Why the (US) Judicial Redress Act is worthless

PUBLISHED ON THE IDENTITY PROJECT

Yesterday President Obama signed the Judicial Redress Act into law. European Union Commissioner for Justice Věra Jourová described the new law as, “a historic achievement [that] will ensure that all EU citizens have the right to enforce data protection rights in U.S. courts…. The entry into force of the Judicial Redress Act will pave the way for the signature of the EU-U.S. Data Protection Umbrella Agreement.”

Is the Judicial Redress Act really so historic? And will it actually “ensure that all EU citizens have the right to enforce data protection rights in U.S. courts”?

Sadly, no.

Europeans should not be by statements such as those from Commissioner Jourová or his counterparts in other EU institutions. As we know from our own experience in court as US citizens, there are almost no real-world cases in which the Judicial Redress Act will provide any actual protection or enforceable legal rights to citizens or residents of the EU, or anywhere else.

The Judicial Redress Act gives some foreign citizens some of the rights that US citizens currently have, with respect to some of the uses and misuses by the US government of their personal information. But in no case will any foreigner have more rights under the Judicial Redress Act than US citizens have under the Privacy Act.

Serious scrutiny of the terms of the Privacy Act, and of the history of attempts by US citizens to use the Privacy Act to protect themselves against misuse of our personal information by the US government, has been largely absent from the debate about the Judicial Redress Act. But from our experience as parties to one of the key lawsuits attempting to assert Privacy Act claims by US citizens in relation to one of the most controversial categories of personal information being transferred from the EU to the US — passenger name records (PNRs) for international airline flights — we have learned an important lesson that Europeans need to know: the Privacy Act is so limited and riddled with exceptions that it is almost worthless. It is because the Privacy Act is useless, not because the US government follows fair personal information practices in its dragnet surveillance, that there are so few examples of successful litigation against the US government by US citizens under the Privacy Act.

All of the limitations and exceptions that always rendered the “protection” of the Privacy Act inadequate — even for US citizens — will continue to render the protection of the Judicial Redress Act inadequate for foreigners, in all of the same ways, and in additional ones.

What are these exceptions and limitations? In order to make sense out of the Judicial Redress Act, it’s essential to understand the exemptions in the Privacy Act, as courts have interpreted them.

Federal agencies can exempt themselves from almost all of the requirements of the Privacy Act with respect to “investigatory material compiled for law enforcement purposes,” a catch-all category that has been applied to records of dragnet surveillance and other information compiled and used for “pre-crime” profiling, even when the data subjects have never been accused or suspected of any crime. All an agency has to do to opt-out is to publish a notice in the Federal Register that a particular system of records has been declared exempt by the agency that maintains the records. An agency can wait to promulgate such a notice until after it receives a request for access to records, a request for an accounting of disclosures, or a request for correction of records.

What does this mean in practice, when the courts have been asked to apply the Privacy Act to sensitive PNR data pertaining to a US citizen? As we noted in 2012 at the conclusion of our Privacy Act litigation against the US government for the government’s copies of PNR data contained in the CBP Automated Targeting System (ATS):

Under the interpretation of the Privacy Act adopted by Judge Seeborg’s ruling in our case, additional Privacy Act exemptions could be promulgated at any time in the future, and applied even to requests that had already been made. Nobody can rely on any “rights” under the Privacy Act that could be retroactively revoked at any time. In addition, the new notices fail to give any additional detail about the data-mining or search-and-retrieval capabilities of the software (which Judge Seeborg ruled that CBP does not have to disclose, notwithstanding the specific requirement of the Privacy Act law that a SORN include the “practices of the agency regarding … retrievability” of records) or the algorithms used for processing data and making “targeting” decisions… (The use of secret algorithms makes it impossible for airlines or other travel companies subject to European Union jurisdiction, but which provide PNR or other data to CBP for ATS, to fulfill their duty under EU law to inform data subjects how their data is processed — a point we’ve made in complaints against airlines to European data protection authorities.)…

Individuals and governments abroad should also take due note of the US government’s claims in this case, and judge their collaboration with ATS accordingly. Individuals — even US citizens — have no right under US law to see what ATS records are being kept about them, and no right to know how or according to what algorithms data about themselves is mined, processed, or otherwise used. No records are kept of requests for access to records, and no logs are kept of who retrieves records.

The rules published by the DHS to exempt records in the Automated Targeting System (including copies of airline PNR data, “targeting rule sets”, and “risk assessment analyses”) from the requirements of the Privacy Act are typical of the exemptions that have been promulgated for numerous other systems of Federal records about individuals:

The Secretary of Homeland Security has exempted this system from the following provisions of the Privacy Act, subject to the limitations set forth in 5 U.S.C. 552a(c)(3) and (4); (d)(1), (2), (3), and (4); (e)(1), (2), (3), (4)(G) through (I), (e)(5), and (8); (f); and (g) pursuant to 5 U.S.C. 552a(j)(2)…. These exemptions also apply to the extent that information in this system of records is recompiled or is created from information contained in other systems of records.

To understand what this means, one has to read the clauses of the Privacy Act referred to in the exemption rules. The contents of ATS, including PNR data, have been exempted by the DHS from each of the following requirements of the Privacy Act:

The right of a data subject to access records about herself.
The right of a data subject to receive, on request, an accounting of disclosures of her personal data to other agencies or third parties.
The prohibition on maintaining records about individuals that are not relevant and necessary to accomplish a legal purpose of the agency.
The requirement to maintain records which are used in making determinations about individuals “with such accuracy, relevance, timeliness, and completeness as is reasonably necessary to assure fairness to the individual.”
The requirement to collect personal information “to the greatest extent practicable” directly from the data subject rather than from third parties.
The requirement to notify data subjects of what information about them is being collected, and from whom it is being collected.
The right of a data subject to to dispute, amend, or correct records about herself.
The right of a data subject to add a notice of disputed data in records about herself, and to have that notice included whenever the disputed potion of the record is disclosed to a third party.
It’s not just the DHS that has opted out of the Privacy Act, as Federal courts have upheld that the law allows it to do. The NSA has similarly exempted its dragnet surveillance records from the Privacy Act, as other experts have noted:

The problem is that Europeans are likely to notice that the Privacy Act provides no meaningful redress to targets of NSA surveillance. Agencies can exempt themselves from the Privacy Act’s access and redress provisions on grounds of national security. 5 U.S.C. § 552a(k). The NSA has taken full advantage of this section. 32 C.F.R. § 322.7(a).

Once an agency has published a notice exempting a system of records from these requirements of the Privacy Act, it is completely legal (or at least, it is not a violation of the Privacy Act for which a US citizen or anyone else can sue the agency) for the agency to fill that database with secret information about individuals, collected from undisclosed third parties, that it knows is likely to be inaccurate, outdated, incomplete, and irrelevant to any lawful purpose. The agency can withhold all of this information from the data subject, and secretly disclose any or all of it to any other government agency or third party anywhere in the world. Any disclosure of exempt records that an agency chooses to make is “discretionary” and not subject to judicial review.

But wait, there’s more! For the reasons discussed above, the Privacy Act gives US citizens inadequate legal protection. But even with the Judicial Redress Act, Europeans and other foreigners will continue to have even less protection and fewer rights than US citizens. The Judicial Redress Act gives foreign citizens (even citizens of the most preferred foreign nations) fewer rights than US citizens, in important ways that most Europeans probably are not aware of.

First, even with respect to records that have not been exempted from the Privacy Act, the Judicial Redress Act gives foreign citizens the right to sue to enforce only some, but not all, of the rights that US citizens can sue to enforce under the Privacy Act. Specifically, foreign citizens can bring lawsuits in US courts only for violations of “section 552a(g)(1)(D) of title 5, United States Code” or “subparagraphs (A) and (B) of section 552a(g)(1) of title 5, United States Code” but not under any of the other provisions of the Privacy Act. These sections cover refusal by a Federal agency to comply with a subject access request or request for amendment of a record, but notably exclude lawsuits by foreigners for violations of subparagraph (C), which allows a US citizen to sue an agency that “fails to maintain any record concerning any individual with such accuracy, relevance, timeliness, and completeness as is necessary to assure fairness in any determination relation to … the individual that may be made on the basis of such record, and consequently a determination is made which is adverse to the individual.”

The very deliberate exclusion of this subparagraph (C) of this section of the Privacy Act from the causes of action allowed by the Judicial Redress Act, while including subparagraphs (A), (B), and (D), appears to have been deliberately crafted to preclude challenges by foreigners to the use of unreliable and irrelevant third-party data in “garbage in, garbage out” pre-crime profiling , risk assessments, and similar algorithmic processing and scoring systems.

Second, records are “covered” by the Judicial Redress Act only if they have been transferred:

(A) by a public authority of, or private entity within, a … covered country; and

(B) to a designated Federal agency or component for purposes of preventing, investigating, detecting, or prosecuting criminal offenses.

It might not be obvious at first glance, but this excludes two key categories of records: records maintained for purposes other than enforcement of criminal laws, and records transferred from the EU to the US government by way of commercial intermediaries in the US (or in third countries that are not covered by the Judicial Redress Act).

Records maintained by the US government for the enforcement of civil laws — such as the civil penalties for violations of aviation “security” orders — are thus exempt from the Judicial Redress Act, as are all records maintained for other purposes, or for no defined or particularized purpose at all. Records maintained for criminal law enforcement purposes can be (and almost always have been) exempted from the Privacy Act, and records for all other purposes are exempt from the Judicial Redress Act. The result, undoubtedly intentional, is that hardly any records that will fall through the cracks between the exemptions in these two laws, and provide a basis for a lawsuit by a foreign citizen. The Judicial Redress Act is a carefully constructed paper tiger.

Even if either or both the Privacy Act and/or the Judicial Redress Act were amended to remove some or all of these exemptions (which is highly unlikely, to say the least), the limitation of the Judicial Redress Act to records transferred directly from an entity in the EU to the US government would leave a huge loophole, of exactly the sort the US has exploited in the past to intercept information about financial transfers between European banks from servers of SWIFT in the US, information about electronic communications between other countries from intermediaries in the US through which messages were routed, and information about PNR data collected and stored by European airlines, travel agents, and tour operators stored with computerized reservation systems in the US.

