Monday, 16 February 2015

by Catherine Barnard, Trinity College, Cambridge


Opinion 2/13 is a judgment for lawyers, not politicians, albeit one with major political ramifications. It engages in a detailed legal analysis of the relevant provisions of the Draft Accession Agreement (DAA), as well as key principles of EU law. This does not always make it an easy read. Others have helpfully explained the Opinion (see the Editorial comments in (2015) 52 Common Market Law Review 1); a number have been have been highly critical of it (eg Douglas-Scott, Peers, Lock). I want to see whether it is possible to adopt a more positive reading of the Opinion. My remarks focus on three points:

  • Was there a failure to see the wood for the trees in the negotiations?
  • Was Opinion 2/13 really a case of judicial vanity?
  • What are the effects of Opinion 2/13 on relations between the CJEU and the European Court of Human Rights?

Was there a failure to see the wood for the trees in the negotiations?

The submissions of the Member States and the AG’s Opinion focused on the content of the Draft Accession Agreement: are the various clauses of the agreement compatible with EU law? But I think the Court felt that the focus on the nuts and bolts of the DAA meant that the negotiators failed to look at the bigger picture, namely (1) that the EU is not a state; and (2) that EU law has special characteristics (the language of Article 1 of Protocol 8[1]) which had not been sufficiently accommodated by the DAA.

In other words, the DAA focused on the state of the soft furnishings of the house – the carpets and curtains – rather than on the structural soundness of the entire edifice. But the Court was much more concerned with the edifice rather than the soft furnishings. This is why it devoted a substantial part of its Opinion (paragraphs 153-177) to identifying the ‘specific characteristics’ of EU law which it thought risked being undermined by accession to the ECHR. It identified these specific characteristics as supremacy, direct effect, conferral of powers, institutional structure[2], as well as the principle of mutual trust[3]and fundamental rights (why so far down the list?).[4] The Court also emphasised the importance of the autonomy of EU law – that is its autonomy from both the laws of the Member States and international law.[5] The Court said that the autonomy of EU law, together with its specific characteristics, were preserved by the judicial system intended to ensure consistency and uniformity in the interpretation of EU law.[6] And the key to this system is the Article 267 TFEU preliminary reference procedure.[7] It was against this backcloth, said the Court, that the DAA had to be considered.

Having set out its stall, the Court was, I think, trying to indicate that anything in – or about – the Accession agreement which jeopardised this core contravened EU law. Putting it another way, the discussion in paragraphs 153-177 was not put there simply to teach EU lawyers to suck EU eggs; these paragraphs are integral to the logic that followed. They provided the context for the Court to consider not just the points raised by the Member States in their submissions but also the bigger constitutional picture.

This broader constitutional context also helps to explain the focus on the three substantive issues: Article 53, mutual trust and Protocol No. 16 which had featured little in the submissions and the AG’s Opinion. At first sight, it is particularly surprising that Protocol No. 16 was considered at all. It allows national courts of last resort of states signed up to the Protocol to make ‘references’ to the European Court of Human Rights for an interpretation of the Convention.[8] It was concluded after the DAA had been agreed and it has not yet been brought into force. Yet the mere existence of Protocol 16 gave the Court the opportunity to express its views on the centrality of Article 267 TFEU to the EU system and how the reference procedure might be undermined.

In other words, for the Court, the EU’s team negotiating the DAA had failed to consider this important constitutional ‘wood’, focusing too much on the ‘trees’. Addressing the concerns about the potential infringement of Article 267 TFEU, together with the issues raised about Article 53 TFEU, the principle of mutual trust and Protocol No 16, was essential before accession could take place.

Was Opinion 2/13 a case of judicial vanity?

Critics of Opinion 2/13 argue that the Court of Justice was determined to protect its supremacy at all costs. Despite the fact that all intervening Member States, the AG (with reservations), and the Presidents’ joint communication indicated support for the DAA, the Court cussedly did the opposite. Even if this narrative is correct (which I doubt – see below), I actually think there would be some justification for the Court refusing to surrender itself so absolutely to the control of a ‘higher’ court. Compared to the US Supreme Court, it is still a teenager as a court. It continues to deal with threats to its supremacy from the Constitutional Courts of the Member States. It has, more or less, successfully held off those challenges. It certainly saw off a challenge to its supremacy from the power of the UN in Kadi I.[9] There, its identification of the autonomy of EU law was largely welcomed: David was seeing off Goliath. The situation is different now. The CJEU has now assumed Goliath-like proportions. Autonomy may now be mistaken for hubris, arrogance, disdain for its sister court. However, to the Court of Justice, subordination to a ‘higher’ court might suggest the Court is not invincible. It has always been very sensitive to this possibility.

However, I am not sure that the narrative of judicial vanity is correct. After all the Court does expressly concede that EU law – and the Court of Justice – are subjecting themselves to external review.[10] It points out that:

It is admittedly inherent in the very concept of external control that, on the one hand, the interpretation of the ECHR provided by the ECtHR would, under international law, be binding on the EU and its institutions, including the Court of Justice, and that, on the other, the interpretation by the Court of Justice of a right recognised by the ECHR would not be binding on the control mechanisms provided for by the ECHR, particularly the ECtHR, as Article 3(6) of the draft agreement provides and as is stated in paragraph 68 of the draft explanatory report.

The Court also recognises that there is an obligation on the EU to accede to the Convention. However, I think the structure of paragraphs 160-162 is telling. The emphasis is not on the obligation to accede under Article 6(2) TEU, first sentence. Rather, the Court emphasises that accession is subject to limitations: accession must ‘not affect the Union’s competences as defined in the Treaties’ (Article 6(2) TEU, second sentence), nor must it interfere with the specific characteristics of the EU (Protocol 8, protocols being of equal value to the Treaties). As the Court put it at paragraph 164:

For the purposes of that review, it must be noted that, as is apparent from paragraphs 160 to 162 above, the conditions to which accession is subject under the Treaties are intended, particularly, to ensure that accession does not affect the specific characteristics of the EU and EU law.

This is a subtle change in emphasis but an important one. Yes, Article 6(2), first sentence, suggests an absolute obligation to accede. However, when viewed through the lens of Protocol 8 and the second sentence of Article 6(2) TEU, the Treaty provided not an absolute obligation to accede but a conditional one.[11] I think this is the line the Court took.

What are the effects of the Opinion on relations with the ECtHR?

For proponents of the thesis of CJEU vanity, the effect of the Opinion on relations with the ECtHR is disastrous. The fact that the Opinion came out just before Christmas – not a bad time to bury bad news – might support the idea that the Court of Justice had something to hide.

Again, a closer look at the judgment might refute, at least in part, this allegation. First, at no point did the Court criticise the European Court of Human Rights or its case law; its ire seems to have been directed at the EU’s negotiating team.

Second, as Peers has helpfully digested, the Court has clearly identified areas for improvement. It has thus provided a drafting ‘shopping list’ for the EU’s (new?) negotiating team. Some of these items are relatively straightforward to address. Some, especially those concerning the CFSP, mutual trust,[12] Article 53 and Protocol 16, may not be. And the logistics of renegotiating the DAA in the face of a number of intransigent states both in the EU and outside, gives considerable pause for thought.

But the fact is that the Court of Justice did not close the door on EU accession to the ECHR. Leaving it ajar, yes, but not slamming the door shut completely. And the Court of Human Rights is a sensitive institution. While its first reaction might be disappointment (see thePresident’s remarks on the opening of the judicial year), judicial comity will lead the judiciary in both Courts to engage – probably privately – with each other.


A number of commentators have been tremendously critical of the Court’s decision. Their disappointment is understandable. There was so much hope associated with accession. The effect of Opinion 2/13 is to stymie these hopes. One reading of the Opinion is that the Court did this to deliver a body blow to the ECtHR and to (re)assert the CJEU’s own supremacy. In this case the judgment is very much a political one dressed up in lawyers’ clothing. Another reading is that the Court was focused on (re)asserting the specific features of EU law, which it felt had not been adequately recognised in the negotiation process. In this case the judgment is very much a legal one.

But there may be a silver-lining. The Court of Justice has put down a marker that it thinks that it can ‘do’ human rights. It may now have to prove this. There may be more decisions like Abdida,[13] delivered by the Grand Chamber on the same day as Opinion 2/13(discussed by Peers), where the Court adopts a pro-human rights line (sweetened by numerous references to the case law of the European Court of Human Rights). Politically this may be very important, not only to start the process of bridge building with the Court of Human Rights, but also to send out a message to its own (troublesome) constitutional courts. For what is sauce to the (CJEU) goose is also sauce for the gander of the national constitutional courts.

