Weekend Edition Nº46 by eulawlive

Nº46

FEBRUARY 6

2021

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MICHAL KIANIČKA

ECtHR ADVISORY OPINION AND CJEU PRELIMINARY RULING PROCEEDINGS: WHAT DOES THE ‘DUCK TEST’ REVEAL?

ELISA LLOP CARDENAL

THE NON-CONTENTIOUS PHASE AT THE ECtHR: ANOTHER EFFICIENCY STRATEGY UNDER REVIEW PAGE

9 PAGE

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ECtHR advisory opinion and CJEU preliminary ruling proceedings: what does the ‘duck test’ reveal? Michal Kianička

for such a conclusion. It is neither the rst such a empt (5), nor an exhaustive analysis, due to limited space. Yet it wishes to add some pieces to the puzzle by pointing out links and aspects which may not have been discussed as much, if at all.

e European Court of Human Rights (‘ECtHR’) has not been vested just with competences to adjudicate upon contentious cases (2), but also with various advisory powers. It can, inter alia, advise the highest national courts upon their request on questions about the Convention (3). e mechanism resembles the preliminary ruling procedure before the Court of Justice of the EU (‘CJEU’), but it also diﬀers from it. ose two instruments have even been explicitly considered as ‘not comparable’.

Flying the nest Protocol No. 16 (‘Protocol’ or ‘P16’) was signed on 2 October 2013. A er having been rati ed by ten Member States, it entered into force on 1 August 2018. As of today, only 15 Member States have ratied it (6). Its facultative nature diﬀerentiates it from other protocols to the Convention introducing pro-

is contribution brie y explores to what extent the bird we are looking at can be found to be a duck (4) and which of its features do not, by contrast, allow

1. Michal Kianička is a former member of the Slovak EU litigation team (2010-2020). Currently, he is stagiaire at the Court of Justice of the EU in the Cabinet of Advocate General Michal Bobek. 2. e ECtHR rules on individual (Article 34) or inter-State applications (Article 33) alleging violations of the rights and freedoms set out in the European Convention on Human Rights (‘Convention’ or ‘ECHR’). 3. Other competences of the ECtHR to give an advisory opinion, although not upon request by domestic courts and with a diﬀerent scope, can be found in Articles 47 to 49 ECHR or in Article 29 of the Convention for the protection of Human Rights and Dignity of the Human Being with regard to the Application of Biology and Medicine: Convention on Human Rights and Biomedicine (‘the Oviedo-Convention’). 4. e duck test expressions vary, for example - if it looks like a duck, swims like a duck, and quacks like a duck, then it probably is a duck. Consisting in a reasoning exercise where habitual characteristics are used to identify unknown subjects, it appears to be a frequently applied legal principle in the United States. e British tabloid Daily Mirror has even linked it, somehow oddly, to the mechanical duck created by French inventor of the 18th century, Jacques de Vaucanson, whose certainly much more useful deed is the invention of an automatic loom. 5. Cf. for example D. Utrilla, Insight: ‘Council of Europe’s new tool for judicial dialogue in motion: ECtHR issues second-ever advisory opinion’; J. Gerards, ‘Advisory Opinions, Preliminary Rulings and the New Protocol No. 16 to the European Convention of Human Rights: A Comparative and Critical Appraisal’, 21 Maastricht Journal of European and Comparative law 4, p. 630, 2014; J. Gerards, Advisory Opinion: European Court of Human Rights (ECtHR) in: Max Planck Encyclopedia of International Procedural Law, OUP 2019; or J. Gundel, ‘Erste Erfahrungen mit der neuen Gutachtenvorlage zum EGMR nach dem Protokoll Nr. 16 zur EMRK’, EuR, 2019, p. 421. 6. e rst ten comprised Albania, Armenia, Estonia, Finland, France, Georgia, Lithuania, San Marino, Slovenia and Ukraine, complemented later by Andorra, Greece, Luxembourg, the Netherlands and Slovakia.

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cedural innovations, which were obligatory and became part of the Convention (7).

e Protocol has been controversial and the majority of the Parties to the Convention has not yet rati ed it, including most EU Member States

e Protocol has established the possibility for the highest national courts to ask the ECtHR for an advisory opinion regarding the interpretation and application of the Convention. It aimed at reinforcing the dialogue between the national courts and the ECtHR, underpinning the implementation of the Convention in line with the principle of subsidiarity, and helping with decreasing the ECtHR’s workload.

solved relationship and the potentially harmful concurrence between the mechanism under the Protocol and the EU preliminary ruling procedure (Opinion 2/13, paragraphs 198 and 199). Some possible ways out already have been identi ed in this regard. Let us wait to see whether the non-EU Member States to the Convention accept them in the recently resumed negotiations and whether they prove suﬃcient for the CJEU.

So far, four advisory opinions have been requested and two delivered. e ECtHR has already replied to the French Court of Cassation (on gestational surrogacy abroad and legal recognition of the parentchild relationship with the intended mother) and the Armenian Constitutional Court (concerning criminal proceedings against the former Armenian President). It still has to deal with the requests of the Lithuanian Supreme Administrative Court (on impeachment legislation and free elections) and the Slovak Supreme Court (relating to independence of the unit investigating complaints against the police).

ey once wanted a duck e ECtHR had already, back in 1962, asked for a tool permi ing direct dialogue with national courts. As a not yet permanent court, it proposed two new Convention articles. One of them would empower it to issue ‘precedential rulings’ upon request by national courts of last instance (8). is mechanism would nonetheless diﬀer from the one under the Protocol (9).

e Protocol has been controversial and the majority of the Parties to the Convention has not yet ratied it, including most EU Member States. e mechanism under the Protocol also disturbed the CJEU when it was assessing the negotiated setup of the accession of the EU to the Convention a couple of years ago. e CJEU saw the problem in the unre-

e ECtHR had already, back in 1962, asked for a tool permi ing direct dialogue with national courts

7. See the Re ection Paper on the Proposal to Extend the Court’s Advisory Jurisdiction by the ECtHR of 2012 (‘Re ection Paper of 2012’), paragraph 47. See also J. Gundel, p. 423 with the explanation regarding the speci c situation of Protocol No. 14. 8. e other provision covered its competence to deliver an advisory opinion, following a request by the Parties to the Convention related to domestic dra legislation. 9. By way of example, there was no limit to questions of principle, the ruling of the ECtHR was explicitly declared binding for the national court and there was a time-limit of four months in which the ECtHR had to give its ruling. Compare with the characteristics of the mechanism under the Protocol described below.

