour of such a reading is the ERTA doctrine which establishes the rule that once the EU implements a common policy in a certain field, the EU Member States no longer have the right “to undertake obligations with third countries which affect those rules or alter their scope” (e.g. see the discussion here. By failing to fulfil its judicial function of reviewing the legality of the EU-Turkey Statement, according to Art. 263 TFEU, the General Court has actively chosen not to decide on the substance of the cases. In this sense, the judgments on the EU-Turkey Statement can be viewed as an example of judicial passivism, which could have far-reaching effects both for EU migration and asylum law and for the future development of EU law in general. The Court’s conscious decision not to decide enables the EU-Turkey Statement to endure and for similar agreements to be concluded with third countries outside the scope of EU law and exempt from the judicial review of the CJEU. In this sense, the Court’s behaviour could be explained as its desire to accommodate itself to political reality and the Member States’ intentions, without having to rule on their compliance with EU law. However, it is doubtful that avoiding to scrutinise the EU-Turkey Statement can or should be reconciled with the judicial function. Giving a carte blanche to the EU institutions and Member States not only sends the wrong message that it is alright to have your cake and eat it, but also ties the Court’s hands to rule on similar agreements in the future. It is hard to conceive that the Court of Justice – in the appeal procedure it will have to deal with in this case – will endorse the stance taken by the General Court and reduce its institutional powers by excluding a whole category of cases from its jurisdiction and influence.
There are views that the Grand Chamber’s judgment on humanitarian visas in X & X represents another example of the Court’s passivism in the narrow sense, i.e. that the Court should have decided that the case was governed by EU law, but it remained passive. The case concerned a Syrian couple and their three minor children, living in Aleppo, who submitted applications for visas with limited territorial validity on the basis of Article 25(1)(a) of the Visa Code, at the Belgian Embassy in Beirut. They stated that the purpose of humanitarian visas would be to enable them to reach Belgium and apply for asylum there. They stressed the precarious security situation in Syria and pointed out that, as Orthodox Christians, they were at risk of persecution on account of their religious beliefs. They also emphasized that they could not register as refugees in Lebanon and were therefore forced to return to Syria.
In this case the Court was asked to rule whether the term “international obligations” contained in Article 25(1)(a) of the Visa Code covers the rights guaranteed by the Charter – in particular its Article 4 (prohibiting torture and inhuman and degrading treatment) and Article 18 (on the right to asylum) – and whether it also covers obligations binding Member States in the light of ECHR and the Geneva Convention. In case of a positive answer, in its second question, the referring court wanted to know whether a Member State to which an application for a humanitarian visa with limited territorial validity has been made is required to issue the visa, where a risk of infringement of Article 4 and/or 18 of the Charter is established.
The crux of the case – for the purpose of the discussion on judicial passivism – is that the Court did not answer the questions. It noted that the Visa Code establishes procedures and conditions for issuing visas not exceeding 90 days in any 180-day period. The Court then ascertained that the Syrian family applied for humanitarian visas with a view to applying for asylum in Belgium and to being granted a residence permit with a period of validity not limited to 90 days. It therefore concluded that such applications fall outside the scope of the Visa Code and solely within the scope of national law. Consequently, the Court determined that the situation was not governed by EU law and that the provisions of the Charter did not apply.
However – in the context of the discussion on judicial passivism – the judgment in X & X significantly differs from the judgments on the EU-Turkey Statement. As pointed out previously, in the judgments on the EU-Turkey Statement, the Court took a formalistic approach when arguing that the situation fell outside the scope of EU law. This judgment was not based on the nature and the effects of the Statement, but on the (EU institutions’) view that the signatories of the Statement were not EU institutions, but its Member States. Having stated that the EU-Turkey Statement was not an EU act, the Court ascertained that it lacked jurisdiction to rule on the question.
On the other hand, in X & X, the Court cannot be accused of refraining from the discussion of the object and purpose of X & X’s applications, the Visa Code and EU asylum law in general. The Court examined the (in)applicability of the Visa Code on the applications for humanitarian visas made by the Syrian family, and it did this in a non-formalistic, teleological manner. The Grand Chamber made an effort to argue that classifying the applications in question as applications for humanitarian visas, pursuant to Article 25(1)(a) of the Visa Code, would be contrary to EU law on several levels. First, such a classification would be opposed to the objective of the Visa Code, as stated both in the Code itself (see para. 41 of the case) and in the TFEU (see para. 40 of the case). Second, deciding that the applications of the Syrian family are covered by Article 25 of the Visa Code would be contrary to Article 79(2)(a) TFEU. Finally, it would be contrary to the general structure of EU asylum law, in particular Articles 1 and 3 the Dublin Regulation and Article 3(1) and (2) of the Asylum Procedures Directive (see the ruling’s para. 49). In other words, in the Court’s view, the purpose of the applications was contrary to the purpose of the Visa Code (see para. 47 of the case). Consequently, the CJEU concluded the Visa Code did not apply to the situations and nor did any other EU law instrument. There are divergent views as to the correctness of the Court’s logic (for a different approach see AG Mengozzi’s Opinion). However, no matter which stance one takes, it is evident that, by its judgment in X & X, the Court sends a message to the EU legislators that an opposite conclusion would require legislative amendments of current EU asylum law.
