What does the Alabama Mandatory Insurance law mean for uninsured Alabama residents involved in a motor vehicle wreck?
The state can suspend a driver’s license or an owner’s vehicle registration until the proper forms are submitted and fees paid when an uninsured vehicle is involved in a collision or when a driver is pulled over and fails to provide proof of insurance. The Code of Alabama has two different chapters governing mandatory car insurance and the penalties for not having coverage. They are Ala. Code §32-7-1 et seq. Motor Vehicle Safety-Responsibility Act and Ala. Code §32-7A-l et seq. Mandatory Automobile Liability Insurance.
§32-7-5 of the Motor Vehicle Safety-Responsibility Act requires that any driver involved in a wreck in Alabama, where any person is injured or killed or where more than $250.00 in property damage is sustained, must file a written report with the Department of Public Safety within 30 days of the date of the wreck stating, among other things, that the driver has the required minimum insurance coverage. This is the SR-13 form given to drivers after collisions. The drivers must submit the form whether or not the wreck is their fault.
Under §32-7-6, if one or more of the drivers in a motor vehicle wreck is reported as being uninsured, that driver has 20 days after the submission of an accident report to provide proof that the driver either (1) actually has insurance, (2) has been released from liability, (3) has been finally adjudicated as being not liable, or (4) has agreed to pay installments for any injuries or damages for which the driver is liable. If 60 days passes from the submission of an accident report and an uninsured driver has not provided any of the above information, the Department of Transportation has the power to suspend both the license of the driver and the vehicle registration of any vehicle owned by the uninsured vehicle’s owner.
The Department of Public Safety requires that uninsured drivers involved in collisions submit various forms before their licenses can be reinstated. If a driver was involved in an accident and was reported as being uninsured, but the driver actually had insurance, the driver must submit an SR-21 “Proof of Liability Insurance” form to the Department of Public Safety. If an uninsured driver has been released from liability for an accident, the driver must submit an SR-58 “General Release” form to the Department of Public Safety. If an uninsured driver has agreed to an installment payment plan for any damages or injuries they caused in a collision, they must submit an SR-59 “Conditional Release” form to the Department of Public Safety. If more than 2 years has gone by since a wreck where an uninsured driver caused injuries or property damage in excess of $250.00, but no parties have sought to hold the driver liable for those injuries or damage, the driver must submit an SR-33 “No Court Action Statement” form. The State will not reinstate the uninsured driver’s license until it receives the appropriate form and any accompanying fees, charges, or penalties.
§32-7-6.1 of the Motor Vehicle Safety-Responsibility Act requires that persons registering vehicles in the State of Alabama present proof of insurance at the time of registration, and also that drivers carry proof of insurance in their vehicles. This section also empowers law enforcement officers to request proof of insurance any time they request a driver’s license from a vehicle’s driver and to issue a citation for failure to provide proof of insurance. If a driver is issued a citation for driving without insurance, or an owner knowingly allows a person to operate a vehicle without insurance coverage, and they are unable to provide proof of insurance to the court of appropriate jurisdiction, §32-7-6.1 (h) states that the driver or owner may be convicted of a misdemeanor, and fined no more than $500.00 for the first conviction, and no more than $1,000.00 for any subsequent conviction. The court may also suspend the individual’s driver’s license for no more than six months as an additional penalty for any subsequent conviction.
Ala. Code §32-7A-l et seq. Mandatory Automobile Liability Insurance gives the state Department of Revenue the power to enforce Alabama’s mandatory liability insurance requirement through the state’s motor vehicle registration system. §32-7A-4 requires that liability coverage be maintained for all vehicles registered with the state of Alabama. §32-7A-7 gives the Department of Revenue the authority to select random samples of vehicle registrations in the State to confirm that liability coverage exists for those vehicles. Under §32-7A-9, the State Department of Revenue can suspend the vehicle registration of any vehicle found to be operating in violation of §32-7A-4, or if the Department receives notice that the vehicle violated the law of another State that would be equivalent to §32-7A-4.
In the case of a first time violation, the Department of Revenue will reinstate a vehicle’s registration upon payment of a $100.00 reinstatement fee and submission of proof of liability insurance. In the case of a second violation, the Department will suspend the vehicle’s registration for a minimum of four months, and will then reinstate the registration upon payment of a $200.00 reinstatement fee and submission of proof of liability insurance. Additionally, upon conviction for a second violation, the violator will be guilty of a Class B misdemeanor.
Since a driver can have their license suspended if they are involved in a collision where significant injury or property damage occurs but they do not have insurance, it is possible for a private citizen to hold that uninsured driver responsible for those injuries. Once the uninsured driver’s license is suspended, the injured party can refuse to sign an SR-58 “General Release,” or an SR-59 “Conditional Release” until the uninsured driver has satisfied the injured party.
Here at Siniard, Timberlake & League, we handle cases where no liability insurance exists on a daily basis. If you find yourself involved in a collision with an uninsured person, contact us to discuss your options regarding any possible recovery.


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Cozen O’Connor: Curran, Alicia G.
Alicia represents and advises insurance companies in complex coverage and extracontractual third- and first-party matters.
Alicia leads a legal team focusing on the representation of insurers and the defense of their insureds. Her emphasis on early development of factual issues, innovative case positioning, problem resolution, and timely information assists her clients in obtaining positive case results. Now concentrating her practice in the areas of bad faith insurance litigation, insurance coverage, and agent and broker malpractice, she also has prior experience and continues to receive litigation assignments involving professional liability, defamation, business disputes, construction defect, premises liability, and general tort matters.
Alicia earned her Bachelor of Business Administration, from Texas Tech University, where she specialized in finance. She also has a Master of Business Administration from Southern Methodist University and earned her law degree from Southern Methodist University Dedman School of Law. Alicia chairs Cozen O'Connor's Bad Faith Practice Group.
As the name suggests, the latest blog from Cozen O'Connor will offer insight into the issues that surround allegations of bad faith or other unfair business practices.
Alicia G. Curran and Ron Tigner discuss the Texas Supreme Court's decision setting forth five “distinct but interrelated rules” that govern the relationship between contractual and extracontractual claims in the first party insurance context.
The Hawaii Supreme Court, providing three separate reasons, held that the excess insurer could bring a cause of action for equitable subrogation.
In Santacruz v. Allstate Texas Lloyds, Inc., 2014 WL 5870429 (Nov. 13, 2014), the 5th Circuit allowed a policyholder to pursue a claim for common law and statutory bad faith even though the policyholder repaired the alleged damage before the insurer was able to observe that damage.
In Ewing Construction Co. Inc. v. Amerisure Ins. Co., No. 12-0661, 2014 WL 185035 (Tex. Jan. 17, 2014), the Texas Supreme Court held that a general contractor who agrees to perform construction work in a “good and workmanlike manner” does not “assume liability” for damages arising out of the contractor’s defective work so as to trigger the contractual liability exclusion in a commercial general liability policy. This holding substantially clarifies the Texas Supreme Court’s prior holding in Gilbert Texas Construction LP v. Underwriters at Lloyd’s London, 327 S.W.3d 118 (Tex. 2010).
In Brechbill v. State Farm Fire & Cas. Co., No. 1111117, ___ So. 3d ___, 2013 WL 5394444, 2013 Ala. LEXIS 126 (Ala. Sept. 27, 2013), the Alabama Supreme Court held that there is only one, as opposed to two, causes of action for bad faith. More important, the Alabama Supreme Court held that a bad faith claim, no matter how plead, will not survive when an insurer can show a debatable reason for the denial.
The Property Adjuster’s Toolbox is a three-part webinar series presented by members of the firm’s Global Insurance Department. The presentations discuss the nuts and bolts of investigating and adjusting a claim under a first-party property insurance policy.
Due to changes effective January 1, 2013, the Florida Motor Vehicle No-Fault Law now codified the insured’s obligation to submit to an examination under oath. At first it may seem odd that the Florida legislature had to go to such great lengths to incorporate, and explicitly condition, the receipt of no-fault benefits on the insured’s submission to an examination under oath. However, a brief look at the recent trends leading to this change demonstrates why the Florida legislature rewrote insurance contract law in the no-fault context.
The South Dakota Supreme Court in Bertelsen v. Allstate Insurance Co. (1) held that an insurer cannot avoid bad faith liability by claiming it did not know about controlling claims handling statutes, and (2) reaffirmed that an insurer cannot rely upon claimants to provide a copy of the applicable laws (i.e., a copy of the claims handling statutes), especially in the absence of a request.
The New York Court of Appeals, New York’s highest state court, recently held – in what appears to be a new position in New York – that an insurer that breached its duty to defend could not later rely on otherwise applicable exclusions to deny coverage for indemnification.
In its recent decision in Powell v. Cherokee Insurance Company, Case No.: 5:09-CV-00205, the U.S. District Court for the Western District of Kentucky reaffirmed that in a third-party bad faith lawsuit alleging failure to timely settle a personal injury claim, the third-party claimant must produce evidence of conduct by the insurer that is outrageous, because of the defendant’s evil motive or his reckless indifference to [her] rights in order to establish a bad faith claim under the Kentucky Unfair Claims Settlement Practices Act (UCSPA).
In what may be the continuation of a trend toward the erosion of the attorney-client privilege and work product doctrine in bad faith litigation, another court has held that an insurer's communications with defense counsel retained for the insured in an underlying liability suit are discoverable and not subject to the attorney-client privilege or work product doctrine in a subsequent third-party bad faith lawsuit, under Georgia law.
Earlier this year, the U.S. District Court for the Southern District of Texas ruled an insured can pursue its bad faith claim even where the insurer made timely payment of the appraisal award and the court dismissed the breach of contract claim on summary judgment. Intermodal Equip. Logistics, LLC and Sea Train Logistics, LLC v. Hartford Accident & Indem. Co., No. 3:10-cv-00458 (S.D. Tex. Galveston Div. May, 24, 2012).
