Anti-Counterfeiting Trade Agreement (ACTA): towards a legalised regime of privacy invasion?

The European Union, represented by the European Commission, is negotiating – since 2007- a Multilateral Agreement on Anti-Counterfeiting Trade (ACTA) with nine other countries, including the United States of America, Australia, Canada, Japan, Korea, Mexico, Morocco, New Zealand, Singapore, and Switzerland.

The purpose of such an agreement is to strengthen the enforcement of Intellectual Property Rights (IPR) and to combat large-scale counterfeiting and piracy by defining a legal framework for the enforcement of IPR in particular in the digital environment via:

  • increased international cooperation and
  • deployment of IPR enforcement practices.

Due to the potential impact that such an agreement may have on individuals’ privacy, the implications related to each of the above-mentioned elements should be carefully evaluated in view of the respect of fundamental rights.

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The first EU steps towards the accession to the European Convention of Human rights

The European Parliament Committee on Civil Liberties, Justice and Home Affairs (LIBE) debated on February 23rd the state of the play of the EU accession to the European Convention of Human Rights (ECHR).

The accession is imposed by Article 6 TEU and its main impact will be the creation of an additional layer of protection of fundamental rights in the EU legal order. This entails the possibility to challenge before the European Court of Human Rights (ECtHR) also EU acts if they breach the fundamental rights of an individual (see my previous post here).

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Cutting bureaucracy: Simplifying applications of third-country nationals

On the 22 February the LIBE Committee of the European Parliament will hold an orientation vote on the ‘Directive of the European Parliament and of the Council on a single application procedure for a single permit for third-country nationals to reside and work in the territory of a Member State and on a common set of rights for third-country workers legally residing in a Member State.’

The purpose of this directive is to allow for a single application and a single permit for third-country nationals who wish to reside and work in an EU Member State. The aim of the directive is also to allow for the third-country nationals to have equal rights to the nationals of the Member State they will subsequently reside in if given a permit. However, this directive does not affect the competence of the Member States to decide on the admission of third-country nationals to their labour markets.

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Basic Reference : EU and Fundamental rights

With the entry into force of the Lisbon Treaty the protection of fundamental rights has become one of the vital aspects of European Union activity and we are now witnessing the fundamental change of the nature of the European construction which was born in 1957 mainly as an economy oriented organisation.

Notwithstanding the recent critics of the German Constitutional Court, the EU system of protection is now much more articulated than before and the possibility for an individual to challenge the EU acts has been improved.

According to art. 6 TUE (*) Fundamental rights are now protected in the European Union under three diverse and complementary perspectives: as general principles of the EU, as defined by the European Charter and as protected by the European Convention of human rights.

Fundamental rights protected as part of the “general principles of the EU law”
It is worth recalling that the founding Treaties did’nt make any reference to fundamental rights and that even in ’59 the Court itself denied itself the competence to judge on the legality of some CECA decisions from the perspective of protection of fundamental rights as granted by the German Constitutional Court (Judg. February 4th, 1959, Judg. 1/58, Stork V.High Authority, February 1960, Judg. 16-18/59, Geitling v. Hig Authority). By so doing, the Luxembourg judges avoided a confrontation with the European Court for Human rights in Strasbourg and with the national Constitutional Courts.

Therefore, only a few years later in ’63 and ’64 by proudly declaring the autonomy of the Community legal order with the landmark “Van Gend en Loos” and “Costa contro Enel” Judgements, and by empowering the European citizens to invoke the primacy of Community law before the national Judges, the Luxembourg Court faced the opposition of the Constitutional Courts of Italy (Judgement “Frontini e Pozzani” of March 7, 1974, n. 14) and Germany (“Solange I” Judgment of May 19th, 1976 in BverGE, 37, p. 271) which did not accept such a primacy of Community law when fundamental rights as protected by the national Consitution could have been at stake.
To counter this national opposition and the lack of an explicit reference to fundamental rights in the founding Treaties, the Court of Justice developed a very cleaver and original doctrine by declaring that Member States should protect fundamentalr rights (“Stauder”, C- 29/69, ” “Handelsgesellschaft” C-228/69) as an “integral part of the general principles of [European Community] law” when implementing EU law (“Wachauf” C-5/88, July 13th, 1989) because the “…Respect for human rights is therefore a condition of the lawfulness of Community acts..” (ECJ Opinion 2/94)
It is worth noting that with the doctrine of the EU “general principles” stemming from the constitutional traditions common to the Member States, the EU judges have not only created a strong common ground both for the national and european legal orders but also an evolving mechanism mirroring the evolution of the national Constitutional orders and of the Member States international relations (“Nold”, C-4/73 of May 14th, 1974).
The interaction beteween the national and european level makes it possible to match the evolution of the EU society notably when fundamental rights are at stake. It is therefore not surprising that in sixty years several “generations” of fundamental rights came to the attention of the european Judges and legislators.
Therefore, it took some time before the doctrine of “general principles” (as a legal cross-fertilisation mechanism between the national and european level) had been mirrored in the Treaties but it happened in ’93 with the Maastricht Treaty, confirmed by the Amsterdam Treaty and now clearly stated in the Lisbon treaty.

Fundamental rights as protected by the European Charter of Fundamental rights

The main weakness of the “general principles” doctrine is that it depends on the interpretation of the judges who can act only on a case by case basis. At the end of the eighties it became necessary to link the enlargment process to new Member States and the extension of the EU missions to the codification of ECJ jurisprudence of the previous decades by making fundamental rights more visible to the european citizen and to the EU legislator itself.
This codification of fundamental rights as stemming from the ECHR, the common constitutional traditions of the Member States and from the jurisprudence of the ECJ has been decided by the European Council in Cologne on the 3/4 June ’99 in parallel with the entry into force of the Amsterdam Treaty: “There appears to be a need, at the present stage of the Union’s development, to establish a Charter of fundamental rights in order to make their overriding importance and relevance more visible to the Union’s citizens. The European Council believes that this Charter should contain the fundamental rights and freedoms as well as basic procedural rights guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms and derived from the constitutional traditions common to the Member States, as general principles of Community law. The Charter should also include the fundamental rights that pertain only to the Union’s citizens. In drawing up such a Charter account should furthermore be taken of economic and social rights as contained in the European Social Charter and the Community Charter of the Fundamental Social Rights of Workers (Article 136 TEC), insofar as they do not merely establish objectives for action by the Union.”

Following this mandate an extraordinary “Convention”, composed of representatives of the Heads of State and Government, the President of the Commission as well as members of the European Parliament and national parliaments, prepared a text which even if without a binding status was proclamed by the EU institutions in Nice in December 2000.
With the entry into force of the Lisbon Treaty the Charter (slightly updated in 2007) is now part of the EU Constitutional order even if UK and Poland enjoy a specific regime as defined in two protocols.

Fundamental rights as protected by the ECHR

As outlined above the ECHR is the main reference and the founding block of fundamental rights protection in Europe even if it focuses mainly on political and civil rights (the so called “first generation”) which were considered the main priority after the second World War. Already in April 1979 the European Commission proposed that the European Community could become member of the ECHR but the procedure was only launched after another Commission Communication of November 19th, 1990. The proposal was followed by a Council request for an opinion from the ECJ. The Opinion (2/94 was adopted on March 28th, 1996 and stated quite surprisingly that “..No Treaty provision confers on the Community institutions any general power to enact rules on human rights or to conclude international conventions in this field. Accession to the Convention would, however, entail a substantial change in the present Community system for the protection of human rights in that it would entail the entry of the Community into a distinct international institutional system as well as integration of all the provisions of the Convention into the Community legal order. Such a modification of the system for the protection of human rights in the Community, with equally fundamental institutional implications for the Community and for
the Member States, would be of constitutional significance and would therefore be such as to go beyond the scope of Article 235. It could be brought about only by way of Treaty amendment.

Therefore the fact that the EU, contrary to its Member States, was and still is not formally member of the ECHR. This has created some problems when Member States are brought before the Strasbourg Court for breaching fundamental rights with a national law that conflicts EU law.
In two landmark cases “Matthews” in ’99 and more clearly “Bosphorus ” in 2005, the Strasbourg Judges made it clear that even if the EU fundamental rights protection regime “…could have been considered to be, and to have been at the relevant time, “equivalent” to that of the Convention system….Such a presumption could be rebutted if, in a particular case, it was considered that the protection of Convention rights was manifestly deficient. In such cases, the interest of international co-operation would be outweighed by the Convention’s role as a “constitutional instrument of European public order” in the field of human rights”.

