Monthly Archives: March 2015

DENMARK AND EU JUSTICE AND HOME AFFAIRS LAW: DETAILS OF THE PLANNED REFERENDUM

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ORIGINAL PUBLISHED ON EU LAW ANALYSIS

Tuesday, 17 March 2015

by STEVE PEERS 

Danish participation in cross-border criminal law measures is symbolised by ‘The Bridge’, the ‘Nordic Noir’ series about cross-border cooperation in criminal matters between Denmark and Sweden. But due to the changes in EU law in this field, that cooperation might soon be jeopardised. As a result, in the near future, Denmark will in principle be voting on whether to replace the current nearly complete opt-out on EU Justice and Home Affairs (JHA) law with a partial, selective opt-out. I have previously blogged on the implications of this plan in general terms, but it’s now clear exactly what this vote will be about.

First of all, a short recap of the overall framework (for more detail, see that previous blog post). Back in 1992, Denmark obtained an opt-out from the single currency, defence and aspects of JHA law (it’s widely believed that it also obtained an opt-out from EU citizenship, but this is a ‘Euromyth’). These opt-outs were formalised in the form of a Protocol attached to the EU Treaties as part of the Treaty of Amsterdam. The JHA opt-out was then amended by the Treaty of Lisbon.

At present, Denmark participates in: the EU policing and criminal law measures adopted before the entry into force of the Treaty of Lisbon; measures relating to the Schengen border control system (as  matter of international law, not EU law); the EU rules on visa lists (as a matter of EU law); and the EU’s Dublin rules on allocation of asylum applications, ‘Brussels’ rules on civil jurisdiction and legislation on service of documents (in the form of treaties with the EU). In contrast, Denmark does not – and cannot – participate in other EU rules on immigration and asylum law or cross-border civil law, or policing and criminal law rules adopted since the entry into force of the Treaty of Lisbon.

The Protocol on Denmark’s legal position either allows it to repeal its JHA opt-out entirely, or selectively. If it chooses to repeal the opt-out selectively, it would then be able to opt in to JHA measures on a case-by-case basis, like the UK and Ireland, although (unlike those states) it would remain fully bound by the Schengen rules. Indeed, those rules will then apply as a matter of EU law in Denmark, not as a matter of international law. Continue reading →

Commission recent withdrawal of legislative proposals : Easter’s  “house cleaning” or a growing threat to the EU institutional balance ?

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by Emilio De Capitani

On March 7 the Commission published on the official journal a list of legislative proposals which it has decided to withdraw. (1) The immediate consequence is that legislative negotiations between the European Parliament and the Council on some of these texts can go no further (even if the co-legislators are still interested in finalizing their work). (2) As it would happen if a referee  snatches the ball during a match of football , several parliamentary committees have loudly protested.(3)

The problem was not only that the game abruptly interrupted but also that no one could predict when it would start again (even after the Lisbon Treaty the European Parliament and the Council still lack the power to initiate new legislation and can play their legislative role only by amending, (as a general rule), a Commission legislative proposal.

This bizarre situation dates back to the first phase of the European Communities when the Commission was the only institution which could limit the risk that the members states through the Council could re-nationalise the powers conferred by the Treaties to the Community. Since then the rule has been that “…Union legislative acts may only be adopted on the basis of a Commission proposal, except where the Treaties provide otherwise” ( current art 17 p 2, first phrase TEU) and such a Commission’s monopoly of initiative has been further strengthened by two other elements:  Member States can change the Commission proposal only by an unanimous vote and conversely the Commission can amend its own proposals all along the procedure “… As long as the Council has not acted(..)”(art. 294 TFEU). In the real world this means that the Commission has to modify its proposal when it shares a majoritarian position emerges in the Council ( so that unanimity is no more needed). To strengthen even more its power to influence the Council position the Commission has developed (in the silence of the treaties) a legal theory according to which the right of initiative not only cover the right to amend a text but also the rights to withdraw it when the Commission consider that its “power” of legislative initiative risks to be abused by the Council in a way which according to the Brussels’s executive is contrary to the EU interest.

 In 2013 the beginning of an interinstitutional “Game of thrones” .. Continue reading →

Legal aid in criminal proceedings : will the European Parliament improve the Council’s “general approach” ?

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by Claire Perinaud (FREE Group Trainee)

State of implementation of the Procedural rights roadmap.