On October 15, 2012, the U.S. District Court of Appeals for the 5th Circuit – applying Texas law – addressed another Cumis counsel matter. See Coats, Rose, Yale, Ryman & Lee, P.C. v. Navigators Specialty Ins. Co., No. 12-10055, 2012 WL 4858194 (5th Cir. Oct. 15, 2012).
Texas Supreme Court Revisits Ruttiger Extracontractural Liability in Workers' Compensation Claims All But Vanquished - Global Insurance Alert! - On June 22, 2012, the Texas Supreme Court, in Texas Mutual Insurance Company v. Ruttiger, withdrew its original August 26, 2011 opinion, substituting it with an opinion that even further limits a claimant’s extra-contractual rights in a workers’ compensation matter.
Florida Appellate Court Holds that Appraisal Award Constitutes a 'Favorable Resolution' and Permits Insured to Pursue Bad Faith Claim - Global Insurance Alert - The Florida District Court of Appeal, Fourth District, recently held that an appraisal award in favor of an insured constitutes the "favorable resolution" of an action for insurance benefits necessary to proceed with a statutory first-party bad faith action under Florida law. Trafalgar v. Zurich Ins. Co., 2012 WL 3822215 (Fla. App. 4 Dist. Sept. 5, 2012).
On May 31, 2012, the Florida Supreme Court rendered its 32 page, long-awaited decision in QBE Insurance Corp. v. Chalfonte Condominium Apartment Association, Inc. The court reaffirmed that Florida does not recognize the common law duty of good faith and fair dealing in the context of a first-party claim, a claimant only has a statutory first-party bad-faith cause of action, and Florida courts shall not rewrite insurance contracts.
On March 17, 2011, the Florida Supreme Court finally resolved years of speculation, conjecture, and debate regarding the seemingly endless boundaries of permissible discovery of attorney-client communications in the bad faith context. The Florida Supreme Court’s decision in Genovese v. Provident Life and Accident Insurance Company reaffirmed the sanctity of the attorney-client privilege and specifically conscripted it from falling into the Ruiz vortex of discovery in bad faith cases.
We take pride at Cozen O’Connor in addressing new developments that will affect our clients. In this issue, we include a special report on two new decisions from New Jersey on bad faith in the UM/UIM context.
In this issue, we consider a number of emerging issues and also identify key developments in coverage in 2007. We summarize new court decisions dealing with toxic torts, environmental coverage, insolvency and regulatory issues, and construction defect. We feature a key construction defect coverage case in Illinois with important implications. We address global warming in the context of directors with officers liability coverage. Finally, we discuss the emerging areas of fax blast and food contamination, and the impact of the reauthorization of TRIA.

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Raymond ROSEN, Plaintiff-Appellant, v. CIBA-GEIGY CORPORATION, Defendant-Appellee.
Before POSNER, Chief Judge, and CUMMINGS and BAUER, Circuit Judges. Michael Resis (argued), Paul Sarauskas, Querrey & Harrow, Chicago, IL, for plaintiff-appellant. Anne G. Kimball (argued), Kevin B. Reid, Elizabeth A. Sanders, Wildman, Harrold, Allen & Dixon, Chicago, IL, for defendant-appellee.
The defendant, Ciba-Geigy, manufactures a nicotine patch called “Habitrol.” The patch is affixed to the user's skin and delivers nicotine through the skin and into the bloodstream. The goal is to help the user break his cigarette habit by alleviating his craving for nicotine. The patch is available only by prescription. The instructions that accompany the patch warn both the physician and the patient that the patient should not smoke while wearing the patch and that a patient who has coronary artery disease should be carefully screened before the patch is prescribed for him. The plaintiff, Rosen, a heavy smoker all his adult life, had his first heart attack in 1987, followed by quadruple bypass surgery. He was told to stop smoking, but did not. He experienced chest pains and other cardiac symptoms in the following years, indicating a progression of his coronary artery disease. His previous heart attack, high blood pressure, cholesterol count, age (60 in 1992), and continued smoking placed him at high risk of having another heart attack.
In June of 1992 the cardiologist who was treating Rosen, Dr. Car, prescribed the Habitrol patch and told him not to smoke while wearing it. Rosen affixed the patch to his arm but continued smoking, as, we are told, 75 percent of patch wearers do. Upon awakening on the morning of the third day of wearing the patch, Rosen smoked two cigarettes and then took a bath. During the bath he removed the patch and immediately felt a numbing sensation in the same arm. Later that morning he experienced discomfort in his chest, went to the hospital, and was diagnosed as having had another heart attack. He later resumed smoking and has since had two more heart attacks.
This diversity suit claims that Ciba-Geigy was negligent in developing, marketing, and selling the Habitrol patch. What exactly the negligence is believed to consist in is unclear. It is also unclear why the plaintiff has pleaded negligence rather than, as is usual in a products case, strict liability-though in a case, such as this, involving an alleged defect in the conception or design rather than manufacture of a product, there may be no difference. Bammerlin v. Navistar Int'l Transportation Corp., 30 F.3d 898, 902 (7th Cir.1994); Flaminio v. Honda Motor Co., Ltd., 733 F.2d 463, 467 (7th Cir.1984). The suit was dismissed on summary judgment for want of an adequate showing of a causal connection between the patch and the heart attack, so the issue of the defendant's alleged breach of its duty of care was not explored. The plaintiff seems to believe either that the warnings of possible harm to people with coronary artery disease are inadequate or that the product is unreasonably dangerous, perhaps because the product is sold to addicts who can be expected to disregard any warnings. For purposes of this appeal we accept these beliefs, without of course vouching for their validity.
When an unusual event follows closely on the heels of another unusual event, the ordinary person infers a causal relation; so it was natural for Mr. Rosen to assume that the heart attack he experienced in June of 1992 was caused either by wearing or removing the patch. The inference is reinforced by the fact that nicotine is a principal ingredient of cigarette smoke, which is known to be a cause of coronary artery disease, and by the fact that the manufacturer of the patch had warned that it might have bad effects on persons who already have the disease. But lay speculations on medical causality, however plausible, are a perilous basis for inferring causality; and though Rosen refers to newspaper accounts of “an epidemic of heart attacks to patch users who smoked” while wearing the patch, we do not understand him to be quarreling with the proposition that without scientific evidence of a causal relation between the nicotine patch and his heart attack, as distinct from journalistic reports, he cannot prevail in this suit.
Rosen relied for his scientific evidence on the deposition of Dr. Harry Fozzard, a distinguished cardiologist and department head at the University of Chicago. Despite Fozzard's sterling credentials, the district judge ruled that his opinion concerning the role of the nicotine patch in Rosen's heart attack would not be admissible in evidence; and without that evidence Rosen's case was doomed. The judge also thought that Rosen could not prove causality because Fozzard said that the probability that Rosen would have had a heart attack anyway, nicotine patch or no, was 95 percent. But Fozzard did not say when that almost inevitable heart attack would have occurred; and the loss of even a small chance of averting a serious harm may be compensable under Illinois law (here applicable), as we noted recently in Murrey v. United States, 73 F.3d 1448, 1453-54 (7th Cir.1996); see also Doll v. Brown, 75 F.3d 1200, 1205-06 (7th Cir.1996).
So the district judge's decision can be sustained only if his ruling on the admissibility of Fozzard's evidence is upheld. Under the regime of Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), a district judge asked to admit scientific evidence must determine whether the evidence is genuinely scientific, as distinct from being unscientific speculation offered by a genuine scientist. As Judge Kozinski has emphasized in his opinion on remand from the Supreme Court's decision in Daubert, it is a daunting task for judges who do not have a scientific background (and most do not) to decide whether a scientist's testimony is real science or not. 43 F.3d 1311, 1315-16 (9th Cir.1995). But they must do the best they can, and we think the district judge was right (and certainly acting within the scope of his discretion) in concluding that Dr. Fozzard's testimony was not real science.
To reach this conclusion we do not have to become philosophers of science and set forth the necessary and sufficient conditions of “real” science. When the Supreme Court in Daubert told judges to distinguish between real and courtroom science, it was not with the object of discovering the essence of “science,” if there is such an essence. The object, we think, while conceding the uncertainty concerning the reach of the majority opinion discussed in the Chief Justice's separate opinion, 509 U.S. at ----, 113 S.Ct. at 2799, was to make sure that when scientists testify in court they adhere to the same standards of intellectual rigor that are demanded in their professional work. Cf. 509 U.S. at ---- - ----, 113 S.Ct. at 2796-97; O'Conner v. Commonwealth Edison Co., 13 F.3d 1090, 1106-07 (7th Cir.1994). If they do, their evidence (provided of course that it is relevant to some issue in the case) is admissible even if the particular methods they have used in arriving at their opinion are not yet accepted as canonical in their branch of the scientific community. If they do not, their evidence is inadmissible no matter how imposing their credentials. Regarding the second half of this test, the half involved in this case, we said before (but consistently with) Daubert that “an expert who supplies nothing but a bottom line supplies nothing of value to the judicial process․ Professor Bryan would not accept from his students or those who submit papers to his journal an essay containing neither facts nor reasons; why should a court rely on the sort of exposition the scholar would not tolerate in his professional life?” Mid-State Fertilizer Co. v. Exchange National Bank, 877 F.2d 1333, 1339 (7th Cir.1989).
