Hard Brexit, soft Border. Some trade implications of the intra-Irish border options.

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Emily Lydgate 

How can the UK uphold its commitment to leaving the EU Single Market and Customs Union while also preserving the invisible intra-Irish border? Leaving aside crucial questions of political feasibility, this post looks at some of the options and their trade and border implications. Notably, there are limits to ‘flexible and creative’ solutions that involve turning a blind eye to customs and regulatory checks solely on the intra-Irish border: trade rules leave little room for such ad hoc approaches.

Option 1: Regulatory divergence between Northern Ireland and the rest of the UK

Northern Ireland could diverge from the rest of the UK, forming a customs union with the EU and continuing to harmonize its domestic regulation with EU regulation and standards for goods and services. Arguably, such full integration is a necessary condition for maintaining the open border (though note that Turkey, which has a customs union, and broad regulatory alignment with, the EU, still faces border checks).

There are models for Northern Ireland to maintain formal independence from the EU while gaining the benefits of an invisible border. Close to home, we can look to the Channel Islands. As ‘Crown Dependencies’ they are not EU Members nor strictly part of the UK; they have judicial independence and the right of self-government. They voluntarily follow EU standards and legislation, and are part of the EU Customs Union. Their Single Market participation is limited to free trade in goods, and does not extend to services or people.

Yet the situation in Northern Ireland is more challenging than just maintaining formal independence: it requires preserving political unity with one country, the UK, whilst forming a customs territory and regulatory union with another, Ireland (and the EU). In theory, such a model could preserve an open intra-Irish border for goods – and services, if extended further – and allow Northern Ireland to maintain integration with the rest of the UK in some areas. But it is difficult to see how the United Kingdom could continue to function as a union. In order to preserve the integrity of the EU’s Common External Tariff, the EU would likely require Northern Ireland to align all of its Free Trade Agreements with those of the EU – rather than the UK. Northern Ireland would also likely be bound by European Court of Justice rulings pertaining to EU regulations which it has incorporated, thus limiting its ability to have an independent judiciary.  As has been well noted, such divergences in customs and regulatory regimes would also necessitate border checks between Northern Ireland and the rest of the UK.

Option 2: Regulatory ‘alignment’ between the UK and the rest of the EU

David Davis MP, Secretary of State for Exiting the European Union, has ‘clarified’ the position that the UK as a whole – not just Northern Ireland – will align its regulation with the EU, stating that:  “Alignment … isn’t having exactly the same rules. It is sometimes having mutually recognised rules, mutually recognised inspection – that is what we are aiming at.”

It’s a curious word choice: in the recently-concluded EU-Ukraine Association Agreement, ‘regulatory alignment’ means that Ukraine is expected to incorporate the EU acquis, its body of law and regulation, in covered areas. Determining whether it has fulfilled this obligation is down to the EU.

This is quite different from mutual recognition, which Davis then advocates. The Mutual Recognition Agreements the EU has concluded are limited in scope and application. They allow companies in a sub-set of sectors to certify that their products meet EU standards at the point of production (mutual recognition of conformity assessment), thus obviating the need for checks to happen twice.

This is a far cry from an invisible border. It does nothing to prevent border checks resulting from tariff barriers and rules of origin checks. Davis notes that mutual recognition would only happen ‘sometimes’ such that border infrastructure would need to be in place for non-covered sectors. Which leads us to….

Option 3: Sectoral alignment

Northern Ireland could identify sectors in which regulatory alignment was particularly useful– say, health care, transport, environmental regulation and agriculture. In these areas it could align with Ireland and the rest of the EU, departing from the rest of the UK.

Indeed, Northern Ireland has some regulatory divergence from the rest of the UK now. Yet, for reasons noted above, this would not lead to the conditions necessary for an invisible border (see our recent briefing paper: Can A UK-EU Free Trade Area Preserve The Benefits Of The Single Market And The Customs Union In Some Sectors?). A sectoral approach could even lead to two sets of border checks: between Northern Ireland and Republic of Ireland, and between Northern Ireland and the rest of the UK.

Bonus section: Ad hoc solutions to achieving frictionless trade

But what if the UK, desperate for a solution, decided to simply look the other way – not worrying about lost tariff revenue or accepting goods that did not meet UK standards? Under any of the models considered above, turning a blind eye would facilitate frictionless trade. This would give goods coming in from Ireland – the UK’s only land border – a de facto special status. Aside from the other problems that this would create, the UK would run into problems with WTO rules.

Turning a blind eye would necessitate admitting goods from Ireland tariff-free. The Most Favoured Nation (MFN) principle prohibits the UK from giving special tariff rates to one WTO Member that it does not extend to all of the others. There is an exception for Free Trade Areas, in which tariff barriers are eliminated for substantially all trade. Thus such an arrangement would only be possible as an extension of a zero-tariff UK-EU Free Trade Area; otherwise it would violate WTO MFN obligations.

Another WTO obligation, GATT Article X, would also prove problematic. In the words of the WTO Appellate Body, it ‘establishes certain minimum standards for transparency and procedural fairness in the administration of trade regulations’. It also requires that there ‘uniformity’ in the administration of trade-related regulation. In other words, countries should not treat some goods – or some countries – much differently than others in the administration of customs procedures. There are a dozen or so disputes focusing on this requirement. A light-touch approach applied only on one border could certainly prompt another.

Article 7 of the Trade Facilitation Agreement, which recently entered into force, also obligates each WTO Member to ‘apply common customs procedures and uniform documentation requirements for release and clearance of goods throughout its territory.’

On the other hand, Article XXIV of the GATT Agreement, which applies to Customs Unions and Free Trade areas as well as territorial application and frontier traffic, seems to provide some scope for differential treatment of goods coming through the land border. Article 3(a) states that:

The provisions of this Agreement shall not be construed to prevent: 

Advantages accorded by any contracting party to adjacent countries in order to facilitate frontier traffic. 

There is no case law clarifying this provision and what is meant by ‘frontier traffic’. Yet even if there were no WTO complaints, such an approach could turn the intra-Irish border into a ‘smuggler’s paradise.’ Nor would it eliminate border checks unless the EU participated as well – and it is notoriously protective of its internal market.

