This month’s case law digest contains a number of important cases on migration and the operation of ‘zero tariff’ mobile plans. Following on from the declaration that Poland’s new disciplinary chamber breached EU law, we provide update on the surrounding circumstances such as Poland’s recent legal primacy challenge. Amongst other news, the ECtHR issued a judgment concerning whether Russia were responsible for the poisoning of Alexander Litvinenko, together with an interesting judgement on discrimination on the grounds of sexual orientation. 

Court of Justice of the European Union

Court: Court of Justice of the European Union – A. Prechal, President

Case: C-18/20 Bundesamt für Fremdenwesen und Asyl

Date: 9 September 2021


XY is an Iraqi Shia Muslim located in Austria. XY made his first application to the Austrian Federal Office for Immigration and Asylum (“the Asylum Office”) for international protection, on the grounds that if he was returned to Iraq, he would be forced to fight for the Shiite militia. This application was rejected. XY made a subsequent application to the Asylum Office, but on different grounds. XY claimed that the real reason for his application is due to his homosexuality, which he claimed was banned, by Iraq and in Islam. XY noted that he did not raise this at his first application, as he did not know whether disclosing his homosexuality would put him at risk, in Austria.

The Asylum Office rejected XY’s subsequent application. The Asylum Office considered that as XY knew of his homosexuality at the time of his first application, XY was not making a new application, but requesting to re-open his first application. The Asylum Office considered XY to not have met the threshold required to re-open the case, as (1) they thought the new (but pre-existing) elements must not be considered where XY was at fault for failing to assert them in the initial application, and (2) a request for reopening must be submitted within 2 weeks from when XY became aware of the new elements, and he did not. XY brought an action before the Austrian courts, claiming that Directive 2013/32/EU (“the International Protection Directive”) precluded Austria from rejecting a subsequent application for international protection on those grounds.

The Supreme Administrative Court of Austria made a preliminary reference to the Court of Justice to interpret the International Protection Directive.


The Court of Justice held that in principle, the International Protection Directive allowed for a Member State to consider that information brought up in a subsequent procedure which was in existence at the initial procedure, to be a re-opening of a case, rather than a new application. However, such a reopening must not, be subject to a time limit (which Austrian law had placed). Furthermore, while a condition of the re-opening may be that the new (but pre-existing) information must not be missed out due to the applicant’s fault during the initial application, Austria had not transposed this part of the International Protection Directive. As such, the refusal to open a new asylum consideration procedure in Austria, could not yet be refused on such a ground.


Court: Court of Justice of the European Union – K. Lenaerts, President

Case: C-350/20 O.D. and others v Istituto nazionale della previdenza sociale (INPS)

Date: 2 September 2021


Third country nationals (TCNs) in Italy holding a work permit were refused childbirth and maternity allowance by Italy’s social security institute (INPS), on the grounds that they did not have long-term resident status. The TCNs argued that the INPS’ refusal to grant them childbirth and maternity allowance fell foul of the equal treatment provisions of Directive 2011/98 “the Single Permit Directive” and the right to social security benefits under Article 34 of the EU Charter of Fundamental Rights. The INPS argued that its childbirth and maternity allowance fell outside the scope of the social security regulations, as rather than being for social security, the payments were (1) to bolster the Italian birth rate and (2) for low-income families (the income threshold supported this).

The Italian Constitutional Court made a reference to the Court of Justice, for a preliminary ruling.


The Court of Justice held that the childbirth and maternity allowances were within the scope of the Single Permit Directive and were therefore subject to its equal treatment provisions. As the Italian legislation excluded TCNs from such a social security allowance, this was contravening the equal treatment provisions. The Court of Justice noted that the INPS’ purported reasoning behind the payments (to encourage Italian birth rates) did not make a difference. Furthermore, the cash payments were automatically given to individuals who satisfied its criteria – there was no discretion involved, to support the INPS’ suggestion that the payments were for reasons other than social security.