These remarks were first delivered to a seminar organised by CELS, Faculty of Law, University of Cambridge, 4 February 2015.

Barnard & Peers: chapter 9

[1] ‘The agreement relating to the accession of the Union to the European Convention on the Protection of Human Rights and Fundamental Freedoms (hereinafter referred to as the “European Convention”) provided for in Article 6(2) of the Treaty on European Union shall make provision for preserving the specific characteristics of the Union and Union law, in particular with regard to: (a) the specific arrangements for the Union’s possible participation in the control bodies of the European Convention;(b) the mechanisms necessary to ensure that proceedings by non-Member States and individual applications are correctly addressed to Member States and/or the Union as appropriate.’

[2] Paras. 165-6.

[3] Para. 168. See also K. Lenaerts, ‘The Principle of Mutual Recognition in the Area of Freedom, Security and Justice’, The Fourth Annual Sir Jeremy Lever Lecture, All Souls College Oxford, 30 Jan. 2015.

[4] Para. 169.

[5] Para. 170.

[6] Para. 174.

[7] Para. 176. See also Opinion 1/09, ECLI:EU:C:2011:123.

[8] Art. 1 says ‘Highest courts and tribunals of a High Contracting Party, as specified in accordance with Article 10, may request the Court to give advisory opinions on questions of principle relating to the interpretation or application of the rights and freedoms defined in the Convention or the protocols thereto.’

[9] Kadi and Al Barakaat International Foundation v Council and Commission, C‑402/05 P and C‑415/05 P, EU:C:2008:461.

[10] Para. 182-5.

[11] For hints of that view, see Discussion document of the Court of Justice of the European Union on certain aspects of the accession of the European Union to the European Convention for the protection of Human Rights and Fundamental freedoms, May 2010, paras. 4-5

[12] See further A. Kornezow, ‘The Area of Freedom, Security and Justice in the Light of the EU Accession to the ECHR—Is the Break-up Inevitable?’ (2012-13) 12 CYELS 227.

[13] Case C-562/13 ECLI:EU:C:2014:2453.



By Sabine Jacques

In mid-January, Julia Reda (Pirate Party MEP) communicated a draft of her report on the implementation of the Information Society Directive (‘InfoSoc Directive) 2001/29/EC (it’s lengthy, but a summary can be found here). Described as ‘the most progressive official EU document on copyright since the first cat picture was published on the web’, but also as being ‘surprisingly extreme’ and even being ‘inacceptable, this report attracted widespread interest and statements of support from different digital rights organisations.

While the report rightly urges for an ever-increasing ‘internet-friendly copyright law’, the report might have gone too far in relation to parodies. Article 5.3(k) of the InfoSoc Directive currently provides the possibility for EU Member States to introduce a parody exception for the purposes of parody, pastiche and caricature to the exclusive right of reproduction in their national copyright laws (this opportunity was seized by the UK which now includes a parody exception in section 30A CDPA). This provision was interpreted by the Court of Justice of the European Union in the Deckmyn case, guiding national courts in their application of the exception to particular facts (for comments on this decision see here and the AG’s opinion see here).

At 17 on page 6 of the report, Julia Reda suggests ‘that the exception for caricature, parody and pastiche should apply regardless of the purpose of the parodic use’. Without further explanations, such a broad exception raises concerns.

The parody exception is an exception to the right-holder’s exclusive right of reproduction. As such, international treaties subject it to the application of the three-step test (Berne Convention art. 9(2), TRIPS Agreement arts. 9(1) and 13; and, WCT arts. 1(4) and 10). This test requires any exceptions in national legislation to be limited to ‘certain special cases, provided that such reproduction does not conflict with a normal exploitation of the work and does not unreasonably prejudice the legitimate interests of the author’. The French authorities’ response appropriately expresses concerns that a parody exception applicable outside any purpose of parody is unlikely to meet the first step of ‘certain special cases’. As this requirement means that a shapeless provision exempting broad series of uses should not be tolerable and reflects the need for legislators to reconcile opposing interests.

The exception for the purpose of parody, caricature or pastiche aims to provide the possibility for parodists to copy copyrighted works in limited circumstances. The current parody exception is the result of a compromise in light of the objectives underlying the exception. The issue opposes the interests of right-holders (who are entitled to be rewarded for their creation) against the interest of the users (who need to reproduce prior works to create the new work). Removing its purpose is likely to amount to a shapeless exception rebuffed by international obligations.

Yet, La Quadrature du Net interprets Julia Reda’s proposal as: ‘to admit the parody exception for non-humorous creations’. If this is her aim, this could be achieved through the current wording of the exception for the purpose of parody.

The Court of Justice of the European Union has defined ‘parody’ through its requirements in Deckmyn. At para 20, the Court notes that a parody needs: ‘to evoke an existing work while being noticeably different from it, and, secondly, to constitute an expression of humour or mockery’.

The expression of humour or mockery does not exclude the expression of criticisms. By requiring the parodist to have a humorous intent, it is suggested that a broad interpretation should prevail as to include playful, homage or serious expressions (a glimpse at French case law which knows a long history of the application of the parody exception shows evidence of serious expressions and the inclusion of satire). The limit being that the expression should refrain from being prejudicial to the person of the author or his work(s). The failure to meet this requirement enables the right-holder to enforce his or her moral rights (especially the integrity right). Additionally, where an individual is defamed, this person can bring an action under defamation law.

Also, the primary justification to the introduction of a parody exception is to facilitate the exercise of one’s freedom of expression. While freedom of expression is already considered in the current InfoSoc Directive (Recital 3 reads: ‘The proposed harmonisation will help to implement the four freedoms of the internal market and relates to compliance with the fundamental principles of law and especially of property, including intellectual property, and freedom of expression and the public interest.’) and the interpretation of the parody exception in Deckmyn (at para 25), the report (recitals C and D) confirms the importance of the relationship between copyright and related rights and freedom of expression both protected under the Charter of Fundamental Rights of the European Union (respectively enshrined in article 17(2) and 11).

Yet, the concerns expressed by Julia Reda concerning the likelihood of achieving harmonisation of the exceptions throughout the EU territory under the current InfoSoc Directive (at 10) are shared. Additionally, her wish to make copyright exceptions mandatory is welcomed (at 11) and would certainly contribute to the objective of harmonisation desired.

To conclude, it must be reminded that this report is merely a draft. This one will now be handed over to the Legal Affairs Committee and to the Internal Market and Culture committees. Overall, the report makes important proposals but there is still room for improvement. Against this backdrop, care must be taken regarding the details of each provision such as for the parody exception to ensure that the impact of the exception applicable outside parody uses does not disrupt the balance desired between the interests of right-holders and parodists.

The European Union and State Secrets: a fully evolving institutional framework…in the wrong direction (2).


In a passionate intervention before the Civil Liberties Committee of the European Parliament (LIBE) on January 8 the European Ombudsman has denounced the fact that:For the first time in its twenty year history, the European Ombudsman was denied its right under Statute to inspect an EU institution document, even under the guarantee of full confidentiality, as part of an inquiry… This power to inspect documents is fundamental to the democratic scrutiny role of the Ombudsman and acts as a guarantor of certain fundamental rights to the EU citizen.”

The case concerned Europol’s refusal to give access to a Joint Surpervisory Body (JSB) report on the implementation of the EU-US Terrorist Finance Tracking Program (TFTP) Agreement (known as “SWIFT” agreement). The JSB consists of representatives of the data protection authorities of the Member States which should ensure that the storage, processing and use of the data held by Europol do not violate fundamental EU rights. To check if  Europol was correctly applying EU law the Ombusdman has asked to inspect the JSB report. ”However”,as stated by Mrs O’Reilly,”..according to Europol, the “technical modalities” agreed between the Commission and the US under Article 4(9) of the TFTP Agreement required Europol to obtain the permission of the US authorities before allowing the Ombudsman, or any other entity, any access, including an Ombudsman confidential inspection, to the record. The US authorities have refused such permission to Europol.” Reportedly the  US authorities refused this permission because the Ombudsman “need to know” requirement for having access to that classified document was not met.

Many LIBE members have considered this statement quite appalling because it allowed the US authorities to be the arbiters of whether or not the Ombudsman may exercise her statutory, democratic power to inspect the document at issue in conformity with EU law. It is worth recalling that art. 3 par. 2 of the Ombusdman statute states that : The Community institutions and bodies shall be obliged to supply the Ombudsman with any information he has requested from them and give him access to the files concerned. Access to classified information or documents, in particular to sensitive documents within the meaning of Article 9 of Regulation (EC) No 1049/2001, shall be subject to compliance with the rules on security of the Community institution or body concerned.” 