The consequence of this reasoning is that EU Member States when implementing European Union law would be summoned by the Strasbourg Court (if the EU legislation does not grant sufficient protection to fundamental rights) and at the same time summoned by the Luxembourg Court for not implementing the same rules.
To avoid being caught between a rock and a hard place or to be taken hostage between the two legal regimes of Luxembourg and Strasbourg, the Member States decided that with the Lisbon Treaty the European Union should also become party to the Convention so that its acts could be directly challenged before the Strasbourg Court in case of violation of the European Convention of Human rights.
By adopting Protocol 14 the accession is now legally possible on part of the Council of Europe even if the negotiation of this accession already seems far from being easy.

A wider right of access for Judges

It would had been meaningless to have so many ways to invoke the protection of fundamental rights against the EU acts, if this new legal construction would not have been accompanied by an easier access of the individual to the EU judge.
Here again the Lisbon Treaty brings some improvements.
In the previous situation (art. 230 p4 of the TEC) an individual was entitled to bring an action against an EU act only if he was directly and individually concerned by these acts.
The situation of legal and/or physical person “individually” concerned by an EU act was rather common at the beginning of the EU construction when many Decisions of the Institutions (such as the ones of the CECA High Authority or of the Commission acting in the competition policy) were addressed to specific enterprises, but has become less frequent the more the EC and the EU developed their “legislative” activity by adopting acts of regulatory nature. Indeed, nearly all actions brought by individuals against Community regulations have been declared inadmissible by the ECJ because the requirement of ‘individual concern’ was not fulfilled. The doctrine considered then that the approach of the Community courts was too restrictive to guarantee effective legal protection of individuals against acts of a general nature.
The Court of Justice considered therefore that “effective legal protection” was in any case guaranteed by the right of individuals to bring an action before national courts against national measures implementing an EC/EU regulation in individual cases (since these courts acting as “decentralized european judges” would have been able to refer to preliminary questions to the Court of Justice).
This indirect solution was therefore unavailable when Community measures didn’t require national implementation. In these cases, as denounced by the Advocate General Francis Jacobs in the “Jégo-Quéré,” case before the Court of First Instance, the only way for the individuals to obtain justice was to infringe the EU measure and challenge its validity during the penal or other proceedings brought against him.
The CFI in its Judgment of 3 May 2002, followed the AG Jacobs ruling by considering a person as “individually concerned” by a measure of general application when it affects his legal position in a manner which is both definite and immediate, by restricting his rights or imposing obligations on him. However, the Court of Justice rejected this interpretation (“UPA” Case of 25 June 2002) by considering that a reform of the system of judicial review would had been possible only through a Treaty amendment.

Such a reform was finally adopted, albeit in a rather unclear way, during the negotiations of the Constitutional Treaty and thereafter mirrored in the Lisbon Treaty.
The former art. 230 TEC has now become Article 263 of the TFEU which reads as follows:
‘Any natural or legal person may, under the same conditions, institute proceedings against an act addressed to that person or which is of direct and individual concern to him or her, and against a regulatory act which is of direct concern to him or her and does not entail implementing measures.’

Therefore the main question surrounds the Treaty’s lack of definition of the notion “regulatory acts”.
Does this formula cover all the acts of general application be it of legislative or non legislative nature or does it refers only to “non legislative” acts as considered by part of the doctrine (Bruno De Witte)?
This second interpretation will therefore allow the legislator to hide in legislative acts all the measures for which he does not want be challenged by the individuals. Moreover this interpretation will also counter ECJ jurisprudence according to which only the contents of the act are decisive and not its legal form.

(*) TUE Article 6(as modified by the Lisbon Treaty)
1. The Union recognises the rights, freedoms and principles set out in the Charter of Fundamental Rights of the European Union of 7 December 2000, as adapted at Strasbourg, on 12 December 2007, which shall have the same legal value as the Treaties.
The provisions of the Charter shall not extend in any way the competences of the Union as defined in the Treaties.
The rights, freedoms and principles in the Charter shall be interpreted in accordance with the general provisions in Title VII of the Charter governing its interpretation and application and with due regard to the explanations referred to in the Charter, that set out the sources of those provisions.
2. The Union shall accede to the European Convention for the Protection of Human Rights and Fundamental Freedoms. Such accession shall not affect the Union’s competences as defined in the Treaties.
3. Fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms and as they result from the constitutional traditions common to the Member States, shall constitute general principles of the Union’s law.

Interlaken declaration and Action plan to reform the European Court of Human Rights

The text below have been taken from the official Council of Europe Press release presenting the result of the Interlaken Conference (19.02.2010)
It is worth noting that on Thursday, just before the opening of the Ministerial Conference, the Russian Minister of Justice Alexander Konovalov deposited the ratification instrument of Protocol 14 which will therefore enter into force on 1 June 2010.

Interlaken Declaration
19. February 2010

The High Level Conference meeting at Interlaken on 18 and 19 February 2010 at the initiative of the Swiss Chairmanship of the Committee of Ministers of the Council of Europe (“the Conference”):
1 Expressing the strong commitment of the States Parties to the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) and the European Court of Human Rights (“the Court”);
2 Recognising the extraordinary contribution of the Court to the protection of human rights in Europe;
3 Recalling the interdependence between the supervisory mechanism of the Convention and the other activities of the Council of Europe in the field of human rights, the rule of law and democracy;
4 Welcoming the entry into force of Protocol No. 14 to the Convention on 1 June 2010;
5 Noting with satisfaction the entry into force of the Treaty of Lisbon, which provides for the accession of the European Union to the Convention;
6 Stressing the subsidiary nature of the supervisory mechanism established by the Convention and notably the fundamental role which national authorities, i.e. governments, courts and parliaments, must play in guaranteeing and protecting human rights at the national level;
7 Noting with deep concern that the number of applications brought before the Court and the deficit between applications introduced and applications disposed of continues to grow;
8 Considering that this situation causes damage to the effectiveness and credibility of the Convention and its supervisory mechanism and represents a threat to the quality and the consistency of the case-law and the authority of the Court;
9 Convinced that over and above the improvements already carried out or envisaged additional measures are indispensable and urgently required in order to:
i. achieve a balance between the number of judgments and decisions delivered by the Court and the number of incoming applications;
ii. enable the Court to reduce the backlog of cases and to adjudicate new cases within a reasonable time, particularly those concerning serious violations of human rights;
iii. ensure the full and rapid execution of judgments of the Court and the effectiveness of its supervision by the Committee of Ministers;
10 Considering that the present Declaration seeks to establish a roadmap for the reform process towards long-term effectiveness of the Convention system;

The Conference

(1) Reaffirms the commitment of the States Parties to the Convention to the right of individual petition;

(2) Reiterates the obligation of the States Parties to ensure that the rights and freedoms set forth in the Convention are fully secured at the national level and calls for a strengthening of the principle of subsidiarity;

(3) Stresses that this principle implies a shared responsibility between the States Parties and the Court;

(4) Stresses the importance of ensuring the clarity and consistency of the Court’s case-law and calls, in particular, for a uniform and rigorous application of the criteria concerning admissibility and the Court’s jurisdiction;

(5) Invites the Court to make maximum use of the procedural tools and the resources at its disposal;

(6) Stresses the need for effective measures to reduce the number of clearly inadmissible applications, the need for effective filtering of these applications and the need to find solutions for dealing with repetitive applications;

(7) Stresses that full, effective and rapid execution of the final judgments of the Court is indispensable;

(8) Reaffirms the need for maintaining the independence of the judges and preserving the impartiality and quality of the Court;

(9) Calls for enhancing the efficiency of the system to supervise the execution of the Court’s judgments;

(10) Stresses the need to simplify the procedure for amending Convention provisions of an organisational nature;

(11) Adopts the following Action Plan as an instrument to provide political guidance for the process towards long-term effectiveness of the Convention system.

ACTION PLAN:

A. Right of individual petition
1. The Conference reaffirms the fundamental importance of the right of individual petition as a cornerstone of the Convention system which guarantees that alleged violations that have not been effectively dealt with by national authorities can be brought before the Court.
2. With regard to the high number of inadmissible applications, the Conference invites the Committee of Ministers to consider measures that would enable the Court to concentrate on its essential role of guarantor of human rights and to adjudicate well-founded cases with the necessary speed, in particular those alleging serious violations of human rights.
3. With regard to access to the Court, the Conference calls upon the Committee of Ministers to consider any additional measure which might contribute to a sound administration of justice and to examine in particular under what conditions new procedural rules or practices could be envisaged, without deterring well-founded applications.