As we have pointed out in our previous testimony to the European Parliament, most transfers of PNR data from the EU to the US government are indirect, and occur by way of CRSs/GDSs and/or other commercial intermediaries in the US. These indirect but routine transfers already evade the EU-US “agreement” on direct PNR transfers, and now also evade the Judicial Redress Act, due to its limitation to direct transfers from the EU to the US government.

The Privacy Act provides inadequate data protection for US citizens, and the Judicial Redress Act would provide even more inadequate protection for non-US citizens. Neither of these laws provides any basis for a finding that anyone’s rights are adequately protected in the US, for approval of the proposed Safe Harbor 1.1 Privacy Shield, or for approval of the proposed EU-US “umbrella agreement” on data transfers.

This entry was posted on Thursday, February 25th, 2016 at 9:46 am and is filed under Secret Law, Surveillance State. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.

STRASBOURG : The CIA’s abduction and extrajudicial transfer to Egypt of the imam Abu Omar infringed the applicants’ rights under the Convention

 

The judgment which has just been issued, resulting from the unanimous convergence of the Chamber’s seven judges, declares that the Italian state has violated art. 3 of the ECHR, not just by cooperating in Abu Omar’s kidnapping and his rendition to the Egyptian authorities, which exposed him to subsequent tortures; but also, and most importantly, insofar as it prevented the investigations undertaken by the Milan prosecutors’ office and the trial which were subsequently celebrated from ending naturally into the punishment of the defendants who were deemed responsible.

The reasons for the most important violation among those ascertained in Strasbourg (and it is a very long list) lie in the government’s, Constitutional Court’s and the former President of the Republic behaviour. These institutions have been respectively held responsible for the following reasons:

– insofar as the government is concerned, for its decision to apply state secrecy in the criminal trials to information that was already widely known to the public, evidently for the only purpose of preventing several defendants from being punished (see points 268 and 272 of the sentence), as well as for its later decision not to request -except for a single case- the extradition of the convicted US nationals;

– insofar as the Constitutional Court is concerned, for establishing through the judgments rendered in this case the prevalence of the state secrecy over the public interests pursued by the criminal justice system and, more generally, over the protection of the victims’ fundamental rights;

– insofar as the President of the Republic is concerned, for his decision to grant pardon to three convicts, including the one who had received the heaviest sentence because of his key role in the operation.

Worth to be mentioned here are the passages where the Court “pays homage to the national judges, who have done everything they could to try to establish the truth” (para. 265), and where it stresses the “great quality of the Italian investigators’ and judges’ work” (para. 269). All this has, unfortunately, not prevented the entire matter from ending in the impunity, in pratice, of all those found to be responsible, in contrast to the procedural obligations arising from the Convention.

This is a new unfortunate chapter for Italy in Strasbourg, in spite of the important recognition -as it had already happened in the Cestaro judgment, concerning the case of the Diaz school [at the Genoa G8 in 2001]- of the quality of the work done by our Judiciary for the defence of everybody’s fundamental rights, innocent parties and culprits alike.

Francesco VIGANO’

 

 

NOTA BENE : THIS IS A EUROPEAN COURT OF HUMAN RIGHTS PRESS RELEASE (emphasis are added) EDC

In today’s Chamber judgment1 in the case of Nasr and Ghali v. Italy (application no. 44883/09) the European Court of Human Rights held, unanimously, that there had been:

– with regard to Mr Nasr:

  • a violation of Article 3 (prohibition of torture and inhuman or degrading treatment) of the European Convention on Human Rights,
  • a violation of Article 5 (right to liberty and security) of the European Convention,
  • a violation of Article 8 (right to respect for private and family life) and
  • a violation of Article 13 (right to an effective remedy) read in conjunction with Articles 3, 5 and 8

– with regard to Ms Ghali:

  • a violation of Article 3 (prohibition of torture and inhuman or degrading treatment),
  • a violation of Article 8 (right to respect for private and family life) and
  • a violation of Article 13 (right to an effective remedy) read in conjunction with Articles 3 and 8

The case concerned an instance of extrajudicial transfer (or “extraordinary rendition”), namely the abduction by CIA agents, with the cooperation of Italian officials, of the Egyptian imam Abu Omar, who had been granted political asylum in Italy, and his subsequent transfer to Egypt, where he was held in secret for several months.

Having regard to all the evidence in the case, the Court found it established that the Italian authorities were aware that the applicant had been a victim of an extraordinary rendition operation which had begun with his abduction in Italy and had continued with his transfer abroad.

The Court had already held in previous cases (El-Masri v. The former Yugoslav Republic of Macedonia [GC], ECHR 2012; Al Nashiri v. Poland, no. 28761/11, 24 July 2014; and Husayn (Abu Zubaydah) v. Poland, no. 7511/13, 24 July 2014) that the treatment of “high-value detainees” for the purposes of the CIA’s “extraordinary rendition” programme was to be classified as torture within the meaning of Article 3 of the Convention.

In the present case the Court held that the legitimate principle of “State secrecy” had clearly been applied by the Italian executive in order to ensure that those responsible did not have to answer for their actions. The investigation and trial had not led to the punishment of those responsible, who had therefore ultimately been granted impunity.

Principal facts

The first applicant is Osama Mustafa Hassan Nasr, also known as Abu Omar, who was born in 1963. The second applicant is Nabila Ghali, who was born in 1968. Both are Egyptian nationals. Mr Nasr, member of the group Jama’a al-Islamiya – an Islamist movement regarded by the Egyptian government as a terrorist organisation – had lived in Italy since 1998. He became an imam and settled in Milan in July 2000. He was granted political asylum in February 2001 and married Ms Ghali in October of that year.

Mr Nasr was suspected, among other offences, of conspiracy to commit international terrorist acts, and his links to fundamentalist networks were investigated by the Milan public prosecutor’s office. The investigations concluded in June 2005 when the investigating judge made an order for Mr Nasr’s pre-trial detention. On 6 December 2013 the Milan District Court convicted Mr Nasr of membership of a terrorist organisation.

On 17 February 2003, while he was walking down a street in Milan, Mr Nasr was abducted and taken to the Aviano air base operated by USAFE (United States Air Forces in Europe), where he was put on a plane bound for the Ramstein US air base in Germany. From there he was flown in a military aircraft to Cairo. On his arrival he was interrogated by the Egyptian intelligence services about his activities in Italy, his family and his trips abroad. Mr Nasr was detained in secret until 19 April 2004 in cramped and unhygienic cells. He was taken out of his cell at regular intervals and subjected to interrogation sessions during which he was ill-treated and tortured.

On 19 April 2004 Mr Nasr was released. He maintained that he had been released because he had given statements in accordance with the instructions he had received and on condition that he did not leave Alexandria and remained silent about his experiences in prison. In spite of this condition, Mr Nasr telephoned his wife to let her know that he was safe. He also submitted a statement to the Milan public prosecutor’s office in which he described his abduction and torture. Approximately 20 days after his release, Mr Nasr was rearrested and detained. He was released on 12 February 2007 without charge but was prohibited from leaving Egypt.

On 20 February 2003 Ms Ghali had reported her husband’s disappearance to the police. The Milan public prosecutor’s office immediately started an investigation into abduction by a person or persons unknown. The Milan police department dealing with special operations and terrorism (the “Digos”) was put in charge of the investigation. In February 2005 it submitted a report on the investigation to the public prosecutor’s office. All the information obtained in the investigation confirmed Mr Nasr’s version of events with regard to his abduction and his transfer to the Aviano US air base and subsequently to Cairo. It also established that 19 US nationals had been involved in the events, including members of the United States diplomatic and consular corps in Italy. The investigators also found that the CIA chief in Milan at the time, Robert Seldon Lady, had played a key role in the events.

On 23 March 2005 the public prosecutor requested the pre-trial detention of 19 US nationals, including Mr Lady, who were suspected of involvement in planning and carrying out the abduction. The Milan investigating judge ordered the pre-trial detention of a further three US nationals. All 22 were declared “fugitives”. In November and December 2005 the prosecutor in charge of the investigation requested the principal public prosecutor to ask the Ministry of Justice to seek the extradition of the accused on the basis of a bilateral agreement with the United States and to request Interpol to initiate an international search for them. On 12 April 2006 the Minister of Justice informed the prosecuting authorities that he had decided not to seek the extradition of the 22 accused US nationals or to have an international wanted notice issued concerning them.

The second phase of the investigation related to the involvement of Italian nationals, including State agents. During the investigation it transpired that two senior officials of the SISMi (the Italian military intelligence agency) had been aware of the CIA’s plan to abduct Mr Nasr and of possible SISMi involvement. A journalist, Mr Farina, was also implicated, having allegedly attempted to lay false trails for the investigators at the request of SISMi agents.

In July 2006 the Prime Minister stated that the information and documents requested by the public prosecutor’s office were covered by State secrecy and that the conditions for lifting that secrecy were not met. In a judgment of 18 March 2009 the Constitutional Court held that the interests protected by State secrecy took precedence over any other interests guaranteed by the Constitution, and pointed out that the executive was invested with discretionary powers to assess the need for secrecy in order to protect those interests. The Constitutional Court specified that these powers were exempt from review, including by the Constitutional Court, and emphasised that it was not its task to examine the reasons for having recourse to State secrecy. Numerous items of evidence in the ongoing proceedings were therefore declared confidential and unusable.

On 4 November 2009 the Milan District Court delivered a judgment in which it found that Mr Nasr’s abduction had been planned and carried out by CIA operatives on the basis of a decision taken at political level; that the abduction had been carried out without the knowledge of the Italian authorities also engaged in investigating Mr Nasr at that time; and that the fact that authorisation had been given by very senior CIA officials suggested that the operation had been staged with the knowledge or even the tacit consent of the Italian authorities, although it had not been possible to further investigate the evidence existing in that regard for reasons of State secrecy.