In sum, leaving aside the political challenges associated with each of these flexible and creative options, they still fall short of re-creating the invisible intra-Irish border – and create a number of subsidiary challenges. However, if all Parties are willing to accept the introduction of a ‘hard’ intra-Irish border, there are some options that can help soften it – such as the UK aligning with EU regulation. The harder the Brexit, the harder the border.

Emily  Lydgate is a lecturer in Law at the University of Sussex and a fellow of the UK Trade Policy Observatory. This blog first appeared on the UKTPO’s website

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Tell me what you see and I’ll tell you if you’re gay: Analysing the Advocate General’s Opinion in Case C-473/16, F v Bevándorlási és Állampolgársági Hivatal

 Nuno Ferreira and Denise Venturi

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Nuno Ferreira

 

Hungary in the spotlight again

Hungary has been in the spotlight for all the wrong reasons for quite a while. From legislation targeting ‘foreign-operating universities’ to border walls to keep refugees from entering Hungarian territory, the populist right-wing government of Viktor Orban has been sparking outrage in many sectors of Hungarian society, and the European institutions. The most recent reason for alarm again relates to migration and refugees, an area of widespread criticism of Hungarian authorities. Building on extremely hostile policies towards refugees that have been admonished by both the Court of Justice of the European Union (CJEU) and the European Court of Human Rights (ECtHR), Hungarian authorities now intend to resort to highly dubious means to assess the applications  of individuals claiming asylum on grounds related to their sexual orientation. It was already public knowledge that this category of claimants was subjected to poor treatment by the Hungarian authorities, but recent events suggest that the authorities have reached  a new low.

The most recent incident came to the public knowledge through a reference for a preliminary ruling to the CJEU by the Hungarian Administrative and Labour Court Szeged on 29 August 2016 in the Case C‑473/16, F v Bevándorlási és Menekültügyi Hivatal (the ‘F case’). The case concerns a Nigerian national who had submitted an application for international protection in Hungary based on his sexual orientation, and dealt with the use of projective personality tests and other means for ‘proving’ sexuality. The Hungarian domestic court posed two questions to the CJEU, essentially asking whether the application of Article 4 of Council Directive 2004/83/EC, in the light of Article 1 of the Charter of Fundamental Rights of the European Union (EU Charter), precludes forensic psychologists’ expert opinions based on projective personality tests from being used in asylum adjudication relating to LGBTI (lesbian, gay, bisexual, trans and intersex) claimants. Should that possibility be precluded, the referring Court then asks whether the asylum authorities are prevented from examining by expert methods the truthfulness of these claims.

The questions thus refer to the interpretation of particular provisions of Council Directive 2004/83/EC. Yet, the material facts under analysis in the case referred to the CJEU occurred in April 2015, so the law that applies to the facts and that needs to be interpreted in this case is the successor to Council Directive 2004/83/EC – Directive 2011/95/EU of 13 December 2011 (the recast Qualification Directive) – in force since 22 December 2013.

Following the hearing on 13 July 2017, Advocate General Wahl delivered his Opinion on 5 October 2017. The focus of our analysis will be on this Opinion, but first it is important to recall the case law the CJEU has already produced on sexual orientation and gender identity (SOGI) claims of asylum. Indeed, this is the third case the CJEU has dealt with on SOGI-related asylum claims, and we expect this third case to better reflect international standards than the previous two, particularly in the light of the EU Charter and UNHCR Guideline No. 9.

Third time lucky?

The CJEU dealt with Sexual Orientation and Gender Identity (SOGI) asylum claims for the first time in the joined cases C-199/12 to C-201/12, X, Y and Z v. Minister voor Immigratie en Asiel. Despite some shortcomings,  this decision expressly recognised that persecution on the basis of sexual orientation can give rise to refugee status under the ‘particular social group’ ground of the 1951 Refugee Convention. It was however one year after X, Y and Z that the CJEU was called to provide guidance on evidentiary standards in SOGI asylum claims in another case concerning three gay men seeking asylum on the basis of their sexual orientation, who were not deemed credible (Joined Cases C-148/13 to C-150/13, A, B and C v Staatssecretaris van Veiligheid en Justitie, 2 December 2014). The CJEU was asked whether the Charter, in particular Articles 3 (right to the integrity of the person) and 7 (respect for private and family life), as well as Article 4 recast Qualification Directive posed certain limits on national authorities when verifying an asylum seeker’s sexual orientation.

This judgment is important as it establishes some core principles on credibility and evidence assessment; however, the Court could have offered more positive guidance in that regard. At the outset, the CJEU found that although the applicants’ mere declarations are not sufficient per se to establish their sexual orientation, authorities are bound by certain limits when assessing a SOGI asylum application. Notably, such assessment must be conducted on an individual basis and must not be based merely on stereotypes, which is a mistake too often committed by decision-makers in SOGI cases. Nonetheless, the CJEU did not completely overrule the use of stereotyped notions, but considered them a useful element in the overall assessment. As for evidence, the Court precluded the recourse to detailed questions on sexual practices and to ‘tests to establish applicants’ sexual orientation in light of Articles 1 (human dignity) and 7 of the EU Charter. It also banned the production in evidence of films showing the applicant’s engagement in same-sex activities. Finally, the CJEU also affirmed that late disclosure of an applicant’s sexual orientation as the main reason for the asylum claim, does not per se impinge on the applicant’s credibility.

In a nutshell, the Court gave a ‘black list’ of what authorities cannot do, but it did not provide any clear guidelines of what, they should do to assess SOGI asylum claims. Notably, the Court made it clear that there is no room for evidence that, by its nature, infringes human dignity and which does not have any probative value. This prohibition, the Court argued, cannot be circumvented even if it is the applicant’s choice to submit such evidence, as this would incite other applicants to do the same, creating a de facto requirement. While the Court’s judgement in X, Y and Z fully establishes the possibility of recognising SOGI applicants as refugees, the Court’s findings in A, B and C constitute the backdrop against which the F case will ultimately be decided.

‘Tell me what do you see… is it gay enough?’

The F case has put back on the CJEU’s agenda the evidentiary standards to be applied in SOGI asylum cases. Several contentious practices have been criticised throughout the years in this context, from the use of stereotyped questioning to authorities resorting to practices of no medical or psychological value such as phallometry, whereby reactions of gay male asylum claimants to watching pornography were supposed to indicate their sexual preferences. Despite such practices having been highly criticised both by the UNHCR and NGOs, the F case makes it clear that they persist in different ways.

