Ethnic minority youth living in Estonian has a very low self-confidence.<fnref n="1" /> Thus, more than 30% consider themselves on the lowest rung in the society (in contrast with 12% among ethnic Estonian youth).<fnref n="2" /> Marju Lauristin commenting on this statistical data pointed "The fact that there is such a large group of people with low self-esteem is actually the result of very many factors - teachers, parents and local environment, as well as of the media and the Estonian view".<fnref n="3" /> The life pessimism is not only a feature of ethnic minority youth. The economic optimism index among ethnic Estonians is considerably higher (54,6 points) than among ethnic minorities (39 points in a 100 point scale). Index is composed from seven criteria related to life quality, level of income and economic outlook for next 6 months.<fnref n="4" />

EDUCATION

Against the general consensus among ethnic groups on the necessity to reform the current educational system and to improve the proficiency in Estonian language there is a general disagreement between ethnic groups on the methods and the necessarily conditions for the success of the reform.

The educational reform in 2010 was actively discussed in Estonian and Russian media as well as by the political elites. Parallel educational systems divided on the basis of the language of instruction (Estonian and Russian) continue to exist where 23% of pupils in Estonia attend Russian medium schools.<fnref n="5" /> From 2007 a gradual transition to the Estonian language of instruction started in Russian language secondary and upper secondary schools. As part of this reform in school year 2010/2011 four subjects are taught in Estonian: Estonian literature, Music, Social Studies and Geography.<fnref n="6" />

The responses to the transition to the Estonian language of instruction in Russian language schools are extremely mixed. Although it seems that there is a general consensus among ethnic communities, especially among youth, that proficiency in the Estonian language is an important asset the means to achieve this goal are debated. While majority of Estonians consider it necessary to switch to the Estonian language of instruction as soon as possible Russian community insists on more balanced and gradual transition. The current parallel system of education is clearly unsatisfactory, among other factors, because it is not able to adequately secure the sufficient proficiently in Estonian language of the ethnic minority youth. The abrupt solutions nevertheless could lead to more social problems than solutions. The problematic is not in the lack of motivation but rather in the lack of the qualified personnel and teaching materials allowing smooth and gradual transition to the quality language learning especially in the regions with high density of ethnic minority groups. According to the estimates of the Language Inspectorate still 70% of teachers of the Russian language schools are not sufficiently proficient in Estonian.<fnref n="7" /> It is highly questionable whether sufficient human resources exist to guarantee quality education to ethnic minorities in the Estonian language as proposed by ongoing educational reform.

<footnote n="1">¹ Low Self-Confidence Among Young Russians a ‘Complex Problem’, Estonian Public Broadcasting News (in English language version) published on 04.11.2010 available at http://news.err.ee/Culture/62b1ff40-3467-41bd-8579-0e44459fb687</footnote>

<footnote n="2">² Ibid, fn. 1.</footnote>

<footnote n="3">³ Ibid, fn. 1.</footnote>

<footnote n="4">⁴ Faktum & Ariko (2010) discussed in Eestlased on endiselt muulastest optimistlikumad, E24 Majandus, published on 16.06.2010 available at http://www.e24.ee/?id=277242</footnote>

<footnote n="5">⁵ Integration Fact Sheet 2010, Ibid. fn. 2.</footnote>

<footnote n="6">⁶ Integration Fact Sheet 2010, Ibid. fn. 2.</footnote>

<footnote n="7">⁷ Interview with Tomusk, director of the Language Inspectorate, Ethnic Russian Teachers Still Struggle with Estonian, Estonian Public Broadcasting News (in English language version) published on 18.08.2010 available at http://news.err.ee/culture/c98c2300-3cac-4a9b-a205-f8b90445379d#comments</footnote>
The recent study on educational inequalities among ethnic groups points to growing
differences in the educational levels of ethnic groups. <fnref n="1" /> One of the reasons for growing
inequalities are the institutional conditions and political choices adopted after 1991

“instead of a gradual change in the education system the government chose to start a quick transition to teaching in only Estonian language in higher education. At the same time the quality of Estonian language instruction in Russian secondary school was rather poor ... it means that Russian speaking school leavers find themselves at a disadvantage in access to higher education. [...] We suppose that the termination of public education in the Russian language at the secondary level as well as decreasing follow ups to higher educational institutions has contributed to the lowering of the educational level of young Russians.”<fnref n="2" />

The close monitoring is necessary to evaluate whether currently ongoing upper secondary education reform would not contribute even further to the educational inequalities among ethnic groups.

ESTONIAN LANGUAGE LEARNING

Proficiency in Estonian language among ethnic minorities is continuously growing. However, the number of ethnic minorities who are fluent in Estonian language is still rather modest. Interest in language learning among ethnic minorities is high.

The latest statistical data suggest that roughly 50% of ethnic minorities can understand, read, communicate and write in Estonian language on medium and advanced levels.<fnref n="3" /> There are two main programs that help to facilitate language learning among ethnic minorities. The first program covers costs of Estonian language learning of stateless residents for naturalization exam.<fnref n="4" /> The second program, supported by European Union Social Fund, reimburses costs of Estonian language courses for ethnic minority residents regardless of citizenship who successfully pass language proficiency exam.<fnref n="5" /> The reimbursement is limited by the amount of 302 eur for each level of proficiency and can be claimed only *post factum* based on the proof of successful results of the language exam.<fnref n="6" /> In 2009–2010 program reimbursed 2,264 applicants. Free of charge language courses, as for example in other EU countries, are still however not widely available. In spite of the apparent demand in such free of charge, quality courses among ethnic minority groups.

ASSESSMENT OF THE DEVELOPMENTS IN ESTONIA BY HUMAN RIGHTS INTERNATIONAL
MONITORING BODIES

In 2010 three periodic reports by international human rights monitoring bodies addressed the issues of inter-ethnic relations in Estonia: European Commission against Racism and Intolerance (ECRI); UN Human Rights Committee and UN Committee on the Elimination of Racial Discrimination (CERD). All three reports had a rather critical tone.

<footnote n="1">¹ Lindemann, K and Saar, E, (2009) Educational careers of Estonians and Russians in Vetik, R and Helemäe, J. (eds.) Segregated Disparity: The Russian Second Generation in Two Estonian Cities, forthcoming; See also sociologist Elena Helimäe as quoted in article, Уровень образования у второго поколения русских в Эстонии ниже, чем у первого, День за Днём (Russian language newspaper), published on 07.12.2010 available at http://www.dzd.ee/?id=353594</footnote>

<footnote n="2">² Ibid. fn. 1.</footnote>

<footnote n="3">³ *Integration Monitoring Report*, ibid. fn. 3, p. 3.</footnote>

<footnote n="4">⁴ Free Language Studies, information available at the internet page of the Integration and Migration Foundation Our People, www.meis.ee</footnote>

<footnote n="5">⁵ Ibid. fn. 4.</footnote>

<footnote n="6">⁶ Ibid. fn. 4. According to the estimation provided in the Human Capital Report Ibid. fn. 9, p. 27, the amount of reimbursement is calculated considering 120 hours of teaching hours. This is however generally not sufficient as required number of hours depending on the student is 240 hours and more.</footnote>
While acknowledging a number of positive developments in Estonia the ECRI provided a long list of critical points.<fnref n="1" /> The ECRI recommends to Estonian authorities to ratify Protocol No. 12 to the European Convention on Human Rights (non discrimination protocol); to ensure provision of free of charge good quality of Estonian language courses irrespective of the success in language exam; establish monitoring mechanisms involving Russian speaking minorities on the work of the Language Inspectorate; enhance provisions of the Criminal Code to strengthen punishment for all racist crimes; ensure quality of education and respect for cultural identity in undertaking educational reforms; raise awareness on the compliance with the Equal Treatment Act and protection provided by this Act; take measures to reduce statelessness and enhance consolations with the representatives of ethnic minorities and combat racism and racial discrimination in policing. Finally ECRI recommends to adopt in consultation with concerted groups a law on the rights of national minorities.

The Human Rights Committee (HRC) in relation to ethnic minorities enjoyment of rights provided under the International Covenant on Civil and Political Rights focused on inequalities on the labor market; low trust among Russian speaking residents in the State and its public institutions as well as lack of initiative on the side of the Estonian state to consider collective reparation for persons deprived of their liberty following the 2007 Bronze Solder events.<fnref n="2" /> The HRC recommends state authorities to further strengthen active labor market measures aiming at the professional and language training as well as to take steps to increase confidence and trust of the of Russian speaking minorities in the State and its public institutions.

The CERD in addition to issues pointed by the ECRI and HRC, heavily criticized the “punitive elements in the language regime”.<fnref n="3" /> The CERD Committee recommends “adopting a non-punitive approach to the promotion of the official language and revisiting the role of the Language Inspectorate”. Furthermore, the Committee calls to consider “a dual language approach as regards delivery of public services, particularly in light of the prohibition of discrimination in access to public goods and services as provided for by the State party’s legislation”. To remedy the extremely low trust in State and public institutions the Committee recommends the State to “redouble its efforts to ensure greater participation by members of minorities in public life, including in Parliament, and take effective steps to ensure that they participate in the administration at all levels”.

The responses to the criticism and recommendations of the international reports have been mixed. Minister of Education Tõnis Lukas and member of the parliament Peeter Tulviste have heavily criticized ECRI report especially as concerned discrimination of Roma.<fnref n="4" /> At the same time, for example Aleksei Semjonov director of the NGO Legal Information Centre for Human Rights stated that he is not surprised by the critical tone of the ECRI Report.<fnref n="5" /> Semjonov pointed that issues criticized by ECRI are well known and widely debated among ethnic Russian community

<footnote n="1">¹ European Commission against Racism and Intolerance (ECRI) 4th Periodic Report on Estonia available at http://www.coe.int/t/dghl/monitoring/ecri/Country-by-country/Estonia/EST-CbC-IV-2010-003-ENG.pdf</footnote>

<footnote n="2">² Concluding observations of the United Nations Human Rights Committee to the third period report submitted by Estonia on the implementation of the International Covenant on Civil and Political Rights.</footnote>

<footnote n="3">³ Concluding observations of the UN Committee on the Elimination of Racial Discrimination.</footnote>

<footnote n="4">⁴ See e.g. Tulviste: raporti koostasid ebakompetentsed inimesed, Postimees, published on 03.03.2010, available at http://www.postimees.ee/?id=232337; Lukas: mustlaste diskrimineerimine on pastakast välja imetud süüdistus, Postimees, published on 02.03.2010, available at http://www.postimees.ee/?id=231825</footnote>

<footnote n="5">⁵ Aleksei Semjonov: Нас не удивил критический тон доклада Еврокомиссии, Internet Forum Podmoga, published on 04.03.2010 available at http://www.baltija.eu/news/read/5479; Semjonov: kui riik tahab kodanikega dialoogi, tuleb ÜRO soovitusi täita, Postimees, publishe on 20.10.2010, available at http://www.postimees.ee/?id=329507</footnote>
and in the Russian language media.<fnref n="1" /> Similarly to ECRI the criticism and recommendations included in the CERD Report were heavily criticized in the Estonian language media.<fnref n="2" />

In addition to the state reports in 2010 the European Court of Human Rights (ECrHR) rendered three decisions concerning complaints by Estonian ethnic minorities. In case of *Mikolenko v. Estonia* on a right to reside in Estonia of the former Soviet military servicemen the ECrHR found that Estonia violated Article 5 § 1 of the Convention and awarded non pecuniary damages to the complainant.<fnref n="3" /> In the collective complaint *Tarkoev and Others v. Estonia* submitted by the group of retired Soviet military servicemen arguing for the right to the pension for the years of civil service in Estonia not covered by the military pension paid by Russian Federation the ECrHR found no violation of Article 14 of the Convention taken in conjunction with Article 1 of Protocol No. 1.<fnref n="4" /> Finally, the ECrHR found party admissible collective complaint *Aleksandr Korobov and others v. Estonia*, by seven individuals related to the Bronze Solder events.<fnref n="5" />

In conclusion, positive indicators of the 2010 have been rather peaceful coexistence among main ethnic groups and improving Estonian language proficiency as well as increasingly strong and constructive opinions voiced in the Estonia media by academics calling for reforms of the current integration policy. Negatively, the socio-economic distance between ethnic groups further enlarged, the trust in political institutions further dropped and representation of ethnic minorities among public elites and decision makers remained weak. Thus, if developments in the sphere of cultural-linguistic integration are rather positive then developments in the socio-economic and civil-political spheres are negative. The reactions of the political elites on the criticism of international monitoring bodies, indicate, *inter alia*, that ethnic issues remain highly politicized and emotional. This lack on the political level (but not on academic level) of self-critical assessment on the integration policy is regrettable, potentially leading to the long-term economic development problems and social conflicts.

**Bibliography/References:**

1. Boroditš, D, Tundmatud naabrid, Postimees, published on 25.05.2010; Интеграция умерла! Да здравствует Интеграция! Published on 05.11.2010, Internet Forum Podmoga, Available at http://www.baltija.eu/news/read/13405.

2. Eesti Koostöö Kogu (ed.) Eesti inimvara raport (IVAR): võtmeprobleemid ja lahendused (2010) Säästva arengu komisjon, Tallinn.

3. European Commission against Racism and Intolerance (ECRI) 4th Periodic Report on Estonia available at http://www.coe.int/t/dghl/monitoring/ecri/Country-by-country/Estonia/EST-CbC-IV-2010-003-ENG.pdf

4. Hallik, K, Политика натурализации у нас провалилась, Estonian Public Broadcasting News (in Russian language version) published on 22.11.2010 available at http://rus.err.ee/radio4/5f5aca44-fd02-4b16-ae3a-74eb1bea4856;

5. Hallik, K, Социолог: государство должно задуматься о роли русских в Эстонии, Estonian Public Broadcasting News (in Russian language version) published on 28.09.2010 available at http://www.uudised.err.ee/index.php?26216054;

6. Integration Fact Sheet 2010, Eesti Koostöö Kogu, avaialbe at www.kogu.ee/public/Integration_at_a_glance_2010.pdf

7. Kablukova, I, В гробу я видела такую интеграцию!, *День за Днём* (Russian language newspaper) published on 03.11.2010, available at http://www.dzd.ee/?id=336155.

<footnote n="1">¹ Semjonov article from 04.03.2010, ibid. fn. 5.</footnote>

<footnote n="2">² See e.g. comments in the media by Ilmar Tomusk, in the article by Pors, M (2010) Keeleinspektsioon: raportis avaldatu ei vasta tegelikkusele, Postimees, http://www.postimees.ee/?id=329364; Urmas Paet: keegi ei soovita vene keelt riigikeeleks, Eesti Päevaleht, published on 20.10.2010 available at http://www.epl.ee/artikkel/585707; See opinions of Mart Niklus, Urmas Paet, Mart Nutt, Lauri Vahtre as quoted in article ÜRO soovitus: kakskeelsus Eestile, Öhtuleht, published on 21.10.10 available at http://www.ohtuleht.ee/index.aspx?id=399333&lid=7</footnote>

<footnote n="3">³ *Mikolenko v. Estonia*</footnote>

<footnote n="4">⁴ *Tarkoev and Others v. Estonia*</footnote>

<footnote n="5">⁵ Application no. 10195/08 Aleksandr Korobov and others v. Estonia</footnote>
8. Kosmõnina, T, “Üha enam vene noori eelistab edasi õppida Venemaal”, Estonian Public Broadcasting News (in Estonian language version), published on 25.07.2010, available at http://uudised.err.ee/index.php?06210548

9. Lindemann, K and Saar, E, (2009) "Educational careers of Estonians and Russians" in Vetik, R and Helemäe, J. (eds.) *Segregated Disparity: The Russian Second Generation in Two Estonian Cities*, Amsterdam University Press, Amsterdam, 2011.

10. Labori, Michel et Costea, Simion, *Le Management des Politiques de l'Union Europeenne*, PARIS, Prodifmultimedia, (FRANCE), 2011, 300 pages.

11. Pesur, V, Usaldus riigiasutuste vastu on venekeelsete inimeste seas väga madal, Postimees, published on 14.09.2010 available at http://www.postimees.ee/?id=312756

12. Poleshchuk, V and Järve, P, (2009) EUDO Citizenship Observatory Country Report: Estonia. http://ec.europa.eu/ewsi/ en/resources/detail.cfm?ID11473

13. Pors, M (2010) Keeleinspektsioon: raportis avaldatu ei vasta tegelikkusele, Postimees, http://www.postimees.ee/?id=329364

14. Pors, M, Narvalanna: parim amet Eestis on eestlane, Postimees, published on 13.12.2010, available at http://www.postimees.ee/?id=356478

15. Raagmaa, G, Kas rahvusvähemused on Eesti inimvara? Õhtuleht, available at http://www.ohtuleht.ee/index.aspx?id=387873

16. Raun, A, Pronksöö pani Eesti slaavlasi demokraatias pettuma, Postimees, published on 24.09.2010 available at http://www.postimees.ee/?id=317659

17. Reimaa, A, Information Letter 6/2010 (in Estonian), Ministry of Culture, Department of Cultural Diversity, p. 2.

18. Saar, E et.al. (ed.) *Immigrantrabvastik Eestis. Immigrant Population in Estonia*. (2009) Eesti Statistika, Tallinn.

19. Tänavsuu, H, Ainult keeleoskusest lõimumiseks ei piisa, *Postimees*, published on 11.12.2010, http://www.postimees.ee/?id=355648.

20. Toomla, R, *Mitte-eestlaste iibiskondlik-poliitiline aktiivsus ja osalemine* (2010), Tartu Ülikool, Riigiteaduste Instituut, Tartu.

21. Vetik, R et.al. (ed.) *Uuringu Integratsiooni Monitooring 2010 Raport* (2010) Rahvusvaheliste ja Sotsiaaluuringute Instituut, Tallinn, pp. 3-21.

22. Vetik, R, Estonian Integration Strategy (2008-2009) monitoring 2010, presentation available at https://kule.kul.ee/avalik/ integratsioon/EIS_monitoring2010_ENG.ppt

23. Vetik, R, Ühtsustunde ohtlik puudumine, Postimees, published on 15.09.2010 available at http://www.postimees.ee/?id=313168

# Irregular Migration in European Union after Lisbon Treaty

DR. LEHTE ROOTS

Tallinn Law School, Tallinn University of Technology

**Abstract:** The article is examining the current developments of the EU migration policy and legislation making in the field of irregular migration. Lisbon Treaty has given EU more powers to legislate and initiate the policy making also in the field of irregular migration. The article is also stressing the need to use the terms accurately. Illegality and irregularity are words used often interchangeable but they do not have the same meaning. No person is illegal. Finally the article is highlighting the interrelation between irregularity, asylum and problems of EU to control the irregular flows.

**Keywords:** EU immigration, Asylum, Illegal immigration, Irregular migration, Lisbon Treaty.

## INTRODUCTION

<figure><img src="image_15.png" /></figure>

U's immigration control has been the subject to major criticism over the past years.<fnref n="1" /> It is said that “the current available instruments in the EU fall short of fulfilling all the needs and providing a comprehensive response”<fnref n="2" /> to irregular migration. Massive

<footnote n="1">¹ Nascimbene B., Di Pascale A., (2011) The ‘Arab Spring’ and the Extraordinary Influx of People who Arrived in Italy from North Africa, *European Journal on Migration and law* 13, 341</footnote>

<footnote n="2">² Ibid</footnote>
migration flows, whether from the sea, land or air seem to be almost always an unexpected event rather than a standardized procedure for some of the Member States. C. Boswell calls this situation a legislative fiasco, and claims that the whole EU migration system is therefore "subject to systematic failure".<fnref n="1" /> At the end of the tunnel, when the Member States do find an alternative way to decrease irregular migration, they usually rely on regularization programs that allow states to legalize the irregularly staying persons. The article is giving an overview of the instruments used in tackling irregular migration and

As the IOM Glossary no 25 states there is not uniformly recognised definition for the irregular migration.<fnref n="2" /> Word irregular is nevertheless used more and seen as preferable work to explain the migration and migrants who are not recognised by the states as legal immigrants. There are two different options how to tackle the problem of irregularity or illegality. First option is to define who are legal migrants and then all the rest who does not qualify as legal can be called irregular immigrant. Second option is to define what is prohibited and what is called irregular and then stick to this definition irregular or illegal migrant. Why it has been then so difficult to agree upon the mutual understanding or definition of irregularity and illegality? The article will discuss the current EU migration legislation that is designed for the irregular migration control. It will be analyzed whether it might in fact attract and contribute to the irregularity.