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Both mechanisms re ect the division of tasks between the national and European levels. e aim to reinforce the principle of subsidiarity through the mechanism under the Protocol has already been mentioned. Article 1 of Protocol No. 15 has amended the Preamble of the Convention, aﬃrming that subsidiarity entails the primary responsibility of national authorities (including courts) for securing Convention rights and freedoms (10). e situation with EU law is similar. e Member States are, as a general rule, involved in its implementation, con rIt looks and swims like a duck… med for example by the CJEU’s Discussion document of 2010 (paragraph 5) and the Advocate GeneSome parallels between the meral´s Opinion of 2014 (parachanism under the Protocol and graphs 26 and 210), both on the the EU preliminary ruling proceEU’s accession to the Convendure are obvious. Both are instruBoth mechanisms re ect tion. National judges are thus the ments of direct interaction betrst European judges. In addiween national and European the division of tasks tion to that, early on in the courts. A national court may quesbetween the national 1960s, the ECtHR drew a ention a European Court about aption to the ‘risk of divergences or plication and interpretation of Euand European levels even contradictions between the ropean law. e necessity for various national jurisprudences such an interpretation must stem concerning the interpretation of from a speci c domestic case the Convention’ while applying (the ECtHR requires a direct it. Does it sound familiar? Probably, as one of the link) and must not be purely theoretical. e reaims of the EU preliminary ruling procedure is secuquesting national court has to inform the European ring uniform interpretation of EU law and ensuring Court about the relevant legal and factual backits consistency (M.A.S. and M.B. or Taricco II., Cground of the case. e European Court aims at gi42/17, paragraph 22). ving the national court a useful answer and may restructure and reformulate the questions. Finally, it is As for procedural similarities, the national court is always for the national court to apply the answer of under both mechanisms encouraged to put forward the European Court to its domestic case. in its request its own view on the possible reply to the question (11). In principle, it remains the master Certain resemblances might be less evident though. of the case, as it may bring the proceedings to an end e proposal was ‘largely based on the provisions of Article 177 [EC]’, the then legal basis for the EU preliminary ruling procedure, which was annexed to the proposal. e Commi ee of Experts examined it at the time of preparation of Protocol No. 2, which introduced the advisory opinions today governed by Articles 47 to 49 of the Convention. e idea nevertheless could not establish itself.

10. On 28 January 2021, the President of the ECtHR Robert Spano gave the annual press conference. When addressing, among other things, the issue of rule of law, he also emphasised that “[w]ithout independent judges in our member States, the Convention system cannot function”. 11. Rule 92(2.1)(e) of the Rules of Court of the ECtHR in the version dated 1 January 2020 (‘RoC’) and paragraph 18 of the CJEU’s Recommendations to national courts and tribunals in relation to the initiation of preliminary ruling proceedings (‘Recommendations’).

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by withdrawing its request (12). It also maintains responsibility in ruling on costs (13). Even the Guidelines on the implementation of the mechanism under the Protocol from 2017 (‘Guidelines’) are reminiscent of rules, principles and requirements applicable to the EU preliminary ruling proceedings (14).

…, but what about its beak and the way it quacks and waddles? Let us now move on to the diﬀerences. In contrast to the EU preliminary procedure, the mechanism under the Protocol does not cover lower domestic instances, but is limited to the highest national courts. is is no autonomous term of the Convention or the Protocol. e Member States decide and indicate their eligible courts. is is not a one-oﬀ decision: they can change their decisions later (15). However, in practice, lower national courts may address higher ones using domestic procedure, such as those foreseen for questions of compatibility with the constitution, whereby the higher court may then employ the mechanism under the Protocol. Such a chain of references took place in the Armenian case.

Ultimately, it is possible that similar, or even the same facts reach both European Courts through diﬀerent avenues. e Explanatory Report to the Protocol emphasises that an advisory opinion would not prevent subsequent individual applications (paragraph 26). e French case has shown that it can also work vice versa. ere the request for an advisory opinion followed the decision of the ECtHR on an individual application concerning the same facts. It is similar, although not the same in the pending Lithuanian case. e same may happen before the CJEU, particularly in relation to infringement proceedings, as in the situation of recent rule-of-law reproaches towards Poland.

It is possible that similar, or even the same facts reach both European Courts through diﬀerent avenues

12. Rule 92(2.3) RoC and Article 100 of the Rules of Procedure of the Court of Justice (‘RoP CJ’). 13. Rule 95 RoC and Article 102 RoP CJ. 14. By way of illustration, paragraph 7 of the Guidelines mentions the ‘spirit of cooperation underlying the Protocol’. Similarly, the case law of the CJEU regularly uses the same words in relation to the EU preliminary ruling procedure. Close in their choice of words are also the recommendations of both European Courts on the stage of domestic proceedings in which national courts should turn to them (paragraph 10 of the Guidelines and paragraph 13 of the Recommendations). 15. e Re ection paper of 2012 recalled in paragraph 10 an opinion voiced earlier that a er the EU’s accession to the Convention, even the CJEU could avail itself of the advisory opinion procedure. However, as the things stand right now, even if the accession was about to take place in near future, it seems improbable that the EU would accede to the Protocol before all EU Member States had rati ed it.