The precise tests in question in this case are the ‘Draw-a-Person-in-the-Rain’test, Rorschach test and Szondi test. Such projective, drawing tests attempt to elicit information that ‘patients’ may struggle or prefer not to verbalise otherwise, helping psychologists to form an opinion about individuals’ personality, emotional well-being and mental health. These tools are generally contentious, even if they go on being used by psychologists routinely in most countries. Their use to determine one’s sexuality is fundamentally abhorrent, thus simply not considered by the relevant literature or reputable professionals.

AG Wahl recognises how scientifically discredited such tests are in relation to sexual orientation matters, citing an American Psychological Association 2009 report. The question of whether one is gay or not is, itself, poorly framed, as one’s sexual orientation can lie somewhere along a complex continuum and change overtime. Attempts to determine one’s sexuality objectively have invariably been held to be ‘junk science’, for relying on baseless stereotypes. As Weber has rightly stated in the context of the recent debates around using Artificial Intelligence (AI) to determine one’s sexuality on the basis of one’s face, such pseudo-scientific efforts are attempts to impose coherence on individuals and fail to recognise that the ‘homosexual’ and the ‘heterosexual’ are historically constructed figures. Crucially, Weber worries that such type of AI ‘junk science’ will be used in the West in the context of SOGI asylum.

The tests in question in the F case assume that individuals with a particular sexual orientation have certain personality traits, which not only is patently false, but also runs against the prohibition on stereotypical decision-making established by A, B and C. At the oral hearing in this case, the Hungarian authorities tried to justify the use of these tests with the A, B and C judgment. The argument ran as follows: as the judgment precluded questions about claimants’ sexual orientation, the authorities had to resort to tests. The problem with this assertion is that it is based on a false premise: the judgment in A, B and C did not prevent authorities from asking any questions about claimants’ sexual orientation, but simply precluded certain questions and practices that clearly breach the dignity of the individual.

Although both the Commission and the Hungarian authorities suggested in the oral hearing that these tests should be allowed because they only constitute an element of the overall assessment of the asylum claim and may lead to the confirmation of the credibility of the applicant, the exact opposite happened in this case. Indeed, the test was used by the Hungarian authorities to discredit the applicant’s account and deny him international protection (par. 10-11 of the Opinion). In other words, a ‘junk science’ approach to decision-making was used to prevent the claimant from being recognised as refugee. Unfortunately, AG Wahl’s Opinion fell far short from precluding such tests.

The Advocate General’s Opinion 

In his Opinion, AG Wahl rightly frames this case as one that is very clearly about using psychologists’ expert opinions in assessing the credibility of claimants. The provision at the centre of this debate – as framed by the referring questions – is Article 4(5) of the recast Qualification Directive, which discharges applicants from the need to prove their asylum claims through documentary or other evidence when a range of conditions is fulfilled, including the applicants having made a genuine effort to substantiate their claims, having offered a satisfactory explanation for the lack of further evidence, and having provided an overall credible account. Based on this provision, the applicant used the oral hearing to highlight that there was no need for any further tests in his case, because there were no inconsistencies. The Hungarian authorities counter-argued that there were contradictions in the applicant’s statement (without specifying exactly which contradictions), so it was necessary to probe its veracity.

Another EU law instrument turns out to play a more important role in this Opinion, namely Directive 2013/32/EU (the recast Asylum Procedures Directive). Indeed, the Qualification Directive establishes the general rules to follow in terms of evidentiary standards in asylum cases, in particular Article 4, but it is Article 10(3) of the Asylum Procedures Directive that determines that Member States’ asylum authorities should reach individual, objective and impartial decisions, and that they have the possibility to seek expert advice to assist in their decision-making. On this basis, AG Wahl proceeds by considering the benefits of involving psychologists in the adjudication process (para. 33-34), but is also very clear about the impossibility of a psychologist determining an applicant’s sexual orientation based on personality tests (par. 36). Nonetheless, AG Wahl goes on to analyse under which circumstances such tests can nevertheless be admitted, thus effectively accepting them.

AG Wahl tries to soften the blow of admitting the tests in question by stating that consent is required, and that the tests need to be carried out in a way that is compatible with the rights to dignity and to respect for private and family life (Articles 1 and 7 of the EU Charter and Article 8 of the European Convention on Human Rights). Although AG Wahl expressly acknowledges the difficulties in withholding consent in the context of an asylum claim, he does not seem to find it problematic that – in his own words and in a likely violation of the applicant’s rights under EU law – the ‘applicant’s refusal [to consent to the tests] may have certain consequences that the applicant himself has to bear’ (par. 45). In other words, refusing a test with no probative value that could violate applicants’ rights may lead to the refusal of their asylum claim – a highly disproportional and unfair outcome, we would argue.

The Opinion goes on to further qualify the admissibility of such tests by questioning the probative value of examinations based on dubious science or used in the wrong context (par. 48). And yet, AG Wahl also offers domestic courts a wide margin of appreciation in this regard, by stating that it is not for the CJEU to assess such tests. Having seen how the tests in question had been used in relation to a gay male applicant to deny him asylum, it is patently unwise to offer domestic authorities such leeway in asylum cases relating to sexual orientation. The fact that AG Wahl refers to the right to an effective remedy (Article 47 of the EU Charter) and to the freedom of domestic courts to depart from the ‘findings of the expert’ (par. 50) may be an implicit suggestion that the domestic court in this case should differ from the experts’ opinions and feel free to grant asylum to the applicant. Yet, that is clearly insufficient to appease the legitimate concerns of asylum seekers in similar situations, since they will be at the mercy of (administrative and judicial) authorities who may happily offer probative value to ‘junk science’ detrimental to their asylum claims.