To overcome irregularity among migrants is obviously not a simple task to accomplish, since according to Migration Policy Institute, EU had roughly 1.9 million to 3.8 million irregular migrants still in 2008,<fnref n="3" /> and nowadays the amount has been estimated to be even higher, nearly 8 million.<fnref n="4" />

Migrating from a country to another is currently relevantly easy, since the ways to travel have became much easier and cheaper than they used to be. This kind of movement has been seen as both "an opportunity and a challenge"<fnref n="5" /> for EU, since it does not only bring legally residing aliens, but also those who do not meet the requirements and thus, enter or stay and perhaps work without any right.

Therefore, EU controls migration, since otherwise there would be too many volunteers to enter and start a new life with a hope of a better beginning. It is simply impossible to give a chance for those who do not meet the requirements. There are of course people that cannot stay in their home countries because of wars and persecution, and those whose safety must be guaranteed in any case, but if we leave out asylum seekers, it is sometimes very hard to know the real reason for the entry. This is because, despite of different backgrounds, most immigrants, both regular and irregular, have usually similar motivation and goal in the end, as Fiona Kinsman, the Deputy Head of the Immigration and Integration Unit in the European Commission's Directorate-General for Home Affairs notes.<fnref n="6" />

The creation of Area of Freedom, Security and Justice has neither made the role of the EU nor the national Member States easier in coping with the never ending flows. This being said, we can state that even though the EU has taken irregular migration as a top priority<fnref n="7" /> to tackle with and for that reason a large number of resources have been devoted to prevent people from

<footnote n="1">¹ Boswell C., Geddes A., (2011) Migration and Mobility in the European Union, Palgrave Macmillan, England</footnote>

<footnote n="2">² IOM, (2011) Glossary on Migration, 2nd Edition, Geneva</footnote>

<footnote n="3">³ Morehouse C., Blomfield M, (2011) Irregular Migration in Europe, Migration Policy Institute, Transatlantic Council on Migration.</footnote>

<footnote n="4">⁴ Council of Europe, Parliamentary Assembly, Committee on Migration, Refugees and Population, available at: http://assembly.coe.int/Main.asp?link=/committee/MIG/Role_E.htm accessed 22.05.2012</footnote>

<footnote n="5">⁵ European Commission, (2009), An opportunity and A Challenge – Migration in the European Union. Available on the Internet at: http://ec.europa.eu/publications/booklets/move/81/en.doc accessed 03.06.2012</footnote>

<footnote n="6">⁶ European Migration Network (2012), Combating Irregular Migration: Practical Responses. Summary and Final Conclusions.</footnote>

<footnote n="7">⁷ European Commission, Standard Eurobarometer, Public Opinion in the European Union. Available on the internet at: http://ec.europa.eu/public_opinion/archives/eb/eb71/eb71_std_part1.pdf accessed 17.05.2012</footnote>
entering illegally and to return those who do not own the right to stay, irregular migration still exists. Irregularity emerges because people 'overstay' their visas, enter illegally or stay although ordered to leave the country. There seems to be lack of enforcement mechanisms and monitoring by the Member States of the persons staying on their territory.

Political scientists like Düvell expresses its opinion that irregular migration is usually linked with several other problems, such as absence of legal immigration channels, confusing, bureaucratic, inefficient and slow application procedures, too rigorous conditions for work permits, which leads to illegal work and different organizational cultures, which are used to protect the country rather than welcoming the newcomers.<fnref n="1" />

As we can see, the EU has internal as well as external factors that attract irregular migrants, but also give great potential to criminal organizations to profit from these vulnerable men, women and children. As in any case when new legislation is prepared, it is very essential to take into consideration certain things, such as human rights and financial expenses caused by maintaining security and freedom. Therefore, the EU is in a difficult situation where a certain group of people should be removed without hindering the rights of mobility of the EU citizens. It could be the case that sometimes solutions to defeat irregular migration are rather impossible, taking into account the difficult situation in the world. This means that the challenge is now for the EU and its Member States to create a strategic and comprehensive method to address and permanently reduce irregular migration.

EU's response to irregular migration can be described as a combination of mostly unsuccessful ideas simply because the EU has not been able to defeat it despite of several action plans. In 2011, 52% of the Europeans answered that immigration was a problem rather than an opportunity for their country and a majority of EU citizens were still worried about illegal immigration, with a European average of 67% with the highest rates in Italy (80%) and Spain (74%).<fnref n="2" />

To understand the lack of enthusiasm of EU's capability to manage irregular migration and its malfunction, it would be relevant to explain the beginning of the Europeanization of the migration policy and law.

As we know one of the key inventions in migration control issues was the Maastricht Treaty and its three pillars structure in 1993. These pillars consisted of European Communities (EC), Common Foreign and Security Policy (CFSP) and Police and Judicial Co-operation in Criminal Matters (PJCC). The idea of these pillars was to increase the Community power in the fields of foreign, security and defence policy, asylum and immigration policy, criminal and judicial co-operation.<fnref n="3" /> However, the awareness of constantly growing numbers in irregular entries<fnref n="4" /> and the feeling of uncontrolled atmosphere among migrants forced the Member States to cooperate even better.<fnref n="5" />

Behind this stricter control there was also a clear reason - namely the future idea of free movement of persons within the European Community. For that purpose the restrictions and cooperation between the Member States were seen as necessary in order to protect national security.

<footnote n="1">¹Düvell F., Paths into Irregularity: (2011) The Legal and Political Construction of Irregular Migration, in Special Issue, *European Journal of Migration and Law*, Vol. 13(3): 275-195</footnote>

<footnote n="2">²Transatlantic Trends, Immigration Patterns 2011. Available on the Internet at: http://www.gmfus.org/galleries/ct_publicationAttachments/TTImmigration_final_web.pdf accessed 15.10.2011</footnote>

<footnote n="3">³Treaty of Maastricht on European Union</footnote>

<footnote n="4">⁴Kraler A., Rogoz M., (2011), Irregular Migration in the European Union since the turn of the millenium – development, economic background and discourses, CLANDESTINO Working Paper No. 10/2011</footnote>

<footnote n="5">⁵Triandafyllidou A. & Ilies, M., (2010) EU Irregular Migration Policies, in Triandafyllidou A. (Ed.) Irregular Migration in Europe – Myths and Realities, Ashgate</footnote>
The following, Treaty of Amsterdam, was formed in 1997. Its purpose was to update Justice and Home Affairs (JHA) by replacing it under the first pillar and to give a better role for the Commission, the European Parliament (EP), and the European Court of Justice (ECJ) by leaving out the unanimity rule and replacing it with Qualified Majority Voting (QMV) and to transfer the common immigration legislation under the competence of the EU. QMV is a faster way to make decisions compared to unanimity especially in the light of the further coming enlargements of 2004 and 2007. In enlarged European Union there would not be simply possible to get agreement of all 27 EU member states to issue a relevant legislation to tackle irregular immigration at EU level. The EU had for the first time a clear mandate to start legislation procedures in migration.

TFEU made major reforms to EU legislation. It removed the Pillar structure by incorporating it into the Title V called ‘Area of Freedom, Security and Justice’, made the issues of visas, asylum and immigration as part of the EU-decision making procedures and supervision of ECJ. With these reforms it increased even more the power of the EU institutions, but it did not make major reforms to the migration matters since the current legislation was seen as sufficient enough.<fnref n="1" /> In the field of irregular migration the states have been always more keen to cooperate as it can be better justified to the public. It is popular topic among politicians.

## IRREGULARITY

The line between being irregular from regular is very thin. Almost any third country national can become irregular after some change of the policy or legislation. Irregular migrants though are not accepted as full members of the society. It is suggested that EU citizens associate irregularity with insufficient border controls, abuse of the social security systems, black labor that will ultimately negatively affect the current labor market and raise the amount of criminals.<fnref n="2" />

It is inevitably impossible to deny that some TCNs are able to enter the EU without being controlled in such a way the current EU standards require. Because of this, these aliens can easily fuse into the society and disappear from the sight of authorities. Especially in the Member States where immigrant society is high. As numbers show this group of people is *pro rata* small. For example in Italy, only 15% of the whole amounts of irregular migrants enter illegally across the land borders and 10% across the sea.<fnref n="3" /> We should nevertheless bear in mind that this is the official statistics, number of persons that might have been caught and the reality might be something different and people might become irregular although they have not entered to EU irregularly.

The second way of becoming irregular that the Commission mentions and the most common way of becoming irregular in the EU is to overstay.<fnref n="4" /> This means that most irregular immigrants enter regularly<fnref n="5" /> as tourists or with time-limited work or study visas, and when their visas expire they cannot get a new one or they simply do not apply for it again. There are surprisingly also people who fail by governmental reasons to process their residence and work permit applications.<fnref n="6" />

<footnote n="1">¹ Roots L., (2009) The Impact of the Lisbon Treaty on the Development of EU Immigration Legislation, *Croatian Yearbook of European Law and Policy*, V, p. 280-281</footnote>

<footnote n="2">² European Migration Network, (2011) Combating Irregular Migration: Practical Responses.</footnote>

<footnote n="3">³ Delicato, V., National Legislation and Good Practices in the Fight Against Illegal Migration - the Italian Model, at 4, CARDS Program – Rome, 1st October 2004.</footnote>

<footnote n="4">⁴ Düvell F., Vollmer B., Improving US and EU Immigration Systems – European Security Challenges. Available on the Internet at: http://cadmus.eui.eu/bitstream/handle/1814/16212/EUUS%20Immigration%20Systems2011_01.pdf?sequence = 1 accessed 14.10.2011</footnote>

<footnote n="5">⁵ Supra note 3</footnote>

<footnote n="6">⁶ Supra note 18</footnote>
Thirdly, the Commission talks about immigrants that have applied for asylum, but in the end cannot successfully prove to be in need of international protection.<fnref n="1" /> ⁴⁶ Normally these people should be sent back home, but since they are not usually restricted to move, the results will be chaotic. The European Commission does not mention the group of people that have received their regular status as ‘a birth gift’ from their irregularly staying parents, since in Europe the nationalities are not usually obtained by the place of birth.

Düvell shows by his studies that in reality there is a problem of executing expulsion. He states that irregular migrants are not usually detained and deported or expelled at all, but they get a warning or a fine, and even in the case of deportation, they do not experience any direct enforcement measures (Italy, Greece and UK).<fnref n="2" /> Thus, even the Stockholm program suggests that “voluntary return should be preferred, while acknowledging the inevitable need for efficient means to enforce returns where necessary”.<fnref n="3" /> This obviously led to the spread of irregular migration from one country to another. Another problematical area in the Directive is that a Member State is able to stop the return proceedings at any moment and give an autonomous residence permit or another right to stay legally, such as regularize them in the country without any particular reason to do so.<fnref n="4" /> Combined cases García & Cabrera v. Spain are good examples of this kind of practice. The ECJ gave the decision, which made clear that a Member State has a right to decide whether to expel (or not) a person who is staying in its country without any permission.<fnref n="5" /> Therefore, if this is so, also the voluntary return should be mandatory, since at the moment it is just a special order without any effect in reality.

We can look at the other EU country facing problems like Greece. Greece does not have the same situation as Italy, it has been claimed that the country is letting 80% of the total EU's irregular persons to come to its territory<fnref n="6" /> and though facilitates irregular migration into the EU. Some of the studies show that the majority of the irregular migrants try to avoid criminality in the country since it could jeopardize their stay.<fnref n="7" /> Therefore, this fear of increased criminality might be reasonable only if it would be their last solution to survive. This kind of situation might also arise, when labour market would not provide illegal employment anymore. Organized crime that is associated with immigration would be better to keep separated from individual criminal acts, such as stealing. Irregular migration fuels organized crime as Italy's former Prime Minister Silvio Berlusconi once stated. Limited ways of legal access to EU gives possibility to create informal ways to enter. This means that different informal organizations are run by the criminals who bring illegally people to Europe. Irregular immigration is very often facilitated by persons involved in organized crime groups.

According to The Office of the United Nations High Commissioner for Refugees, i.e. The UN Refugee Agency (UNHCR), modern migration is driven by “population growth, urbanization, governance failures, food and energy insecurity, water scarcity, natural disasters, climate change and the impact of the international economic crises and recession.”<fnref n="8" />

It is somewhat true that the crises, whether they were economical or political in Europe (recession in 1990's) or humanitarian in third countries (e.g. Arab Spring) cause the irregular

<footnote n="1">¹ Ibid</footnote>

<footnote n="2">² Ibid</footnote>

<footnote n="3">³ European Council, The Stockholm Program – An open and secure Europe serving and protecting citizens (2010/C 115/01), OJ 115/1</footnote>

<footnote n="4">⁴ Supra note 1</footnote>

<footnote n="5">⁵ Judgment of 22 October 2009 in cases 261/08 García v. Spain & 348/08 Cabrera v. Spain, [2009], ECJ, Para 66</footnote>

<footnote n="6">⁶ “Illegal immigration in Greece, Border burden - Greece struggles to deal with a European problem”, *The Economist*, 19.08.2010</footnote>

<footnote n="7">⁷ Vogel D., Cyrus N., (2008) Irregular Migration in Europe – Doubts about the Effectiveness of Control Strategies, Policy Brief No.9, March</footnote>

<footnote n="8">⁸ Grant S., (2011) Recording and identifying European Frontier Deaths, *European Journal on Migration and law*, Vol 13,(2), p 135-156</footnote>
migration rates either to descend or to ascend, but as almost every scholar as well as interviewee agreed on, there is no reason to believe that these flows will finally end or only decrease in the future.<fnref n="1" />

Irregular migration is defined by the Commission as those “TCNs who enter the territory of a member state illegally by land, sea and air; persons who enter legally with a valid visa or under a visa-free regime, but ‘overstay’ or change the purpose of stay without the approval of the authorities; and also the unsuccessful asylum seekers who do not leave after a final negative decision.”<fnref n="2" />

Immigrants keep coming to the EU in spite of restrictive policies in most Member States. Large numbers of legal and illegal migrants, together with asylum seekers, comprise this flow. International criminal networks dealing with smuggling and trafficking have emerged in the world to take advantage of people seeking a better life abroad. Crimes like smuggling or trafficking were nonexistent 20 years ago in the Criminal Code of the Member States. The new situation has led the EU to focus on fighting against illegal immigration and stemming the work of human traffickers and smugglers. Nonetheless, the EU needs migrants in certain sectors and regions in order to deal with its economic and demographic needs, thereby creating the dilemma between who to admit and who to restrict.

Bearing in mind the problem of illegal or irregular immigration to the EU, the Seville European Council <fnref n="3" /> drew attention to the contribution which the EU's various external policies and instruments, including the development policy, could make in addressing the underlying causes of migration flows. Thus, the Council requested that immigration policy be incorporated into the Union's relations with third countries. In fact migration, visas and irregular movements' issues are under discussion in EU external relations debates.

The term illegal in itself contains a problem because not all people who are moving but who can end up staying illegally in one or another EU Member State can be called illegal, therefore it is preferable to use the term irregular migrant or immigrant. Already, in October 1998, the Schengen Executive Committee (of the Schengen Acquis) adopted measures to fight illegal immigration<fnref n="4" />. It said that it was necessary to respect human rights, the European Convention for the Protection of Human Rights and Fundamental Freedoms and its protocols, the Refugee Convention, the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, the Convention on the Elimination of all forms of Discrimination against Women and the Convention on the Rights of the Child. The Schengen Executive Committee stressed the need for close cooperation with the competent agency of the countries of origin and transit countries, in accordance with national law in the Schengen States. The need for placing liaison officers in states was mentioned, as also expert missions to the countries of origin and the countries of transit. Intensive controls at authorised border crossing points were implemented. In accordance with Schengen standards, special emphasis was placed on border sectors affected by immigration. Also, intensive police measures at national level, in cooperation with Schengen partners, and the need for the fingerprinting of illegal immigrants was emphasised. The prevention of unidentified foreigners from escaping was also mentioned.<fnref n="5" />

<footnote n="1">¹ EU Policy to Fight Illegal Immigration, Press Release. Available on the Internet at: http://europa.eu/rapid/pressReleasesAction.do?reference=MEMO/06/296&format=HTML&aged=1&language</footnote>

<footnote n="2">² Communication from a Commission, Policy priorities in the fight against illegal immigration of third-country nationals, Brussels, 19.7.2006 COM(2006) 402 final</footnote>

<footnote n="3">³ Council of the European Union, Seville European Council 21-22 June 2002, Brussels, 24 October 2002 (29.10), 13463/02, POLGEN 52</footnote>

<footnote n="4">⁴ The Schengen Acquis – Decision of the Executive Committee of 27 October 1998 on the adoption of measures to fight illegal immigration, SCH/Com- ex 37 def 2, OJ L 239, 22 September 2000, p. 203-204</footnote>

<footnote n="5">⁵ Ibid</footnote>
Under the Schengen measures, those who have entered Schengen states without authorisation and have no right to stay on humanitarian grounds or under international law should be returned to their country of origin or permanent residence immediately. This has to be done systematically. Sanctions against carriers that transport passengers without required entry and transit documents should be established. Exchanged information should be included in Europol and in coordinating the fight against criminal networks involved in smuggling.<fnref n="1" /> On 28 February 2002, the EU Council of Ministers adopted a comprehensive plan to combat illegal immigration and the trafficking of human beings in the European Union. Sanctions for carriers also have been agreed upon at the EU level also the cooperation at the Europol level is functioning.

In July 2006, the Commission adopted a communication on policy priorities in the fight against the illegal immigration of third-country nationals,<fnref n="2" /> which built on guiding principles and EU achievements. It developed further new priorities and followed a comprehensive approach, striking a balance between security and basic rights of individuals and thus addressed measures at all stages of the illegal immigration process. On 28 November 2002, the Council adopted a return action programme that suggested developing a number of short, medium and long term measures in the field of return of illegal residents, including common EU-wide minimum standards or guidelines. In order to fully implement the Return Action Programme agreed in 2002, the Commission adopted in September 2005 a proposal for a directive<fnref n="3" /> on common standards and procedures in Member States for returning third-country nationals residing illegally in the EU. The objective of this proposal was to provide for clear, transparent and fair rules concerning return, removal, use of coercive measures, temporary custody and re-entry, while taking into full account the respect for human rights and fundamental freedoms of the persons concerned. The directive was adopted in 2008⁴.

There is some relief for the persons who had suffered because of the actions of traffickers. People who are trafficked might get residence permits if they cooperate with host country officials. As it is almost impossible for third country nationals, who have no right to enter, to travel without using the services of illegal carriers or traffickers, carriers can be said to facilitate third country nationals' access to the EU.

The motivation underpinning the reaction to irregular and illegal immigration is directly related to the EU's fear of mass influxes of third country nationals coming to the EU. Combating irregular migration at the EU level is not a new phenomenon and decisions adopting common measures were already being made in 1998.<fnref n="5" /> From time to time, combating illegal immigration and trafficking has become an important policy issue, which has, in turn, led to the intensive legislating at the EU level.<fnref n="6" />

The EU's policy on irregular and illegal immigration serves multiple objectives. It is about barring the access of third country nationals to the EU, making third parties such as carriers,

<footnote n="1">¹ Ibid</footnote>

<footnote n="2">² Communication from the Commission on Policy priorities in the fight against illegal immigration of third-country nationals, COM/2006/0402 final</footnote>

<footnote n="3">³ Proposal for a Directive of the European Parliament and of the Council on common standards and procedures in Member States for returning illegally staying third-country nationals SEC (2005) 1057 /* COM/2005/0391 final - COD 2005/0167</footnote>

<footnote n="4">⁴ Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals; OJ L 348, 24 December 2008</footnote>

<footnote n="5">⁵ The Schengen Acquis – Decision of the Executive Committee of 27th October 1998 on the adoption of measures to fight illegal immigration, SCH/Com- ex 37 def 2, OJ L 239, 22 September 2000, p. 203-204</footnote>

<footnote n="6">⁶ Communication from the Commission on Policy priorities in the fight against illegal immigration of third-country nationals, COM/2006/0402 final</footnote>
liable and responsible for issues previously considered the responsibility of the state.<fnref n="1" /> The carriers are also obliged to communicate their passenger data.

