2015 – Page 9 – European Area of Freedom Security & Justice

The impact of the EU law on Italian criminal procedure law in investigations on EU fraud

ORIGINAL IN ITALIAN.

(Translated by Dalila Delorenzi, FREE-Group Trainee)

by Andrea Venegoni (*)

A reflection on the issue of the influence of European law on procedure criminal law may instinctively lead to think of the most recent developments in case law at European level that have affected and are affecting also the typical categories of the Italian procedural system.

As an example, the issue of “res judicata” can be taken into account. It is common opinion that its binding effect is gradually eroding as a result of transposition in the internal system of jurisprudential principles established by the European Courts (e.g the cases Dorigo or Scoppola ). Another example may come from the “ne bis in idem” principle which is gradually coloring of meanings that were unthinkable a few years ago, also thanks to the role of supranational courts.

But, to be honest, if that had been the subject of my speech, the same would not be fully consistent with the title of the seminar that refers specifically to the influence of the EU law on the domestic criminal procedure law. Indeed in the above mentioned evolutions the ECHR system – which as it is known, is something other than the European Union system – has played and still plays a fundamental role. In this case, therefore, the title of the seminar should have referred to the “European” law in general and not just that of the EU.

I therefore focused my attention on EU law and its impact on criminal investigations in fraud matters within the Community, not only for formal reasons, because it was the specific scope of the seminar, but also for another more substantial reason.

More precisely, all legislative and jurisprudential developments occurred in criminal law and its procedure by supranational European legal systems are substantially aimed at creating a common space of justice, with a view to recognise guarantees, common rights and for the purposes of a better circulation of evidence. If this is true, it does exist an area, a sector, where this process has been already realised or, at least, realised in a better way than elsewhere.

This is precisely the field of protection of the EU financial interests. In this sector, since the late ‘90s the European Union has put in place a series of legislative instruments to assist the investigations, and in particular the cross-border enquiries, and at the same time to protect the rights of the people involved, with no equal compared to any other field. As such, if the European Union is informed by the will to create, among other issues, also a common space of justice, both criminal and civil – as said in the founding treaty (i.e. Maastricht Treaty, 1992) – then we may affirm that, since more than 16 years, this purpose has been largely achieved, with specific modalities, in the field of the protection of EU’s financial interests (hereinafter “PIF Area”), even if just few legal practitioners have realised it.

This was because the PIF sector has always been essential to the existence of the Union and for the accomplishment of its purposes. Without effective protection of its own finances, the Union might not have the necessary funds not only to manage its administration, but also to grant them to the States or other beneficiaries. Indeed this is necessary for the realization of the great goals the Union intends achieving – sometimes with mixed success – Europe wide and worldwide, such as social cohesion and economic development, the progress of scientific research, environmental protection, the fight against poverty in third countries.

Therefore, the protection of its resources has always been essential for the Union, and since the conducts affecting such interest may constitute both irregularities at the administrative level, and criminal offenses, the relevant legislation at European level has always unfolded in between the so called First and Third Pillar in the European institutional framework after the Maastricht Treaty. In simple words, the First Pillar covered interventions in the Union’s own policies that did not concern the criminal law; the Third Pillar, on the contrary, was just about facilitating the judicial cooperation in criminal law.

Nevertheless, before going any further, it has to be clarified what the so called “PIF Area” is, to fill of content concepts that otherwise risk to be only theoretical. For the purpose of this presentation, also to avoid getting into technicalities of the Union’s Financial Regulation, with a view to simplifying it may be easier to refer to the Union budget sheet items. Indeed, since the early 70s, the Union has a budget with their own revenues and expenditures.

Revenues consist in customs duties and agricultural levies charged on import and export of goods (the so-called own resources), a percentage of each EU country’s standardised value-added tax revenue and an additional sum provided by the Member States proportionally to each respective gross national income. Therefore every kind of conduct tending to avoid the payment and collection of duties and agricultural levies affects the EU financial interests. In our system, such conducts constitute the criminal offence of smuggling. Equally, the conducts aiming at evading the VAT payment are harmful for the EU budget. This category includes, for example, the so-called VAT carousel fraud, which still today are matter of interest for several Italian prosecutor offices, like they have been in the recent years.