AG Wahl’s Opinion accepting in principle the use of projective personality tests in cases involving asylum claims on the basis of sexual orientation is deeply disconcerting. On the one hand, he clearly doubts the usefulness or appropriateness of such tests (even referring to Principle 18 of the Yogyakarta Principles protecting individuals from medical abuses based on sexual orientation or gender identity), and he alerts domestic courts to the possibility of disregarding them even when they are carried out. On the other hand, he does recommend that such tests should be allowed (even if with a range of supposedly helpful caveats), thus abandoning claimants to the mercy of potentially unsympathetic domestic authorities. Equally disconcerting is the fact that nowhere in the AG’s Opinion is there a reference to the principle of the benefit of the doubt: although it may not be strictly necessary to refer to this principle in this context, its absence is striking for leaving out of the equation an essential element of the evidentiary standards in refugee law (para. 203-204 of the UNHCR Handbook and Guidelines on Procedures and Criteria for Determining Refugee Status). It is submitted that the focus of the Opinion should have been on the line of questioning that should have been used, such as per UNHCR Guideline No. 9.

he Opinion in this case could have much more simply asserted, as AG Sharpston did in her Opinion in A, B and C (largely followed by the CJEU), that ‘medical [or psychological, we would add] tests cannot be used for the purpose of establishing an applicant’s credibility, as they infringe Articles 3 and 7 of the Charter’ (par. 61), and that applicants’ consent is both essentially irrelevant and questionable (par. 67). Instead, AG Wahl offers poor guidance to the CJEU.

‘Projecting’ this Opinion onto the CJEU’s Judgment

In the F case, the CJEU will be called upon to interpret EU law with regard to the evidentiary assessment of SOGI asylum cases in a more targeted way than it did in A, B and C. Predicting a Court’s verdict is something one should try to avoid; however, the relevance of the issues at stake in the F case allows us to contemplate some potential scenarios. First, the CJEU has the option to build on and expand its approach in A, B and C and therefore construe its whole reasoning on the basis of respect for the EU Charter, particularly Article 1. In this sense, psychological personality tests to evaluate sexual orientation would be precluded, as the prohibition set forth by the CJEU in A, B and C is arguably not limited to physical examination, but extends more generally to all ‘“tests” with a view to establishing […] homosexuality’. Secondly, should the CJEU follow the AG’s opinion, it would need to carefully construe how it is possible to ensure that psychologists’ expert opinions are truly limited to an evaluation on the general credibility, and not just a loophole to pave the way to unreliable psychological assessments of sexual orientation.

Further, the Court should make sure that any such expert opinions on credibility are not used as ‘lie detectors’ based on preconceived assumptions – otherwise we could well resort to Harry Potter’s veritaserum for all asylum claims. Moreover, the CJEU would need to explain how genuine consent can be sought, since the option of taking tests that are not compulsory but seen as useful for credibility assessment would put pressure on other applicants to take the tests, thus undermining the validity of any consent obtained. Finally, should the CJEU agree with the use of projective personality tests in SOGI asylum claims, it would compromise the progressive steps previously taken in this area – a slippery slope we strongly hope the Court will not enter. The CJEU has already spelled out, in A, B and C, some of the crucial elements for deciding the present case; now, it is a matter of entrenching those elements, so as not to leave room for ambiguity or for the use of evidentiary means that are in breach of asylum seekers’ dignity and fundamental rights.

Nuno Ferreira is Professor of Law at the University of Sussex and Denise Venture is a PhD candidate in Refugee Law at Scuola Superiore Sant’Anna. The authors wish to thank the useful comments provided by Dr Carmelo Danisiand Dr Moira Dustin on previous drafts of this text, which first appeared on the EU migration blog

European court rules on Internet jurisdiction

 

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Andres Guadamuz

Where do things happen online? This is the eternal question of Internet regulation. While we like to think of the Internet as a global medium, increasingly we are faced with a regulatory clampdown and real-world solutions to online incidents. The latest decision dealing with online jurisdiction comes in the shape of Bolagsupplysningen OÜ and Ingrid Ilsjan v Svensk Handel AB (Case C‑194/16), an online defamation case.

The case involves Svensk Handel, the Swedish trade federation of the commercial sector, and the Estonian company Bolagsupplysningen, which  offers corporate search services and conducts its businesses mostly in Sweden. One of Svensk Handel’s functions is to provide consumer information with regards to dubious commercial practices, and it lists several websites that engage in potentially damaging and/or fraudulent practices. Svensk Handel has an entry on Bolagsupplysningen (still live at the time of writing), which warns users that the Estonian company sends out incorrect address forms to its customers, which when sent back contains a clause to sign up for a business subscription. The page has comments open (over 1600 at the time of writing), most of them of consumers criticising the Estonian company and offering their own experiences.

Bolagsupplysningen sued Svensk Handel in an Estonian court for defamation, alleging that both the information on the page and the comments were defamatory. They claim that the comments were filled with insults and even death threats to its employees. The Estonian court in first instance rejected the claim because the page was published in Sweden and it was in Swedish, so no damage could be established in Estonia; furthermore the fact that the content had been published in Estonia via the Internet did not not automatically justify an obligation to bring a case before an Estonian court. The case was appealed, and the Talinn Court of Appeal sided with the first ruling. The decision was then appealed to the Estonian Supreme Court, which decided to stay the proceedings and deferred three questions to the Court of Justice of the European Union.

  1. Can a legal person sue for the entire harm caused by infringing comments online in the country where the information was accessible?
  2. Can a legal person sue for the entire harm caused by infringing comments online in the country where the that person has its centre of interest?
  3. In case question 2 is affirmative, in which jurisdiction could the injured person seek remedies?

The CJEU answers the first question quickly in the negative by ruling that a person “cannot bring an action for rectification of that information and removal of those comments before the courts of each Member State in which the information published on the internet is or was accessible.” This is the most logical conclusion, as a positive answer would have opened the floodgates to online defamation suits in all Member States with no other connection than the fact that some information was published online. That way madness lies.

The Court merged the second and third questions, and delved on the underlying legal issue in more detail. The Court posed the legal question thus:

“…a legal person claiming that its personality rights have been infringed by the publication of incorrect information concerning it on the internet and by a failure to remove comments relating to that person can bring an action for rectification of that information, removal of those comments and compensation in respect of all the damage sustained before the courts of the Member State in which its centre of interests is located and, if that is the case, what are the criteria and the circumstances to be taken into account to determine that centre of interests.”

