Sunday, 30 October 2016

Human & humanitarian smugglers: Europe’s scapegoat in the ‘refugee crisis’

Rachel Landry, Fellow for Refugee Policy, Center on National Security, Fordham Law School 

In the middle of one night in January 2016, Salam Aldeen received what had now become a routine call regarding boats in distress off of the coast of Greece. Since co-founding Team Humanity, a volunteer rescue organisation, in September 2015, Aldeen had responded to distress calls from approximately 200 boats with a total of approximately 10,000 refugees on board. As per protocol, Aldeen informed the Greek coast guard that he was going out in search of the boats. Yet on this particular evening, Aldeen and the four other volunteer lifeguards with him never reached the refugees in need of rescue.

When a military ship came threateningly close to their rescue boat, they altered course and headed back to shore. Before they reached land, two military vessels and the Greek coast guard surrounded them, ultimately arresting them and confiscating their boat. Their alleged crime: human smuggling. Their actions: attempting to fulfil the widely acknowledged duty to rescue at sea. Aldeen was released from prison after paying a significant fee, but is unable to leave Greece and is required to check in weekly with the Greek authorities. He awaits trial and faces up to ten years in prison.

The arrest of Aldeen and the four volunteers is far from unique. Deeply entangled within the EU’s robust fight against human smuggling in the current ‘refugee crisis’ is the threat of criminalisation of a range of humanitarian acts, which should not be punished but rather praised. The European Commission (EC) has rhetorically acknowledged the importance of ‘avoiding risks of criminalisation of those who provide humanitarian assistance to migrants in distress’, yet the actions of individual Member States suggest otherwise.

The EC is scheduled to release a proposal by the end of 2016 to ‘improve the existing EU legal framework to tackle migrant smuggling’. As such, it has been reviewing Council Directive 2002/90/EC of 28 November 2002 defining the facilitation of unauthorised entry, transit and residence (Facilitation Directive), legislation that governs human smuggling in addition to other acts facilitating the transit and stay of irregular migrants. Given the much-needed review of the Facilitation Directive and the current strategy to combat abhorrent and ‘humanitarian’ acts of smuggling alike, it is a critical moment to reflect upon the moral quality and complexities of human smuggling.

I offer five observations as a preliminary framework for considering the deficiencies in the Facilitation Directive and where the boundary between blameworthy acts of smuggling and blameless acts of ‘humanitarian smuggling’ should be drawn. These observations stem from my recently published research through the Refugee Studies Centre, The ‘humanitarian smuggling’ of refugees: Criminal offence or moral obligation?

       1. Combatting human smuggling and all humanitarian acts construed as such are in service of the larger goals of deterring and securitising irregular migration.

The EU is employing all possible tactics to deter refugees and migrants from attempting to reach its Member States’ shores – from the United Nations Security Council Resolution permitting EU security forces to intercept vessels suspected of human smuggling off the coast of Libya, to the deployment of NATO warships in the Aegean Sea, to the EU-Turkey deal to send those arriving irregularly back to Turkey. These policies of deterrence and securitisation are neither ad hoc nor unprecedented. Rather, they are integral to EU law governing irregular migrants and those who assist them.

Notably, the Facilitation Directive is first and foremost concerned with deterring irregular migration. As the first paragraph of the Directive states: ‘[o]ne of the objectives of the European Union is the gradual creation of an area of freedom, security, and justice, which means, inter alia, that illegal immigration must be combatted’. Prohibiting the facilitation of irregular entry is merely one means to combat irregular migration. As Spena argues, ‘[p]aradoxical as it may seem, in the Facilitation Directive’s approach, smuggling, as a form of facilitation, is only wrongful in an ancillary way, as if it was only a form of complicity in the real wrong which is the wrong of irregular migration’. The focus on deterring irregular migration produces a disregard for the smuggled migrants themselves, highlighted by the fact that the Directive does not define its relationship to international human rights or refugee law.

     2. The Facilitation Directive, as transposed into national law, permits the criminalisation of genuinely humanitarian acts.  

The infringements set out in the Facilitation Directive mirror its expansive intent to sanction, most regularly through criminal law, a wide range of activities that may support irregular migration. Article 1.1.a stipulates that Member States:

shall adopt appropriate sanctions on: any person who intentionally assists a person who is not a national of a Member State to enter, or transit across, the territory of a Member State in breach of the laws of the State concerned on the entry or transit of aliens.  

Article 1.2 includes an optional ‘humanitarian clause’, which applies only to Article 1.1a such that ‘[a]ny Member State may decide not to impose sanctions...where the aim of the behaviour is to provide humanitarian assistance to the person concerned’.

The majority of Member States have transposed Article 1.1a expansively, permitting the criminalisation of a broad range of individuals facilitating irregular entry – from members of smuggling rings putting refugees in deliberate danger to volunteers rescuing refugees in peril at sea. The optional humanitarian exemption ultimately permits the criminalisation of what seems to be a limitless spectrum of activity at the national level, failing to enable subjects to orientate their behaviour accordingly and even prohibiting ethically defensible, if not praiseworthy, acts like those of Aldeen. According to a 2014 report by the Fundamental Rights Agency, the optional ‘humanitarian clause’ has been explicitly transposed in a variety of forms at the national level in only eight Member States.

        3. The historic example of the rescue of the Danish Jews during World War II clearly illustrates, with the benefit of hindsight, the moral necessity and praiseworthiness of certain acts of smuggling.

The current ‘refugee crisis’ is regularly referred to as the largest crisis since World War II. Equally, international cooperation to resettle refugees in the aftermath of WWII is frequently invoked as a response that should be emulated today. Less frequently invoked, however, are those ‘humanitarian smugglers’ – known today simply as heroes - who rescued Jews from persecution long before the international community stepped in.

In 1943, 95% of the Jewish population in Denmark was able to escape deportation to concentration camps, in large part due to the collective action of fellow citizens and the Danish resistance movement. When the Nazi regime formalised the order to deport Danish Jews to concentration camps in September 1943, within two weeks Danes mobilised to successfully smuggle more than 7,200 Danish Jews and 680 non-Jewish family members to safety in Sweden, predominantly by way of Danish fishermen.

Those individuals who effectively evacuated almost the entire Jewish population out of Denmark not only made an assessment of the likely consequences and certainty of the impending harm for the Danish Jews if they did not act, but also accepted significant risks to their own lives as a result of their actions. If caught by the Nazis, those who aided and abetted Jews faced criminalisation and even possibly execution. The heroic rescue of the Danish Jews from impending deportation to concentration camp is but one reminder of the historical continuity, praiseworthiness, and unfortunate necessity of ‘humanitarian smuggling’.