To shed some light on this controversy it could be worth recalling some elements which to my opinion have not been developed during the parliamentary debate and I had the occasion to recall in a previous post …five years ago.

The “Originator’s principle” in art. 9 of Regulation 1049/01

First of all it should be noted that art. 9 of Regulation 1049/01 cited in the Ombudsman Statute is the only EU legislative basis which allows the classification of “sensitive documents” which are “..documents are documents originating from the institutions or the agencies established by them, from Member States, third countries or International Organizations, classified as ‘TRÈS SECRET/TOP SECRET’, ‘SECRET’ or ‘CONFIDENTIEL’ in accordance with the rules of the institution concerned, which protect essential interests of the European Union or of one or more of its Member States in the areas covered by Article 4(1)(a), notably public security, defense and military matters.” According to paragraph 3 of the same article “Sensitive documents shall be recorded in the register or released only with the consent of the originator.”

However, according to Regulation 1049/01 the Originator’s consent is an exception to the general rule according to which an Institution when requested for access to a document should be driven by objective criteria and not by the will of the “originator” even when the latter it is an EU Member State (see art. 4 p.4-6 of Regulation 1049/01). The only obligation foreseen by the Regulation is to establish a fair dialogue with the “originator” and the final judge will remain the Court of justice which should assess if Regulation 1049/01 principles and rules have been violated. Not surprisingly this general rule was not easy to agree with the Member States but it was chosen as it was the only possible way out to preserve the autonomy of EU law against the risk of inconsistent decisions at EU level if taken  following national standards which are still extremely diverse (think how different is the approach to transparency in Sweden or in Spain..).

Why then establish an exception in art. 9 ?

The main factor has been the Council reqyest to cover the first 2000 EU-NATO agreement  on exchange of classified information  which, like all similar international agreements was built on the “originator” principle and also because of this was challenged by the European Parliament before the Court of Justice. Mid 2001 a deal was then struck with the European Parliament which obtained that the exception of the “originator’s principle” should had been limited to the intergovernmental domains (at the time the internal and external security policies covered by art. 24 and 38 of the EU Treaty). The logic was that for these policies the Member States are mainly under the control of their national parliaments so that the European Parliament (as well as the Court of Justice) could not be considered co-responsible for violation of EU law.

On this basis the Council has progressively built an autonomous legal framework which can hardly be considered a simple implementation of Art.9 of Regulation 1049/01. Not only the Council has added another lower level of classified documents (“Restricted”) but it embodied  the “originator’s principle”. The Council latest version of these security rules is the Decision 2013/488/EU and  has been adopted  by the Council on its internal organizational powers (art. 240 TFEU) and “without prejudice to Articles 15 and 16 of the Treaty on the Functioning of the European Union (TFEU) and to instruments implementing them”.(eg Regulation 1049/01 and the measures protecting personal data).

Notwithstanding this “disclaimer” this Council Decision has become “de facto” an harmonizing measure as it  define the “principles” which should frame the European Union Classified Informations (EUCI). To comply with the rule of law and democratic principles these “principles” should had been adopted by the  co-legislator as foreseen by art. 15 of the TFEU (1) and by the EU Charter. But the general application of these “internal rules” derives by the fact that they should be “copy and pasted” as such in all the EU Institutions agencies and bodies “internal” security rules if the latter want to share classified informations with the Council or between them.

Also in the international negotiations the Originator’s principle has been spread in dozen of international agreements even if since the entry into force of the Lisbon Treaty these agreements deals with the exchange of classified information linked with  the common foreign and security policy (art. 37 of the TEU) (2). When classified informations deals with Judicial and police cooperation in criminal matters they now require an internal legal basis as it happened  for the  Decision concluding the EU-US agreement on TFTP. The “mutual respect clause foreseen by art. 40 TEU (3) should be respected and the European Parliament approbation is required.

Quite rightly then the European Parliament Legal Service has considered that the “technical modalities” invoked by Europol to justify the refusal of access by the Ombusdman could not be considered a sound legal basis as they were simple  “implementing measures” of the TFTP agreement and have been not part of the agreement itself.

Can the Ombusdman, the European Parliament and the Court of justice be considered simple “third parties” ?

However I am less convinced of the EP Legal Service reasoning  when it justify  the EUROPOL refusal to give the Ombusdman access to the JSB report because the originator’s  principle is embodied in …the Europol internal Security Rules.

First of all I believe that in case of conflict between the Europol Security Rules (which mirror the Council Internal security rules which themselves are implementing measure of art. 9 of Regulation 1049/01) and the Ombudsman Statute the latter should  prevail as the latter it is a direct implementation of the Treaty and is of legislative nature (as it has been adopted in codecision by the European Parliament and the Council).

Secondly (and more importantly) I consider that the question as highlighted by the Ombudsman is indeed more of constitutional nature and deals with the preservation of the principle of institutional balance in an autonomous legal order as it is the European Union (see the recent Court of Justice opinion 2/13 on the EU accession to the ECHR).

Under this perspective I think that the way how the Council has implemented the art 9 of Regulation 1049/01 is creating a sort of “executive privilege” which has no  basis in the EU primary law and can which moreover is threatening the prerogatives of the other institutions.

I find also misleading (to say the least) the formula applied by the Council in the international agreements on the exchange of classified information (even if now limited to external security policy). The formula is the following : 

The EU institutions and entities to which this Agreement applies shall be: the European Council, the Council of the European Union (hereinafter ‘the Council’), the General Secretariat of the Council, the High Representative of the Union for Foreign Affairs and Security Policy, the European External Action Service (hereinafter ‘the EEAS’) and the European Commission. For the purposes of this Agreement, these institutions and entities shall be referred to as ‘the EU’..

How can be considered complying with the EU founding values of democracy and of the rule of law as well as with the principle of legal certainty a formula which give the right to a third country such as Russia, Georgia, Turkey,  (4)  to decide that the Ombudsman, the European Parliament and the Court of Justice are “third parties which can be forbidden from acceding to classified information” even when their access is linked with the exercise of their constitutional prerogatives? (5)


For all these reasons I think that the Ombudsman should had challenged the Europol refusal before the Court of justice by giving to the Luxembourg Judges the possibility to better frame the scope of the originator’s principle and of the “third party” rule in the EU law.

In the meantime it could also be possible that the Commission (and notably its Vice president of  Timmermans in charge of the Rule of law of the EU Charter) take on board the amendments to Regulation 1049/01 (and to art. 9) as voted by the European Parliament on December 2011.

Last but not least I think that also the European Parliament should take advantage of what he has learned in Ombudsman-Europol case in  the  current negotiations with the Council on the post-Lisbon  EUROPOL decision. It could be worth amending some worrying articles of the Council “general approach” (Council Doc 10033/14 of May 28 2014) . For instance art.67 of rightly makes reference to Regulation 1049/01 but art. 69 makes reference to the Council Internal Security rules instead to art. 9 of Regulation 1049/01. I think it could also be wise to examine the content of the Europol adopted and pending international agreements as the Council “general approach” foresee  that Europol International agreements “established on the basis of Decision 2009/371/JHA and agreements concluded by Europol as established by the Europol Convention before 1 January 2010 should remain in force”.


(1)  “General principles and limits on grounds of public or private interest governing this right of access to documents shall be determined by the European Parliament and the Council, by means of regulations, acting in accordance with the ordinary legislative procedure.” (art. 15 p 3 TFEU)

(2)  See for example the 2011 agreement between the EU and Serbia on the exchange of classified information)

(3) Art 40 TEU. “The implementation of the common foreign and security policy shall not affect the application of the procedures and the extent of the powers of the institutions laid down by the Treaties for the exercise of the Union competences referred to in Articles 3 to 6 of the Treaty on the Functioning of the European Union. 

Similarly, the implementation of the policies listed in those Articles shall not affect the application of the procedures and the extent of the powers of the institutions laid down by the Treaties for the exercise of the Union competences under this Chapter.”

(4)  The third Countries with which the agreements have been concluded are :   Australia, Bosnia and Herzegovina, Former Yugoslav Republic of Macedonia, Iceland,  Israel, Liechtenstein, Montenegro, Norway, Serbia, Switzerland, Ukraine and United States of America. Agreements have also been signed with: Canada (Negotiating mandate approved by the Council  on 21.10.2003 – Under negotiation),  Turkey (Negotiated but not yet approved by the Council), Russian Federation (Agreement signed on 01.6.2010 and published  in OJ L 155, 22.6.2010, p.57. Exchange of  notes verbales following entry into force of the  Lisbon Treaty . Negotiations on  the implementing arrangements are ongoing), Albania Negotiating mandate approved by the Council  on 20.01.2014 (Under  negotiation), Georgia (Negotiating mandate approved by the Council  on 20.01.2014.Under negotiation).