Carriers are forced to inspect documents and decide whether passengers have the right to enter the country of destination or, in case of transit, the right to transit through a certain country. Carriers perform these functions in order to avoid facing penalties imposed by EU legislation. States are outsourcing their obligations to control their border controls to third parties, as has been done in other fields such as water or electricity supply, or health or security services, which in many EU countries are now provided by private companies. The relevant training and knowledge of sensitive issues needed when dealing with immigration issues, such as state obligations under international law to respect human rights, the right to asylum and principles of *non-refoulement*, are not given enough attention when immigration policing is outsourced to carriers. The EU has attempted to punish those who facilitate the unauthorised entry, transit or residence of TCNs. In doing so, it has entered a domain of Member States' criminal law usually free of EU involvement, thus broadening the competence of the EU. Because policies are agreed upon at the EU level, the EU 'legitimizes' these actions through relevant directives, regulations, decisions and rules.

The cooperation of Member States on irregular immigration targets also cuts the costs of member states by organising joint returns of irregular immigrants, or those who do not have a right to stay, by facilitating joint flights between Member States.<fnref n="2" /> This also involves the assistance of other Member States in case transit through that state is needed in order to return migrants. Also, the mutual recognition of the decision on the expulsion should facilitate the more rapid return of irregular immigrants and cut costs associated with the complicated procedures of recognising decisions delivered by another member state. The cooperation in organizing mutual flights to return back failed asylum seekers. Cutting costs is extremely relevant for small Member States such as Estonia, Latvia or Malta. For example, there are no flights from Tallinn to African countries where some of the irregular migrants come from.

Some positive developments have arisen from the various EU developments, such as providing protection for those who might not be voluntary immigrants but who are arriving irregularly or residing in the EU without permission to stay. The victims of trafficking might also receive interim relief. This shows, however, that Member States and the EU are very much aware of the limited access possibilities for the third country nationals. Several years ago, trafficking and smuggling was not so widespread crime, as other ways to move were available or states were more open towards new immigrants. But it is a positive development for third country nationals that states are now obliged to give protection to those who might not voluntarily access the soil of the EU. The optional application of this relief provision on those who were smuggled has to be criticised, however, as very often it is often not clear whether the person was smuggled to the EU or trafficked. Frequently, it can be a borderline case which started with the intention of being smuggled into the EU but ended up with the third country national in question providing certain kind of services to those who helped him or her to cross the EU border. The line between smuggling and trafficking is thin.

Control over the borders and access to the EU is now not only a state responsibility but also the concern of private actors, such as companies, carriers or those who might be in contact with immigrants, such as doctors or other medical workers<fnref n="3" />, officials of municipalities, schools,

<footnote n="1">¹ Guarding borders, passport and visa control and asylum has been a State responsibility.</footnote>

<footnote n="2">² Council Decision 2004/573/EC of 29 April 2004 on the organisation of joint flights for removals from the territory of two or more Member States, of third-country nationals who are subjects of individual removal orders.</footnote>

<footnote n="3">³ Italy introduced, in the framework of *Paccetto Sicurezza* at the beginning of 2009, a new legislation where doctors had to report any persons they treated who were residing illegally in the country. For more information, see http://stefanobeccastrini.wordpress.com/2009/02/06/sulla-denuncia-degli-immigrati-clandestini-da-parte-dei-medici/; http://magazine.liquida.it/2009/03/17/obbligo-di-denuncia-dei-clandestini-il-rifiuto-dei-medici/accessed 08.06.2012</footnote>
neighbours, employers, landlords etc. This has been made clear in the case of the carriers at EU level where directives and decisions have been issued. Persons who assist people in need of international protection without any gain are not exempted from penalties imposed by the Framework Decision and therefore it can be said that EU norms are more restrictive than those imposed by international norms.

## CONCLUSION

It can be stated that the European Union has a schizophrenic approach to migration. On the one hand, immigration is encouraged. The Blue Card directive facilitates the access of third country nationals, who are highly skilled workers. Certain EU legislation is also dedicated to students and researchers from third countries. Yet, in purely numerical terms, the number of legislative acts in the field of irregular migration still outnumbers the pieces of legislation adopted in the legal migration field.

Rules and policies sometimes contradict each other and also the idea of a secure and equal Europe. On the one hand there is a policy of opening up immigration into Europe and on the other hand there is a conscious decision to close down access to the EU. Tensions arise between the two approaches because these policies are pulling away in different directions. There is a need for workers to support Europe's ageing population of Europe. Nonetheless, because immigration is sometimes seen as a burden on social systems, schooling, medical care, and a threat to national security and national identity etc. this can lead to the introduction of more control measures for those who are not welcome or wanted in Europe.

These fears are visible and have led to increased cooperation among EU member states in the field of immigration, starting with the control of irregular migration and border control, which then led to cooperation in the field of asylum (Dublin Convention). Only later on could Member States agree upon rules for facilitating legal migration. Rules combating illegal migration easily outweigh those facilitating legal immigration. As the study shows, there are much more regulations on cooperation and activity to combat illegal migration. The policy documents on tackling illegal migration date back to 1998. Schengen was signed even earlier, in 1985, and the Dublin Convention was established in 1990. Migration policy had always been an issue linked to state sovereignty. As a consequence, states resisted including migration in EU-related discussions. The Schengen visa system provided an exception but this derived from inter-state discussions rather than supranational discussions. Schengen was only applicable in some EU member states and the incorporation of Schengen legislation into EU legislation only happened much later.

It seems that Europe is still struggling to come to grips with mobility issues relating to the migration of its own EU citizens since issues such as health care, social security and pensions are not fully under the competence of the EU but nonetheless have a major impact on migratory movements and the development of a European economy.<fnref n="1" /> This also directly affects the situation of third country nationals. Since Member States cannot adequately manage internal migration within the EU, then it goes without saying that those coming from outside the EU face an even more complicated situation. The blurred and shifting rules at EU level and in Member States affect how the EU is viewed by high skilled workers, scholars and students from third world countries etc. A positive development is that states have finally agreed upon how to receive high skilled workers, scholars and students from third world countries and has given the EU competence to legislate their reception, which further unites EU migration policy. It clarifies rules for third country nationals who desire to legally enter the EU. Nonetheless, the EU is still as an

<footnote n="1">¹ Look for more information in 'Report from the Commission to the European Parliament and the Council on the application of Directive 2004/38/EC on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States', COM(2008) 840 final.</footnote>
entity itself and third country nationals are not only placed under the discretion of the Member States although they do apply for their visas or residence permits in order to stay in a particular Member State from the national authority in question. Whether we can talk about a perfectly functioning Common European Migration and Asylum System is another issue. Significant changes occurred during the Hague Programme period. In 2004 ten new member states joined the EU and in 2007 two more states joined. It changed the borders, the number on EU inhabitants and also the functioning of the EU itself. Security became a major concern after the terrorist acts in New York in September 2001, in Madrid in 2004 and in London in 2007. The Hague Programme is a perfect example of the EU's reaction to this. Its objectives were to improve the common capability of the Union and its Member States, to guarantee fundamental rights, minimum procedural safeguards and access to justice, to provide protection in accordance with the Refugee Convention and other international treaties to persons in need, to regulate migration flows and to control the external borders of the Union, to fight organised cross-border crime and repress the threat of terrorism, to realise the potential of Europol and Eurojust, to carry further the mutual recognition of judicial decisions and certificates both in civil and in criminal matters, and to eliminate legal and judicial obstacles in litigation in civil and family matters with cross-border implications.

The safety of EU citizens and others residing in EU is crucial but it should not overwhelm the debate on the access of third country national to the EU for the purposes of work, family life or study and research.

It must be mentioned that the idea of a Common European Asylum System was initiated to set up a system that pertained to common values, respect for human dignity and commitment to shared responsibility. This correlated with the goals of the Hague Programme but its implementation is questionable and therefore the assessment of implementation at the Member State level is highly desirable.

The first phase of this system was to set up common minimum standards which, in accordance with the Treaty of Nice, allowed for the transition to co-decision and qualified majority voting. Under the Hague Programme, the system started to move into its second phase of development with the adoption in 2008 of a policy plan.<fnref n="1" /> The Commission for example among others has proposed amendments to the Reception Conditions Directive, Qualification Directive and to the Dublin and Eurodac Regulations as part of this plan.<fnref n="2" />

Operational experience has consistently pointed to the need for practical cooperation and in the proposed establishment of the Asylum Support Office the EU sought a coherent and efficient way of responding to these challenges. The Asylum Support Office was finally established at the end of 2009.

While assessing the EU's migration and asylum policy one can say that there is too little stress and attention placed on the capacity of asylum seekers as a workforce. They are already in Europe and can be used for low skilled or high skilled labour. This could be achieved by helping employers to train asylum seekers by giving state aid to those organisations that employed them. Instead of giving a “fish” to the asylum seeker they should be given a “hook” and trained how to fish for themselves. That is contrary to the current situation where the states try to keep asylum seekers out of the labour market by giving them a right to work only after one year if the decision on their asylum claim is still pending. The EU has improved the opportunities available to asylum seekers regarding employment; however, this only applies for those asylum seekers who stay in

<footnote n="1">¹ ‘Policy plan on asylum – An integrated approach to protection across the EU’, COM (2008) 360 final</footnote>

<footnote n="2">² See more about the developments of the proposals in Council note 13703/10 of 27 September 2010. Available at http://register.consilium.europa.eu/pdf/en/10/st13/st13703.en10.pdf and Directive 2011/51/EU of the European Parliament and of the Council of 11 May 2011 amending Council Directive 2003/109/EC to extend its scope to beneficiaries of international protection</footnote>
the asylum determination process for over one year.<fnref n="1" />

When the EU migration and asylum system becomes a real common system then all people residing in the EU, regardless of their status, should have the right to work in order to make a living.<fnref n="2" /> If we keep differentiating people on the basis of their status – such as students, asylum seekers, family members etc. we cannot talk about a coherent or common policy. The trend to Europeanise migration rules still seems to be quite rushed and fragmentized, and is derived from recent policy goals communicated at Tampere, The Hague and now Stockholm.

Policy making at the EU level in the field of migration and asylum is very often not pro-active but ex post. One can observe it through the development of the legislation but one of the main problems with EU asylum and immigration law lies in its application by the Member States and the lack of control over the application of EU law in Member States.<fnref n="3" /> Several achievements were made following the Tampere and Hague Programmes and progress has been achieved to date in this field. Internal border controls have been removed in the Schengen area and the external borders of the Union are now managed with some the help of the Frontex Agency. Visible steps have also been taken towards the creation of a European Asylum System. European agencies such as Europol, Eurojust, the European Union Agency for Fundamental Rights and Frontex are operational in their respective fields of activity.

In spite of these and other important achievements in the area of freedom, security and justice, Europe still faces challenges. Further efforts are required to improve coherence between various policy areas since immigration involves a broad range of other EU policy and Member State areas. Some of those policies affected by migration are not even under the EU competence.

Well-managed migration can be beneficial to all stakeholders. The European Pact on Immigration and Asylum provides a clear basis for further development in this field. Europe will need a flexible policy which is responsive to the priorities and needs of Member States and which enables migrants to take full advantage of their potential. The objective of establishing a common asylum system in 2012 remains and people in need of international protection must be ensured access to legally safe and efficient asylum procedures.

EU legislation has advanced the protection of third country nationals who are in need of international protection. Regarding the rules of legal migration, not all the policy goals have been achieved and also the Stockholm Programme remains to be fulfilled, since common EU residence permits or access to businessmen and other types of investors to EU are still missing. Also, access for retired people trying to enter the EU has yet to be regulated at the EU level and is completely at the discretion of Member States. Indeed, the implementation plan<fnref n="4" /> of the Stockholm Programme states: “Access to Europe for businessmen, tourists, students, scientists, workers, persons in need of international protection and others having a legitimate interest to access the Union's territory has to be made more effective and efficient.”

Clarifying the EU's immigration rules would be a positive development as it would help clarify and unify the practices of Member States. Up until now, most common rules have taken

<footnote n="1">¹ Council Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted, OJ L 304, 30.9.2004</footnote>

<footnote n="2">² Interestingly, Ireland and Denmark have availed of the 'Reception Directive' opt-out clause to avoid bestowing certain rights on asylum seekers, including employment.</footnote>

<footnote n="3">³ Look also at: Communication from the Commission to the Council, the European Parliament, The European Economic and Social Committee and the Committee of the Regions Justice, Freedom and Security in Europe since 2005: an evaluation of the Hague Program and Action Plan. An extended report on the evaluation of the Hague Programme, COM(2009) 263 final, SEC(2009) 765 final, SEC(2009) 767 final</footnote>

<footnote n="4">⁴ Brussels, 3 March 2010, (OR. en) 5731/10, CO EUR-PREP 2, JAI 81, POLGEN 8, Pg.11 or see final Stockholm Program action plan from Communication from the Commission to the European Parliament, The Council, The European Economic and Social Committee and the Committee of the Regions, Delivering an area of freedom, security and justice for Europe's citizens Action Plan Implementing the Stockholm Programme, COM (2010) 171 final</footnote>
the form of minimum standards, which has failed to simplify the situation facing third country
nationals faced with local, national, European and international rules. However, when the
interests of Member States are seen as a priority, less freedom is given to the EU to intervene and
more freedom is granted for Member States to decide how they want to regulate immigration in
order to avoid the burden that accompanies the implementation of EU rules. As the analysis
shows, immigration policy in the EU is pulling in two different directions. Immigration to the EU
is strictly controlled on the one hand and simultaneously opened to those who want to enter to
EU on the other hand. This has not helped simplify the position of third country nationals
wishing to access the EU. Now we have preferences from both the EU and Member States,
which has led to blurred rules on relating to third country nationals, which has in turn led to the
complex categorization of migrants. Although categorization seems to be inevitable, it has not
simplified or clarified the position of the TCN. Instead of simplifying the rules, the EU and
Member States have only served to make the rules even more complicated.

Bibliography:

1. *** "Illegal immigration in Greece, Border burden - Greece struggles to deal with a European problem", The Economist, 19.08.2010

2. ***, Obbligo di denuncia dei clandestini: il rifiuto dei medici, Magazine, available http://magazine.liquida.it/2009/03/17/ obbligo-di-denuncia-dei-clandestini-il-rifiuto-dei-medici/

3. Communication from the Commission on Policy priorities in the fight against illegal immigration of third-country nationals, COM/2006/0402 final

4. Communication from the Commission on Policy priorities in the fight against illegal immigration of third-country nationals, COM/2006/0402 final

5. Communication from the Commission to the Council, the European Parliament, The European Economic and Social Committee and the Committee of the Regions Justice, Freedom and Security in Europe since 2005: an evaluation of the Hague Program and Action Plan. An extended report on the evaluation of the Hague Programme, COM(2009) 263 final, SEC(2009) 765 final, SEC(2009) 767 final Brussels, 3 March 2010

6. Council Decision 2004/573/EC of 29 April 2004 on the organisation of joint flights for removals from the territory of two or more Member States, of third-country nationals who are subjects of individual removal orders

7. Council Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted OJ L 304, 30.9.2004

8. Council Framework Decision 2002/946/JHA of 28 November 2002 on the strengthening of the penal framework to prevent the facilitation of unauthorised entry, transit and residence OJ L 328, 2 December 2002 p. 1 – 3

9. Council note 13703/10 of 27 September 2010. Available http://register.consilium.europa.eu/pdf/en/10/st13/st13703.en10.pdf

10. Council of Europe, Parliamentary Assembly, Committee on Migration, Refugees and Population

11. Delicato, V., National Legislation and Good Practices in the Fight Against Illegal Migration - the Italian Model, at 4, CARDS Program – Rome, 1st October 2004

12. Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals; OJ L 348, 24 December 2008

13. Directive 2011/51/EU of the European Parliament and of the Council of 11 May 2011 amending Council Directive 2003/109/EC to extend its scope to beneficiaries of international protection

14. Düvell F., (2011) Introduction – The Pathways in and out of Irregular Migration in the EU: A Comparative Analysis, European Journal on Migration and law, p 246-247

15. EU Policy to Fight Illegal Immigration, Press Release

16. EU Policy to Fight Illegal Immigration, Press Release European Commission, An opportunity and A Challenge – Migration in the European Union.

17. European Commission, Standard Eurobarometer, Public Opinion in the European Union.

18. European Migration Network, Combating Irregular Migration: Practical Responses.

19. European Migration Network, Combating Irregular Migration: Practical Responses.

20. Grant S., (2011) Recording and identifying European Frontier Deaths, European Journal on Migration and law, 136-137

21. IOM, (2011) Glossary on Migration, 2nd Edition, Geneva
22. Kraler A., Rogoz M., (2011), Irregular Migration in the European Union since the turn of the millenium – development, economic background and discourses, CLANDESTINO Working Paper No. 10/2011

23. Labori, Michel et Costea, Simion, *Le Management des Politiques de l'Union Europeenne*, PARIS, Prodifmultimedia, (FRANCE), 2011, 300 pages.

24. Morehouse C. and Blomfield M, Irregular Migration in Europe, Migration Policy Institute.

25. Policy plan on asylum - An integrated approach to protection across the EU, COM (2008) 360 final

26. Proposal for a Directive of the European Parliament and of the Council on common standards and procedures in Member States for returning illegally staying third-country nationals SEC(2005) 1057 /* COM/2005/0391 final - COD 2005/0167

27. Report from the Commission to the European Parliament and the Council on the application of Directive 2004/38/EC on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States', COM(2008) 840 final.

28. Roots L., (2009) The Impact of the Lisbon Treaty on the Development of EU Immigration Legislation, Croatian Yearbook of European Law and Policy, vol 5

29. Stockholm Program action plan from Communication from the Commission to the European Parliament, The Council, The European Economic and Social Committee and the Committee of the Regions, Delivering an area of freedom, security and justice for Europe's citizens Action Plan Implementing the Stockholm Programme, COM (2010) 171 Final

30. The Schengen Acquis – Decision of the Executive Committee of 27 October 1998 on the adoption of measures to fight illegal immigration, SCH/Com- ex 37 def 2, OJ L 239, 22 September 2000, p. 203-204

31. Treaty of Maastricht on European Union

32. Triandafyllidou A. & Ilies, M., (2010) EU Irregular Migration Policies, in Triandafyllidou A. (Ed.) Irregular Migration in Europe – Myths and Realities, Ashgate

33. Vogel D., Cyrus N., Irregular Migration in Europe – Doubts about the Effectiveness of Control Strategies, Policy Brief No.9, March 2008

<figure><img src="image_16.png" /></figure>
# The EU Standards, Regulations, Law and Justice

## The Nice Charter after Lisbon Treaty and its Horizontal Effects in Italian Case Law

PAOLO AMOROSA

research assistant at Tallinn Law School, Tallin University of Technology

**Abstract:** One of the most saluted advancements brought by the entry into force of the Treaty of Lisbon on December 2009 is the providing of the Charter of Fundamental Rights of the European Union with a binding legal nature (art. 6 para. 1 Treaty on the European Union in the consolidated version). While the introduction of Nice Charter into European primary law has, indeed, a clear political and symbolic value and fledging legal implications for a further enlargement of the scope of European integration towards a constitutional framework, the aim of this brief notes is to inquire upon the impact it had on the decisions of Italian Courts in the relatively short span of time (two years at the time of writing) passed since then. The analysis describes the starting of a slow, confused adaptation led and harmonized with the traditional features of the Italian legal system by the Supreme and the Constitutional Court.

**Keywords:** Nice Charter, horizontal effects, Italian courts.

<figure><img src="image_17.png" /></figure>

One of the most saluted advancements brought by the entry into force of the Treaty of Lisbon on December 2009 is the providing of the Charter of Fundamental Rights of the European Union with a binding legal nature (art. 6 para. 1 Treaty on the European Union in the consolidated version). While the introduction of Nice Charter into European primary law has, indeed, a clear political and symbolic value and fledging legal implications for a further enlargement of the scope of European integration towards a constitutional framework, the aim of this brief notes is to inquire upon the impact it had on the decisions of Italian Courts in the relatively short span of time (two years at the time of writing) passed since then.