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the CJEU. e la er also automatically informs Next, while EU law in some cases obliges the dothem of the proceedings and its progress. is is not mestic courts to request a preliminary ruling (even the case with the mechanism under the Protocol. lower instances), this is not the case under the Proe President may invite them to participate in writocol, which leaves it entirely to national courts. ting or in the hearing, and only then does the Also, the CJEU constantly reaffirms that where the ECtHR apprise them of the case advancement, whiquestions concern EU law, it is in principle required le by default, this task lies with the national court to reply. It emphasises that it is solely for the refe(18). e ECtHR nonetheless has commi ed itself rring national court to determine the need for a preto routinely invite those parties to participate (19). liminary ruling and the relevance of the questions. By contrast, the Protocol does not limit the discreSecond, the President may invite other third parties tion of the ECtHR to reject any request for an advito participate, and thus signi cantly widen the sory opinion - it only has to reason its decision (16). group of participants to the proceedings before the Originally, the ECtHR preferred ECtHR, compared to the EU not to reason its refusals of repreliminary ruling procedure. quests, just as it does not reason For instance, several organisaOriginally, the ECtHR tions of public, academic and rejections of referrals to the Grand Chamber. A er having non-governmental character parpreferred not to been obliged to do the former, it ticipated in the French case, such declared that ‘such reasons will as the French Ombudsman’s reason its refusals normally not be extensive’. (17) Office and the AIRE Centre. Let us see how the ECtHR will ird, it is worth looking at the of requests handle it in practice. position of the national court itself. e EU preliminary ruling Under the Protocol, national procedure is seen as a dialogue courts may address the ECtHR only with questions between the CJEU and the courts of the Member (i) of principle (Article 1[1] P16) regarding the (ii) States (Commission v Poland, C-619/18, paragraph interpretation and application of the Convention 45). However, EU law does not enable the requesand its Protocols. Conversely, the CJEU may be asting court to comment on the wri en submissions ked (i) any question regarding the interpretation of led in the proceedings, while the requesting court EU law and also deals with (ii) validity issues, the can interact in that way with the ECtHR (Rule 94 la er albeit clearly stemming from the uniqueness RoC). of EU law. e language question also deserves a ention. NaSeveral differences concern participation in the protional courts may submit their requests for an adviceedings. First, EU law grants the parties to the dosory opinion in their national language. However, mestic proceedings with the right to appear before the ECtHR may ask for a translation into English or 16. Article 2(1) P16 and Rule 93(4) RoC. 17. Paragraphs 21 and 35 in the Re ection paper of 2012 and paragraph 9 in the Opinion of the Court on Dra Protocol No. 16 to the Convention extending its competence to give advisory opinions on the interpretation of the Convention (‘Opinion of 2013’). 18. Rule 94(3,10) RoC and paragraphs 28 and 30 of the Guidelines. 19. Paragraph 10 in the Opinion of 2013 and paragraph 20 in the Explanatory Report to the Protocol.

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tion of the Convention therein would be analogous in its eﬀect to other ECtHR decisions (paragraph 27). e ECtHR itself meant in its Re ection Paper of 2012 that the advisory opinions should be considered as valid case law which it would follow when ruling on potential subsequent individual applications (paragraph 44). In this way, advisory opinions might even have consequences towards those Member States who have not (yet) rati ed the Protocol.

French. It is not speci ed, and thus not clear who should furnish the translation (20). e two advisory opinions that have been delivered thus far are of no assistance here, as French is the oﬃcial language of the ECtHR and the Armenian Constitutional Court addressed the ECtHR directly in English. Advisory opinions are not to be given in the language of the requesting court, but in the oﬃcial languages of the ECtHR (Rule 94[7B] RoC). e language regime of the mechanism under the Protocol is thus incomparable to the one of the EU preliminary ruling procedure.

Second, the CJEU has always promoted unity towards the outside, and thus it has never indicated the votes or allowed for separate e outcome of proceedings meopinions. By contrast, the Protorits two more observations. col provides for separate opinions and the advisory opinions It is worth looking at First, advisory opinions of the are to mention the number of mathe position of the jority votes (23). Both the adviECtHR ‘shall not be binding’ national court itself sory opinions that have been gi(Article 5 P16). is may at rst ven so far were adopted unanisight differentiate them from the mously - only the one in the CJEU preliminary rulings (21). Armenian case includes one conHowever, a further look shows a curring opinion. different picture. Leaving aside the cases concerning (in)validity of EU law instruments, what the CJEU deems binding for the refeConclusions rring court is the interpretation of the EU law. Apart from that, taking into account the declaratory natuA er having shown (at least some) parallels and re of such an interpretation and the need for consisdifferences between the mechanism under the Protency and uniform interpretation of EU law, erga omtocol and the EU preliminary ruling procedure, I nes effect of the CJEU preliminary rulings is widely wish to let each reader make her or his own decision recognised (22). Coming back to the mechanism unabout whether to call that bird a duck or not. Yet the der the Protocol, the Explanatory Report to the Promechanism under the Protocol is still a nestling, or a tocol clari ed that the advisory opinion would becoedgling at most. Hence, it still needs some time to me part of the ECtHR case law and the interpretashow its true colours, concerning its functioning

20. Rule 34(7) RoC and paragraph 18 of the Guidelines. 21. Ironically, one of the recent reiterations of the principle that the CJEU judgments are binding on the national courts in charge of the main proceedings can be found in the Weiss judgment (C-493/17, paragraph 19), later followed by the infamous judgment of the German BVerfG of 5 May 2020. 22. For instance, see M. Bobek and others, ‘Předbežná otázka v komunitárním právu’, Linde Praha, 2005, XI-51, XI-55, XI-58; K. Lenaerts and others, EU Procedural Law, OUP, 2014, 6.30-6.32; or K. P. E. Lasok, European Court Practice and Procedure, 3rd ed, Bloomsbury Professional 2017, 2.204. 23. On the separate opinions, see Article 4(2) P16 and Rule 94(8) RoC. Concerning the votes, see Rule 94(6) RoC.

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a op dvi in sor io y n

in iti at ed

in to en try

sig na tu re

fo rc e

and eﬀects. It is not yet entirely clear how both, the domestic courts and the ECtHR, will embrace the new mechanism under the Protocol and deal with some questions still open. What warrants a ention is for example the functioning and in uence of the language arrangements, the amount of requests for an advisory opinion that will reach the ECtHR, how the ECtHR will use its power to reject submi ed requests, which stakeholders are going to (be invited to) participate in the proceedings, and what will be the practical impact on the system of the Convention, as well as on the workload of the ECtHR.

First case - France

12 October 2018

10 April 2019

Protocol No.16 2 October 2013

1 August 2018

Beginning / Initiation Second case – Armenia

2 September 2019 24

Third case – Lithuania

5 November 2020 25

Fourth case - Slovakia

18 November 2020

Accepted by the ECtHR

Delivery of the Advisory Opinion 29 May 2020

28 January 2021

Pending Pending

24. e request was initially submi ed on 2 August 2019, but later completed with further materials and explanations of 26 August and 2 September 2019, thus formally considered to have been lodged on the la er date. 25. e request was initially submi ed on 2 October 2020, was completed on 5 November 2020 and wasthus formally considered to have been lodged on the la er date.