Actually, the issue of VAT is very sensitive and it is necessary, for sake of providing with a complete information, to mention that according to an opinion that is strengthening at the level of the Member States, and partly also of the European Parliament, in the negotiations on legislative proposals under way, such tax would be exclusively national, and only indirectly of Union relevance, and for this reason it should be considered outside the PIF area (1). However it must be said that this view is contradicted, for example, in the case law of the Court of Justice that has even recently stated that the application of VAT involves the Union’s financial interests (see Akberg Fransson case C-617/10). Continue reading “The impact of the EU law on Italian criminal procedure law in investigations on EU fraud”

The General Principles of EU Administrative Procedural Law

THE TEXT BELOW IS AN EXCERPT OF A STUDY ACCESSIBLE HERE

Nota Bene: Upon request by the European Parliament JURI Committee this in-depth analysis explains what general principles of EU administrative procedural law are, and how they can be formulated in the recitals of a Regulation on EU administrative procedure.
Authors: Diana-Urania Galetta, Professor of Administrative Law and European Administrative Law, University of Milan, , Herwig C. H. Hofmann, Professor of European and Transnational Public Law, Jean Monnet Chair, University of Luxembourg, Oriol Mir Puigpelat, Professor of Administrative Law, University of Barcelona and Jacques Ziller, Professor of EU law, University of Pavia

EXECUTIVE SUMMARY : Background
The Committee on Legal Affairs of the European Parliament has requested an In-depth Analysis on “The general principles of EU administrative procedural law”. The In-depth Analysis is intended to be presented at a meeting of the Working Group on Administrative Law.
Aim
. The Analysis puts forward drafting proposals for the general principles of EU administrative procedural law to be included in the Recitals of a draft Regulation on EU Administrative procedures. More specifically, the Analysis tries to clarify the content of the general principles of EU administrative procedural law and suggest the most accurate formulation for the corresponding recitals.
The following general principles, which are related to the Right to good administration embedded in Article 41 Charter, to the principle of an open, efficient and independent European administration enunciated in Article 298 TFEU are translated into recitals: ¹ Access to information and access to documents; Access to the file ; Duty of care; Data protection; Data quality; Effective remedy; Equal treatment and non-discrimination; Fair hearing; Fairness; Good administration; Impartiality; Legal certainty; Legality; Legitimate expectations; Participatory democracy; Proportionality; Reason giving; Rule of Law; Timeliness; Transparency.
(…)
2.2. Structure and wording of recitals

Which general principles of EU law need to be referred to in the recitals of an EU regulation on Administrative Procedures depends on the content of the substantive provisions of the regulation. The purpose of establishing an EU regulation on administrative procedures is to improve the quality of the EU’s legal system by fostering compliance with the general principles of EU law in the reality of fragmentation between sector-specific procedures and the reality of the multi-jurisdictional nature and pluralisation of actors involved in the implementation of EU policies.
Fragmentation has often resulted in a lack of transparency, predictability, intelligibility and trust in EU administrative and regulatory procedures and their outcome, especially from the point of view of citizens.
A codification of administrative procedures can contribute to simplifying the legal system of the Union, enhancing legal certainty, filling gaps in the legal system and thereby ideally contributing to compliance with the rule of law. Overall, it can be expected that establishing enforceable rights of individuals in procedures that affect them, contributes to compliance with principles of due process and fosters procedural justice.
Adopting such a regulation further has the potential to contribute not only to the clarity of the legal rights and obligations of individuals and participating institutions, offices, bodies and agencies, but also to the transparency and effectiveness of the legal system as a whole. An EU Regulation on Administrative Procedures has the potential to contribute to the objectives of clarification of rights and obligations. It also contributes to simplification of EU law by ensuring that procedures can follow one single rule-book and better regulation by allowing to improve the overall legislative quality.
The recitals of an EU regulation on administrative procedures will therefore contain various principles of EU law.
When identifying the principles of EU law which should be referred to in the recitals not only is it important to provide a list of principles but also to give them some order. In establishing such order, it has to be taken into account that there is neither an established ‘hierarchy’ of principles, nor do all general and foundational principles of EU law work in the same way. The important aspect of general principles is that they serve to guide the interpretation of legal rules of all levels of the EU’s legal system and fill gaps. In that context, the reference to a general principle of EU law in the recitals serves to reiterate its importance in interpreting a legal text such as the regulation on EU administrative procedure. It also serves to clarify which principles have been balanced by the legislature in establishing specific provisions of the regulation.

However, in order to structure the approach to the reference to general principles of EU law in the recitals of the EU regulation on administrative procedure, the various principles can be grouped. Taking into account the very nature of recitals our proposal is mainly grounded in the idea that the recitals not only have a legal purpose (of interpreting the norms in the regulation), but should also have a ‘citizen friendly’ informative purpose. The principles in the recitals therefore need to be presented in a way that may prompt the non-expert to read them.
(…)
The proposed recitals are not comprehensive: they are limited to the scope of clarifying the content of general principles of EU administrative procedure law, what other general principles are relevant to the implementation and interpretation of administrative procedure rules, and why those principles are important. Other components need to be added to the recitals such as, to name one example, the legal basis of the act.