Judicial Passivism in the Extensive Sense
The aim of the preceding discussion of the judgments on the legality of the EU-Turkey Statement and of the judgment in X & X was to explain judicial passivism in its narrow sense. On the other hand, an examination of the cases A.S. and Jafari in the following paragraphs serves as the starting point for the conceptualisation of judicial passivism in its extensive sense (for a detailed account of A.S. and Jafari, Mengesteab and the Western Balkans route, see here). As stated previously, an extensive understanding of judicial passivism would also encompass cases where the Court accepts to decide the case, but it does so in a formalist way, without taking into consideration the overall purpose and scheme of the relevant norms, the factual circumstances of the case and the intentions of the Member States, as the masters of the Treaties.
The judgments of the Grand Chamber of the Court of Justice in A.S. and Jafari are the Court’s reaction to the non-application of the Dublin state-of-first entry rule across the Western Balkans route. Between September 2015 and March 2016, more than 700,000 people passed along this route, which involved a voyage from the Middle East, across Turkey and Greece to FYROM, Serbia, Hungary, Croatia (upon the Hungarian closure of its border with Serbia), Slovenia and Austria, mostly ending up in Germany. Significantly, the Western Balkans route was both authorised and facilitated by the authorities of both the EU Member States and third countries on the route, which organised transportation along the track.
The cases A.S. and Jafari concerned a Syrian and two Afghan nationals respectively, who were taking the Western Balkans route in 2015/2016 and ended up in Slovenia and Austria respectively, where they applied for asylum. Slovenia and Austria refused to examine their asylum applications, taking the position that Croatia was responsible for the examination, as the state of first entry into the EU, not counting Greece which had been exempt from Dublin transfers due to systemic deficiencies in its asylum system. In its judgments, the Court of Justice ruled that the entries of A.S. and the Jafari sisters must be regarded as “irregular crossings” within the meaning of Art. 13(1) of the Dublin Regulation “irrespective of whether the crossing was tolerated or authorised in breach of the applicable rules or whether it was authorised on humanitarian grounds by way of derogation from the entry conditions generally imposed on third-country nationals” (para. 92 in Jafari). According to the Court, the fact that such a crossing took place in the context of the arrival of an unusually large number of third-country nationals could not affect the irregular character of the crossing (para. 93 in Jafari). The only instance where the responsibility of the state of irregular crossing could be precluded would be the case where Dublin transfers to that state could lead to a risk of inhuman and degrading treatment of the transferee, within the meaning of Article 4 of the Charter (para. 101 in Jafari). Even though the Court did not explicitly incriminate Croatia – by characterising the crossing of the Croatian border as irregular – it indirectly stated that Croatia was responsible for examining the asylum applications of A.S. and the Jafari sisters (paras. 74-76 in Jafari) and thereby implied that Croatia was responsible for examining the applications for international protection of the vast majority of the 700,000 persons crossing its borders during the 2015/2016 migration wave (apart from those who would fall under the preceding criteria for determining the responsible Member State, stipulated by Articles 8-12 of the Dublin Regulation).
Why can the judgments in A.S. and Jafari serve as an example of judicial passivism in its extensive sense? The Grand Chamber of the Court made a visible effort to discuss the substance of the cases and elaborated its judgments with many, often technical, details. Despite this, these judgments can be viewed as an example of a formalistic interpretation, which disregards, first, the overall purpose and scheme of the Dublin Regulation and EU asylum law, second, the factual circumstances on the Western Balkans route, and, third, the intentions of at least those EU Member States which took part in the organisation of the route. In this sense, the Court’s (unusual?) reluctance to show flexibility in its interpretation and to depart from the strict reading of the Dublin Regulation deviates from Recital 5 of the Regulation (as pointed out in AG Sharpston’s Opinion), which calls for the application of “objective, fair criteria both for the Member State and for the person concerned” when determining the Member State responsible for the examination of the asylum application. Second, the Court denies the inapplicability of the state-of-first-entry rule on the factual circumstances of a mass influx of persons across the Western Balkans route. Finally, when defining the term “irregular crossing” in relation to Article 13(1) of the Dublin Regulation, the Court disregards the fact that the route was both authorised and facilitated by the states on the route, including the EU Member States linked to the dispute, which challenges the applicability to the situation of the term “irregular crossing”.