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The non-contentious phase at the ECtHR: Another eﬃciency strategy under review Elisa Llop Cardenal

last two years is currently underway, so this may be Ever since the European Convention on Human an interesting time to shed some light on this aspect Rights came into force, the European Court of Huof proceedings. man Rights (ECtHR) has had the option to secure a friendly se lement between the parties at any stage e present article is an a empt to disentangle the of the proceedings and strike the case out (Article NCP from the procedural, substantive and strategic 37(1)(b) of the Convention). However, friendly perspectives. e rst section se lements are one of the notwill take a step back to explain so-well-known parts of the ECtHR’s functioning. And for e ECtHR has encou- how the friendly se lement proceedings have functioned until good reason, since this part of the proceedings is entirely con raged parties to reach now, and how they are diﬀerent to unilateral declarations. Secdential until (if) a se lement is agreements for a good tion 2 focuses on the purely prosuccessfully eﬀected. cedural innovations put in place. number of years Section 3 illustrates how these ine friendly se lement procenovations can also have signi dure was hardly ever used for secant substantive implications. veral years, but the exponential Section 4 provides some context about why the straincrease in caseload before the ECtHR has made it tegy was adopted and, in that regard, whether it has necessary for the Registry to avail itself of existing been successful so far. e conclusions and closing tools, and to look for further strategies to manage it. remarks bring these sections together and try to antiOne of the latest examples is the introduction of a cipate whether this mechanism has performed as exnew non-contentious phase (NCP) to the proceepected. dings before the ECtHR to facilitate the conclusion of friendly se lements. is aims at easing the workload of both the Registry and Government Agents 1. Friendly se lements and unilateral deand anchoring the principle of subsidiarity. clarations at the ECHR e NCP was introduced for an initial one-year trial period on 1 January 2019 and extended until the end of 2020. A review of its performance over the

e ECtHR has encouraged parties to reach agreements for a good number of years, under Article 39 of the Convention and Rule 62 of the Rules of

1. Elisa Llop Cardenal is an Assistant Lawyer at the Registry of the European Court of Human Rights. She obtained her LL.M. in International Legal Studies at New York University and is a quali ed a orney in Spain. e views expressed here are strictly personal and do not bind or re ect in any way the political and institutional position of the European Court of Human Rights.

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Unilateral declarations arose out of case law in response to the ECtHR’s caseload

It has been common for the ECtHR to encourage se lements on a large scale following a pilot judgment, once the ECtHR has accepted the measures put in place by the State, or in repetitive cases. Where applicants refuse to se le, the ECtHR has not hesitated to strike their cases out following a unilateral declaration.

Court. e procedure, until now, was limited to the ECtHR pu ing itself at the disposal of the parties so they could reach an agreement should they want to. It is unsurprising that applicants remain reluctant to enter into such se lements, a er they have paid the toll of exhausting all domestic remedies prior to being able to le their application. At that stage, many of them are anything but ‘friendly’ towards the respondent State.

Unilateral declarations were rst used 20 years ago, in Akman v. Turkey. is tool is not mentioned in the Convention, but arose out of case law in response to the ECtHR’s caseload and was codi ed in Rule 62A of the Rules of Court in 2012. e practice has become more widespread since 2007, rst in repetitive cases and especially in the context of the pilotjudgment procedure, and more recently in all types of cases. However, it represents a small percentage of the ECtHR’s resolutions (4% in 2019, and only 1% in 2020).

Despite this, applicants are sometimes persuaded that this is the most efficient way to nd justice. Other than for time-efficiency reasons, they may agree to se le when there is a risk that, if they don’t, the respondent Government will make a unilateral declaration. It is worth emphasising that the ECtHR has the nal word on whether a se lement is compatible with the protection of human rights, and will not approve it otherwise. Judicial endorsement elevates them to official decisions or judgments.

e ECtHR is not obliged to accept a unilateral declaration irrespective of its content, but it is realistic

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e con dentiality of the negotiations is taken so seriously that the ECtHR has established that an intentional breach of the duty of con dentiality of friendly se lement negotiations may be considered an abuse of the right of application and result in the application being rejected under Article 35(3)(a). Although the rule is not absolute, the general purpose is that friendly se lements shall be reached far from any possible pressure. And for Governments, avoiding the public acknowledgement is one incentive to se le.

to expect that it will, provided that it complies with certain cumulative (non-exhaustive) criteria:

i. an explicit acknowledgement by the respondent Government that there has been a violation of the Convention; ii. that there is se led case law on the issues raised by the case; iii. adequate redress, in line with the case law on just satisfaction (appropriate monetary compensation or other means of redress aimed at eliminating the eﬀects of the alleged violation); iv. undertakings of a general nature, where appropriate (amendment of legislation or administrative practice, etc. or whether domestic law allows for the reopening of the proceedings based on the acknowledgement of the violation); v. respect for human rights.

e submission of a unilateral declaration is not condential. e fact that a Government submi ed a unilateral declaration is public, and so are its terms and the documents submi ed. e fact that the applicant refused the declaration is public, and so are the reasons for the refusal. If the ECtHR is the one rejecting it, that is public too, but not the reasons for the refusal. e publicity of unilateral declaration-proceedings, together with the strict requisites for their approval contributes to ‘compensate’ for the lack of agreement from the applicant in terms of their legitimacy.

e rst criterion is one of the key diﬀerences with se lements, which do not necessarily recognise the existence of a violation. In fact, the expression ‘ex gratia’ is only used for payments in the context of friendly se lement. It emphasises that the Government is agreeing to pay a lump sum to resolve the ma er without further consideration about whether there has been a violation.

Keeping these features and diﬀerences between the two tools in mind is important to understand how the NCP can help to foster se lements; and also, why it may raise some questions, given that unilateral declarations are generally available to respondent States and may incidentally also increase.

ere are also important diﬀerences between the two tools regarding con dentiality of the proceedings. e public is not aware of the fact that a Government and/or the applicant have proposed, accepted or refused a friendly se lement. It does not know why an applicant has rejected a friendly se lement, or if this has prompted the Government to issue a unilateral declaration, nor the reasons for the ECtHR to reject a particular agreement.

2. Key aspects of the NCP: procedural innovation Applicants and respondent Governments may make a proposal for a friendly se lement at any stage during the procedure. e rst feature of the NCP in the proceedings before the ECtHR is to devote so-

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their observations on the admissibility and merits of a case, and within the rst 8 weeks they were also required to state whether they are prepared to conclude a friendly se lement.

me time speci cally to the non-contentious resolution of the case, with a separate time-limit for the submission of proposals to that end. e Convention does not impose the proposal of a friendly se lement by the ECtHR, but a proactive approach is required by the Rules of Court.