Recitals (1) to (5) are intended to explain to a broader public why those principles matter. Recitals (7) to (22) attempt to explain what the content and meaning of those principles are. Recital (6) briefly alludes to internal principles which are very important for the implementation of the principles mentioned in Article 298 (1) TFEU of an open, efficient and independent administration without necessarily creating enforceable subjective rights; contrary to the other principles those internal principles are not further developed in their enunciation in so far as they do not necessarily correspond to subjective rights. One or more specific recitals might be devoted to those principles once the articles of the operative part of the Regulation will have been drafted.
The order in which those principles are presented derives from grounds which are explained in section 1.2 of this note. The recitals include footnotes that are obviously not intended to remain in the proposal of a Regulation. Their purpose is to give the most useful references (mainly about case law) to the reader of this note.
(…)
3.2. Proposed Recitals Continue reading “The General Principles of EU Administrative Procedural Law”

IS A TEMPORARY GREXIT LEGALLY POSSIBLE? EMU AS THE HOTEL CALIFORNIA

ORIGINAL PUBLISHED ON EU LAW ANALYSIS

by Steve Peers

According to press reports, while today’s Eurogroup meeting, called to consider a possible new bail-out plan for Greece, was taking place, the German government was leaking a plan for a ‘temporary Grexit’. Before considering the political or economic merits of this idea, there’s an obvious question: is this legally possible? In a word: No.

It’s not legally possible simply because a permanent Grexit isn’t legally possible, and so a temporary one isn’t either. I’ll briefly recap the reasons why, based on my recent blog post. There’s no reference in the Treaties to any power of a Member State to leave EMU once it joins, or of the EU institutions to remove that Member State from EMU, whether it agrees to that or not. A Member State can leave EMU by leaving the EU, but there’s no Treaty power to throw a Member State out of the EU, or to suggest that any Member State might ever be under the obligation to leave.

This week, Andrew Duff suggested that it might be possible to use the existing Treaties to arrange a Grexit. In his view, the power set out in Article 140(2) TFEU to decide on a Member State’s admission to the EU is reversible. However, this view is not legally tenable. Article 140(2) is only a power to join the euro, not to leave it. This interpretation is reinforced by Article 140(3) TFEU, which refers to the ‘irrevocable’ fixing of exchange rates. Overturning a decision made to join the euro by qualified majority vote (on the basis of Article 140(2)) would not be enough; it would also be necessary to overturn the exchange rate decision made by unanimityon the basis of Article 140(3). So Greece would have to consent – even if any of this were legally possible.

Some might suggest that the CJEU would simply ignore the plain words of the Treaty and accede to political reality, as it did in the cases of Pringle (on the ESM bail-out treaty), and Gauweiler (on ECB bond-buying). But those cases concerned measures which were intended to save monetary union, and which had broad support from Member States. A forced Grexit (temporary or not) would meet neither criterion. And much as many Germans hate to admit it, there is a textual basis to the rulings in Pringle and Gauweiler: the Treaty did not expressly ban loans to Member States, and it implicitly permits the ECB to buy government bonds on the secondary markets. The argument for a forced Grexit does not even have a fig leaf to hide its obvious illegality.

Nor can the Greeks be forced out by the actions of the ECB. The Treaty ban on forced exit from EMU must logically rule out measures which have the same result in practice. And even the measures which the ECB has taken to date (never mind others which it might take in future) are highly questionable, and are already being legally challenged, as I blogged earlier. We can’t assume that the CJEU will always back the legality of the ECB’s actions: the UK won a case against it earlier this year, and the Commission beat it in court years ago as regards the application of EU anti-fraud law.

So can anything be done legally to change the current position? As I suggested in my earlier blog post, it would be possible to amend the Treaties, or to somehow engineer proceedings that challenged the legality of Greek EMU membership from the outset, or the legality of Greek debts; or (more precariously) to use Article 352 TFEU (the residual powers clause of the Treaties) to regulate the effects of a Grexit that had already taken place de facto.

But let me offer another suggestion: it could arguably be legal to adopt a measure based on Article 352 which nominally retains Greece’s status as an EMU member, but exempts it from some of the normal rules applicable to EMU members. This has the advantage of bending rules a little without breaking them entirely. Since Article 352 requires unanimous voting, it avoids the economic and political problem with Duff’s proposal: throwing a Member State out of EMU by a qualified majority would show the world that the EU’s monetary union is very fragile indeed. Using Article 352 would ensure that Greece consents to whatever happens to it.