Dr. Fozzard's deposition, while expressing what may be an insightful, even an inspired, hunch concerning the cause of the heart attack that Rosen experienced in June of 1992, lacks scientific rigor. The deposition offers neither a theoretical reason to believe that wearing a nicotine patch for three days, or removing it after three days, could precipitate a heart attack, or any experimental, statistical, or other scientific data from which such a causal relation might be inferred or which might be used to test a hypothesis founded on theory. The usual kind of heart attack, and the kind that Rosen has now had several times, is a myocardial infarction, which is a sudden, drastic reduction in the flow of blood to the heart as a result of plaque breaking loose from the walls of a coronary artery and forming a clot that blocks the artery. That smoking cigarettes can contribute to the formation of plaque and so play a causal role in heart attacks is now very generally accepted. Whether nicotine, which is only one ingredient of cigarette smoke, can have that effect is much less clear, despite Ciba-Geigy's warnings, which could, though required by the Food and Drug Administration, be overcautious. But let us assume that nicotine can contribute to the formation of plaque. Fozzard mentioned a study of dogs which found this; and though an automatic extrapolation from dogs to human beings would not be warranted, animal studies play an important role in human medical research. Missing from Fozzard's deposition, however, is any recognition of the distinction between the short-run and long-run effects of smoking, fatty diet, high blood pressure, diabetes, and the other well-known causal factors in coronary artery disease and hence in heart attacks. Wearing a nicotine patch for three days, like smoking for three days, is not going to have a significant long-run effect on coronary artery disease; that much is clear. In the long, gradual progression of Rosen's coronary artery disease those three days were a blink of the eye. The patch could have had no significance for Rosen's health, therefore, unless it precipitated his heart attack in June of 1992. That is an entirely different question from whether nicotine, or cigarettes, are bad for one's arteries.
We are baffled by Fozzard's failure to make this elementary distinction. Shoveling snow can precipitate a heart attack, but it cannot cause coronary artery disease. Eating an omelette every day can (in combination with a genetic or other abnormality that prevents the body from properly regulating the level of cholesterol in the blood) cause coronary artery disease; but eating an omelette three days in a row is exceedingly unlikely to precipitate a heart attack. Quitting smoking is, by inducing stress, more likely to precipitate a heart attack than smoking one more cigarette is likely to do. In this example an event has opposite short-run and long-run consequences for heart attacks-increasing the short-run likelihood and reducing the long-run likelihood. Exercise is a similar example. Nowhere in Fozzard's deposition is there an explanation of how a nicotine overdose (for remember that Rosen was smoking at the same time that he was wearing the patch) can precipitate a heart attack, or a reference to a medical or other scientific literature in which such an effect of nicotine is identified and tested. Since Fozzard is a distinguished cardiologist, his conjecture that nicotine can have this effect and may well have had it on Rosen is worthy of careful attention, even though he has not himself done research on the effects of nicotine. But the courtroom is not the place for scientific guesswork, even of the inspired sort. Law lags science; it does not lead it. There may be evidence to back up Fozzard's claim, but none was presented to the district court.
Dr. Car's deposition hints that a nicotine overdose might cause an arterial spasm that might in turn cause an infarct. But again no backing from scientific theory or data was offered. There is also no evidence concerning the level of nicotine in Rosen's blood when he had the infarct and Car's own conclusion was that the patch had not caused Rosen's heart attack-a conclusion that Rosen does not like, so he calls Car's deposition “waffling” and says that in it Car “several times made contradictory statements.” The district court was within its discretion in concluding that the scientific evidence of causation that the plaintiff offered was not admissible, and therefore in dismissing the suit.
The plaintiff also argues that the district judge taxed “exorbitant” costs, in particular $1,400 for copies, which the plaintiffs calls “outrageous.” The plaintiff has made no effort to substantiate these accusations, and we reject them.

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*The author is the co-author of the model Directive presented at the European Parliament in May 2016.
With an overwhelming majority, the European Parliament on 16 April voted in favour of the new law to protect whistleblowers in the European Union. The Directive sets leading standards and has become a prime example of how a concerted effort by civil society – NGOs, trade unions, journalists, scholars, and whistleblowers – together with the European Parliament can lead to progressive legislation and enhance tools that safeguard the rule of law in Europe.
Prior to this Directive, whistleblowers faced a paradoxical situation in Europe: they would be prosecuted at the national level, whilst celebrated for ‘promoting European values’ at the EU level, as in the case of LuxLeaks whistleblower Antoine Deltour. The European Parliament called upon the Commission to propose legislation since 2013, yet the Commission had rejected the calls noting lack of EU competences to legislate. The Council was also sceptical, as many member states do not have national laws in place. A key turning point was the presentation of the model Directive promoted by the Greens & European Free Alliance at the European Parliament in 2016. Protecting whistleblowers became inevitable after the EU witnessed the murder of two journalists, Daphne Galizia in Malta and Jàn Kuciak in Slovakia, who exposed corruption in their respective countries.
The Directive provides significant improvement in protecting whistleblowers and moves Member States closer toward an advanced legal framework. Indeed, as noted by the world’s leading NGO for whistleblowing, the Whistleblowing International Network, the EU ‘has raised the bar for all EU governments to lead the world in promoting gold standard protections for whistleblowers’ or as Commissioner Jourová remarked these ‘rules will be a game changer’.
The Directive covers workers in the public and private sector. More specifically, it includes civil servants, the self-employed, shareholders, management, administrative or supervisory bodies, volunteers, paid or unpaid trainees, contractors, subcontractors and suppliers, individuals disclosing breaches during a recruitment process and former workers. The Directive does not encompass EU officials. For a worker to be able to invoke the protection granted by this Directive, the worker must have reasonable grounds to believe that the information reported was true at the time of reporting and that the information fell within the scope of the Directive.
The Directive has a wide scope of protection not only in terms of who can be a whistleblower, but also in terms of policies that it covers. The Commission drew from many different Treaty provisions to ensure that reporting gaps are not created, although the disclosure should be related to a breach or abuse of EU law in any of the following issues: public procurement, financial services, prevention of money laundering and terrorist financing, product safety, transport safety, protection of the environment, radiation protection and nuclear safety, food and feed safety, animal health and welfare, public health, consumer protection, protection of privacy and personal data and security of network and information systems, protection of the financial interests of the Union, breaches of internal market rules, including competition and State aid rules or tax avoidance issues. Strictly national policies are not covered and neither are violations of worker’s rights and working conditions. The latter exclusion will be reviewed in future.
One of the most contested points since the Commission proposed the Directive last year is whether protection will be made conditional on the whistleblowers first reporting internally. The Commission proposal set out a three tier reporting process, and it envisaged a mandatory disclosure first and foremost internally in the organisation. Not only was such a proposal counter to the case law of the European Court of Human Rights on the issue, but also it would have caused more harm than good, especially in Member States that have legislation in place and do not demand such strict channels.
Indeed, the role of civil society cannot be stressed enough in this regard, as it played an invaluable role in making sure that the European Parliament amended the mandatory internal reporting. EP rapporteur Rozière understood these concerns and ensured that this piece of EU legislation meets the adequate standards rather than create uncertainty in legal protection. Making this her “biggest” priority, she succeeded in defending whistleblowers to choose the best means available for disclosure. The adopted Directive foresees that whistleblowers would be protected for reporting internally or for reporting directly to regulators and competent authorities. Reporting to the public still has strings of conditions, but if there were a risk of retaliation or low prospect of the reported breach to be addressed, whistleblowers would be protected if they reported to the public.
The Directive applies both in the private and public sector, including to local authorities. Channels for reporting must be set up by companies with more than 50 employees. Local authorities that have less than 50 employees or municipalities with less than 10,000 inhabitants are exempt from the obligation to set up channels of reporting. More guidance on how local and regional authorities should ensure protection for whistleblowers could nevertheless be found in a Resolution of the Council of Europe, which was also voted with sweeping majority earlier in April 2019 by the Congress of Local and Regional Authorities, laying out in detail recommendations and the most recent data on the matter.
A good law in the books is of little use if its implementation in practice falls short. It will be of outmost importance that the Member States transpose this Directive in its full spirit and even push higher standards where possible. Member States will have two years to transpose the Directive to national law and civil society will continue to monitor closely and possibly facilitate national debates in how whistleblowers should be protected. After the scandals of LuxLeaks, PanamaPapers and Cambridge Analytica, citizens are becoming increasingly aware that whistleblowers play a crucial role in exposing wrongdoing and should not pay a personal price for defending public interest. National governments should take note of this public opinion and implement the EU Directive to its fullest.
Today, the European Parliament is due to approve a revision of the law on the EU visa code, which sets out the basic rules on how to get a short-term visa to visit Schengen countries. (Update: the EP has voted in favour of the law.) Since this law was previously agreed with the EU Council, it is likely to be finally adopted by the Council in the near future. This law simplifies the visa application process a little, in return for increased application fees. But more significantly, it integrates EU visa policy even more closely with the EU’s external migration control policy, providing for incentives and sanctions for non-EU countries which respectively cooperate or fail to cooperate on readmission. (Parts of this blog post build on my previous post on the visa code proposal, before the recent agreement on the final text).
The rules for issuing short-term visas are set out in the Visa Code, adopted in 2009. The CJEU has clarified some key points of the Code, ruling that: in effect it creates a right to a visa if the conditions are satisfied, although Member States have flexibility over how to apply those conditions (Koushkaki, discussed here); there must be a possibility of judicial review as part of the appeal process (El-Hassani); and “safe passage” visas for refugees in need of protection are not covered by the Code (X and X).
The Code concerns “Schengen visas”, ie visas which allow travel across the entire Schengen area. As such it applies to the EU countries fully applying the Schengen rules (all Member States except the UK, Ireland, Croatia, Cyprus, Romania and Bulgaria) as well as the non-EU Schengen associates: Norway, Iceland, Switzerland and Liechtenstein.