     4. The drafters of the 1951 Convention Relating to the Status of Refugees (Refugee Convention) considered including a safeguard against penalisation for individuals assisting refugees to cross borders irregularly on humanitarian grounds.

Under certain circumstances, Article 31 of the Refugee Convention provides that presumptive refugees may cross borders irregularly and nevertheless be exempt from punishment. The drafters recognised that given the unique and vulnerable predicament of refugees, a refugee may have no choice but to cross borders irregularly and should not be penalised for doing so.

In light of the expansive scope of the Facilitation Directive and the threatened criminalisation of humanitarians like Aldeen, it may come as a surprise that some of the drafters - in particular the Swiss government - recognised that safeguards should exist not only for refugees, but also their rescuers. According to the French representative, organisations assisting refugees to reach safety were engaging in ‘an obvious humanitarian duty’. The French government was nevertheless opposed to modifying the language of Article 31, fearing it would encourage refugee organisations to become ‘organisations for the illegal crossing of frontiers’. Similarly, the United States representative acknowledged that the failure to include a safeguard for those proving humanitarian assistance to refugees irregularly crossing borders might be ‘a possible oversight in the drafting of the article’. Yet, the United States government did not support including protections for those providing assistance.

There is, of course, no safeguard for ‘humanitarian smugglers’ in the Refugee Convention. Yet, there was a recognition that governments should not – and a false assumption that they would not - criminalise those assisting refugees for humanitarian reasons.  

     5. The November 2015 landmark Supreme Court of Canada case, R. v. Appulonappa, may set a legal precedent for a more narrowly drafted smuggling offence in the Facilitation Directive to decriminalise ‘humanitarian smugglers’.

The November 2015 Supreme Court of Canada (SCC) case, R v. Appulonappa, sets a legal precedent for a narrower smuggling prohibition. The SCC ruled that its law criminalising smuggling, S. 117 of the Immigration and Refugee Protection Act, was overbroad and should be ‘read down…as not applying to persons providing humanitarian aid to asylum-seekers or to asylum-seekers who provide each other mutual aid (including aid to family members)’. S. 117 is not dissimilar to Article 1.1 of the Facilitation Directive in that it theoretically criminalises anyone who facilitates irregular entry, regardless of motive or the means by which the act is carried out.

The SCC ruled that S. 117 exceeded its legislative intent of criminalising organised crime: ‘[a] broad punitive goal that would prosecute persons with no connection to and no furtherance of organised crime is not consistent with Parliament’s purpose’. Possible amendments to S. 117 may serve as a model for a more narrowly drafted prohibition that more accurately delineates between blameless and blameworthy acts of smuggling.


These five observations offer entry points into the moral complexities of human smuggling and the legal imperative of decriminalising humanitarian acts of the facilitation of irregular entry. Ultimately, if the EC intends to provide recommendations to amend the Facilitation Directive that reflect the need to avoid criminalising humanitarian assistance to irregular migrants, it will first need to more narrowly and clearly define acts of the facilitation of irregular entry worthy of criminalisation. The EC’s challenge lies with the fact that the primary purpose of the Facilitation Directive is to deter irregular migration and a narrower directive would ultimately undermine this objective.

In the current crisis, human smugglers – and all individuals deemed as such – have become Europe’s scapegoat. Targeting human smugglers worthy of criminalisation and those ‘humanitarian smugglers’ worthy of praise is Europe’s Band-Aid solution to a problem that can only be solved through safe and legal pathways for refugees to reach Europe.

Barnard & Peers: chapter 26
JHA4: chapter I:7

Photo credit: wikicommons Syrian and Iraqi refugees arrive from Turkey to Skala Sykamias, Lesbos island, Greece. Spanish volunteers (life rescue team - with yellow-red clothes) from "Proactiva open arms" help the refugees.

A Tale of Two Organs: Hate Speech Regulation in the European Context

Clotilde Pégorier, Lecturer in Law, University of Essex

The issue of hate speech regulation has again moved in recent years to the forefront of legal and political debate in Europe. To note that questions in this area are complex, and often generate diverging opinions as to the appropriate balance between legislation and the protection of rights, is no novelty. What is striking, however, is the marked difference in the tendencies of those “natural born twins” (Gabriel Toggenburg), the EU and the Council of Europe, in their respective approaches to hate speech. How might this be explained? And what, crucially, might be the wider legislative implications at European level?

The EU and the Fight Against Online Hate Speech

First, let us consider the EU’s efforts in this context, which might here be exemplified in relation to the battle against online hate speech. In response to the problem and threat of terrorism and radicalisation, and prompted in particular by the attack in Brussels on 22 March 2016, the EU decided to intensify its work on fighting hate speech – a campaign upon which they had embarked some eight years earlier with the adoption of the Council Framework Decision 2008/913/JHA on combating certain forms and expressions of racism and xenophobia by means of criminal law. As part of its security agenda for the period 2015-2020, the Commission presented, on 14 June 2016, a communication outlining action in seven specific areas where cooperation at EU level could effectively support Member States in preventing and countering radicalisation. Alert to the ever greater role played by the internet in the dissemination of views and ideologies, the European Commission took the step of consulting IT companies with the intention of creating legislation designed to inhibit the online spread of illegal content inciting violence.

In pursuing such an initiative, the Commission was, in fact, expanding upon longer-standing awareness of the importance of preventing the spread of hate speech via media forms. As Advocate General Yves Bot concluded in his Opinion from 5 May 2011 with respect to the cases C-244/10 and C-245/10:

Member states are to ensure that television broadcasts do not contain any incitement to hatred on grounds of race, sex, religion or nationality, must be interpreted as also prohibiting broadcasts which, in attempting to justify a group classify as a ‘terrorist’ organisation by the European Union, may create reactions of animosity or rejection between communities of different ethnic or cultural origin (para 93).

In May 2016, the European Commission had, moreover, already signed an online Code of Conduct on countering illegal hate speech online with four of the biggest internet companies – namely, Twitter, Facebook, YouTube and Microsoft. The code is not legally binding yet would appear to indicate a willingness on the part of the named IT companies to support the EU’s drive to prevent online hate – a willingness that owes in some measure, no doubt, to the protections supplied by Articles 12 to 14 of the e-Commerce Directive of 8 June 2000, commonly known as the ‘safe harbour’ provisions. According to Article 12, the provider of a service cannot be held liable for any information it transmits – including hate speech – as long as it: (a) does not initiate the transmission; (b) does not select the receiver of the transmission; and (c) does not select or modify the information contained in the transmission. Article 14 limits the liability of providers of “information society services” still further when such services consist only of the “storage of information” provided by a recipient of the services. This provision only applies where the provider does not control or have knowledge of the illegal activity or information; or having gained knowledge or awareness of such illegal activity expeditiously removes or disables the links to the activity.