Lastly, 22 CIA operatives and high-ranking officials, and one US army officer, were convicted in absentia of Mr Nasr’s abduction and were given prison sentences of between six and nine years. Two members of the SISMi were found guilty of obstructing the investigation and sentenced to three years’ imprisonment. The convictions of the former head of the SISMi and his deputy, and those of the three former SISMi members, were quashed by the Court of Cassation on grounds of State secrecy. The US nationals were also ordered to pay damages to the applicants in an amount to be determined in civil proceedings. The District Court provisionally awarded one million euros (EUR) to Mr Nasr and EUR 500,000 to Ms Ghali. The applicants have received no compensation to date, nor have the Italian authorities sought the extradition of the convicted US nationals.

Complaints, procedure and composition of the Court

Relying on Articles 3 (prohibition of inhuman or degrading treatment), 5 (right to liberty and security), 6 (right to a fair trial) and 13 (right to an effective remedy) of the Convention, Mr Nasr complained of his abduction, in which the Italian authorities had been involved, of the ill-treatment to which he had been subjected during his transfer and detention, of the fact that those responsible had been granted impunity owing to the application of State secrecy, and of the fact that the sentences imposed on the convicted US nationals had not been enforced because of the refusal of the Italian authorities to request their extradition. Lastly, both applicants alleged, among other violations, a breach of Article 8 (right to respect for private and family life) in that Mr Nasr’s abduction and detention had resulted in their forced separation for over five years.

The application was lodged with the European Court of Human Rights on 6 August 2009.

Judgment was given by a Chamber of seven judges, composed as follows:

  • George Nicolaou (Cyprus), President,
  • Guido Raimondi (Italy),
  • Päivi Hirvelä (Finland),
  • Ledi Bianku (Albania),
  • Nona Tsotsoria (Georgia),
  • Paul Mahoney (the United Kingdom),
  • Krzysztof Wojtyczek (Poland),
  • and Françoise Elens-Passos, Section Registrar.

 

Decision of the Court

Article 3 (prohibition of torture and inhuman or degrading treatment)

Regarding the investigation and trial

The Court began by observing that the domestic courts had conducted a detailed investigation that had enabled them to reconstruct the events. The evidence that had ultimately been disregarded by the courts on the ground that the Constitutional Court had found it to be covered by State secrecy had been sufficient to convict the accused. The Court went on to note that the information implicating the SISMi agents had been widely circulated in the press and on the Internet; it therefore found it difficult to imagine how invoking State secrecy had been apt to preserve the confidentiality of the events once the information in question had been disclosed. In the Court’s view, the executive’s decision to apply State secrecy to information that was already widely known to the public had resulted in the SISMi agents avoiding conviction.

As to the convicted US agents, the Court noted that the Government had acknowledged never having sought their extradition. According to the Government, they had issued European arrest warrants and a single international arrest warrant against Mr Lady, which had yielded no results. Furthermore, the President of the Republic had pardoned three of the convicted persons, including Mr Lady, who had received a heavier sentence because of the extent of his responsibility in the extraordinary rendition operation.

The Court noted that in spite of the efforts of the Italian investigators and judges, which had identified the persons responsible and secured their convictions, the latter had remained ineffective owing to the attitude of the executive. The legitimate principle of “State secrecy” had clearly been applied in order to ensure that those responsible did not have to answer for their actions. Accordingly, the investigation and trial had not led to the punishment of those responsible, who had ultimately been granted impunity.

The Court therefore took the view that the domestic investigation had not satisfied the requirements of the Convention. Accordingly, there had been a violation of the procedural aspect of Article 3 of the Convention.

Regarding the inhuman and degrading treatment

It was beyond doubt that Mr Nasr’s abduction had entailed the use of techniques that must have caused him emotional and psychological distress. His ensuing detention, including his transfer by plane to an unknown destination, had undoubtedly placed Mr Nasr in a situation of complete vulnerability, and he had undeniably lived in a permanent state of anxiety owing to his uncertainty about his fate. In fact, in his statement to the Milan public prosecutor Mr Nasr had given details of the circumstances surrounding his abduction and his detention in Egypt and the treatment to which he had been subjected, and in particular the violent interrogation sessions. The Court had previously held that similar treatment of “high-value detainees” for the purposes of the CIA’s extraordinary rendition programme was to be classified as torture within the meaning of Article 3 of the Convention2.

In view of the fact that the Italian authorities had been aware of the extraordinary rendition operation carried out in the context of the CIA’s high-value detainee programme, and had actively cooperated with the CIA during the initial phase of the operation – Mr Nasr’s abduction and his transfer abroad – the Court considered that those authorities had known or should have known that this would place him at a real risk of ill-treatment. In those circumstances, the likelihood of a violation of Article 3 had been particularly high and should have been considered as inherent in the Mr Nasr’s transfer. Accordingly, by allowing the CIA to transfer Mr Nasr outside the country, the Italian authorities had exposed him to a serious and foreseeable risk of ill-treatment and of conditions of detention contrary to Article 3 of the Convention.

Under Articles 1 and 3 of the Convention the Italian authorities had had a duty to take the appropriate measures to ensure that the persons within their jurisdiction were not subjected to torture or to inhuman or degrading treatment or punishment. This had not been the case, and the respondent State had to be considered directly responsible for the violation of the first applicant’s rights under this head, as its agents had failed to take the measures that would have been necessary in the circumstances of the case to prevent this situation from occurring. The State’s responsibility in this regard was all the greater since Mr Nasr had been granted refugee status in Italy.

In the Court’s view, by allowing the US authorities to abduct the first applicant, the Italian authorities had knowingly exposed him to a real risk of treatment contrary to Article 3 of the Convention. There had therefore been a violation of the substantive aspect of Article 3 of the Convention.

Regarding the violation of Article 3 in the case of Ms Ghali

As acknowledged by the Italian courts, Ms Ghali had suffered significant non-pecuniary damage as a result of her husband’s disappearance, especially on account of the sudden interruption of their married life and the damage to her psychological well-being and that of her husband. The unjustified conduct of the Italian authorities and the suffering caused to Ms Ghali as a result had been regarded by the Italian courts as sufficiently serious to warrant an award of 500,000 euros in damages.

Furthermore, the uncertainty, doubt and apprehension felt by Ms Ghali over a lengthy and continuous period had caused her severe mental suffering and distress. Like Mr Nasr’s disappearance, the prolonged period during which Ms Ghali had been left without any news of her husband was attributable to the domestic authorities. In the Court’s view, Ms Ghali had been subjected to treatment proscribed by Article 3. With regard to the investigation and trial, as the Court had already found that these had not led to the punishment of those responsible, there had also been a violation of Article 3 in Ms Ghali’s case.

Article 5 (right to liberty and security)

The unlawful nature of Mr Nasr’s detention had been established by the domestic courts, which found that he had been subjected from the outset to unacknowledged detention in complete disregard of the guarantees enshrined in Article 5 of the Convention; this constituted a particularly serious violation of his right to liberty and security. The detention of terrorist suspects under the programme of renditions set up by the US authorities had already been found in similar cases to be arbitrary3.

The Court had already found under Article 3 that Italy had been aware of Mr Nasr’s transfer outside the country in the context of an extraordinary rendition and that the Italian authorities, by allowing the CIA to abduct Mr Nasr in order to transfer him to Egypt, had knowingly exposed him to a real risk of treatment contrary to Article 3. The Court maintained those findings and considered them to be applicable in the context of Article 5. It concluded that Italy’s responsibility was engaged with regard both to Mr Nasr’s abduction and to the entire period of detention following his handover to the US authorities. There had therefore been a violation of Article 5 of the Convention in that regard.

Article 8 (right to respect for private and family life)

In view of its findings concerning the responsibility of the respondent State under Articles 3 and 5 of the Convention, the Court took the view that the State’s actions and omissions also engaged its responsibility under Article 8 of the Convention. In the light of the facts as established, the Court considered that the interference with the first applicant’s exercise of his right to respect for his private and family life had not been “in accordance with the law”. There had therefore been a violation of Article 8 of the Convention.

The Court was of the view that Mr Nasr’s disappearance, which was attributable to the Italian authorities, also amounted to interference with Ms Ghali’s private and family life. As that interference had not been in accordance with the law, there had also been a violation of Article 8 of the Convention with regard to Ms Ghali.

Article 13 (right to an effective remedy) read in conjunction with Articles 3, 5 and 8

The Court had established that the investigation carried out by the national authorities – the police, the prosecuting authorities and the courts – had been deprived of its effectiveness by the executive’s decision to invoke State secrecy. The Court had demonstrated that the State’s responsibility was engaged on account of the violations of the applicants’ rights under Articles 3, 5 and 8 of the Convention.

In the Court’s view, the applicants should have been able to avail themselves of practical and effective remedies capable of leading to the identification and punishment of those responsible, to the establishment of the truth and to an award of compensation. In view of the circumstances already examined, the Court could not consider that the criminal proceedings had been effective within the meaning of Article 13 with regard to the complaints under Articles 3, 5 and 8.

As the Government themselves acknowledged, it had not been possible to use the evidence covered by State secrecy; likewise, a request for the extradition of the convicted US agents had proved futile. As to the civil consequences, the Court considered that, in view of the circumstances, any possibility for the applicants to obtain damages had been virtually ruled out.

There had therefore been a violation of Article 13 read in conjunction with Articles 3, 5 and 8 in Mr Nasr’s case and a violation of Article 13 read in conjunction with Articles 3 and 8 in the case of Ms Ghali.

Article 6 (right to a fair trial)

The Court considered that this complaint covered the same ground as the applicants’ complaint under the procedural limb of Article 3, in so far as it related only to one specific aspect of proceedings which the Court had already found not to satisfy the criterion of effectiveness for Convention purposes. The Court therefore deemed it unnecessary to examine this complaint separately under Article 6.

Article 41 (just satisfaction)

The Court held that Italy was to pay 70,000 euros (EUR) to Mr Nasr and EUR 15,000 to Ms Ghali in respect of non-pecuniary damage and EUR 30,000 to the applicants jointly in respect of costs and expenses.