The list of non-EU countries whose citizens do (or do not) need a visa to visit the Schengen area is set out in a separate visa list Regulation, which was recently amended to waive visas for UK citizens after Brexit, as I discussed here. (Note that proposals for visa waivers for Turkey and Kosovo are on hold). In practice, visa requirements are waived for most of the Americas, most neighbouring European countries, higher-income countries in Asia/Pacific and a couple of Middle Eastern States (Israel and the United Arab Emirates). Conversely, visas are required for visitors from lower-income Asian and Pacific States, the rest of the Middle East, most of Africa and the Caribbean (except for some smaller islands), a few Latin American countries and the bulk of the former USSR (most notably Russia).
There is also separate EU legislation to set up a “travel authorisation” system (see discussion here), which will apply to all non-EU countries with a visa waiver but without a free movement agreement with the EU. As things stand, this law will apply to the UK, unless some special exemption is requested and agreed. A travel authorisation is similar to a visa in that it requires a prior authorisation to travel, but will cost less and be valid for much longer.
The visa code is also separate from (but closely linked to) the EU law setting up a Visa Information System, a database of information on applicants for Schengen visas. Although the Commission also suggested a revision of this law in 2018, and the EP and the Council adopted their positions on this text, the two institutions did not agree between themselves before the end of the EP’s five-year session. So they will negotiate on this in the next EP session. (The proposal would, among other things, provide for fingerprinting 6-year-old visa applicants, and extend that system to apply to long-stay visas and residence permits).
The law approved by the EP today is the second attempt to revise the visa code. The first proposal dates to 2014, and focussed on economic issues, in particular aiming to facilitate tourism. A parallel proposal for a “touring visa” would have provided for an extended stay for those visiting multiple Member States for a longer period, as part of an orchestra or circus, for instance. (I discussed the details of both proposals here). The 2014 proposal also included provisions on facilitating the travel of EU citizens’ non-EU family members (discussed here), and, as noted already, it was an opportunity to argue for explicit “safe passage” visas to be added to the rules (as discussed here). However, it ultimately failed, because the EU Parliament and Council could not agree on whether it should include those “safe passage” visas. In light of the perceived “refugee crisis” of 2015-16 in the meantime, the 2018 proposal focussed instead time on security concerns, rather than economic growth.
The Commission withdrew both 2014 proposals in light of the negotiation deadlock, and tabled a revised visa code proposal in March 2018. (It did not try to revive the “touring visa” proposal). This was met with much interest in the Council, which adopted a negotiation position on the proposal already by June 2018. I discussed the Council’s position further in a previous blog post. The European Parliament adopted its position in December 2018.
The Commission’s 2018 communication on visa policy is a good overview of the purposes of the proposal. In addition to the main focus on security – which takes the form of penalties for non-EU countries that do not cooperate with the EU on readmission policy – it contains a limited number of simplifications for legitimate travellers. The Commission dropped the proposals to simplify travel for EU citizens’ family members, and made more suggestions to simplify the rules on multiple entry visas as compared to 2018.
One key feature of the new law is the power to punish countries that do not cooperate with the EU on readmission (by raising visa fees, requiring more documents, slowing down processing times, and limiting the issue of multiple-entry visas), following a diplomatic process in which the EU will threaten these sanctions if no cooperation is forthcoming. (It’s already EU policy to link treaties simplifying the issue of visas to readmission treaties, but this policy will now become unilateral). At the behest of the EP, it will also be possible to offer carrots as well as sticks: lowering visa fees, speeding up processing times, and issuing multiple-entry visas with longer validity, where the country concerned is ‘cooperating sufficiently’ on readmission.
On other issues, it will be possible for travellers to apply for a visa six months in advance, rather than three, although they should also apply (except in cases of urgency) at least 15 days before they plan to travel. Professional, sporting, cultural or educational bodies can now apply for visas on behalf of their staff. The requirement to appear in person (usually subject to a waiver in practice) will only apply when registering fingerprints, although they might also be submitted electronically.
Visa application fees will rise from €60 to €80, and from €35 to €40 for 6-12 year olds, and the Commission will now have the power to revise the fee every three years. The mandatory fee waiver for researchers is extended to apply not only where they are carrying out research, but also when they are attending seminars or conferences. (Other mandatory fee waivers, for children under six, pupils and students, and NGO representatives at youth conferences or events, are retained.) The optional fee waivers for diplomats and youth attendees at conferences or events are retained, and the optional fee waiver for children is extended, to apply to children up to 18 years old (not just 12 as in the current code). The new “punishment” clause will raise the visa application fee to €120 or €160 for travellers from countries that are judged not to cooperate on migration. Service providers will be able to charge higher fees than they do now in some cases.
The current rule on deciding on a visa application within 15 days will be kept (the Commission had proposed to reduce it to 10 days), although the length of the extended period in certain cases will be cut (45 days, instead of 60).
Streamlining the current rules on multiple entry visas, such visas will be available lasting for one, two or five years will be available, based on prior lawful use of a visa. The final text dropped the Commission’s proposal to refer to judicial review in the event of an appeal against refusal of a visa, but this cannot change the legal obligation to provide for such a review, since the CJEU ruling on this issue (El-Hassani, noted above) based this obligation on EU primary law: the EU Charter of Fundamental Rights. The Commission proposal to issue visas at the border in order to encourage tourism was also dropped, as was the current law’s possibilities of having “co-location” and “common application centres”, as they have been overtaken by events – the trend of outsourcing the visa application process to private entities. As a partial substitute, the revisions will simplify the rules which apply when one Member State represents another one for visa applications.
The European Parliament has ultimately gone along with the bulk of the Commission proposal and Council amendments, giving up on the simplification of travel rules which the Commission initially proposed in 2014, including for EU citizens’ family members, as well as the “safe passage” issue (on which the EP has passed a non-binding resolution). There are some modest facilitations of travel, in particular as regards multiple-entry visas and some additional fee waivers, in particular as an option for older children.
The readmission punishment and incentive clauses form part of the EU arsenal of stricter migration control policies, such as arrangements with Turkey and Libya and with greater internal and external border checks, including the expanded powers for Frontex also approved by the EP today. Whether these changes will be effective remains to be seen; there will presumably still be juicier carrots offered via the EU-Africa funds offered to States which cooperate with the EU’s increasing attempts at “remote control” of migration. Whether the new policy will work in practice, or – even if it does work – satisfy those voters who remain angry despite reduced migration flows, equally remains to be seen.
With the political agreement on the new Regulation reached at the beginning of April, approved by the European Parliament today, the European Border and Coast Guard Agency, Frontex, is now closer than ever to its original conception as a fully-fledged European Border Police Corps. The new law, with its enhanced rules on removal to non-EU countries, will be approved in parallel to changes to the EU's visa code aimed at readmitting more irregular migrants to non-EU countries, discussed here.
The Commission’s proposal was presented in September 2018 and was agreed hastily within only six months, as the goal was for an agreement to be reached within the current Parliament before the European Parliament elections in May 2019. The new agency is expected to become operational this summer.
Moving towards full operational capacity the agency will have its own equipment and personnel, combined with an impressive budget, and is vested with an even broader mandate in border surveillance, returns, and cooperation with third countries.
The ambitions of the Commission have been accepted almost in their entirety. Notably, however, the proposal regarding controlled centres, where relevant EU agencies and participating states would cooperate in enforcing rapid procedures for either asylum or return, and the power of the agency to coordinate return operations from one third country to another did not survive the trilateral negotiations.
The new Regulation wants to address two main challenges. Firstly, it aims towards greater autonomy and operational effectiveness. The heavy reliance of the agency in the voluntary contributions of member states in staff and equipment resulted in persistent gaps that impacted the effectiveness of the agency and its flexibility to deploy border guard teams in a short time-frame.
Secondly, the 2019 EBCG Regulation comes in response to the call of the European Parliament for full implementation of the IBM Strategy, regarding European Integrated Border Management, which is considered vital for the functioning of the Schengen area. Improving the effectiveness and capabilities of the agency to achieve higher impact levels, while reducing the hold of member states over its operations, and increased cooperation with third states to promote European border management and return standards, while attaining to fundamental rights norms are key components of the IBM Strategy.
This blog focuses on three of the most significant changes brought by the new Regulation from a fundamental rights angle and looks into whether the expanded mandate and powers are accompanied by an equally strong accountability regime. For a more detailed look into the overall changes, you may refer to an earlier blog on this next phase of the EBCG.
Currently, Frontex joint operations rely solely on the contributions of member states. Now, the agency acquires its own operational arm: a EBCG standing corps with broad executive powers. Starting with 5.000 operational staff in 2021, the standing corps will be fully operational by 2027 counting 10.000 staff members under the exclusive and direct control of Frontex.
Moreover, the agency can still make use of temporary deployments and long-term secondments from member states, while a rapid reaction pool of 3.000 members will be at its immediate disposal for rapid border interventions. The standing corps will have executive powers similar to the border guards and return specialists of the member states, including competence to perform identity checks and authorise or refuse entry.
One of the most highlighted changes concerns the enhancement of the agency’s mandate on returns of irregularly staying third country nationals to their countries of origin, which the new Regulation makes a top priority. Frontex is vested with a broad mandate in pre-return and return-related activities, including providing its own return escorts and return monitors and preparing the return decisions.
Such expansive powers increase the possibility for Frontex to be held responsible for fundamental rights violations during its returns, especially since such return flights will be conducted in the agency’s own aircrafts, by the agency’s own escorts.
The inherent sensitivity of forced returns to physical abuse and violations of the right to non-refoulement calls for increased accountability, in the meaning of more possibilities for the agency to answer for the impact of its activities upon fundamental rights.
Forced returns monitoring is a crucial safeguard during return operations. As a step towards that direction, the new Regulation allows the Council of Europe’s Committee on the Prevention of Torture (CPT) to conduct visits to monitor the situation on board.