If a case is suitable for the pilot procedure, a decision is required on whether to apply the NCP or the ‘traditional’ 16-weeks procedure.

e second feature of the NCP is the further push towards that proactivity: it is now the rule, not the exception, for the Registry to dedicate this stage of proceedings to proposing a friendly se lement in all communicated cases save some few exceptions.

ii. In most cases (an estimate of 90%), the ECtHR’s Registry now makes a friendly se lement proposal when respondent Governments are given notice of applications. e proposal

e non-contentious phase has been introduced to facilitate friendly se lements

ese are the essential procedural aspects of the new practice:

shall include how the amount (if pecuniary) was calculated, and why other engagements such as individual or even general measures are included (if they are).

i. ere are now two distinct phases in the procedure: a 12-week friendly se lement phase (noncontentious), and a further 12-week observations phase (contentious, with an exchange of observations). For priority cases (where there is an interim measure granted under Rule 39) the period is halved to 6 + 6 weeks.

If the parties do not reach a non-contentious resolution during the 12-week period, the Government is requested to submit the observations on the case. If the parties explicitly refuse to se le the case, the contentious phase can start before the end of the 12 weeks.

Until 2019, these two procedures ran in parallel; Governments were given 16 weeks to submit

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se lawyer (who speaks the applicant’s language and is familiar with the domestic law) and the competent Registrar. It should be remembered however that the Registry is composed of hundreds of lawyers and divided into ve Sections, each of which may take diﬀerent approaches within the broad guidelines with regards to friendly se lements or the NCP.

ere are exceptions to the rule of the Registry proposing friendly se lement declarations: borderline cases; cases raising novel issues which have never been examined by the ECtHR; cases which raise a speci c jurisprudential interest or interest for the country concerned; cases where it is diﬃcult to calculate the pecuniary damage; or cases where it may be inappropriate to propose a friendly se lement. Where no proposal is sent, the communication shall explain why the case falls into one of the exceptions. However, in those cases the NCP can still be applied for the parties to try to negotiate on their own terms.

Another relevant dimension to explain how friendly se lements work is the willingness of the State party in question. An apparent unwillingness of some States to se le is o en based on the domestic leAn apparent unwillingness gal possibilities and the existence of some States to se le is of systemic problems. Some States have never reached nearly any o en based on the domestic friendly se lements, and they legal possibilities and the may not nd an incentive to do so in the NCP.

Given that applicants do not need to be legally represented to le their applications before the ECtHR, if they are not represented by a lawyer, applicants are asked to appoint a representative existence of systemic for the NCP. ey can seek selfWhere there is proactiveness and representation and if the case is problems there is willingness, however, the not se led, during the contenexistence of the new NCP fosters tious phase they will again be renegotiations leading to friendly se lements. e quired to appoint an advocate or to seek selfRegistry proposal facilitates the parties to agree to representation. put an early end to the case. e parts of the communication which do not relate to the NCP and friendly se lement (the summary 3. Beyond case-processing: the substantive or statement of facts and the questions sent to the implications respondent Government) are still published on Hudoc. e idea of se ling in the context of human rights violations does not come without controversy. Friendly se lements, which in the context of the ECHR are used fundamentally as a casemanagement tool, should also be assessed from an ethical perspective. While the NCP seems a purely procedural innovation, it can have substantive implications.

One thing that may not transpire from the legal text but is necessary to understand the reality of friendly se lements is the proactive role increasingly played by the Registry. Judges cannot be involved in negotiations in order not to prejudge any possible decision taken. e ECtHR usually acts through the ca-

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e ECtHR announced that it would not make a proposal ‘for example cases where for any speci c reason it may be inappropriate to propose a friendly se lement’ and other exceptions have already been mentioned. But how the Registry decides in which cases to refrain from making a proposal speci cally on the grounds of respect for human rights is still unclear. What does ‘inappropriate’ mean in this context? Are serious human rights violations under Articles 2 and 3, for example, susceptible to being struck out through a se lement, following an initiative of the Court itself? Given that friendly se lements are o en limited to an ‘ex gratia’ payment, some (notably Professor and ECtHR Judge H. Keller) have wondered: ‘can the Court monetize all kinds of human rights violations?’ In practice, se lements in cases regarding Articles 2 and 3 are not rare; some Member States have reached a substantial number of friendly se lements under these provisions. Se ling has become a convenient solution for repetitive cases that do not require new pronouncements from the ECtHR, even for serious violations. Where the proposal comes at the initiative of the parties, if the ECtHR considers that it has not been reached on the basis of respect for human rights, it may decide to continue with the contentious procedure, and a judgment will be dra ed without any information concerning the failed negotiations. But the introduction of the NCP raises a question: if the Registry does not include the Government’s acknowledgment of the violation in the friendly se lement proposal and the applicant rejects to se le, will the Government have to include such acknowledgment to make an acceptable unilateral declaration? Why would a Government acknowledge the commission of a violation where the Registry has not done so in its own proposal? e issue is one to watch closely, which is why it is relevant for applicants and lawyers to be familiar with the friendly se lement and the universal declaration requirements. If a Government does not include the acknowledgment of a violation and suﬃcient redress in a unilateral declaration (which might need to include conducting an eﬀective investigation in serious cases), it would be against the ECtHR’s own case law to accept such declaration. e lack of agreement from the applicant can only be compensated with increased undertakings from the Government. As it stands, the case law allows for unilateral declarations in cases raising serious complaints under Articles 2 and 3 of the Convention, but it has also established that they will be examined with particular care and a ention in the light of existing criteria. So far, the case law has not shown any sign of weakening such strict re-

Se ling has become a convenient solution for repetitive cases that do not require new pronouncements from the ECtHR

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quirements. It is well established that unilateral declarations are not intended to enable Governments to escape responsibility for the most serious human rights violations.

NCP was not introduced to speed up proceedings neglecting applicant’s rights, but to be er protect them by allocating the ECtHR’s resources where they are most needed.