The previous authority in this subject from the CJEU had been eDate Advertising and Others (C‑509/09 and C‑161/10), in which it was decided that the main consideration when it came to online jurisdiction for a tort, delict or quasi-delict was to bring an action where the harmful event had taken place, or will take place, the Court was clear to interpret it broadly, and commented that this can be deemed to be as the same place where the person resides, as this is where the harm could occur the most, taking into account that the damage will be “felt most keenly at the centre of interests of the relevant person, given the reputation enjoyed by him in that place.” (at para 33). The Court explains this reasoning further:

“Thus, when the relevant legal person carries out the main part of its activities in a Member State other than the one in which its registered office is located, as is the case in the main proceedings, it is necessary to assume that the commercial reputation of that legal person, which is liable to be affected by the publication at issue, is greater in that Member State than in any other and that, consequently, any injury to that reputation would be felt most keenly there. To that extent, the courts of that Member State are best placed to assess the existence and the potential scope of that alleged injury, particularly given that, in the present instance, the cause of the injury is the publication of information and comments that are allegedly incorrect or defamatory on a professional site managed in the Member State in which the relevant legal person carries out the main part of its activities and that are, bearing in mind the language in which they are written, intended, for the most part, to be understood by people living in that Member State.”

The Court then answers the referred questions:

“The answer to the second and third questions therefore is that Article 7(2) of Regulation No 1215/2012 must be interpreted as meaning that a legal person claiming that its personality rights have been infringed by the publication of incorrect information concerning it on the internet and by a failure to remove comments relating to that person can bring an action for rectification of that information, removal of those comments and compensation in respect of all the damage sustained before the courts of the Member State in which its centre of interests is located.
When the relevant legal person carries out the main part of its activities in a different Member State from the one in which its registered office is located, that person may sue the alleged perpetrator of the injury in that other Member State by virtue of it being where the damage occurred.”

For the most part this seems like a rational decision based on the law, but not such a good ruling regarding the specifics of this case. It feels strange to give jurisdiction to a court in Estonia for a potential defamation occurring in a Swedish website, published in Swedish and dealing mostly with Swedish consumer issues, even if the company is based in Estonia. While it is understandable that the harm may occur where the person resides and conducts businesses, the harmful act itself took place in Sweden. The Court leaves this option open as well, the result being that at least in principle those affected by defamation (or other civil harm) could sue in both the country where they reside, and where they hold their centre of interest.

I for one do not see any changes to current practices, but I am willing to see what others think.

Andres Guadamuz is Senior Lecturer in Intellectual Property Law at the University of Sussex. This article first appeared as a blog post on his Technollama blog

A new Hate Crime Act is needed to address vast ‘justice gap’ for hate crime in England and Wales

Mark Walters
Mark Walters

It is almost twenty years since the UK Government enacted specific race hate crime offences (ss. 28-32 Crime and Disorder Act 1998 (CDA)). Since then, the legislation has been amended to include religious-based hate crimes, while sentencing provisions that prescribe sexual orientation, disability and transgender hostilities have also been introduced (as set out in the Criminal Justice Act 2003 (CJA)).  The piecemeal way in which hate crime laws have been enacted in the United Kingdom means that there are now different levels of legislative protection for the current five recognised groups commonly targeted for hate crime. In response to this, in 2012, the Ministry of Justice requested that the Law Commission examine whether the Government should extend the aggravated offences in the CDA (England and wales only) to apply equally to all five protected characteristics.  In its final 2014 report, the Commission recommended that a wider review of the law be carried out in order to determine how the law should be amended, abolished or extended.

In response to the Commission’s report, the University of Sussex recently conducted a 24 month study on the application of hate crime laws in England and Wales, which was funded by the EU Directorate-General Justice and Consumers department as part of a wider European study on hate crime legislation across five EU member states (England and Wales; Ireland; Sweden; Latvia; and the Czech Republic). A mixed-methods approach was employed for the project which enabled us to compare and contrast the stated aims and purposes of policies and legislation with the experiences of those tasked with enforcing and applying the law. This approach included: (a) an assessment of existing policies and publically available statistics; (b) a review of over 100 reported cases; and (c) 71 in-depth, qualitative semi-structured interviews with “hate crime coordinators” and “hate crime leads” at the Crown Prosecution Service (CPS), District (Magistrates’ Court) and Circuit (Crown Court) Judges, independent barristers, victims and staff at charitable organisations that support victims of hate crime, police officers, and local authority minority group liaison staff.

Using publically available statistics and new data analyses provided by the ONS for us on hate crime, we calculated an approximate number of offences that are likely to “drop out” of the criminal justice system. The total number of cases that drop out of the system represent what is known as the “justice gap” for hate crime. Analysis of the Crime Survey for England and Wales (CSEW) suggests that between 2015-16 approximately 110,160 hate crimes were reported to the police. Yet official police statistics for the same period recorded just 62,518 hate crimes. This suggests that only 57% of those incidents reported to the police are recorded as hate crimes. During the same year, the CPS prosecuted 15,442 hate-based offences, of which 12,846 resulted in a conviction. The CPS also recorded the announcement of sentencing uplifts in court as 33.8% of total hate crime convictions, which equates to 4,342 cases. If these data are accurate, it means that out of an approximate 110,160 reported hate crimes, only 4,342 offences (4%) resulted in a sentence uplift based on identity-based hostility. In other words, approximately 96% of reported hate crimes (102,658 cases) may not result in a sentence uplift.

There are a number of possible reasons for this significant “justice gap” for hate crime, including: differences in definitions of hate crime used by the police compared with the courts; diverging dates between reporting and legal action; victims retracting statements; and perpetrators never being apprehended (amongst various other factors). However, we also identified a number of factors that restrict the successful application of hate crime legislation within the legal process for hate crime that are likely to exacerbate the rate of attrition for hate crimes. During our study we identified the following problems:

  • A systemic failure to identity and “flag” disability hate crimes, as well as a reluctance amongst many judges and legal practitioners to accept evidence of targeted violence against disabled people as proof of “disability hostility”;
  • A general lack of awareness of ss. 145 & 146 of the Criminal Justice Act 2003 amongst certain key professionals, indicating that disability, sexual orientation and transgender-based hate crimes are less likely to attract a sentence uplift;
  • A reluctance in parts of the judiciary to accept “demonstrations of hostility” committed in the “heat of the moment” as falling within the scope of the legislation;
  • A perceived reluctance amongst jurors to accept “demonstrations of hostility” committed in the “heat of the moment” as falling within the scope of the legislation;
  • The potential for “double convictions” in the Magistrates’ Courts, where defendants are convicted for both the basic and aggravated version of the offence (though only punished once);
  • Diverging approaches to calculating “uplifts” for enhanced sentencing, with calculated uplifts ranging from 20%-100%;
  • A general lack of use of rehabilitation or community-based sanctions for hate crime offenders.