Court: Court of Justice of the European Union – N. Wahl (Rapporteur), President

Case: Cases C-854/19, C-5/20 and C-34/20 Vodafone and Telekom Deutschland

Date: 2 September 2021


Vodafone and Telekom Deutschland offer ‘zero tariff’ options which enable mobile users access to specific sites e.g. data intensive media streaming sites, without ‘eating up’ a users’ overall allowance. Furthermore, limitations on bandwidth, tethering and/or roaming were placed on such plans. The Federal Network Agency and the Federal Union of Consumer Organisations and Associations raised concerns that this contravened the equal treatment of traffic under Regulation 2015/2120 (“the Open Internet Access Regulation”), as ‘zero tariff’ plans incentivised users to access certain sites (the ones which did not ‘eat up’ a users’ allowance), over others.

The Administrative Court of Cologne and the Higher Regional Court of Düsseldorf put questions to the Court of Justice, on whether the operation of ‘zero tariff’ mobile plans contravened the obligation of equal treatment of internet traffic without discrimination or interference, under the Open Internet Access Regulation.


The Court of Justice held that ‘zero tariff’ plans are contrary to the Open Internet Access Regulation, as they contravened the obligation of equal treatment of traffic without discrimination or interference, in (1) treating access to certain sites differently from a data consumption perspective and (2) triggering limitations on bandwidth, tethering and/or roaming only on activation of the ‘zero tariff’ plans.


Court: Court of Justice of the European Union – K. Lenaerts, President

Case: Commission v Poland

Date: 15 July 2021


The European Commission sought a declaration that a new Polish disciplinary regime for judges meant Poland breached European law.


The Court of Justice upheld the complaints and found that Poland has not met its obligations under European law. The new disciplinary chamber would not guarantee impartiality and independence, neither is it safeguarded from the influence of the legislature and executive. Added, the Court of Justice held that the judges appointed to the chamber were not those sitting in the Polish Supreme Court and benefitted from wide autonomy when comparing to other judicial chambers. Therefore, the chamber was to be suspended by 16 August 2021.

Poland is yet to suspend the chamber. On Tuesday 7 September, the European Commission announced it has asked the Court of Justice to issue daily fines to Poland as a result to encourage compliance. The Commission has also launched a legal action against Poland for non-conformity to the above decision of the Court of Justice.

At the end of August, the Polish Constitutional Tribunal announced a recess in a case to determine whether the Polish constitution of European law holds primacy. A further recess was announced on 22 September to the end of September. The decision reached could have wide-reaching impacts on Poland and its relationship with the bloc. If European law holds primacy, then the Court of Justice rulings are confirmed as binding and supreme still. On the opposite conclusion, primacy of national Polish law could potentially result in Poland amending their law or Constitution or many other scenarios.

Continued monitoring of the developments will be crucial to seeing how the relationship between European institutions, member states and Poland evolves. We await receipt of the judgement.


European Court of Human Rights

Court: European Court of Human Rights - judges as follows:

Paul Lemmens, President, Georgios A. Serghides, Dmitry Dedov, Georges Ravarani, Darian Pavli, Anja Seibert-Fohr, Peeter Roosma.

Case: Case of Carter v Russia

Date: 21 September 2021


An ex-KGB officer, Alexander Litvinenko, died in 2006 after being poisoned in London with a radioactive substance. The applicant, Mr Litvinenko’s widow, alleged that this act was the responsibility of Russian authorities and that these authorities also failed to complete an effective investigation into the event.


The European Court of Human Rights found that, when Mr Litvinenko was poisoned, two individuals involved, Mr Lugovoy and Mr Kovtun, acted as agents of Russia. They acted with a level of power and control over life that created the jurisdictional link as per Article 1 of the European Convention on Extradition. Article 2 of the Convention, which safeguards the right to life, was noted as a fundamental provision of the Convention – no derogation is ever permitted (citing Velikova v Bulgaria, no 41488/98, [68], ECHR 2000-VI).

It was also noted that Russia has declined to participate in the public inquiry into Mr Litvinenko’s death and failed to comply with Article 38 of the Convention due to their unjustified refusal to submit copy materials from a domestic investigation. Added to this, Russia did not conduct an effective investigation. Overall, Russia was ordered to pay the applicant 100,000 euros plus tax as non-pecuniary damages and a monetary sum towards costs and expenses.