All these arguments question the correctness and rectitude of the Court’s formalistic approach. In addition, even if we start from the premise that the Court’s literal interpretation of the Dublin Regulation is the correct one, its automatic presumption that the criterion of “irregular crossing” contained in Article 13(1) of the Dublin Regulation (i.e. the state-of-first-entry rule) is applicable to the case is rebuttable. As explained previously, A.S. and the Jafari sisters first entered the EU via Greece, so Greece was the state of first entry. However, Dublin transfers to Greece could not take place as of 2011, due to systemic deficiencies in its asylum system. However, as pointed out in AG Sharpston’s Opinion, there is nothing in Article 13(1) to suggest that “responsibility under that provision transfers to the second Member State of entry”. Similarly, AG Villalón in Abdullahi suggested that if the criterion of “irregular crossing” becomes exhausted, the following criteria contained in the Dublin Regulation have to be applied, and if none of the Member States can be designated based on these criteria, the responsible Member State would be the first one in which the asylum application was lodged, based on Article 3(2) of the Dublin Regulation.
However, it is no coincidence that on the same day as its judgments in A.S. and Jafari – 26 July 2017 – the Grand Chamber of the Court of Justice issued another important judgment in Mengesteab. Here, the Court limited the temporal effects of its judgments in A.S. and Jafari by declaring that a Dublin transfer cannot take place upon the expiry of the three-month period after the application for international protection has been lodged. According to the Court, that period starts to run before a formal asylum application has been lodged if a written document confirming the request for international protection has been received by the competent authority or if only the main information contained in such a document has reached the authority. In practical terms, this means that the three-month period has expired for all the migrants who crossed the Western Balkans route in 2015/2016 and that, consequently, Dublin transfers to Croatia are not possible for the vast majority of migrants who passed through Croatia on their way to Western European states, where they eventually applied for asylum.
The combination of the Court’s formalistic approach to the Dublin Regulation in A.S. and Jafari and its flexible interpretation of the three-month time limit in Mengesteab has a twofold effect. First, it sends the message to all EU Member States that they have to comply with the strict reading of the Dublin Regulation, regardless of the factual circumstances, and a message to the Member States as legislators that the application of the Dublin Regulation, as it now stands, leads to absurd and dangerous results in cases of mass influx. At the same time, it precludes any immediate, dangerous consequences of the rulings, by excluding their application for the majority of migrants who transited the Western Balkans route in 2015/2016, thereby indirectly recognising the humanitarian and political sensitivity of the cases. The Court’s ruling in Slovakia and Hungary v Council, decided on 6 September 2017, adds to the equation the principle of solidarity by confirming joint Member State responsibility for the mandatory relocation of the agreed quotas of asylum seekers from Greece and Italy. In this way, all four judgments can be viewed together as the Court’s attempt to strike the right balance between competing interests and responsibilities in the EU.
However, there is no doubt that the judgments in A.S. and Jafari will have a strong effect on the development of EU asylum law and on the future behaviour of EU Member States in the case of a new refugee influx: it is inconceivable that the EU Member States would again authorise and facilitate a new Western Balkans route in the case of a future refugee influx. It is also doubtful whether striking the right balance by delivering a “package of judgments” makes up for the shortcomings of individual judgments contained in that package.
The preceding text has aimed at defining and determining cases of “judicial passivism” in the area of EU migration and asylum law. The text puts forward the proposition that judicial passivism is a subgroup, or the flipside, of judicial activism. It is applicable to cases where the Court consciously decides not to use its judicial power where it should. The Court does this either by claiming that the case falls outside the scope of EU law and that it therefore lacks jurisdiction to decide on the substance of the case (“judicial passivism in the narrow sense”), or by deciding in a strict, formalistic way, without taking into consideration the overall purpose and scheme of the relevant norms, the factual circumstances of the case, and the intentions of the Member States (“judicial passivism in the extensive sense”). The CJEU’s judgments on the EU-Turkey Statement and on the Western Balkans route have served to illustrate judicial passivism in its narrow and extensive sense respectively. The discussion has shown that, whichever type of judicial passivism was at issue, such passivism is the result of a conscious (active) judicial decision and, therefore, sends a conscious message to EU institutions, Member States and other political actors. Most importantly, the effects of judicial passivism could be far-reaching, both in terms of the further development of EU migration and asylum law and in terms of the future behaviour of the EU institutions and its Member States.
*I am grateful to Professors Tamara Ćapeta and Philippe De Bruycker for their valuable comments on the text.
* These and other related issues will be addressed in the forthcoming final plenary session of the 2018 Odysseus Annual Conference, entitled “Towards “Judicial Passivism” in EU Migration and Asylum Law?”.