However we speculate on the primary motives of the IT companies, of prime significance is that they are assisting the EU in its fight against online hate speech. The Code encourages social media companies to take quick action as soon as a valid notification of online hate speech has been received, e.g. by removing or disabling access. It also underlines that, in order to combat the spread of illegal hate speech, “it is essential to ensure that relevant national laws transposing the Council Framework Decision 2008/913/JHA are fully enforced by Member States in the online as well as the in the offline environment.” With the adoption of the Council Framework Decision, the EU considered that Member states were permitted to enact criminal sanctions against anyone:

publicly condoning, denying or grossly trivialising crimes of genocide, crimes against humanity and war crimes as defined in Articles 6, 7 and 8 of the Statute of the International Criminal Court, directed against a group of persons or a member of such a group defined by reference to race, colour, religion, descent or national or ethnic origin when the conduct is carried out in a manner likely to incite to violence or hatred against such a group or a member of such a group.

Reading such provisions takes us to the heart of one of the key dilemmas at the core of current debates on hate speech – namely, the definition and understanding of the concept itself. A brief excursus on this point seems warranted here. For the question of definition remains somewhat thorny – hate speech is a term that is, at once, both over- and underdetermined. As Anne Weber puts it in her Manual on Hate Speech for the Council of Europe in 2009:

No universally accepted definition of the term “hate speech” exists, despite its frequent usage. Though most States have adopted legislation banning expressions amounting to “hate speech”, definitions differ slightly when determining what is being banned.

This is undeniably true. Yet there are international and national sources that provide useful guidance. The Council of Europe’s Committee of Ministers’ Recommendation 97(20) on “Hate Speech” defined it as follows:

[T]he term “hate speech” shall be understood as covering all forms of expression which spread, incite, promote or justify racial hatred, xenophobia, anti-Semitism or other forms of hatred based on intolerance, including: intolerance expressed by aggressive nationalism and ethnocentrism, discrimination and hostility against minorities, migrants and people of immigrant origin.

Also relevant here are the provisions of Art. 20, para. 2 of the International Covenant on Civil and Political Rights (ICPPR) of 1966, which stipulate that “any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law.” An authoritative interpretation of Art. 20, para. 2 is supplied by General Comment No. 34 by the Human Rights Committee, which reads:

What distinguishes the acts addressed in article 20 from other acts that may also be subject to limitations, is that for the acts addressed in article 20, the Covenant indicates the specific response required from the State: their prohibition by law. It is only to this extent that article 20 may be considered as lex specialis with regard to article 19 [which establishes other limitations on freedom of expression]. The acts referred to in article 20, paragraph 2, must cumulatively (a) advocate, (b) be for purposes of national, racial or religious hatred, and, (c) constitute incitement to discrimination, hostility or violence. By “advocacy” is meant public forms of expression that are intended to elicit action or response. By “hatred” is meant intense emotions of opprobrium, enmity and detestation towards a target group. “Incitement” refers to the need for the advocacy to be likely to trigger imminent acts of discrimination, hostility or violence. It would be sufficient that the incitement relate to any one of the three outcomes: discrimination, hostility or violence (para. 51).

This interpretation provides perhaps the fullest, and most useful, elucidation of hate speech – one that does most to capture its particular power to harm. Read in conjunction with modern understandings of the potential of online media to contribute to the dissemination of political views, and to generate and spread ‘hatred’, it casts particularly sharp light, moreover, on how, by enlisting the support of IT companies, the EU is taking a progressive – and legitimate – stand in trying to confront modern hate speech in one of its most threatening forms. 

The Council of Europe: The Protection of Freedom of Expression Over the Fight against (Online) Hate Speech?

The situation is somewhat different, however, in the case of the other main European organ, the Council of Europe, which appears to be taking a much more cautious approach. A latest manifestation of this has been in the Perinçek case, for instance, where the European Court of Human Rights (ECtHR) decided, on 15 October 2015, that Switzerland’s criminalisation of Doğu Perinçek for genocide denial constituted a violation of Article 10 of the European Convention on Human Rights (ECHR). The Court finding here was that the restriction on freedom of expression imposed by the Swiss authorities was not proportionate.

This is but the latest sign of a divergence in the attitudes and response from two European organs to the issue of hate speech, reflecting a breach within Europe with regards to the status of hate speech in relation to freedom of expression, the latter itself a fundamental notion of both the ECHR and the Charter of Fundamental Rights of the European Union (Article 11).

The prevention and prohibition of online hate speech has been on the agenda of the Council of Europe since at least 2001, when the Convention on Cybercrime was adopted. In 2003, an Additional Protocol concerning the criminalisation of acts of a racist and xenophobic nature committed through computer systems was adopted. According to this Additional Protocol:

1. Each Party shall adopt such legislative measures as may be necessary to establish the following conduct as criminal offences under its domestic law, when committed intentionally and without right: distributing or otherwise making available, through a computer system to the public, material which denies, grossly minimises, approves or justifies acts constituting genocide or crimes against humanity, as defined by international law and recognised as such by final and binding decisions of the International Military Tribunal, established by the London Agreement of 8 August 1945, or of any other international court established by relevant international instruments and whose jurisdiction is recognised by that Party. […]

In June 2016, however, at the same time that the EU Code of Conduct was adopted, the Council of Europe Secretary General, concerned about internet censorship, decided that rules for blocking and removing illegal content must be transparent and proportionate. This opinion came after his report on the state of democracy, human rights and the rule of law, based on a study conducted by the Swiss Institute of Comparative Law and identifying a number of shortcomings in some states,  became public.

In the report, the Secretary General clearly stated that:

In the majority of member states, the legal framework on blocking, filtering and removal of Internet content meets the requirements of being prescribed by law, pursuing legitimate aims and being necessary in a democratic society, in accordance with Article 10 of the Convention. Exceptions remain however, notably with regard to laws regulating hate speech and counter-terrorism (p. 33).