B. Implementation of the Convention at the national level
4. The Conference recalls that it is first and foremost the responsibility of the States Parties to guarantee the application and implementation of the Convention and consequently calls upon the States Parties to commit themselves to:
a) continuing to increase, where appropriate in co-operation with national human rights institutions or other relevant bodies, the awareness of national authorities of the Convention standards and to ensure their application;
b) fully executing the Court’s judgments, ensuring that the necessary measures are taken to prevent further similar violations;
c) taking into account the Court’s developing case-law, also with a view to considering the conclusions to be drawn from a judgment finding a violation of the Convention by another State, where the same problem of principle exists within their own legal system;
d) ensuring, if necessary by introducing new legal remedies, whether they be of a specific nature or a general domestic remedy, that any person with an arguable claim that their rights and freedoms as set forth in the Convention have been violated has available to them an effective remedy before a national authority providing adequate redress where appropriate;
e) considering the possibility of seconding national judges and, where appropriate, other high-level independent lawyers, to the Registry of the Court;
f) ensuring review of the implementation of the recommendations adopted by the Committee of Ministers to help States Parties to fulfil their obligations.
5. The Conference stresses the need to enhance and improve the targeting and coordination of other existing mechanisms, activities and programmes of the Council of Europe, including recourse by the Secretary General to Article 52 of the Convention.

C. Filtering
6. The Conference:
a) calls upon States Parties and the Court to ensure that comprehensive and objective information is provided to potential applicants on the Convention and the Court’s case-law, in particular on the application procedures and admissibility criteria. To this end, the role of the Council of Europe information offices could be examined by the Committee of Ministers;
b) stresses the interest for a thorough analysis of the Court’s practice relating to applications declared inadmissible;
c) recommends, with regard to filtering mechanisms,
i. to the Court to put in place, in the short term, a mechanism within the existing bench likely to ensure effective filtering;
ii. to the Committee of Ministers to examine the setting up of a filtering mechanism within the Court going beyond the single judge procedure and the procedure provided for in i).

D. Repetitive applications

7. The Conference:
a) calls upon States Parties to:
i. facilitate, where appropriate, within the guarantees provided for by the Court and, as necessary, with the support of the Court, the adoption of friendly settlements and unilateral declarations;
ii. cooperate with the Committee of Ministers, after a final pilot judgment, in order to adopt and implement general measures capable of remedying effectively the structural problems at the origin of repetitive cases.
b) stresses the need for the Court to develop clear and predictable standards for the “pilot judgment” procedure as regards selection of applications, the procedure to be followed and the treatment of adjourned cases, and to evaluate the effects of applying such and similar procedures;
c) calls upon the Committee of Ministers to:
i. consider whether repetitive cases could be handled by judges responsible for filtering (see above Section C);
ii. bring about a cooperative approach including all relevant parts of the Council of Europe in order to present possible options to a State Party required to remedy a structural problem revealed by a judgment.

E. The Court
8. Stressing the importance of maintaining the independence of the judges and of preserving the impartiality and quality of the Court, the Conference calls upon States Parties and the Council of Europe to:
a) ensure, if necessary by improving the transparency and quality of the selection procedure at both national and European levels, full satisfaction of the Convention’s criteria for office as a judge of the Court, including knowledge of public international law and of the national legal systems as well as proficiency in at least one official language. In addition, the Court’s composition should comprise the necessary practical legal experience;
b) grant to the Court, in the interest of its efficient functioning, the necessary level of administrative autonomy within the Council of Europe.
9. The Conference, acknowledging the responsibility shared between the States Parties and the Court, invites the Court to:
a) avoid reconsidering questions of fact or national law that have been considered and decided by national authorities, in line with its case-law according to which it is not a fourth instance court;
b) apply uniformly and rigorously the criteria concerning admissibility and jurisdiction and take fully into account its subsidiary role in the interpretation and application of the Convention;
c) give full effect to the new admissibility criterion provided for in Protocol No. 14 and to consider other possibilities of applying the principle de minimis non curat praetor.
10. With a view to increasing its efficiency, the Conference invites the Court to continue improving its internal structure and working methods and making maximum use of the procedural tools and the resources at its disposal. In this context, it encourages the Court in particular to:
a) make use of the possibility to request the Committee of Ministers to reduce to five members the number of judges of the Chambers, as provided by Protocol No. 14;
b) pursue its policy of identifying priorities for dealing with cases and continue to identify in its judgments any structural problem capable of generating a significant number of repetitive applications.

F. Supervision of execution of judgments

11. The Conference stresses the urgent need for the Committee of Ministers to:
a) develop the means which will render its supervision of the execution of the Court’s judgments more effective and transparent. In this regard, it invites the Committee of Ministers to strengthen this supervision by giving increased priority and visibility not only to cases requiring urgent individual measures, but also to cases disclosing major structural problems, attaching particular importance to the need to establish effective domestic remedies;
b) review its working methods and its rules to ensure that they are better adapted to present-day realities and more effective for dealing with the variety of questions that arise.

G. Simplified Procedure for Amending the Convention

12. The Conference calls upon the Committee of Ministers to examine the possibility of introducing by means of an amending Protocol a simplified procedure for any future amendment of certain provisions of the Convention relating to organisational issues. This simplified procedure may be introduced through, for example:
a) a Statute for the Court;
b) a new provision in the Convention similar to that found in Article 41(d) of the Statute of the Council of Europe.

Implementation

In order to implement the Action Plan, the Conference:
(1) calls upon the States Parties, the Committee of Ministers, the Court and the Secretary General to give full effect to the Action Plan;
(2) calls in particular upon the Committee of Ministers and the States Parties to consult with civil society on effective means to implement the Action Plan;
(3) calls upon the States Parties to inform the Committee of Ministers, before the end of 2011, of the measures taken to implement the relevant parts of this Declaration;
(4) invites the Committee of Ministers to follow-up and implement by June 2011, where appropriate in co-operation with the Court and giving the necessary terms of reference to the competent bodies, the measures set out in this Declaration that do not require amendment of the Convention;
(5) invites the Committee of Ministers to issue terms of reference to the competent bodies with a view to preparing, by June 2012, specific proposals for measures requiring amendment of the Convention; these terms of reference should include proposals for a filtering mechanism within the Court and the study of measures making it possible to simplify the amendment of the Convention;
(6) invites the Committee of Ministers to evaluate, during the years 2012 to 2015, to what extent the implementation of Protocol No. 14 and of the Interlaken Action Plan has improved the situation of the Court. On the basis of this evaluation, the Committee of Ministers should decide, before the end of 2015, on whether there is a need for further action. Before the end of 2019, the Committee of Ministers should decide on whether the measures adopted have proven to be sufficient to assure sustainable functioning of the control mechanism of the Convention or whether more profound changes are necessary;
(7) asks the Swiss Chairmanship to transmit the present Declaration and the Proceedings of the Interlaken Conference to the Committee of Ministers;
(8) invites the future Chairmanships of the Committee of Ministers to follow-up on the implementation of the present Declaration.

Full body-scanners: risks of violation of Article 8 of the European Convention on Human Rights

The recent attempted bombing to the Detroit flight on 25 December 2009 confirmed the weakness in aviation security to detect non-metallic items. As a consequence a reignited interest towards the introduction of full-body scanners in airports is taking place worldwide. 

Full-body scanners create an image of the full body which shows the surface of the skin and reveals objects that are on the body, not in the body. Personal identification is not possible and the image is not retained. The two main technologies used are: backscatter (relying on low intensity x-ray) and millimetre wave (using non-ionizing radio frequency energy). These technologies are capable of detecting body-worn threat items and have the potential to reveal and retain sensitive information about the individual, including health conditions.

Therefore, in order to understand whether such measure should be permitted, the following three cumulative conditions must be met:

Legitimacy: a legal basis for the restriction should exists. The objective of the full-body scanner must be legitimate and be coherent with the values and principles of the European Union as well as the need to protect the rights and freedoms of individuals;

• Respect the principle of Rule of Law: the conditions under which the restriction to the above-mentioned rights is imposed must be provided for by law and accessible to the individual affected by the restriction and sufficiently precise to enable the person to understand its scope and foresee the consequences of his actions so as not to break the law and protect him from arbitrariness;

Proportionality: the use of the full-body scanner must be proportionate to the end pursued so that they can be considered necessary.

Legitimacy

At the European level, the legal basis for the implementation of full-body scanner can be found in Regulation (EC) 300/2008 of the European Parliament and of the Council.