The EU Charter of Fundamental Rights has been constantly, since its adoption in 2000, referred to in Italian case-law, but in most cases without a proper explanation of its relevance for the subject matter, both from a substantial and a formal point of view. It has been regarded as a parameter for interpretation, without a proper legal basis for that to happen. That is probably why, at least with regard to first instance tribunals, the Lisbon Treaty seems not to have brought many changes in this respect. Most of them just seem not to have notice, since, in an overwhelming majority of the cases, there is no reference to a different legal value of the Nice Charter<fnref n="1" />.

Anyway, even without proper legal argumentation in the text of judgments, it appears that there is a development in the concurrence of norms within the Charter in support of fundamental rights also within relationships between private subjects, so determining horizontal effects.

Looking at specific acts we could recognize different levels with regard to this same phenomenon.

<footnote n="1">¹Cfr. L. D'Ancona, *L'efficacia della Carta di Nizza nella giurisprudenza nazionale dopo Lisbona*, on www.europeanrights.eu, 1/2011, p. 2.</footnote>
For instance, in the Order of Lodi's Tribunal 848/2010 there is a simple reference to Art. 20 and 21¹ of the Charter, as one of the sources in the international legal order upholding the principle of non-discrimination. At the other end of the spectrum, it is possible to find rarer acts which are directly referring to the acquiring, "since the 1st of December 2009", for the Nice Charter "of binding legal value because of the entry into force of the Lisbon Treaty" as the Order of Palermo's Tribunal of 21 November 2010², but still fail to investigate further the direct legal relevance of the Charter for the case and the necessary steps for it to be directly applicable in the Italian legal system, especially the limits for the scope of application set by Art. 51 of the Charter itself, so only with regard to the implementation of Union Law.

As a first comment, though, it should be acknowledged that Italian judges, in general, keep into account the Charter of Fundamental Rights and they give legal force to it. The Charter is considered a parameter to respect when inviolable rights ("diritti inviolabili", terminology used in Art. 2 of the Italian Constitution, concept considered by the Italian legal science to be equal to the one of fundamental rights in the EU system) are at stake, at least for the purpose of an interpretative harmonization between the Italian legal system and the European one. Moreover, even if the text of the decisions does not show the weight of the Charter to achieve it, the result of the non-application of internal norms to avoid discrimination is reached and that weight is anyway there<fnref n="3" />. The role to define in depth the new value of the Nice Charter for the Italian legal system is left to the academia and, especially, the higher jurisdictions.

Passing to an analysis of the relevant decisions of the Supreme Court (Corte di Cassazione)<fnref n="4" />, it is possible to find more developed legal reasoning on the new value of the Charter and its effects.<fnref n="5" />

The situation pre-Lisbon Treaty can be explained trough Judgment 26973/2008⁶. According to it, cases for compensation of damages not explicitly provided for in statutory laws (that is the same to say horizontal effects directly applicable through higher sources of law) are necessarily "linked to the lesion of inviolable rights"<fnref n="7" /> protected by the Constitution, considering that every kind of international obligation cannot reach the level of juridical force of the supreme principles of the Italian legal order<fnref n="8" />

<footnote n="1">¹ Tribunale di Lodi, Ordinanza 848, 23 May 2010, point 3.2.iii. The Order declared illegitimate the refusal of the Italian Football Federation, considered discriminatory, to a football player, national of Togo, to participate in league games because he was lacking a residence permit for a period longer than 12 months. Similar use of not further justified reference to the Charter can be found also in the administrative jurisdiction (as examples, T.A.R Lecce Puglia, sez. I, 1861/2010, 23 August 2010 and T.A.R. Palermo Sicilia, sez. II, 6685/2010, 12 May 2010).</footnote>

<footnote n="2">² Tribunale di Palermo, Ordinanza, 21 November 2010, my translation.</footnote>

<footnote n="3">³ As examples, the cited Lodi's Tribunal Order 848/2010 and Ragusa's Tribunal Decree, voluntary jurisdiction proceeding 212/10, 16 April 2010. The Udine's Tribunal Order 530/2010, 30 June 2010 (declaring illegitimate to pose limitations on public family support measures that would *de facto* exclude non EU-citizen), that does not only refer to the legal value of the Charter but also explicitly to its capacity to create direct effects, both vertical and horizontal, seems to be in this respect a unique exception until now between decisions pronounced at first instance.</footnote>

<footnote n="4">⁴ According to Andrea Guazzarotti (*I diritti fondamentali dopo Lisbona e la confusione del sistema delle fonti*, Rivista telematica giuridica dell'Associazione Italiana dei Costituzionalisti, 3/2011, p. 5), the *Cassazione* has referred to the Charter in around sixty decisions between the entry into force of the Lisbon Treaty and July 2011.</footnote>

<footnote n="5">⁵ Alongside with "simpler" decisions as the one at first instance already discussed above. As an example, I can refer to the Judgment of the Supreme Court of 1st June 2010 (Corte di Cassazione, Sentenza 269/2010, SS. UU., forbidding to include information on the ethnicity of the child in acts related to international adoption) which just refers to Art. 24 of the Charter and that it has acquired the same legal value of the Treaties and the one of 19th of August 2011 (Corte di Cassazione, Sentenza 17401/2011, Sezione lavoro, recognizing the right to paid absence from work for study reasons also to temporary employees), simply citing Art. 21 of the Charter as upholding the principle of non discrimination.</footnote>

<footnote n="6">⁶ Corte di Cassazione, Sentenza 26973/2008, SS. UU., 11 November 2008.</footnote>

<footnote n="7">⁷ Id., point 2.11.</footnote>

<footnote n="8">⁸ According to the so called theory of the counter-limits (*teoria dei controlimiti*), first proposed by the Constitutional in the Judgement 170/1984 (*Granital*, see below p. 4), the *primautè* of European law is counter balanced and limited by the respect of the most fundamental principles set in the first section of the Italian Constitution, Artt. 1-12. In the opinion of some commentators (e.g. R. Chieppa and R. Giovagnoli, *Manuale di Diritto Amministrativo*, Milano 2011, pp.54-55, and A. Randazzo, *La teoria dei controlimiti riletta alla luce del Trattato di Lisbona: un futuro non diverso dal presente?*, on www.diritticomparati.it, 2/2011), the Lisbon Treaty recognizes and brings at European level such systematisation at art. 4 para. 2 of the Treaty on</footnote>
(such as the constitutionally protected fundamental rights). Indeed, in the legal science many techniques aimed at systematically constructing the horizontal effect of rights (e.g. the doctrine of direct application or the concept of combined use of private law and constitutional norms) can be found, but all of them with at their core the inviolability of rights as sanctioned by Art. 2 of the Constitution.

Even if this general picture still stands, two recent judgments in particular show a different attitude of the Supreme Court towards the Charter after the entry into force of the Lisbon Treaty. In the Judgment 28658/2010¹, the subject matter is analysed through Art. 51 and, while stating that it is not within the domain of Union Law, making the Charter itself not directly applicable anyway, it takes care to underline that, on the other hand, “the Charter certainly represents a privileged tool of interpretation also for internal law and has to be presumed coherent with those values that the Member States and the bodies of the Union have together accepted, as expressed in Art. 6 of the Treaty on European Union”<fnref n="2" />. The Judgment goes on quoting the main sentence of the other Judgment I was referring to, 2352/2010³, which bears great significance. Indeed, referring to Article 1 of the Charter, it states that “the principles of common European law have the merit to make evident the universal values of the personalistic principle on which the States of the Union are founded. The filonomachia<fnref n="4" /> of the Supreme Court also includes the interpretative process of compliance of the national and constitutional laws to the non-colliding but promotional principles of the Lisbon Treaty and the Nice Charter that it poses as basis of the common European law”<fnref n="5" />.

It is extremely interesting that, while both judgments cite and claim to be following the trail of Judgment 26973/2008, they remind of the changes made by Lisbon Treaty but they fail to link the consequent different legal context in respect to the one in which 26973/2008 was drafted. Moreover, they refer directly only to provisions of the EU Charter as source of law regarding fundamental rights. Judgments 2352/2010 and 28658/2010, while formally keeping the Constitution higher above the protection for fundamental rights as set in the European space, de facto placed for the first time in a clear fashion the Charter at the top of the legal tools regulating inviolable rights in the Italian legal system<fnref n="6" />. To put it in an even more practical way, it still feels at least bizarre for someone grown within such system, to read the *Corte di Cassazione* refer to human dignity using as legal basis Art. 1 of the Charter, without ever citing Art. 2 of the Italian Constitution.

Another advancement was made even more recently through Judgment 9422/2011: “the United Sections [of the Supreme Court] recognize compensatory protection, other than in the cases provided for by law, only in the case of a lesion of a person’s inviolable rights, and *id est* in presence of an injustice constitutionally and, this Court adds, internationally recognized and qualified.”<fnref n="7" />

Again reasoning *a contrario*, finding the Charter not directly applicable as in 28658/2010⁸, the Court “slips in” a sentence, “adding”, as if it was implicit in precedent case law, that for it to be capable of originating horizontal effects, the right violated should be recognized both constitutionally and internationally. If this may bear little practical effect (the rights protected by the Italian

<footnote>the European Union by affirming that “[t]he Union shall respect” the “fundamental structures, political and constitutional [...] of Member States”.</footnote>

<footnote n="1">¹ Corte di Cassazione, Sentenza 28658/2010, II sez., 21 May 2010.</footnote>

<footnote n="2">² Id., *Motivi della decisione*, par. 2, my translation.</footnote>

<footnote n="3">³ Corte di Cassazione, Sentenza 2352/2010, III sez., 2 February 2010.</footnote>

<footnote n="4">⁴ *Filonomochia* (or in the more used form *nomofilachia*, literally meaning “defence of the law”) is the function entrusted in the Italian legal system in the *Corte di Cassazione* to maintain through its case law a common interpretation of the written law, in a system lacking a binding value of precedent decisions.</footnote>

<footnote n="5">⁵ Corte di Cass., Sentenza 2352/2010, *cit.*, point 5A, my translation.</footnote>

<footnote n="6">⁶ Cfr. F. Ferrari, *Il filo d'Arianna dei valori e delle garanzie comuni agli Stati membri nella Carta dei Diritti e nella Convenzione Europea dei diritti dell'Uomo: due esempi di nomofilachia ricettiva*, on www.europeanrights.eu, 2/2011, pp. 3-4.</footnote>

<footnote n="7">⁷ Corte di Cassazione, Sentenza 9422/2011, III sez., 22 March 2011, *Motivi della decisione*, par. 11, my translation.</footnote>

<footnote n="8">⁸ In this case because the alleged violated right, the right to free time, is not considered to be an inviolable right recognized by the Charter.</footnote>
Constitution, quite an old one even if very advanced for its time of drafting, 1947, are all also recognized by the EU Charter), it shows quite a change of attitude in respect to the above analysed Judgment 26973/2008, underlining that only constitutional rights would have to be taken into account for compensatory protection. Of course, it is no coincidence that the entry into force of the Lisbon Treaty is placed in time between the two decisions. Oddly enough, 9422/2011 cites 26973/2008 as if the two were going along exactly the same lines. Anyway, as it can be noticed already through this brief *excursus*, the Supreme Court, as well as the Constitutional Court, tends quite often to mask as continuity advancements in interpretation they make.

Lastly, it is necessary to analyse the case law regarding the subject matter of the Constitutional Court, the main interpreter of the Constitution and especially the judge of the coherence of the other sources of law with it. It is worth notice that also the Constitutional Court used to refer very often to the Charter of Fundamental Rights before its gaining of legal value<fnref n="1" /> as a parameter of interpretation for the content of inviolable rights, most probably leading to the same practice in other jurisdictions, as referred upon above.

The first relevant decision to give account of, intervened after 1st December 2009, is Judgment 138/2010², quite famous because it is the one in which the Court stated that marriage of people of the same sex is neither forbidden or guaranteed by Italian Constitution, but its regulation stays in the hands of the legislator. It refers to Lisbon Treaty, the new legal value of the Charter and Art. 51 to enquire if the subject matter would fall within the scope of application of the Charter itself. In this respect, the Court states that “it is not necessary, to the ends of the present case, to deal with the” related “problems”, because Art. 9 of the Charter already solves the issue: “while recognising the right to marry, it remands to the national laws who regulate its exercise. It has to be added that the explanations concerning the Charter on Fundamental Rights, composed under the authority of the *praesidium* of the Convention which drafted it (and that, while not bearing legal value, represent an undoubtful tool of interpretation), clarify (between other things), with reference to the said Art. 9, that <the Article does not forbid neither imposes the granting of marital *status* to people of the same sex><fnref n="3" />.”<fnref n="4" />

If in 138/2010, for the first time there is a clear reference to the new role of the EU Charter, it is really finally faced only in Judgment 80/2011⁵, stating a principle that seems somehow obvious but failed to have been directly expressed before by the Constitutional Court, that is not only the leading authority for the ordinary jurisdiction to look to with regard to fundamental rights but also the main if not unique “translator” of the consequences European law has for a legal system like the Italian one, that still nowadays claims, notwithstanding the recognition, for instance, of direct effects of EU law, to be a strictly dualistic one. “The prerequisite for the application of the Nice Charter is, therefore, that the case brought before the judge is disciplined by European law – because inherent to acts of the Union, to national acts and behaviours implementing law of the Union, or justifications brought by a Member State for a national act otherwise not compatible with the law of the Union – and not only by national norms lacking any link with that law”.<fnref n="6" />

So, even if once again through an *a contrario* reasoning, it is easy to draw some consequences, consequences that probably did not need to be reaffirmed through the case law of the Constitutional Court, indeed, because somehow obvious. EU Law (including the norms of the Treaties) is directly applicable, then capable to originate horizontal effects, within the Italian judiciary system, as affirmed

<footnote n="1">¹ Cfr. A. Guazzarotti, *cit.*, pp. 4-5.</footnote>

<footnote n="2">² Corte Costituzionale, Sentenza 138/2010, 14 April 2010.</footnote>

<footnote n="3">³ Cfr. Text of the explanations relating to the complete text of the Charter as set out in CHARTE 4487/00 CONVENT 50, CHARTE 4473/00 CONVENT 49, 11 October 2000.</footnote>

<footnote n="4">⁴ Corte Cost., Sentenza 138/2010, *cit.*, point 10 *Considerato in diritto*, my translation.</footnote>

<footnote n="5">⁵ Corte Costituzionale, Sentenza 80/2011, 7 March 2011.</footnote>

<footnote n="6">⁶ Id., point 5.5 *Considerato in diritto*, my translation.</footnote>
already in 1984 by the Constitutional Court in the *Granita*l Judgment<sup>1</sup>, implementing the principles of the *Simmenthal* Judgment of the European Court of Justice<sup>2</sup>. The Charter on Fundamental Rights has, since the entry into force of the Lisbon Treaty, equal legal value as the Treaties, *ergo* its norms are sources of horizontal effects in the Italian legal system, provided of course, as underlined already, that the subject matter falls within the competences of the European Union.

Some commentators have defined the approach in 80/2011 as restrictive or even a *revirement* from *Granita*<fnref n="1" />. I cannot but disagree. Such impression may be given by the fact that, in the developing of the reasoning, especially from the wording used, it is clear that the Court is very much concerned to keep the application of EU law within its limits. The conclusion of the reasoning, though, is in the sentence quoted above: those limits have not changed and they are the competences of the Union. So Judgment 80 is nor restrictive or a *revirement*: it just restates the principle of *Granita*l, continuity is really there this time. Of course, the situation is different from 1984: but it is not the principle being different, are the competences of EU and, more in general, the coverage of the Treaties which increased since then (when EU itself did not even exist as such). Moreover, it is understandable, that in presence of a text on fundamental rights becoming binding within the EU system (also considering the permeating nature of fundamental rights capable of compromising the “delicate balance between national sovereignty and derivate supranational powers”<sup>4</sup>) the Constitutional Court, especially in a system of a rooted dualistic culture<sup>5</sup>, aware of what that could mean for its prerogatives, feels the need to strongly reaffirm the limits for the application of EU law within the Italian legal order.

In my opinion, the Constitutional Court has made enough efforts to lead with clarity in the systematisation of this new role of the Nice Charter and affirm the boundaries of its application. Still, especially in the daily practice, within the ordinary jurisdiction, the different role of the several tools regarding human rights, relevant for Italian law (the Constitution, the EU Charter on Fundamental Rights, the European Convention on Human Rights, the two UN Covenants of 1966 and ratified international conventions in general), is and will be, surely for at least some years, quite blurred. An evidence of it, even if just a small part of the phenomenon, are the first instance decisions cited above, listing those human rights texts without investigating what they actually mean from a systematic point of view. As Roberto Bin, one of the most renowned Italian experts in constitutional law, put it: in regular practice “the <contamination> between [legal] systems prevails, or maybe better their confusion. The phenomenon observed may well be explained through the principle of entropy. In physics, entropy indicates the tendency of the system towards the most possible <disorder>. [...] Entropy represents the loss of initial information [...]: order and the related information leave their place to disorder and balance. Contamination is the result, the process is irreversible. [...] The norms are meanings which combine with each other increasing entropy, that is mixing, contaminating themselves; the balance equals to the complete confusion and the loss of every information on the sources”<sup>6</sup>. With the foreseen accession of the European Union to the European Convention on Human Rights it is very likely that the picture will become even more confused.

<footnote n="1">¹ Corte Costituzionale, Sentenza 170/1984, 8 June 1984.</footnote>

<footnote n="2">² European Court of Justice, case 106/77, 9 March 1978.</footnote>

<footnote n="3">³ See, for instance, M. Cerase, *Brevi riflessioni sull'efficacia orizzontale della Carta di Nizza*, on www.europeanrights.eu, 5/2011, especially pp. 3-5.</footnote>

<footnote n="4">⁴ A. Guazzarotti, cit., p. 12.</footnote>

<footnote n="5">⁵ It has to be noted that some commentators (e.g. F. Lisena, *La Corte costituzionale diventa “monista” (nota a margine della sent. n. 28 del 2010 della Corte costituzionale)*, on www.giustamm.it, 3/2010) suggested that the Constitutional Court could have started a monistic approach by affirming in the Judgment of 28 January 2010 (Corte Costituzionale, Sentenza 28/2010, 28 January 2010) that “European norms [...] are binding and hierarchically over placed in respect to Italian ordinary statutory laws through artt. 11 and 117, para. 1 of the Constitution” (my translation). In my opinion the conclusion is too far reaching considering what it rests upon and following acts of the Court still clearly following the dualistic model, as referred above.</footnote>

<footnote n="6">⁶ R. Bin, *Gli effetti del diritto dell'Unione nell'ordinamento italiano e il principio di entropia*, in *Studi in onore di Franco Modugno*, Napoli 2011, p. 374, my translation.</footnote>
**Bibliography:**

1. Bin, R., *Gli effetti del diritto dell'Unione nell'ordinamento italiano e il principio di entropia*, in *Studi in onore di Franco Modugno*, Napoli 2011

2. Cerase, M., *Brevi riflessioni sull'efficacia orizzontale della Carta di Nizza*, on www.europeanrights.eu, 5/2011

3. Chieppa, R. and R. Giovagnoli, *Manuale di Diritto Amministrativo*, Milano 2011

4. D'Ancona, L., *L'efficacia della Carta di Nizza nella giurisprudenza nazionale dopo Lisbona*, on www.europeanrights.eu, 1/2011

5. Ferrari, F., *Il filo d'Arianna dei valori e delle garanzie comuni agli Stati membri nella Carta dei Diritti e nella Convenzione Europea dei diritti dell'Uomo: due esempi di nomofilachia ricettiva*, on www.europeanrights.eu, 2/2011

6. Guazzarotti, A., *I diritti fondamentali dopo Lisbona e la confusione del sistema delle fonti*, Rivista telematica giuridica dell'Associazione Italiana dei Costituzionalisti, 3/2011

7. Labori, Michel et Costea, Simion, *Le Management des Politiques de l'Union Europeenne*, PARIS, Prodifmultimedia, (FRANCE), 2011, 300 pages.