I won’t thrash out the details now of what this might entail. But some have pointed out that, for instance, Scotland has no official legal tender, but pounds are simply accepted as currency in practice. It might similarly be arguable that the euro would remain nominally legal tender in Greece, but some sort of parallel currency, not formally legal but accepted for certain purposes, could be introduced for a limited period.

I’m not suggesting that this is the best solution, either legally, economically or politically. In my view, the least bad solution would be a fresh bail-out deal with rather less austerity, or (since that’s not realistic) acceptance of the current Greek offer (including debt restructuring) with an independent advisory board to oversee and make suggestions for its detailed implementation. Only if that idea fails (which currently seems possible) should a more radical fall-back position be considered.

Metaphors about Greece have been done to death (and I’m afraid I’ve contributed to this myself). So let’s sum this idea up with a lyric from a famous rock song: Greece can check out of EMU any time it likes, but it can never leave.

THE LEGAL CHALLENGE TO ECB RESTRICTIONS ON GREEK BANK ACCOUNTS – AND HOW YOU CAN HELP

ORIGINAL PUBLISHED ON EU LAW ANALYSIS

by STEVE PEERS

Many EU citizens have watched with sympathy and concern as Greek citizens have been limited to withdrawing €60 a day in the last two weeks. This restriction results from a restriction imposed by the European Central Bank (ECB) on the emergency liquidity assistance which it provides to Greek banks.

Apart from the human impact, there are grave legal, political and economic doubts about the ECB’s action. One of the central purposes of a central bank is to function as a lender of last resort to banks – and the ECB is signally failing to do that here. Also, the ECB’s actions give the impression that it is trying to influence the Greek political debate on austerity and membership of the Eurozone – a role which is well outside the Bank’s remit. The banking restrictions obviously damage the Greek economy, and so limit its ability to pay back its creditors in future. They have nothing to do with the Bank’s task of fighting inflation, and they undermine its broader role in supporting the EU’s economic growth. (For a fuller critique, see here (paywalled); on the legal background, see here). Arguably these restrictions – or further restrictions which the ECB might impose – could lead toward a de facto ‘Grexit’ from monetary union, which is ruled out by EU law (see my discussion here).

It’s possible to challenge the ECB’s actions via the national courts, which can refer the issue to the CJEU, such as in the recent Gauweiler case (discussed here). They can also be challenged in the EU courts, such as in the UK’s recent successful challenge (discussed here). The case law takes a broad view of what ECB acts can be challenged, except where it acts as part of the ‘Troika’ which negotiates bailout conditions, when neither the Bank nor the Commission can be challenged in the EU courts. But the ECB’s restriction of assistance to Greek banks did not fall within the scope of its role in the Troika.

National governments such as Greece can go directly to the EU courts to challenge ECB actions. Other challengers besides the EU institutions would have satisfy standing rules: ‘direct and individual concern’, or (if they are challenging a non-legislative act which does not entail implementing measures) ‘direct concern’. Arguably it would be easy for a Greek bank to satisfy those rules.

In the absence of a legal challenge from a Greek bank or the Greek government, an individual depositor has brought a legal challenge to the ECB’s recent actions before the EU General Court. You can find the full text of the claim here. The ECB might restore assistance if there is a deal in the near future, but it is still worth challenging its actions, so it cannot do this (or threaten to do it) in future.

Obviously there is a possible problem with standing, although a parallel challenge could be brought in the Greek courts. The plaintiff welcomes any advice or support – contact info@alcimos.com. Or you can leave comments on this blog post.

“(EU’s) Laws are like sausages. You should never watch them being made…” (*)

by Emilio De Capitani

As denounced in several posts of this blog the distance between the daily practice of the EU institutions and the democratic principles enshrined in the Treaties is growing day by day.

I am not referring here to the way how representative democracy is framed at EU level. Suffice to remember how last year the voters have been tricked with the “spitzencandidate” game by four political families suggesting that each one of them was promoting alternative EU models. After the election three of them have become part of the same political majority in the European Parliament so that left and right are now intertwined that you hardly distinguish whose strategy is prevailing. Moreover in the interinstitutional game such majority in the European Parliament mirrors the majority in the big EU countries and in this situation there is no has no real incentive for the EU citizens representatives in changing the situation in the EU or in its main member states.

No, what I am referring here is the way how the EU institutions are jeopardising day by day the Treaty rules which support participative or “input” democracy which aims to give everyone a ‘say’ notably when the EU legislation is initiated, negotiated and adopted.