After years of unsuccessful attempts, starting in 2004 with a general Commission proposal on procedural rights it was only from the end of 2009 that the EU legislation on procedural rights for suspects and accused persons in criminal proceedings has progressively taken shape. This was due to the entry into force of the Treaty of Lisbon (TFEU art. 82(2) now confer the power to adopt legislation on this issue), to article 47 of the Charter of Fundamental Rights (providing for the right to a fair trial) and to a political “roadmap” by which, in November 2009 the Council relaunched the Commission original proposals following a step-by-step approach instead of trying to adopt comprehensive legislation as initially foreseen in 2004.

However it is more than likely that this pragmatic approach and the transition from unanimity to qualified majority voting of the EU Member States in the Council (as from the entry into force of the Treaty of Lisbon) has made possible the adoption in co-decision with the European Parliament of the three first legislative measures on suspects’ rights: Directive 2010/64/EU on the right to interpretation and translation in criminal proceedings; Directive 2012/13/EU on the right to information in criminal proceedings; and Directive 2013/48/EU on the right of access to a lawyer in criminal proceedings.

Building on this success, at the end of November 2013 the Commission proposed a second “package” of suspects’ rights measures, comprising: a directive on procedural safeguards for children who are suspected or accused in criminal proceedings; a recommendation on procedural safeguards for vulnerable people suspected or accused in criminal proceedings; a directive strengthening of certain aspects of the presumption of innocence and of the right to be present at trial in criminal proceedings; a directive on the right to provisional legal aid for citizens suspected or accused of a crime; and a recommendation on the right to legal aid for suspects or accused persons in criminal proceedings.

In 2014 the Council already reached a general approach on the proposal for a directive on procedural safeguards for children and on the directive on the presumption of innocence. On this basis the dialogue between the Council and the European Parliament (EP) is about to start and it is possible that in the coming months an agreement could be reached so that these texts could be adopted already at the EP’s “first reading” .
Last week the Council has reached (after eight months of internal negotiations!) a general approach also on the draft Directive on provisional legal aid for persons deprived of liberty in criminal proceedings and will start in the coming weeks the dialogue with the Parliament also on this text.

The coming months will then be extremely important for EU procedural rights in criminal matters even if it will not be easy to achieve the high results that the European Parliament and some Member States were expecting. In the absence of the energetic push of the former Commission Vice President Reding there is a risk that the negotiations may achieve the lowest common denominator between the Member States also due to the unwillingness of some of them to adopt any EU legislation which can create further financial and internal institutional tensions.

Legal aid : why make it simple when you can make it tricky ? Continue reading →

EU Accession to the ECHR: What to Do Next

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ORIGINAL PUBLISHED ON VERFASSUNGblog
Fri 13 Mar 2015

by Andrew Duff

Some weeks have passed since the European Court of Justice delivered its startling binding Opinion 2/13 against the accession of the European Union to the European Convention on Human Rights (ECHR). There has already been much academic commentary on the complex Opinion. The European Commission has declared the need for a period of reflection. Mindful of its legal duty under Article 6(2) TEU to achieve the EU’s accession to the Convention, the Commission considers itself still empowered by the Council decision of June 2010 to continue negotiations in due course with the Council of Europe. But the political reaction is muted: some EU member states would like to knock the matter into the long grass; and the European Parliament has not yet found its voice. In truth, nobody can relish the thought of re-opening negotiations at this juncture on the Draft Accession Agreement (DAA) with either Russia or Turkey, both of whose leaders appear to have abandoned the democratic rule of law and turned against Western values.

Yet the Court of Justice (CJEU) raises important issues which the other institutions cannot simply ignore. Its Opinion adds to the already fairly improbable conditions which the Treaties themselves attach to the EU’s accession to the ECHR: Protocol No 8 says that accession shall not affect the ‘specific characteristics of the Union and Union law’, that the competences of the EU and the powers of its institutions shall be preserved, that the situation of member states vis-à-vis the ECHR should not be changed, and further, that no intra-EU dispute should go to the European Court of Human Rights (ECtHR). Article 52 of the Charter says that where its provisions correspond to the ECHR their ‘meaning and scope … shall be the same’; while Article 53 denies that the Charter restricts or adversely affects rights ‘as recognised, in their respective fields of application, by Union law and international law’ – notably the ECHR. Whereas Articles 53 (coincidentally) of both the ECHR and the Charter allow their signatories to offer more extensive protection than the Convention, the CJEU has been anxious to insist that after accession the EU member states should not seek to outpace or undermine the ‘primacy, unity and effectiveness’ of Union law.