(5) The fact that  the “third party rule” constitutes a guarantee for the third party to a certain extent, but it is not an absolute principle of law has been debated during the negotiations of the EU-Canada exchange of classified informations (with reference to Section 38 of the Canada Evidence Act).

TRIBUNE : “Schengen”, terrorism and security (Bertoncini / Vitorino)

by Yves Bertoncini and Antonio Vitorino (*)

The Paris attacks of January 2015 gave rise to an emotion shared by millions of Europeans, while fueling some doubts on their ability to combat terrorist threats within the “Schengen Area”, write Yves Bertoncini and António Vitorino.

1. The Schengen Agreement has resulted in a diversification of police checks, making them more effective, including those to identify terrorist threats.

The creation of the Schengen Area, which currently comprises twenty-six member countries, including twenty-two of the twenty-eight EU Member States, has led to a redeployment of national and European police checks, based on four complementary principles.

Firstly, the closure of permanent “internal” border posts within the Schengen Area, in order to avoid long and pointless queues to hundreds of thousands of Europeans who cross over every week to work, study, meet relatives and enjoy themselves – while this wait remains compulsory for those who wish to travel to or from Bulgaria, Cyprus, Croatia, Ireland, Romania and the United Kingdom.

Secondly, the organisation of mobile patrols across all Schengen Area member countries, which may be conducted jointly: these checks are much more effective, particularly with regard to the fight against cross-border crime and terrorism, as they can be used to flush out wanted persons when they are not expecting it (as is the case at a border). No terrorist has ever declared his intention when crossing a border!

Thirdly, the joint management of external borders, which are ipso facto “our” borders, as those crossing them can travel to other member countries, provided that they comply with European regulations on visas and resources. These common borders are land, sea and air borders (all airports welcoming flights from non-Schengen countries). Each country is in charge of a section of these borders, and must act to combat terrorist threats as a priority, particularly when they escalate due to conflicts occurring around the EU, namely in the Middle East and the Sahel regions.

Lastly, the possibility of applying “safeguard clauses” to reestablish national border checks for a limited period of time, for example during sporting or social events, and also in the case of terrorist threats. These clauses have already been used dozens of times since 1985, under EU supervision, in order to enable governments to deal with emergency situations.

2. Terrorist threats call for the spirit of the Schengen Agreement to be furthered

The emotion aroused in the aftermath of terrorist attacks often revives a need for reassurance that can be centred around the reopening of posts at national borders, given their importance in the collective psyche. In-depth considerations, however, urge us to satisfy this need for security within the very framework of the Schengen Area, in which the spirit of cooperation and mutual trust must be fostered.

The Madrid bombings in March 2004 were perpetrated by Islamic fundamentalists from Morocco and the East, with the complicity of Spanish nationals: it is through increased security at the Schengen Area’s external borders and stronger police and judicial cooperation that this terrorist attack could have been thwarted. While it is not a member of the Schengen Area, the United Kingdom was the target of bloody attacks in July 2005. These attacks were perpetrated by British nationals, one of whom was able to leave the country after crossing a national border: he was arrested in Rome, thanks to European police and judicial cooperation.

The perpetrators of the Paris attacks in January 2015 were born in France and were known to the country’s police and legal departments and/or its intelligence services. One of the men had been checked by Paris police a few days prior to the attacks and a few hours before leaving for Spain with his girlfriend, currently in hiding in Syria. In light of the information in the police’s possession, it’s equally unlikely that he would have been detained at the border between France and Spain. In hindsight, it can be noted that the surveillance of the three terrorists was insufficiently constant and effective to be able to detect their intention to attack.

It is by granting additional financial, human and legal resources to the police and justice bodies on both national and European levels that we can combat such terrorist attacks more effectively. Not by allocating these resources to controls at Schengen Area internal borders, which would result in pointless and very onerous checks of the millions of crossings that take place each month.

3. The police and judicial cooperation organised by the Schengen Agreement and the EU must be reinforced, including cooperation to combat terrorism

The Convention implementing the Schengen Agreement is made up of 141 articles, which were then integrated into community legislation. The first articles set out the rules that offer residents of member countries the possibility of freedom of movement. Most of the articles concern the organisation of police and judicial cooperation between national authorities – in which even non-member countries such as the United Kingdom may take part occasionally. “Schengen” therefore results in greater freedom and increased security, efforts intended to compensate and to balance, but which could be reassessed in light of terrorist threats.

The reinforcement of the financial and human resources allocated to member country policing and justice must come together with an improvement of the “Schengen Information System”, and the stepping up of exchanges between intelligence services, including bilateral arrangements. The creation of a European legal framework for air passenger data exchanges (known as “EU-PNR”) will improve police forces’ effectiveness – while the guarantees governing the use of personal data are reinforced in consequence.

European bodies such as Europol, Eurojust and the Frontex agency could step up their technical assistance for member countries if they were allocated more resources. They will contribute to reinforcing the quality of checks conducted in all respects of the Schengen Area, including on the basis of one-off assessment assignments that target suspected “weak links” and by heightening mutual trust between countries.

In conclusion, European cooperation with third countries in which terrorists are likely to travel must be improved – for example Turkey and North African countries – and also with the USA. A globalised movement of police and judicial cooperation must be promoted to increase Europeans’ safety, against a movement of unrealistic and ineffective focus on national borders.

An improved application of the Schengen Area’s operating rules is without doubt possible, to enable its member countries and the EU to withstand terrorist threats. Questioning these rules does not in any way impede freedom of movement, a right granted since the Rome Treaty to all EU residents, regardless of whether or not their country is a member of the Schengen Area. Yet this would make the exercise of this right much more complex and costly, while undermining the shared responsibility that Europeans require in order to dismantle terrorist networks.

(*) António Vitorino is president and Yves Bertoncini director of Notre Europe – Jacques Delors Institute, the EU think tank based in Paris. Vitorino is also former European Commissioner for justice and home affairs.

This Tribune of Notre Europe / Jacques DELORS Institute was also published on the HuffingtonPost.fr and on Euractiv.com.



BY Steve Peers

Over two hundred years ago, British philosopher Jeremy Bentham devised the concept of the ‘Panopticon’: a prison designed so that a jailer could in principle watch any prisoner at any time. His theory was that the mere possibility of constant surveillance would induce good behaviour in prison inmates. In recent years, his idea for a panopticon has become a form of shorthand for describing developments of mass surveillance and social control.

The EU’s forays in this area began with the creation of the Schengen Information System (SIS) in the 1990s. The SIS is a well-known EU-wide database containing enormous amounts of information used by policing, immigration and criminal law authorities.

Until now, the UK has not had any access to the SIS. But this week, the EU Council finally approved the UK’s participation in the System, thereby linking the EU’s most iconic database with the intellectual home of the panopticon theory. What are the specific consequences and broader context of this decision?


The main purpose of the Schengen system is to abolish internal border checks between EU Member States, as well as some associated non-EU States.  At the moment, the full Schengen rules apply to all EU Member States except the UK, Ireland, Cyprus, Romania, Bulgaria and Croatia. Those rules also apply to four associates: Norway, Iceland, Switzerland and Liechtenstein.

All of the Member States are obliged ultimately to become part of the Schengen system, except for the UK and Ireland. Those two Member States negotiated an exemption in the form of a special Protocol at the time when the Schengen rules (which originated in theSchengen Convention, ie a treaty drawn up outside the EU legal order) were integrated into the EU legal system, as part of the Treaty of Amsterdam (in force 1999).

The UK and Ireland are not entirely excluded from the Schengen system. In fact, they negotiated the option to apply to join only some of the Schengen rules if they wished. Their application has to be approved by the Council, acting unanimously. The UK and Ireland essentially chose to opt in to the Schengen rules concerning policing and criminal law, including the SIS, but not the rules concerning the abolition of internal border controls and the harmonisation of rules on external borders and short-term visas.