Unilateral declarations are not intended to enable Governments to escape responsibility for the most serious human 4. Strategic approach: two years of trial period under rerights violations

In fact, it happens that friendly se lement negotiations fail at rst, the Government then issues a unilateral declaration acknowledging the violation and oﬀering redress (even the adoption of general measures), and the applicant fully accepts those terms; the case is treated again as a friendly se lement and struck out (with the ECtHR’s approval) as such.

view

e need to lighten the ECtHR’s workload has been pressing for a number of years. As the important Interlaken Conference on the future of the ECtHR drew close to its 10-year anniversary, additional efforts were made to progress on an innovative roadmap for the evolution of the e oversight of the Governments’ undertakings ECtHR. One of the main challenges has been nalso reinforces the legitimacy of these tools. When ding ways to modernise and improve its methods to friendly se lements are approved, the Commi ee adjudicate more cases as its case law increased. e of Ministers supervises their execution. When an apCopenhagen Conference held in 2018 pointed out plication has been struck out following a unilateral the need to explore how to facilitate the prompt and declaration, if the ECtHR is informed that the uneffective handling of cases, particularly repetitive cadertakings given are not being executed, it can exses, that the parties are open to se le through a ceptionally decide to restore the application to the friendly se lement or a unilateral declaration. In list of cases to examine the question of the executhat spirit, in early 2019, the Steering Commi ee for tion. Human Rights issued an Encouraging resolution of the ECtHR’s proceedings through a dedicated none reticence to strike out cases contentious phase of the proceeconcerning serious violations of dings. It has been in place ever sinrights may be a priori understanWhether the introduction ce. dable. But a closer examination to the ECtHR’s case-law and practiof the non-contentious Whether the introduction of the ce should be reassurance that thephase has been strategi- non-contentious phase has been se mechanisms strike a fair balanstrategically effective, however, is ce between the need to manage cacally effective, however, not evident just yet for various reaseload, and the ECHR’s main pursons. First, two years is still a relatiis not evident just yet pose of being an instrument for vely short time for parties to incorMember States to secure fundaporate new proceedings. Second, mental rights and freedoms. e

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as mentioned in section 2, some States never rely on friendly se lements or unilateral declarations, so the fact that the ECtHR proactively invites them to do so has limited eﬀect. ird, the number of cases considered repetitive or susceptible of being se led on a large-scale basis following a pilot case varies each year. And last, the refusal of se lements remains con dential. Only the Registry can keep track of how the NCP is really functioning, and to the date of publication of this Long Read, it is still assessing the impact of the NCP in the past two years. e Registry’s remarks concerning this ‘trial period’ will provide very valuable insight to whether this tool has been strategically successful.

In 2020, 39,190 applications were disposed of judicially, a decrease of 4% from 2019. e statistics show a decrease of 44% in the number of applications struck out following friendly se lement or universal declarations. Friendly se lements (1,375) decreased by 19% despite the NCP. e decrease responded, according to the ECtHR, to the drop of such decisions against Italy (non-execution –follow-up Pinto Act– which fell from 1,016 in 2019 to 1 in 2020), Hungary (civil length of proceedings) and Romania (conditions of detention). Poland also decreased its se lements from 123 in 2018 to 22 in 2020. Unilateral declarations (402) decreased by 73% last year.

For now, we can try to anticipate some conclusions from the available ECtHR statistics. In 2019, out of a total of 40,667 applications disposed of judicially, 1,688 (4%) were struck out following a friendly se lement, and 1,511 (roughly 4%) were struck out following a unilateral declaration. Overall, an increase of 5% compared to 2018. But when we break that down, we observe that the number of applications struck out following a friendly se lement had decreased by 23% from 2018 (2,185) while unilateral declarations increased by 75% (8,651) in 2019 (see table below).

2018 marked a peak for friendly se lements, but in 2019 and 2020 the numbers have decreased regardless of the NCP. Few States have increased their friendly se lement numbers with the introduction of the NCP: Azerbaijan moved from 1 in 2018 to 27 in 2020, and Russia increased from 98 in 2018 to 214 in 2020 (see table below). Unilateral declarations nearly doubled in 2019, but have drastically reduced in 2020, which may indicate that the refusal to se le does not come only from applicants.

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STATE Albania Andorra Armenia Austria Azerbaijan Belgium Bosnia and Herzegovina Bulgaria Croatia Cyprus Czech Republic Denmark Estonia Finland France Georgia Germany Greece Hungary Iceland Ireland Italy Latvia Liechtenstein Lithuania Luxembourg Malta Republic of Moldova Monaco Montenegro Netherlands North Macedonia Norway Poland Portugal Romania Russia San Marino Serbia Slovakia Slovenia Spain Sweden Switzerland Turkey Ukraine United Kingdom Grand Total

UNILATE L DECLA TION 2018

2019

2020

FRIENDLY SE LEMENT 2018

3 1 9

27 2 1

2 2 1 1

2 6 4 6

2019 1

2020

1 2 6 17 3 8 5

13 2 23

3 2 5 4 26 10

4 11 33

1 8 11

273

1016

1 1

2 1 3 7

1 4

1 6

27 456

243

298

6 2

2 1

123

16 1 80 189

22 4 24 214

279 13 691 151

31 7 123 430

2 3 1

7 5

1 1

33 15

103 16 1

146 1 1 865

122

205

1 120

402

2 2185

3 1688

141 98

1511

5. Remarks and conclusion

8 1 3 1 4 60 429

2 2 2

1 2 10

4 1 14 2 2

e above data is helpful to look at the number of successful se lements and unilateral declarations, but insuﬃcient to assess the impact of the NCP alone. In light of the gures, asserting that the NCP has translated into a clear increase in the number of friendly se lements and eased the caseload management would be unsubstantiated.

3 1 1 53 263 6 15

13 1 22 17 16 69 509 1 113 12

167 14 1 1375

e ECtHR is indisputably a judicial body, where adjudication is and shall remain more important than se lements. However, the la er can contribute to a more efficient functioning of the system. Amiable solutions where the concerns of all parties are observed have, moreover, be er prospects of being implemented. But applicants commence cases before the ECtHR in Strasbourg a er long proceedings at the domestic level, and it is not evident that they will be inclined to se le; on the other hand, some States generally reject this tool too. Changing this mindset is a difficult task, to which the NCP can contribute but does not suffice. e main takeaway we can draw two years a er the introduction of the NCP is that it was not intended as a radical new approach and has not made, in practice, a signi cant difference in either the procedural, the substantive or the strategic aspects of the ECtHR’sfriendly se lement proceedings. From a procedural point of view, it builds on the proactive role of the ECtHR’s Registry,