This Regulation aims to protect persons and goods within the European Union by preventing acts of unlawful interference with civil aircraft, including screening of persons before they enter security restricted areas at airports and board and aircrafts. Hence, the use of body scanners is included within the scope of the Regulation.

However, not only full-body scanners do not screen body caveats, but experts also say that plastic, chemicals and liquids can go undetected even in a full-body screening, greatly reducing their effectiveness. Hence, despite the existence of a legal basis for permitting such searches, the fact that full-body scanners are not able to detect unlawful material puts under question their legitimacy and proportionality thereof.

Furthermore, the legal basis for screening passengers has been put under question by the European Parliament. In its non-legislative Resolution on the impact of the use of body scanners in the field of aviation security on human rights, privacy, personal dignity, health and data protection it stated:

“This draft measure could exceed the implementing powers provided for in the basic instrument, as the measures in question cannot be considered mere technical measures relating to aviation security, but have a serious impact on the fundamental rights of citizens”.

This is because the Commission proposed a draft regulation supplementing the common basic standards on civil aviation security to include “body scanners” implying that within the existing common basic standards, body scanners were not included.

Proportionality

The European data protection authorities have emphasised the great impact on passengers’ privacy that full-body scanners have and, therefore, they have underlined the necessity to strike the right balance between the body scanners’ necessity and the intrusiveness derived from their introduction.

To reduce the invasively nature of the full-body scanners, the Privacy Impact Assessment of the Homeland Security suggests that passengers may choose alternative screening to the full-body scanner.

However, as the Data Protection Working Group stated, “making them voluntary undermines the(se) reasons for needing them”. As the European Data Protection Supervisor correctly pointed out, this will depend on how, where, when, and with which rigorous procedures they are installed and used and also on which guarantees for the interested persons are put in place.

Although this measure may reduce the invasive nature of the body scanners, the absence of safeguards, such as the monitoring of who is being scanned and how, means that the authorities are unable to check if anyone is being unfairly selected on the basis of their race, religion, gender, age, sexual orientation or disability, as the leading human rights lawyers of Matrix Chambers stated (Matrix Chambers is multi-disciplinary barristers’ chambers which has been called upon by  the Non Departmental Public Body Commission on Equality and Human Rights of the United Kingdom to assess the human rights and equalities implications of the United Kingdom’s introduction of full-body scanners at Heathrow and Manchester Airports).

Furthermore, this intrusiveness should be considered together with the health impact that the backscatter X-ray machines have, by exposing individuals to ionizing radiation similar to those used by common medical X-rays. According to Dr. James Thrall of the American College of Radiology and chief of radiology at Massachusetts General Hospital in Boston, the radiation levels are well below the threshold that could be considered a risk to an individual’s health. However, additional studies should be carried on to verify the validity of such position.

Another important issue to be taken into consideration concerns the costs of the full-body scanners vis à vis their efficacy. The fact that the cost of ordering them amounts at approximately €115,000 each, summed up to all the changes that would have to be made to airports, require a precise cost assessment which should be delivered before validating the introduction of such a measure.

Respect the principle of the Rule of Law

Assuming that the first two conditions can be met, despite the aforementioned limitations, there still remains a third non-negotiable aspect that legislators should carefully validate when considering the introduction of full-body scanners: the respect of the rule of law.

According to this principle, decisions should be made by applying known principles or laws, without the intervention of discretion in their application and providing safeguards against arbitrary interventions. Such safeguards are laid down in a variety of legal instruments, including Article 8 of the ECHR, Articles 7 and 8 of the Charter of Fundamental Rights of the European Union as detailed in Directive 95/46/EC.

All these instruments establish data protection as a fundamental principle, which with the entry into force of the Lisbon Treaty, has become a fundamental right on its own.

In addition to these instruments, under the Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data, the parties are required to apply the principles it lays down in order to ensure respect in their territory for the fundamental human rights of all individuals with regard to processing of personal data.

Therefore, the question that needs to be answered concerns whether the use of full-body scanners complies with these provisions.

According to Matrix Chambers, the introduction of full-body scanners “is on balance likely to infringe Article 8 of the European Convention on Human Rights and Fundamental Freedoms.” It recalls, that in S and Marper v United Kingdom the European Court of Human Rights found that the mere storing of data relating to the private life of an individual amounts to an interference within the meaning of Article 8 and that the concept of “private life” as established in Article 8 ECHR covers the physical and psychological integrity of a person, including the person’s right to their image (Sciacca v. Italy).

Therefore the use of such scanners generates an invasion of privacy which in Matrix Chambers’ view cannot “be “in accordance with the law” as required under article 8(2) and in relation to which no effective waiver is currently routinely secured”.

In order to minimise the level of intrusion, the Privacy Impact Assessment on the whole body imaging conducted by the Homeland Security, foresees that the screener will be used at remote distance of the person being examined.

However, rating the level of intrusion of body scanners depends, on the one hand on cultural and personal context and, on the other hand on the technical features of the scanner.

 Scanners providing a detailed picture of the human body are highly intrusive, whereas scanners that present a standardised body image (mimic board) with identification areas to be searched further are less intrusive.

Furthermore, although it is true that passengers forgo their right to privacy to the extent necessary in the interest of security at the moment they purchase their ticket, not all such waivers are automatically effective.

Clear and comprehensive information about full-body scanners should be provided before the ticket is purchased and alternative body search should be foreseen if a passenger refuses to be screened. However, as it has been explained earlier, this undermines the  reason for having them in first place. 

Despite the risk to breach privacy and anti-discrimination laws, the US strongly support the boosting of airport security with full-body scanners and this request has the backing of the EU’s anti-terror coordinator Gilles de Kerchove. On the contrary, Member States of the European Union still have doubts in this regard. While during the informal meeting of the EU interior ministers with the U.S. Homeland Security chief on Thursday 21 January 2010 in Toledo, Spain and Germany expressed reservations about scanners, their counterparts with responsibility for transports who met in La Coruña on Friday 12 February are less opposed to the introduction of full-body scanners.

The European Commission is expected to publish a report examining all the above mentioned issues by April, on the basis of which the Transport Council will then adopt a common position.

The legitimate reasons behind the introduction of these measures may be considered proportionate if there is a balance between the level of intrusion and the added value in terms of security for passengers. The use of body scanners as such is not against EU privacy laws. However, the feasibility of the introduction of full-body scanners is one thing, another is their desirability.

LB

European Parliament approves Barroso II

The European Parliament has approved by a very large majority, 488 votes in favour, 137 against and 72 abstentions, the Barroso II team on Tuesday 9 February, in Strasbourg.

The new Commission begins to work today, Wednesday the 10 February and its mandate will expire on 31 October 2014.

The major political groups (the EPP, the Socialist Group (S&D) and the Liberal Group (ALDE)) supported the new Commission, the Greens/EFA, the GUE/NGL, the Europe Freedom and Democracy Group (EFD) and non-attached members voted against and the Conservative Group (ECR) abstained.

Barroso asserted in front of the plenary that the main priorities of the new Commission (already presented to the EP in September 2009) will be to tackle the current economic and social situation in the EU, the fight against climate change, developing social cohesion, the creation of the freedom and security area, and strengthening Europe’s place in the world.

As part of the new framework agreement between the EP and the Commission, in which the main elements were approved by MEPs on Tuesday Barroso committed to carry on social impact analysis when there is a new legislative proposal.

According to the resolution in order to place the Parliament on an equal footing with the Council where the ordinary legislative procedure applies the Commission should:

1) Provide to the EP similar access to information than that guaranteed to the Council on legislative and budgetary matters

2) Provide full documentation to the EP on the Council’s meetings with national experts on the preparation and implementation of EU legislation

3) React to the EP’s legislative initiative within three months and present a proposal within one year or in case of refusal by the executive explain to the plenary the reasons that led to such a decision

4) Recognise the EP’s enhanced role in international negotiations (following the entry into force of the Lisbon Treaty) by providing it with “immediate and full” information at “every stage of negotiations” and by giving it observer status at international conferences.

5) Defend the EP’s position during the negotiation of the European External Action Service and involve it in the revision of the better legislation’ interinstitutional agreement.

6) through its President hold regular dialogue with the EP president .

Despite, President Barroso promised to abide by it during the second phase of negotiations on procedural matters that will get under way, the Parliament did not obtain everything it wanted. First of all, the Commission did not accept to allow the European Parliament to hold hearings of future EU ambassadors. Secondly, although Barroso chose to set a deadline for Parliament’s power of initiative, he did not agree to systematically respond to EP requests, to keep from hindering the Commission’s right of initiative. Finally, It also remains to be seen how far the Commission will agree to go on delivering information upstream to Parliament on certain aspects of EU external policy.