However, the EBCG Regulation does not abide by the safeguards set down in the Return Directive (Art. 8(6)), which calls for an effective monitoring system. This refers in particular to the independence of the monitoring mechanism, requiring that the authority that carries out the returns is not the same as the one in charge of monitoring the compliance with fundamental rights. The EU Fundamental Rights Agency (FRA) has suggested that the same standards should apply to the agency and has suggested in its report to the European Parliament the involvement of an international body with human rights monitoring expertise. Nevertheless, no such provision for an independent monitoring body with relevant expertise and sufficient resources is made in the Regulation.
Finally, the role of the agency in drafting the return decision which would be subsequently issued by the member states raises its own fundamental rights concerns. Even though the ultimate authority for the return decision rests with the member state, such powers may lead to the informal beyond mandate influence of the agency. This would not be unprecedented. Such concerns have been expressed by NGOs as well as the EU Ombudsman with respect to the extent of the involvement of the European Asylum Support Office (EASO) in assessing asylum applications in Greek hotspots, as in practice the national authorities rely disproportionately on the agency’s decision.
Besides the obvious questions of breach of mandate, state sovereignty, and jurisdictional independence that this raises, mistakes in the issuing of such preliminary decisions may lead to a violation of the rights to family life and non-refoulement or the rights of the child.
The FRA has brought this new power into question, wondering how Frontex deployed staff, which typically originate from different member states and will not be familiar with the national legal framework or the host country language, would be able to ensure compliance with the fundamental rights safeguards emanating from the Return Directive as these have been transposed into national law.
Art. 49(1) of the EBCG Regulation provides that the agency’s return activities will be carried out in respect of fundamental rights. However, the concrete safeguards issued in the Regulation are not adequate to guarantee such protection.
The information sharing aspect of the agency’s work is also significantly strengthened along with the creation of new specialised structures and mechanisms, while EUROSUR is encompassed in the EBCG Regulation aiming at improving its functioning, and enlarging its scope to cover most IBM components.
In the context of its new powers, Frontex can exchange information with EU agencies, including Europol as well as third countries. This, combined with the interoperability-related competencies of Frontex, creates a quite broad mandate for the processing and especially the sharing of data both within the EU and outside, involving EU institutions, agencies, and law enforcement authorities.
Moreover, as part of the agency’s expansive mandate on returns, Frontex is tasked with developing and operating a centralised return management platform for processing all information. This centralised platform allows for an automated transfer of data.
The information processed in the centralised platform and also shared with third states may include personal data, biographic data or passenger lists, as well as information obtained during the personal asylum interview. This can prove detrimental for the safety of people seeking protection, while it would undermine the trust that is necessary for the asylum interview to allow applicants to present the grounds for their applications.
To the contrary, safeguards seem to even be reduced in the EBCG Regulation, as it fails to correctly transfer the guarantee that is enshrined in the EUROSUR Regulation (Art. 20(5)), that any exchange of data that can be used to identify persons with a pending request for international protection or who are at serious risk of being subjected to torture or other fundamental rights violations are prohibited. In the EBCG Regulation this safeguard is only limited to personal data (Art. 90(4)). Other types of data, that is not covered by this safeguard may still reveal to the state of persecution information regarding a person’s political, religious or philosophical beliefs, or their attempt to flee to the EU and request asylum. This may expose the person or their family to retaliation measures, or allow the country of origin to stop them from reaching safety.
All in all, the new powers of Frontex regarding data processing and sharing can have a major impact on the rights of persons, beyond the right to the protection of personal data.
The most significant changes that reflect the increased accountability of the agency in the light of its new powers concern the European Parliament, the Fundamental Rights Officer and the individual complaints mechanism.
The new EBCG Regulation takes steps towards increased political accountability, involving the European Parliament and national parliaments. To ensure effective scrutiny by the democratic institutions, the Regulation introduces greater inter-parliamentary cooperation.
The agency’s management board is required to attend joint meetings of the European and national parliaments, while it could – not should – invite an expert of the European Parliament to attend its meetings.
Finally, the European Parliament has now a new role with respect to cooperation agreements conducted with third countries. It will be informed before a working arrangement with a third country is concluded about the parties and the content of the agreement, but the agreement itself will not be shared. Similarly, when negotiating a status agreement with a third country, the Commission will make a fundamental rights assessment relevant not to the whole country, but only to the areas covered by the agreement, of which assessment the European Parliament will be informed.
Moreover, the role of the agency’s Fundamental Rights Officer (FRO) is enhanced as she acquires a preventive function, being tasked with providing opinions upon all operational plans, as well as pilot projects and technical assistance projects in third countries. Furthermore, Frontex liaison officers are tasked to cooperate with her. What is more important is that FRO is tasked with publishing an annual report regarding the protection of fundamental rights in the agency’s activities, which shall also include information about the complaints mechanism and the implementation of the Fundamental Rights Strategy.
In the light of her already increased mandate, the workload of the FRO has significantly increased without a proportionate increase in the necessary staff and resources, so that it has become increasingly difficult for her to fulfil her tasks. The agency recruited in November 2018 additional staff to support the FRO, but this only includes junior staff. Art. 107 (2a) of the Regulation promises that the FRO will be provided with necessary resources and personnel, however, without making concrete commitments, like in the case of the number of border guards.
Finally, the crown jewel of administrative accountability, the individual complaints mechanism introduced in 2016, becomes all the more relevant with the expansion of the agency’s activities in third countries where victims of violations do not have access to EU judicial remedies due to lack of jurisdiction. Notably, the reach of the complaints mechanism is now expanded to cover operational activities in third countries.
Moreover, the FRO will draft a standardised complaints form in an effort to enhance the accessibility of the procedure. She will also recommend to the Executive Director the appropriate follow-up when the complaint concerns a staff member of the agency, which has been specified in the Regulation to include ‘referral to civil or criminal justice procedures’.
This, however, still remains in the discretion of the Executive Director, as the Regulation does not introduce requirements as to the appropriate follow-up. More importantly no remedy is made available against the admissibility decision of the FRO or the decision of the Executive Director. Moreover, the mechanism remains highly inaccessible to ‘new arrivals’, including unaccompanied minors, while the FRO was not allowed to initiate a complaint ex officio.
Although these changes are certainly a step to the right direction in terms of increased accountability, they nevertheless do not correspond to the expansion of powers and competencies of the agency in any of the areas of its activity discussed here.
In particular, the role of the European and national parliaments remains fairly limited to be able to ensure effective political accountability, while, unless the FRO is provided with sufficient staff and resources, she will not be able to fulfil her preventive role. Finally, there is still ample room to be covered for the complaints mechanism to meet the international standards of accessibility, institutional independence, and adequate capacity for evidence-based investigation.
Despite the Court of Justice’s prominent role in the enforcement of EU law via the infringement procedure of Article 258 TFEU and the preliminary ruling procedure of Article 267 TFEU, the Court of Justice has predominantly been left out the enforcement of EU values, and the rule of law in particular. The EU Treaties remain silent with respect to an explicit competence for the Court of Justice to reinforce the rule of law in case deviant behaviour of Member States emerges. In addition, rule of law deficiencies have been prominently dealt with within the political discourse of dialogue in the context of the Rule of Law Framework and the Article 7 TEU procedure. However, the Court of Justice’s Associação Sindical dos Juízes Portugueses judgment of 2018 has been a turning point in this regard. This blogpost will comment on the hearing in the Commission v. Poland case of 8 April 2019 (C-192/18) (hereafter ‘Ordinary Courts case’) and the opinion in the Commission v. Poland case rendered on 11 April 2019 (Case C-619/18) (hereafter ‘Supreme Court case’), two infringement procedures launched by the Commission before the Court of Justice after the Associação Sindical dos Juízes Portugueses judgment.
Although the outcome of the Associação Sindical dos Juízes Portugueses judgment as such cannot be considered to be ground-breaking, the reasoning of the Court of Justice, in contrast, is all the more so. The Court of Justice, after all, established in this judgment that national courts which may be called upon to apply EU law, have to guarantee an effective judicial protection in accordance with the second subparagraph of Art. 19(1) TEU (para. 40 of the judgment). This ‘may’ formulation suggests that this applies to any court within the meaning of EU law. As Pech and Platon stipulate, “most if not all national courts are, at least theoretically, in this situation”, and therefore have to fulfil the requirement of effective judicial protection (see L. Pech and S. Platon, “Rule of Law Backsliding in the EU: the Court of Justice to the rescue? Some thoughts on the ECJ ruling in Associação Sindical dos Juízes Portugueses”, on this blog).
As a consequence of the Associação Sindical dos Juízes Portugueses judgment, judicial independence has become a criterion verifiable by the Court of Justice, and as such confirmed as essential in the enforcement of the rule of law (para. 40 of that judgment; see also last year’s judgment in LM (discussed here), para. 48). The Court of Justice has thereby shown itself committed to upholding the rule of law within the EU by operationalising the rule of law as enshrined in Article 2 TEU, reinforcing this value with a reference to the principle of sincere cooperation as enshrined in Article 4(3) TEU. This is necessary in order to achieve the proper functioning of the judicial cooperation system pursuant the preliminary reference procedure under Article 267 TFEU (Associação Sindical dos Juízes Portugueses, paras. 41-43). Judicial independence not only presupposes that judges are remunerated sufficiently, but in light of the rule of law crisis, more importantly, also the protection against the removal from the office of the members of the national courts (Associação Sindical dos Juízes Portugueses, para. 45).
Poland has made several reforms regarding the functioning and organisation of the Constitutional Tribunal, the Supreme Court and the ordinary judiciary whereby the independence of these bodies has been endangered (for an extensive overview of all the measures Poland has adopted over the last two years, see the Commission’s Reasoned Proposal in accordance with Art. 7(1) of the Treaty on European Union regarding the rule of law in Poland. In particular, the Polish government has adopted a law on the basis of which the general retirement age of the Supreme Court judges and the judges of the ordinary courts is lowered from 70 to 65, entailing that all judges currently in office who attained the age of 65 years, or will attain that age within 3 months from the entry into force of the law, will be retired. Following the reasoning of the Court of Justice in Associação Sindical dos Juízes Portugueses, this measure would – to use the Court of Justice’s formulation – “impair the independence” of relevant courts and their members and as such be held incompatible with Art. 19(1) TEU, because these members of the judiciary are removed from their offices before the end of their initial term.