NOTES

(1) Under Articles 43 and 44 of the Convention, this Chamber judgment is not final. During the three-month period following its delivery, any party may request that the case be referred to the Grand Chamber of the Court. If such a request is made, a panel of five judges considers whether the case deserves further examination. In that event, the Grand Chamber will hear the case and deliver a final judgment. If the referral request is refused, the Chamber judgment will become final on that day. Once a judgment becomes final, it is transmitted to the Committee of Ministers of the Council of Europe for supervision of its execution. Further information about the execution process can be found here: www.coe.int/t/dghl/monitoring/execution.

(2) El-Masri v. The former Yugoslav Republic of Macedonia [GC], ECHR 2012; Al Nashiri v. Poland, no. 28761/11, 24 July 2014; and Husayn (Abu Zubaydah) v. Poland, no. 7511/13, 24 July 2014.

(3)  El-Masri v. The former Yugoslav Republic of Macedonia [GC], ECHR 2012; Al Nashiri v. Poland, no. 28761/11, 24 July 2014; and Husayn (Abu Zubaydah) v. Poland, no. 7511/13, 24 July 2014.

The interpretation of Article 51 of the EU Charter of Fundamental Rights: the dilemma of stricter or broader application of the Charter to national measures

STUDY FOR THE PETITION COMMITTEE OF THE EUROPEAN PARLIAMENT

(TO BE DEBATED AT  THE PUBLIC HEARING  “Taking Citizens’ concerns seriously: broadening the scope of the EU Charter on Fundamental Rights (Article 51)?“( 23 February 2016 – Room ASP A3G-2 – 9H00-12h30.

by  Eleanor  SPAVENTA 

EXECUTIVE SUMMARY

This analysis looks into the applicability of fundamental rights as enshrined in the EU Charter of Fundamental Rights (CFR) in the European Union legal order. It focuses on the limits imposed to the rights and freedoms declared by the CFR by its Article 51, which states that the Charter only applies to European Union Institutions and bodies and to the  Member States  only when  they  are  implementing  Union  law.

The scope of application of fundamental rights before the adoption of the Charter was progressively established and developed by the European Court of Justice through its evolving jurisprudence. Fundamental rights were declared as general principles of Community law protected by the Court (Stauder), as common constitutional traditions among the Member States (Internationale Handelsgesellshaft) and     enshrined in international treaties, such as the European Convention on Human Rights (ECHR) (Nold) and the ECtHR jurisprudence. The scope of application covered the acts of EC/EU institutions, the implementation of EU law by Member States (Wachauf), including when they act within the field of EU law by limiting free movement rights (ERT, Carpenter). This jurisprudence has been particularly courageous in expanding the protection provided to  EU citizens in  relation to  fundamental rights.

The Charter was elaborated and adopted with the aim of codifying the Court jurisprudence and making the EU fundamental rights obligations more visible. At the same time, some Member States did not want the Charter to have effects that could potentially limit their competences by expanding in substance the field of application of EU law beyond EU powers. For this reason, a series of limits to the applicability of the Charter were inserted in the Charter itself, among which Article 51 CFR.

The CJEU jurisprudence shows that the Court has been receptive to this approach, adopting a narrow interpretation of the applicability of the CFR to national measures, on the basis of its  Article 51.

The analysis of the CJ EU case law shows that there is a varied application of EU fundamental rights to measures adopted by Member States: when a stronger interest of the EU is at stake (internal market; EU integration), the CFR is more likely to be applied also to national measures; when the Member State acts on the basis of EU co-ordination measures, the CFR applies (if at all) only in extreme cases; in all other cases, the CFR will most  likely not  apply.

The examination of the petitions tabled by citizens to the EP shows that citizens have high expectations in relation to the CFR and its application to measures adopted by the States allegedly infringing their fundamental rights. Having said that, the application of the CJ EU jurisprudence, as reflected in the Commission opinions on the selection of petitions analysed in this study, does not leave much margin of manoeuvre.

The Committee on Petitions seems to have mostly followed the Commission approach with a number of exceptions, notably on children rights, Greece austerity measures and some more recent petitions. The overall approach taken by the Commission on the petitions at stake seems justifiable to the author of this paper, with the exception of the petitions on the right  to  collective bargaining in  Greece. When looking into the interpretation of the CFR, the author believes that the approach taken   by the CJEU is dangerously restrictive and not warranted by Article 51,   for instance in relation to Union citizenship, the European Arrest Warrant or asylum cases.

The underlying notion that Member States guarantee an equivalent level of protection of fundamental rights is fallacious, especially given that there is very little that can be done at EU level to ensure that fundamental rights are guaranteed across the Member States.

A more courageous use of the CFR should be made for national measures falling within the scope of EU law, so to ensure that those instruments cannot be used to undermine fundamental rights guarantees.

Furthermore, EU fundamental rights should never be seen as instrumental to the achieving of the effectiveness and supremacy of EU law; rather they should be seen as a tool without which integration in certain areas might become impossible and/or undesirable. Hence, the Court should not refrain from its duties and clarify that EU rules that are premised on a certain degree of mutual trust amongst Member States as to compliance with fundamental rights at national level might become inapplicable (or invalid) if this alleged common standard of fundamental rights protection does not exist in practice.

This approach would be a powerful incentive for Member States to achieve a satisfactory level of fundamental rights protection and to take fundamental rights obligations more seriously.

It might also encourage the EU institutions to be more vociferous in their critique of fundamental rights failures at national level. And it would also serve the primary objective of protecting individuals from fundamental   rights violations committed by authorities  at  EU   or  national  level.

INTRODUCTION

The PETI committee requested the EP Policy Department for Citizens’ Rights and Constitutional Affairs to acquire an expert opinion on Article 51 of the EU CFR, with a particular view to assess the applicability of the CFR to acts of national authorities in relation to petitions received by the Committee. To achieve this aim, this research analyses the way the Court of Justice of the EU has interpreted Article 51 CFR in relation to national rules to then turn to an analysis of the petitions; it concludes by recalling arguments in favour and against a broad application of the Charter; it advocates a more courageous use of the Charter in those situations that are firmly within the scope of Union law, and in particular cases of co-ordination of national rules; and Union citizenship cases. The  report  is structured  as follows.

Section 1, The scope of application of EU fundamental rights before the Charter, provides a brief historical introduction on the situation before the adoption of the Charter. This is important since Article 51 CFR, and the Charter more generally, sought to codify the existing state of the law. This section also briefly recalls the debate surrounding EU fundamental rights and in particular the fear that the application of the latter might have a significant impact on national   sovereignty and regulatory autonomy.

Section 2, Article 51 Charter: its significance and its interpretation by the Court of Justice, examines the way Article 51 CFR has been interpreted in relation to acts of national authorities. It should be recalled that Article 51 CFR applies to Member States only when they implement Union Law. In particular it focuses on three lines of case law: Åkerberg Fransson, where a remote link with EU law was sufficient to trigger the Charter; McB, and N.S., where national acts giving effect to EU co-ordinating rules are subject to a lighter touch review (or no review); and cases in which the Charter did not apply, either for lack of a connection with EU law, or because of a restrictive interpretation of the Union citizenship  provisions.

The report concludes that there is a varied application of the Charter which depends on the area considered (stronger in internal market, weaker in other cases).

Furthermore, the interest in integration is taken into account; and so is the need to ensure the effectiveness and supremacy of Union law. In cases of co-ordination of national rules the presumption of uniform compliance with a minimum standard of fundamental rights protection by all Member States is paramount; and in Treaty cases the Court has retreated from a generous interpretation of fundamental rights, leaving the Union citizen (especially, but not only, if non  economically active)  particularly  vulnerable.

Section 3, The petitions to the EP and the Commission’s position, analyses a selection of petitions received by the PETI Committee where petitioners raised concerns in relation to alleged violations of the CFR, to assess the extent to which the Charter would have been applicable in the cases at issue. It divides the petitions in three categories: those where there is no discernible link with Union law; those where there might have been a potential link;  and  those  which  raise issues  in  relation  to the foundational   principles  of  the   EU.

Section 4, The dilemma of a broad or strict application of the Charter, highlights the policy and legal reasons in favour and against a broad interpretation of the Charter. It concludes advocating  a  more   consistent,  and   courageous,  use  of  the  Charter   in  cases  of  coordination  of  national   rules (Asylum,  EAW)   and  in  citizenship  cases  also   as  a  means   to   raise the  level   of protection  of fundamental  rights in  the territory  of  the  EU.

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Brexit : un arrangement, vraiment ? un départ, enfin ?

ORIGINAL PUBLISHED ON CDRE SITE (21 FÉVRIER 2016)

 par Henri Labayle, CDRE

 

Le Conseil européen des 18 et 19 février s’est achevé à 23 heures 59, par la publication des conclusions auxquelles les dirigeants de l’Union étaient parvenus, accompagnées des commentaires du Président du Conseil européen.

Cousue de fil blanc, la négociation présentée comme celle de la « dernière chance », pour la 18eme fois selon un comptage journalistique, ne pouvait qu’aboutir à un accord. Sous peine de signifier l’échec du Premier ministre britannique et donc son obligation de sonner le retrait de son pays de l’Union européenne avant un référendum fixé au 23 juin.

Quitte à manger un cornet de frites devant le Conseil en attendant que l’heure tourne, comme la presse le rapporte à propos de la Chancelière allemande, ou à occuper son temps libre avec une émission radio pour le président français, il fallut donc simuler la tension, la sueur, le sang et les larmes. L’objectif de la mise en scène était connu : permettre au demandeur britannique de persuader son opinion publique qu’il avait arraché un « statut spécial » pour le Royaume Uni, garantissant à son pays le « meilleur des deux mondes » et justifiant son maintien. De même qu’il fallut multiplier les félicitations de ses pairs à David Cameron pour sa « combativité » et un « bon accord », à pur usage externe évidemment.

L’achèvement de ce simulacre peu glorieux permet de réfléchir au fond des choses, à l’instant où près d’un million de réfugiés soumettent l’Union à une pression sans pareille, sans bénéficier d’une attention aussi soutenue.