Read it again Continue reading →

A Constitutional Defense of CJEU Opinion 2/13 on EU Accession to the ECHR (and the way forward)

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Original published on VERFASSUNGSblog

by Daniel Halberstam

The Court of Justice of the European Union has arrived! Gone are the days of hagiography, when in the eyes of the academy the Court could do no wrong. The judicial darling, if there is one today, is Strasbourg not Luxembourg. Only hours after Opinion 2/13 struck down the Draft Agreement (“DA”) on EU Accession to the European Convention on Human Rights (“ECHR”), scholars condemned the opinion as “exceptionally poor.” Critical voices mounted ever since, leading to nothing short of widespread “outrage.”

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I disagree with the critics. In an article, “‘It’s the Autonomy, Stupid!’ A Modest Defense of Opinion 2/13 on EU Accession to the ECHR, and a Way Forward” forthcoming in the German Law Journal, I provide the first comprehensive legal analysis and constitutional reconstruction explaining why the Court’s concerns are mostly warranted. I also identify the changes that must be – and reasonably can be – made to move accession forward. Finally, and in a twist of irony, I show that one of the Court’s greatest concerns – mutual trust – goes to the very survival of the Union and demands not an exemption, but full accession.

My defense is not a nostalgic plea for a return to gentler days. To the contrary, as a critic on record of both the CJEU[1] and the Bundesverfassungsgericht,[2] I have little patience for judicial hagiography. No court is an entirely innocent actor. Opinion 2/13’s abrasive and uncompromising style, to which the title of my article alludes, suggests Strasbourg is not welcome in Luxembourg. Wary of its younger overburdened sibling, the CJEU seems intent on guarding its privileged judicial position in Europe.

And yet, dismissing the Court as selfish would be throwing out the baby with the bathwater. The bracing exchange of pluralism, which I support, lacks value (and values) if constitutionalism is not part of the mix. The internal constitutional perspective of actors considering external legal claims does not undermine pluralism. To the contrary, constitutionalism provides legitimacy to the exercise of public power. As a result, constitutionalism supplies the terms on which the pluralist contestation takes place. As I have argued repeatedly elsewhere, constitutionalism supplies the grammar of legitimacy that governs the pluralist contest by insisting that power always vindicate a combination of voice, rights, and expertise. We must, therefore, never forget the role that constitutionalism plays in a pluralist constellation.

But the current critics did just that: they rushed to embrace Strasbourg while forgetting about the constitutional dimension of EU governance along the way. A singular focus on international human rights regimes, however, can be misleading. On the Verfassungsblog, for instance, the President of the CJEU has been quoted as saying: “The Court is not a human rights court. It is the Supreme Court of the European Union.” Critics interpret this to indicate the CJEU is not taking rights seriously. The argument echoes a rather old debate,[3] recently renewed by suspicions about the Court’s bona fides regarding labor rights after Viking andLaval[4] and asylum rights after M.S.S. and Abdullahi.

Rights lapses at the Court must be condemned, but there is nevertheless a good deal of respectable truth to the President’s internal perspective. The CJEU has come around (even if only after a prolonged pluralist struggle with Member State high courts) to protect rights as an essential feature of the legality and legitimacy of EU law. Today, the EU is firmly committed to protecting fundamental rights, which may include participation in international human rights regimes – as well it should. But such participation should not undermine the constitutional nature of the EU’s legal order, which is geared to vindicating all three constitutional values. The EU may sign on to the ECHR as an extension, but not substitution, of its own project of constitutional governance.

The EU’s constitutional engagement with the world, then, leaves ample space for hard pluralist contestation. But we must first understand the “constitutional” element of the EU’s side of the contest. It is in this spirit that I reconstruct the Court’s objections to the Draft Agreement.

My main concern, then, is not for the reputation of the Court, but for a sensible project of accession that gives due consideration to the constitutional quality of the Union. In the remaining space, I cannot summarize the Opinion, the issues, let alone my article. I can give only a quick sense of some conclusions that follow from my plural constitutionalist approach. Continue reading →

WHEN SUPER-REGULATORS FIGHT: THE ‘ONE-STOP SHOP’ IN THE PROPOSED DATA PROTECTION REGULATION

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ORIGINAL PUBLISHED ON EU LAW ANALYSIS

by  Steve Peers

A guilty pleasure for fans of superhero comic books is the moment when our heroes pause in their valiant efforts to save the public from the nefarious plans of the supervillains – and start beating the hell out of each other instead. This is usually triggered by some trivial difference of opinion, perhaps concerning a continuity error or intellectual property rights.
Similarly, the EU vests its hopes for the effective enforcement of data protection law upon national data protection authorities (DPAs): the superheroes of the data protection world. They have considerable powers under the current data protection Directive, and the proposed Regulation would also give them more powers. But what if they disagree with each other? There’s nothing in the current legislation to settle this problem, which gives each DPA the power to regulate actions on its own territory without addressing the obvious complications that result in a digital age, when many forms of processing of personal data (most obviously via the Internet) take place across borders.

