Opinion of Advocate General de la Tour in Joined Cases C, B (C‑704/20) and X (C‑39/21)
Alicja Słowik, Research Assistant, Centre for European Legal Studies (CEJE), University of Geneva
Photo credit: Abouttt, via Wikimedia commons
Finding a balance between a country’s right to manage its own legal processes and the need to protect rights granted by EU law has always been challenging for the European Court of Justice (ECJ or the Court). This challenge becomes particularly complex when fundamental rights are involved. How might the protection of fundamental EU rights impact national procedural rules? Can national rules restrict a judge’s ability to assess the legality of detaining a foreign national, or would this violate the fundamental right to liberty? Advocate General Jean Richard de la Tour recently issued an Opinion in the Joined cases Staatssecretaris van Justitie en Veiligheid v. C, B (C‑704/20, ‘Case C, B’) and X v. Staatssecretaris van Justitie en Veiligheid (C‑39/21, ‘Case X’). This opinion, concerning the automatic review of detention measures, offers valuable insights into these questions.
Legislative Context and Facts of the Joined Cases
These two cases involve the extent to which national judges can examine the legality of detaining third-country nationals. Under EU law, detention is permitted in limited circumstances for asylum seekers or migrants residing illegally within the EU. Articles 15 to 17 of the Return Directive, 8 to 11 of the Reception Conditions Directive and Article 28 of Dublin III Regulation establish the legal grounds and requirements for such detention. Judges use these provisions to evaluate the legality of detaining third-country nationals (TCNs).
The Netherlands governs the detention of foreign nationals through administrative law, which prevents courts from automatically reviewing the grounds for detention (ex officio). This means a judge cannot review a detention order unless the foreign national raises specific legal arguments. Furthermore, even if the judge finds the detention unlawful based on reasons not presented by the detained individual, they cannot order release. The Dutch Council of State (Raad van State) and the District Court in the Hague (Rechtbank Den Haag) referred preliminary questions to the ECJ. These questions addressed the compatibility of Dutch law with EU law, particularly concerning the right to an effective remedy and the right to liberty.
The first case, C and B, involved two TCNs. One individual was detained to gather information for his international protection application, while the other was detained to facilitate his transfer to Italy under the Dublin III Regulation. Both challenged their detention orders in the District Court, which ordered their release because the authorities failed to fulfill their duty of due diligence. This argument was not raised by the detainees themselves.
The Secretary of State appealed these release orders to the Council of State. The TCNs asserted that EU law obligated national courts to automatically examine the legality of detention. However, as previously stated, Dutch law prohibited such automatic review. Therefore, the Council of State sought clarification from the ECJ on interpreting Article 15(2) of the Return Directive and Article 9 of the Reception Conditions Directive in light of Article 6 of the Charter of Fundamental Rights of the EU (the Charter), which guarantees the right to liberty.
The second case, X, pertained to the Return Directive. A TCN was detained for reasons of public order. When the individual challenged the continued detention in the District Court, the judge questioned whether Dutch law, by prohibiting automatic review of detention, conflicted with EU law.
Opinion of the Advocate General
The Advocate General (AG) began by stating that a judge’s role in assessing the legality of an initial detention order or a continued detention order is largely the same (§68). Additionally, the AG noted that the relevant provisions of the Return Directive, Reception Conditions Directive, and Dublin III Regulation share common principles regarding a judge’s authority to evaluate the legality of detention (§68). Therefore, examining the compatibility of Dutch law with all three instruments jointly was appropriate.
The AG then summarized established rules regarding judicial oversight of detention orders. Notably, he emphasized that detention of a TCN by an administrative or judicial authority must be subject to judicial review (§70). The primary purpose of this judicial control is to protect TCNs from arbitrary deprivation of liberty (§72). However, the EU has not harmonized the extent of judicial control. Consequently, the principle of national procedural autonomy generally governs the specific methods of such control (§73). Nonetheless, national legislation defining the scope of judicial control must align with the principles of effectiveness and equivalence (§75).
When considering whether a national rule aligns with the principle of effectiveness, the AG briefly discussed the ‘procedural rule of reason test.’ Under this test, to determine whether a national procedural rule makes applying EU law ‘impossible’ or ’excessively difficult,’ judges must consider ’the role of that provision in the procedure, its conduct and its special features, viewed as a whole, before the various national bodies’ (see eg. XC and Others, C‑234/17, §49). This includes considering ’the protection of the rights of the defence, the principle of legal certainty and the proper conduct of the procedure’ (XC and Others, C‑234/17, §49).
