Decided cases

Citizenship of the Union

C-89/17 Secretary of State for the Home Department v Rozanne Banger

Judgment date 12 July 2018

Ms Banger is a South African national and the partner of Mr Rado, a British national. Ms Banger and Mr Rado lived together in South Africa between 2008 and 2010 before moving to the Netherlands. Ms Banger was granted a residence card by the Netherlands as an extended family member of an EU citizen. In 2013, Ms Banger and Mr Rado moved to the United Kingdom and Ms Banger applied for a residence card.

The SoS for the Home Department refused that application based on the UK legislation transposing the directive. That legislation provides for the rights of family members of British nationals returning to the UK after having exercised their right of freedom of movement in another Member State. To qualify as a family member of a British citizen, the applicant must either be the spouse or civil partner of the British national. As Ms Banger was not married to Mr Rado at the time her application was made, the UK authorities refused her application.

The Court held that where an EU citizen returns to his Member State of origin, that Member State must facilitate the entry and residence of the non-EU partner with whom that citizen has a durable relationship. As decision to refuse such a residence authorisation to the non-EU partner must be founded on an extensive examination of the applicant’s personal circumstances and be justified by reasons.

Approximation of laws, GMOs

C-528/16 Confédération paysanne and Others v Premier ministre and Ministre de l’Agriculture, de l’Agroalimentaire et de la Forêt

Judgment date 25 July 2018

Unlike transgenesis, mutagenesis is a set of techniques which make it possible to alter the genome of a living species without the insertion of foreign DNA. These techniques have made it possible to develop seed varieties which are resistant to selective herbicides. Confédération paysanne (“CP”) is a French agricultural union which defends the interests of small-scale farming. It contested the French legislation which exempts organisms obtained by mutagenesis from the obligations imposed by the Directive on genetically modified organisms (GMOs).

In particular, that directive provides that GMOs must be authorised following an assessment of the risks which they present for human health and the environment and also makes them subject to traceability, labelling and monitoring obligations. CP argue that mutagenesis techniques have evolved over time and subsequently, technical progress has led to the emergence of in techniques which target the mutations to obtain an organism resistant to certain herbicides. CP take the view that the use of herbicide-resistant seed varieties carries a risk of significant harm to the environment and to human health in the same way as GMOs obtained by transgenesis.

Organisms obtained by mutagenesis are GMOs and are, in principle, subject to the obligations laid down by the GMO Directive. However, organisms obtained by mutagenesis techniques which have conventionally been used in several applications and have a long safety record are exempt from those obligations, on the understanding that the Member States are free to subject them, in compliance with EU law, to the obligations laid down by the directive or to other obligations.

Area of freedom, security and justice

C-268/17 AY (Mandat d’arret – Temoin)

Judgment date 25 July 2018

AY is a Hungarian national and chairman of the board of a Hungarian company against whom criminal proceedings have been initiated in Croatia. AY himself is suspected of having agreed to pay a considerable amount of money to a holder of a high office in Croatia in return for the conclusion of an agreement between the Hungarian company and the Croatian Government. Croatia asked Hungary for legal assistance by interviewing AY as a suspect, but these requests were not executed despite the opening of an investigation into whether a criminal offence had been committed. This investigation was closed because the acts committed did not constitute a criminal offence. The investigation of the Hungarian authorities was not opened against AY as a suspect, AY having been interviewed as a witness only during the investigation. Following Croatia’s accession to the EU, they issued a EAW against AY which was refused because criminal proceedings had already been closed in Hungary in respect of the same acts as those on which the arrest warrant was based.

The Court stated that the admissibility of the request for a preliminary ruling is not called into question by the fact that the questions asked concern the obligations of the executing judicial authority, even though the referring court is the judicial authority that issued the EAW.

The Court went on to examine whether the ground for obligatory non-execution applies in the present case. That ground for non-execution concerns the case where the executing judicial authority is informed that the requested person has been finally judged in a Member State in respect of the same acts. The Court observed in that regard that the delivery of a final judgment implies that criminal proceedings had previously been instituted against the requested person. Accordingly, in the present case, as no criminal proceedings were brought against him, AY cannot be considered to have been ‘finally judged’ within the meaning of the framework decision. Consequently, the decision which closed the investigation during which AY was interviewed as a witness only may not be relied on for refusing to execute the warrant pursuant to that ground for non-execution.

The Court therefore held that the execution of a European arrest warrant cannot be refused because a decision of the Public Prosecutor’s Office has closed a criminal investigation when, during the investigation, the requested person was interviewed as a witness only.

C-216/18 PPU Minister for Justice and Equality v LM (Deficiencies in the system of justice)

Judgment date 25 July 2018

A Polish national is the subject of three EAWs issued by Polish courts for the purpose of prosecuting him for trafficking narcotic drugs. After being arrested in Ireland in May 2017, he did not consent to his surrender to the Polish authorities because on account of the reforms of the Polish system of justice, he runs a real risk of not receiving a fair trial in Poland.

The Court held that a judicial authority called upon to execute a EAW must refrain from giving effect to it if it considers that there is a real risk that the individual concerned would suffer a breach of his fundamental right to an independent tribunal and, therefore, of the essence of his fundamental right to a fair trial on account of deficiencies liable to affect the independence of the judiciary in the issuing Member State.