In view of this, one can understand why the Grand Chamber of ECtHR decided in the Perinçek case that the Swiss criminal provision was disproportionate and did not fulfil the criteria of being necessary in a democratic society. Yet Art. 261bis of the Swiss penal code provides that ‘any person who publicly denigrates or discriminates against another or a group of persons on the grounds of their race, ethnic origin or religion in a manner that violates human dignity, whether verbally, in writing or pictorially, by using gestures, through acts of aggression or by other means, or any person who on any of these grounds denies, trivialises or seeks justification for genocide or other crimes against humanity, […] is liable to a custodial sentence not exceeding three years or to a monetary penalty’. It is difficult to see how a criminal law could be much more transparent or clearer here. The decision to uphold Perinçek’s claim to a violation of Art. 10 ECHR certainly delivered a blow to the fight against hate speech at the EU level – as was duly noted by judges Spielmann (president of the Grand Chamber), Casadevall, Berro, De Gaetano, Sicilianos, Silvis and Kūris, in their joint dissenting opinion:

With regard to the finding that there was no obligation on Switzerland to criminalise the applicant’s statements (see paragraphs 258-68), we confess to having serious doubts as to the relevance of the reasoning. Can it not be maintained, on the contrary, that a (regional) custom is gradually emerging through the practice of States, the European Union (Framework Decision 2008/913/JHA) or ECRI (Policy Recommendation no. 7)? We would also note that beyond Europe, the United Nations Committee on the Elimination of Racial Discrimination has repeatedly recommended criminalising negationist discourse. Can all these developments be disregarded at a stroke by examining the case in terms of an alleged conflict of obligations? (para 10)

It thus seems that the Council of Europe is taking a retrogressive step in the fight against hate speech – both offline and online – as the laws in place regulating hate speech do not appear to be in line with the ECHR. The approach of the Council also lies in opposition to that being taken by the EU, rendering the position of EU members difficult: should they criminalise online hate speech, or should they rather grant greater weight to Art. 10 ECHR? Indeed, what if Switzerland was an EU member? By criminalising genocide denial as a form of hate speech liable to incite violence, as it initially did in the Perinçek case, Switzerland complied with the Framework Council decision. In so doing, however, it contravened Art. 10 of the ECHR and was thus found guilty of a violation by the ECtHR.


The question of how to square the protection of freedom of expression with the imposition of criminal sanctions for hate speech is, doubtless, one which is difficult. Yet wherever one draws the line between acceptable and unacceptable limits on freedom of expression, it seems apparent that, at the European level, the EU and the Council of Europe should be working together much more coherently in attempting to confront the issue of online (and offline) hate speech.  

To this end, the Council of Europe should liaise more closely with the EU – not least as the Secretary General, in his 2016 report, commented that:

-In addition to calling on member states to implement in full the recommendations in this report, I urge them to make clear their commitment to the European Convention on Human Rights and the Strasbourg Court. Our Convention system can never be taken for granted: it depends on the active and constructive engagement of all governments. By embedding these fundamental freedoms into the legal, political and social fabric of their nations, Europe’s leaders can build democracies which are more open and inclusive and, as a result, more secure (p.5)

In order to facilitate a more consistent approach across Europe, it seems clear that the European Court of Human Rights itself has to be prepared to allow for greater restrictions to be placed on freedom of expression, precisely as noted by the judges in their dissenting opinion in the Perinçek case. As long as the Strasbourg Court continues to permit freedom of expression to be used as a catch-all defence, it will remain extremely difficult to combat online hate speech and to develop a common European standard. Two measures thus seem necessary. Firstly, a common understanding of what hate speech is and entails should be striven for – the interpretation supplied by General Comment No. 34 by the Human Rights Committee provides useful initial orientation, not least in the manner that it explicates key notions of ‘incitement’ and ‘hatred’, and in the way that it outlines the possible effects of hate speech beyond physical violence. Secondly, there needs to be common agreement on the way in which such forms threaten democratic values – how they violate ‘the respect of the rights or reputations of others’ and may imperil ‘national security’, ‘public order’, or ‘public health or morals’, and thus constitute a legitimate restriction on freedom of expression provisions.

Barnard & Peers: chapter 9
JHA4: chapter II:6

Photo credit: European Centre for Press and Media Freedom

Thursday, 27 October 2016

EU Judge Dehousse’s Farewell Address to the CJEU

Introduction by Professors Alemanno & Pech

Readers of this blog will find below the English translation of Judge Franklin Dehousse’s farewell address, which he had hoped to give on the occasion of his departure from the EU General Court last month having served on its bench since 7 October 2003.

In an apparent break with tradition, no public ceremony was organised for the departing EU judges, and an internal meeting was arranged instead (see this article published in Le Jeudi on 22 September 2016). While regrettable, this is perhaps not surprising. Indeed, Judge Dehousse has been among one of the most outspoken critics of the controversial reform of the EU’s court system, which is now encapsulated in Regulation 2015/2422 and Regulation 2016/1192 (and which we have ourselves critically analysed here and here).

Dehousse’s assessment and alternative recommendations are comprehensively set out in three meticulously researched papers, which he published during the course of his judicial term:

- The Reform of the EU Courts. The Need of a Management Approach, Egmont Paper 53, 2011, December 2011;
- The Reform of the EU Courts (II). Abandoning the Management Approach by Doubling the General Court, Egmont Paper 83, March 2016
- The Reform of the EU Courts (III). The Brilliant Alternative Approach of the European Court of Human Rights, Egmont Paper 86, September 2016

Readers may also find of interest his paper dedicated to the Unified Court on Patents, published in 2013 (Egmont Paper 60), which explores inter alia the impact of the creation of a new European patent court on the EU’s court system.

The address below, which Judge Dehousse kindly authorised us to publish on this blog, contains many valuable insights into the internal workings of the EU courts and, at times, the testing relationship between its (then) three constitutive judicial entities, particularly with respect to the controversial doubling in size of the General Court, and the recent dissolution of the Civil Service Tribunal. His address also offers some sound advice on how any structural reform of the EU’s court system ought to be conducted in the future. Last but not least, the address explains how the CJEU should seek to better manage and conduct itself, failing which its authority may be fatally undermined, with potential negative consequences on the legitimacy of the EU as a whole. As such, this farewell address undeniably deserves, in our view, to be made easily accessible to EU scholars and interested readers. It is our pleasure to share it with you via this blog.

Alberto Alemanno, Professor of Law, Jean Monnet Chair of EU Law and Risk Regulation at HEC Paris and Global Professor of Law, New York University School of Law (Twitter: @alemannoEU)

Laurent Pech, Professor of Law, Jean Monnet Chair of EU Public Law and Head of the Law and Politics Department at Middlesex University London (Twitter: @ProfPech)

Judge Dehousse’s Farewell Address to the Court of Justice of the European Union

Ladies and gentlemen,

Dear colleagues, 

To me, any holder of public office must always present a report at the end of her or his function. This seems all the more necessary than those years were sometimes fraught with conflict. It must be acknowledged honestly in an Institution whose mission is to ensure the transparency of all other Institutions.