Now that the Barroso II has been approved by the European Parliament it is interesting to look back at what the newly elected commissioners responsible for the area of freedom, security and justice presented during the auditions held in January in front of the legislative assembly.

The Commissioners related to the area of freedom, security and justice Ms Viviane Reding will be the Vice-President of the European Commission and the Commissioner for European Justice, Fundamental Rights, Citizenship and Equal Opportunities. During her hearing, held in January, Ms Reding stated that her main objective will be to create a single justice area and enhancing equal opportunities policies, ending any forms of discrimination and, above all strengthening the legal instruments against violence towards women. In specific the three priorities presented to the Parliament in the field of Justice are:

(1) guaranteeing accused persons and suspects clear rights in the EU

(2) ensuring strong fairness rules in trials and prisons, and

(3) enhancing victims’ rights.

Ms Reding also highlighted the importance of “free circulation of administrative documents and European authentic acts” and therefore announced the publication, at the start of the year, of a Green Paper on the free movement of civil and political rights, expected at the beginning of 2010. Always in this domain, the newly elected Commissioner aims to turn Eurojust, into “a European public prosecutor’s office”. Concerning the promotion and respect of fundamental rights the Commissioner explained back in January that there will be a very specific impact evaluation on our fundamental rights. Ms Reding specified that equal opportunities should be fully integrated into employment and this would be a priority of the Belgian presidency of the Union. Finally Ms Reding stated that together with the Commissioner for Internal Affairs, Cecilia Malmström they will bring forward 169 initiatives under the Stockholm Programme.

Concerning her part, Cecilia Malmström during her hearing held on 19 January, presented immigration and the review of security legislation as the main priorities for the Commission. In relation to immigration three directives will be presented in 2010, namely: seasonal work, internal changes within multilateral companies and payment to trainees. Always in January, the newly elected Commissioner indicated that she propose a strengthening of Frontex at the beginning of 2010. The other main objective is the implementation of an internal security strategy in the EU, although little legislation will be put forward in this domain. Ms Malmström announced a review of the data retention measure at the beginning of 2011 which together the setting up of the Second Generation Information System (SIS II) she will tackle as soon as possible. She also affirmed that she supported the creation of the post of European coordinator of fighting human trafficking. The Commissioner stated that she will also present a communication on the fight against corruption and that she is keen in cooperating with Ms Reding in this domain.

LB

The bumpy path of the Anti-discrimination Directive restarts

The Committee on Civil Liberties of the European Parliament has finally restarted the legislative works on the Proposal for a Directive on implementing the principle of equal treatment between persons irrespective of religion or belief, disability, age or sexual orientation by nominating the MEP Mr Raúl Romeva I Rueda of the Green Group as rapporteur.

The text had already been voted during the previous legislation based on a Report of the MEP Ms Kathalijne Buitenweg.

In the meanwhile not only the legislature has changed but also the Treaty of Lisbon has entered into force which has reinforced the role of the European Union concerning the fight against discrimination.

For instance:

Article 2 of the TEU

The Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities. These values are common to the Member States in a society in which pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men prevail.

Article 3.3.

[…]It shall combat social exclusion and discrimination, and shall promote social justice and protection, equality between women and men, solidarity between generations and protection of the rights of the child. […]

Article 9

In all its activities, the Union shall observe the principle of the equality of its citizens, who shall receive equal attention from its institutions, bodies, offices and agencies. Every national of a Member State shall be a citizen of the Union. Citizenship of the Union shall be additional to national citizenship and shall not replace it.

Article 10

In defining and implementing its policies and activities, the Union shall aim to combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation.[1]

However the key provision is Article 19 of the TFEU which substituted Article 13[2] of the old CE Treaty which enables the Council, after obtaining the consent of the European Parliament, to  

[…] take appropriate action to combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation.”

It is a “special” legislative procedure which requires the unanimity of the Member States and that in principle does not allow the European Parliament to modify the text which the Council wants to adopt.

Despite this, the challenge for the European Parliament does not lie on the procedural aspect. Indeed, it already happened in the past that it obtained the same result n terms of formal amendments through the adoption of “recommendations” with which it influenced its own formal agreement for the adoption of the Council’s text.

The problem lies on the fact that this dynamic may be activated only if the Council (unanimously)is willing to adopt a text..

Now, the least that one can say is that concerning the fight against discrimination Member States’ attitude is everything  but enthusiastic.

The topic is extremely controversial and has already raised dissimilarities on the occasion of the Proposal of the Commission which saw on the one hand NGOs frustrated because of the lack of ambition of the initiative and on the other hand representatives of the Member States which presented reserves also of a general reach on several aspects of the proposal.

Furthermore, national parliaments have also discussed the impact of the initiative in relation to the principle of subsidiarity.

Despite these difficulties, the Spanish Presidency has decided to carry on the scrutiny of the proposal and has formulated a new version which hopes to adopt before the end of the semester.

Pointless to say that the definition of the legislative measures will be smaller concerning the financial support given that, always on the basis of Article 19, can be adopted following the ordinary legislative procedure (qualified majority in the Council and codecision of the European Parliament).

To be continued…

EDC

Bibliography:
study of the European Parliament on the proposal for a Directive
position of the national parliaments
position of the Women lobby
position of the European Association of Service providers for Persons with Disabilities (EASPD)

(*) Text currently under scrutiny

(Procedure 2008-140-Council document 5188/10)