L’ampleur des compromis passés par le Conseil européen fournit-elle vraiment une réponse à la menace d’un Brexit ou bien n’y a-t-il là qu’apparence et jeux de rôle ? Au vu de leur forme et de la somme des démissions collectives que ces petits arrangements entre amis révèlent, ne faut-il pas aujourd’hui souhaiter que l’abcès soit percé, enfin ?

I – Les limites d’un compromis

David Cameron avait délimité lui-même le champ des concessions à arracher pour appeler à voter « oui » à un référendum qu’il avait, lui-même encore, décidé d’organiser quant au maintien du Royaume Uni dans l‘Union. Enfonçant des portes déjà largement ouvertes par les traités existants, la demande britannique se structurait autour de quatre idées simples et d’inégal intérêt : gouvernance économique de la zone euro, compétitivité, souveraineté, libre circulation et prestations sociales.

La réponse du Conseil s’ordonne en 4 sections correspondant à chacun de ces points, sans dissiper les doutes quant à sa portée juridique exacte et à sa signification politique.

A – Un accord juridiquement contraignant ?

Telle était, évidemment, la condition première pour parvenir à convaincre une opinion publique britannique dubitative. La complexité de la construction imaginée par les services du Conseil et les diplomates contient juste ce qu’il faut d’obscurité et de flou artistique pour rendre délicate une réponse franche.

a) – Le compromis de Bruxelles prend la forme d’un « arrangement», affiché comme étant « compatible avec le traité», qui sera applicable le jour où le Royaume Uni en avisera le secrétaire général du Conseil, après avoir réglé ses débats internes. il disparaîtra en cas contraire. L’arrangement est constitué par un ensemble disparate composé de 7 textes de portée inégale :

a) une décision des chefs d’État ou de gouvernement, réunis au sein du Conseil européen, concernant un nouvel arrangement pour le Royaume-Uni dans l’Union européenne (annexe 1);

b) une déclaration contenant un projet de décision du Conseil sur les dispositions particulières relatives à la bonne gestion de l’union bancaire et des conséquences d’une intégration plus poussée de la zone euro, dont l’adoption interviendra le jour où
la décision visée au point a) prendra effet (annexe 2);

c) une déclaration du Conseil européen sur la compétitivité (annexe 3);

d) une déclaration de la Commission sur un mécanisme de mise en œuvre de la subsidiarité et un mécanisme de mise en œuvre de la réduction des charges (annexe 4);

e) une déclaration de la Commission européenne sur l’indexation des allocations familiales exportées vers un État membre autre que celui où le travailleur réside (annexe 5);

f) une déclaration de la Commission sur le mécanisme de sauvegarde visé au point 2 b) de la section D de la décision des chefs d’État ou de gouvernement (annexe 6);

g) une déclaration de la Commission sur des questions liées à l’utilisation abusive du droit de libre circulation des personnes (annexe 7).

Ce montage complexe appelle évidemment des précisions quant à la valeur juridique de chaque strate, deux déclarations de la Commission ayant été ajoutées au projet initial. La nature des textes en cause commande la réponse sur la portée des engagements pris.

b) – Pour ce qui est de la « décision » figurant en annexe I, on est ici en présence d’un acte « des chefs d’État ou de gouvernement, réunis au sein du Conseil européen», « convenu» de façon intergouvernementale entre Etats membres et qui relève du droit international, en « forme simplifiée ». Les Etats eux mêmes en conviennent expressément, cette décision est « juridiquement contraignante et ne peut être modifiée ou abrogée que d’un commun accord entre les chefs d’État ou de gouvernement des États membres de l’Union européenne ». Elle n’en pose pas moins des questions sérieuses, indépendamment du fait qu’elle ne relève pas du droit de l’Union parce qu’exprimant la seule volonté des Etats membres et non celle du Conseil, qu’elle échappe à la compétence de la Cour de justice pour l’annuler (C-181/91) et que sa forme simplifiée lui permet d’éviter tout débat parlementaire, interne ou européen.

Le procédé, pour être connu, n’en est pas moins détestable lorsqu’il vise à traiter de questions aussi importantes que le prétendu « statut » d’un Etat membre au sein de l’Union. Certes, les précédents danois, en 1992, et irlandais, en 2009, avaient conduit à faire usage de cette technique mais dans un contexte très différent : régler une impasse dans la ratification des traités institutifs à la suite de votes négatifs. Ici, elle intervient à titre purement préventif et pour de strictes raisons de politique intérieure. Il s’agit d’engager l’Union dans une voie pour le moins discutable du point de vue de la conformité aux traités et à la jurisprudence actuelle de la Cour de justice, par commodité nationale.

Preuve est donnée de cette incompatibilité potentielle lorsque l’engagement est pris d’intégrer au moins deux des questions abordées par l’arrangement dans le champ de futures révisions des traités. La gestion de la zone euro verra ainsi la « substance » (???) de la section A être l’objet d’une telle promesse (point 7) ainsi que les limites à la clause de l’intégration politique plus poussée (section C point 1). La décision du 19 février 2016 préempte donc le jeu des procédures classiques de révision de l’article 48 TUE. Avec une chance réelle de succès, qu’il s’agisse de la procédure simplifiée ou de la procédure solennelle de révision ? Rien n’est moins certain lorsque chaque Etat aura soulevé le couvercle de la boite de Pandore, malgré la force de la décision du 19 février …

Les autres composantes de « l’arrangement » sont d’une portée beaucoup plus aléatoire. D’une part car le projet de décision du Conseil relative à la bonne gestion de l’union bancaire et des conséquences d’une intégration plus poussée de la zone euro, s’il est acté, dépend pour son entrée en vigueur d’une décision positive du Royaume Uni quant à sa présence dans l’Union. D’autre part car les autres éléments du compromis sont constitués de simples « déclarations » de la Commission dont la portée sera celle que les acteurs de l’Union voudront qu’elle soit …

L’accord garde en effet le silence sur une modification éventuelle des traités sur ces questions dont certaines sont éminemment sensibles à l’Est de l’Union. Il renvoie au droit dérivé l’accomplissement de ces « déclarations ». Si l’une des déclarations fait dans la nouveauté avec l’instauration d’un mécanisme de mise en œuvre de la subsidiarité, les autres impliquent une intervention normative classique modifiant le droit en vigueur.

Le contenu précis de ces textes ne sera connu qu’à la fin du débat britannique et leur issue dépendra d’un législateur invité à modifier selon la procédure législative ordinaire des dispositions du droit de l’Union aussi fondamentales que symboliques. Nul n’est capable d’en prévoir l’aboutissement. Y compris contentieux si un citoyen de l’Union s’adresse à la Cour en invoquant ses droits fondamentaux, en matière de discrimination par exemple.

Pour ce qui est de l’attitude du législateur, si l’on peut (avec beaucoup de prudence) imaginer que la cohérence des Etats membres guidera le Conseil, rien n’est moins sûr pour un Parlement soigneusement tenu à l’écart et que le verrou de sa majorité allemande ne retiendra peut-être pas de tout faire voler en éclat … après le référendum et c’est après tout cela qui compte…

L’importance des textes visés n’échappe pas puisqu’il s’agit :

  • de modifier la directive 2004/38 sur la libre circulation des citoyens pour en réduire « l’utilisation abusive » ;
  • de modifier le règlement 492/2011 relatif à la libre circulation des travailleurs à l’intérieur de l’Union afin de prévoir un mécanisme de sauvegarde ;
  • modifier le règlement 883/2004 portant sur la coordination des systèmes de sécurité sociale, afin d’instaurer un mécanisme d’indexation lors de l’exportation des allocations familiales.

On comprend dans ces conditions le soin avec lequel David Cameron a soigneusement évité de prendre langue avec le Parlement européen, laissant à la « pax germanica » gérée par le chancelier allemand et le Président du Parlement le soin de s’occuper de l’intendance !!!

B – Un accord politiquement significatif ?

Construit en trompe l’oeil, l’arrangement du 19 février est volontairement incompréhensible pour qui ne maîtrise pas les arcanes du droit institutionnel et des politiques de l’Union. Chacun peut ainsi revendiquer la victoire de ses idées ou le succès de la défense des traités, le peu d’enthousiasme du Président de la Commission indiquant son manque de goût pour l’opération.

La fonction de l’arrangement en question, au delà de son utilité politique immédiate pour le premier ministre britannique, doit être éclaircie pour en comprendre la portée.

a) – L’arrangement veut d’abord être un instrument permettant de dissiper toute ambiguïté, de préciser le sens et le rôle des dispositions des traités, faute d’être en capacité d’en modifier le contenu. Il se présente donc comme un moyen de « clarifier dans la présente décision certaines questions qui sont particulièrement importantes pour les États membres, de sorte que les clarifications apportées devront être prises en considération à titre d’instrument d’interprétation des traités» (préambule).

D’où le long rappel des souplesses multiples offertes déjà aux Etats par des traités comportant des «processus permettant aux différents États membres d’emprunter différentes voies d’intégration, en laissant aller de l’avant ceux qui souhaitent approfondir l’intégration, tout en respectant les droits de ceux qui ne veulent pas suivre cette voie ».

Respect mutuel, ambition, obligation de coopération loyale et respect du cadre institutionnel sont ainsi convoqués successivement pour clarifier le fonctionnement de la zone euro et le jeu de la compétitivité dans le sens des demandes britanniques.

C’est dans ce cadre que le sujet sensible du droit de regard d’un Etat non membre de la zone euro a été traité à la fois dans la section relative à la gouvernance économique de la décision arrêtée le 19 février et dans un projet de « décision du Conseil sur les dispositions particulières relatives à la bonne gestion de l’union bancaire et des conséquences d’une intégration plus poussée de la zone euro ». Rappelant le dialogue de sourds des deux paragraphes du compromis de Luxembourg, le projet de texte permet à un Etat non membre d’indiquer « son opposition motivée » à l’adoption d’un acte législatif concernant cette zone, le Conseil faisant « tout ce qui est en son pouvoir pour aboutir, dans un délai raisonnable et sans porter préjudice aux délais impératifs fixés par le droit de l’Union, à une solution satisfaisante pour répondre aux préoccupations soulevées par le ou les membres ». De veto, il n’y a donc pas.

b) – En second lieu, l’arrangement tente, et cet exercice est particulièrement difficile, de concilier les points de vue en ne faisant rien d’autre qu’interpréter les traités dans un sens susceptible de favoriser les compromis.