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e ECtHR will surely consider all the above to decide whether the NCP is a proceeding worth consolidating. To maintain the quality and relevance of the ECtHR’s case law, many eﬀorts to manage the quantity of the caseload are required. Unless the Registry’s review concludes that the case lawyers have actually seen their burden increased by having to prepare ad hoc se lement proposals, rather than lowered, it would be sensible to believe that the NCP will consolidate the potential bene ts it can bring in the medium and long term.

which has been charged with the burden of proposing declarations based on the ECtHR’s case law, the outcome of pilot cases, and other repetitive cases where the case law is well-established. ose declarations are meant to be the starting point for parties to further negotiate their own terms. Under this perspective, the innovation is positive, given that the Registry has the expertise to assess which cases really need judicial adjudication, and which others can be resolved fairly in a more expedited way. On the substantive aspect, the ECtHR has not modied its criteria with regard to either se lements or unilateral declarations. While a proposal coming from the Registry may only incorporate an ‘ex gratia’ payment, the fact that it was rejected by the applicant does not allow the Government to merely translate it into a unilateral declaration; under the case law as it stands, Governments still need to acknowledge the existence of violations and oﬀer suﬃcient redress for a case to be struck out lacking the applicant’s agreement. Emphasising the requisites to have an application struck out following either procedure is essential to maintain the legitimacy of these tools, and relevant especially for concerned applicants.

As the ECtHR has consistently held, the Convention evolves by means of the interpretation of its provisions by the ECtHR. roughout the years, it has implemented initiatives leading to changes in the working of the Convention machinery. A er all, the ECtHR has made the Convention ‘a living instrument’ not only substantially, but also from a procedural and structural perspective.

e main strategic purpose of the introduction of an NCP was for the ECtHR to further ‘burden sharing’ the caseload with Contracting States. e 2020 statistics do not show signi cant progress in this regard; on the contrary, the percentage of decisions struck out following friendly se lements decreased by nearly one h. Interestingly, unilateral declarations decreased three times more. It appears that the Registry proposals are not being widely accepted by parties; but also that this is not translating into unilateral declarations from Governments either.

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News Highlights Week 1 to 5 February 2021

Commission’s appeal against General Court’s judgment in Apple/Ireland State aid case published Monday 1 February

No maladministration in Commission’s refusal to grant access to a a legal service note on the Weiss/PSPP aﬀair according to European Ombudsman

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e European Commission’s appeal against the General Court’s ruling in the State aid case concerning Apple and Ireland (Ireland v Commission (T-778/16), and Apple Sales International and Apple Operations Europe v Commission (T892/16)) was oﬃcially published.

Monday 1 February

Dra standards published by ESMA on publishing information relating to funds, fees and charges for crossborder activities of fund managers

Establishment of nancial programme for decommissioning of nuclear facilities and managing radioactive waste: Regulation published

Monday 1 February

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e European Ombudsman carried out a limited inquiry which found that the European Commission did not commit any maladministration by refusing to grant public access to its legal service note on the Weiss/PSPP aﬀair, there being no obvious error in the Commission’s assessment.

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e European Securities and Markets Authority published a nal report on dra implementing technical standards under the Regulation on cross-border distribution of funds, on information published by national competent authorities on their websites, noti cation of information to ESMA, and information published by ESMA on its website.

Council Regulation 2021/100 on the EU budget (20212027) for the decommissioning of nuclear facilities and the management of radioactive waste was oﬃcially published.

Commission nds illegal State aid in Estonia’s lease of agricultural land: decision published

European Ombudsman seeking Director to join Ombudsman’s Oﬃce

Monday 1 February

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A Notice of vacancy was published for the position of Director in the Directorate for Administration in the European Ombudsman’s Oﬃce.

Oﬃcial publication was made of a Commission Decision (2021/104) of 24 January 2020, nding the rental of agricultural land by Estonia to a private limited company (AS Tartu Agro) to be illegal State aid in breach of Article 107 TFEU, and ordering Estonia to recover it within four months.

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EU-Japan trade relations: additional Geographical Indications agreed Monday 1 February

AG Bobek interprets EU jurisdiction and immunity rules in dispute brought by former Commission Cabinet member against former Commissioner

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e Joint Commi ee of the EU-Japan Economic Partnership Agreement (EPA) decided (through Decision 1/2021, now published) to add 28 additional Geographical Indications on each side to the EPA.

Tuesday 2 February

In the context of a civil action brought by a former European Commission oﬃcial who served in the Commission’s Cabinet, against a former Commissioner for defamatory statements concerning the inadequate performance of duties and termination of employment, Advocate General Bobek issued his Opinion in OH v ID (C-758/19).

Acquisition of Aleris by Novelis: Summary of Commission Decision published Tuesday 2 February

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Consultation launched for 2021 Rule of Law Report Tuesday 2 February

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e Commission launched a consultation aimed at a targeted group of stakeholders to obtain factual information on developments related to the rule of law for its second ever annual Rule of Law Report.

A Summary of the European Commission’s Decision to approve the acquisition of sole control of Aleris Corporation by Novelis Inc., both of the US, was oﬃcially published. Both companies are global manufacturers of at rolled aluminium products.

AG Rantos: applicants for international protection may appeal transfer decisions to invoke subsequent circumstances

Higher levels of COVID-19 cases, variants of the virus, and closing EU borders: Council of the EU updates Recommendation

Tuesday 2 February

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Advocate General Rantos delivered advised in État belge (C194/19) that under Article 27 of the Dublin III Regulation and Article 47 of the Charter, international protection applicants can invoke circumstances subsequent to a transfer decision in an appeal, if that could in uence the determination of the Member State responsible for considering the application.

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e Council of the European Union adopted a (nonbinding) Recommendation amending the existing Recommendation that calls for a coordinated approach to EU Member State border closures in response to the COVID-19 pandemic (and for restrictions to be proportionate and nondiscriminatory).

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ECtHR: Grand Chamber judgement concerning children abuse in Bulgarian orphanage and procedural obligations under Article 3 ECHR

Court of Justice: EU law guarantees that natural persons have a right to remain silent in administrative investigations

Tuesday 2 February

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e European Court of Human Rights gave its Grand Chamber judgment in X and Others v. Bulgaria, nding a procedural but no substantive violation of Article 3 ECHR in a case concerning allegations of sexual abuse of three children in a Bulgarian orphanage prior to their adoption.

In Consob, C-481/19, the Court of Justice si ing in Grand Chamber replied to queries made by the Italian Constitutional Courtand clari ed the scope of protection granted by the EU Charter of Fundamental Rights to natural persons in administrative investigations.