The UK’s application to this end was approved in 2000 (see Decision here), and Ireland’s was approved in 2002 (see Decision here). But in order to apply each Decision in practice, a separate subsequent Council decision was necessary, because the Schengen system cannot be extended before extensive checks to see whether the new participant is capable of applying the rules in practice.  On that basis, most of the Schengen rules which apply to the UK have applied from the start of 2005 (see Decision, after later amendments, here). The exception is the rules on the SIS, which the UK was not then ready to apply. After spending considerable sums trying to link to the SIS, the UK gave up trying to do so, on the basis that the EU was anyway planning to replace the SIS with a second-generation system (SIS II). There’s a lot of further background detail in the House of Lords report on the UK’s intention to join the SIS (see here), on which I was a special advisor. (Note that Ireland does not apply any of the Schengen rules in practice yet).

It took ages for the EU to get SIS II up and running, and it finally accomplished this task by April 2013 (see Decision here). The UK had planned to join SIS II shortly after it became operational, but this was complicated by the process of opting out of EU criminal law and policing measures adopted before the entry into force of the Treaty of Lisbon, and simultaneously opting back in to some of them again, on December 1st 2014 (see discussion of that process here). This included an opt back in to the SIS rules.

Once that particular piece of political theatre concluded its final act, the EU and the UK returned to the business of sorting out the UK’s opt in to SIS II in practice. This week’sdecision completed that process, giving the UK access to SIS II data starting from March 1st. The UK can actually use that data, and enter its own data into the SIS, from April 13th.


What exactly does participation in the SIS entail? The details of the system are set out in the 2007 Decision which regulates the use of SIS II for policing and criminal law purposes. There are also separate Regulations governing the use of SIS II for immigration purposesand giving access to SIS II data for authorities which register vehicles. The former Regulation provides for the storage of ‘alerts’ on non-EU citizens who should in principle be denied a visa or banned from entry into the EU, while the latter Regulation aims to ensure that vehicles stolen from one Member State are not registered in another one. The UK participates in the latter Regulation, but not the former, since it could only have access to Schengen immigration alerts if it fully participated in the Schengen rules on the abolition of internal border controls. On current plans, this will happen when hell freezes over.

The SIS II Decision provides for sharing ‘alerts’ on five main categories of persons or things: persons wanted for arrest for surrender or extradition purposes (mainly linked to the European Arrest Warrant); missing persons; persons sought to assist with a judicial procedure; persons and objects who should be subject to discreet checks or specific checks (ie police surveillance); and objects for seizure or use as evidence in criminal proceedings. There are also rules on the exchange of supplementary information between law enforcement authorities after a ‘hit’. For instance, if the UK authorities find that a European Arrest Warrant has been issued for a specific person, they could ask for further details from the authority which issued it.

On the other hand, the SIS does not, as is sometimes thought, provide for a basis for sharing criminal records or various other categories of criminal law data, although the EU has set up some other databases or information exchange systems dealing with such other types of data. (On criminal records in particular, see my earlier blog post here). The main point of setting up the second-generation system was to extend the SIS to new Member States (although in the end a new system wasn’t actually necessary for that purpose), and to provide for new functionalities such as storing fingerprints, which will likely be put into effect in the near future.

In practice, the UK’s participation in SIS II is likely to result in the Crown Prosecution Service receiving more European Arrest Warrants (EAWs) to process, and in more efficient processing of EAWs which the UK has issued to other Member States. It will also be easier, for instance, to check on whether a car or passport stolen in the UK has ended up on the continent, or vice versa.

Broader context

As noted already, while the UK is only now joining the SIS, the System has been around for many years, and has proved to be the precursor of many EU measures in this field. Indeed, as EU surveillance measures go, the SIS turned out to be a ‘gateway drug’: the friendly puff that led inexorably to the crack den of the data retention Directive.

Of course, interferences with the right to privacy can be justified on the basis of the public interest in enforcement of criminal law and ensuring public safety – if the interference is proportionate and in accordance with the law. Compared to (for instance) the data retention Directive and the planned passenger name records system, the SIS is highly targeted, focussing only on those individuals involved in the criminal law process, or police surveillance, or banned from entry from the EU’s territory. The legitimacy of the system therefore depends upon the accuracy and legality of the personal data placed in to it, and the connected data protection rules. On this point, the EU and national data protection supervisors have reported that many data subjects do not even know about the data held on them in SIS II, and they have produced a guide to help them with accessing their data in the system.

There’s an inevitable tension between the EU’s goal to set the world’s highest data protection standards, on the one hand, while also developing multiple huge databases, information exchange systems and surveillance laws, on the other.  It’s as if the brains of the utilitarian Jeremy Bentham and the libertarian John Stuart Mill were both battling for control of the same body – forcing it to draw up plans for the Panopticon at the same time as it was storming the Bastille. If this tension manifested itself in fiction, it would probably take the form of a comedy about a vegetarian butcher, or a virgin porn star. But the need to ensure that measures to protect our security do not remove all our liberty is not a laughing matter.


*This blog post is linked to ongoing research on the upcoming 4th edition of EU Justice and Home Affairs Law (forthcoming, OUP).


Image credit: nytimes.com

Barnard & Peers: chapter 25

Posted by Steve Peers at 23:48 No comments:

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Labels: criminal law, data protection, databases, opt-outs, right to privacy, Schengen, Schengen Information System, United Kingdom

Friday, 6 February 2015

Rights, remedies and state immunity: the Court of Appeal judgment in Benkharbouche and Janah


Steve Peers

Yesterday’s important judgment in Benkharbouche v Sudan and Janah v Libya by the Court of Appeal raised important issues of public international law, the ECHR and the EU Charter of Fundamental Rights, and demonstrated the relationship between them in the current state of the British constitution. The case involved two domestic workers bringing employment law complaints against the respective embassies of Sudan and Libya, which responded to the complaints by claiming state immunity, based on a UK Act of Parliament (the State Immunity Act) which transposes a Council of Europe Convention on that issue.

The question is whether invoking state immunity for these employment claims amounted to a breach of human rights law, given that Article 6 of the ECHR (the right to a fair trial) guarantees access to the courts, according to the case law of the European Court of Human Rights (ECtHR). In turn, this raised issues of EU law, given that Article 47 of the EU Charter of Fundamental Rights likewise guarantees the right to a fair trial, and some of the claims concerned EU law issues (the race discrimination and working time Directives). (Other claims, such as for ordinary wages and unfair dismissal, were not linked to EU law). The two cases didn’t concern human trafficking or modern slavery, although sometimes embassies are involved in such disputes too. But they would be relevant by analogy to such disputes, and there would also be a link to EU law in such cases, since there is an EU Directive banning human trafficking, which the UK has opted in to.

The Court of Appeal, essentially following the prior judgment of the Employment Appeal Tribunal, made a careful study of recent ECtHR case law, concluding that state immunity could no longer be invoked against all employment law claims, but only against those claims concerning core embassy staff. This could not apply to domestic workers; Ms. Janah’s tasks did not involve (for instance) shooting any British policewomen.

But what was the remedy for this breach of human rights principles? At lower levels, the tribunals had been powerless to rule on the claims for breach of the ECHR, since the UK’sHuman Rights Act awards the power to issue a ‘declaration of incompatibility’ that an Act of Parliament breaches the ECHR to higher courts only. So the Court of Appeal was the first court that could issue such a declaration, and it did so in this case. (The Court concluded that it could not ‘read down’ the relevant clauses in the State Immunity Act to interpret them consistently with the ECHR).

However, as compared to the effect of EU law, even a declaration of incompatibility with the ECHR is relatively weak, given that the potential remedy for a breach of EU law is the disapplication of national law, even Acts of Parliament if necessary, by the national courts. So the Court of Appeal also ruled that the relevant provisions of the State Immunity Acthad to be disapplied, to the extent that they were applied as a barrier to the claims based on EU law. On this point, the Court was following the Employment Appeal Tribunal, which had also ruled to disapply the Act, given that any level of national court or tribunal has the power to disapply an act of parliament if necessary to give effect to EU law.

If I had a pound for every law student who has confused the remedies in UK law for the breach of EU law with the remedies for the breach of the ECHR, I would be very rich indeed. Fortunately, the facts of this case easily demonstrate the distinction between them. Only the higher courts could even contemplate issuing a declaration of incompatibility with the ECHR; and the remedy of disapplication of the Act of Parliament is obviously stronger than the declaration of incompatibility, allowing the case to proceed on the merits (as far as it relates to EU law) rather than having to wait for Parliament to change the law in order to do so. And equally, the case shows the importance of the requirement that a case has to be linked to EU law in order for the Charter to apply: only the race discrimination and working time claims benefit from the disapplication of provisions of the Act of Parliament, and so only those claims can proceed to court as things stand.

