29 February 2024

No Benefit

Germany's section 96 in light of the Kinshasa Referral

On January 18, 2024, the German federal parliament (Bundestag) passed the controversial Repatriation Improvement Act. The Act extends the scope of criminal liability for the smuggling of migrants regulated in Section 96 of the German Residence Act (Aufenthaltsgesetz). Before the amendment, due to the requirement of a benefit in return for assistance, humanitarian support was excluded from its scope. The legal changes result in a de facto criminalisation of humanitarian support for entry by land as well as entry of minors by sea, land, and air. The German provision resembles both in wording and substance Article 12 of the Italian Consolidated Immigration Act (TUI). Both provisions transpose the EU Directive 2002/90/EC and Framework Decision 2002/946/JHA (the so-called Facilitators Package) into national law aiming to control migratory flows and combat transnational, commercial crimes such as migrant smuggling.

Due to the lack of an exception for non-commercial assistance, the CJEU is set to rule on the compatibility of both the European and Italian provision on the facilitation of migration with EU primary law, including the EU Charter of Fundamental Rights, following a preliminary reference procedure (Art. 267 TFEU) that was initiated in July 2023 (CJEU – Case C-460/23). If the CJEU rules that the Facilitators Package is invalid, Germany will have to repeal the legal changes. While it is a controversial issue which effect a pending referral has, in particular on the legislator, in the current case, the German government should have suspended the legislative process because it disregards the function of Art. 267 procedures, creates legal uncertainty and endangers fundamental rights.

The Kinshasa Referral Before the CJEU

The Kinshasa case turns on criminal proceedings against a Congolese woman who travelled to Italy by air with her minor daughter and niece using forged documents to apply for asylum. She was prosecuted under Art. 12 of the Consolidated Immigration Act (Legislative Decree 286/1998 referred to as TUI) which criminalises the facilitation of unauthorised border crossings to Italy.

The case was referred to the CJEU by the criminal court in Bologna because it had doubt whether Art. 12 TUI and the EU Facilitators Package are compatible with the EU Charter. Specifically, the Court is asked whether the provision criminalising assistance to entry not in exchange for profit violates the principle of proportionality read in conjunction with several rights such as the right to liberty (Art. 6) and the right to asylum (Art. 18) because it does not provide for an exception for “non-profit-making” behaviour.

The Uncertain Effect of Pending Referrals Before the CJEU

If the CJEU issues a decision of invalidity, it has erga omnes effect (“towards all”). This means that the decision is not only binding for member states’ courts but also for the administration, i.e. the legislator. However, it is unclear what effect pending proceedings have and whether courts and legislators should suspend their proceedings until the CJEU has issued its decision.

With respect to the referring court, Art. 23 of the Statute of the CJEU stipulates the suspension of the procedure that underlies the referral. This must be interpreted, as the CJEU recently ruled, as suspending the aspect of the procedure that is subject to the question to the CJEU (CJEU – C-176/22, Judgment 17 May 2023, para 32). Other activities such as resuming criminal investigations, may be continued. Other judicial bodies within the EU have no obligation to stay a proceeding that turns on the same question, but in identical cases, they have the right to.

The German Federal Labour Court (BAG) clarified that suspending national proceedings is permissible in civil cases if the outcome of the proceedings depends on the decision of the CJEU (BAG Case no. 6 AZR 481/09 (A), Decision 20 May 2010). The German Federal Court of Justice (BGH) confirmed such right to stay and emphasised that the function of the CJEU would otherwise be impaired (BGH – Decision 24 January 2012 – VIII ZR 236/10, para 8). In parallel to the interpretation or validity of EU law, the CJEU further ruled that this right extends to the validity of a Commission decision (CJEU – C-135/16, Judgment 25 July 2018, para 24). Courts have the right to suspend proceedings provided that the case is identical or substantively similar and thus affected by the referred question. This applies to laws such as Art. 12 TUI and the EU directive as well as the framework decision by the EU Commission.

In Support of a Right to Suspend

In a more recent ruling, the BAG provided several additional arguments for a suspension (BAG – Case 10 AZR 397/20 (A), Judgment 3 December 2019). The main reason supporting the right to suspend is the principle of economy of procedure since it aims to reduce the double burden on courts (BAG, 2019, para 22). As a consequence, other courts do not have to refer the question and the CJEU is not overburdened with similar referrals. This is supported by the case law on exceptions to the obligation to refer a case to the CJEU, namely if such a case has already been decided; so-called acte éclairé (BAG, 2019, para 37). What is more, courts do not have to reverse their judgment in the event that the CJEU issues a binding invalidity decision. A second reason why the right to suspend is warranted can be found in the primary function of an Art. 267 referral (CJEU – C-135/16, para 24). The objective of preliminary rulings is to prevent different outcomes and thereby harmonise EU law in all member states (BAG, 2019, para 37). This goal would be jeopardised if a court did not have the option to stay a proceeding in an identical or substantively similar case.