However, this test was less relevant in these cases. The AG argued that if a procedural rule contradicts the right to an effective remedy, as enshrined in Article 47 of the Charter, the ’effectiveness requirement’ wouldn’t be met (§78). The core issue in these cases was whether a national rule forbidding the automatic review of detention conditions infringed upon the right to an effective judicial remedy.
The Court has previously held that the effectiveness principle ‘does not preclude a national provision which prevents national courts from raising of their own motion an issue as to whether the provisions of Community law have been infringed, where examination of that issue would oblige them to abandon the passive role assigned to them by going beyond the ambit of the dispute defined by the parties themselves’ (Van Schijndel, C-430/93 and C-431/93,§22). However, past cases on the automatic application of EU law have not directly addressed the right to liberty guaranteed by Article 6 of the Charter (§80).
Citing the Mahdi case (C-146/14 PPU), the AG reiterated that the Court, when assessing the legality of detention measures, ‘must be able to take into account both the facts stated and the evidence adduced by the administrative authority and any observations that may be submitted by the third-country national’ (Mahdi, §62). He then emphasized the crucial importance of the right to judicial protection in upholding the right to liberty (§86). Detention orders issued under the Return Directive, Reception Conditions Directive, or Dublin III Regulation must respect the principle of proportionality and the fundamental rights of the individuals involved (§87).
Delving into potential fundamental rights violations, the AG observed that limiting judicial review of detention measures restricts the fundamental right to a remedy, which should be examined under Article 52 of the Charter. He stressed that if a judge cannot release a person even after determining their detention is unlawful, the very essence of the right to an effective remedy and protection against arbitrary detention is compromised (§91).
Preventing a judge from considering all relevant aspects of detention legality could lead to individuals being detained even when the conditions for detention are not (or are no longer) met (§92). This is unacceptable, as Article 15(2) of the Return Directive and Article 9(3) of the Reception Conditions Directive explicitly state that an individual must be released immediately if their detention is unlawful. Therefore, release should be the immediate consequence of finding the detention unlawful (§92).
The AG reiterated the significance of the right to liberty, emphasizing that national procedural rules should not allow doubts regarding the lawfulness of detention to linger (§95). In essence, the court reviewing a detention order must ensure adherence to general and abstract rules governing the conditions and procedures of detention. Limiting a judge’s ability to consider issues and arguments not raised by the parties undermines the effectiveness principle. Thus, Dutch legislation conflicts with Article 15 of the Return Directive, Article 9 of the Reception Conditions Directive, and Article 28 of the Dublin III Regulation, read in conjunction with Articles 6 and 47 of the Charter.
Comments
AG de la Tour’s Opinion is noteworthy for several reasons. Most importantly, these joined cases could mark the first time the Court directly rules on the obligation to automatically apply EU law in cases involving the detention of TCNs. If the Grand Chamber adopts the AG’s proposed solution, the judgment will further exemplify the growing influence of EU law on shaping national procedural rules in the field of migration (I). Additionally, the Opinion illuminates the potential for EU fundamental rights to play a key role in limiting national procedural autonomy (II).
Mandatory Automatic Review of Detention: A Sign of a ‘Progressive Revolution’ in the ECJ’s Approach to National Procedural Rules?
The AG emphasized the unprecedented nature of the subject matter at hand. This is the first time the Court will address the obligation to apply EU law automatically in a case involving the fundamental right to liberty (§1 and §80). As previously mentioned, the Court has generally held that national courts are not obligated to raise points of EU law on their own initiative. However, exceptions exist, for instance, in consumer law (see eg. case Mostaza Claro, C-168/05). The AG proposed that in cases concerning the fundamental right to liberty, the judge must automatically assess all aspects of detention, creating a new exception to the rule against the mandatory application of EU law ex officio. Importantly, the AG referred to an obligation, not merely a possibility, for national judges to review the legality of detention on grounds other than those raised by the parties. This represents a more substantial interference with national procedural rules.
Creating positive obligations and directly intervening in national procedures is relatively rare in the ECJ’s case law, although it has become more common recently, particularly in migration and asylum law. One example is the Országos case (C‑924/19 PPU and C‑925/19 PPU), in which the Court stated that national judges must consider themselves competent to examine detention measures decided by administrative bodies, even if national law didn’t grant them that power. The Court’s reasoning in that judgment relied heavily on the right to an effective remedy enshrined in Article 47 of the Charter and the relevant provisions of secondary law (Article 15 of the Return Directive and Article 9 of the Reception Conditions Directive 2013/33).
Notably, this trend of emphasizing the right to an effective remedy in protecting migrants’ procedural rights extends beyond detention cases to other areas of EU migration law. In the relatively recent case of H. A. v État belge (C‑194/19), which concerned the scope of the right to a judicial remedy under the Dublin III Regulation, the Court ruled that national judges, when assessing the legality of a transfer decision, must be able to consider circumstances that arose after the decision was made. Similarly, these findings stemmed from a broad interpretation of the right to an effective remedy and a limited application of the national procedural autonomy doctrine.