This model of the “govern by the people” now enshrined in the Treaties is extremely important in a legal order which is very rightly perceived far from EU citizens and which looks still framed by bureaucrats and diplomats more incline to the so called “output democracy” or the “govern for the people” where the management needs prevail on the citizen (and national parliaments) participation. However this government by the elites has become even stronger since the entry into force of the Lisbon Treaty notwithstanding it is stated that:

“Every citizen shall have the right to participate in the democratic life of the Union. Decisions shall be taken as openly and as closely as possible to the citizen.” (art.10 TEU).

“(1) In order to promote good governance and ensure the participation of civil society, the Union’s institutions, bodies, offices and agencies shall conduct their work as openly as possible. (2). The European Parliament shall meet in public, as shall the Council when considering and voting on a draft legislative act. (3). Any citizen of the Union, and any natural or legal person residing or having its registered office in a Member State, shall have a right of access to documents of the Union’s institutions, bodies, offices and agencies, whatever their medium, subject to the principles and the conditions to be defined in accordance with this paragraph.” (art.15 p 1-3 TFEU)

As I have explained here these principles are circumvented by the daily practice of the EU institutions which have built a parallel world of the so called “trilogues” where they meet negotiate and decide without any transparency towards the European citizens or even the National Parliaments. The latter have just a say at the beginning of the “movie” but disappear immediately after and even if most of them could follow the EU legislative works are threatened by the Council of the European Union of not diffusing the legislative preparatory work because it is covered by the …”professional secrecy” rule (!).

To try to change this state of things I have then asked to the European Parliament, the institution which is deemed to take in account more than other the needs of participative democracy, the texts which are debated during the interinstitutional trilogues and which reflect the evolution of the position of the different institutions during the legislative negotiations.

After a first denial from the EP secretariat I have submitted a confirmatory application where I have tried to raise the attention of the European Parliament Bureau (which brings together the EP President and Vice Presidents), on the constitutional, institutional and operational arguments in favour of transparency during legislative negotiations (see here).

The answer I have just received (see below a version emphasized/notated by me) is appalling because not only the European Parliament endorse the Council practice but declares that the protection of the effectiveness of the decision making process (which has no more standing in the treaties for legislative activity) overrides the right of the citizens to be informed and that confidentiality is necessary to avoid the risk of the EP Rapporteur losing the ‘trust’ of the Council Presidency (!?). Until now I was convinced that the EP main preoccupation was not to loose the trust of half billion citizens and to drive in a transparent way a political strategy which can also be supported at national level by the same political families in the national parliaments….
Will this be the position of the Ombusdman who has recently open an inquiry on the Trilogues interinstitutional practice ? Will this be the position of the Court ? It is too early to answer this question but this will arrive (better soon than later)

Emilio De Capitani

(*) Quoted from Otto Von Bismark

LETTER RECEIVED on 08.07.2015 from Ildiko GALL-PELCZ EP Vice-President in charge of Access to documents Continue reading ““(EU’s) Laws are like sausages. You should never watch them being made…” (*)”

EU VISA POLICY: A DASH FOR GROWTH?

PUBLISHED ON EU LAW ANALYSIS ON Monday, 6 July 2015

by Steve Peers

Historically, EU visa policy has principally concerned itself with controlling the risk of irregular migration and possible threats to security, balanced against EU foreign policy objectives. But in the last few years that policy has increasingly come to take account of economic growth (most notably as regards the EU tourism industry). This reorientation was launched in a Commission communication of 2012, and is already reflected in the last set of changes to the EU’s visa ‘whitelist’, which now includes trade and investment among the criteria for liberalising visas. Indeed those most recent amendments applied this policy by moving Peru and Colombia onto the visa waiver whitelist in return for signing a trade deal with the EU.

Will this policy also impact upon the EU’s visa code, which sets out the detailed rules for visa applications? Last year, the Commission proposed an overhaul of the code, alongside a parallel proposal for a ‘touring visa’ for those who wanted to stay for more than three months in the Schengen area (but for no more than three months in any one Schengen State). I have previously examined two specific issues relating to the visa code proposal: the position of EU citizens’ family members, and the possibility of developing the (implied) rules on humanitarian visas. The following analysis completes my comments (for now). It’s based on my ongoing work on the fourth edition of EU Justice and Home Affairs Law.

Visa code proposal

The proposal to overhaul the visa code keeps the basic structure of the code intact, but suggests a number of significant amendments. It doesn’t affect the issue of who does or doesn’t need a visa to visit the EU in the first place. The code only applies to States fully applying the Schengen system: 22 EU Member States (excluding the UK, Ireland, Croatia, Cyprus, Romania and Bulgaria, although the latter four States must apply it someday when they join Schengen), and four Schengen associates (Norway, Iceland, Switzerland and Liechtenstein).