Also, the Court pointed out that the requirement that courts be independent and impartial has two aspects. It is necessary for the bodies concerned (i) to exercise their functions wholly autonomously, shielded from external interventions or pressure, and (ii) to be impartial, which entails maintaining an equal distance from the parties to the proceedings and their respective interests. According to the Court, these guarantees require rules, particularly about the composition of courts and the appointment, length of service and grounds for abstention, rejection and dismissal of their members. The requirement of independence also means that the disciplinary regime governing their members must display the necessary guarantees to prevent any risk of that regime being used as a system of political control of the content of judicial decisions.

If the executing judicial authority considers that there is a real risk of breach of the fundamental right to a fair trial, it must assess specifically and precisely whether, in the circumstances of the case, there are substantial grounds for believing that the requested person will run that risk. That specific assessment is also necessary where the issuing Member State has been the subject of a reasoned proposal of the Commission seeking a determination by the Council that there is a clear risk of a serious breach by that Member State of the values referred to in Article 2 TEU and the executing judicial authority considers that it possesses material showing that there are systemic deficiencies in the light of those values.

Fundamental rights

C-220/18 PPU Generalstaatsanwaltschaft (Conditions of detention in Hungary)

Judgment date 25 July 2018

ML was prosecuted in his native Hungary for bodily harm, criminal damage, fraud and burglary. He was sentenced in absentia to a custodial sentence of 1 year and 8 months, and a EAW was issued so he might serve the sentence in Hungary. He’s been in detention in Germany pending extradition since November 2017.

The Higher Regional Court, Bremen, is nevertheless uncertain, in view of the general conditions of detention in Hungary, whether ML may be surrendered to the Hungarian authorities. That court considers that it has information showing there to be systemic or generalised deficiencies in detention conditions in Hungary, with the result that ML might be exposed there to a risk of inhuman or degrading treatment and therefore considers it necessary to obtain additional information concerning the conditions in which ML might be detained in Hungary.

In the judgment, the Court makes clear at the outset that it is not being asked about the existence of systemic or generalised deficiencies in detention conditions in Hungary. Although it replies on the premise that such deficiencies exist, that premise is a matter for the Bremen court alone, which must ascertain whether it is accurate by taking account of properly updated information.

The Court held that an assessment of detention conditions in the issuing Member State made prior to the execution of a EAW must be limited to prisons in which it is actually intended that the person concerned will be held. The fact that the person concerned can challenge the conditions of his detention in the issuing Member State is not sufficient to rule out a real risk of inhuman treatment.


Attorney-General’s opinions

Citizenship of the Union

C-221/17 MG Tjebbes and Others v Minister van Buitenlandse Zaken

Opinion date 12 July 2018

Several Netherlands citizens possessing a second nationality of a non-EU country brought proceedings before courts concerning the refusal of the Minister for Foreign Affairs to process their applications for renewal of their national passports. The Minister applied to them the Law on Netherlands nationality, which provides that an adult loses that nationality if he also possesses a foreign nationality and if, after attaining his majority, his principal residence for an uninterrupted period of ten years is outside the Netherlands and the EU. Furthermore, a minor loses his Netherlands nationality if his mother or father loses that nationality. However, that period of ten years is interrupted if the person concerned has his principal residence in the Netherlands or in the EU for a period of not less than one year. The state before which those disputes have been brought, is uncertain as to the scope that the Member States enjoy in laying down the conditions governing loss of nationality and has referred a question on that subject to the Court of Justice.

AG Mengozzi proposed that the Court should rule that the automatic loss of Netherlands nationality, which leads to the loss of citizenship of the EU, for minors living outside the EU is incompatible with EU law. By contrast, that incompatibility with EU law does not arise in respect of adults.

Concerning adults, the AG took the view that the Netherlands law is compatible with EU law. First, the deprivation of nationality pursues a legitimate objective. A Member State is entitled, in exercising its competence allowing it to lay down the conditions for the acquisition and loss of nationality, to start from the premise that nationality represents the manifestation of a genuine link between that Member State and its nationals. It is not unreasonable for a national legislature to choose, from among the various factors that may reflect the loss of such a genuine link, the habitual residence of its nationals in the territory of a non-EU country for a sufficiently long period. In that connection, the AG notes that such a choice is accepted at an international level, especially given the fact that there is no risk of statelessness since the persons concerned have dual nationality.

The AG then went on to express the opinion that the Netherlands law does not infringe the principle of proportionality. In the Advocate General’s view, requiring a national of a Member State whose passport or national identity card has expired to renew one or other of those documents seems to be far from unreasonable or disproportionate. Where a Netherlands national, within the periods laid down, applies for one of those documents to be issued, the Netherlands legislature presumes that that national wishes to retain a genuine link with the Netherlands. Moreover, the Advocate General points out that the loss of Netherlands nationality is not irreversible.

However, the autonomy of the status of citizenship of the EU enjoyed by minors and the need to take into consideration the best interests of the child mean that, in the application of legislation of a Member State which entails, for nationals of that State who are minors, loss of nationality and loss of citizenship of the EU, such minors must be able to enjoy the same procedural and substantial rights as are granted to adults. Children who are citizens of the EU do not, however, have the possibility to avoid the loss of nationality by applying for the documents in question.