8. Randazzo, A., *La teoria dei controlimiti riletta alla luce del Trattato di Lisbona: un futuro non diverso dal presente?*, on www.diritticomparati.it, 2/2011

9. Tega, D., *La Carta dei Diritti di Nizza nella giurisprudenza costituzionale Italiana*, in L. Califano (ed.), *Corte Costituzionale e diritti fondamentali*, Torino 2004

# European Context of the Administrative Justice in the Czech Republic

DR. OLGA POUPEROVÁ

Assistant Professor, Palacky University, Olomouc, Czech Republic

**Abstract:** The article deals with the EU law context of administrative justice. It outlines the key aspects of Administrative Justice according to the EU Law first (section I) and then it concentrates on the Administrative Judiciary in one of the EU member states – in the Czech Republic (section II – VII). System of courts in the Czech Republic is presented in section II. The term “Administrative Justice”, its purpose and models of Administrative Justice developing in EU member states shall be investigated in section III. An overview of the interesting history of Administrative Justice in the region, which now constitutes the Czech Republic and which has gone through several totalitarian periods shall be given in section IV. Then the paper concerns the constitutional and legal foundations of the Czech Administrative Justice (section V) and the system of Administrative Justice in the Czech Republic (section VI). It also brings basic information about the procedure before an administrative court and information about the most frequent type of administrative action (section VII). A summary shall be given in the final section (VIII).

**Keywords:** Administrative Justice, Principle of Non-discrimination, Principle of Effective Judicial Protection, Principle of Fundamental procedural rights, Fair process, Full jurisdiction, Czech Republic.

## 1. EU LAW CONCERNING THE ADMINISTRATIVE JUSTICE

<figure><img src="image_18.png" /></figure>

U law does not comprise detailed rules on administrative procedure or Administrative Justice, neither for the EU judiciary nor for the courts of member states. National courts (including administrative courts) are constituted by national laws and they follow national laws on procedure within their jurisdiction set also by national laws. Special European provisions may exist, but they do not form a general or extensive system. As a consequence, general principles have been identified by the Court of Justice to fill in this void. However, these principles may modify or extend national provisions, but they do not supplant for them. There are three key
principles concerning the Administrative Justice in EU member states: a) *Principle of Non-discrimination and Principle of Effective Judicial Protection*<fnref n="1" /> and b) *Principle of Fundamental procedural rights*.<fnref n="2" />

**a. Principle of non-discrimination and principle of effective protection of subjective rights**

These two requirements are intended to establish a balance between the need to respect the procedural autonomy of the legal systems of the Member States and the need to ensure the effective protection of EU rights before the national courts.

Under settled case law of the Court of Justice the principle of non-discrimination means that *"it is for the Member States to choose appropriate rules to protect rights conferred by Community law, on condition however that such rules are not less favourable than those governing similar domestic actions in respect of rights conferred by national law..."*<fnref n="3" /> In this context the CJ states that *"each national provision governing enforcement of an EU right before national courts must be examined and weighed not in abstract, but in the specific circumstances of each case, to see whether, taking its purpose into account, it renders the exercise of that right excessively difficult"*<fnref n="4" />.

According to the *principle of effective judicial protection* individuals must have the possibility to enforce their rights that are conferred on them by EU law before a court. It is necessary that individuals have *effective access to a court* (formal aspect) and that *the courts have effective remedies* (material aspect), by which a violation of EU law can be restored. The concept of shared government between European institutions and national authorities is characteristic for the EU, so for EU citizens the right on protection of subjective rights is ensured on two levels – on the EU level and on the national level as well.<fnref n="5" />

There are several remedies on the EU level. The most important for individuals are the appeal on review of the legality of an act taken by an EU institution and intended to produce legal effects vis-à-vis third parties (Art. 263 TFEU) and the action for non-contractual liability concerning damage caused by an EU institution (Art. 268 in conjunction with Art. 340, second and third paragraph, TFEU).

The application of EU law as far as individuals are concerned usually occurs at the national level. As mentioned above, which national court is competent to grant the protection and what procedural rules are applicable, is in principle a matter for national law. The national courts are considered as “EU law judge”; they have the task of ensuring an effective application of EU law in the Member State.<fnref n="6" /> To guarantee a uniform application of EU law, national courts have the opportunity or obligation to refer preliminary questions concerning the validity and interpretation of EU law to the Court of Justice (Art. 267 TFEU).

System of remedies concerning administrative matters on the national level (specifically in the Czech Republic) shall be studied in sections II-VII.

**b. Principle of fundamental procedural rights**

The above named principles of non-discrimination and effectiveness are supplemented by the principle of fundamental procedural rights. Under Art. 6, third paragraph, TEU fundamental

<footnote n="1">¹ Defined by the ECJ e.g. in joint cases C 430/93 and 431/93, van Schijndel and van Veen versus Stichting Pensioenfonds voor Fysiotherapeuten.</footnote>

<footnote n="2">² Winkler, R. Administrative Justice in Europe: The EU Acquis, good practice and recent developments. Working paper submitted for the Twinning Project "Support to more efficient, effective and modern operation and functioning of the Administrative Court of the Republic Croatia", p. 8.</footnote>

<footnote n="3">³ Opinion of Advocate General Saggio, Case C-126/97, Eco Swiss China Time Ltd v Benetton International NV, available from http://curia.europa.eu/.</footnote>

<footnote n="4">⁴ Craig, P. P. de Búrca, G. EU Law: Text, Cases, and Materials, 4th edition, Oxford, New York, 2008, p. 319-321.</footnote>

<footnote n="5">⁵ Widdershoven, R. In Seerden, R. J. G. H. (ed.) Administrative Law of the European Union, its Member states and the United States, 2nd edition, Antwerpen, 2007, p. 323.</footnote>

<footnote n="6">⁶ Widdershoven, R. In Seerden, R. J. G. H. (ed.) Administrative Law of the European Union, its Member states and the United States, 2nd edition, Antwerpen, 2007, p. 324.</footnote>
procedural rights set by the European Convention for the Protection of Human Rights and Fundamental Freedoms and resulted from the constitutional traditions common to the Member States, shall constitute general principles of EU law. They are binding not only on the EU, but also on the member states insofar as they act for EU.<fnref n="1" /> The set of fundamental procedural rights is known as right to fair process (Art. 6 ECHR<fnref n="2" />) and consists of several procedural rights. Under the case law of the Court of Justice the guarantees of Art. 6 ECHR are not limited to civil rights and obligations or criminal charges,<fnref n="3" /> but apply to all procedures held before an authority competent under the national law.<fnref n="4" /> As a consequence, the Administrative Justice (and administrative procedure as well) is subject to requirements of Art. 6 ECHR.

The issue of fair process in the specific context of Administrative Justice in the Czech Republic is further investigated below (section IV).

## II. SYSTEM OF COURTS IN THE CZECH REPUBLIC

The judiciary in the Czech Republic is defined by the Constitution<fnref n="5" /> so that the courts perform their duties as independent authorities (Art. 82 of the Constitution). The system of ordinary courts is made up of district, regional, superior courts and the Supreme Court (Art. 91, first paragraph of the Constitution). It is supplemented with the Constitutional Court that stands outside the system of ordinary courts (Art. 83 of the Constitution).

There are 86 district courts in the Czech Republic; the district court in the district Brno is called City Court (§ 12 of the Law on Courts and Judges<fnref n="6" />). District courts are the lowest judicial authorities in civil and criminal matters. They are the courts in which the 1st instance proceedings are heard.

There are 8 regional courts in the Czech Republic. The regional court in the capital in Prague is called Metropolitan Court in Prague (§ 11 of the Law on Courts and Judges). Regional Courts are courts of first instance in some matters, both criminal and civil. Regional courts as courts of first instance hear and rule on cases which are complicated and specialized and occur infrequently, e.g. protection of privacy and protection of reputation, cases of commercial nature involving larger financial compensation, bankruptcy etc. (§ 9 (2) of the Civil Procedure Code). In criminal proceedings regional courts as courts of first instance hear charges of more serious crimes. Regional courts as courts of second instance rule on matters that have been decided by a district court at first instance.

Czech procedural law is based on the principle of differentiated substantive jurisdiction, according to which regional courts rather than district courts are competent in some cases for reasons relating to greater specialisation and consistent decision-making. The principle says that district courts have substantive jurisdiction at first instance unless the law states otherwise.

<footnote n="1">¹ See Winkler, R. Administrative Justice in Europe: The EU Acquis, good practice and recent developments. Working paper submitted for the Twinning Project "Support to more efficient, effective and modern operation and functioning of the Administrative Court of the Republic Croatia", p. 11.</footnote>

<footnote n="2">² The European Convention on Human Rights and Fundamental Freedoms and its additional protocols (hereinafter "ECHR").</footnote>

<footnote n="3">³ For detailed information see Dijk, P., van Hoof, G. J. H. Theory and Practise of the European Convention on Human Rights, 3rd edition, Kluwer Law International, Hague, 1998, p. 391-478.</footnote>

<footnote n="4">⁴ ECJ Case C-185/95 P, Baustahlgewebe GmbH versus Commission of the European Communities.</footnote>

<footnote n="5">⁵ Constitutional Act No. 1/1993 Coll., Constitution of the Czech Republic (ústavní zákon č. 1/1993 Sb., Ústava České republiky), hereinafter "Constitution or Czech Constitution", in English available for example on web pages of the Constitutional Court of the Czech Republic, http://www.usoud.cz/view/1419 (2012/02/24).</footnote>

<footnote n="6">⁶ Law No. 6/2002 Coll., on Courts, Judges, Lay-judges and the State Administration of Courts (zákon č. 6/2002 Sb., soudech, soudcích, přísedících a státní správě soudů a o změně některých dalších zákonů, hereinafter "Law on Courts and Judges").</footnote>
Under the Code of Administrative Justice specialized administrative panels have been constituted by regional courts. The panels perform judiciary in public administrative matters that are frequent and do not require great specialisation. Such special administrative matters are ruled on by the Supreme Administrative Court.

There are Superior courts on the third level (§ 25 of the Law on Courts and Judges). There are two Superior courts in the Czech Republic, one seated in Prague with jurisdiction over Bohemia and the other seated in Olomouc with the jurisdiction over Moravia. Superior courts as courts of second instance rule on matters, both civil and criminal, that have been decided by a regional court at first instance.

The Supreme Court is seated in Brno. The Supreme Court is the highest judicial authority in the matters of the court's competence (with the exception of matters concerning the powers of the Constitutional Court and the Supreme Administrative Court) (§ 14 of the Law on Courts and Judges). It has the jurisdiction to decide on extraordinary remedies, both in civil and criminal cases, and it is also competent to decide on the recognition and enforcement of decisions issued by foreign courts on the territory of the Czech Republic, where this is required by a special legal regulation or an international treaty.

The Supreme Administrative Court is, according to the principle of separation of powers, seated in Brno (§ 11 of the Code of Administrative Justice<fnref n="1" />), while other top-level state authorities are seated in the capital. The Supreme Administrative Court of the Czech Republic is the highest judicial authority in matters falling within the competence of administrative courts. The Constitutional Court is a specialized judicial authority. Its principal task is to protect rights under the Constitution, the Charter of Fundamental Rights and Freedoms and other constitutional laws of the Czech Republic. Powers of the Constitutional Court are for example the cancellation of laws adopted by the Parliament and their individual provisions when they contradict the Constitution, the cancellation of regulations adopted by administrative authorities and their individual provisions when they contradict law adopted by the Parliament, decisions on constitutional appeals against legitimate rulings affecting the basic guaranteed rights and freedoms, the review of constitutional actions made by the Senate against the president, decisions on measures necessary for the performance of a binding decision made by an international court, the arbitration of disputes regarding the extent of the competencies of state authorities and self-administration authorities, and the review of international contracts before their ratification with respect to their compliance with constitutional order (Art. 87 of the Constitution).

### III. GENERAL INFORMATION ABOUT ADMINISTRATIVE JUSTICE

Judicial review is a procedure by which the courts supervise the exercise of public power on the application of an individual. A person, who feels that an exercise of public power by an administrative authority is unlawful, perhaps because it has violated his or her rights, may apply to an administrative court for judicial review of the administrative act. The Administrative Justice comes up when the remedies within the public administration itself are exhausted. The idea of the Administrative Justice has developed in connection with the guaranty of civil rights and rule of law in a democratic country based on division of powers.<fnref n="2" /> It is also related to the transformation of an individual from serf to citizen. While private laws have been protected by courts from time immemorial, the relationship between a state and a serf did not have to be regulated at all, and if the relationship was regulated it only depended on the manorial lord if they followed such a law ("regis").

<footnote n="1">¹ Act. No 150/2002 Coll., Code of Administrative Justice (zákon č. 150/2002 Sb., soudní řád správní), hereinafter "Code of Administrative Justice", in English available for example on web pages of the Supreme Administrative Court, http://www.nssoud.cz/docs/caj2002.pdf (2012/02/24).</footnote>

<footnote n="2">² See Mazanec, M. Správní soudnictví, Praha, Linde, 1996, p. 13 ff.</footnote>
administrative courts judge not only the legality of administrative acts but also their efficiency. The panels of administrative authorities consisting of professionals and non-professionals decide the disputes about public individual rights. The system had three instances and the court decided only in the case of the last instance. In the South German model of administrative justice the making of decisions was not solely based on the cassation principle; the decision of an administrative authority could be not only cancelled but also revised. The making of decisions in full jurisdiction was an important characteristic feature. Austrian administrative justice is inspired by the South German model.<fnref n="1" />

Furthermore, there exist jurisdictions of constitutional courts (e. g. fundamental rights complaints) or other courts (e g. civil liability of state) that may subject public administration to judicial review. Finally, other institutions are constituted in modern states to protect individuals' rights, like Ombudsmen or mediation institutions, but they do not fit the above described idea of Administrative Justice. The Ombudsman has been constituted also on the European level to hold the EU institutions, bodies, offices, and agencies to account. Although the decisions of Ombudsmen are formally not binding, the institutions concerned usually comply with them.

The Czech Constitution does not recognize separate system of specialized administrative courts. But, as mentioned above, specialized administrative panels have been established by regional courts as courts of general jurisdiction and the Supreme Administrative Court as the supreme judicial authority specialized exclusively in the field of Administrative Justice.

Review by administrative courts is limited to acts of administrative authorities other than regulations. Regulations adopted by administrative authorities may be reviewed (and avoided) solely by the Constitutional Court in the Czech Republic.

#### IV. HISTORY OF ADMINISTRATIVE JUSTICE IN THE CZECH REGION

The roots of Administrative Justice in general can be found in England already in the 13th century; in central Europe Administrative Justice was not born until the second half of the 19th century in connection with the beginning of political liberalism.

The Supreme Administrative Court in the Czech Republic was legally established by the Constitution of the Czech Republic in 1993, but it was not created until 2003, when the Code of Administrative Justice entered into force.

The earlier history of administrative judiciary in the regions, which now constitute the Czech Republic, is connected with the history of the Austro-Hungarian Empire (of which the Czech country was a part). The constitutional foundations of Administrative Justice in the Austro-Hungarian Empire were laid down in the so-called “December Constitution”, or more precisely in Art. 15 of the Basic State Law on Judicial Power (No. 144/1867 of the Imperial Collection of Laws). This act established the Administrative Court in Vienna (Verwaltungsgerichtshof).

This Court was the sole administrative court serving the Austrian part of the empire. Administrative Justice was thus conceived of as a concentrated and specialized system of judicial review.

It took almost ten years before the Administrative Court actually started to operate and its rules of procedure were adopted. It was effectuated by the Administrative Court Act that is known in the legal doctrine as “the October Act.” The author of the Administrative Court Act was Karl von Lemayer, a well-known Austrian administrative lawyer, who later became a member of the court and the president of a chamber. The court's first hearings were held in July 1876.

<footnote n="1">¹ See for example Mazanec, M. Správní soudnictví, Praha, Linde, 1996, p. 23. See also Danwitz, T. Europäisches Verwaltungsrecht, Berlin-Heidelberg, Springer Verlag, 2008, p. 28 ff; Adamovich, L. K., Funk, C. B., Holzinger, G. Österreichisches Staatsrecht, band 2, Staatliche Organisation, Wien, Springer Verlag, 1998, p. 281 ff.</footnote>
The act itself was very concise, it comprised fifty articles and it intentionally left extensive room for flexible judicial rule-making. The quality of the Administrative Court Act is well confirmed by the fact that after the break-up of Austria-Hungary in 1918 it remained in force in Austria as well as in the newly created Czechoslovakia. In the Czech region the act stayed in effect until the liquidation of Administrative Justice after the communist takeover in 1948. High quality case law of the Vienna Administrative Court is evidenced by compilations of court reports (edited for example by Dr. Adam Budwinski). The present Czech administrative courts, especially the Supreme Administrative Court, often use the case law of Vienna administrative court in its argumentation and reasoning of decisions. That also proves the high quality of the case law of the Austrian Administrative Court.

The Czechoslovak Republic adopted the Supreme Administrative Court Act as one of its first laws. It was act No. 3/1918 of the Collection of laws. It remained in force until 1952. The first president of the Supreme Administrative Court was Ferdinand Pantůček. He was one of the men involved in the October 1918 overturn of the Habsburg monarchy and a member of the imperial Upper House and later the president of a chamber at the Vienna administrative court. The vice-president of the Court was Dr. Emil Hácha who had been a councillor at the Vienna Administrative Court. He was one of the most important Czech administrative lawyers, but at the same time a tragic figure of the modern Czech history. (Later as the president of the Czechoslovak Republic he signed the document which allowed Germany to annex Czechoslovakia.) After the death of Pantůček, Dr. Hácha was appointed president of the Supreme Administrative Court and he remained in that position until November 1938, when he was elected President of the Czechoslovak Republic.

It is often stressed that Czechoslovak Administrative Justice was based on the Austrian model, but this was not intentional. It was merely a result of development at the time. The original conception was different. The Czechoslovak Constitution 1920 envisaged Administrative Justice based on the Prussian (north-German) model with lower administrative courts to be created within districts and counties. The Supreme Administrative Court was supposed to act only as the court of last instance, deciding solely on matters concerning legality. To put this model into practise, the Administrative Justice before District and County Offices Act (Law No. 158/1920 Coll.) was adopted together with the Constitution of 1920, but the Act never entered into force, probably because of political disagreement. The Supreme Administrative Court as the only administrative court in the Czechoslovak Republic was overloaded. Proceedings before the administrative court were slow and long and even a progressive increase in the number of judges was not sufficient.<fnref n="1" />

During the period of the so called First Republic between 1918 and 1938 the Czechoslovak Supreme Administrative Court was on par with administrative jurisdictions in other European countries. Its judicial activity of the Court is documented in official law reports, named after its editor and president of a chamber of the court Dr. Josef Bohuslav. Bohuslav's report enjoyed a very good reputation. Between 1918 and 1948 tens of thousands of decisions were published in the law report. A lot of decisions of the Supreme Administrative court of the First Czechoslovak Republic are still of some relevance today.

In the period of German Occupation between 1939 and 1945 (the so-called Protectorate of Bohemia and Moravia), the sad role of the Supreme Administrative Court was to interpret the anti-semitic legislation. Powers of the court were limited because of the separation of domestic judicial powers from those falling under the jurisdiction of the Third Reich.

During the Second World War the Administrative Court in Bratislava was created in the then independent fascist Slovak Republic. After the Second World War an institution called Administrative Court was still envisaged in Art. 137 of the new Constitution (the so-called 9th May

<footnote n="1">¹ For details see Mazanec, M. Správní soudnictví, Praha, Linde, 1996, p. 27 ff.</footnote>
Constitution<fnref n="1" />), but immediately after the Communist takeover in 1948 it became clear that independent judicial control of public administration and protection of public-law rights of individuals would not be respected by the new totalitarian regime. Some of the older judges of the Administrative Court were made retired and no new judicial appointments were made. This way the Court was made non-operational. In 1949 the Administrative Court was reseated to Bratislava. According to law the Administrative Court was supposed to be operational until 1952, but there is no clear evidence in the archives that the court really operated.

Administrative Justice was altogether abolished by a constitutional act on court and the prosecution office (No. 64/1952 Coll.) that amended the constitutional provisions on the judiciary and without explanations removed from the Constitution all the provisions on the Administrative Court. All other laws concerning the Administrative Court were abolished by a general clause comprised in the following act (No. 65/1952 Coll.).