It should be recalled that the CJEU has already ruled, in its judgment in Koushkaki (discussed here) that anyone who meets the criteria to obtain a Schengen visa set out in the visa code is entitled to one. The proposal wouldn’t change that case law either.

There’s a long list of proposed amendments, but the main aim of the proposal is to simplify the process of applying for a Schengen visa. So the obligation to appear in person to apply in a consulate would be dropped, except for when the applicant has to be fingerprinted for registration in the Visa Information System database (once every five years). Already only 30% of applicants appear in person, since most countries have outsourced the collection of visa application information to private companies. There would be revised rules determining which Member State consulate is responsible for each application, to make sure that each applicant will be able to apply for a visa without having to travel to a consulate in another country. Applicants could apply for a visa up to six months in advance (at present, the rules only allow them to apply up to three months in advance).

Checks on whether applicants have accommodation, means of subsistence and an intention to return would be relaxed if they were regular travellers with a ‘clean’ immigration record (this could be checked in the Visa Information System). Applicants would no longer have to obtain travel medical insurance, and Member States would have to make decisions more quickly. The rules on waiving the €60 visa application fee would become uniform, so that (for instance) there would be no fee for children under 18, researchers or diplomats. Regular travellers with a clean record would have a right to a multiple-entry visa, with a three year validity rising to five years (currently such visas might be valid for as short as six months). There would also be more possibilities to apply for visas at borders; at the moment this is a highly exceptional rule which mainly applies only to seafarers.

The European Parliament has not yet issued a draft report on either proposal, but the Council was initially unenthusiastic. A report earlier this year indicated that many Member States questioned the liberal proposed rules on multiple-entry visas, as well as the abolition of the medical insurance requirement, because of ‘large numbers of medical bills left unpaid’. Many also objected to shorter time periods for the application, and for any facilitation for EU citizens’ family members. A few opposed the proposed additional mandatory fee waivers. More recently, a redraft of part of the text shows that Member States were willing to accept the multiple-entry visa rules if the criteria were stricter, as well as some (but not all) of the fee waivers, while retaining the medical insurance requirement.

Touring visa proposal Continue reading “EU VISA POLICY: A DASH FOR GROWTH?”

“DON’T MENTION THE EXTRA JUDGES!” WHEN CJEU REFORM TURNS INTO FARCE

PUBLISHED ON EU LAW ANALYSIS ON Friday, 3 July 2015

by Steve Peers

The classic British comedy Fawlty Towers derived its humour from the doomed attempts of the ill-tempered hotel owner Basil Fawlty to control the uncontrollable situations that developed around him, often taking out his frustrations on his waiter, Manuel. No one would seriously suggest emulating Basil Fawlty’s management style. But nevertheless, the debate over the reform of the Court of Justice is increasingly resembling a Fawlty Towers episode.

Let’s review. After several previous failed attempts at reforming the EU judicial system, the Court of Justice suggested that the lower EU court (the General Court) should have double the number of judges – two per Member State, instead of one. The EU’s civil service tribunal (with seven judges) would close down, merged into the General Court. The senior Court of Justice would retain one judge per Member State. For the background, further details and arguments in favour, see my earlierblog post.

This proposal was opposed by many staff in the General Court. So four General Court judges appeared before the European Parliament to object to this plan (let’s call them, collectively, ‘Manuel’). For discussion of Manuel’s counter-arguments, see the recent blog post by Professors Pech and Alemanno; and for Manuel’s written argument itself, see here.

Very recently the proposal was formally adopted by the Council. But it still has to be agreed with the European Parliament (EP), and some Members of the European Parliament (MEPs) appear to have great misgivings, fuelled by the dissenting judges. Cue an angry response by the CJEU’s President Skouris (let’s call him ‘Basil’). As documented by Duncan Robinson in the Financial Times, hecomplained that the EP was willing to listen to the rebels, and threatened retaliationagainst the dissenting judge. Manuel might soon get whacked by that frying pan.

With the greatest respect, there are profound problems with Skouris’ approach. First and foremost, his response has become the story (it’s also been covered elsewhere). This diverts attention from the pros and cons of the argument for CJEU reform. I’m not criticising the journalists – it’s their job to report on his response, and he should have anticipated the effect it would have. Also, now that his response has become the story, it gives the impression that the proposal is a greedy grab for money by the judges. In fact. as I pointed out in my earlier post, the CJEU had previously suggested fewer extra judges. It only asked for doubling the number in despair, when it became clear that Member States could not agree on a more modest number, due to national egotism.