The study concludes that hate crime laws are still too frequently ignored or incorrectly applied by the courts. Without legal reform, along with amendments to procedure and new options for alternative justice, we believe that many victims and defendants will be denied justice. In order to address these perceived problems within the legal process for hate crime we advocate four key law reform options:

  1. We recommend, as a minimum, that Parliament amend s. 28 of the Crime and Disorder Act 1998 to include sexual orientation, disability and transgender identity.
  2. Based on the statistics and analysis of interviewee data, the following offences should be considered for inclusion under the CDA: Affray; Violent disorder; All sexual offences; Theft and handling stolen goods; Robbery; Burglary; Fraud and forgery; S. 18 Grievous bodily harm; Homicide offences
  3. The Government should legislate to create a new Hate Crime Act that consolidates the existing fragmented framework which would prescribe any offence as “aggravated” in law where there is evidence of racial, religious, sexual orientation, disability and/or transgender identity hostility. Sentencing maxima for the aggravated offences should be the same as for the basic offence, with the legislation mirroring ss. 145 and 146 CJA in so far as the courts “must” take into consideration hostility (or the by reason selection, explained below) and state in open court how the sentence has been affected by the aggravation.
  4. We propose that the successful prosecution of all types of hate crime will be enhanced were the legislation to be amended at s. 28(1)(b) (or equivalent in a new Hate Crime Act) so that the provision now reads as follows:  “the offence is committed by reason of the victim’s membership (or presumed membership) of a racial or religious group, or by reason of the victim’s sexual orientation (or presumed sexual orientation), disability (or presumed disability), or transgender identity (or presumed transgender identity).”

If these options for reform are taken up by the Government, we strongly believe that the criminal justice system will be better equipped to tackle the growing problems associated with hate crime in England and Wales.

Further analysis and recommendations can be found in the full report (including an executive summary): “Hate Crime and the Legal Process: options for law reform”. The report is co-authored by Mark A. Walters, Susann Wiedlitzka and Abenaa Owusu-Bempah, with Kay Goodall.

Mark Walters is Reader in Criminal Law and Criminal Justice, and  co-Director of the International Network for Hate Studies. This post first appeared on the International Network for Hate Studies Blog.

Queering Brexit

Rainbow

How little can Little Britain get?

On 24 June 2016, many people had the feeling that they had gone to bed the night before in the United Kingdom and had woken up in Little Britain – a country prone to isolationism and protectionism, risking hurting its economic and social development for the sake of imperial nostalgia and moral panic about ‘loss of sovereignty’ and ‘mass migration’. That feeling inevitably affected many individuals who identify as lesbian, gay, bisexual, trans, intersex, queer and other (LGBTIQ+). Although the possible impact of Brexit seems to have been scrutinised from most angles, there has been limited analysis of how it may affect LGBTIQ+ individuals.

There is certainly more than one ‘gay in the village’, so it is worth assessing Brexit in relation to the situation of LGBTIQ+ individuals. This is particularly timely in the light of the recent UK Supreme Court decision in Walker v Innospec Limited, where the Court relied on European Union (EU) law to hold a provision of the Equality Act 2010 unlawful for violating pension rights of same-sex couples.

What has the European Union ever done for us queers?

The EU has often been viewed as ‘the’ sexual minorities’ champion. Whether or not this is entirely true, it has certainly been instrumental in pushing ahead the LGBTIQ+ agenda in EU member states, including the United Kingdom.

Following the reform of the European Treaties in 1997, the EU was able to take concrete, although minimum, actions to improve LGBTIQ+ people’s lives. Not only did the EU foster a cultural change in all member states, but it also introduced legal obligations that went far beyond their original scope. To mention one example, the Equality Framework Directive 2000/78, which prohibits a range of forms of discrimination in the field of employment, has been read and applied through an ‘anti-stereotyping approach’ by the Court of Justice of the EU (CJEU) and, consequently, throughout the Union.

For the first time, discrimination was detected in the case of public statements that reproduced popular clichés of homosexuality. As a result, such statements have been held unlawful when used to de facto hamper (actual or presumed) gay people from being employed (see Accept). By the same token, employees’ civil status has been deemed irrelevant as the basis for distinctions between employees if it reflects sexual orientation discrimination.

Hence, measures such as pensions, special leaves, etc., aimed to support employees’ families, cannot be denied to LGB(T) employees only because they are not married (or cannot marry) (see MarukoRömerHay). In fact, marriage has been identified by EU judges as a heteronormative notion that embeds ‘in itself’ stigma and discrimination against LGB people in countries where marriage is restricted to opposite-sex couples (see again Hay).

If we add that the EU Parliament has shown an interest in developing an interconnected and comprehensive set of measures in most spheres of life of LGBTIQ+ people through a SOGI Roadmap, then we can see that the EU has started down the path towards full recognition of LGBTIQ+ people’s ‘social’ dignity. This is even clearer if we consider the EU’s commitment to grant international protection to people fleeing homophobia outside the Union, demonstrated in the CJEU’s decisions in X, Y and Z and A, B and C.

It goes without saying that the UK will not be obliged to follow this path after Brexit. Considering also that the EU will lose an ‘LGBTIQ+ friendly’ member state, with clear implications on the internal consensus for pushing ahead the equality agenda, then LGBTIQ+ people both in the UK and elsewhere in the EU may suffer from Brexit.

God save the… queers?

Focusing on the UK, it was the EU’s Equality Framework Directive 2000/78 which acted as the spark for a change of direction in domestic discrimination law directly benefitting LGBTIQ+ people. LGBTIQ+ individuals and communities have seen significant progress since the turn of the century and much of it can be attributed to the UK’s membership (understood in its broadest sense) of the EU and the benefits derived from this in terms of a) law and policy, b) funding and broader capacity-building, and c) solidarity between activists and civil society organisations across Europe.

In the first of these areas, the Equality Framework Directive was the catalyst for a new direction in UK policy and law – which had hitherto been largely punitive and discriminatory (think of, say, the Section 28 prohibition on the ‘promotion of homosexuality’ by schools). The directive sparked a series of government white papers, legislative reviews and stakeholder debates that ultimately went beyond the requirements of EU law.

