Advocate General Opinion


C-221/17 M.G. Tjebbes and Others v Minister van Buitenlandse Zaken

Opinion delivered 12 July 2018 by Advocate General Paolo Mengozzi

Case C-221/17 concerned a number of Netherlands citizens whose applications for renewal of their passports were refused as they possessed a second nationality of a non-EU country. The Raad van State (Council of State, Netherlands) asked the Advocate General whether the loss of Netherlands nationality by operation of law, (which has the effect of also leading to the loss of citizenship of the EU,) is compatible with EU law.

The Advocate General stated that EU law is applicable to this matter and that the Court has jurisdiction to decide on the loss of Netherlands nationality by operation of law. The Advocate General considered that the status of an EU citizen is not restricted to nationals of the Member States who reside or are present in the territory of the EU and referred to the rights guaranteed by the Charter of Fundamental Rights of the European Union, including those relating to the right to family life and the rights of children.

The Advocate General distinguished between adults and children and with adults, he took the view that the Netherlands law regarding the loss of Netherlands nationality for adults is compatible with EU law because a Member State is entitled to lay down the conditions for the gain of or loss of nationality. The Advocate General considered the principle of proportionality and in his opinion, the Netherlands law does not infringe this because if the person concerned fails to take such a step to retain a genuine link with the Netherlands, the Netherlands legislature presumes that that link has been lost.

On the other hand, with minors, the Advocate General took the view that the Netherlands law is incompatible with EU law as the best interests of the child and their status as a citizen of the EU should be taken into account and they should be able to enjoy the same procedural and substantial rights as are granted to adults given that they do not have the ability to avoid the loss of nationality by applying for the documents required.

Advocate General Mengozzi proposes 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 incompatiblity with EU law does not arise in respect of adults. 


Decided Cases

Personal Data

C-25/17 Tietosuojavaltuutettu v Jehovan todistajat — uskonnollinen yhdyskunta

On 17 September 2013, the Tietosuojavaltuutettu (Finnish Data Protection Supervisor) prohibited the Jehovan todistajat — uskonnollinen yhdyskunta (Jehovah’s Witnesses religious community, Finland) from collecting or processing personal data in the course of door-to-door preaching unless they follow the requirements of Finnish legislation relating to the processing of personal data.

In this judgment, the Court considered if door-to-door preaching is not covered by the exceptions contained in EU data protection law but since the activity is not a purely personal or household activity, so the exception does not apply.

The Court stated that the rules on the protection of personal data apply to the manual processing of personal data only where the data which is processed forms part of a filing system or is intended to form part of one. In this case, the processing was manual and not by automatic means, so the Court had to question whether the data processed formed part of, or was intended to form part of, a filing system. The Court found that the concept of a ‘filing system’ is interpreted widely and covers a set of personal data collected during door-to-door preaching, consisting of the personal information gathered, if that data id structured according to specific criteria which allows the data to be easily located for later use. The processing of personal data carried out in connection with door-to-door preaching must therefore comply with the rules of EU law on the protection of personal data.

The Court considered the question of who is the data controller of the personal data and the Court stated this it could be a number of people who take part in the processing and each would be subject to the rules of EU data protection law especially if they exert influence over the processing of the data. The Court concluded that EU data protection law supports a finding that a religious community is a controller, jointly with its members who engage in preaching, of the processing of personal data in the context of door-to-door preaching.


Free Movement

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

Rozanne Banger, a South African national, and her partner Philip Rado, a British national, lived together in South Africa before moving to the Netherlands. Ms Banger was granted a residence card as a family member of an EU citizen, in accordance with the directive on the freedom of movement of EU citizens and their family members. The directive allows for the entry and residence of a partner when they have a durable relationship with an EU citizen where that EU citizen has moved to a different Member State.

The couple moved to the UK and Ms Banger applied for a residence card, but the Secretary of State refused the application on the basis that UK legislation allows residence for family members of a British citizen which is limited to spouses or civil partners. Since the couple were not married at the time of the application, the UK authorities refused her application.

Ms Banger brought a challenge to the decision which was referred to the Court for a preliminary ruling concerning the interpretation of the directive and whether a refusal without sufficient reasons and consideration of personal circumstances, is unlawful under EU law.

The Court found that the directive governs only the conditions determining whether an EU citizen can enter and reside in other Member States, so it cannot approve Ms Banger’s residence application.

The Court noted that the Directive relates specifically to the partner that the EU citizen has a durable relationship with and provides that the host Member State must facilitate entry and residence for that partner. Article 21 TFEU requires the Member State of which an EU citizen is a national to allow for the residence of a non-EU partner where there is a durable relationship and the EU citizen moved to another Member State but returns to live with their partner the place of which he is a national. The Court noted that Member States are not required to grant this as a right for non-EU nationals in a relationship with an EU citizen, but does have to give these an advantage over applications of other nationals of non-EU countries. 

The Court concluded that a decision to refuse a residence application to the non-EU national and partner of an EU citizen in these circumstances, can only be made following an extensive examination of the applicant’s personal circumstances and must be justified by reasons. 


European Arrest Warrant 

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

LM is a Polish national who was issued three European arrest warrants (EAWs) by the Polish courts in relation to the trafficking of narcotic drugs. LM was arrested in Ireland on 5 May 2017 but did not consent to his surrender to the Polish authorities, on the ground that due to reforms in the Polish justice system he would run a real risk of not receiving a fair trial in Poland.

LM sought to rely on the previous Court of Justice judgment in Aranyosi and Căldăraru, which held that where the executing judicial authority finds a real risk of inhuman or degrading treatment to an individual who is the subject of an EAW, the execution of that warrant must be postponed. The warrant will be postponed only if the following two conditions are met. First, the authority must find a real risk of inhuman or degrading treatment in the issuing Member State on account of systemic deficiencies. Second, the authority must ascertain substantial grounds for believing that the individual concerned by the EAW will be exposed to such a risk.

The High Court in Ireland asked the Court of Justice to clarify whether it is sufficient for the executing authority to find deficiencies in the Polish justice system without having to assess whether the individual concerned is exposed to them. The High Court also asked what information it must obtain from the issuing judicial authority to discount that risk.

The Court held that the refusal to execute an EAW is an exception to the principle of mutual recognition which must be interpreted strictly. The Court then held that the existence of a real risk that the individual in question would suffer a breach of his fundamental right to an independent tribunal and thus a fair trial is capable of permitting the executing authority to refrain, by way of exception, from giving effect to the EAW. As a first step, the executing authority must assess, on the basis of material that is objective, reliable, specific and properly updated, whether there is a real risk connected with a lack of independence of the courts of the issuing Member State, which would lead to such a right being breached. On 20 December 2017, the Commission had adopted a reasoned proposal inviting the Council to determine on the basis of Article 7(1) TEU, that changes made by the Polish government to the justice system had led to a clear risk of a serious breach of the rule of law in Poland. The Court considered that the information included in this reasoned proposal was particularly relevant to the executing authority’s assessment of the breach.

As a second step, the executing authority must assess whether in the particular circumstances of the case, there are substantial grounds for believing that, following his surrender, there would be a risk of breach of the individual’s fundamental right to a fair trial. This assessment is necessary where, as in the present case, 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.

If after examining all the above, the executing authority considers there is such a risk, it must refrain from giving effect to the EA