From an EU law perspective, the most interesting point examined by the Court of Appeal was the application of the ‘horizontal direct effect’ of Charter rights, ie the application of EU law against private parties (since non-EU States aren’t bound by EU law as States, the court assimilated them to private parties). In its judgment last year in AMS (discussedhere), the CJEU distinguished between those Charter rights which could give rise to a challenge against national law based on the principle of supremacy of EU law, and those Charter rights which could not, since they were too imprecise to base a free-standing Charter claim upon. The right to non-discrimination on grounds of age fell within the former category, whereas the right of workers to be consulted and informed fell within the latter category. (Note that the CJEU case law classifies this as an application of the principle of supremacy, not horizontal direct effect, although the final outcome is the same no matter how the principle is classified, at least in cases like these).

The Court of Appeal reaches the conclusion that Article 47 of the Charter is also a provision which is precise enough to be used to challenge national legislation. That’s an important point, since Article 47 is a far-reaching and frequently invoked provision, and applies not just to state immunity issues but to many broader issues concerning access to the courts (including legal aid) and effective remedies.  For that reason, this judgment is an important precedent for national courts across the European Union faced with challenges to national laws based on Article 47 of the Charter, although of course it doesn’t formally bind any court besides the lower courts of England and Wales.

The Court didn’t need to rule on whether the substantive Charter rights raised by these cases would have the effect of disapplying national law, since it wasn’t ruling on the merits of the cases, but only on the issue of access to court. If it were ruling on the substantive issues, it would seem obvious that race discrimination claims have the same strong legal effect as age discrimination claims, as both claims are based on the same provision of the Charter (Article 21). However, claims based on breach of Article 31 of the Charter (the working time provision) might not have that strong legal effect. Indeed, an Advocate-General’s opinion in the pending case of Fennoll has concluded as much.

Furthermore, the social rights in the Charter (such as the rights set out in Article 31) are subject to a special rule in the Protocol to the EU Treaties which attempts to limit the effect of the Charter in the UK and Poland. The CJEU ruled in its NS judgment that this Protocol does not generally disapply the Charter in the UK, but it did not then rule if the Protocol might nonetheless affect the enforceability of social rights. Given that yesterday’s judgment was about Article 47 of the Charter, not about a substantive social right, it was not necessary for the Court of Appeal to grasp this nettle either.


Barnard & Peers: chapter 9, chapter 20

Videosurveillance and privacy in a transatlantic perspective

by Fiammetta Berardo (1)

The following article aims at illustrating how the creation of “societies under surveillance”, whose instruments reshape all people’s life, had started well before September the 11th. For instance within the USA in 1978 an investigation on the privacy violations committed in the course of foreign intelligence surveillance programmes had been leading to the adoption of a special law, the Foreign Intelligence Surveillance Act or FISA. The attacks to the Twin Towers have been offering the context and the casualty for an improvement in quality and intensity. For some political forces or for some economic actors this was an extraordinary opportunity to further develop programmes, ideas (for instance John Ashcroft’s projects previous to September the 11th) or already existing technologies in the field of mass surveillance.


Videosurveillance and other surveillance techniques are now used as a tool in the fight against international terrorism worldwide. In Europe measures used in the fight against terrorism that interfere with privacy (in particular body searches, house searches, bugging, telephone tapping, surveillance of correspondence and use of undercover agents) must be provided for by law. But it must be possible to challenge the lawfulness of these measures before a Court.

For instance, with regard to wiretapping, it must be done in conformity with the provisions of Article 8 of the European Convention on Human Rights, notably it must be done in accordance with the law. The adoption of such tools has then to be balanced with the right to privacy. The author tries to sum up the main privacy concerns surveillance techniques and mainly videosurveillance do raise in order to question whether the adoption of these tools in the fight against international terrorism has been challenging such a fundamental right.

Videosurveillance in the United States of America as a response to international terrorism Continue reading

“Lisbonisation” of Europol and Eurojust : an in depth analysis for the European Parliament

The inter-agency cooperation and future architecture of the EU criminal justice and law enforcement area

Upon request by the LIBE Committee, the study aims at analysing the current relationship and foreseeable cooperation between several EU agencies and bodies: Europol, Eurojust, the European Anti-Fraud Office, the European Judicial Network and the future European Public Prosecutor’s Office. The study reflects on their cooperation regarding the fight against serious transnational crime and the protection of the European Union’s financial interests. It also identifies good practices and difficulties and suggests possible ways of improvements. AUTHORS Prof. Anne Weyemberg, Université Libre de Bruxelles and Coordinator of the European Criminal Law Academic Network (ECLAN) Mrs Inés Armada, PhD researcher, VUB-ULB, FWO Fellow Mrs Chloé Brière, GEM PhD researcher, ULB – UNIGE



1.1. Context of the study

For the time being, there are 9 JHA decentralised agencies: 6 depending from DG Home, namely EUROPOL, CEPOL, FRONTEX, the European Asylum Support Office (EASO), the European Monitoring Centre for Drugs and Drug Addiction (EMCDDA) and the EU Agency for large-scale IT systems (Eu-LISA) and 3 depending from DG Justice, namely Eurojust, the European Union Agency for Fundamental Rights (FRA) and the European Institute for Gender Equality (EIGE).

Besides the agencies, some other EU bodies/networks, which do not have the agency status, are to be mentioned, such as the EU Anti-Fraud Office (OLAF), the European judicial network (EJN) or the European judicial training network (EJTN). Others are yet to be established, the main one on its way being the European Public Prosecutor’s Office (EPPO).

Complementarity, consistency and a good articulation between all these bodies is crucial if the purpose is to establish a consistent Area of Freedom, Security and Justice (AFSJ) and effectively implement its three components. A good articulation between the EU bodies is also crucial to develop a multidisciplinary approach in the fight against serious cross-border crime.

This need has been repeatedly underlined, particularly by EU institutions1. A better delineation or a clearer definition of each EU agency/body’s competences and functions has been requested. Overlaps are however inevitable (i.e., grey zones) and may even present advantages. The key issue lies in learning how to manage them in good will and good faith. The key word here must be complementarity, which implies working hand in hand for the realisation of common goals, respect of respective mandates and expertise and good communication and coordination in case of overlap. Establishing such complementarity might prove a difficult task, and this for different reasons:

– The different agencies and bodies have been established at different times, in different contexts and in various decisional frameworks. The current agencies/bodies belong to different generations and are more or less mature, the three oldest being OLAF (ex-UCLAF), Europol and the EJN. Some of them are still under the pressure of figures, still fighting/struggling or feeling they have to fight/struggle to justify their existence and prove their added-value.

– The different agencies and bodies are driven/marked by different philosophies/natures/logics: for instance, OLAF has an EC nature, with real « autonomous »/supranational administrative powers, whereas Europol and Eurojust are still marked by the « intergovernmental third pillar spirit » and constitute « service providers » depending on the final decision taken by national authorities;

– They are also marked by differences in professional cultures, be it administrative, police, or judicial;

– Their structure differs (e.g. very different organisation/structure within Europol and Eurojust);

– The resources/means available to each of them are different. Some agencies/bodies are more powerful than others, including in the field of policy orientation. For instance, the major role played by Europol in the design of the EU Internal Security Strategy (ISS) and in the EU policy cycle must be mentioned.

– The articulation between the EU agencies/bodies must accommodate the differences between the different national criminal justice systems. These include the different distribution of competences/tasks between the administrative/criminal, police/justice and police/intelligence services. The treaty imposes respect to such differences, with the result that the EU agencies/bodies must be able to adapt to all the concerned systems. Thus, there is a need to remain vague in the definition of mandates/tasks and to safeguard flexibility. Such vagueness might however make more difficult a good articulation and relationship between the bodies concerned.

– The abovementioned difficulties result in a lack of a consistent vision of the EU area of criminal justice, which is somehow to be built/organised a posteriori. The fact that the different EU agencies/bodies are dealt with by different DGs within the Commission (that do not always entertain the best relations) and the silo approach taken by the General Secretariat of the Council2 clearly do not improve the situation.

– Against this background, the legislative instruments governing each EU agency/body remain quite vague with regard to cooperation with counterparts. Interagency relations are thus mostly left to the EU agencies/bodies themselves.

– Last but not least, the importance of personal relations must be stressed. Sometimes people understand each other and sometimes they do not…

Generally speaking, an improvement in the relations between the EU agencies/bodies has been witnessed, due to the conclusion/revision of bilateral agreements/memorandum of understandings and to the passage of time and the consequent gain of experience.

Such improvement is also due to other reasons such as the creation of coordination/monitoring mechanisms and the encouragement of inter-agency cooperation in the JHA field.