The only remnant of the Administrative Justice in Czechoslovakia was the insurance justice (justice in matters concerning employee insurance in case of illness, invalidity and old age). This was transformed into a special type of proceeding on remedies against an administrative decision and became a part of the Civil Procedure Code. The perception of the Administrative Justice changed. It became merely a minor and specific subcategory of Civil Justice.<fnref n="2" />

The idea of the incompatibility of the totalitarian communist establishment with the existence of Administrative Justice was clear-sightedly expressed by the afore-mentioned administrative lawyer Emil Hácha already in 1933: "In the Soviet establishment there is no space for Administrative Justice already for the reason that bolshevism removed the traditional separation of powers and thus also the hierarchy of rules, that is the difference between a law and the rules of lower instance, ..., so it is not possible to measure administration using the norm of higher instance at all. Bolshevism could not consistently admit the independence of judges and a judge served as a mere "judicial clerk". ... Where Lenin's principle that freedom is a bourgeois prejudice is valid, there is no space for an authority the role of which is to protect the individual's freedom towards the state. ... Courts of public law which were abolished in Czechoslovakia in the 50's were replaced by the general supervision of the public prosecutor's office which was aimed at the protection of public interest in the better case but not at the protection of individual rights towards illegal actions of the executive power.

The heritage of the Czechoslovak Supreme Administrative Court, one of the notable European tribunals, was condemned to non-existence. Bohuslav's collection of decisions of the Supreme Administrative Court and other important works about public law disappeared from libraries and were forgotten.

After 1989 was what is often called a renaissance of Administrative Justice. Constitutional foundations were laid down in Art. 36, second paragraph of the Charter of Fundamental Rights and Freedoms which guarantees the right to the review of administrative acts.

In the period between 1992 and 2002 the judicial review of administrative acts was performed on the basis of special provisions of the Civil Procedure Code (Part V of the Civil Procedure Code called Administrative Justice). The review was effectuated by courts of general jurisdiction and performed by regional courts and the Supreme Court of the Czechoslovak Republic, after the split of Czechoslovakia by High Courts of the Czech Republic.

From the legal point of view the Supreme Administrative Court of the Czech Republic was established 1st January 1993, when the Czech Constitution entered into effect. The Constitution (Art. 87, third paragraph and Art. 91, first paragraph of the Constitution) explicitly provides for the Supreme Administrative Court. But the implementing law was not adopted until 2003.

<footnote n="1">¹ Constitutional Law No. 150/1948 Coll., Constitution of the Czechoslovak Republic.</footnote>

<footnote n="2">² For detailed information see Mazanec, M. Správní soudnictví, Praha, Linde, 1996, p. 27 ff. See also web pages of the Supreme Administrative Court, http://www.nssoud.cz/History/art/4?menu=174 (2012/02/24), available also in English.</footnote>
There were some questionable aspects of the Czech conception of Administrative Justice in the period between 1992 and 2002, when the review of administrative acts was performed by courts of general jurisdiction.

The Constitutional Court repeatedly pointed to the most worrying problem which was the inconsistency of the Czech Administrative Justice with Art. 6 ECHR.<fnref n="1" />

The inconsistency lay in several grounds:

- The judicial review of administrative acts was limited to the review of legality. The administrative court did not review, whether the administrative authority used its discretionary power rightly; the court only reviewed whether the legal limits of the discretionary power were not exceeded, and whether the administrative authority used its discretionary power within legal limitations (lack of propriety review).

- The judicial review did not comprise issues such as protection against the inaction of administrative authority or unlawful interference (lack of protection against unlawful interference and unlawful inaction).

- There were no judicial remedies against judicial decisions in Administrative Justice. The decision of the “first instance” court was final (lack of remedies).

- Administrative justice did not take evidence. Solely evidence given before administrative authorities was relevant for the ruling of the administrative court (lack of full jurisdiction).

The Constitutional Court by its decision (published as No. 279/2001 Coll.) annulled the Part Five of the Civil Procedure Code, which had been the legal basis for administrative justice. The Constitutional Court, however, deferred the effect for nearly two years (until 1st January 2003) to provide the legislator with sufficient time to pass new, consistent legislation.<fnref n="2" />

Art. 6 ECHR provides a detailed right to a fair trial, including the right to a public hearing before an independent and impartial tribunal within reasonable time. It mentions the term “tribunal”. So the question is if the requirements of Art. 6 ECHR must be met in administrative proceedings held before administrative authorities too. The European Court of Human Rights has already answered this question. The requirements of Art. 6 ECHR shall be applied also to proceedings held by administrative authorities (when ruling on matters relating to civil rights and obligations or charge of administrative offence), not only in proceedings held by courts.<fnref n="3" />

The requirements of Art. 6 ECHR may be applied to administrative procedure only appropriately (by definition of the public administration not completely). The public administration can be neither independent, because it is based on subordination, nor impartial, because it represents public interest. Those requirements that cannot be fulfilled in the administrative procedure must be completely met in the procedure of judicial review.<fnref n="4" />

<footnote n="1">¹ Notification No. 209/1992 Coll. of the Ministry of Foreign Affairs, on The European Convention on Human Rights and Fundamental Freedoms and its additional protocols No. 3, 5 and 8 (sdělení č. 209/1992 Sb. Federálního ministerstva zahraničních věcí, o Úmluvě o ochraně lidských práv a základních svobod ve znění protokolů č. 3, 5 a 8).</footnote>

<footnote n="2">² In English see for example Pomahač, R. Czech Administrative Law, Prague, Charles University, 2004, p. 123-124.</footnote>

<footnote n="3">³ ECHR, 28th June 1984, Campbell and Fell versus U. K., application No. 7819/77, 7878/77: “...the word «tribunal» in Article 6 para. 1 is not necessarily to be understood as signifying a court of law of the classic kind, integrated within the standard judicial machinery of the country... In determining whether a body can be considered to be «independent» – notably of the executive and of the parties to the case..., the Court has had regard to the manner of appointment of its members and the duration of their term of office..., the existence of guarantees against outside pressures... and the question whether the body presents an appearance of independence ...”</footnote>

<footnote n="4">⁴ ECHR, 10th February, 1983, Albert a Le Compte versus Belgium, application No. 7299/75 a 7496/76: „... the Convention calls at least for one of the two following systems: either the jurisdictional organs themselves comply with the requirements of Article 6 para. 1 (Art. 6-1), or they do not so comply but are subject to subsequent control by a judicial body that has full jurisdiction and does provide the guarantees of Article 6 para. 1.“</footnote>
## V. CONSTITUTIONAL AND LEGAL FOUNDATIONS

As mentioned, the Czech Constitution explicitly provides for the Supreme Administrative Court and so lays down the constitutional foundations of Administrative Justice. Art. 91, first paragraph of the Constitution mentions the Supreme Administrative Court as one of the judicial authorities. "The court system comprises the Supreme Court, the Supreme Administrative Court, superior, regional and district courts."

Art. 87, third paragraph of the Constitution provides for an opportunity to entrust the Supreme Administrative Court with the power to annul secondary legislation if it is not in accordance with a statute and the power to decide competence disputes between state authorities and authorities of self-governing units. "A statute may provide that, in place of the Constitutional Court, the Supreme Administrative Court shall have jurisdiction: a) to annul legal enactments other than statutes or individual provisions thereof if they are inconsistent with a statute; b) to decide jurisdictional disputes between state bodies and bodies of self-governing regions, unless that power is given by statute to another body." No statute provides that the Supreme Administrative Court has the power to annul secondary legislation adopted by administrative authorities and every regulation, both statutes adopted by the Parliament and other regulations adopted by administrative authorities, may be annulled solely by the Constitutional Court. The Code of Administrative Justice provides that the Supreme Administrative Court has the power to decide some competence disputes (competence disputes between authorities of state administration on one side and authorities of self-governing units on the other side, disputes between self-governing units versus each other and disputes between authorities of central state administration versus each other).

Administrative Justice is also predicted in Art. 36 of the Charter of Fundamental Rights and Freedoms that comprises the guaranty of fair process and provides that a person who claims that his or her rights were interfered with by a decision of a public administrative authority may ask a court for review of such decision. The competence of administrative courts is under this article based on a general clause. Every decision of an administrative authority may be reviewed, unless the law explicitly states otherwise (but exclusion of decisions relating to fundamental human rights and freedoms would be unconstitutional).

Detail rules for Administrative Justice are comprised in the Code of Administrative Justice (Act No. 150/2002 Coll.). It provides for jurisdiction and competence of administrative courts, some of the issues concerning the organization of courts and the status of judges, procedure of administrative courts and rights and duties of parties to proceedings and other persons in Administrative Justice.

The jurisdiction of Administrative Justice is laid down so that courts in Administrative Justice provide protection to the individual public-law rights of both natural persons and legal entities and make decisions in other matters provided by the Code of Administrative Justice.

Administrative courts do not decide on private law matters, matters related to civil, labour, family and business law. All matters in which an administrative authority have decided on private law matters are excluded from the jurisdiction of administrative courts; the review of decisions in these matters was left for decision by civil courts in civil law proceedings provided by the Civil Procedure Act.

## VI. SYSTEM OF ADMINISTRATIVE JUSTICE IN THE CZECH REPUBLIC

The system of Administrative Justice has been represented in part by 8 regional courts, in which the detachment of their administrative jurisdiction from other matters is solely an issue of internal organization within the court, and secondly by the Supreme Administrative Court, which is the supreme judicial body specialized exclusively in the field of Administrative Justice.
Specialized administrative panels have been established at regional courts to hear the cases related to administrative law. Specialized single-judges rule on solely the cases related to social security law and administrative infractions committed by natural persons

Regional courts as administrative courts provide protection against a decision of an administrative authority, protection against inaction by an administrative authority, and protection against unlawful interference by an administrative authority.

The Supreme Administrative Court rules on cassation complaints and decides on other cases specified by law (§ 12 (1) of the Code of Administrative Justice). A cassation complaint is a type of remedy against a decision of a regional court in matters of Administrative Justice, in which the complainant seeks the annulment of an administrative decision. By deciding on cassation complaints the Supreme Administrative Court as the highest judicial authority in matters related to the jurisdiction of courts of Administrative Justice ensures the unity and legality of decision-making of regional administrative courts.

The jurisdiction of the Supreme Administrative Court also comprises electoral matters and matters of a local referendum, matters of political parties including dissolution of political parties. It also provides protection against unlawful measure of a general nature. The Court is also called to decide some conflicts of competence between administrative authorities. It is also the disciplinary court in matters of judges, state prosecutors and enforcement agents.

## VII. PROCEDURAL GUIDE, GENERAL INFORMATION ON THE PROCEDURE BEFORE AN ADMINISTRATIVE COURT

Procedure before a court of Administrative Justice is based on the principle of disposal; this means that the protection of rights within Administrative Justice is provided only on the submission of a claim. Administrative courts do not provide protection ex officio.

The protection can be claimed after the exhaustion of all appropriate remedies, if admissible under a special law. All available remedies within the public administration must be exhausted first and then the protection before an administrative court may be claimed. It is important for a complainant to try all available remedies concerned within the public administration by means of which it might have been possible to redress his or her grievance; otherwise his or her complaint to court would be inadmissible.

A party need not be represented by an attorney in the proceedings held by a regional court but may choose to be represented by an attorney or by any other person.

In accordance with the guarantee of fair process under the Art. 6 ECHR the hearing before an administrative court as any other court is open to the public.

Complaint against an administrative decision is the most frequent type of complaint brought in Administrative Justice. It falls into the jurisdiction of regional courts. Individuals can present cases to the administrative court if they believe a decision of an administrative authority has violated their public-law rights.

Anyone who claims that their rights have been violated by a decision of an administrative authority may seek the cancellation of such a decision, or the declaration of its nullity. If the administrative authority has decided on a penalty for an administrative offence, the person on whom the penalty was imposed may seek a release from the penalty or its reduction within the limits provided by the law by means of a complaint. In such cases the complainant may seek the change of the administrative decision.

The claim can also be made by the attorney general or by the ombudsman if they find a serious reason for the submission to be in the public interest.

The claim can be made only within two months starting with the date at which the administrative decision was notified to the complainant.
The parties to the proceedings are the complainant and the defendant, while the defendant is the administrative authority which has made the last-instance decision.

Full jurisdiction – this is a term used for the power of administrative courts to produce evidence. Full jurisdiction of administrative courts is one of the important changes in the Czech Administrative Justice, which was brought about by the Code of Administrative Justice in 2003.<fnref n="1" /> The court produces evidence during the hearing. The court may repeat evidence produced by the administrative authority or add new evidence; it appraises the evidence produced by the administrative authority individually and altogether with evidence produced in the proceedings before the administrative court (§ 77 (2) of the Code of Administrative Justice).

If the complaint is justified, the court cancels the contested decision as unlawful or for procedural faults. The court also cancels the contested decision as unlawful if it finds that the administrative authority exceeded the legally defined limitations of discretionary power, or abused its discretionary power.

If the court decides on a complaint against a decision whereby the administrative authority imposed a penalty for an administrative offence, the court may, if the penalty imposed was apparently unreasonable, either release the complainant from the penalty or reduce the penalty within lawful limits.

If the court cancels the contested administrative decision, it may, depending on circumstances, also cancel the decision of a lower-level administrative authority which preceded it.

If the court cancels a decision, it also declares that it returns the matter to the defendant for further proceedings.

The legal position adopted by the administrative court in the cancellation judgement or a judgement declaring nullity is binding on the administrative authority in subsequent proceedings.

If the court cancels a decision of an administrative authority in a matter in which the court itself produced evidence, the administrative authority must include the evidence among the grounds for a new decision in the subsequent proceedings.

The court shall dismiss a complaint if not justified.

## VIII. CONCLUSION

Administrative Justice is an inseparable attribute of the democratic state in the modern world. Everybody's protection of their subjective rights against illegal intervention of public power is guaranteed. The existence and level of Administrative Justice is a significant indicator of democracy of a modern state, or more precisely a significant indicator of the level of protection of public subjective rights. But at the same time the modern public administration shall itself be capable of insuring sufficient protection of public individual rights and the administrative justice shall be called upon only when instruments within the public administration seem to be insufficient.

"Administrative courts are rescuers at moments of necessity."<fnref n="2" />

So Administrative Justice means an indubitable contribution for the rule of law and the constitutional balance of powers on the national level, but it is also a necessary institution for the functioning of the European Union and its legal order.

To a large extent, EU law concerns execution of public administration in member states, but administrative authorities lacking the quality of “a court or a tribunal” under the Art. 267 TFEU cannot request the Court of Justice of the European Union in Luxembourg to give a preliminary

<footnote n="1">¹ For detailed information see Svoboda, P. Čl. 6. odst. 1 Evropské úmluvy o lidských právech a nová úprava správního soudnictví. In Vopálka, V. Nová úprava správního soudnictví, Praha, Aspi Publishing, 2003, p. 113 ff; Pomahač, R. Plná jurisdikce správních soudů, Soudní rozhledy, 3/2002, p. 77 ff.</footnote>

<footnote n="2">² Karel Šimka, judge of the Supreme Administrative Court, at the professional meeting on the 25th January, 2012 on the topic “Broadcast advertising”.</footnote>
ruling concerning the application of EU law. Each EU member state has the obligation to fully implement and apply the large amount of European law, and so the Administrative Justice plays a determinative role for the application of EU law. Otherwise there would be no guarantee that the EU law is applied in the same way in all EU member states.

The stipulation of Administrative Justice in the Czech Republic has gone through substantial changes in the context of the turn of the regime in 1989. The seeking that the proper conception conforms with international and European standards of protection of individual rights and with intentions of the constituent assembly took ten years.

Although the current Czech conception of Administrative Justice is above reproach from the international point of view (particularly Art. 6 ECHR), with respect to the efficiency of protection of public subjective rights continuous reappraisals are necessary.

The last amendment of the Code of Administrative Justice notably revised the provisions concerning the protection against unlawful interference by an administrative authority (other than administrative decision), when it left out the conditions that the interference or its results must last or there is a danger that the interference will be repeated (§ 82 of the Code of Administrative Justice) and it notably has left out the provision stating that the action is inadmissible if the plaintiff claims only the statement that the interference was unlawful. The plaintiff may newly claim just a condemnation that an administrative interference contradicted the law. This is one of the changes that may strengthen the confidence in good administration.

Bibliography:

1. Adamovich, L. K., Funk, C. B., Holzinger, G. Österreichisches Staatsrecht, band 2, Staatliche Organisation, Wien, Springer Verlag, 1998.

2. Craig, P. P. de Búrca, G. EU Law: Text, Cases, and Materials, 4th edition, Oxford, New York, 2008.

3. Danwitz, T. Europäisches Verwaltungsrecht, Berlin-Heidelberg, Springer Verlag, 2008.

4. Dijk, P., van Hoof, G. J. H. Theory and Practise of the European Convention on Human Rights, 3rd edition, Kluwer Law International, Hague, 1998.

5. ECHR: 10th February, 1983, *Albert and Le Compte versus Belgium*, application No. 7299/75 and 7496/76.

6. ECHR: 28th June 1984, *Campbell and Fell versus U. K.*, application No. 7819/77 and 7878/77.

7. ECJ e.g. in joint cases C 430/93 and 431/93, *van Schijndel and van Veen versus Stichting Pensioenfonds voor Fysiotherapeuten*.

8. Eliantonio, M. Europeanisation of Administrative Justice?, Europa Law Publishing, Groningen, 2009.

9. Hoetzel, J. Československé správní právo. Praha, Melantrich, 1937.

10. Labori, Michel et Costea, Simion, *Le Management des Politiques de l'Union Europeenne*, PARIS, Prodifmultimedia, (FRANCE), 2011, 300 pages.

11. Longley D., James, R. Administrative Justoce: Central Issues in UK and European Administrative Law, Cavendish Publishing Limited, London, 1999.

12. Mazaranec, M. Správní soudnictví, Praha, Linde, 1996.

13. Neubauer, Z. Státověda a theorie politiky, Praha, Jan Laichter, 1948.

14. Opinion of Advocate General Saggio, Case C-126/97, Eco Swiss China Time Ltd v Benetton International NV, available from http://curia.europa.eu/ (2012/02/24).

15. Pomahač, R. Plná jurisdikce správních soudů, Soudní rozhledy, 3/2002.

16. Seerden, R. J. G. H. (ed.) Administrative Law of the European Union, its Member states and the United States, 2nd edition, Antwerpen, 2007.

17. Šínová, R. (ed.), Olomoucké právnické dny, Olomouc, Iuridicum Olomoucense, 2008.

18. Sládeček, V., Tomoszková, V. et al. Správní soudnictví v České republice a ve vybraných státech Evropy, Praha, Wolters Kluwer, 2010.

19. Vopálka, V. Nová úprava správního soudnictví, Praha, Aspi Publishing, 2003.

20. Widdershoven, R. In Seerden, R. J. G. H. (ed.) Administrative Law of the European Union, its Member states and the United States, 2nd edition, Antwerpen, 2007.

21. Winkler, R. Administrative Justice in Europe: The EU Acquis, good practice and recent developments. Working paper submitted for the Twinning Project "Support to more efficient, effective and modern operation and functioning of the Administrative Court of the Republic Croatia".
# The EU Aviation Regulation: *Ad Meliora*

DR. TANEL KERIKMÄE

Jean Monnet Chair of European Law, Tallinn University of Technology

LELDE PLUKSNA

Research assistant, Tallinn Law School

**Abstract:** The European integration is a process quite visible in the field of aviation regulation. It seems that the EU has been able to make things better (*ad meliora*) for customers and position itself as a competitive economic region towards other superpowers. After achieving the uniform approach shared now by the EU and its member-states, the new challenges such as emissions trading scheme and standards for liability in case of environmental claims and violating customer's rights are still successfully handled. The development of EU aviation law is a relatively good example of unity in Europe, a phenomenon that is not always achieved easily in many other areas of integration.

**Keywords:** ETS, Emission trading, EU, Aviation, aircrafts, Open Skies agreement, Flights.

## INTRODUCTION: “OPEN SKIES CASES”<fnref n="1" />

<figure><img src="image_19.png" /></figure>

The new era in European civil aviation begun with so called “Open sky agreements”, the large scale project that tested the loyalty of the EU Member States. There is much in stake as by the EU official statistics, today the EU civil aviation exports in 2010 (est.): €46.5billion, the EU civil aviation imports in 2010 (est.): €29.6 billion. The biggest markets for EU civil aviation exports in 2010 in decreasing order of importance are China, United Arab Emirates, United States, Saudi Arabia, Singapore and Australia<fnref n="2" />.

