The law of the AFSJ is a law of intersections ! It is a composite law, straddling numerous legal constructions and raising important questions surrounding its implementation. On the back of a year of current affairs commented upon in the GDR CNRS AFSJ Blog, we might ask what is covered by the term “Area”, in the “Territories” that define it, and what are the ways lawyers understand and interpret them in terms of “Contexts”.
The world is made up of “areas”: lithosphere, hydrosphere, atmosphere. The law is potentially able to perceive them: maritime law, land border law, space law, etc. Area is a phenomenon that the law tries hard to translate into its constructions. This phenomenon is considered in a general sense as a dynamic system that builds its own stability. The lawyer would say that it is a sphere, a whole, a system, a legal order.
Our question is whether this image of area is useful for understanding the AFSJ.
To answer this question, we could first compare the two large European areas: the AFSJ and the internal market that preceded it. Recent events have not really allowed this interesting issue to be examined and developed, although the blog has discussed it at length in the past.
We have chosen another way.
Our objective is to try and understand the AFSJ area as it is and not to define it from a comparative point of view.
This task, rarely considered it seems, provokes an initial question: that of the relationship between the area and the territories. In fact, to say that AFSJ law is a law of intersections is to imagine that this area, like any area, is shaped by various territories and that intersection issues are raised at each junction between the territories.
Let us take this reflection a step further.
Territories and their intersections
There are two principal ways of understanding the territories of the AFSJ.
The first relies on the institutional definition of territory. Territory is that of the public owned entity: essentially a State or the European Union. This classic approach lawyers have to territory enables known intersections forming the internal and external borders of the AFSJ to be brought into perspective.
Over the past year there have been many situations raising questions in this respect. In particular, we might bring to mind:
- reflections inspired by possibility of Brexit;
- the crisis situation across the Schengen system;
- the various issues raised by the arrangement between the EU and Turkey in relation to the migratory crisis;
- the upheavals experienced in relation to transatlantic data transfer.
The second definition relies on a very intellectual approach to territory. The AFSJ territories are legal matters built around that object: free circulation of persons, immigration, police co-operation, criminal judicial co-operation, civil judicial co-operation, protection of fundamental rights, etc. However, there are many hypotheses here too where AFSJ issues are dealt with at the intersection of legal constructions.
Over the past 12 months, we could highlight the following situations:
- points of attachment between the international system (Geneva Convention) and the European asylum system (Dublin 3) ;
- permanently tense relations between the European law of criminal judicial co-operation (in particular relating to the European arrest warrant) and the protection of fundamental rights;
- the similar situation of the demanding relationship between the European law of civil judicial co-operation (in particular concerning the recognition of foreign judgements) and the protection of fundamental rights.
The contexts and their intersections
This intersection approach by the territories’, whether they are institutional or intellectual, deserves to be surpassed by a third approach: that of contexts.
In a global area where the law can be applied in different places, potentially at different levels, which is the crucial factor, it is less of a question of which law is applied than the environment in which it is applied.
Two cases commented on the blog are persuasive:
In the Schrems case, the central issue was whether the protection of personal data could be exercised indifferently in a European Union context and more specifically, in a Member State context (in this case Ireland, the country in which Facebook has its European headquarters and where Mr Schrems went to request that data collected in Europe not be communicated to the United States) and in the United States context after a Commission decision authorised the transfer of personal data to that country. The perspective on these two contexts is present throughout the decision. The Court of Justice carried out extensive comparative work, which was justified by the nature of the issue referred to it. To validate the Commission’s decision would mean acknowledging that the level of protection of personal data was effectively equivalent in the two legal contexts under comparison: the European Union and the United States. To invalidate the Commission’s decision would, on the other hand, mean dealing with the consequences of a lack of effective protection on the other side of the Atlantic compared with that afforded in the European Union by repatriating the data solely to the European Union on the grounds that it was insufficiently protected in the external context. The case wound around the balancing of two contexts considered in this case as inequivalent.
The Avontins case undoubtedly sheds even more light on the level of comparison between the EU and the European Court of Human Rights (ECHR). The issue referred to the ECHR was whether it could rely on the protection of the right to a fair hearing in a Member State of the European Union in the specific case of the application of the European provision on the recognition and enforcement of a foreign judgement or if, on the contrary, it should withdraw its confidence by holding such protection inadequate. The Court actually ruled that there had been no violation of the right to a fair hearing. However, it did introduce specific issues of vigilance. In order to make the positive ruling, the ECHR considered that the presumption of equivalence between the provisions for the protection of fundamental rights in the European Union and in the European Convention on Human Rights could play a role in this case. Once this first two-fold step had been taken, the Court considered whether there was “a clear case of inadequacy of the rights guaranteed by the Convention”. Beyond the case in question, the ECHR carried out a close and deep analysis of the mutual recognition provision on which the mechanism for recognising foreign judgements within the European Union is based.
These two decisions show that within the area of freedom, security and justice, one cannot count solely on the existence of an area or the presence of different territories. One must also recognise that European Union law can be applied in different contexts: in this case in the context of a third party State (the United States) and in the context of a third party European organisation (the ECHR).