The revolutionary Associação Sindical dos Juízes Portugueses judgment is the initial impulse of a series of cases before the Court of Justice within the context of the compatibility of national measures concerning the national judicial system with the standards following Article 19 TEU. Both the Commission, in the form of infringement procedures pursuant to Article 258 TFEU, and the national judges, in accordance with the preliminary ruling procedures as foreseen in Art. 267 TFEU, have raised issues about developments in Poland (see for instance the infringement procedures respectively lodged by the Commission against Poland on 15 March 2018 (Case C-192/18, the Ordinary Courts case) and on 2 October 2018 (Case C-619/18, the Supreme Court case), and the preliminary questions respectively referred by Polish judges on 9 August 2018 (Case C-522/18), on 3 September 2018 (Case C-558/18) and on 5 September 2018 (Case C-563/18).
On the 8th of April 2019, the hearing of the Ordinary Courts case took place before the Grand Chamber of the Court of Justice. This case concerns, in particular, the Commission’s claims that the Polish measures lowering the retirement age applicable to the ordinary court judges, on the one hand, and granting the Minister for Justice the discretionary power to decide whether or not to extend the active service of the judge concerned, on the other hand, are contrary to Article 19 TEU, read in conjunction with Article 47 EU Charter (the right to a fair trial before an independent court). Although the Commission also raised the issue regarding the distinction between the retirement age for men and women working as a judge in its infringement action, the Court of Justice asked the parties to focus solely on the first plea during the hearing.
The Commission started with emphasising the importance of the adherence to the principle of effective judicial protection enshrined in Artilce 19 TEU, which is further clarified by Article 47 EU Charter as the right to be heard by independent and impartial judges, because the principle of effective judicial protection is not only the very essence of the rule of law, but also the very basis of the EU. Indeed, the Court decided already in the Achmea case (discussed here) that the EU judicial system, consisting of the Court of Justice and the national courts as EU courts, aims at ensuring the uniformity, effectiveness and autonomy of EU law (Achmea, para. 37).
Non-adherence to the principle of effective judicial protection would affect these key characteristics of EU law and the EU as such. Therefore, the contested measures violate the principle of judicial independence, and, thus, also the principle of effective judicial protection as foreseen by Article 19 TEU. In particular, as the Commission clarified by answering a related question posed by the Judge Rapporteur, the discretion of the Minister of Justice is problematic in the light of Article 19 TEU since he or she can decide to grant or refuse an extension of the active service of a judge beyond the retirement age without clear criteria, without motivation, without a possible appeal and without a clear time framework of the prolongation period. Referring back to the case law of the European Court of Human Rights with regard to Article 6(1) ECHR, the Commission invokes that this can be qualified as a means to put pressure on the judiciary, which constitutes an infringement of Art. 19 TEU.
Furthermore, the Commission reminded the Court of Justice of its own interim measures order of 17 December 2018 in the Supreme Court case (see also the interim measures order of November) in which it refuted that the Commission based itself on mere hypotheses and it held that the contested provisions could lead to a violation of Article 19(1) TEU (paras. 55-56 of that order). Nevertheless, the Polish representative argued that the contested provisions of the Polish law have been amended in compliance with EU law, as a consequence of which the Commission should withdraw its application of Article 258 TFEU. Moreover, the Polish representative emphasised that the Minister of Justice has no wide scope of discretion, as the Minister considers the workload of the other ordinary courts and the need for human resources in other courts when granting or refusing an extension of the activity of an ordinary court judge.
At the same time, the Polish representative acknowledged, in response to a question raised by the Judge Rapporteur, that the Minister of Justice does not have to motivate his decision and that there is no judicial review against this decision. During the hearing, the President of the Court noted that the lack of motivation makes the situation all the more suspicious. The Judge Rapporteur also appeared puzzled on how the retirement of a certain judge will remedy the workload in other courts. Instead she suggested the transfer from personnel as a possible solution. The Polish representative explicitly rejected this “opinion” of the Judge Rapporteur by stating that the Polish law does not foresee in such a possibility.
More fundamentally, the Polish representative submitted that the Commission’s infringement action is an unjustified interference in the national judicial system of a Member State, which is a purely internal affair. The lowering of the retirement age cannot be considered to be a removal of judges from their office since it would simply be an exception to the constitutional rule regarding the general retirement age, justified by the need of effective allocation of judges among the various ordinary courts in Poland.
Following this argument the President requested the Commission to divulge on whether the competences conferred on the EU by virtue of Article 19(1) TEU can be limited considering the autonomy of the Member States to organise its judicial system. The Commission conceded that it had to respect the attribution of competences and the autonomy of the Member States regarding the functioning and organisation of its judiciary but equally noted that Member States have to guarantee some minimum standards that have to be adhered to, as the Court of Justice has specified in its previous case law, such as the Associação Sindical dos Juízes Portugueses and LM judgments. The Polish representative, nevertheless, objected the use of double standards regarding the principle of judicial independence by the Court of Justice, since the renewal of a judge’s mandate at the Court of Justice for 6 years entails, similar to the extension of a Polish ordinary court judge, a decision of the governments.
Of course, the decision of Member States’ governments with regard to the (re)appointment of the Court of Justice judges can hardly be compared to the discretionary power of the Minister of Justice to grant or refuse an extension of the active service of an ordinary court judge. Admittedly, the appointment procedure for judges at the Court of Justice is not completely transparent (see for instance M. A. Simonelli, “Quod Licet Iovi non Licet Bovi. The Appointment Process to the Court of Justice and the Reform of Judiciary in Poland”, on the European Law Blog). Yet, in accordance with Article 253 TFEU and Article 255 TFEU, criteria, such as the independence beyond doubt and the right qualifications, have to be considered and a(n) (re)appointment is decided by common accord of the governments of the Member States. In addition, a decision will be taken after the consultation of an expert panel consisting of former members of the Court of Justice and the General Court, members of national supreme courts and lawyers of recognised competence.
It is now up to the Advocate General to deliver his opinion in the Ordinary Courts case, expected on the 20th of June 2019, before the Court of Justice will render a decision. However, his opinion in the Supreme Court case was released on the 11th of April 2019 and already sheds light on the outcome of his opinion in the Ordinary Courts case. The Supreme Court case deals with the Polish measures lowering the retirement age of the Supreme court judges from 70 to 65 years of age and granting the President of Poland the power to extend the active service of Supreme court judges. As a result it is very much comparable to the Ordinary Courts case.
As compellingly highlighted by Advocate General, the Supreme Court case will be the first infringement action in which the Court of Justice has to rule on the compatibility of measures adopted by Member States regarding the organisation of the national judicial system with the standards foreseen in Art. 19(1) TEU (Opinion, para. 47). According to the Advocate General, the Court’s decisions in these currently pending cases will strengthen the respect for the rule of law by Member States and will further offer guidance on the standards upon which the rule of law is based. The fact that an Article 7(1) TEU procedure has been invoked against Poland does not change the admissibility of the case. Notably, the Advocate General applied a clear delimitation between both procedures, Article 258 TFEU being a legal procedure and Article 7 TEU a political procedure, as they have a different scheme and purpose (Opinion, para. 50).
The Advocate General examines the scope of application of Article 19(1) TEU and Article 47 EU Charter separately, as Advocate General Saugmandsgaard Øe also proposed in his opinion in the Associação Sindical dos Juízes Portugueses case. Yet, the Court of Justice reformulated the question in the Associação Sindical dos Juízes Portugueses case by leaving out a reference to Article 47 EU Charter. The Court of Justice merely referred to Article 47 EU Charter in order to explain that the principle of effective judicial protection requires that everyone has a right to an effective remedy before a tribunal which is independent and impartial.
By relying merely on Article 19(1) TEU, the Court of Justice refrained from opening a Pandora’s box on the discussion of the scope of application of the Charter. Although some commentators have argued to revisit the scope of application of the Charter, as set out in its Article 51, an extensive reading of this provision could be regarded as an unjustified intervention in the Member States’ national affairs endangering the sovereignty of national constitutional courts to observe the rule of law and fundamental rights enshrined in the national constitutions (T. von Danwitz, “The Rule of Law in Recent ECJ Jurisprudence” in W. Schroeder (ed.), Strengthening the Rule of Law in Europe, from a common concept to mechanisms of implementation, Hart Publishing, Portland, 2016, (155)165).
Indeed, this ‘national sovereignty’ argument has several times been repeated by the Polish representative during the hearing of the Ordinary Courts case. During the hearing however, the Commission highlighted that Article 47 EU Charter is merely called upon to help interpret the principle of effective judicial protection of Article 19(1) TEU. Moreover, the infringement action focuses on a breach of Article 19(1) TEU as a consequence of the Polish measures lowering the retirement age of the ordinary courts judges and the discretionary power of the Minister of Justice to decide on a possible extension of judicial mandates. The emphasis then is on the material scope of application of Article 19(1) TEU. In this regard, Advocate General Tanchev argues that Member States have the obligation to guarantee the full application of EU law and the judicial protection of individuals under Art. 19(1) TEU, which entails that measures impairing the independence of national courts hinder the EU Courts from carrying out their mandate under Article 19(1) TEU (Opinion in Commission v. Poland (Supreme Court case), para. 59). The Court of Justice thus has the competence to verify whether measures adopted by a Member State are in line with their obligations resulting from Art. 19(1) TEU.