These culminated in the establishment of an equality body and the Equality Act 2010, both of which were founded on tackling discrimination on the basis of nine protected characteristics, including sexual orientation and gender reassignment, and enshrining a duty on public bodies not only to prevent discrimination but also to advance equality of opportunity (something that, notably, did not derive from European Union law).

Furthermore, EU funding has been crucial for organisations which support activities to raise awareness of discrimination and develop tools to tackle it, for example through the Progress funding programme, or through the surveys and reports commissioned by the Fundamental Rights Agency. And finally, UK membership of the EU has brought engagement with many NGOs and networks of NGOs working in partnership across Europe to tackle LGBTIQ+ discrimination and hate crime – often with the financial support of the Commission, such as ILGA Europe.

Once outside the EU, the UK may not be nudged by new laws, regulations and other initiatives into tackling discrimination to the same extent as it is now.

Hard, soft or no fall?

What will happen to LGBTIQ+ rights when the UK formally leaves the EU is obviously an exercise in futurology. Yet, one thing is clear: the fall is very likely to be hard for LGBTIQ+ individuals and anyone else relying on discrimination law to protect them, especially considering the decade-long appalling record of the Conservative Party on equality policies.

In light of the Great Repeal Bill recently approved in the Commons and Theresa May’s well-known wish to withdraw from the European Convention on Human Rights, not only might a future government erode EU-derived norms that currently protect LGBTIQ+ individuals, but where this results in a human rights violation, it might also try to deprive them of the possibility of resorting to the European Court of Human Rights.

Although it is theoretically possible that the UK will not attempt to regress in terms of the achievements described above, LGBTIQ+ individuals, organisations and communities should be well aware of one thing: they will most likely be deprived eventually of a number of pathways to justice and more progressive policies. To compensate, they will need to step up the domestic fight and build new forums for international cooperation. Red alert it is.

Dr Carmelo Danisi is Research Fellow at the University of Sussex and Adjunct Professor at the University of Bologna; Dr Moira Dustin is Research Fellow at the University of Sussex; and Professor Nuno Ferreira is Professor of Law at the University of Sussex. The authors are members of SOGICA, a four-year (2016-2020) research project funded by the European Research Council (ERC) that explores the social and legal experiences of asylum seekers across Europe claiming internal protection on the basis of their sexual orientation or gender identity (SOGI). The authors plan to release a longer analysis on the theme of this blog piece in a collection to be published in 2018, currently being co-edited by Moira Dustin, Nuno Ferreira and Susan Millns. This post was originally published on the UK in a Changing Europe weblog

BREXIT MUST BE STOPPED

Gentalty
Gerard Gelanty

The Leader of the Labour Party has re-stated his positon, which is the de facto policy of the party, that the outcome of the Referendum of 23rd June 2016 must be respected. By this he clearly means it must be implemented and thus agrees in substance with the position of the Conservative government. The only disagreements are on matters of the procedure by which the UK should leave the EU.

I wish to ask, again, the question why the outcome of the Referendum must be implemented in light of the following facts:

First, there is the fact that the Referendum was itself an unbinding advisory referendum. It was not a legislative one, which means that it did not need to be implemented. This is why in the Act that enabled the Referendum safeguards were not put in place to mitigate against a small majority (for example a qualifying threshold).  Yet, it is constantly presented as a decision that we are locked-into. This is a deliberate attempt to mislead the public on the legal status of the Referendum.

Second, on the legal aspect, if there is any doubt about the legal necessity to implement the outcome, the Supreme Court ruled that the Referendum did not constitute a decision to leave the European Union. That decision would have to be made by Parliament and would need an Act of Parliament.

Such a decision has not been made and nor has an Act of Parliament been made. A Notice of Withdrawal Bill was presented in response to the Supreme Court’s ruling. However, this did not include a withdrawal decision. The bill was a mechanism for notification of a decision, which has not yet been made. A notification is not a decision. Yet, the Government has falsely claimed that the Referendum was a withdrawal decision. This is a false claim and contrary to the Supreme Court ruling that affirmed the sovereignty of parliament.

The false claim that the decision was already made precluded parliamentary debate about the Referendum result. Parliament has not debated the Referendum result. Neither the Referendum result nor the Notice of Withdrawal provided the constitutionally required decision to leave.

Third, as to the political necessity to execute the outcome as ‘will of the British people’, the simple facts need to be re-stated. Only 37 % of the electorate voted to Leave the EU. A very large number of people entitled to vote were not on the voting register, many of them – those most affected by the outcome – were disfranchised.

The 3.8% majority won by Leave is a small majority for such a major change to the status quo and one that leads to the abrogation of rights currently held, in particular the rights held by young people. It cannot be argued that there is a large or clear majority in favour of Leave. Not much more than 25% of the UK population support Leave. There is no unquestioned mandate. The reality is that the UK is deeply divided.

Four, the Leave campaign was itself driven by lies which were not challenged by the government. In view of the above – the deliberate attempt to conceal the fact that the referendum result is irreversible and the ‘will of the people’ – the integrity of democracy is diminished. It is not the case that decisions cannot be reversed. Indeed, it is part of the democratic process to check and revise decisions in light of changing circumstances. Referendums may have their place, but they are only one part of the democratic process. Public opinion has already shifted against Brexit in realisation of the negative economic consequences that will almost certainly follow.

Five, it is clear that it is not in the national interest for the UK to leave the EU. Yet, the Government is pursuing this destructive goal, which, with some exceptions, has the support of the Labour party.

The UK will lose its world standing and will be isolated from the EU and severed from its largest trading partner. It does not have in place alternative trading arrangements that will compensate for the exclusion from the EU single market. It is evident that the government’s plans to implement Brexit are clearly going badly wrong.  There was never an analysis of the risks and all advice given to the government on the catastrophic outcome for industry, trade and finance were ignored and concealed from public scrutiny. The direction of travel is plainly catastrophic. It is clearly a serious dereliction of the duty of parliamentarians to give their support to a cause that has no foundation in legal necessity or political reason.

Why is this madness that derives from a small group of ultra-nationalist MPs taken on such a magnitude and received the acquiescence of the majority of MPs who know it is foolhardy? The Referendum was driven by the David Cameron’s desire to solve an internal problem in his party – and which has manifestly failed – but was bizarrely given parliamentary assent with the backing of Labour MPs.