The integrationists welcomed ruling of the European Court of Justice (ECJ) in the so-called "open skies" cases, which analyzed the legality of bilateral agreements concluded between eight EU Member States and the United States. By European Commission (statement made in 2002): "Today's judgment is a major step towards developing a new coherent and dynamic European policy for international aviation. In most sectors of the economy, Europe speaks with one voice in international negotiations and takes a leading role in shaping events. Until now, aviation has been excluded from this approach as Member States have pursued their own individual agendas. From now on, it is clear from the Court's ruling that we will all have to work together in Europe to identify and pursue our objectives jointly. The Commission stands ready to play its part".

The relevance of the Court's finding is tremendous as the nationality clauses in the agreements, have been found contrary to the European Union Law. First, the EU Commission had argued that these clauses violate the fundamental right of establishment, under which EU nationals are free to establish businesses throughout the EU. The ECJ confirmed that the clauses concerned discriminate between Community companies on the basis of the nationality of their owners.

<footnote n="1">¹ The current contribution is extended and modified version of the conference paper of prof. Kerikmäe “Recent Civil Aviation Case-law at European Court of Justice. Civil Aviation Laws under the National Legislations and the International Conventions, Dubai. (ed.) Prof. Jassim Ali Salem Alshamsi. Dubai, United Arab Emirates: United Arab Emirates University Faculty of Law in cooperation with the Dubai Courts & Dubai Civil Av, 2012, (The 20th Annual International Conference).”</footnote>

<footnote n="2">² European Commission, Trade, at http://ec.europa.eu/trade/creating-opportunities/economic-sectors/industrial-goods/civil-aviation/</footnote>
EU'S EMISSIONS TRADING SCHEME: TRADE WAR?<fnref n="1" />

On December, 2009, the Air Transport Association of America (ATA) and three other U.S. airlines (American, Continental, and United) initiated their warned legal actions in the U.K. with the aim to fight against the inclusion of aviation in the Emissions Trading Scheme (ETS)<fnref n="2" />. The U.S. aircraft claimants brought the case to the U.K. because it was the first of the EU Member States to implement the ETS. As according to the EU law, only the Court Justice of the European Union (CJEU) has the authority to declare EU legislation invalid, therefore the case was referred to the CJEU<fnref n="3" />. In 2011, (Case C-366/10), the Court of the European Union held that the directive including aviation activities in the EU's emissions trading scheme is valid and application of the emissions trading scheme to aviation infringes neither the principles of customary international law at issue nor the Open Skies Agreement.

A number of American and Canadian airlines and airline associations contested the measures transposing the provisions of the Directive. They argued that, in adopting the directive, the EU infringed a number of principles of customary international law and various international agreements such as Chicago Convention, the Kyoto Protocol and the Open Skies Agreement in particular because it imposes a form of tax on fuel consumption, and second, certain principles of customary international law in that it seeks to apply the allowance trading scheme beyond the European Union's territorial jurisdiction.

First the ECJ found the admissibility criteria to test the Directive and held that only certain provisions of the Open Skies Agreement and three principles of customary international law (the sovereignty of States over their airspace, the illegitimacy of claims to sovereignty over the high seas and freedom to fly over the high seas) may be relied upon for the purposes of examination of the directive's validity.

The EU is not bound by the Chicago Convention. As regards the Kyoto Protocol, the parties to the protocol may comply with their obligations in the manner and at the speed upon which they agree and that, in particular, the obligation to pursue limitation or reduction of emissions of certain greenhouse gases from aviation fuels, working through the International Civil Aviation Organization (ICAO), is not unconditional and sufficiently precise to be capable of being relied upon. The Court concludes by stating that the uniform application of the scheme to all flights which depart from or arrive at a European airport is consistent with the provisions of the Open Skies Agreement designed to prohibit discriminatory treatment between American and European operators (See: ECJ press release 139/11 of Dec. 21, 2011).

Airlines and governments from outside the EU will likely step up opposition to new taxes on carbon emissions under the ETS, which is scheduled to take effect at the beginning of 2012. The U.S. State Department and other non-EU governments (including China and India) have already expressed stiff opposition to ETS taxes on airlines and a perceived unilateral effort to restrict market access for non-EU carriers<fnref n="4" />.

The ECJ ruling comes at a difficult time for global air carriers already facing high jet fuel costs and a softening outlook on air travel demand. The Association of European Airlines (AEA) warned earlier this month that it expects member airlines to report large operating losses in 2012 as European macroeconomic weakness erodes air travel demand and trans-Atlantic markets remain under stress

<footnote n="1">¹ The author has used the compilations of ECJ cases composed by Michael Wukoschitz at http://iftta.org/ International Forum of Travel and Tourism Advocates</footnote>

<footnote n="2">² R (on the application of The Air Transport Association of America, Inc. and Others) v. The Secretary of State for Energy and Climate Change (Administrative Court), CO/15376/2009.</footnote>

<footnote n="3">³ Bisset M, Crowhurst G. Is the EU's Application of Its Emissions Trading Scheme to Aviation Illegal? Air & Space Lawyer. 2011, Vol.23, Issue 3, p. 1-18.</footnote>

<footnote n="4">⁴ Fitch: ECJ Emissions Ruling Door to Global Air Dispute, CHICAGO, Dec 21, 2011 (Business WIRE).</footnote>
due to over-capacity<fnref n="1" />. Furthermore, the US says EU plans for an emissions tax on airlines must be dealt with by the international aviation body. The US thinks its carriers will lose out heavily and it wants the issue dealt with by the International Civil Aviation Organization (ICAO)<fnref n="2" />. Non-EU carriers say the charges are illegal under international law, while the US Secretary of State Hillary Clinton said America would respond with “appropriate action” if the scheme went ahead<fnref n="3" />. So, there is a clear danger for international reprisals as the change in the emissions law would greatly impact for example large US carriers, costing them an estimated $3 billion by 2020⁴.

Airlines for America (A4A), the industry trade organization for the leading U.S. airlines, today issued the following statement regarding the decision of the European Court of Justice (ECJ) on the A4A legal challenge to the unilateral application of the European Union Emissions Trading Scheme (EU ETS) to international aviation<fnref n="5" />. Last year, IATA (International Air Transport Association) that represents some 230 airlines comprising 93% of scheduled international air traffic expressed its disappointment in the opinion of the Advocate General of the Court of Justice of the European Union which did not support the air transport industry's challenge to Europe's plan to include international aviation in its emissions trading scheme (EU-ETS) from 2012⁶.

If the ATA and the U.S. airline claimants would have prevailed in their legal action, it would have led to great implications for the future of EU climate change policy concerning aviation. Moreover, if their arguments relating to the Chicago Convention would have failed but their Open Skies Agreement-related arguments succeeded, the applicants could lose their battle to have the ETS as a whole declared invalid. However, they would achieve their smallest objective, namely, to prevent the ETS being applied to U.S. airlines. This could leave the door open for other non-EU airlines to review their countries' bilateral aviation arrangements with the EU Member States and perhaps initiate similar legal proceedings<fnref n="7" />.

Situation that the Grand Chamber of the U.K Court reached the same outcome, however providing slightly different reasoning, is not surprising. Nevertheless, one may say that the ECJ decision contains some unexpected findings and that the issue and decision itself is pretty controversial. Some legal researchers have shared the thoughts of the decision in this case by stating that it is flawed, namely, "by failing to undertake a rigorous analysis of the issues and adopting shortcuts in reasoning, the ECJ has both established precedents and left questions unanswered, which may have repercussions for international aviation and for other sectors in unanticipated and unpredictable ways, particularly given the relatively limited body of EU law"<fnref n="8" />.

Effective from January 1, 2012, the ETS is applicable to every aircraft operator or carrier that arrives at or departs from an airport within the EU, Norway, Iceland, and Liechtenstein. Initially it was decided that if an aircraft has an operating license from the EU country, it will be administered and managed by that country. However for non-EU carriers EU Member States are to be determined and assigned to administer these matters based on their primary routes within the EU. Nevertheless, now the European Union is continuing with the plan to include non-Member State airlines in its emissions trading - scheme-(ETS), despite the agreement reached in October 2010 among the 19Q

<footnote n="1">¹ Ibid.</footnote>

<footnote n="2">² US rejects European Court ruling on airline emissions, BBC New Business, 21.12.2011.</footnote>

<footnote n="3">³ Kahya Damian “Air wars: Fears of trade war over EU airline carbon cap”, BBC Business 21.12.2011.</footnote>

<footnote n="4">⁴ Belczyk Jaclyn, Top EU court upholds airline pollution fines, The Jurist, Legal News and Research 21.12.2011.</footnote>

<footnote n="5">⁵ A4A Comment on European Court of Justice Decision, http://www.airlines.org/Pages/news_12-21-2011.aspx. The relations between EU-US may become problematic, despite of fact that On June 18, 2010, the European Commission and the U.S. Federal Aviation Administration (FAA) signed a memorandum of cooperation in the areas of civil aviation research and development and on interoperability between the EU and U.S. air traffic management (ATM) modernization programs, known as SESAR and NextGen, respectively.</footnote>

<footnote n="6">⁶ See IATA press-release at http://www.iata.org/pressroom/pr/pages/2011-10-06-01.aspx</footnote>

<footnote n="7">⁷ Bisset M, Crowhurst G. Is the EU's Application of Its Emissions Trading Scheme to Aviation Illegal?</footnote>

<footnote n="8">⁸ Andrus, Katherine B. Beyond Aircraft Emissions: The European Court of Justice's Decision May Have Far-Reaching Implications. Air & Space Lawyer. 2012, Vol. 24, Issue 4, p.1-16.</footnote>
Contracting States of the International Civil Aviation Organization (ICAO) to reduce greenhouse gas emissions from aviation<fnref n="1" />.

## CLEAN SKIES- WHO PAY?

The main goal of the ETS directive is to decrease the global warming and reduce the emission of greenhouse gases, in specific set of situations ETS provisions actually may lead to the increase of global warming. For example, “one possible scenario of this reverse effect is connected with the choice of the optimum flight level. For most aircraft, it holds that the higher the flight level, the lower the fuel consumption and the lower the carbon dioxide emissions. So when an air operator decides to fly at a higher flight level, it decreases carbon dioxide emissions and it benefits from EU ETS. However, there is a higher risk that flying at a higher flight level will take aircraft to supersaturated air where contrails or induced cloudiness form”<fnref n="2" />.

The air carriers that fly to and from Europe effective from 2012 must keep tracks of their emissions and purchase the carbon allowances in the case if the gases go beyond the limited amount<fnref n="3" />. As the demand of the CO₂ by airlines is predicted to be about 23 million metric tons of CO₂ for year 2012, continuing to increase and reaching 122 metric tons by 2020, the European Commission had concerns that the amount of emissions from airplanes would diminish the success from the reduction of emissions in other sectors of transportation. Consequently the Commission included aviation in the ETS<fnref n="4" />.

Officials estimated that the cost of purchasing carbon allowances will grow by $2.2 billion by 2020, rising from $1.3 billion in 2012 to $3.5 billion<fnref n="5" />. Who will really pay? A number of airlines have informed that starting from the moment ETS will become effective; they will announce new charges for passengers (surcharges). Since the airlines face additional costs on operation of flights and obligatory participation in the ETS, implementation of surcharges is one of the means how to balance the costs. However airlines must be extra careful with imposing such charges, since it may lead to suspicion that the “introduction of surcharges at the same time and at similar levels could be viewed as being consistent with an agreement between airlines which might amount to an infringement of the competition rules, along similar lines to previous surcharges cases”<fnref n="6" />.

## SAFETY IN THE EUROPEAN AIRSPACE

The European airspace safety standards on theory and practice have been declared as one of the best in the world. Despite the overall tendency of States to improve the safety in the airspace, some of the airlines are still facing problems and do not meet the basic and essential safety standards. Consequently the EU has decided to restrict the airlines found to be unsafe from operating in European airspace<fnref n="7" />. The European Commission has adopted the 19th update on April, 2012, of the European safety list of air carriers which are banned to operate within the EU. It is also called as “the EU air safety list”. The decision is based on the unanimous opinion of the Air Safety Committee, composed of representatives of the 27 Members States of the EU, Croatia, Norway, Iceland, Switzerland and of the European Aviation Safety Agency (EASA). The new European air safety list

<footnote n="1">¹ Andrus, Katherine B. Beyond Aircraft Emissions: The European Court of Justice's Decision May Have Far-Reaching Implications.</footnote>

<footnote n="2">² Hospodka J. Critical Issues of Inclusion of Aviation in EU Emissions Trading System. World Academy of Science, Engineering and Technology. 2011, Issue 59.</footnote>

<footnote n="3">³ The battle over clean European skies. Air Cargo World. Oct.2011, Vol. 101, Issue 10, p. 24-30.</footnote>

<footnote n="4">⁴ Bisset M, Crowhurst G. Is the EU's Application of Its Emissions Trading Scheme to Aviation Illegal?</footnote>

<footnote n="5">⁵ The battle over clean European skies. Air Cargo World.</footnote>

<footnote n="6">⁶ Aerospace EU & Competition. The EU ETS: airline surcharges and antitrust law - a case of déjà vu? February 2012.</footnote>

<footnote n="7">⁷ European Commission. Mobility and Transport. http://ec.europa.eu/transport/air-ban/list_en.htm</footnote>
includes all airlines certified in 21 States, accounting for 279 known air carriers, whose operations are fully banned in the European Union<fnref n="1" />.

Some of the newly added air carriers are from Libya, Venezuela, Democratic Republic of Congo, and Equatorial Guinea. As the civil aviation authorities can inspect only those aircrafts which fly to and from the EU airports, the situation if the aircraft is not listed among the banned aircrafts, does not automatically mean that it has passed the safety standards. However, being on the list does not mean that the aircraft in question will be banned from operating in the EU airspace for ever. When the airline deems to be in conformity with the safety standards put upon by the EU, it may request for the European Commission to remove it from the list<fnref n="2" />.

### NOISE LEVELS<fnref n="3" />

By the judgment given by the ECJ at case C-120/10, European Air Transport SA, EU Member States can establish maximum noise levels, as measured on the ground, to be complied with by airlines overflying areas located near an airport. In order to reduce noise pollution generated by aircraft using EU airports, Directive 2002/301 permitted Member States to adopt restrictive measures known as “operating restrictions”. The Court held that an operating restriction within the meaning of Art. 2(e) of that directive concerned a prohibition on access to the airport in question, whether the prohibition was absolute or restricted.

However, environmental legislation, such as that at issue in the main proceedings, imposing limits on maximum noise levels, as measured on the ground, to be complied with by aircraft overflying areas located near the airport, did not itself constituted a prohibition on access to the airport in question. The Court held that Article 2(e) of Directive 2002/30 must be interpreted as meaning that an “operating restriction” was a prohibition, absolute or temporary, that prevented the access of a civil subsonic jet aeroplane to a European Union airport. Therefore they constitute objective measures which apply to aircrafts fulfilling concrete pre-established conditions based on international certification or standardization.<fnref n="4" />

Consequently, national environmental legislation imposing limits on maximum noise levels, as measured on the ground, to be complied with by aircraft overflying areas located near the airport, did not itself constituted an “operating restriction” within the meaning of that provision, unless, in view of the relevant economic, technical and legal contexts, it could have the same effect as prohibitions of access to the airport in question. Although Member States are authorized to apply the operating restrictions in the airports, however, the burden is on airports to ensure that operating restrictions are obeyed. Thus, in reality, the national air transport authorities and airport operators are applying these restrictions.<fnref n="5" />

### COMPENSATION FOR CANCELLATION AND DISCONTINUATION OF FLIGHT

In its judgment in Case C-83/10 (Rodríguez et al v. Air France)<fnref n="6" /> the ECJ on Oct. 13, 2011 ruled the following: ‘Cancellation’, as defined in Regulation 261/2004 must be interpreted as meaning that it also covers the case in which that aeroplane took off but, for whatever reason, was subsequently forced to return to the airport of departure where the passengers of the said aeroplane

<footnote n="1">¹ European Commission. Press release IP/12/342, 3/04/2012. The European Commission updates the European safety list of airlines subject to an operating ban.</footnote>

<footnote n="2">² European Commission. Mobility and Transport. http://ec.europa.eu/transport/air-ban/list_en.htm</footnote>

<footnote n="3">³ For this section see: Allard Knook: Case C-120/10, European Air Transport SA 13.10.11, http://ecjblog.com/.</footnote>

<footnote n="4">⁴ Opinion of Advocate General Cruz Villalon, Case C-120/10, delivered on 17 February 2011.</footnote>

<footnote n="5">⁵ Ibid.</footnote>

<footnote n="6">⁶ Case C-83/10. Rodríguez et al v. Air France. 13.10.2011.</footnote>
were transferred to other flights. The term 'further compensation' must be interpreted to the effect that it allows the national court to award compensation, under the conditions provided for by the Convention for the unification of certain rules for international carriage by air or national law, for damage, including non-material damage, arising from breach of a contract of carriage by air.

'Further compensation', however, may not be the legal basis for the national court to order an air carrier to reimburse to passengers whose flight has been delayed or cancelled the expenses. The latter have had to incur because of the failure of that carrier to fulfil its obligations to assist and provide care. In her opinion in case C-83/10 (Sousa Rodríguez) delivered on June 28, 2011, ECJ Advocate General Eleanor Sharpston came to the similar conclusions. Both the opinion and the decision follow the court's continuing tendency to strengthen passenger rights and interpret the wording of the EU law in favour of the passengers.

The tensions have been visible in multi governmental system as the EU is. So, in the UK, when district judge ruled under the Montreal Convention in the Lewis & Other's against Thomas Cook Tour Operations Limited, District Judge Arkless said that the European Commission and the European Court of Justice were wrong. He was immediately accused in inability to understand the fundamentals of Community Law over International Law and the questions about her ability to perform in her designated role were raised<fnref n="1" />.

In the Case C-204/08, jurisdictional issues were raised for getting compensation because of flight cancellation, i.e., which court should decide on the jurisdiction in the case of air transport from one Member State to another Member State by an airline established in a third Member State. It was decided that in the case of air transport of passengers from one Member State to another Member State, carried out on the basis of a contract with only one airline, which is the operating carrier, the court having jurisdiction to deal with a claim for compensation is that, at the applicant's choice, which has territorial jurisdiction over the place of departure or place of arrival of the aircraft, as those places are agreed in that contract. <fnref n="2" />

There are, however, some unanswered questions and room for interpretation of Regulation 261-2004, for example, the answer to a question “Is a passenger entitled to compensation under Article 7 of Regulation (EC) No 261/2004 (1) if the departure time of a flight has been delayed for a period of time falling within the limits defined in Article 6(1) of the Regulation, but the flight arrives at the final destination at least three hours after the scheduled time of arrival?<fnref n="3" />” is still up for a consideration.

There must be a solution as the European Civil Aviation Conference recently stated: So while there is much aviation business that is intra-European, there is much more - and much more still to come - that is intercontinental. While airline ownership and control might still be struggling free of the constraints of national regulation, of a kind long ago set aside in other major industrial sectors, the aviation industry is otherwise almost fully internationalized, whether one is talking about aircraft manufacture and maintenance, air navigation service provision, airport ownership and management, or the supply and support sector. The liberalization of air traffic rights continues in parallel to transform aviation markets across much of the world<fnref n="4" />.

RESPONSIBILITY FOR DELAY

European rules awarded airline passengers cash compensation if their flights were cancelled, but not if they were delayed. Some airlines have been fighting their obligation to pay food and hotel

<footnote n="1">¹ When District Judges get it wrong! See: http://www.air-passenger-rights.co.uk/tag/ecj/</footnote>

<footnote n="2">² Case C-204/08, Peter Rehder v Air Baltic Corporation.</footnote>

<footnote n="3">³ Reference for a preliminary ruling from the Amtsgericht Düsseldorf (Germany) lodged on 25 November 2011 — Christoph Becker v Société Air France SA . (Case C-594/11)</footnote>

<footnote n="4">⁴ European Civil Aviation Conference: https://www.ecac-ceac.org//publications_events_news/ecac_news/no45_summer_2011</footnote>
costs, for instance following the widespread disruption caused by the volcanic ash cloud over much of Europe during the spring 2010. European Commission threatened to take legal action against the Dutch airline KLM which has been reimbursing its passengers for the cost of just one day and one night's delay. Ryanair initially threatened not to reimburse passengers whose flights were cancelled due to the ash cloud, but it backed down under pressure from the UK and Irish authorities<fnref n="1" />.