It has especially taken the form of the JHA contact group and the JHA Heads of Agencies meetings. They annually report to the Standing Committee on operational cooperation on internal security (COSI)3, notably through a scorecard on cooperation, which is annexed to the annual report.

However, and in spite of a lot of quite positive official declarations, difficulties remain. Identifying them is the main purpose of this study, in order to suggest, where possible, ways of improvement. Continue reading

Trafficking in Human Beings: the EU legislates but the Member States keep dragging their feet…

by Federica VIGNALE (Free Group Trainee)

Since more than ten years Trafficking in Human beings is a recurrent issue on the agenda of the European Parliament Committee on Civil Liberties, Justice and Home Affairs. The last debate [i] was notably focused on the Commission Mid-term report on the 2012-2016 EU strategy towards the eradication of trafficking in human beings and the Global Report on Trafficking in persons of United Nations Office on Drugs and Crime.

Trafficking in Human Beings (THB) is recognized by the European and the international law as a gross violation of human rights and as a form of organized crime[ii]. At European level, THB is defined as “the recruitment, transportation, transfer, harbouring or reception of persons, including the exchange or transfer of control over those persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation”. Furthermore, due to the presence of these forms of violence or coercion, trafficking in human beings represents also a form of modern slavery. Currently there are tens of thousands potential people who are kept in captivity or forced to provide services against their will, but there are some people who were lucky enough to have been identified.

In this respect and before analysing the European and the international legal context, it is worthwhile analysing the data related to victims and traffickers that emerge from the Trafficking in Human Beings Report that the DG Home Affairs and Eurostat published on the occasion of the EU Anti-Trafficking day anniversary. Between 2010 and 2012, 30.146 people were registered by the authorities, but this number is more alarming if we consider that there are certainly other victims of THB that have not been registered. The above-mentioned Report indicates also that:

  • “80 % of registered victims were female.
  • Over 1 000 child victims were trafficked for sexual exploitation[iii].
  • 69 % of registered victims were trafficked for sexual exploitation.
  • 95 % of registered victims of sexual exploitation were female.
  • 71 % of registered victims of labour exploitation were male.
  • 65 % of registered victims were EU citizens.
  • There are no discernible trends in the variation of victim data at EU level over the three reference years.
  • 8 551 prosecutions for trafficking in human beings were reported by Member States over the three years 2010-2012.
  • Over 70 % of traffickers were male. This is the case for suspects, prosecutions and convicted traffickers.
  • 3 786 convictions for trafficking in human beings were reported by Member States over the three years.
  • There are no discernible trends in the number of prosecutions or convictions at EU level”.

Two thirds of the victims are from the countries within the EU (Romania, Bulgaria, the Netherlands, Hungary and Poland), and the rest of the victims are primarily from Nigeria, China, Vietnam, Brazil and Russia. These figures are extremely worrying, especially because – in terms of legislation – the EU has built a very ambitious legal framework that consists of: Continue reading


Original published on EU LAW ANALYSIS

by Steve Peers

For a long time, it proved impossible for the EU to agree on legislation on migrant workers coming from non-EU countries. Eventually, the Member States were able to agree on some laws that mostly concerned higher-income migrants: the Blue Card Directive (on its implementation, see here) and the Directive on intra-corporate transferees (see discussion here). The EU has also adopted some general rules on the overall framework for admission of labour migrants (the so-called single permit Directive).

But for the first time last year, the EU also adopted rules on a less well-paid group of migrant workers: seasonal workers. This group of workers is potentially particularly vulnerable to exploitation and abuse. Does the recent Directive go far enough to protect them from these risks?

Content of the Directive

Member States have to apply this Directive by 30 September 2016, and the UK, Ireland and Denmark opted out of it. It is limited in scope to those who normally reside outside the territory of the EU, and who apply to be admitted as seasonal workers, or who have already been admitted under the terms of the Directive. Also, it applies to those admitted for less than three months as well as those admitted for a longer period. For the former group, the Directive specifies that the EU’s borders and visas legislation continues to apply, and makes a number of cross-references to those measures. Furthermore, the Directive does not apply to those workers who are usually employed in other Member States, and who are ‘posted’ by their employers to work in a second Member State, to non-EU family members of EU citizens, and to non-EU citizens covered by an agreement which extends free movement rights (the EEA or EU/Swiss treaties).

A ‘seasonal worker’ is a worker who normally resides outside the EU, and who lives temporarily in the EU to ‘carry out an activity dependent on the passing of the seasons’, pursuant to a fixed-term contract concluded directly with an employer established in a Member State. The concept of a seasonal activity is in turn defined as an ‘activity that is tied to a certain time of the year by a recurring event or pattern of events linked to seasonal conditions during which required labour levels are significantly above those necessary for usually ongoing operations.’ Member States have to define what the relevant sectors are; the preamble refers to tourism, agriculture and horticulture as areas where seasonal work is usually needed.

Member States are free to set higher standards for certain issues (procedural safeguards, accommodation, workers’ rights and facilitation of complaints), but otherwise the Directive has set fully harmonised rules. So Member States can’t alter the substantive grounds for admission or the rules on duration of stay and re-entry.

The key criteria for admission are fully mandatory. Member States have to ensure that an application to enter as a seasonal worker is accompanied by: a valid work contract or binding job offer, setting out all of the details of the job; a valid travel document (possibly valid for the entire duration of the seasonal work); evidence of having, or having applied for, sickness insurance (unless such coverage comes with the work contract); and evidence of having accommodation, as defined in the Directive (see below). Member States have to check that the seasonal worker has sufficient resources not to have to use the social assistance system, cannot admit persons considered to pose a threat to public policy, public security or public health, and must check that the applicant does not pose a risk of illegal immigration and intends to leave the Member States’ territory when the authorization for seasonal work expires.

Applications have to be rejected whenever these conditions are not met, or where the documents presented with an application are ‘fraudulently acquired, or falsified, or tampered with.’ Member States also have to reject applications, ‘if appropriate’, where there has been a prior sanction against the employer for ‘undeclared work and/or illegal employment’, the employer is being wound up or has no economic activity, or the employer has been sanctioned for breach of the Directive.

Otherwise the grounds for refusal of an application are optional: a labour market preference test for home State citizens, other EU citizens or third-country nationals lawfully residing and forming part of the labour market; the application of Member States’ rules on volumes of admission of third-country nationals; or breaches of employment law by the employer, the use of seasonal work to replace a full-time job, or a prior breach of immigration law by the would-be worker. There are similar provisions on withdrawal of the authorisation to work as a seasonal worker, although it should be noted that Member States can withdraw authorization if the worker applies for international protection.

As for the admission procedure, Member States have to make information available on the conditions of entry and residence and rights, as well as the admission process. It’s up to Member States to decide whether the applicant or the employer makes the application, and the application process takes the form of a single application procedure for a combined work/residence status. Those applicants who fulfil the admission criteria and who do not fall foul of the grounds for refusal must be granted a permit or visa, in the format of the EU standard visa or residence permit.

There’s a total maximum limit of between five and nine months per calendar year of residence for a seasonal worker; they must then return to a third country. Since the Directive only regulates admission and stay of seasonal workers, it should follow that Member States still retain discretion to permit the worker to stay for longer on some other ground.

Within the maximum time limit, seasonal workers will be able, on one occasion, to change employers or to obtain an extension of their stay with their employer, if they still meet the criteria for admission, although the grounds for refusal will still apply. The preamble makes clear that this possibility is intended to avoid abuse, since the worker will not be tied to a single employer. Member States will have an option to allow further extensions or changes of employer. But again they can punish any worker who applies for international protection, by refusing to extend that worker’s stay.

Next, the Directive facilitates the re-entry of seasonal workers who were admitted at least once within the previous five years, if they complied with immigration law during their stay. This could include a simplified application process, an accelerated procedure, priority for previous seasonal workers, or the issue of several seasonal worker permits at the same time. The idea is to give an incentive to workers to comply with immigration law.

Member States have to impose sanctions against employers who have breached their obligations under the Directive, including a possible ban on employing seasonal workers. If seasonal workers’ permit to work is withdrawn because of the employer’s illegal behaviour, the employer must compensate the employees for all the work they have done or would have done. There are specific rules on the liability of sub-contractors.