Tel est le cas de la section C consacrée à la « souveraineté » où l’on juge utile de rappeler, un peu cruellement lorsque l’on pense aux attentats de Paris ou à la situation en Grèce, que la sécurité nationale reste de la seule responsabilité de chaque État membre, que cette disposition « ne constitue pas une dérogation au droit de l’Union et ne devrait donc pas être interprétée de façon restrictive ».

Multipliant les références au principe de subsidiarité et à l’existence d’une organisation variable selon les Etats des compétences attribuées à l’Union, l’arrangement en conclut que « les références à une union sans cesse plus étroite entre les peuples sont donc compatibles avec la possibilité, pour les différents États membres, d’emprunter différentes voies d’intégration ». Aussi, affirme-t-il sans cultiver le doute et espérant rassurer le demandeur, « les traités permettent aux États membres partageant une telle vision d’un avenir commun d’évoluer vers une intégration plus poussée, sans qu’elle s’applique aux autres États membres ».

Cependant, la limite de l’exercice est rapidement atteinte et c’est bien de modifications à venir qu’il se préoccupe. Ainsi, même si l’on découvre que, malgré leur ratification, « il est admis que, eu égard à sa situation particulière en vertu des traités, le Royaume-Uni n’est pas tenu de prendre part à une intégration politique plus poussée dans l’Union européenne », le besoin d’une révision des traités est admis. Par précaution sans doute, et parce que sa lecture du droit positif et des coopérations renforcées auxquelles il ne daigne pas faire grandes allusions, peut-être parce que ces coopérations visent selon l’article 20 TUE à « renforcer son processus d’intégration », l’arrangement promet de graver dans le marbre des futurs traités cette constitutionnalisation d’une Europe à la carte.

La volonté de modifier l’ordre des choses est, en revanche, encore plus clairement établie lorsque l’on se penche sur la subsidiarité et la libre circulation des personnes.

La confusion entourant les débats relatifs à la subsidiarité indique sans doute que l’on est peut-être arrivé ici à la fin de l’exploitation du filon politique qu’il représente pour des Etats en mal de justifications devant leurs opinions publiques. Un mécanisme supplémentaire est donc évoqué dans la Section C relative à la « souveraineté », dans son paragraphe 3. Evoquant la nécessité de prendre des dispositions « appropriées » pour garantir l’application du protocole n°2 relatif au principe de subsidiarité, la décision rajoute une hypothèse supplémentaire au jeu du contrôle politique de la subsidiarité.

Dans le cas où les avis motivés sur le non-respect du principe de subsidiarité par un projet d’acte législatif de l’Union, adressés dans un délai de douze semaines à compter de la transmission du projet, représentent plus de 55 % des voix attribuées aux parlements nationaux, la présidence du Conseil inscrira la question à l’ordre du jour du Conseil afin que ces avis et les conséquences à en tirer fassent l’objet d’une délibération approfondie. Là, et c’est une curiosité de l’arrangement intergouvernemental, les représentants des États membres, « agissant en leur qualité de membres du Conseil », mettront fin à l’examen du projet d’acte législatif, sauf prise en compte des préoccupations exprimées dans les avis motivés.

Pour ce qui est de la libre circulation, le texte de la section D est divisé en deux rubriques : « interprétation actuelle du droit de l’Union » et « modification à apporter au droit dérivé de l’Union ». Il s’agit donc soit de délivrer une interprétation neutralisante du droit positif et de la jurisprudence existante soit de modifier directement la législation, notamment et y compris en matière de droits familiaux des citoyens de l’Union ayant exercé leur droit à la libre circulation. Quitte, en laissant agir le conditionnel employé dans ce passage de l’arrangement, à laisser planer le doute en cas de gêne.

L’impact juridique de l’arrangement ne doit donc pas être sous estimé même si la presse britanniques et les opposants de David Cameron avaient largement relativisé son impact matériel et son application dans le temps. Les « travailleurs nouvellement arrivés » en seraient les principales victimes, « durant une période de sept ans » en ce qui concerne l’accès aux prestations liées à l’emploi.

Par ailleurs, nombre d’Etats membres et notamment la Belgique, ont immédiatement cerné le risque représenté pour l’avenir par l’aval ainsi donné au Royaume Uni, même en vue de faciliter son maintien dans l’Union.

On les comprend. L’affirmation du point 4 des conclusions selon laquelle « il est entendu que, si l’issue du référendum au Royaume-Uni devait être la sortie du pays de l’Union européenne, l’ensemble des dispositions visées au point 2 cesseront d’exister » n’engage en effet que ceux qui veulent croire que ce sera la fin de cette technique de renégociation permanente, en forme de chantage, et que d’autres pourraient être tentés d’utiliser à l’avenir.

II – Les dangers d’un « arrangement »

Le comportement britannique vis-à-vis de son engagement dans l’Union entraîne une lassitude conduisant à penser que l’on est parvenu, là, à un point de rupture entre le projet européen conduit depuis un demi-siècle et le Royaume Uni. La compréhension de ses pairs dissimule difficilement que le Royaume Uni dénature ici les conditions de son engagement autant que le contenu d’une politique centrale de l’Union, celle de la libre circulation.

A – La dénaturation de l’engagement européen

Le Conseil européen en effectue lui-même le recensement : la position du Royaume Uni est aujourd’hui une incongruité au regard des principes fondateurs de l’Union européenne.

a) – A ce jour en effet, le Royaume Uni est autorisé par les traités :

  • à ne pas adopter l’euro et dès lors à conserver la livre britannique comme monnaie, en vertu du protocole n° 15;
  • à ne pas participer à l’acquis de Schengen en vertu du protocole n° 19 ;
  • à exercer des contrôles aux frontières sur les personnes et dès lors à ne pas participer à l’espace Schengen en ce qui concerne les frontières intérieures et extérieures en vertu du protocole n° 20 ;
  • à choisir de participer ou non à des mesures dans l’espace de liberté, de sécurité et de justice en vertu du protocole n° 21;
  • à bénéficier d’une situation particulière au regard de l’intervention de la Cour de justice en matière d’application de la Charte des droits fondamentaux en vertu du protocole n° 30.

Par ailleurs, sur la base du protocole n° 36 relatif aux dispositions transitoires, il vient de cesser d’appliquer (opt-out), le 1er décembre 2014, une grande majorité d’actes et de dispositions de l’Union dans le domaine de la coopération policière et judiciaire en matière pénale adoptés avant l’entrée en vigueur du traité de Lisbonne, le tout en choisissant de réintégrer trente-cinq d’entre eux, lui paraissant les plus utiles à ses intérêts (opt-in). Poursuivre cette œuvre de détricotage d’engagements souscrits de façon répétée et librement par le Royaume Uni est donc devenu problématique pour le projet européen, quoi que l’on en dise et même en prétendant minimiser les termes de « l’arrangement ».

La référence ici au précédent français menant au compromis de Luxembourg n’a pas de sens. Convaincre un Etat membre fondateur venant d’adopter un nouveau régime constitutionnel de s’adapter à un traité antérieurement conclu ne relevait pas d’une manoeuvre de boutiquier mais davantage d’une opération de survie pour un traité en passe de s’appliquer.

Rien n’interdit cependant, bien au contraire, pour garantir la présence britannique dans l’Union, de répéter tout haut ce que les traités disent déjà à propos des compétences ou de la subsidiarité ou ce que la Cour exprime dans jurisprudence la plus récente. Il suffit alors de feindre la conviction qu’il s’agit là de quelque chose de nouveau, arraché au forceps par le défenseur des intérêts britanniques. Tout, au contraire, conduit à refuser l’écriture d’une Europe à la carte que les conclusions du Conseil théorisent, malheureusement, le 19 février. Le reste des points actés prête davantage à être passé sous silence, au vu de menaces bien plus pressantes pesant sur l’avenir de l’Union.

b) – Ici, c’est la nature du projet européen qui est en question comme en témoigne la volonté britannique inlassable de remettre sur la table le principe d’une « union sans cesse plus étroite entre les peuples» qu’ils combattaient déjà en vain dans la négociation d’Amsterdam.

Evidemment, la référence à « une union sans cesse plus étroite » dans le préambule ne constitue pas une base légale pour étendre la portée des dispositions des traités ou du droit dérivé de l’Union, comme le souligne très sérieusement le Conseil européen. Pas plus qu’elle ne saurait être utilisée en vue d’élargir les compétences de l’Union. En des temps où des principes, inscrits eux dans les traités, tels que celui de solidarité de l’article 80 TFUE sont ouvertement foulés aux pieds par les Etats membres, la précaution oratoire fait sourire.

L’affirmation du Conseil européen selon laquelle ces références « n’obligent pas l’ensemble des États membres à aspirer à un destin commun » rompt avec le passé, posant un problème politique de première ampleur. Elle assigne clairement une finalité différente au projet européen, même si ce dernier n’est pas à la merci d’une décision intergouvernementale adoptée en catimini. Maîtres des traités, les Etats n’en sont pas les interprètes authentiques, à l’inverse de leur juge.

L’appel répété des traités à une « union sans cesse plus étroite » depuis 1957 n’est pas une clause de style. Il possède une fonction particulière et connaître la jurisprudence de la Cour de justice aurait permis de s’en pénétrer, à l’instant de vouloir satisfaire les tabloïds britanniques.

Traitant de l’adhésion de l’Union à la CEDH dans son avis 2/13 et rappelant de façon solennelle le « cadre constitutionnel » dans lequel elle raisonnait, la Cour de justice le relie aux « caractéristiques essentielles du droit de l’Union » lesquelles « ont donné lieu à un réseau structuré de principes, de règles et de relations juridiques mutuellement interdépendantes liant, réciproquement, l’Union elle-même et ses États membres, ainsi que ceux-ci entre eux, lesquels sont désormais engagés, comme il est rappelé à l’article 1er, deuxième alinéa, TUE, dans un «processus créant une union sans cesse plus étroite entre les peuples de l’Europe » (point 167).