When I arrived here 13 years ago, this office was my seventh profession and my fourth European Institution, after the Parliament, the Commission, and the Council. European affairs had been at the centre of my multiple activities, whether in the public or private sector, at the national or international level, in legal circles or in the media. I thus arrived with much curiosity and enthusiasm. To give away the plot at once, my curiosity has been steadily increasing over the years though, in many respects, my enthusiasm has been declining.

During the first three years, I built a good team, which is absolutely essential here. I learned what I ignored. And we eliminated a huge backlog: a stock of more than 100 cases initially. After that, I wondered how I could still help the Institution. Thanks to my previous experience, I could obviously assist other cabinets with backlog, which was done. After that, according to Adam Smith and Ricardo, I searched for my comparative advantage. Management, ICT, inter-institutional relations, and strategy seemed to be rather rare talents here. I thus invested in these domains.  

On one hand, my initiatives focused on the management of the General Court, then in big trouble. For me, having followed many corporate restructurings, this required first a better evaluation of the production of the cabinets, and its production units. Moreover, before asking for any additional means, it seemed essential for the credibility of the Institution to show that it had exhausted all internal sources of productivity. To this end, I harassed the authorities to establish the first serious statistics on the backlog and its causes. This included concepts such as the infamous “PPPU” (the “productivity per personnel unit”), or the threatening “delays columns” (adding all delays for all cases) (for more comments on this, see my first report TEPSA / Egmont in 2011). Originally, all this was not popular at all. Often after long and painful discussions, these measures were nevertheless taken, to the honour of my colleagues. In my humble opinion, they played a vital role in the elimination of the backlog since 2011 - and without any additional resources. 

On the other hand, my initiatives focused on the management of the Institution. There, almost immediately, the problems started. Quickly the local leaders saw my initiatives as interferences, and even usurpations. Without commenting on all the episodes of this long saga, four at least deserve a brief comment.

First, in 2007, just before the signing of the Treaty of Lisbon, some of us learned that the President of the Court had sent a letter to Council in order to ask for a series of changes, presented as essentially formal, in the new Lisbon Treaty. After reading, these changes on the contrary appeared quite essential. Basically, they aimed for a large substitution of the Court to the Institution in various provisions.

Everyone, of course, has personal sensitivities. Mine were certainly accentuated by my previous experiences in treaty revisions. For me, everything in this episode was shocking. These were not mere formal changes, but essential amendments. They did not result from any official position taken by the Court of Justice. They had no detailed motivation. There had been absolutely no official information within the Institution, to the public or to the Member States, though they remain the guardians of the treaties. And, finally, these provisions were not improving the adaptability of the Treaties. On the contrary, they would have imposed more treaty revisions in the future. This largely destroyed my trust in the Institution’s management.

Secondly, information technologies (IT) became another conflict zone. From the beginning, this Institution had seemed to suffer from a strong problem in this area. Like many other institutions I have known, it had decided IT development in silos, uncoordinated from one another. However, unlike many others, it had never corrected this defect. For years, I tried to convince the people in charge in the IT committee of the need for a more global system of management. Though some understood that, it was impossible. A senior collaborator of the Court’s President constantly imposed his personal vision, in defiance of all others. Consequently, the Institution went on implementing simultaneously different and uncoordinated strategies. For example, three different internal communication systems were developed, without any study of possible synergies between them. Later, three different reference systems were simultaneously used for the jurisprudence.

In the name of hierarchy, this nonsense was maintained for many years. The Institution had not even a general plan of its IT systems until 2010! The “leaders” needed a half IT-crash to begin to see the need of one. Though the present managers try now to improve the situation, the legacy costs are extremely heavy, and the system is hardly optimal. As all experimented users know, even the research in jurisprudence encounters substantial problems.

With some administration officials, we have tried to stop this drift. Finally, after many debates, in 2010, the IT committee imposed a comprehensive analysis of the existing system before any new spending. Alas, the cabinet of the Court’s President had simply the minutes of the committee modified, despite the formal opposition of the Court’s registrar. This was my second shock. The next decisions were simply moved to a clandestine meeting. Meanwhile, the IT committee was still defining its own strategy, until finally, the IT committee was simply abolished.

This saga still leaves me startled. The suppression of the committee because simplistic instructions from above are debated reflects a very limited sense of debate. To do this while IT becomes absolutely central for all activity reflects a great managerial myopia. Finally, the episode shows the sometimes surreal character of an Institution where judges have apparently time to think about the choice of works of art, but not of IT solutions.

Third came in 2011 the legislative proposal to create new judges to the Tribunal. Let’s make a long story short. From the beginning, my first objective was to defend, as required by the Treaties, an open and transparent process. However, the process degenerated. The transmission of various General Court’s positions to Parliament and Council was blocked. There was absolutely no impact assessment or consultation process. As the press revealed, an unauthorized negotiation took place with one government only, and without the knowledge of the 27 other Member States. Questionable pieces of information were sent to Parliament and Council in an unsigned document, undated and unnumbered. (One suspects that if these pieces were so trustworthy one would have found someone to sign them in an Institution of 2,000 people.) Other secret letters in the Institution’s name popped up in the press. To these problems one must still add a highly questionable ethical procedure opened against one of my colleagues who had provided accurate judicial statistics at the EP rapporteur’s request. All this leading to a manifestly disproportionate doubling of the General Court, against its own repeated analyses from 2010 to 2014.

Again, this saga still leaves me speechless. Although I have seen in my career dozens of legislative procedures, that I had never seen. These events have convinced me to publish accurate and documented reports, to avoid their repetition in the future. (See the two reports TEPSA / Egmont 2016).

Fourth came the curious accelerated creation of high administrative positions in the terminal phase of one President’s cabinet. Apart from other considerations, creating very quickly such a position, under the exclusive impulse of the Court’s President, to manage a service of four people, without any general analysis of the services’ organization, nor any written position from the Court’s registrar (who is also responsible for all outlays), and based on vague projects (of which almost none were implemented thereafter) seemed to me strongly below the standards of good administration.

Many other topics could be mentioned, such as the specialization of the General Court, or the assignment of cases within it, both imposed by external interventions (something incredible for a judge); or the ability of the Courts’ Presidents to take fundamental decisions for the external representation without any preliminary debate with members; the distribution of resources between the registries; the questionable nature of an external activity; the use of drivers; the rights of trade unions to inform the personnel about the legislative proposal; or the right of citizens to have access to administrative documents, etc.