Proposal for a COUNCIL DIRECTIVE on implementing the principle of equal treatment between persons irrespective of religion or belief, disability, age or sexual orientation
THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty on the Functioning of the European Union, and in particular Article 19(1) thereof,
Having regard to the proposal from the Commission ,
Having regard to the consent of the European Parliament ,
Whereas:
(1) In accordance with Article 2 of the Treaty on European Union, the European Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities, values which are common to all the Member States. In accordance with Article 6 of the Treaty on European Union, the European Union recognises the rights, freedoms and principles set out in the Charter of Fundamental Rights of the European Union, and fundamental rights, as guaranteed by the European Convention on the Protection of Human Rights and Fundamental Freedoms and as they result from the constitutional traditions common to the Member States, shall constitute general principles of the Union’s law.
(2) The right to equality before the law and protection against discrimination for all persons constitutes a universal right recognised by the Universal Declaration of Human Rights, the United Nations Convention on the Elimination of all forms of Discrimination Against Women, the International Convention on the Elimination of all forms of Racial Discrimination, the United Nations Covenants on Civil and Political Rights and on Economic, Social and Cultural Rights, the UN Convention on the Rights of Persons with Disabilities, the European Convention for the Protection of Human Rights and Fundamental Freedoms and the European Social Charter, to which [all] Member States are signatories. In particular, the UN Convention on the Rights of Persons with Disabilities includes the denial of reasonable accommodation in its definition of discrimination.
(3) This Directive respects the fundamental rights and observes the fundamental principles recognised in particular by the Charter of Fundamental Rights of the European Union. Article 10 of the Charter recognises the right to freedom of thought, conscience and religion; Article 21 prohibits discrimination, including on grounds of religion or belief, disability, age or sexual orientation; and Article 26 acknowledges the right of persons with disabilities to benefit from measures designed to ensure their independence.
(4) The European Years of Persons with Disabilities in 2003, of Equal Opportunities for All in 2007, and of Intercultural Dialogue in 2008 have highlighted the persistence of discrimination but also the benefits of diversity.
(5) The European Council, in Brussels on 14 December 2007, invited Member States to strengthen efforts to prevent and combat discrimination inside and outside the labour market .
(6) The European Parliament has called for the extension of the protection of discrimination in European Union law .
(7) The European Commission has affirmed in its Communication ‘Renewed social agenda: Opportunities, access and solidarity in 21st century Europe’ that, in societies where each individual is regarded as being of equal worth, no artificial barriers or discrimination of any kind should hold people back in exploiting these opportunities. Discrimination based on religion or belief, disability, age or sexual orientation may undermine the achievement of the objectives of the EC Treaty, in particular the attainment of a high level of employment and of social protection, the raising of the standard of living, and quality of life, economic and social cohesion and solidarity. It may also undermine the objective of abolishing of obstacles to the free movement of persons, goods and services between Member States.
(8) Existing European Union legislation includes three legal instruments adopted on the basis of Article 13(1) of the EC Treaty, which aim to prevent and combat discrimination on grounds of sex, racial and ethnic origin, religion or belief, disability, age and sexual orientation. These instruments have demonstrated the value of legislation in the fight against discrimination. In particular, Directive 2000/78/EC establishes a general framework for equal treatment in employment and occupation on the grounds of religion or belief, disability, age and sexual orientation. However, variations remain between Member States on the degree and the form of protection from discrimination on these grounds beyond the areas of employment.
(9) Therefore, legislation should prohibit discrimination based on religion or belief, disability, age or sexual orientation in a range of areas outside the labour market, including social protection, education and access to and supply of goods and services, including housing. Services should be taken to be those within the meaning of Article 57 of the Treaty on the Functioning of the European Union.
(10) Directive 2000/78/EC prohibits discrimination in access to vocational training; it is necessary to complete this protection by extending the prohibition of discrimination to education which is not considered vocational training.
(11) Deleted.
(12) Discrimination is understood to include direct and indirect discrimination, harassment, instructions to discriminate and denial of reasonable accommodation to people with disabilities. Moreover, direct discrimination includes discrimination based on assumptions about a person’s religion or belief, disability, age or sexual orientation.
(12a) (new) In accordance with the judgment of the Court of Justice in Case C-303/06 , it is appropriate to provide explicitly for protection from discrimination by association on all grounds covered by this Directive. Such discrimination occurs, inter alia, when a person is treated less favourably, or harassed, because, in the view of the discriminator, he or she is associated with persons of a particular religion or belief, disability, age or sexual orientation, for instance through his or her family, friendships, employment or occupation. […]
(12b) (new) Harassment is contrary to the principle of equal treatment, since victims of harassment cannot enjoy access to social protection, education and goods and services on an equal basis with others. Harassment can take different forms, including unwanted verbal, physical, or other non-verbal conduct. Such conduct may be deemed harassment in the meaning of this Directive when it is either repeated or otherwise so serious in nature that it has the purpose or effect of violating the dignity of a person and of creating an intimidating, hostile, degrading, humiliating or offensive environment. In this context, the mere expression of a personal opinion or the display of religious symbols or messages are presumed as not constituting harassment .
(12c) (new) When defining the concept of harassment, the Member States may establish the necessary measures to guarantee protection of the right to freedom of religion, or to freedom of expression. Such measures may include legislative provisions limiting the protection against harassment where this is necessary for ensuring the respect of the fundamental rights and freedoms of others.
(13) In implementing the principle of equal treatment irrespective of religion or belief, disability, age or sexual orientation, the European Union should, in accordance with Article 8 of the Treaty on the Functioning of the European Union, aim to eliminate inequalities, and to promote equality between men and women, especially since women are often the victims of multiple discrimination.
(14) The appreciation of the facts from which it may be presumed that there has been direct or indirect discrimination should remain a matter for the national judicial or other competent bodies in accordance with rules of national law or practice. Such rules may provide, in particular, for indirect discrimination to be established by any means including on the basis of statistical evidence.
(14a) Differences in treatment in connection with age may be permitted under certain circumstances if they are objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary. […]
(14b) (new) People under the age of 18 must be protected against discrimination on the grounds of age. This protection is without prejudice to differences of treatment provided under national rules aiming to protect the best interests of the child, especially rules concerning the organisation of education at all levels, and access to certain goods and services.
(15) Actuarial and risk factors related to disability and to age are used in the provision of insurance, banking and other financial services. These should not be regarded as constituting discrimination where service providers have shown, by relevant actuarial principles, accurate statistical data or medical knowledge, that such factors are determining factors for the assessment of risk.
(16) Deleted.
(17) While prohibiting discrimination, it is important to respect other fundamental rights and freedoms, including the protection of private and family life and transactions carried out in that context, the freedom of religion, the freedom of association, the freedom of expression and the freedom of the press.
(17a) (new) This Directive covers the application of the principle of equal treatment in the fields of social protection, education and access to goods and services within the limits of the competences of the European Union.
The Member States are responsible for the organisation and content of systems of social protection, health care and education, as well as for the definition of who is entitled to receive social protection benefits, medical treatment and education.
(17b) (new) This Directive covers access to social protection, which includes social security, social assistance, and health care, thereby providing comprehensive protection against discrimination in this field. Consequently, the Directive applies with regard to access to rights and benefits which are derived from general or special social security, social assistance and healthcare schemes, which are provided either directly by the State, or by private parties in so far as the provision of those benefits by the latter is funded by the State. In this context, the Directive applies with regard to benefits in cash, benefits in kind and services, irrespective of whether the schemes involved are contributory or non-contributory. The abovementioned schemes include, for example, access to the branches of social security defined by Regulation 883/2004/EC on the coordination of social security systems , as well as schemes providing for benefits or services granted for reasons related to the lack of financial resources or risk of social exclusion.
(17c) Deleted.
(17d) (new) All individuals enjoy the freedom to contract, including the freedom to choose a contractual partner for a transaction. This Directive should not apply to economic transactions undertaken by individuals for whom these transactions do not constitute a professional or commercial activity.
In particular, this Directive does not apply to transactions related to housing which are performed by natural persons, when the activities in question do not constitute a professional or commercial activity.
In this context, the concept of professional or commercial activity may be defined in accordance with the national laws and practice of the Member States.
(17e) (new) This Directive does not alter the division of competences between the European Union and the Member States in the areas of education and social protection, including social security, social assistance and health care. It is also without prejudice to the essential role and wide discretion of the Member States in providing, commissioning and organising services of general economic interest.
(17f) (new) The exclusive competence of Member States with regard to the organisation of their social protection systems includes decisions on the setting up, financing and management of such systems and related institutions as well as on the substance and delivery of benefits and health services and the conditions of eligibility. In particular Member States retain the possibility to reserve certain benefits or services to certain age groups or persons with disabilities. Moreover, this Directive is without prejudice to the powers of the Member States to organise their social protection systems in such a way as to guarantee their sustainability.
(17g) (new) The exclusive competence of Member States with regard to […] the organisation of their educational systems and the content of teaching and of educational activities, including the provision of special needs education, includes the setting up and management of educational institutions, the development of curricula and other educational activities and the definition of examination processes. In particular Member States retain the possibility to set age limits for certain education activities. However, there may be no discrimination in the access to educational activities, including the admission to and participation in classes or programmes and the evaluation of students’ performance.
(17h) (new) This Directive does not apply to matters covered by family law including marital status and adoption, and laws on reproductive rights. It is also without prejudice to the secular nature of the State, state institutions or bodies, or education.
(18) Deleted.
(19a) Persons with disabilities include those who have long term physical, mental, intellectual or sensory impairments which, in interaction with various barriers, may hinder their full and effective participation in society on an equal basis with others.
(19b) (new) Measures to ensure accessibility for persons with disabilities on an equal basis with others, to the areas covered by this Directive play an important part in ensuring full equality in practice. Such measures should include the identification and elimination of obstacles and barriers to accessibility. They should not impose a disproportionate burden.
(19c) (new)
(19d) (new) Improvement of accessibility can be provided by a variety of means, including application of the “universal design” principle. “Universal design” means the design of products, environments, programmes and services to be usable by all people, to the greatest possible extent, without the need for adaptation or specialised design. “Universal design” should not exclude assistive devices for particular groups of persons with disabilities where this is needed.
(20) Legal requirements and standards on accessibility have been established at European level in some areas while Article 16 of Council Regulation 1083/2006 of 11 July 2006 on the European Regional Development Fund, the European Social Fund and the Cohesion Fund and repealing Regulation (EC) No 1260/1999 requires that accessibility for disabled persons is one of the criteria to be observed in defining operations co-financed by the Funds. The Council has also emphasised the need for measures to secure the accessibility of cultural infrastructure and cultural activities for people with disabilities .
(20a) (new) In addition to general measures to ensure accessibility, individual measures to provide reasonable accommodation play an important part in ensuring full equality in practice for persons with disabilities to the areas covered by this Directive. Reasonable accommodation means necessary and appropriate modifications and adjustments not imposing a disproportionate burden, where needed in a particular case, in order to ensure to persons with disabilities access on an equal basis with others.
(20b) (new) In assessing whether measures to ensure accessibility or reasonable accommodation would impose a disproportionate burden, account should be taken of a number of factors including the size, resources and nature of the organisation or enterprise, as well as the costs and possible benefits of such measures. A disproportionate burden would arise, for example, where significant structural changes would be required in order to provide access to movable or immovable property which is protected under national rules on account of their historical, cultural, artistic or architectural value.
(20c) (new) The principle of accessibility is established in the United Nations Convention on the Rights of Persons with Disabilities. The principles of reasonable accommodation and disproportionate burden are established in Directive 2000/78/EC and the United Nations Convention on the Rights of Persons with Disabilities.
(21) The prohibition of discrimination should be without prejudice to the maintenance or adoption by Member States of measures intended to prevent or compensate for disadvantages suffered by a group of persons of a particular religion or belief, disability, age or sexual orientation. Such measures may permit organisations of persons of a particular religion or belief, disability, age or sexual orientation where their main object is the promotion of the special needs of those persons.
(22) This Directive lays down minimum requirements, thus giving the Member States the option of introducing or maintaining more favourable provisions. The implementation of this Directive should not serve to justify any regression in relation to the situation which already prevails in each Member State.
(23) Persons who have been subject to discrimination based on religion or belief, disability, age or sexual orientation should have adequate means of legal protection. To provide a more effective level of protection, associations, organisations and other legal entities should be empowered to engage in proceedings, including on behalf of or in support of any victim, without prejudice to national rules of procedure concerning representation and defence before the courts.
(24) The rules on the burden of proof must be adapted when there is a prima facie case of discrimination and, for the principle of equal treatment to be applied effectively, the burden of proof must shift back to the respondent when evidence of such discrimination is brought. However, it is not for the respondent to prove that the plaintiff adheres to a particular religion or belief, has a particular disability, is of a particular age or has a particular sexual orientation.
(25) The effective implementation of the principle of equal treatment requires adequate judicial protection against victimisation.
(26) In its resolution on the Follow-up of the European Year of Equal Opportunities for All (2007), the Council called for the full association of civil society, including organisations representing people at risk of discrimination, the social partners and stakeholders in the design of policies and programmes aimed at preventing discrimination and promoting equality and equal opportunities, both at European and national levels.
(27) Experience in applying Directives 2000/43/EC and 2004/113/EC show that protection from discrimination on the grounds covered by this Directive would be strengthened by the existence of a body or bodies in each Member State, with competence to analyse the problems involved, to study possible solutions and to provide concrete assistance for the victims.
(28) Deleted.
(29) Member States should provide for effective, proportionate and dissuasive sanctions in case of breaches of the obligations under this Directive.
(30) In accordance with the principles of subsidiarity and proportionality as set out in Article 5 of the Treaty on the Functioning of the European Union, the objective of this Directive, namely ensuring a common level of protection against discrimination in all the Member States, cannot be sufficiently achieved by the Member States and can therefore, by reason of the scale and impact of the proposed action, be better achieved by the European Union. This Directive does not go beyond what is necessary in order to achieve those objectives.
(31) In accordance with paragraph 34 of the interinstitutional agreement on better law-making, Member States are encouraged to draw up, for themselves and in the interest of the European Union, their own tables, which will, as far as possible, illustrate the correlation between the Directive and the transposition measures and to make them public.