Et, au cas où l’on aurait pas exactement saisi le sens de ce processus, elle enfonce le clou : « la poursuite des objectifs de l’Union … est, pour sa part, confiée à une série de dispositions fondamentales … Ces dispositions, s’insérant dans le cadre d’un système propre à l’Union, sont structurées de manière à contribuer, chacune dans son domaine spécifique et avec ses caractéristiques particulières, à la réalisation du processus d’intégration qui est la raison d’être de l’Union elle-même » (point 172). Partager un destin commun au sein de ce processus d’intégration est donc « la raison d’être » de l’Union, indépendamment du degré d’intégration choisi par ses membres. Est-ce cette « raison d’être » qui est niée par les Etats membres ?

D’autant qu’il ne s’agit pas là d’une simple affirmation politique. Ce processus remplit une fonction dans l’Union, précisée dès 2003 par la Cour de justice mettant en avant le principe de confiance mutuelle dans l’affaire Pupino (C-105/03) : « l’article 1er, 2eme et 3eme alinéas du TUE dispose que ce traité marque une nouvelle étape dans le processus créant une union sans cesse plus étroite entre les peuples de l’Europe et que la mission de l’Union … consiste à organiser de façon cohérente et solidaire les relations entre les États membres et entre leurs peuples » (point 41).

En tout état de cause, la position singulière du Conseil européen n’est pas non plus caractérisée par la cohérence. Ignorait-il que, dans un communiqué de presse des ministres des Affaires étrangères des 6 pays fondateurs, le 9 février 2016, Quelques jours auparavant, ces derniers affirmaient rester « déterminés à poursuivre la construction d’une union sans cesse plus étroite entre les peuples européens » … Là est donc l’inquiétude majeure, dans ce renoncement et cette dénaturation du pacte constitutionnel européen.

B – La dénaturation de la politique de libre circulation

Sans aller jusqu’à un examen détaillé et scientifique de la portée des concessions faites en matière de libre circulation des personnes par le Conseil européen, deux traits peuvent néanmoins être stigmatisés : la volonté d’en nier la spécificité en l’assimilant à une forme d’immigration y accompagne le souhait de contrecarrer la jurisprudence de la Cour de justice sur ce point.

a) – Les revendications britanniques sur le terrain de la libre circulation des travailleurs de l’Union sont anciennes, connues et passablement irresponsables au vu d’une seule interrogation : qui, au lendemain de l’adhésion, a fait en sorte qu’aujourd’hui la population étrangère la plus nombreuse au Royaume Uni soit celle des 748 207 polonais recensés en 2015 par Eurostat ?

Ces critiques ont été partiellement entendues sans que le soit la demande de contrôles préalables à l’entrée dans l’Etat membre. D’où deux rubriques, celles d’une attaque frontale quant aux avantages sociaux dont bénéficient les travailleurs de l’Union au nom du principe de non discrimination et celle d’une assimilation de la libre circulation à l’immigration ordinaire.

La présentation abusive du système social britannique comme justifiant un appel d’air de travailleurs européen par le jeu de ses avantages a conduit à mettre en question un certain nombre de prestations, le Conseil européen semblant découvrir en 2016 que « les différences de niveau de rémunération entre les États membres rendent certaines offres d’emploi plus attrayantes que d’autres et induisent des mouvements découlant directement du libre marché ». D’où sa volonté de « limiter les flux de travailleurs d’une importance telle qu’ils ont des incidences négatives à la fois pour les États membres d’origine et pour les États membres de destination », mais ceci en respectant les principes du traité et notamment celles relatives à la libre circulation des citoyens.

– L’exportabilité des allocations familiales vers un autre Etat membre devrait donc faire l’objet d’une modification du règlement 883/2004 afin d’en établir l’indexation. Marchant sur des œufs, le Conseil avait ici à l’esprit la jurisprudence Pinna (aff. 41/84) protégeant cette exportation. Néanmoins, cette indexation ne concernerait que les nouveaux arrivants jusqu’au 1er janvier 2020 et la Commission se refuse à étendre cette indexation à d’autres prestations exportables, telles que les retraites par exemple.

– Les prestations sociales liées à l’emploi constituaient le coeur du débat, au nom du prétendu « appel d’air » évoqué par le Royaume Uni. Modifié, le règlement 492/2011 instituera « un mécanisme d’alerte et de sauvegarde » en cas de « situations caractérisées par l’afflux d’une ampleur exceptionnelle et pendant une période prolongée de travailleurs en provenance d’autres d’États membres ». Sa justification ? Un afflux d’une ampleur telle qu’elle « affecte des aspects essentiels de son système de sécurité sociale, y compris la finalité première de son régime de prestations liées à l’emploi, ou engendre de graves difficultés qui sont susceptibles de perdurer sur son marché de l’emploi ou qui soumettent à une pression excessive le bon fonctionnement de ses services publics ».

L’accès aux prestations liées à l’emploi à caractère non contributif pourrait être restreint « dans la mesure nécessaire ». Le travailleur serait totalement exclu du bénéfice de ces prestations dans un premier temps, mais il y aurait progressivement accès au fur et à mesure de son rattachement au marché du travail de l’État membre d’accueil. L’autorisation de restriction aurait une durée limitée et s’appliquerait aux travailleurs de l’Union nouvellement arrivés durant une période de 7 ans.

Le flou gardé sur le déroulement de la procédure réserve cependant la question du pouvoir dévolu au Parlement européen durant ce déroulement, lequel Parlement qui devra adopter le texte instituant la dite procédure et ne pas en être fanatique …

Toute la subtilité du mécanisme, ici, tient dans la Déclaration de la Commission jointe en annexe VI. Elle y indique « qu’il ressort de la nature des informations qui lui sont transmises par le Royaume-Uni, et notamment du fait qu’il n’a pas fait pleinement usage des périodes transitoires prévues dans les actes d’adhésion récents en ce qui concerne la libre circulation des travailleurs, que le pays connaît aujourd’hui le type de situation exceptionnelle auquel le mécanisme de sauvegarde proposé devrait s’appliquer. En conséquence, il serait justifié que le Royaume-Uni active le mécanisme dans l’attente légitime d’obtenir l’autorisation requise ». D’où la victoire proclamée par le Premier ministre britannique, prêt à faire usage de cette restriction puisque la condition mise à son emploi est satisfaite.

– Les prestations dues aux personnes sans emploi ont également fait l’objet de précisions de la part du Conseil européen, sous couvert « d’interprétations » d’autant plus fermes et gratuites que la Cour de justice a déjà dit le droit à leur propos dans ses arrêts Dano C-133/13 et Alimanovic (C-67/14) : « sur la base de considérations objectives indépendantes de la nationalité des personnes concernées et proportionnées à l’objectif légitimement poursuivi, des conditions peuvent être imposées en ce qui concerne certaines prestations afin de veiller à ce qu’il y ait un degré réel et effectif de rattachement entre la personne concernée et le marché du travail de l’État membre d’accueil ».

Aussi, « les États membres ont la possibilité de refuser l’octroi de prestations sociales à des personnes qui exercent leur droit à la libre circulation dans le seul but d’obtenir de l’aide sociale des États membres alors même qu’elles ne disposent pas de ressources suffisantes pour prétendre au bénéfice d’un droit de séjour ».

b) – Beaucoup plus pernicieuse, la volonté de réduire la spécificité jurisprudentielle de la libre circulation des citoyens de l’Union s’attache à deux cibles.

Le regroupement familial dont bénéficient les citoyens de l’Union est ici en jeu, en particulier à propos des membres de la famille non citoyens d’un Etat membre qui a fait l’objet de décisions complexes de la CJUE depuis l’arrêt Singh (C-370/90). En l’espèce, la rigueur du droit britannique était plus grande que celle du droit de l’Union à propos de ses citoyens désirant être rejoints par des membres de leur famille non citoyens européens. David Cameron en avait fait un cheval de bataille.

Ici, malgré le rappel martial du Conseil européen de la nécessité de lutter contre l’abus de droit, les mariages de complaisance et autres fraudes à la libre circulation destinées à obtenir un titre de séjour, le risque d’incompatibilité avec les traités et l’article 9 de la Charte des droits fondamentaux est réel. La jurisprudence Metock (C-127/08), en 2008, forme en l’espèce un obstacle de taille.

Aussi, en annexe VII, une « déclaration » de la Commission « prend acte » de la volonté des Etats et promet une proposition de modification de la directive 2004/38 destinée à la « compléter afin d’exclure du champ d’application des droits de libre circulation tout ressortissant d’un pays tiers qui n’a pas préalablement séjourné de manière légale dans un État membre avant de se marier avec un citoyen de l’Union ou qui ne se marie avec un citoyen de l’Union qu’après que celui-ci a établi sa résidence dans l’État membre d’accueil ».

L’important ici n’est pas dans la promesse mais dans la manière de la réaliser dans le champ de la future proposition. La Commission semble sous-entendre dans sa déclaration que, pour ce qui est des situations d’abus en matière d’admission au séjour, c’est sous forme de simples « lignes directrices » établies dans une Communication sur la libre circulation à venir qu’elle interviendra.

La clause d’ordre public, enfin, dont la Cour de justice a mis un demi-siècle à réguler les excès dans l’invocation qu’en faisaient les Etats membres, était en ligne de mire du Conseil européen, tenté à la fois par un alignement sur le moins disant, c’est-à-dire sur la situation faite aux immigré ordinaires, et par la limitation de circulation de catégories de population jugées indésirables.