To deal with this problem, the Commission proposal contains a conflict rule to determine who is the lead regulator in cross-border cases, with the possibility that a ‘European Data Protection Board’ or the Commission itself can issue an opinion on the issue. This has been dubbed the ‘one-stop shop’ rule. However, due to legal concerns, both the Council (which is about to adopt its position on this part of the proposed Regulation: see the draft texthere), and the European Parliament (EP), which has already adopted its position on the entire text, propose instead that the Board must be able to make binding decisions to settle disputes.

So this is set to become one of the most significant innovations of the new legislation. Let’s take a look at what the future rules will likely say about the role of national DPAs, the one-stop-shop process and the powers of the Board.

National data protection authorities

The current Directive already provides for the existence of DPAs, and insists that they must exercise their powers in ‘complete independence’. CJEU case law (discussed here) has set out a very strong interpretation of this notion, ruling that Germany, Austria and Hungary breached it, because they provided for too much accountability to national parliaments (Germany), failed to separate the DPA from the ordinary civil service (Austria) and defenestrated the DPA boss before his normal term of office expired (Hungary).

The proposed Regulation would retain and elaborate upon this concept, and the Council and EP agree with most of the Commission’s suggestions. Admittedly, the DPAs have to be appointed by public authorities in the first place: after all, their powers don’t stem from being bitten by a radioactive spider, or orphaned in a bat-infested back alley. The Council would amend the proposal so that they don’t have to be appointed by the government or parliament, but could instead be appointed by the head of state or independent body. Only the last alternative would fully ensure their independence from the outset (although who appoints the ‘independent body’?)

Three points of concern here. First, the proposal would usefully require the national DPAs to be adequately funded. That is easier said than done, for most DPAs complain of an absence of sufficient funding. For instance, the Irish DPA occupies a small office next to a corner shop – but purports to regulate (among many other things) all of Facebook’s activities in the EU.  Secondly, the Council would remove the proposed rule requiring that DPAs be independent ‘beyond doubt’ when they are appointed; but DPAs should not be a resting ground for political hacks and bagmen. Thirdly, the Council would remove most of the details concerning the loss of office of DPAs, retaining only the minimum rule of four years in office. As the termination of the Hungarian DPA showed, it’s hard to exercise your powers independently if you constantly fear that there may be Kryptonite in your coffee.

As for the powers of the DPAs, the Regulation would strengthen and elaborate upon their current advisory and enforcement roles. In particular, the current powers to investigate, intervene and engage in legal proceedings would be fleshed out, by adding powers concerning audits, access to the premises of the controller and processor, ordering compliance with a data subject’s request, the suspension of data flows, or the imposition of fines.

But with these great powers will come only limited accountability. DPAs will have to publish an annual public report (and the EP even wants to weaken this obligation). But that’s the only way that their decisions can be controlled, unless a cross-border complication means that other DPAs, or the European Data Protection Board (a sort of uber-DPA) gain jurisdiction, as discussed below. Otherwise, the only bodies which can watch these watchmen are the courts. Continue reading →

BASIC DATA PROTECTION PRINCIPLES IN THE PROPOSED DATA PROTECTION REGULATION: BACK TO THE FUTURE?

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ORIGINAL PUBLISHED TODAY ON EU LAW ANALYSIS

Monday, 9 March 2015

by Steve Peers

So far, 2015 is not like the Back to the Future movies promised it would be like. In particular, there are no hoverboards (drones are a poor substitute). Moreover, instead of agreeing a data protection framework fully fit for 2015, the Council is probably about to agree that the key principles of the law should remain as they were in 1995 – which might as well be 1985 (or even 1955) in terms of technology law.

Background

The negotiations on the EU’s proposed General Data Protection Regulation finally seem to be nearing the final stretch, as far as the Council is concerned. Member States’ ministers in the Council seem likely to agree later this week on two more parts of the proposed Regulation: on basic principles of data protection (text here) and on supervisory authorities, including the idea of a ‘one-stop shop’ for data protection supervision (text here).