Article 1 Purpose
This Directive lays down a framework for combating discrimination on the grounds of religion or belief, disability, age, or sexual orientation, with a view to putting into effect in the Member States the principle of equal treatment within the scope of Article 3.

Article 2 Concept of discrimination

1. For the purposes of this Directive, the “principle of equal treatment” shall mean that there shall be no direct or indirect discrimination, […] on any of the grounds referred to in Article 1.

2. For the purposes of paragraph 1, the following definitions apply:
a) direct discrimination shall be taken to occur where one person is treated less favourably than another is, has been or would be treated in a comparable situation, on any of the grounds referred to in Article 1;
(b) indirect discrimination shall be taken to occur where an apparently neutral provision, criterion or practice would put persons of a particular religion or belief, a particular disability, a particular age, or a particular sexual orientation at a particular disadvantage compared with other persons, unless that provision, criterion or practice is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary;
(c) Denial of reasonable accommodation in a particular case, as provided for by Article 4a of the present Directive as regards persons with disabilities, shall be taken to be discrimination,

3. Harassment shall be deemed to be a form of discrimination within the meaning of paragraph 1, when unwanted conduct related to any of the grounds referred to in Article 1 takes place with the purpose or effect of violating the dignity of a person and of creating an intimidating, hostile, degrading, humiliating or offensive environment. In this context, the concept of harassment may be defined in accordance with the national laws and practice of the Member States.

3a. Discrimination includes direct discrimination or harassment due to a person’s association with persons of a certain religion or belief, persons with disabilities, persons of a given age or of a certain sexual orientation; […]

4. An instruction to discriminate against persons on any of the grounds referred to in Article 1 shall be deemed to be discrimination within the meaning of paragraph 1.
5.
6. Notwithstanding paragraph 2, differences of treatment on grounds of age shall not constitute discrimination, if they are objectively justified by a legitimate aim, and if the means of achieving that aim are appropriate and necessary. […]
In this context, differences of treatment […] under national regulations fixing a specific age for access to social protection, including social security, social assistance and healthcare; education; and certain goods or services which are available to the public, […] or providing for more favourable conditions of access for persons of a given age, in order to promote their economic, cultural or social integration, are presumed to be non-discriminatory.

6a. (new) Notwithstanding paragraph 2, differences of treatment of persons with a disability shall not constitute discrimination, if they are aimed at protecting their health and safety and if the means of achieving that aim are appropriate and necessary.

7. Notwithstanding paragraph 2, in the provision of financial services, proportionate differences in treatment where, for the service in question, the use of age or disability is a determining factor in the assessment of risk based on relevant actuarial principles, accurate statistical data or medical knowledge shall not be considered discrimination for the purposes of this Directive.

8. This Directive shall be without prejudice to measures laid down in national law which, in a democratic society, are necessary for public security, for the maintenance of public order and the prevention of criminal offences, for the protection of health and the protection of the rights and freedoms of others.

Article 3 Scope

1. Within the limits of the powers conferred upon the European Union, the prohibition of discrimination shall apply to all persons, as regards both the public and private sectors, including public bodies, in relation to […]:
(a) Social protection, including social security, social assistance and healthcare;
(b)
(c) Education;
(d) and the supply of, goods and other services which are available to the public, including housing.
Subparagraph (d) shall apply to natural persons only insofar as they are performing a professional or commercial activity defined in accordance with national laws and practice.

2. This Directive does not alter the division of competences between the European Union and the Member States. In particular it does not apply to:
(a) matters covered by family law, including marital status and adoption, and the benefits dependent thereon, as well as laws on reproductive rights;
(b) the organisation of Member States’ social protection systems, including decisions on the setting up, financing and management of such systems and related institutions as well as on the substance and delivery of benefits and services and the conditions of eligibility;
(c) the powers of Member States to determine the type of health services provided and the conditions of eligibility; […]
(d) […] the organisation of the Member States’ educational systems, the content of teaching and of educational activities, including the provision of special needs education; and
(e) (new) the organisation of the Member States’ housing services, including the management or allocation of such services and the powers of the Member States to determine the conditions of eligibility for social housing.

3. […] the application of the principle of equal treatment in the area of education does not preclude differences of treatment based on religion in the context of the admission policies of ethos-based educational institutions.
These differences of treatment must be proportionate and necessary for the protection of the rights and freedoms of others, and shall not justify discrimination on any other ground.

3a. This Directive is without prejudice to national measures authorising or prohibiting the wearing of religious symbols.

4. This Directive is without prejudice to national legislation ensuring the secular nature of the State, State institutions or bodies, or education, or concerning the status and activities of churches and other organisations based on religion or belief.

5. This Directive does not cover differences of treatment based on nationality and is without prejudice to provisions and conditions relating to the entry into and residence of third-country nationals and stateless persons in the territory of Member States, and to any treatment which arises from the legal status of the third-country nationals and stateless persons concerned.

 


[1] Other provisions are essential on the fight against discrimination and are:
Article 79 (4) TFEU in the domain of migration on the basis of which: “[…]The European Parliament and the Council, acting in accordance with the ordinary legislative procedure, may establish measures to provide incentives and support for the action of Member States with a view to promoting the integration of third-country nationals residing legally in their territories, excluding any harmonisation of the laws and regulations of the Member States […]”.
l’Article 157 TFEU (ex article 141 of TEC): “Each Member State shall ensure that the principle of equal pay for male and female workers for equal work or work of equal value is applied.[…]”

[2] On the basis of Article 13 the following Directives have already been adopted:

Directive 2000/43/CE Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin

Directive 2000/78/CE Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation

Directive 2004/113/CE Council Directive 2004/113/EC of 13 December 2004 implementing the principle of equal treatment between men and women in the access to and supply of goods and services.