As the Polish Supreme Court – mutatis mutandis the Polish ordinary courts – may rule on questions concerning the application or interpretation of EU law, and the infringement action concerns an alleged breach of the rule of law, concretised by Article 19 TEU, the infringement action brought by the Commission before the Court of Justice in the Supreme Court case – mutatis mutandis the Ordinary Courts case – should be deemed admissible according to Advocate General Tanchev (Opinion in Commission v. Poland (Supreme Court case), para. 63).
Following this finding of admissibility, Advocate General Tanchev opines that Poland infringes Article 19(1) TEU on two accounts. Firstly by violating the principle of irremovability of judges and by violating the principle of judicial independence by granting the President of Poland the discretionary power to extend the active service upon the retirement age of a judge on the other hand.
Remarkably the Commission did not raise any arguments with regard to the irremovability during the hearing of the Ordinary Courts case, as it focussed on the discretionary power of the Minister. While it considered the lowering of the retirement age of the ordinary courts judges a relevant aspect of the overall discussion, it did not consider it as a breach of Article 19(1) TEU as such. In contrast the Advocate General stressed the principle of irremovability as one of the guarantees essential to judicial independence.
It is, furthermore, noteworthy how the Advocate General in the Supreme Court case is guiding the Court of Justice in defining the principle of irremovability by referring to soft law created by other international bodies, such as the Council of Europe, the International Bar Association, and the United Nations. In addition, the Advocate General highlights the value of such non-binding norms, as they imply normative consensus of rules and principles shared by the Member States or other jurisdictions which provide a useful reference for the Court of Justice (Opinion in Commission v. Poland (Supreme Court case), footnotes 51-52).
Namely, this principle of irremovability entails that a judge should have “a guaranteed tenure until a mandatory retirement age or the expiry of their term of office, and can be subject to suspension or removal from office in individual cases only for the reasons of incapacity or behaviour rendering them unfit for office. Early retirement should be possible only at the request of the judge concerned or on medical grounds, and any changes to the obligatory retirement age must not have retroactive effect” (Opinion in Commission v. Poland (Supreme Court case), para. 72). Moreover, in Associação Sindical dos Juízes Portugueses the Court of Justice assessed the circumstances of the case, such as the impact on the composition of the court, the nature of the legislation adopted in respect of the members of the court concerned, and the duration of the application of the legislation, to verify whether the lowering of the remuneration level was violating the principle of judicial independence. Advocate General Tanchev uses these factors to verify whether the lowering of the retirement age is breaching the principle of irremovability of judges (Associação Sindical dos Juízes Portugueses, paras. 46-50; Opinion in Commission v. Poland (Supreme Court case), para. 76).
Furthermore, the Advocate General adds that a sudden and unforeseen removal of a large number of judges creates difficulties in terms of public confidence. This argument could also be used to refute the closing remark of the Polish representatives during the hearing of the Ordinary Courts case, namely that the infringement procedure brought by the Commission is counterproductive and confuses the Polish judicial system. By lowering the retirement age and obliging a large number of judges to retire before the end of the initial termination of their active service, the Polish government precisely creates public confusion and uncertainty.
In respect to the discretionary power of the Polish President to extend the term of the office upon the retirement age of the Supreme court judge, Advocate General Tanchev holds that also this Polish measure is contrary to the principle of judicial independence enshrined in Article 19(1) TEU. In particular, the external aspect of judicial independence is violated, since the measure exposes the Supreme court judges to external intervention and pressure from the Polish President considering the link between the lowering of the retirement age and the requirement to request an extension of the retirement age to the President (Opinion in Commission v. Poland (Supreme Court case), para. 89). Applying these elements mutatis mutandis to the measure granting the Minister of Justice the discretionary power to grant or refuse an extension of the retirement age of the ordinary court judges, it seems obvious that the Advocate General would come to the same conclusion in his opinion on the Ordinary Courts case. The lack of clear criteria for granting an extension and the absence of judicial review against a refusal of the extension without a persuasive explanation of the Polish representative would a fortiori lead to the existence of external intervention and pressure from the Minister of Justice, contrary to Article 19(1) TEU.
Will the assist of the Court of Justice lead to the winning goal in the rule of law crisis?
Consequently, the opinion of Advocate General Tanchev in the Ordinary Courts case will probably not come as a surprise and will most likely be comparable, if not similar, to his opinion in the Supreme Court case. Considering the outcome of the Associação Sindical dos Juízes Portugueses case, it can be expected that the Court of Justice will act upon its judgment and ultimately take a firm stance in the rule of law crisis. As the political tools to enforce the rule of law are unable to cope with the rule of law deficiencies in certain Member States, the ‘legal route’ should be further deployed by the Court of Justice in light of the pending infringement and preliminary ruling procedures. Although much more has to be done by Poland in order to restore the independence of the judiciary in compliance with Article 19(1) TEU, the Court of Justice’s intervention by means of the interim measures in the Supreme Court case led to the reinstatement of the Supreme Court judges who were forced into early retirement.
Last week’s CJEU ruling in Tarola, responding to a preliminary reference from the Irish Court of Appeal, interprets yet another cryptic provision of the Citizenship Directive, art. 7(3) on retention of worker status. The ruling sits at the intersection of EU law on free movement of workers, and on free movement of citizens. It is about rights descending from the status of worker. Yet it concerns the situation of unemployed persons at the periphery of workers’ status, whose condition stretches into citizenship territory. For these reasons, the case provided an opportunity for the Court to blend the assertive approach of its case law on workers with the cautious attitude it has adopted in its recent case law on non-economically active citizens. The resulting judgment adds yet another chapter to the tormented story of access to social benefits in the context of free movement.
Mr. Tarola, a Romanian national, worked in Ireland in either an employed or self-employed capacity for several periods of a few weeks each in 2007, 2013 and 2014. In 2013 and 2014 he applied there for jobseeker’s and welfare allowances. His applications were refused on the ground that absent proof of ability for self-support and absent a sufficiently long employment record he had not demonstrated habitual residence in Ireland. In the resulting litigation, Mr. Tarola argued that he had the right to reside in Ireland for the six months following a two-week period of employment in July 2014 under art. 7(3)(c) of the Citizenship Directive. The argument did not convince the High Court, however it raised attention at the Court of Appeals that referred to the CJEU.
The referred question revolved around the interpretation of article 7(3)(c). More precisely, paraphrasing Advocate General Szpunar, the question was whether a Union citizen who works in another Member States for two weeks otherwise than on a fixed-term contract and then becomes involuntarily unemployed retains the status of worker and the right to residence that comes with that status.
Article 7(3)(c) of the Citizenship Directive is particularly convoluted. It provides for the retention of the status of worker for no less than six months in two hypotheses not clearly distinguished until yesterday’s ruling. The first situation is fairly straightforward: duly recorded unemployment following termination of a fixed-term contract of less than a year in duration. The second is more nebulous. The text refers in this respect to a person having ‘become involuntarily unemployed during the first twelve months’ and having registered as a job-seeker. The court found in particular that the text left two aspects undetermined: (i) the type of activity or contract in whose context a person became involuntarily unemployed and 2) the context of the ‘first twelve months’ phrase, whether first twelve months of any employment contract, of a fixed-term contract, of residence in the host Member State, or else (par. 35).
The court’s solution was that the provision allows retention of the status for workers “in all situations in which a worker has been obliged, for reasons beyond his control, to stop working in the host Member State before one year has elapsed, regardless of the nature of the activity or the type of employment contract entered into for that purpose”. (par 48) This interpretation was drawn from the context, purpose and origin of the provision of art. 7(3)(c).
The ruling concluded with a dictum inspired by the AG opinion and with a note to the referring court. The dictum is that persons residing on the basis of the Citizenship Directive, including those retaining the right to reside under art 7(3), are entitled to equal treatment with nationals. Hence if national workers who have worked only for a short period of time are excluded from social benefits, the exclusion applies also to migrant EU citizen workers. The note to the referring court was that it was accordingly for it to determine, in light of national law, whether Mr Tarola was entitled, under the principle of equal treatment, to the social benefits he was seeking.
At least three aspects in this judgment are worthy of note. A first one is the way the court treats the citizenship directive. A second one is the court’s note on entitlement to social assistance. A further one is the balancing exercise the ruling performs between protection of movement and residence rights and protection of state finances. These elements, respectively, help situate the judgment at three crossroads: the one between the law on free movement of workers, and the law on free movement of citizens; the one between EU law on equal treatment, and national law on welfare assistance; and the one between competing objectives pursued by EU free movement law.
With regard to the Citizenship Directive, the court sticks to the rule of interpretation it promises up front. The directive cannot be interpreted restrictively. And indeed the court offers a quite broad interpretation of its relevant provision. That the provisions of the Citizenship Directive require broad interpretation is no novelty. The court has repeated this rule of interpretation again and again in several cases. Yet in recent years it has not always as enthusiastically applied the same rule (a recent example is the SM case, treated here; a slightly older one is Singh and others). The court’s approach in Tarola is the result of a special conjuncture: the court is de facto ruling on the rights of a non-economically active citizen, but it is formally dealing with a worker-it is not in question indeed that Mr. Tarola meets the EU law definition of worker (par. 25)-. This allows the court to intersect, if not the law, the interpretive approaches belonging to two different strands of its case law: the assertiveness of its case law on workers, and the caution of its recent case law on non-economically active citizens. Echoes of the former allow the court to deliver, from a relative comfort zone, a result that bears on the social protection of Union citizens.
The caution that characterizes the case law on non-economically active returns, on the other hand, through the court’s drawing of a clear boundary between right to equal treatment and entitlement to social assistance. In the final dictum, the court emphasizes that the right attached to a worker’s, or citizen’s, right to residence, is one of equal treatment. Retention of the status of worker, and of the corresponding right to reside, does not necessarily mean entitlement to obtain social assistance. It simply means entitlement to apply for it, and obtain the same response as a national would get. This sounds as a reminder, and a word of reassurance, to the Member States that they are free to organize their welfare systems as they wish. At the same time the court gives the Member States a gentle nudge: if they do not like paying benefits to those who have worked too little, they had better say so in national law.