Secondly, Skouris’ angry letters give the impression that the CJEU is an authoritarian institution. Certainly, any ordinary employer would not take kindly to public criticism of its policy by its staff. For instance, if (entirely hypothetically) I had objections to the management of the University of Essex, I would not air them in a public forum. But the CJEU is a public body, in a political system whose legitimacy is clearly fragile. These attempts to silence dissent surely damage the Court’s authority more than the dissent itself would. Anyway, they gave that dissent far more publicity than it would otherwise have had (the well-known ‘Streisand effect’).

Thirdly, by attacking the dissenters instead of countering their arguments, it gives the impression that there is no good argument in favour of the Court’s proposals, since the brave truth-tellers are being silenced. And in tactical terms, it’s particularly hard to see how attacking the very MEPs whom Skouris needs to convince to support his proposals will win them round. Continue reading ““DON’T MENTION THE EXTRA JUDGES!” WHEN CJEU REFORM TURNS INTO FARCE”

Agenda européen pour les migrations et protection des réfugiés : « l’Europe n’est pas à la hauteur »

ORIGINAL PUBLISHED HERE 3 JUILLET 2015

par Henri Labayle, CDRE

Ces fortes paroles du président de la Commission, à l’issue du Conseil européen des 25 et 26 juin, sont un reflet exact de la situation. La déception qu’elles traduisent est à la mesure du geste politique accompli par le chef de l’exécutif. Il convient de lui en rendre justice.

La tiédeur des conclusions adoptées par les chefs d’Etat et de gouvernement est en effet symptomatique d’une Europe se berçant de mots, incapable de respecter les valeurs dont elle se réclame. En bref, en pleine crise d’identité comme de projet. Incapables de s’accorder sur un accueil obligatoire des demandeurs de protection (1), les Etats membres se sont satisfaits du simple principe de cet accueil (2).

1. Le refus de tout mécanisme contraignant

Il ne fallait pas être grand clerc pour deviner les suites réservées à la proposition courageuse de la Commission de donner, enfin, un sens concret à la solidarité entre Etats membres que ces derniers ont prétendu graver dans le marbre des traités. Au point qu’ici même, il y a un mois, on avait conclu à leur enterrement avant l’heure, sinon à une manoeuvre politique.

Il était en effet peu vraisemblable qu’une majorité se dégage en faveur des idées phares contenues dans la proposition faite au Conseil d’instituer des mesures provisoires en matière de protection internationale au profit de l’Italie et de la Grèce (COM (2015) 286). L’ambition était politique sinon numérique : les Etats étaient invités à réinstaller et relocaliser 60.000 demandeurs de protection dans l’Union européenne, de manière obligatoire, en deux ans et sur la base de critères de répartition.

Pour une fois, l’Union n’a pas déçu ceux qui l’observent : elle a été effectivement incapable d’assumer ses responsabilités, comme à l’habitude. La nouveauté, en revanche, provient des lignes de front qui se sont dessinées à cette occasion, allant au delà des surenchères verbales.

a. la lenteur des mesures opérationnelles Continue reading “Agenda européen pour les migrations et protection des réfugiés : « l’Europe n’est pas à la hauteur »”

Passenger Name Records, data mining & data protection: the need for strong safeguards

EXCERPTS FROM EXPERTS’ OPINION SUBMITTED TO THE COUNCIL OF EUROPE (PUBLISHED ON THE STATEWATCH SITE)

by Douwe KORFF and Marie GEORGES (FREE-Group Members)

Introduction

Much has been said and written about Passenger Name Records (PNR) in the last decade and a half. When we were asked to write a short report for the Consultative Committee about PNR, “in the wider contexts”, we therefore thought we could confine ourselves to a relatively straightforward overview of the literature and arguments.

However, the task turned out to be more complex than anticipated. In particular, the context has changed as a result of the Snowden revelations. Much of what was said and written about PNR before his exposés had looked at the issues narrowly, as only related to the “identification” of “known or [clearly ‘identified’] suspected terrorists” (and perhaps other major international criminals). However, the most recent details of what US and European authorities are doing, or plan to do, with PNR data show that they are part of the global surveillance operations we now know about.

More specifically, it became clear to us that there is a (partly deliberate?) semantic confusion about this “identification”; that the whole surveillance schemes are not only to do with finding previously-identified individuals, but also (and perhaps even mainly) with “mining” the vast amounts of disparate data to create “profiles” that are used to single out from the vast data stores people “identified” as statistically more likely to be (or even to become?) a terrorist (or other serious criminal), or to be “involved” in some way in terrorism or major crime. That is a different kind of “identification” from the previous one, as we discuss in this report.