Moving on to procedural safeguards, the Directive provides for: a notified decision in writing within ninety days of the application; special rules on the renewal of authorization; a chance to provide additional necessary information within a reasonable deadline; and a requirement that a rejection (or withdrawal or non-renewal of a permit) be issued in writing and open to a legal challenge, with information on the reasons for the decision, the redress available, and the relevant time-limits. Member States may charge fees for applications, if they are not disproportionate or excessive, and may require employers to pay the costs of workers’ travel and sickness insurance. Workers’ accommodation must ensure an ‘adequate’ standard of living, rents cannot be excessive, a contract for housing must be issued, and employers must ensure that accommodation meets health and safety standards.

As for the rights of seasonal workers, first of all they have the right to enter and stay on the territory of the relevant Member State, free access to the territory of that Member State, and the right to carry out the economic activity which they have been authorized to take up.  Furthermore, they have the right to equal treatment with nationals as regards terms of employment (including working conditions), freedom of association, back payments, social security, the transfer of pensions, access to goods and services available to the public (except housing), employment advice (on seasonal work), education, and recognition of diplomas, and tax benefits. However, equal treatment can be restricted as regards family benefits, unemployment benefits, education and tax benefits, and Member States are still free to withdraw or to refuse to renew the permit in accordance with the Directive. Finally, Member States must ensure monitoring, assessment, and inspections, and facilitate complaints workers or by third parties supporting or acting on their behalf.


According to its preamble, the intention of this Directive is to regulate the admission of seasonal workers with a view to enhancing the EU’s economic competitiveness, optimizing the link between migration and development, while guaranteeing decent working and living conditions for the workers, alongside incentives and safeguards to prevent overstaying or permanent stay. In principle it has achieved some of these goals, in particular by including a number of provisions to ensure equal treatment and decent accommodation for seasonal workers, to punish employers who mistreat workers or who breach immigration law, and to guarantee that the rules in question are enforced.

In fact the Directive was significantly improved on these points during the legislative process, in particular as regards monitoring and punishment of dodgy employers, accommodation standards, equal treatment (which was significantly extended in scope), employees’ costs, and remedies against employers (compare the final Directive to the original proposal). Doubtless this was largely due to the hard work of NGOs which raised these issues (see their joint statement here). Perhaps the EU should use this Directive as a template to try and address the exploitation of other vulnerable groups of migrant workers – for instance domestic workers, who are at particular risk of being enslaved or trafficked.

Having said that, there are some limits to what Member States were willing to agree. There are exceptions from the equal treatment rule, and some of the provisions on dodgy employers, as well as the ban on passing costs along to the workers, are optional, not mandatory. (See the comments on the final Directive by a group of NGOs here). The right to change employers is subject to conditions, and Member States might decided to allow only one such change. More broadly, while the provisions on enforcement are stronger than what Member States are usually willing to agree to in EU laws about migrant labour (or indeed EU employment law), it remains to be seen how much resources Member States are actually willing to expend on enforcement in practice.

Furthermore, since the Directive is limited in scope to those who are not yet on the territory, it can do nothing to alleviate the position of those who are present without authorization but who cannot be returned (ie who are in limbo) and it gives Member States express carte blanche to deprive asylum-seekers of even the modest income which they were previously earning as seasonal workers. Overall, while the Directive will hopefully have some effect achieving its objectives, it may be a classic example of what academics call ‘picking the low-hanging fruit’ – focusing on the easier issues and avoiding the harder ones.

*This post is based on my ongoing research for the 4th edition of EU Justice and Home Affairs Law (forthcoming, OUP)

Will the empire strike back? Strasbourg’s reaction to the CJEU’s accession opinion


by Tobias Lock

Annual reports by international courts are rarely the stuff of controversy or harbingers of judicial conflict. Thus the strongly worded response to the European Court of Justice’s (CJEU) Opinion 2/13 (here) in the annual report of the European Court of Human Rights (ECtHR) presented by President Spielmann yesterday warrants a few comments (a provisional version can be found here).

It is recalled that the CJEU considered the draft agreement on the EU’s accession to the ECHR to be incompatible with the Treaties on a number of grounds. Academic criticism followed promptly, not least on this blog (here). The short passage in the President’s foreword to the ECtHR’s annual report, probably squeezed in in the last minute, constitutes a first reaction by the institution most affected by the Opinion. It is worth reproducing the full quote here:

“The end of the year was also marked by the delivery on 18 December 2014 of the Court of Justice of the European Union’s (CJEU) eagerly awaited opinion on the draft agreement on the accession of the European Union to the European Convention on Human Rights.  Bearing in mind that negotiations on European Union accession have been under way for more than thirty years, that accession is an obligation under the Lisbon Treaty and that all the member States along with the European institutions had already stated that they considered the draft agreement compatible with the Treaties on European Union and the Functioning of the European Union, the CJEU’s unfavourable opinion is a great disappointment. Let us not forget, however, that the principal victims will be those citizens whom this opinion (no. 2/13) deprives of the right to have acts of the European Union subjected to the same external scrutiny as regards respect for human rights as that which applies to each member State. More than ever, therefore, the onus will be on the Strasbourg Court to do what it can in cases before it to protect citizens from the negative effects of this situation.”

It is hardly surprising to learn that Strasbourg found the outcome of Opinion 2/13 disappointing. After all, it has thrown a serious spanner in the works of future accession negotiations, which a renowned expert on EU-ECHR relations such as President Spielmann must have realised straight away. What is unusual, is the strong language used in an official document such as this. The President does not hide the Strasbourg’s feelings behind the bush when expressing ‘a great disappointment’ and when speaking of the ‘victims’ of the Opinion.

But judicial politics aside, the question arises whether this statement could herald a new and frostier relationship between the two European courts. Up until now, the courts expressed some pride in their good relations with regular meetings between the judges and their ‘judicial dialogue’. The special relationship between them is epitomised in the Bosphorus case where the ECtHR held that the protection of human rights provided by the European Union was equivalent to what the Convention requires.

As a consequence, Member States that would otherwise be responsible for human rights violations rooted in their obligations under EU law (see the Matthews case) enjoy a presumption that their conduct was justified provided that they had no discretion in carrying out their obligations. The presumption can only be rebutted where the applicant can show a manifestly deficient protection in the very case.

The final sentence of the above quote is instructive. By positioning Strasbourg as the last resort for victims of human rights violations and by making it clear that the status quo (i.e. the EU outside the Convention) yields negative effects for these victims, the president paves the rhetorical way for a change of attitude. Of course, we are dealing only with a statement made in an annual report, not in a judgment. Moreover, the statement is signed by only one of the 47 judges, and even though he is the Court’s president, he is no position to dictate the future outcome of decisions.

It is nonetheless worth asking what, if anything, this could mean in practice. One rather drastic option would be for the ECtHR to revoke the Bosphorus presumption, but this seems unlikely. The presumption is based on an assessment of the substantive human rights protection by the CJEU, which certainly has not deteriorated.

If anything, the entry into force of the Charter of Fundamental Rights and the CJEU’s recent fundamental rights case law suggest an improvement. Moreover, in terms of judicial politics this would certainly be a big bang, which courts should try to avoid.

What one could imagine, however, is a tightening of the conditions for the application of the presumption so that more cases would be reviewable by Strasbourg.

Moreover, it is possible that Strasbourg could give up its Connolly case law, which requires there to be some Member State involvement for the ECtHR to have jurisdiction under Article 1 ECHR so that entirely EU internal situations, e.g. in the field of competition law, would become actionable in Strasbourg.

More subtly still, the Strasbourg court could consider subjecting the EU’s principle of mutual trust to stricter scrutiny. After all, this is an area that is largely immune from fundamental rights review. Of course, the executing Member State in such cases normally has no discretion so that the Bosphorus presumption would kick in. But one could argue that where no judicial review of fundamental rights violations is possible, the ‘equivalent protection’ presumption is rebutted on the basis that the protection in the concrete case was manifestly deficient. Let us remember that the CJEU identified the alleged lack of protection of the principle of mutual trust in the accession agreement as one of the reasons to declare the accession agreement incompatible with the Treaties. This would thus provide Strasbourg with an opportunity to strike back and demonstrate that an exclusion of that principle in the accession agreement would run counter to its overall aim of improving the human rights protection in Europe.

One should be careful, of course, not to make a mountain out of a molehill. It is still early days and one can at this point do no more than speculate. The only certainty is that there are interesting days ahead.

Dieser Text steht unter der Lizenz CC BY NC ND (http://creativecommons.org/licenses/by-nc-nd/4.0/legalcode) Suggested citation: Lock, Tobias: Will the empire strike back? Strasbourg’s reaction to the CJEU’s accession opinion, VerfBlog, 2015/1/30, http://www.verfassungsblog.de/en/will-empire-strike-back-strasbourgs-reaction-cjeus-accession-opinion/