Previously they had agreed on three other parts of the Regulation, namely rules on: territorial scope and external relations (see discussion here); public-interest exceptions (see here); and the roles of data controllers and processors (see here; see particularly the discussion of the ‘privacy seals’ rules here). (For full consolidated text of everything the Council has agreed to date, see here). If the proposed texts on principles and data protection authorities are indeed agreed this week, the Council mainly only has to agree on the scope and definitions in the Regulation, along with the rights of data subjects, such as the right to be forgotten (see discussion of the proposed text on that issue here), and related individual remedies.

This blog (EU LAW ANALYSIS) post focusses on the issue of basic data protection principles. The Commission’s proposal suggested some fairly modest changes to these basic rules as compared to the current data protection Directive, although the European Parliament (EP) would like to go further than the Commission (see its position here). However, the Council’s position would entail very modest changes indeed to the status quo. For this aspect of data protection law, if the Council has its way, the EU’s lengthy legislative reform journey would end up much where it originally started.

Details Continue reading →

European and national parliamentarians divided on the EU “Smart Borders Package” ?

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By FERN BOWLES (Free Group Trainee)

On February 23 the LIBE Committee has organized a interparliamentary meeting focused on the Smart Borders Package (see “EU Compass” factsheet here). The meeting served as a forum for the exchange of views between European and national parliamentarians, as well as the Commission and European agency representatives, in an aim to debate the possible future alternatives at technological and legal level of the “smart border package”. According to the Commissioner for Migration, Home Affairs and Citizenship, Dimitris Avramopoulos this “new start” is justified to overcome various “technical, political and cost related issues” raised  by the initial Commission proposal. In October 2014, the first stage of the new Commission analysis was completed with the delivery of the Technical Study (see the executive summary ) and Costs Study. The “Pilot” will be completed during 2015 and a  new legislative package  could then be submitted in 2016.

The context

At the moment, manual checks are performed by border force personnel at the external frontiers where they are required to check non-EU citizens’ travel documents. The Smart Borders project plans to create a pan-Schengen automated database to be able to store information of third country nationals (TCN) electronically. Thorough an entry-exit system (EES) TCNs would be required to undergo a biometric identification check upon arrival to the EU, while the registered travellers programme (RTP) will pre-vet non-EU citizens before their travel, in order to speed up border crossing.

The justification for increased checks on non-EU citizens with the Entry-Exit System (EES) was initially to fight terrorist’ travel but it is argued that the real reason is to prevent the phenomenon of ‘overstayers’ (TCN that stay in the EU longer than they are permitted), which according to the Commission is one of the biggest issues of irregular migration within the EU. The European Commission’s original proposal (2013) for a Regulation on the Smart Borders Package will however be revised and revealed at the beginning of 2016.

The main issues that were raised during the debate… Continue reading →

EDRI : European data protection reform is badly broken (leaked documents)

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ORIGINAL PUBLISHED ON THE EUROPEAN DIGITAL RIGHTS SITE

By Diego Naranjo

 

Brussels, Belgium. New leaked documents show that European countries, pushed by Germany, are systematically working to destroy the fabric of European privacy legislation. Under the current proposals, far from being provided with security fit for the digital age, Europe’s citizens right to data protection would be devoid of meaning. “The Regulation is becoming an empty shell”, said Joe McNamee, Executive Director of European Digital Rights. “Not content with destroying key elements of the proposal, the EU Member States are rigorously, systematically and thoroughly undermining the meaning of every article, every paragraph, almost every single comma and full stop in the original proposal.”

Leaked documents from the Council
According to the leaked proposals, crucial privacy protections have been drastically undermined, including the right to be asked for consent, the right to know how your data are used and the right to object to your data being used, minimum standards of behaviour for companies exploiting individuals’ data. In several places, the text would not likely pass judicial scrutiny under Europe’s human rights framework.

Background
In 2012, the European Commission made a proposal, which was amended and accepted by the European Parliament in 2014, to modernise and reform European privacy legislation. This update is urgently needed, due to the challenges of new technology.
Faced with profiling, digitisation of health data and online tracking, every corner of our lives is increasingly being invaded by “big data”. With enough data, a tracking company or government can know even more than we do about our own preferences, our motivations, our health, relationships and our politics than even our closest friends or family.