Setting up of a Panel for the partial renovation of the Judges and Advocates General of the Court of Justice

One of the least known provisions of the Treaty of Lisbon is Article 255 of the TFEU[1] which foresees the creation of a panel who gives an opinion on candidates’ suitability to perform the duties of Judge and Advocate-General of the Court of Justice and the General Court.

The panel is composed of seven experts chosen among former members of the Court of Justice and the General Court, the highest national judicial organs and renowned juriconsults

Particularly interesting is the fact that one of the experts is put forward by the European Parliament which may influence, albeit indirectly, to the Council’s decision (obviously we are miles away from the influence exercised by national parliaments, but everybody knows that big marches are made of small steps).

The approaching of the Expiry of the terms of office of fourteen Judges of the Court of First Instance of the European Communities foreseen on 31 August has led the President of the Court of Justice of the European Union to submit the recommendation for the composition of the panel.

The Council always on the basis of the recommendation of the Court is getting ready to define the regulation on the functioning of the panel. It will entail auditions conditions (in camera) of the future judges/advocates general candidates, the possibility to request supplementary information to the Governments of the proponent states and, more importantly, the adoption of a reasoned opinion.

Currently the members suggested by the President of the Court of Justice for a period of 4 years are:

  • Mr. Jean-Marc SAUVÉ, President (currently vice president of the French Conseil d’Etat).
  • Mr Peter JANN, member (former Judge of the European Court of Justice of the European Communities)
  • Lord MANCE, member (member of the High Court of the United Kingdom)
  • Mr Torben MELCHIOR, member (President of the High Court of Denmark)
  • Mr Péter PACZOLAY, member (President of the Constitutional Court of Hungary)
  • Mss Ana PALACIO VALLELERSUNDI, member suggested by the European Parliament (former European parliamentarian, minister of Foreign Affairs of Spain and currently lawyer in Madrid)
  • Mss Virpi TIILI, member (former Judge in the court of first instance).

EDC

 


[1] Article 253 

(ex Article 223 TEC)

The Judges and Advocates-General of the Court of Justice shall be chosen from persons whose independence is beyond doubt and who possess the qualifications required for appointment to the highest judicial offices in their respective countries or who are jurisconsults of recognised competence; they shall be appointed by common accord of the governments of the Member States for a term of six years, after consultation of the panel provided for in Article 255.

Every three years there shall be a partial replacement of the Judges and Advocates-General, in accordance with the conditions laid down in the Statute of the Court of Justice of the European Union.

The Judges shall elect the President of the Court of Justice from among their number for a term of three years. He may be re-elected.

Retiring Judges and Advocates-General may be reappointed.

The Court of Justice shall appoint its Registrar and lay down the rules governing his service.

The Court of Justice shall establish its Rules of Procedure. Those Rules shall require the approval of the Council.

 

Article 254

(ex Article 224 TEC)

The number of Judges of the General Court shall be determined by the Statute of the Court of Justice of the European Union. The Statute may provide for the General Court to be assisted by Advocates- General.

The members of the General Court shall be chosen from persons whose independence is beyond doubt and who possess the ability required for appointment to high judicial office. They shall be appointed by common accord of the governments of the Member States for a term of six years, after consultation of the panel provided for in Article 255. The membership shall be partially renewed every three years.

Retiring members shall be eligible for reappointment.

C 115/158 EN Official Journal of the European Union 9.5.2008

The Judges shall elect the President of the General Court from among their number for a term of three years. He may be re-elected.

The General Court shall appoint its Registrar and lay down the rules governing his service.

The General Court shall establish its Rules of Procedure in agreement with the Court of Justice. Those

Rules shall require the approval of the Council.

Unless the Statute of the Court of Justice of the European Union provides otherwise, the provisions of the Treaties relating to the Court of Justice shall apply to the General Court.

Article 255

A panel shall be set up in order to give an opinion on candidates’ suitability to perform the duties of

Judge and Advocate-General of the Court of Justice and the General Court before the governments of the Member States make the appointments referred to in Articles 253 and 254.

The panel shall comprise seven persons chosen from among former members of the Court of Justice and the General Court, members of national supreme courts and lawyers of recognised competence, one of whom shall be proposed by the European Parliament. The Council shall adopt a decision establishing the panel’s operating rules and a decision appointing its members. It shall act on the initiative of the President of the Court of Justice.

American authorities access to banks data: challenges…and perspectives

The EU parliamentary Committee on Civil Liberties provoked a certain sensation by deciding on the 4 February to suggest to the European Parliament plenary not to conclude the interim agreement which allows the Treasury Department of The United States of America to access financial data processed by SWIFT (already published in this blog).

What the press has not explained is that this negative vote does not end the transatlantic cooperation in this domain. In fact, the second paragraph of the Recommendation invites the Commission and the Council to submit proposals complying with the new legal framework established by the Treaty of Lisbon.

Indeed, a successful conclusion of the agreement signed by the Council seems to be too shy and too advanced at the same time.

Too shy since the data protection legislation applied will remain that of the Member State where the data are stored (the Netherlands) or that of the State controlling SWIFT (Belgium). Furthermore, the authority verifying the admissibility of the request will also belong to one of these two countries despite the participation of the European Union.

The transatlantic legal framework will be the Agreement on Mutual Legal Assistance between the European Union and the United States of America, or if the conclusions will not be ratified, the bilateral agreements EU-Netherlands and EU-Belgium.

As the European Parliament’s rapporteur points out the type of access to financial data as foreseen by the TFTP is not admissible on the basis of the ordinary procedures applied in case of judicial cooperation in criminal matters. In this respect there is a risk to exceed the scope of the agreement by giving for granted the existence of a clarity in the field of data protection as well as police and judicial cooperation which does not exist not even between the Member States of the European Union.

In this regard, suffice to say that the European Union does not have a comprehensive legal framework to adequately face internal security challenges related to data protection in the field of security and police and judicial cooperation despite the numerous requests made by the European Parliament. This kind of solidarity has started with Schengen although it does not involve all the Member States.

 At this stage it is inevitable to recall the old saying “nemo plus juris transferre potest quam ipse habet”, i.e. the European Union cannot transfer more powers of what itself has.

Indeed, the European Union has given to the United States all it could on the basis of the current legislation on the Agreement on mutual legal assistance between the European Union and the United States of America concluded in Washington on 28 October 2009.

The Agreement foresees:

  •  The possibility to access banks’ data of natural or legal persons provided the latter are identified (see article 4 of the Treaty on Mutual Legal Assistance) on the basis of the European legislation in this domain (Third Directive on Money Laundering and Financial Information Regulation)
  • The possibility to extradite individuals to the United States applying the same conditions of the European Arrest Warrant
  • the possibility to create common investigation teams (on the basis of European norms concerning Europol and the Convention on Criminal Assistance).

This said, it is still technically feasible to make the transatlantic cooperation even more ambitious and make sure that the jurisprudence produced by international agreements may be translated in internal legislative measures.

To reach this goal it will then be necessary to put forward a series of simultaneous political operations which have been impossible to develop before.

Now, the first question concerns whether the American pressure will convince Member States to finally set up the necessary legal framework.

Secondly and more significantly, it is necessary to understand whether the requests put forward by the United States are compatible with the Treaty of Lisbon and the Charter on Fundamental Rights.

Thirdly, it is necessary to identify which European authority will be responsible for the Member States. For instance, one possibility to assess will be whether it would be possible to extend Eurojust and/or Europol’s powers instead of that of Dutch and Belgian authorities, ensuring at the same time loyal cooperation between the Member States.

Moreover, challenges do not only arise on this part of the Atlantic. The American negotiator is facing other equally demanding questions. For example, in case the authority in charge of the conclusions of the Agreement remains the Administration it will not be possible to seal an “executive agreement” since -by definition- it cannot modify the legal status of the American and European citizens.

What is more, an executive agreement will hardly secure the respect of those guarantees which the Charter requires avoiding hazardous appeals in front of the European and National Courts (see Karlsruhe …).

To do that it would be necessary, as in the case of police and judicial cooperation in criminal matters to pass the Congress and obtain two-thirds of the votes in the Senate. Once again, as it is often the case during the challenging evolution of the European Union, with fantasy and mutual respect it will be maybe possible to build a Transatlantic area of freedom, security and justice to which the Stockholm Programme and the inter-ministerial declaration referred on 28 October.