Previously, in a case concerning the Visa Code, the Court relied on the potential of Article 47 of the Charter to interpret the provision on the right to appeal a visa refusal (Article 32(3)) as requiring a judicial (not just administrative) remedy (El Hassani, C‑403/16). Thus, Article 47 of the Charter has been used on several occasions to uncover the ‘creationist’ side of the principle of effective judicial protection, allowing the Court to adjust or establish new remedies for protecting rights guaranteed by EU law.
Given that the Court has previously directly granted national judges the power to review the legality of detention (Országos), requiring them to raise points of EU law on their own initiative would not be a radical departure from the Court’s case law on national procedural rules. However, the cumulative effect of case law on procedural rights and obligations marks a significant step towards stronger fundamental rights protection, potentially leading to a shift in the Court’s approach to the national procedural autonomy doctrine.
The Importance of Protecting Fundamental Rights: Limiting National Procedural Autonomy in EU Migration Law
The principles of equivalence and effectiveness have traditionally limited national procedural autonomy. These were later supplemented by the principle of effective judicial protection, now enshrined in Article 47 of the Charter. Some argue that analyzing compliance with Article 47 of the Charter was intended to replace the ’traditional test’ of effectiveness. However, this Opinion doesn’t clarify the ambiguous relationship between effectiveness and effective judicial protection. The AG’s analysis of the compatibility of national legislation with EU law starts with the principle of national procedural autonomy, effectiveness, and the ‘procedural rule of reason test.’ However, the focus quickly shifts to how the legislation might affect the protection of the fundamental right to liberty and the right to a judicial remedy. Ultimately, the analysis based on fundamental rights takes precedence over the ‘procedural rule of reason test.’ While Article 47 serves as a natural benchmark for assessing the compatibility of national procedural rules with EU law, the AG’s heavy reliance on the fundamental right to liberty reflects a new trend.
At the outset of his Opinion, AG de la Tour highlighted that the importance of the right to liberty and the vital role judges play in its protection justify a certain distrust (‘une certaine méfiance’) toward national procedural rules that limit judges’ powers (§1). The AG’s reasoning is clearly shaped by a concern for safeguarding the fundamental right to liberty (see in particular §86 and following).
The AG frequently refers to Article 6 of the Charter and secondary law provisions concerning detention conditions. The inherent connection between effective access to a judge and adequate protection against arbitrary detention calls for a more rigorous approach to national procedural rules. The crucial role of the right to a remedy in protecting the fundamental right to liberty justifies requiring national judges to examine compliance with all detention conditions on their own initiative.
This Opinion demonstrates how concerns about safeguarding fundamental rights can significantly impact the boundaries of national procedural autonomy. It’s conceivable that in the future, the Court will provide less leeway for applying national procedural rules when the protection of EU fundamental rights is at stake. This stricter approach to national rules has been evident in some previous case law. In the aforementioned Mahdi and Országos cases, expanding national judges’ powers primarily served to protect the fundamental right to an effective remedy and the right to liberty. However, in those cases, the Court relied heavily on secondary law sources, with only minimal references to Article 6 of the Charter. In contrast, Article 6, along with Article 47 of the Charter, formed the very foundation of the AG’s analysis in this Opinion. It confirms that the shrinking scope of national procedural autonomy may result not only from the broad reach of Article 47 of the Charter but also from the need to safeguard substantive fundamental rights, such as the right to liberty.
Finally, it is worth noting that, as the Council of State accurately pointed out (§39), the European Court of Human Rights (ECtHR) has not previously mandated the automatic review of the conditions for lawful detention. If the Court follows the AG’s proposed solution, the standard of protection for the fundamental right to liberty and the right to an effective remedy under the EU legal framework will arguably be higher than that guaranteed by the European Convention on Human Rights. In this regard, these joined cases could become another example of a judgment where the ECJ did not hesitate to go further than the ECtHR in protecting migrants’ fundamental freedoms..
It will be interesting to see whether the Grand Chamber’s judgment in C, B, and X, like the AG’s Opinion, will prioritize safeguarding fundamental rights and whether this approach will result in a more stringent review of national procedural rules. If the ECJ imposes a new duty on national judges, the judgment will solidify the trend in recent case law of requiring adjustments to national procedural rules to protect fundamental rights. Regardless of the judgment’s outcome, AG de la Tour’s Opinion confirms that Article 47 of the Charter has become a powerful tool for enhancing effective judicial protection, particularly when invoked to ensure respect for substantive fundamental rights.