The majority of MPs are in favour of the UK remaining within the EU – or remaining within the Single Market – yet they have surrendered reasoned deliberation for a panic-stricken endorsement of nationalist isolationism that has now left the democratic process paralyzed.

The inescapable conclusion is that it is clearly time to stop Brexit.

Gerard Gelanty is a Professor of Sociology & Social & Political Thought at the University of Sussex. This blog post first appeared on his personal blog.

State Aid is on the Agenda: Deal or No Deal

erika
Erika Szyszczak

State aid issues are highly politicised. And for good reasons. Taxpayers’ money is being used in a selective manner, without any democratic input into its effective use. Competitors, at home and abroad, feel aggrieved that a firm is either obtaining an unfair advantage or being bailed out, where it cannot compete on the market. But State aid may be necessary to combat unusual situations, such as environmental disasters, or financial crises, or to buy time to rescue and restructure in order to save jobs and a local economy. It may be needed on an ongoing basis to provide public services. 

The role of State aid after Brexit is on the political agenda. The global implications of using State aid have already been seen in the Boeing-Bombardier dispute, discussed in the blog by Professor Steve McGuire.

At the domestic level, a discussion has to be had on how State aid will be used in a post-Brexit Britain.

In an interview with Andrew Marr on 24 September 2017, at the start of the Labour Party Conference Jeremy Corbyn discussed, for the first time, one of the core reasons why the Labour Party supported Brexit. He argued that the Single Market

“has within it restrictions in state aid and state spending. That has pressures on it through the European Union to privatise rail for example and other services.”

At one level this comment is an astute and nuanced understanding of the EU State aid rules. Although located within the Chapter of the EU Treaty (TFEU) on competition, they are in fact more attuned to the free movement issues – found in the four economic freedoms of the single market, than the competition rules which address mergers, collusion and abuse of dominant power by private firms.  However, the comment is not a correct analysis of the substance of EU State aid law. A paper by Andy Tarrant and Andrea Biondi, EU law is no barrier to Labour’s economic programme has shown that none of the 26 radical economic proposals contained in the 2017 Labour Party Manifesto would be impeded by the EU State aid rules. This paper has been attacked by Danny Nicol, Kiss goodbye to nationalisation if we stay in the single market . He argues that the Tarrant-Biondi analysis misses the point that the liberalisation of markets in the EU has necessarily led to the privatisation of essential services and sectors such as telecoms and utilities, such as gas, water, postal services.

Thus, there needs to be a better understanding of the way in which the EU State aid rules operate, and to think more carefully about how State aid will be regulated post-Brexit. Firstly, to set the record straight, the EU Treaties do not prevent nationalisation of industries or sectors. From the beginnings of the Common Market, the legal framework was neutral on public or private ownership. In 1957, the original EEC Member States were social welfare states, often using State monopolies to deliver a range of social and industrial essential services. In some instances, monopolies were created to raise revenue, for example, tobacco and matches, or alcohol monopolies, as well as fulfilling a social or health-related function of curbing excessive consumption.

Thus, what is now Article 345 TFEU, states:

This Treaty shall in no way prejudice the rules in Member States governing the system of property ownership.

Over time, as a result of the liberalisation of markets, especially after the completion of the Single Market,  there were pressures – stemming initially from the UK – for both the European Commission and the European Courts to subject State monopolies to closer scrutiny. But in many instances, the complaints were made by competitors and consumers who were tired of the out-dated and inefficient State monopolies not meeting consumer demands. In other cases, for example, telecoms and postal services, the pressures came from dramatic changes to technology.  The legal position under EU law is that where monopolies exist and are engaging in an economic activity, the State must follow the EU rules. Especially those relating to the four economic freedoms and the competition (anti-trust) rules. This creates a level playing field and prevents the deep pocket of the State from stifling competition.

But even so, EU law has developed a number of tools to manage State intervention, for example, where the State acts in the same way as a private market investor would behave, it may inject capital into firms that it either controls or owns a significant shareholding. The constraint is that the State may not behave unilaterally; it is subject to investigation and justification under EU law. This ensures that State aid is being used correctly and effectively. This is very different from the assertion that the State may not invest in public firms.

Also, where the State can show that there is an essential public service at stake (known as a Service of General Economic Interest in EU law) then the State may be able to subsidise that service where it is shown that there is a market failure. Recent cases in the EU have involved transport issues, for example, where the State has identified a need to subsidise a local airport (Scotland, France) or maintain a rail link to remote areas (Denmark). State aid has also been used to protect diversity in security of supply of energy (Lithuania, Malta), as well as ensuring the universal rollout of broadband (France). There is a current case before the European Court on whether Spain may use State aid where there is an alleged market failure to deliver the switch from analogue to digital TV.

Added to these two broad legal tools, the EU has created numerous exemptions from the application of the State aid rules for small local public services and for social services such as education and healthcare.

Since 2000, the EU has embarked upon a modernisation programme which has created clearer guidance for the Member States on where, and when, they may grant effective State aid. While such guidelines may seem prescriptive they do allow a Member State to get on with the financing of strategic projects without the need to negotiate with the European Commission.

Over time, except for the unusual set of conditions necessitating bank bailouts, it can be seen in the various EU State Aid Scoreboards that the amount of aid granted in the EU has decreased and has been used in a targeted manner, away from sectoral aid to projects that have a beneficial contribution to horizontal policies, such as the environment.

Brexit will not avoid the application of a State aid discipline. It is on the agenda as part of the EU negotiating brief for any future trade agreement with the UK. The EU is likely to apply Antidumping and Countervailing Duty duties against any trading partner granting State aid against its rules. Thus, the only way to be exempted is to sign a Free Trade Agreement that embodies EU state aid rules.

In the event of a ‘no deal’, the fall- back position of the World Trade Organization will also require a system of effective control of State subsidies.

All these requirements will require a transparent domestic State aid monitoring and enforcement body, as well as an ex post review of the effectiveness of measures taken. In addition to the political discussion of when, and how, State aid should be used any discussion needs to take on board the legal vacuum that will emerge if, and when, the UK leaves the EU.

Professor Erika Szyszczak is a Research Professor in Law at the University of Sussex and a Fellow of UKTPO. She is currently the Special Adviser to the House of Lords Internal Market Sub-Committee in respect of its inquiry into Brexit: competition. She is the author of The Regulation of the State in Competitive Markets (Hart Pub. 2007)