The gentle nudge to the Member States ultimately reflects the court’s endeavor to take into account, and balance in Tarola, two competing objectives of the Citizenship Directive. One is the objective of strengthening the right to move and reside for all Union citizens (witness to the case standing at the crossroads of workers and citizenship law, the court refers in reporting those objectives to citizens in one sentence, to workers in the next, par 49-50). The other is the objective to ensure that the Member States’ social security and social assistance systems are not placed under an undue burden. The tension between these two objectives underpins the entire case law on social benefits provision in the context of free movement. This brings the Tarola ruling closer to the line of cases that from Trojani descends to Dano and its progeny. The tension in that case law, however, is not always as clearly acknowledged and as carefully addressed as here. In this respect, Tarola might signal a further turn in a doctrine that has experienced several twists. It may be the first sign of the taking on, on the part of the court, of a more coherent role in reconciling the conflicting objectives of the law on free movement.

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Professor Kitrosser was featured on “News and Views With Roshini Rajkumar” on WCCO Radio on Sunday, January 20th. She spoke with Ms. Rajkumar about the government shutdown and its relationship to the constitutional separation of powers. She also responded to calls and text messages from listeners.
Professor Stephen Meili was interviewed for an article that appeared in the January 17 edition of MinnPost concerning the adverse effect that the federal government shutdown is having on U.S. Immigration Courts. Prof. Meili explained that the shutdown has cancelled tens of thousands of court hearings, thus exacerbating the long backlog of cases that has already plagued the immigration court system. He also noted that these cancelled hearings have left many noncitizens and their families in limbo, and that the resulting delays of two years or more makes it more challenging for lawyers to prepare their cases.
Read Steve Meili's faculty profile.
Professor Klass is quoted in an Energywire article discussing three cert petitions in the Supreme Court raising separate legal issues surrounding controversial natural gas pipeline projects in the northeast U.S.
Professor JaneAnne Murray was interviewed by the AP regarding prosecutorial and defense strategies in the prosecution of the individual accused of abducting Jayme Closs and murdering her parents. Commenting on the level of detail in the initial charging complaint, Murray commented that the complaint may have been “designed to send a signal to the defense that the evidence against their client is overwhelming.” The prosecutors will want a swift resolution, she added, and even in a case of strong evidence, a defendant’s willingness to enter into an early disposition can be a factor in plea bargaining discussions.
In an opinion in HTC Corp. v. Telefonaktiebolaget LM Ericsson, Judge Rodney Gilstrap twice cited Professor Thomas Cotter’s book chapter (coauthored with Norman Siebrasse) titled Judicially Determined FRAND Royalties, from the edited volume The Cambridge Handbook of Technical Standardization Law (Jorge L. Contreras ed., Cambridge University Press 2018), as persuasive authority on the subject of determining royalties for the use of standard essential patents.
Centennial Professor of Law Emeritus Barry Feld’s research on juvenile interrogation, adolescents’ diminished criminal responsibility, and school searches has been cited recently by a number of state courts. See, e.g., State v. Castillo, 329 Conn. 311 (CT SupCt 2018) (juvenile interrogation); State v. Propps, 897 N.W.2d 91 (IA SupCt 2017) (juveniles’ diminished criminal responsibility); In re Luis P., 161 A.D.3d 59 (Sup.Ct, App.Div., N.Y. 2018) (juvenile interrogation); State v. Crooks, 911 N.W.2d 153 (IA SupCt 2018) (juveniles’ diminished criminal responsibility); Esper v. Commonwealth, 2018 WL 898215 (KY SupCt 2018) (juvenile interrogation); State v. Lindsey, 881 N.W.2d 411 (IA Sup Ct. 2016) (school search and seizure).
Read Barry Feld's faculty profile.
Prof. Kristin Hickman was one of five administrative law experts featured in a short documentary, entitled Chevron: Accidental Landmark, about the Chevron doctrine of judicial deference to agency legal interpretations, which developed from the Supreme Court’s decision in Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984).
Professor Kristin Hickman was named by the prominent tax industry publication Tax Notes as among its runners-up for 2018 Person of the Year. The recognition is in connection with Prof. Hickman’s work as Special Adviser to the Administrator of the Office of Information and Regulatory Affairs (OIRA), where she has been assisting the agency in its efforts to implement a Memorandum of Agreement providing for OIRA review of tax regulations and rulings. Other runners-up for the year include Assistant Secretary of the Treasury David Kautter, IRS Commissioner Charles Ruttig, and Special Counsel Robert Mueller. This is the second time that Prof. Hickman’s work in the area of tax administration has been recognized in this manner by Tax Notes.

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Cintel Federal Credit Union ("Cintel") is before the court on the motion for relief from the automatic stay and abandonment that it filed in this case on March 17, 2004. The motion seeks relief from the stay imposed by § 362 of the Bankruptcy Code to take possession and dispose of a 1996 Jeep Cherokee (the "Vehicle") in which it claims a security interest, and an order compelling Lori A. Schlarman, as trustee (the "Trustee") of the bankruptcy estate of Gorman V. Lawson (the "Debtor"), to abandon the Vehicle. On April 6, 2004 the Debtor filed an objection relying on the fact that Cintel's security interest in the Vehicle is not perfected. Having considered the motion, the objection, the supplemental brief filed by Cintel on May 18, 2004, and the parties' arguments, the court will conditionally sustain the motion.
The Debtor and Nichole R. Lawson were divorced on February 3, 2004. The Property Settlement Agreement incorporated into their Decree of Dissolution includes the following sentence: "The Husband shall be awarded the 1996 Jeep Wrangler and shall be responsible for the outstanding debt thereon, if one exists, and agrees to hold the Wife harmless therefrom." On February 29, 2004 the Debtor filed a voluntary petition commencing this Chapter 7 case.
The schedules of assets that the Debtor filed in this case state that the Vehicle has a value of $5,467.37. Cintel's motion is appended with information indicating that the value of the Vehicle is $3,248 to $5,098. Cintel has filed a proof of claim for $4,221.01.
The court must first determine what interest the Debtor holds in the Vehicle. The Property Settlement Agreement provided for the award of the Vehicle (2) to the Debtor but, in the same sentence, further provided that the Debtor "shall be responsible for the outstanding debt thereon, if one exists." In addition, Section 355.9-315(1)(a) of the Kentucky Revised Statutes makes clear that "[a] security interest . . . continues in collateral notwithstanding sale, lease, license, exchange, or other disposition thereof unless the secured party authorized the disposition free of the security interest." The court concludes, therefore, that the Decree of Dissolution conferred on the Debtor equitable ownership of the Vehicle but that that interest remains subject to the security interest granted to Cintel by the Debtor's former spouse. See City Nat'l Bank & Trust Co. v. Pyle, 609 P.2d 966, 968-69 (Wash. Ct. App. 1980). This equitable interest became property of the bankruptcy estate when the Debtor filed his Chapter 7 petition. 11 U.S.C. § 541(a)(1); Demczyk v. Mut. Life Ins. Co. (In re Graham Square, Inc.), 126 F.3d 823, 831 (6th Cir. 1997) ("equitable title unquestionably constitutes property of the estate"); see also 11 U.S.C. § 541(a)(5)(B) (property of estate includes property debtor becomes entitled to acquire as result of property settlement agreement or divorce decree during 180-day period following commencement of case).
Insofar as the automatic stay protects property of the debtor, 11 U.S.C. § 362(a)(5), there is always "cause" for relief from the stay in a Chapter 7 case, id. § 362(d)(1). E.g., In re Davenport, 266 B.R. 787, 788-89 (Bankr. W.D. Ky. 2001). A debtor who is unable to exercise his or her right of redemption under § 722 or to negotiate a reaffirmation agreement under § 524(c) simply has no choice but to surrender the collateral. 11 U.S.C. § 521(2); see General Motors Acceptance Corp. v. Bell (In re Bell), 700 F.2d 1053 (6th Cir. 1983). In addition, the automatic stay's protection of property of the debtor expires upon the granting of a discharge, 11 U.S.C. § 362(c)(2)(C), and, in this case, absent an objection, discharge will be granted approximately one month from now.
However, the automatic stay also protects property of the estate, id. § 362(a)(2)-(4), and that protection does not expire until the property is no longer property of the estate, id. § 362(c)(1). The Trustee may seek to avoid Cintel's security interest in the Vehicle due to Cintel's failure to have its lien noted on the Debtor's former spouse's certificate of title, with the lien preserved for the benefit of the estate. 11 U.S.C. §§ 544, 551. On the other hand, the Trustee may conclude that the likelihood of success and the extent of the consequent recovery are outweighed by the trouble and expense of initiating and prosecuting an adversary proceeding. The court is reluctant to grant relief from the stay and compel abandonment of the Vehicle without affording the Trustee a reasonable opportunity to consider her options.
For the foregoing reasons, the court will enter a separate order sustaining Cintel's motion effective thirty days from the entry of the order, provided that the Trustee does not during that period file a complaint to avoid Cintel's security interest. If such a complaint is filed within that thirty-day period, the automatic stay will continue in effect pending the conclusion of the adversary proceeding.
1. The vehicle identification number on the security agreement appears to omit one digit of the VIN as shown on the title.
2. The court notes that the divorce court awarded a 1996 Jeep Wrangler to the Debtor, while Cintel's motion seeks relief from the automatic stay with respect to a 1996 Jeep Cherokee. Absent evidence to the contrary, the court will assume that the language of the Property Settlement Agreement represents a clerical error and that the divorce court intended to and did award the Vehicle to the Debtor.