In this context, I fully understand that one can legitimately ask the question: why devote so much importance, effort and energy to these administrative and legislative issues, often overlooked?

My answer is simple. Each time, it was impossible to do otherwise. I've thought very often about it, trust me, and the same conclusion always came back. Such episodes do not correspond, in any case for me, to the role and values assigned to that Institution by the Treaties. A judge does not have the sole mission to care about principles in her or his judgments; s/he must also worry about them in their own institution. This is the meaning of the texts. Basically, this Institution is a collegiate one. Also, when the Courts’ Presidents have powers (which no one disputes), they are required to use them respecting a series of established principles by their own jurisprudence: (1) good administration, (2) transparency, (3) motivation, (4) compliance with judicial independence, and (5) accountability to the colleagues who elect them. This must be said here very clearly: according to the existing texts, this Institution is based on the principle of checks and balances, cherished by Montesquieu, and not the Keizer Prinzip, so loved by Wilhelm II.

In addition, this also results from the spirit of the texts. Indeed, in this Institution, if the judges, who are the most independent and privileged, do not control the management, then who will? Finally, this is also the price of our credibility as members of this Institution, especially in a great period of doubt. Each time, I thus first sought compromises to defend these principles. They were always refused in the name of the principle of hierarchy, constantly invoked here, though it is both incorrect legally and inefficient in terms of management. Reluctantly, I have had to defend these principles otherwise.

My growing disillusionment explains the drafting of many memos on various topics in the Institution. They were elaborated with three goals: (1) to inform my colleagues and the personnel (essential in my Institution’s vision) about important and unexplained developments; (2) to impose as much as possible collective decisions, involving the responsibility of all judges; and (3) to leave behind me, and there appears my love of university and history, a description as detailed and documented as possible of the Institution’s management. I have wanted to do this not only for my court, but also for future analysts, and ultimately for European citizens, who are now rightly tired of the opacity of their Institutions. These documents form now, as you can see, two strong green books, amiably bound by a bunch of friendly colleagues.

Some locals have sometimes spoken of all this with disdain. We’ll see. We can note that, slowly, some local practices change. The judges whose collaborators are candidates for an appointment are now excluded from the selection process, even when they are presidents. This is surely an improvement. The simplification of the IT system is now an official objective. Article 52 of the Statute that requires an agreement between the Presidents of the two Courts about the administration has been suddenly rediscovered. An incredible appeal brought by the Court of Justice in front of itself to protect its financial interests has been withdrawn. There is in this Institution for the first time after 60 years a formal, detailed report, approved by the General Court, which covers the shortcomings and possible reforms of its governance. A reflection is slowly open on the weaknesses of the system of access to administrative documents. These changes prove already that with an open mind, we can easily do better.

And I leave this place with a smile at the thought that, as my memoranda cover essentially legislative and administrative issues, they are essentially accessible to citizens. As a lawyer, I wanted to build a complete file that illustrates in many ways the fundamental need to reform, for the first time since 1952, the governance of this institution during the next revision of the EU treaties. When you have a limited influence on the present, you can always at least prepare the future.

This was particularly necessary since the citizens’ access to the Institution’s legislative and administrative documents not related to judicial proceedings encounters serious difficulties. Article 15 TFEU guarantees that access, with exceptions of course, to citizens who request it. However, the Institution has at times resorted to secret documents in key areas (such as the revision of the Treaties and the Statute). It has even distributed on one occasion at least a key document secret, unsigned, and not listed. (Additionally, most members had no idea about these documents, and they discovered them only thereafter in other institutions or in the press.) In such circumstances, it is in fact impossible to ensure the proper application of Article 15 TFEU. Furthermore, one can occasionally question the qualification of "judicial affairs" given to certain documents in the courts’ minutes. (The definition of the Rules of procedure, for example, do not correspond to a judicial proceeding, but to a regulatory function.) In this context, I have sent, as a member of the Institution, 13 requests for information to the Institution’s leaders during the last months, with answers still to come. I hope they will also stimulate improvements.

Finally, before leaving, I must make a mea culpa. Over time, disappointment made me occasionally acerbic. To give only one example, one evening after a disappointing visit where we had heard once again lessons from the direction about how to think about our own reform, I dropped to many friends: “the genius of the Carpathians now seems to have found his genius of the carpets”. With exasperation, formulas easily come to me. On the one hand, in retrospect, I regret them. On the other, they constitute the inevitable consequence of the permanent rejection of any discussion. I can but ask for forgiveness. You must see there the reflection of the bitter stubbornness of a lawyer who had always defended a high ideal of this Institution in his multiple past roles, and who never accepted to abandon it once arrived here.

Ladies and gentlemen, dear colleagues, fortunately, my stay in this Institution was not monopolised by these conflicts. Besides these dark episodes, there were also luminous ones, especially at the judicial level.

However, I shan’t speak much about these activities. In this too, I have always defended a collective vision. In this framework, one must try to listen to various opinions, and find the necessary compromises. Ironically, I was even reproached, occasionally, for being too flexible. With this modest approach, I have been happy to contribute to the jurisprudence of this Institution, which I have always defended with conviction during the whole period.

In the early years, I was also pleased to discover a General Court (then CFI) which, at the time, was making important and appreciated contributions to European law, that were seriously debated inside and outside. A court which, at the time, enjoyed an extremely strong external representation, as strong as the Court of Justice’s. A General Court which, at the time, was not afraid of taking clear institutional positions and especially was not afraid to defend them whenever necessary.

The passage of time has allowed us, me and others, to measure even better the debt we had for this to Bo Vesterdorf, the President at the time, and beyond, to Jose Luis da Cruz Vilaca, the founding President. These men had great ambitions for their Court. They represented it brilliantly outside thanks to many high-level conferences and publications. And finally, they shared complete integrity with their colleagues. I wanted to tell them today my great friendship and respect.

My team has produced very good judicial results, both quantitative (many closed cases) and qualitative (very few contests thereafter). Nevertheless, I have been mainly an orchestra director. These very good results were possible only thanks to the contribution of many people.

First, the members of my cabinet, without which very little would have been possible. They know my esteem, and even my great friendship for them. But this is not the place to expand on this.

Second, the personnel of the other cabinets. I have forged with them many relationships of sympathy and even trust. They have sometimes discreetly encouraged me. I have been touched by this support, especially in difficult times. Whenever necessary, I tried to defend the qualified persons (but not necessarily the others), to provide them with the required IT tools, and to put an end to the long uncertainty over their future in which they are maintained.