EU-Japan civil aviation safety Agreement

Court of Justice clari es that a national sports federation established under private law may be subject to EU public procurement rules

Tuesday 2 February

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A Council Decision was published today (2021/112) to approve the Agreement on civil aviation safety between the European Union and Japan, signed on 22 June 2020.

Wednesday 3 February

e Court of Justice handed down its ruling in joined cases Federazione Italiana Giuoco Calcio (FIGC), Consorzio Ge.Se.Av. S. c. arl v De Vellis Servizi Globali Srl (C-155/19 and C-156/19), nding that a national sports federation such as the Italian Football Federation can be a ‘body governed by public law’ subject to EU public procurement rules under Directive 2014/24.

Updated: Council’s COVID-19 Recommendation on closing EU borders to third countries due to higher levels of cases and virus variants Wednesday 3 February

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LIBOR phase-out: Council of the EU adopts amendments so new replacement rate is in place Wednesday 3 February

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As the LIBOR is expected to be phased out soon, the Council of the EU adopted amendments to the Benchmark Regulation yesterday to reduce legal uncertainty and prevent nancial instability risks from arising by providing for a new statutory replacement rate.

e Council of the EU adopted an updating and (nonbinding) Recommendation on travel restrictions into the EU from third countries in response to the higher number of cases and more infectious variants of the COVID-19 pandemic, and the possible li ing of such restrictions.

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Vacancy for référendaire (legal secretary) to join Cabinet of Judge Pynnä at the General Court Wednesday 3 February

General Court annuls European Parliament Decision nding MEP psychologically harassed parliamentary assistants

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A vacancy announcement has been made for a référendaire (legal secretary) to join the Cabinet of Judge Pynnä of the General Court of the Court of Justice of the European Union. e deadline for applications is 5pm, 10 February 2021.

Wednesday 3 February

COVID-19: Coreper approves mandate to extend temporary exibility for transport licences

Commission presents Europe’s Beating Cancer plan

ursday 4 February

e General Court in Moi v Parliament (T-17/19) upheld an action for annulment brought by a former MEP against a Decision of the President of the European Parliament which had found the MEP responsible for psychological harassment of parliamentary assistants.

ursday 4 February

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e European Commission released its Europe’s Beating Cancer plan on Wednesday, containing a set of strategic actions to support, coordinate, and complement Member States’ eﬀorts to reduce the mortality and the suﬀering caused by cancer, the leading killer disease in the EU.

e Council’s Permanent Representatives Commi ee (Coreper) agreed on a negotiating mandate for the Commission’s Proposal for a Regulation to renew temporary measures helping transport operators and citizens who are unable to ful l certain administrative requirements because of COVID-19 measures adopted by the Member States.

Joint EU-UK Statement on recent tensions aring due to application of postBrexit Northern Ireland/Ireland Protocol

ECtHR: denial of employment healthinsurance coverage for pregnant workers amounts to illegal gender discrimination ursday 4 February

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ursday 4 February

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Recent tensions and intimidation aring up concerning Northern Ireland and Ireland, a direct result of the new post-Brexit EU-UK relations – in particular the Northern Ireland/Ireland Protocol to the Withdrawal Agreement, were addressed by representatives of both the UK and EU, pursuant to a video conference meeting including Ministers from Northern Ireland.

e European Court of Human Rights handed down its ruling in Jurčić v. Croatia (no. 54711/15), a case concerning the allegedly discriminatory denial to the applicant, a Croatian national, of employment health-insurance coverage during her pregnancy through in vitro fertilisation (IVF).

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Commission opens infringement procedures against 24 Member States for not transposing European Electronic Communications Code

High Representative condemns Russia’s sentencing of Alexei Navalny ursday 4 February

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e High Representative of the EU for Foreign and Security Policy, Mr Josep Borrell, issued a statement condemning the prison sentence imposed by a Moscow court to Russian opposition leader Alexei Navalny.

ursday 4 February

e European Commission began infringement procedures against 24 Member States for failing to transpose into national law the European Electronic Communications Code (EECC) Directive which signi cantly revises the regulatory framework on connectivity and investment.

Fundamental Rights Agency’s main ndings on facial recognition technology paper

Eurosystem agrees on common stance for climate change-related sustainable investments in non-monetary policy portfolios Friday 5 February

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Friday 5 February

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e EU’s Fundamental Rights Agency has presented main ndings from a paper on the fundamental rights impact of facial recognition technology, at an event of the International Network of Civil Liberties Organizations (made up of 15 NGOs).

e European System of Central Banks (ESCB) has agreed on a common stance for applying sustainable and responsible investment principles in the euro-denominated nonmonetary policy portfolios that each bank of the ESCB manages under their own responsibility.

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Insights, Analyses & Op-Eds Consob – e Court of Justice on the right to remain silent in criminal ma ers (and beyond…) By Giulia Lasagni

DB v Consob: the scope of right to silence under EU law By Luigi Lonardo

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Op-Ed, complementary to that of Giulia Lasagni’s, more focused on the Article 47 and 48 Charter- ndings and diﬀerences between EU and ECtHR standards in Grand Chamber CJEU case Consob (C-481/19).

Op-Ed on a landmark Grand Chamber case from the Court of Justice, ruling for the rst time on the scope of the privilege against self-incrimination with regard to criminal (punitive) ma ers in Consob (C-481/19), considered to be a longawaited substantial application of the Charter in the criminal ma er

EU – Korea FTA panel ruling and a challenge for its eﬀective implementation By Jin Woo Kim and Yves Melin

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e Court of Justice Rules Once More On Parent Company Liability By Patricia Pérez Fernández

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Analysis of the Court of Justice’s ruling in e Goldman Sachs Group Inc v European Commission C-595/18 P, treating the concept of parental liability of a company for antitrust infringements commi ed by its subsidiaries, a principle historically applied broadly, and further extended by this ruling.

Op-Ed on the Free Trade Agreement dispute on labour rights between the EU and Korea, the rst time the EU has initiated dispute se lement procedures under a trade agreement to challenge violations of a third country’s Trade & Sustainable Development obligations.

Library - Book Review David Fernández-Rojo

By Mariana Gkliati READ ON EU LAW LIVE

EU Migration Agencies: e Operation and Cooperation of FRONTEX, EASO and EUROPOL Described as ‘the newest member of the growing family of literature on EU agencies in the area of migration and asylum’, and ‘a most welcome addition as it provides a comparative analysis’.