This is further in line with the principle of sincere cooperation between the EU and its Member States (Art. 4 (3) Treaty of the European Union (TEU)). Art. 4 (3) TEU obliges all institutions to act in good faith and loyal to the EU’s objectives. Besides the harmonisation of EU law, referrals to the CJEU as the highest judicial body serves the dialogue between courts (CJEU, Opinion 2/13, para 176). In addition, the protection of individuals rights, in particular the right to an effective remedy (Art. 47 (1) EU Charter) and the right to a fair trial (Art. 47 (2) EU Charter) must be considered. The right to a fair trial includes the obligation to refer a case by the court of last instance. While acknowledging the independence of the courts, the European Court of Human Rights found an omission to refer upon request by the applicant without giving reasons to violate the right to a fair trial (Art. 6 (1) ECHR; ECtHR, Case of Georgiou v. Greece, paras 24-26). Concurrently, a suspension must abide by the right to due process (Art. 47 (2) EU Charter) since staying the procedure may prolong its duration (CJEU – C-73/16, Judgment 27 September 2017, para 74).

While a court may stay a proceeding, there is no obligation to do so. Courts that are dealing with similar cases must thoroughly balance the interests at stake and can exercise the right to suspend under specific circumstances.

What about Legislative Activity?

The suspension of legislative procedures should follow the same logic. The principle of sincere cooperation binds all public institutions, including federal authorities and the legislator. While it cannot be stated that the legislator is strictly bound by the same standards as courts, it should thoroughly balance the interests at stake to adhere to the fundamental principles of good law-making. The present case shows several areas of uncertainty which should have led to the suspension of the adoption of Section 96 until clarity about the validity of the EU law is reached.

If the validity of an identical or substantively similar law is referred to the CJEU, staying legislative activities seems warranted. The German provision is almost identical to the Italian Art. 12 TUI. A German court, hearing a hypothetical Section 96 case, would have the right to suspend its procedure because of the referral. The legislator thus shifts the burden to the judiciary and may cause an increase of uncertain cases which Art. 267 specifically aims to eliminate. The adoption of Section 96 thus disregards the function of the preliminary reference procedure.

In addition to the general question of validity, the legislator should balance the individual rights at stake. In the referred case, the CJEU refused to consider an expedited procedure in October 2023 because the Congolese woman was not in custody and her fundamental right to liberty thus not violated. The CJEU deemed the fact that others could be subject to custodial measures irrelevant for the specific case because the court is limited to decide on the fact of the referred case of one individual. By contrast, the legislator, is obliged to balance such interests because its laws apply directly to everyone.

The fact that the amended law may result in custodial measures gives serious reason for concern. Art. 6 EU Charter provides the right to liberty and security which applied criminal norms necessarily violate. Imprisonment is one of the harshest measures a state can impose on an individual, hence it must comply with the highest legal standards. A thorough balancing of interests between the right to security and the right to liberty, between the aim to control migration and combat transnational, commercial crime and the fundamental rights of migrants and humanitarian helpers would have been urgently required. To create legal certainty about the validity of the norm and protect the rights of individuals, the legislator could and should have stayed the adoption until a decision by the CJEU is reached. Unlike the Italian law which has been in force for over 20 years, the German law was adopted at a moment of highest uncertainty.

Ignoring Consequences. Again.

What is more, despite the opinion of several experts, the legislator ignored the de facto consequences of the law. Yet, evaluating these consequences is a fundamental obligation in the legislative process. In November 2023, the current German government reversed a controversial amendment related to child pornography because the provision failed to achieve its criminal purpose and extended its scope disproportionately. The de facto consequences of the law were ignored by the previous government, with the result that the Federal Ministry of Justice decided to repeal the law following considerable criticism by experts and the judiciary. It would have been necessary to take the consequences of the amended Section 96 likewise seriously before adopting it.

The provision’s uncertain scope also stands in tension with the principle of legality. Due to its criminal character, Section 96 must comply with the highest standard of legality (Art. 49 EU Charter). Repeatedly criticised for its complexity, the interpretation and scope of Section 96 are unclear. Its consequences are not foreseeable for the individual. The legislator has clarified that criminalisation of search and rescue is not intended, yet legal opinions and the cases in the Mediterranean challenge this. While the Federal Council (Bundesrat) endorsed the adoption of Section 96, it also raised concern whether parents with at least two minor children would be criminalised and pointed to the uncertainty in the draft bill. It is almost ironic that the referral concerns exactly such a case and staying the law’s adoption until the CJEU had issued its ruling would have provided the necessary clarification. As the law currently stands, it is unclear whether it applies to a family with two or more minor children.

Not a Credible nor an Informed Decision

Even if there is no obligation to suspend legislative activity in the face of pending preliminary ruling proceedings, in the present case the German legislature would have done well to suspend its planned amendment to Section 96. Fundamental principles of legality and law-making and the very real threat to individual rights the section poses militated against its hasty adoption. Instead, the German legislator has failed to give due attention to the meaning and purpose of preliminary ruling procedures before the CJEU and thus risks undermining the principles of the cooperative system in the EU, which it is obliged to observe in good faith. The hasty adoption of Section 96, by removing the “benefit element”, creates legal uncertainty and gives rise to concerns about the genuine protection of human rights.