Third, the registry personnel. It comprehends general highly qualified persons, well led by two successive, and very talented, registrars. The registry’s personnel rendered many services to us. On my side, I always defended its staff needs, its IT needs (this provoked occasionally some kind of administrative Vietnam), its role as a full actor in procedural decisions, and finally its need for serious judges’ attention. This is an essential synergy, still too little analyzed.

Fourth, the Institution’s administrative services. They also comprise in general highly qualified persons, and they do not always work in easy conditions. We must have the courage to recognize that too often here the administrative personnel are first considered as an adjustment factor for the judges’ comfort. Let us remember the very symbolic story of my colleague and friend Irena Wiszniewska on the day of her arrival when someone told her, “you are a judge, so you can do anything”. Furthermore, local leaders pay much attention here to the high appointments (they make too many of them, and too often eugenic). However, they are less interested in the living conditions of the rest of the machine. Whenever necessary, I have tried to fight this tendency too, though this was far from being popular.

Fifth and last, I must acknowledge my great debt to my colleagues of the General Court. Dear colleagues, all these years, you have been drowned in memoranda and interventions on multiple issues (often administrative and legislative, but not exclusively). This transparent and participatory management did not correspond at all to the local genre. In fact, it was its complete opposite. Yet you have quickly tolerated this and even very often supported its administrative and legislative conclusions.

One of us said to me one day, and I suspect it reflects a prevailing sentiment, “You are a necessary evil”. To be honest, this is not the formula that I should have preferred. Nevertheless, on the whole, it is better to be seen as a necessary evil than as a decorative invertebrate.

Today, I leave this place with satisfaction. Our court benefits from strong results, accurate statistics, a productive observatory, a position on the future of the EU judicial system, another one on the future of the Institution’s governance, detailed analyses on the imperatives of intelligent legislative reform, a new streamlined organization, many IT advances, greater transparency in the allocation of cases, better awareness of the limits of external activities, and a detailed strategy for the registry in a new court. Future observers will have all necessary documents to determine where most of these changes came from. In any case, this would not have been possible without your individual and collective involvement.

Unlike many, it is our plenary deliberations that I shall miss the most. Although they were often long and sometimes difficult, they taught me immensely, and I cannot thank you enough for that. I tried to prepare them systematically. In fact, one of my great corridor neighbours accused me ritually of spending too much time in the office of my colleagues. To that I always replied, “I’m not like you, I do not hate my colleagues, and I even love them”. And that’s true. Beyond the individual characteristics of your personalities, you represent the diversity of Europe, which has always been one of the great charms of my life.

At this hour, I would like to express one hope. During the past year, the management of this Institution has seen some improvements. However, problems remain. Above all, the Institution’s governance system remains out-dated, obscure, and devoid of sufficient controls. So I hope that others will continue to take initiatives in these multiple domains.

My grandfather, Fernand Dehousse, who provided my education, taught me a great lesson. He was in another era the first rapporteur of the first European Parliament on the first draft European Constitution. During the war, due to his previous writings, the Nazis forbade him from all professional activities. For four long years, he remained home, starved and wrote numerous tracts and documents (some of them advocating the integration of Europe). He always told me, “an idea never dies so long as it finds one defender”. Today, I’d like to convey the same lesson.

There are many beautiful ideas in our European Treaties, even if this is less understood today. One of the most beautiful is precisely our Institution. However, the European Treaties have not created the Court; they have created the Court of Justice. The Court is not, contrary to a popular local illusion, a value in itself. It is only the instrument of a value - justice. Judges are not above the law, or next to the law. They are, more modestly, its first servant. This must always be remembered, especially in a place when an official says on arrival, “you are a judge, you can do anything”.

Especially, when judges hold exorbitant powers - as here – their legitimacy exists only if they impose on themselves the same constraints that they impose on others. Nothing is worse than a judge who ends up taking him(her)self for justice, except the same, when exercising administrative and legislative powers. Indeed, then, whatever his/her title and technical capabilities, such a judge becomes a subversion of the separation of powers.

Consequently, I hope that in the future, whenever necessary, some of you will go on defending my fundamental concern during this whole period. According to the European Treaties, it is judges who are the servants of justice, and not justice which is the servant of judges - and even less of some judges - and even less of a single judge, whoever s/he is.

With that, ladies and gentlemen, dear colleagues, it remains to wish good luck to everyone in this Institution, whatever their role, in work that remains essential, especially now, for the future of our European continent.

For your humble servant, it is now the time to say goodbye and express my gratitude to those who supported me (let's be honest, in all meanings of the word), but above all those who assisted me in many ways, encouraged me and upheld my multiple initiatives to build together a better institution. Frankly, this has not always been an experience which inspired enthusiasm. However, thanks to you, it has always been, and this is essential, a humanly pleasant one. Therefore, very sincerely, my deepest thanks to all of you.

Franklin Dehousse (19 September 2016)

Barnard & Peers: chapter 10
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Evidencing the Effectiveness of Health Interventions in Free Movement Cases

Angus MacCulloch, Lancaster University Law School

Two judgments on Articles 34/36 TFEU (concerning the free movement of goods) handed down by separate courts in the same week give stark examples of the importance of having a good evidence base before a State seeks to justify a public health intervention in the market. The first example was the judgment of the CJEU in Case C-148/15 Deutsche Parkinson Vereinigung, a preliminary reference considering the compatibility of a German measure setting fixed prices for prescription-only medicines. The second being the judgment of the Inner House of the Court of Session in Scotland in Scotch Whisky Assoc v LA [2016] CSIH 77, where the court upheld the Lord Ordinary’s finding that the Scottish Government’s plans to introduce Minimum Unit Pricing (MUP) for alcohol were not contrary to Art 34 (following the CJEU reference in Case C-333/14). Both measures involved health justifications for pricing restriction measures that fell foul of Art 34, but the results were very different.

Fixed Price Prescriptions

The German measure in DPV fixed the prices of all prescription-only medicines in Germany; restricting the ability of pharmacists to provide products at a discounted price. DPV, a self-help organisation for Parkinson’s disease sufferers, had set up an arrangement with a Dutch mail order pharmacy DocMorris (yes, that DocMorris) to put in place a bonus system for its members. That bonus system was challenged. The scheme was found to infringe Art 34 TFEU as mail-order pharmacies are limited in the services they can offer, and the ability to price competitively is the most likely means they have to access the German market directly [24]. The Court then turned to the argument that the system of fixed prices was justified in order to ‘ensure a safe and high quality supply of medicinal products’ [32]. The argument was that without set prices pharmacies may enter into ‘ruinous price competition’ which might result in the closure of physical pharmacies in rural or underpopulated areas. It was argued those pharmacies alone were well suited to offering safe high quality supplies, tailored advice, and effective checks on medicines [33]. At [35] the Court applied the test it set out in the Case C-333/14 SWA reference:

‘The reasons which may be invoked by a Member State by way of justification must thus be accompanied by an analysis of the appropriateness and proportionality of the measure adopted by that State, and by specific evidence substantiating its arguments’.