In joined Cases C-402/07 and C-432/07, court interpreted three important matters and concluded as follows:

1) flight which is delayed, irrespective of the duration of the delay, even if it is long, cannot be regarded as cancelled where the flight is operated in accordance with the air carrier's original planning;

2) passengers whose flights are delayed may be treated, for the purposes of the application of the right to compensation, as passengers whose flights are cancelled and they may thus rely on the right to compensation laid down in Article 7 of the regulation where they suffer, on account of a flight delay, a loss of time equal to or in excess of three hours, that is, where they reach their final destination three hours or more after the arrival time originally scheduled by the air carrier. Such a delay does not, however, entitle passengers to compensation if the air carrier can prove that the long delay was caused by extraordinary circumstances which could not have been avoided even if all reasonable measures had been taken, namely circumstances beyond the actual control of the air carrier;

3) technical problem in an aircraft which leads to the cancellation or delay of a flight is not covered by the concept of 'extraordinary circumstances' within the meaning of that provision, unless that problem stems from events which, by their nature or origin, are not inherent in the normal exercise of the activity of the air carrier concerned and are beyond its actual control<fnref n="2" />.

Upon reference by the Augstākās Tiesas Senāts (Latvia), the ECJ has interpreted Regulation 261/2004 as follows<fnref n="3" />: Article 5(3) of Regulation (EC) No 261/2004 must be interpreted as meaning that an air carrier, since it is obliged to implement all reasonable measures to avoid extraordinary circumstances, must reasonably, at the stage of organizing the flight, take account of the risk of delay connected to the possible occurrence of such circumstances. It must, consequently, provide for a certain reserve time to allow it, if possible, to operate the flight in its entirety once the extraordinary circumstances have come to an end. However, that provision cannot be interpreted as requiring, as a 'reasonable measure', provision to be made, generally and without distinction, for a minimum reserve time applicable in the same way to all air carriers in all situations when extraordinary circumstances arise. The assessment of the ability of the air carrier to operate the programmed flight in its entirety in the new conditions resulting from the occurrence of those circumstances must be carried out in such a way as to ensure that the length of the required reserve time does not result in the air carrier being led to make intolerable sacrifices in the light of the capacities of its undertaking at the relevant time. Article 6(1) of that regulation is not applicable in the context of such an assessment.

EU Regulation 261/2004 on the compensation and assistance of air passengers provides that, in the event of the cancellation of a flight, the passengers affected have the right to compensation from the air carrier unless they are informed of the flight's cancellation in good time. However, an air carrier is not obliged to pay such compensation if it can prove that the cancellation is caused by extraordinary circumstances which could not have been avoided even if all reasonable measures had been taken. In 2011, The Court stated that "extraordinary circumstances" may be regarded as covering only circumstances which are not inherent in the normal exercise of the activity of the air carrier concerned and are beyond the actual control of that carrier on account of its nature or origin.

<footnote n="1">¹ As concluded by Ian Pollock, "Air delay compensation claims suspended by High Court", BBC News, Business 17.08.2011</footnote>

<footnote n="2">² Joined Cases C-402/07 and C-432/07, Christopher Sturgeon, Gabriel Sturgeon, Alana Sturgeon v Condor Flugdienst GmbH (C-402/07), and Stefan Böck, Cornelia Lepuschitz v Air France SA (C-432/07)</footnote>

<footnote n="3">³ C-294/10 - Eglitis and Ratnieks v. Latvijas Republikas Ekonomikas ministrija</footnote>
The resulting decision will be welcome confirmation for passengers that routine technical faults are not "exceptional". The court's reasoning in Wallentin-Hermann v Alitalia 2009 recognized that airlines invariably face technical problems. Checking for, and fixing these, is an inherent part of their business. The mere fact that an airline has complied with the legal minimum maintenance requirement will not exempt it from liability when something mechanical goes wrong<fnref n="1" />.

Austrian court in the case regarding the flight cancellation for 6 days due to air space closure decided that “all the responsibility for flight cancellation or delay which resulted in extra costs for the passenger must be taken by the operating carrier and therefore it has to pay the compensation. Pursuant to Reg. 261/2004/EC it had been the operating carrier's responsibility to provide free hotel accommodation and telephone calls. Any action for compensation with regard to a failure to comply with these obligations could therefore only be brought against the operating carrier while the tour organizer had had no obligation to provide these services and had not been at fault with regard to the cancellation”<fnref n="2" />.

## LIABILITY FOR BAGGAGE

Preliminary ruling before ECJ lodged by Audiencia Provincial de Barcelona (national reference: QP/07238-A9, decision as of June 15, 2011): C-410/11 (Pedro Espada Sánchez ea/Iberia) Questions referred (1) Must the limit of 1 000 Special Drawing Rights per passenger, laid down in Article 22 of the Montreal Convention for the Unification of Certain Rules for International Carriage by Air, concerning the liability of the carrier in the case of destruction, loss or damage of baggage, considered in conjunction with Article 3(3) of that convention, be interpreted as a maximum limit for each individual passenger where a number of passengers travelling check in their shared baggage together, regardless of whether there are fewer pieces of checked baggage than there are actual travellers? (2) Or, on the contrary, must the limit to damages laid down in Article 22 of the Montreal Convention be interpreted as meaning that, for each piece of checked baggage, only one passenger may be entitled to claim compensation and that, accordingly, the maximum limit applied must be that fixed for a single passenger even if it is proved that the lost baggage identified by a single tag belongs to more than one passenger? The court in Case C-63/09 drew the limits to the liability of air carriers in respect to destruction, loss, damage or delay of baggage. It concluded that “the term “damage” must be interpreted as including both material and non-material damage”.<fnref n="3" />

As to the cases regarding to the security issues and baggage, the rules become clearer after the case that started with the incident by which EU citizen Gottfried Heinrich in September 2005 was ordered to leave an aircraft by the security staff of Vienna-Schwechat Airport for boarding the plane with tennis racquets in his baggage as tennis racquets are considered prohibited items. The Court pointed out that national measures implementing Community legislation which impose obligations on individuals must also be published so that the individuals are able to ascertain those obligations. The Court ruled that the annex to Commission Regulation 622/2003 laying down measures for the implementation of the common basic standards on aviation security, as amended by Commission Regulation 68/2004 was not published in the Official Journal of the European Union; therefore it has no binding force since it seeks to impose obligations on individuals<fnref n="4" />.

<footnote n="1">¹ Richard Colbey “European court rules on airline compensation”, The Guardian, Saturday 21 March 2009.</footnote>

<footnote n="2">² Case: LG Innsbruck 6.12.2011, 1 R 158/11h. See also: Michael Wukoschitz, Austria: tour organizer not liable for costs of extended stay caused by flight cancellation due to the ash cloud crisis.</footnote>

<footnote n="3">³ Case C-63/09, Axel Walz v Clickair SA, European Court reports 2010 Page I-04239</footnote>

<footnote n="4">⁴ The ECJ slammed the European Commission over no publication of a list of prohibited items on airplanes. Bill Cash's European Journal 11.03.2009</footnote>
## FUTURE DEVELOPMENTS

Advocate General Bot in his recent opinion stated that no temporal or monetary limitations or release from obligations to offer care for the passengers are not contained in EU law. Moreover, if the flight is cancelled, air carrier must ensure help to the troubled passengers and pay compensation. In addition, air carrier is required to provide travellers with a meal free of charge, refreshments and if necessary also a hotel accommodation and transport to and from hotel to the airport, also free of charge. Such obligation is put upon air carriers even if the flight is cancelled due to extraordinary circumstances, i.e., circumstances which cannot be prevented if all reasonable measures are taken up. Nevertheless, compensation is not payable to passengers if cancellation was due to extraordinary circumstances.<fnref n="1" />

Moreover, Parliamentary Transport and Tourism Committee have proposed several ideas which could improve the rights of passengers. Those include clarification of the rights of passengers and accountability of airlines, "refunding, rerouting or rebooking" as a basic right should be provided to passengers, in case of lost or delayed baggage, travellers should be informed on their rights and the actions that can be taken up as well as regarding Persons with reduced mobility or disabilities - the access to all air transport services should be barrier-free.<fnref n="2" />

## Bibliography:

1. "Air delay compensation claims suspended by High Court", BBC News, Business 17.08.2011

2. A4A Comment on European Court of Justice Decision, http://www.airlines.org/Pages/news_12-21-2011.aspx.

3. Aerospace EU & Competition. The EU ETS: airline surcharges and antitrust law - a case of déjà vu? February 2012.

4. Andrus, Katherine B. Beyond Aircraft Emissions: The European Court of Justice's Decision May Have Far-Reaching Implications. Air & Space Lawyer. 2012, Vol. 24, Issue 4, p.1-16.

5. Belczyk Jaclyn, Top EU court upholds airline pollution fines, The Jurist, Legal News and Research 21.12.2011.

6. Bisset M, Crowhurst G. Is the EU's Application of Its Emissions Trading Scheme to Aviation Illegal?. Air & Space Lawyer. 2011, Vol.23, Issue 3, p. 1-18.

7. Case C-294/10 - Eglitis and Ratnieks v. Latvijas Republikas Ekonomikas ministrija

8. Case C-204/08, Peter Rehder v Air Baltic Corporation.

9. Case C-63/09, Axel Walz v Clickair SA, European Court reports 2010 Page I-04239

10. Case C-83/10. Rodríguez et al v. Air France. 13.10.2011.

11. Case: LG Innsbruck 6.12.2011, 1 R 158/11h.

12. Colbey, R. "European court rules on airline compensation", The Guardian, Saturday 21 March 2009.

13. Court of Justice of the European Union press release No 32/12 Luxembourg, 22 March 2012, Advocate General's Opinion in Case C-12/11, Denise McDonagh v Ryanair Ltd.

14. ECJ press release 139/11 of Dec. 21, 2011

15. European Civil Aviation Conference: https://www.ecac-ceac.org//publications_events_news/ecac_news/no45_summer_2011

16. European Commission, Trade: http://ec.europa.eu/trade/creating-opportunities/economic-sectors/industrial-goods/civil-aviation/

17. European Commission. Mobility and Transport: http://ec.europa.eu/transport/air-ban/list_en.htm

18. European Commission. Press release IP/12/342, 3/04/2012. The European Commission updates the European safety list of airlines subject to an operating ban.

19. European Parliament press release of Feb. 28, 2012

20. Fitch. ECJ Emissions Ruling Door to Global Air Dispute, CHICAGO, Dec 21, 2011 (Business WIRE).

21. Hospodka J. Critical Issues of Inclusion of Aviation in EU Emissions Trading System. World Academy of Science, Engineering and Technology. 2011, Issue 59.

22. IATA press-release: http://www.iata.org/pressroom/pr/pages/2011-10-06-01.aspx

23. Joined Cases C-402/07 and C-432/07, Christopher Sturgeon, Gabriel Sturgeon, Alana Sturgeon v Condor Flugdienst GmbH (C-402/07), and Stefan Böck, Cornelia Lepuschitz v Air France SA (C-432/07)

<footnote n="1">¹ Court of Justice of the European Union press release No 32/12 Luxembourg, 22 March 2012, Advocate General's Opinion in Case C-12/11, Denise McDonagh v Ryanair Ltd.</footnote>

<footnote n="2">² European Parliament press release of Feb. 28, 2012</footnote>
24. Kahya Damian “Air wars: Fears of trade war over EU airline carbon cap”, BBC Business 21.12.2011.

25. Knook, A. Case C-120/10, European Air Transport SA. 13.10.11, http://ecjblog.com/.

26. Labori, Michel et Costea, Simion, *Le Management des Politiques de l'Union Europeenne*, PARIS, Prodifmultimedia, (FRANCE), 2011, 300 pages.

27. R (on the application of The Air Transport Association of America, Inc. and Others) v. The Secretary of State for Energy and Climate Change (Administrative Court), CO/15376/2009.

28. Reference for a preliminary ruling from the Amtsgericht Düsseldorf (Germany) lodged on 25 November 2011 — Christoph Becker v Société Air France SA . (Case C-594/11)

29. The battle over clean European skies. Air Cargo World. Oct.2011, Vol. 101, Issue 10, p. 24-30.

30. The ECJ slammed the European Commission over no publication of a list of prohibited items on airplanes. Bill Cash's European Journal 11.03.2009.

31. US rejects European Court ruling on airline emissions, BBC New Business, 21.12.2011.

32. When District Judges get it wrong! : http://www.air-passenger-rights.co.uk/tag/ecj/

33. Wukoschitz M. http://iftta.org/ International Forum of Travel and Tourism Advocates

34. Wukoschitz, M. Austria: tour organizer not liable for costs of extended stay caused by flight cancellation due to the ash cloud crisis.

Illegality of Conduct in EU Merger Control:
Should We Trust the “Summary Analysis”?

DR. ALEXANDR SVETLICINII*

Tallinn University of Technology, Tallinn Law School

**Abstract:** The paper addresses the problems related to the assessment of ex post illegality of conduct during the ex ante merger assessment under the EU merger control regime. Largely overlooked by legal scholarship and marginalized in the enforcement practice due to its narrow scope of application, illegality assessment and its application under the substantive compatibility test raises important issues related to the relationship between merger control and antitrust enforcement, determination of the Commission’s margin of discretion in assessing complex economic matters, role of illegality assessment under the “more economic approach” and its consistency with the principles of predictability and legal certainty. The paper follows the evolution of legal standards for the illegality assessment developed in merger review jurisprudence and subsequently applied in the Commission’s enforcement practice. The discussion evolves around the concept of deterrence, its measurement and feasibility of administering the illegality test as an integral part of the substantive merger assessment.

**Keywords:** EU competition law, EU merger control, Standard of proof, Margin of discretion, Judicial review.

**I. INTRODUCTION**

One of the inherent difficulties in the effective administration of a merger control regime is in prospective nature of the *ex ante* merger assessment, which implies the estimation of the merger's future effects on competition. In the examination of any scenario of competitive harm the Commission has to consider, not only the factors that would increase the likelihood of such scenario, but also the countervailing factors, that would mitigate possible anti-competitive effects. One of such countervailing factors that the Commission has to consider during the merger assessment process are the disincentives produced by the illegality of the anti-competitive

<footnote>* Visiting Lecturer and Postdoctoral Researcher at the Tallinn University of Technology, Tallinn Law School. E-mail: alexandr.svetlicinii@eui.eu. The author is thankful to Heike Schweitzer, Pablo Ibáñez Colomo, Sebastian van de Scheur and Felix Mezzanotte for their valuable comments on the earlier drafts. All views are personal, all mistakes and omissions are those of the author.</footnote>
conduct, which would affect the undertaking's decision to engage in such conduct post-merger. At first glance the consideration of such legal disincentives appears to be in line with the general preemptive nature of merger control: to deal with possible threats to competition before they are actually realized. In other words, if cumulative disincentives including the deterrent effect caused by the illegality of conduct appear to be insufficient to prevent the anti-competitive scenario, the Commission should request appropriate remedies or declare the concentration incompatible with the common market. In the same way, where the Commission considers that legal disincentives are sufficient to prevent the merged entity from engaging in anti-competitive conduct, or where legal enforcement mechanism would prevent the anti-competitive effects of such conduct, the Commission should act accordingly and approve the proposed merger. However, a deeper examination of the post-merger illegality of conduct, its deterrent effect and its assessment within the *ex ante* merger assessment raises a set of conceptual and methodological problems that will be addressed in the present work.

The role of illegality as a deterrent factor in EU merger control received some attention after the Commission's findings in several merger decisions<fnref n="1" /> were dismissed by the Court of Justice (CJ) because the Commission among others did not give due consideration to the specified factor in its merger assessment.<fnref n="2" /> Despite the relative novelty of this element that was introduced in the merger assessment algorithm mainly through the above identified merger review jurisprudence, the commentators at that time appeared more concerned about the issues related to the standard of proof, scope of judicial review, and the margin of discretion enjoyed by the Commission in the assessment of complex economic matters.<fnref n="3" /> The issue of illegality of conduct received relatively little attention and was readily accepted by the commentators as simply one of the factors that the Commission has to take into account when applying the substantive test of compatibility.<fnref n="4" /> Practitioners also have not been much preoccupied with the assessment of illegality considering that the legal standards developed by the CJ allowed the Commission to discharge its responsibilities with little effort<fnref n="5" /> and, as a result, the merging parties have almost no chance to be successful in such “illegality defense”.<fnref n="6" /> Attempts to analyze the role

<footnote n="1">¹ Case COMP/M.2416 *Tetra Laval/Sidel* (30.10.2001) (hereafter *Tetra Laval/Sidel*), Case No COMP/M.2220 *General Electric/Honeywell* (03.07.2001) (hereafter *GE/Honeywell*).</footnote>

<footnote n="2">² Case T-5/02 *Tetra Laval v Commission* (2002) ECR II-04381 (hereafter *Tetra Laval GC Judgment*), Case C-12/03P *Commission v Tetra Laval* (2005) ECR I-987 (hereafter *Tetra Laval CJ Judgment*), Case T-210/01 *General Electric v Commission* (2005) ECR II-5575 (hereafter *General Electric*).</footnote>

<footnote n="3">³ Legal standards related to the merger assessment and merger review appeared in the focus of discussions conducted at the 32nd Annual Fordham Corporate Law Institute Conference on International Antitrust Law & Policy in 2005. *See for example* H. Legal, “Standards of Proof and Standards of Judicial Review in EU Competition Law” in B.E. Hawk (ed.), *2005 Fordham Corp. L. Inst.* (2006), 107-116; T. Reeves & N. Dodoo, “Standards of Proof and Standards of Judicial Review in EC Merger Law” in B.E. Hawk (ed.), *2005 Fordham Corp. L. Inst.* (2006), 117-142; R.M. Steuer, “Standards of Proof and Judicial Review: A U.S. Perspective” in B.E. Hawk (ed.), *2005 Fordham Corp. L. Inst.* (2006), 143-156.</footnote>

<footnote n="4">⁴ *See for example* F. Dethmers, N. Dodoo and A. Morfey, “Conglomerate Mergers under EC Merger Control: An Overview” (2005) 1 *Eur. Comp. J.* 2, 265-291. Authors conclude that “merger control is not precluded from providing concrete evidence to show that Article 82-type abuses, if in issue, are unlikely to arise given the specific circumstances of the case – i.e. due consideration should be given still to the legal disincentives to engage in certain leveraging activities in view of particular circumstances of the case”. *See also* R. Burnley, “Conglomerate Mergers: A Comparison of the EU and US Approaches” in G. Amato and C.-D. Ehlermann (eds.), *EC Competition Law: A Critical Assessment* (2007), 495-518, at 517: “Given that the Commission is also obliged to take into account the deterrent effect of Articles 81 and 82 EC, it is difficult to envisage future prohibitions on this ground alone (the mere intuition that market power on one market may be extended to another market through tying) in the absence of documentary evidence”.</footnote>

<footnote n="5">⁵ *See* J.T. Rosch, “The Challenge of Non-Horizontal Merger Enforcement”, in B.E. Hawk (ed.) *2007 Fordham Corp. L. Inst.* (2008), 187-200, at 199: “...*General Electric* apparently teaches that the Commission can discharge its responsibilities in this respect with a simple summary finding. The [Non-Horizontal Guidelines] show that the Commission has heard that message.”</footnote>

<footnote n="6">⁶ *See* A. Petrasincu, “The European Commission’s New Guidelines on the Assessment of Non-Horizontal Mergers – Great Expectations Disappointed” (2008) 29 *E.C.L.R.* 221-228, at 225. Based on the analysis of the emerging Commission’s practice the author submits that “the disincentive argument will probably only have limited importance at best. After all, in the case of non-horizontal mergers, it will not usually be possible to qualify a likely foreclosure strategy as a clear-cut violation of Article 82 EC. Furthermore, a detection of such illegal conduct will almost certainly be rather unlikely.”</footnote>