Court: European Court of Human Rights - judges as follows:

Ksenija Turković (Croatia), President, Krzysztof Wojtyczek (Poland), Gilberto Felici (San Marino), Erik Wennerström (Sweden), Raffaele Sabato (Italy), Lorraine Schembri Orland (Malta), Ioannis Ktistakis (Greece).

Case: CASE OF X v. POLAND (Application no. 20741/10)

Date: 16 September 2021


A Polish national, Ms X, has four children from a previous marriage with Mr Y. Ms X divorced upon commencing a relationship with another woman, Z, with Ms X’s parents seeking custody of the children after distaste for that relationship. A District Court granted temporary custody which was later quashed with Mr Y applying to amend the custodial set-up in 2006. Here, the District Court granted full parental rights to Mr Y. The proceedings involving Ms X being questioned as to her sexual orientation and romantic involvement with Z.

Ms X later appealed on the basis she was the main carer and Mr Y had previously not been heavily involved in the children’s lives. This was dismissed in January 2008. Three months later Ms X appealed in respect of the youngest child. The District Court, under the same judge, decided against her retaining custody during proceedings and commented that Ms X had focussed “excessively” on her and her girlfriend.

Ms X challenged the judge’s impartiality in May 2008 with the result being the judge ordered the youngest child to be removed from Ms X’s care. A further application to amend the custodial order was made almost a year later in June 2009. It was decided that the youngest child would continue living with Mr Y to aid their development and the presence of Mr Y as a male role model was viewed as beneficial. On appeal of this decision, Ms X argued the court had accounted for Mr Y’s homophobia throughout the process and that the best interests of the child were not being prioritised. The Regional Court dismissed the appeal.

Following, Ms X relied on Article 14 (prohibition of discrimination) and Article 8 (right to respect for private and family life) of the European Convention of Human Rights in relation to the refusal of custody for the youngest daughter based on sexual orientation. She also relied on Article 6(1) (right to a fair hearing) for the lack of impartiality of the judge. The application was lodged with the European Court of Human Rights in March 2010.


The European Court of Human Rights found, voting six to one, that there had been a violation of Article 14 and Article 8. Ms X’s sexual orientation and relationship with Z formed a key part of the first proceedings with these comments quoted in expert reports and expert opinions. The decision to hand custody over to Mr Y for all four children had a knock-on impact on later proceedings with Ms X’s homosexuality and relationship still taking limelight. The Court concluded this amount to differential treatment of Ms X to another parent on the basis of sexual orientation, amounting to discrimination as per the Convention. Poland was also ordered to pay 10,000 euros to Ms X for non-pecuniary damages.


Court: European Court of Human Rights – Robert Spano, President

Case: M.A. v. Denmark

Date: 9 July 2021


A Syrian doctor (M.A.) who was granted temporary subsidiary protection status in Denmark was prevented from reunification with his wife of 25 years, under Danish law which required a 3-year waiting period, for those granted temporary subsidiary protection status to be reunited with their family.

M.A. argued that the 3-year waiting period contravened his right to family life under Article 8 of the European Convention on Human Rights (“ECHR”). Denmark argued that the 3-year period was within a states’ margin of appreciation under the ECHR, as it would (1) encourage social cohesion (2) raise prospects of integration, and (3) restrict asylum conditions in Denmark to make it less attractive, to seek asylum there.

The Danish Supreme Court upheld the Immigration Appeals Board’s consideration that the 3-year period was compliant with Article 8 of the ECHR. M.A. filed a complaint to the European Court of Human Rights (“ECtHR”).


The ECtHR held that the Danish legislation which required a 3-year waiting period for family reunification for those holding temporary subsidiary protection status did in fact breach Article 8 of the ECHR - right to family life. In failing to provide exceptions to the 3-year rule e.g. by considering each case individually and assessing the interests of family unity, Denmark had fallen outside of the margin of appreciation which was acceptable under the ECHR. The ECtHR further held that allowing reunification may in fact preserve cohesion and facilitate integration. The fact the Danish legislation had failed to consider these alternate viewpoints effectively amounted to a blanket requirement, in breach of Article 8.