It was this final point on ‘specific evidence’ that proved to be crucial in the case, as the Court went on to explain in [36].

‘that court must examine objectively, through statistical or ad hoc data or by other means, whether it may reasonably be concluded from the evidence submitted by the Member State concerned that the means chosen are appropriate for the attainment of the objectives pursued and whether it is possible to attain those objectives by measures that are less restrictive of the free movement of goods’.

In the subsequent paragraphs the Court went through the submissions of the parties and suggested that there was ‘no evidence to substantiate the contention’ that the scheme was necessary to ensure a uniform supply of prescription-only medicines [37]. In fact nothing before the Court suggested that without the system mail order pharmacies, competing on the basis of price, would threaten essential services, such as emergency care or providing activities in the general interest; in fact competition might encourage traditional pharmacies to improve such services [39-40]. The assertion of the Court at [42] is perhaps the most telling:

‘it should be noted that the existence of a genuine risk to human health must be measured, not according to the yardstick of general conjecture, but on the basis of relevant scientific research’.

Because of the failure to provide convincing evidence of the effectiveness of the measure the Court found that it had ‘not been shown to be an appropriate means of attaining the objectives relied on’ [45]. It had therefore fallen at the 1st hurdle in the two-part test. As it was not shown to be ‘appropriate’, there was no need to consider if it was ‘necessary’.

Minimum Unit Pricing

The Inner House (IH) in SWA were tasked with applying the same two-part test, but this time the result was very different. The court’s summary of the evidence presented by the Scottish Govt runs across many paragraphs, [125]-[143], citing numerous studies, both domestic and international in scope. The Petitioner challenged the conclusions and methodology of a number of those studies, but the Scottish Government argued that the State had discretion and it was not unreasonable that it would ‘prefer one body of evidence the other, so long as the information which supported the choice was cogent’ [130]. As the IH was acting in an appeal it confined its review, in the most part, to confirming that the Lord Ordinary, in the Outer House, had correctly applied the law. The first important, and perhaps the most important, question was to confirm that the Lord Ordinary had identified the correct aim of the legislation. Both the AG and CJEU, in the reference, had noted that the legislation appeared to have a dual objective, whereas the Lord Ordinary had focused on a particular aim; the reduction of alcohol consumption by harmful and hazardous drinkers. The IH found that the Lord Ordinary’s particular view was identical to that of the CJEU. That is perhaps surprising, as many commentators had seen a different emphasis in the CJEU; suggesting that it had struck some form of balance between the narrow goal of dealing with harmful and hazardous drinkers, and the wider goal of reducing general alcohol consumption. The IH implicitly rejected that interpretation of the judgment.

In its examination of the appropriateness of the measure the IH noted the extent of the problem with alcohol consumption; the ‘societal, family, and personal effects of excessive alcohol consumption in Scotland are difficult to over-estimate’ [178]. This assertion was based on the ‘raft of statistical material [which] was produced’ [180]. It also recognised the clear view that the policy would target harmful and hazardous drinkers. It noted that it was possible to attempt to rebut figures used in support of the measure, or counter the conclusions drawn by the Govt, but that ‘there was and is ample objective material to support the proposition’ [182], and, at [183], that:

‘the Lord Ordinary cannot be faulted in finding that there was evidence from which it could be inferred that minimum pricing was an appropriate method of securing the objective by tackling the specific consumption of cheap alcohol’.

When turning to the proportionality of the measure the IH considered the Petitioners preferred measure, the increase of general taxation, which they argued would be ‘as effective’ as MUP. But that argument was rejected; ‘[t]he fundamental problem with an increase in tax is simply that it does not produce a minimum price’ [196]. The IH pointed towards evidence that retailers have sold below cost or absorbed, or off-set, tax increases. Also that price increases in the lowest cost products would ‘produce a greater reduction in sales than across the board price increases’ [199], as trading down to lower cost products was not possible. In fact a general taxation increase would have, ‘disproportionate, undesirable and unnecessary effect on moderate drinkers, who do not generally represent a significant problem in societal terms’ [200]. Finally, at [204], the IH addressed the choice of 50p per unit:

‘Such a figure, on the material produced, will reduce consumption amongst harmful and hazardous drinkers in that quintile of the population whose health is affected most by the consumption of cheap alcohol. The benefits of this are well documented’.

On that basis the Inner House, upheld the findings of the Lord Ordinary and refused the reclaiming motion.

One interesting feature of the case before the IH was that the CJEU had made it clear in its preliminary reference that a domestic court should address the proportionality of the measure at the time it gives its ruling, not at the time the measure was adopted. As the original pleadings were lodged in 2012 a significant amount of new evidence and policy material had become available in the intervening period; including new evidence since the CJEU judgment in the reference was handed down in December 2015. The IH took note of the evidence that was considered by the Lord Ordinary, and the subsequent proceedings, and decided that it was in the interests of justice that any pertinent new material should be considered. But it stressed that the new information would only be significant if it was such that it would have altered the Lord Ordinary’s view of the facts. It was apparent that the new evidence merely added to the exiting body of evidence that supported the effectiveness of MUP as an intervention.


In a series of recent decisions, including, for example, Case C639/11 Poland & Case C61/12 Lithuania, the CJEU has begun to stress the importance of evidence to support an attempt to justify a restriction on free movement. In DPV we see that requirement given greater emphasis, and a new focus on the type of evidence that will be required. It is not sufficient for a member State to rely on mere assertion or conjecture. They will have to produce more. The Court’s preference is clearly for hard statistical or scientific evidence, although it will accept other forms. Domestic courts are charged with ensuring that the State has good evidence to support the appropriateness and proportionality those measures. The judgment of the IH shows how that analysis can be undertaken. It also makes clear that the analysis of proportionality is not an event, rather a process. If a policy stands or falls by its evidence, it must therefore be the case that changes in the evidence base can alter whether that measure is ‘appropriate’ and/or ‘necessary’ over time.

Barnard & Peers: chapter 12, chapter 16

Art credit: “Beer Street and Gin Lane”, William Hogarth