We show this relatively recent (although predicted) development with reference to the most recent developments in the USA, which we believe provide the model for what is being planned (or perhaps already begun to be implemented) also in Europe. In the USA, PNR data are now expressly permitted to be added to and combined with other data, to create the kinds of profiles just mentioned – and our analysis of Article 4 of the proposed EU PNR Directive shows that, on a close reading, exactly the same will be allowed in the EU if the proposal is adopted.

Snowden has revealed much. But it is clear that his knowledge about what the “intelligence” agencies of the USA and the UK (and their allies) are really up to was and is still limited. He clearly had an astonishing amount of access to the data collection side of their operations, especially in relation to Internet and e-communications data (much more than any sensible secret service should ever have allowed a relatively junior contractor, although we must all be grateful for that “error”). However, it would appear that he had and has very little knowledge of what was and is being done with the vast data collections he exposed.

Yet it is obvious (indeed, even from the information about PNR use that we describe) that these are used not only to “identify” known terrorists or people identified as suspects in the traditional sense, but that these data mountains are also being “mined” to label people as “suspected terrorist” on the basis of profiles and algorithms. We believe that that in fact is the more insidious aspect of the operations.

This is why this report has become much longer than we had planned, and why it focusses on this wider issue rather than on the narrower concerns about PNR data expressed in most previous reports and studies.

The report is structured as follows. After preliminary remarks about the main topic of the report, PNR data (and related data) (further specified in the Attachment), Part I discusses the wider contexts within which we have analyzed the use of PNR data. We look at both the widest context: the change, over the last fifteen years or so, from reactive to “proactive” and “preventive” law enforcement, and the blurring of the lines between law enforcement and “national security” activities (and between the agencies involved), in particular in relation to terrorism (section I.i); and at the historical (immediately post-“9/11”) and more recent developments relating to the use of PNR data in data mining/profiling operations the USA, in the “CAPPS” and (now) the “Secure Flight” programmes (section I.ii).

In section I.iii, we discuss the limitations and dangers inherent in such data mining and “profiling”.

Only then do we turn to PNR and Europe by describing, in Part II. both the links between the EU and the US systems (section II.1), and then the question of “strategic surveillance” in Europe (II.ii).

In Part III, we discuss the law, i.e., the general ECHR standards (I); the ECHR standards applied to surveillance in practice (II, with a chart with an overview of the ECtHR considerations); other summaries of the law by the Venice Commission and the FRA (III); and further relevant case-law (IV).

In Part IV, we first apply the standards to EU-third country PNR agreements (IV.i), with reference to the by-passing of the existing agreements by the USA (IV.ii) and to the spreading of demands for PNR to other countries (IV.iii). We then look at the human rights and data protection-legal issues raised by the proposal for an EU PNR scheme. We conclude that part with a summary of the four core issues identified: purpose-specification and –limitation; the problem with remedies; “respect for human identity”; and the question of whether the processing we identify as our main concern – “dynamic”-algorithm-based data mining and profiling – actually works.

Part V contains a Summary of our findings; our Conclusions (with our overall conclusions set out in a box on p. 109); and tentative, draft Recommendations. (…)

Conclusions Continue reading “Passenger Name Records, data mining & data protection: the need for strong safeguards”

How the EU “legislative triangle” is becoming a “Bermudes, triangle “…

by Emilio De Capitani

According to several scholars the Lisbon Treaty has strengthened the implementation of the democratic principle in the EU as well as the framework for participative democracy. In theory with entry into force of the Charter the EU has become more accountable to its citizens and there has been a clear improvement of the legal framework for EU legislative and non legislative activity. Even if not perfectly sound) there is now a clear definition of what should be considered of “legislative” nature and there is now a clear obligation (at primary law level) to debate publicly both in the Council and in the European Parliament.

Needless to say, the latter has been for years the champion of legislative and administrative transparency not only in the citizens interest but also in view of the definition of its own marge of maneuver during the negotiations with the Council. This former EP attitude was not particularly appreciated by the Council and the Commission when in 2001, before Lisbon, the three institutions negotiated the first EU legislation in this domain. (Regulation 1049/01). However at the time it was easy to say that time was needed to promote open debates and votes in the Council and in the Commission because it would had required a change of culture in an institution mainly structured as a bureaucratic machinery (the Commission) or in an other framed by a diplomatic approach (the Council).

Five years after Lisbon such a change of culture in the Council and the Commission is it under way or is the other way round for the EP?

Have a look to the exchange of messages below and make your own opinion. The issue is still pending but risks to have some interesting developments… Continue reading “How the EU “legislative triangle” is becoming a “Bermudes, triangle “…”