What happens next?
The Council is trying to complete its work by the summer, before negotiating with the Parliament on a compromise. Unless something is done urgently, the Council will simply complete its agreement, at which stage only an absolute majority of the European Parliament would be the only way of saving Europe’s data protection reform

Background documents: Comparison of European Parliament’s first reading text with Council document

Council documents: 

6286/1/15 – The One-stop-shop mechanism 25.02.2015 

6032/15 – Right to be forgotten – Dispute settlement 09.02.2015

17072/3/14 –  Further processing, consent 26.02.2015

17072/3/14 REV 3 ADD 1 – Information and right to object 26.02.2015

Analysis produced by EDRi, Access, Panoptykon Foundation, and Privacy International of the leaked Council texts in one pagers highlighting the most problematic issues:

DATA PROTECTION BROKEN BADLY  Continue reading →

The European Area of Freedom Security and Justice : still.. lost in transition ?

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by Emilio De Capitani

More than five years ago the Lisbon Treaty entered into force carrying along great expectations for the transformation of the EU into a Freedom Security and Justice area. However even if some progress has been made on Schengen,  asylum policies, procedural guarantees in criminal proceedings and judicial cooperation in civil matters the results are far lower than the initial expectations and of the ambitious objectives enshrined in the Stockholm Programme adopted by the European Council on December 10th 2009.

That Programme has been criticized by some member states as it was a sort of “Christmas tree”. However what the European Council adopted in June  last year is little more than a “dry bush” mainly focused on the need for …thorough reflections before adopting new EU legislation. Some commentators considered that this was a Machiavellian move of the European Council to pass the baton to the newly appointed President of the European Commission so that it could take the lead of this European policy as for any other “ordinary” policy.

A deceiving Commission..

In the following months this interpretation was confirmed by the appointment of the first Commission Vice President, in charge of the implementation of the rule of law, of the European Charter of fundamental rights and of better legislation. Moreover the creation of a specific portfolio for migration policy gave the impression of the Commission’s stronger political commitment “..to place the individual at the heart of its activities, by establishing the citizenship of the Union and by creating an area of freedom, security and justice” (European Charter Preamble)

However very soon these initial hopes had been deceived:

1 The rule of law mechanism which was suggested by the last “Barroso” Commission was soon forgotten

2 As far as the Charter is concerned the Commission has apparently been taken by surprise by the Court of Justice opinion 2/13 dealing with the EU accession to the ECHR and is still considering what to do. But the Juncker Commission also seems lost when the issue at stake is to transpose the EU Charter principles into new EU legislation. It will only take more than one year to evaluate what could be the impact of the CJEU ruling on data retention on the pending legislation such as the EU PNR, the entry-exit and the registered travel proposals (not to speak of its impact on EU legislation and agreements that are already in force..)

3 Migration and human mobility are still dealt with and financed by the same General Directorate which is in charge of internal security policy instead of being moved to social affairs policies which should have been a real holistic and individual-centred approach.

4 Last but not least the Commission’s legislative programme for 2015 is more than reticent and it appears more and more evident that for the time being most (if not all) of the Commission’s political energy will be focused on economic objectives so that the Freedom security and justice area related policies have to wait for a new season.

…but the situation between Member States is even worse..

The situation of FSJA policies is even more frustrating on the Member States side.

Not only some legislative procedures like the ones on consular protection, access to documents  or the fight against discrimination remain blocked and others including the data protection reform will require a caesarean section to come to life,  but day after day it appears clearer and clearer  that there is still a majority of member states which do not want  the modernisation of measures adopted before the Lisbon treaty (or even before the entry into force of the Amsterdam Treaty. This is notably the case of Germany which (as a rule)  oppose any new measure which can have a financial impact or will change the former “unbalance” of power between the Council and the European Parliament. Take the case of the recent three Commission proposals (1) repealing FSJA measures dating back to the intergovernamental period. According to German delegation even a 1998 Schengen decision on the adoption of measures to fight illegal immigration should be preserved because “None of the (current) legal instruments include a similarly comprehensive approach to fight illegal migration and immigrant smuggling.” This is appalling : would it not be wiser to urge the Commission to submit a new proposal which could better comply with the EU Treaties and with the Charter by also associating the European Parliament to this endeavour ?

This case apart it is worth noting that all the pre-Lisbon measures dealing with police cooperation and judicial cooperation in criminal matters (2) have been legally “embalmed” by art 9 of Prot.36 according to which “The legal effects of the acts of the institutions, bodies, offices and agencies of the Union adopted on the basis of the Treaty on European Union prior to the entry into force of the Treaty of Lisbon shall be preserved until those acts are repealed, annulled or amended in implementation of the Treaties. The same shall apply to agreements concluded between Member States on the basis of the Treaty on European Union.”

A “Transitional” period ….until when ? Continue reading →