Accréditant l’idée d’un lien entre libre circulation et criminalité, la décision du 19 février rappelle, en faisant mine de l’établir, que les États membres d’accueil « peuvent également prendre les mesures de restriction nécessaires pour se protéger contre des individus dont le comportement personnel est susceptible de représenter une menace réelle et grave pour l’ordre public ou la sécurité publique ». Parce que cette détermination est parfois problématique à défendre devant le juge, les États membres pourraient « tenir compte du comportement que la personne concernée a eu par le passé et la menace ne doit pas toujours être imminente. Même en l’absence de condamnation pénale antérieure, les États membres peuvent agir pour des raisons de prévention, aussi longtemps qu’elles sont liées spécifiquement à la personne concernée ».

Là encore, la prudence est de mise pour la Commission qui se borne à promettre les précisions nécessaires dans sa future communication sans faire écho aux soucis de prévention et de menace non « imminente » visant exprimés par les Etats membres.

Au total, le Conseil européen ne sort pas grandi de cette épreuve factice, n’hésitant pas à sacrifier son idéal pour un plat de lentilles. Loin des promesses anciennes d’une Europe proche des citoyens, il accentue la crise d’une Union en panne d’inspiration et de leadership au moyen de pauvres biais et stratagèmes juridiques avalisés par tous. Ce faisant, il rend la parole au seul acteur décisionnaire dans une démocratie, le peuple britannique dont on doute que la conviction soit emportée par un si triste ouvrage.

The final UK/EU renegotiation deal: legal status and legal effect

ORIGINAL PUBLISHED ON EU LAW ANALYSIS (Sunday, 21 February 2016)

by Steve Peers

Is the deal on renegotiation of the UK’s EU membership legally binding? If so, what does that mean exactly? In particular, is the deal ‘legally binding and irreversible’, as David Cameron had pledged? In part, that’s linked to the substance of the deal, which I have examined already in a post about the immigration (free movement) aspects. I will write later about the other aspects (sovereignty, Eurozone and competitiveness); and see also the analysis of the ‘red card’ for national parliaments by Katarzyna Granat here.

But in part it’s an issue about the very legal nature and legal nature of the deal itself. Some on the Leave said have already said that it’s not legally binding. So is it binding? And if so, what exactly is its legal effect in practice? I’ve addressed this already in an earlier post about the draft deal, but I’ll now update that analysis (recycling parts of it) to take account of the final deal.

The answer to those questions is complicated, because there are several different parts of the deal, taking different legal forms. For each part, the legal status depends on several different factors: when the text would be adopted; who would have to approve it; whether the EU courts have power to overturn it, and whether they are likely to do so; and whether the text could be repealed or amended in future. (I am assuming throughout that by ‘irreversible’, David Cameron meant irreversible without the UK’s consent).

This blog post looks first at the legal form of the agreement. Then I examine, based on prior experience, whether the EU can be ‘trusted’ to implement the draft deal. Finally, I provide, in one table, my assessment indication of the extent to which each of the parts of the draft deal are ‘legally binding and irreversible’, based on the factors mentioned above. (There’s a shinier version of this table on the ‘Full Facts’ website here).

Legal form of the main deal

The renegotiation deal takes the form of seven legal texts: a Decision of the EU Member States’ Heads of State and Government (the ‘draft Decision’); a Statement of the Heads of State and Government (which consists of a draft Council Decision); a Declaration by the European Council: and  four declarations by the Commission. Implicitly, it also includes three planned EU legislative proposals, all dealing with the free movement of EU citizens (the emergency brake on benefits, EU citizens’ non-EU family members and export of child benefit), which are referred to in these texts. The UK government will also table some domestic legislation linked to the renegotiation deal, but since those proposals have not appeared yet I won’t comment on them for now.

One important point before we continue: while the title of the deal refers to the UK only, none of the actual text of the deal applies solely to the UK. So it would apply to all Member States. That means it’s possible, for instance, that a proposal which the UK supports could be stymied by other Member States’ national parliaments (via the Council), using the new ‘red card’ for national parliaments objecting to EU proposals. It is possible, however, that the UK would be the only Member State aiming to implement some parts of the renegotiation deal, in particular the ‘emergency brake’ on benefits; and of course some of the existing opt-outs referred to in the deal only apply to the UK and one or two other Member States.

Let’s begin with the easiest parts of the deal (legally speaking): the planned EU legislation. We know the legal effect of EU legislation, once it’s adopted: it’s binding and directly applicable (in the case of the two planned Regulations on in-work benefits and child benefit exports), or binding as to the result to be achieved, leaving national authorities the choice of form and methods (in the case of the planned Directive on EU citizens’ non-EU family members). (See the definitions of EU legislation set out in Article 288 TFEU). The more difficult question here is the process. Can it be guaranteed that the proposals will: (a) be made; (b) be adopted; (c) not be struck down by the EU Court of Justice (CJEU); and (d) not revoked?

It’s up to the Commission to make proposals. The main Decision of Member States can’t bind the Commission (more on that below), but the deal includes three declarations by the Commission, announcing its intention to make these proposals. For those proposals to be adopted, they must be approved by the Council (by a qualified majority of Member States) and the European Parliament (by a majority of the vote, under most variants of the EU legislative process). Again, the Decision of Member States doesn’t bind the Council or the European Parliament. But the Council is made up of Member States’ ministers, and in the renegotiation deal the Member States commit themselves to supporting two of these three proposals (on child benefit and the emergency brake). It’s odd that there’s no parallel commitment as regards the third proposal (on EU citizens’ non-EU family members). The timing of these measures depends on how soon they would be adopted, although the Commission declares that it will table them after a ‘Remain’ vote, if there is one.

The renegotiation deal foresees that the new EU law creating an ‘emergency brake’ for EU workers’ in-work benefits would subsequently have to be implemented following a UK request to use it. It’s a bit vague about the exact details of this process, to avoid irritating the European Parliament, but it’s clear that the Council would decide on the UK application. The voting rule isn’t specified, but it would be legally dubious if the vote had to be unanimous on this (because it concerns an issue on which vetoes don’t apply). A Commission declaration states that the Commission is willing to make this implementing proposal; but there is no commitment from the Member States to support it. The timing would follow the adoption of the legislation on this topic: it would likely take at least one month for the UK’s request to be approved.

So the real question is whether to trust the Commission and Council (ie the Member States); although it’s also notable that the Member States haven’t committed themselves to support all aspects of the deal in this area, but only some of it. I’ll return to that question of trust below, as regards the deal in general. But it doesn’t even arise as regards the European Parliament (EP) or the CJEU, as they are not bound by the deal. It remains to be seen whether the EP will object to some or all of the legislative plans (this might become clearer closer to the referendum date). The position of the CJEU would only be clear if a legal challenge reached it. That would most likely follow from a challenge by an individual to the implementation of the new legislation, after it’s adopted, via the national courts. So it would be some years away. I have discussed the possible challenges to the legality of the planned changes on free movement law in my separate post on those issues. For a summary of this analysis, see the table below.

Leaving aside the question of Court challenges, could the legislation be revoked or amended, after it was adopted? In principle, that is possible, using the same legislative procedure: proposal from the Commission, qualified majority in the Council, and support from the EP. So the UK could not veto this taking place. But implicitly the Commission’s commitment to make these proposals, and Member States’ commitment to support at least two of them, suggest this is not going to happen. Again, this comes back to a question of trust.

The renegotiation deal also refers to Commission plans to issue ‘guidance’ on aspects of EU free movement law. This concerns part of the rules on EU citizens’ non-EU family members (part of those rules would be covered by a new law). There would also be ‘guidance’ on the issue of criminality of EU citizens. For the latter point, the Commission’s declaration states that it will ‘examine the threshold’ relating to expulsion of criminal EU citizens when the EU citizens’ Directive is revised in future. This is too imprecise to regard as a commitment.

Next, the draft Council decision on Eurozone governance. This measure can be adopted by the Council itself, as part of its powers to govern its own activity. It does not need to be proposed by the Commission, or agreed by the European Parliament. It is similar to an existing Council decision, which provides for delays in the vote if a sufficient number of Member States have qualms about them. Protocol 9 to the Treaties says that any changes to such rules must be discussed by consensus; arguably that means that the Decision could not be amended or repealed without the UK’s consent. However, it’s not clear if Protocol 9 applies to the decision on Eurozone governance. Since the draft Decision would not amend the rules of the Treaty on the adoption of legislation, but only provide for a delayed vote, it seems very unlikely that the CJEU would annul it.

In fact, it’s not even clear who would challenge it: the Member States support it as part of the deal; there seems little reason why an individual would challenge it in the national courts; and it would be hard for an individual to find a procedural route to challenge it in the courts anyway (the CJEU has ruled that procedural rules of the Council don’t give rise to individual rights). That only leaves the European Parliament, and this Decision doesn’t appear to be at the top of their concerns about the deal. Finally, as for timing, the renegotiation deal provides that the Decision will be adopted once a ‘Remain’ vote is notified (if there is one), with no further action necessary. The deal also provides for a Treaty amendment in future on this point; more on that below.

Finally, the main part of the renegotiation deal: the Decision of Heads of State and Government. It takes the form of five sections, dealing first of all with the UK’s four main negotiating objectives: the Eurozone (section A); competitiveness (section B); sovereignty (section C); and EU free movement (section D). Section E includes rules on dispute settlement and entry into force.

First of all, it should be noted that the Decision is not EU law as such; it’s international law. It’s often described as a proposed act of the European Council, which is the EU institution consisting of Heads of State and Government. But that’s simply not correct: it’s an act of the Heads of State and Government as such, not the European Council (or any other EU institution). That distinction might sound like hair-splitting to non-lawyers, but it has practical legal consequences.

While the Decision is not described as a treaty, it could be regarded as a ‘treaty in simplified form’ (see the broad definition of a treaty in Article 2(1)(a) of the Vienna Convention on the Law of Treaties). Certainly the UK government is going to register it as an international treaty (see Articles 77-80 of that Convention). This form of legal act is not new to the EU: it was used in 1992, to encourage Danes to ratify the Maastricht Treaty, and in 2008, to encourage Irish people to ratify the Lisbon Treaty.

What are the distinctions between this Decision and EU law? First of all, while the Decision is binding (as confirmed by the conclusions of the European Council), since binding effect inherently follows from its status as a treaty, it is binding under international law, not EU law. Secondly, the Decision does not as such change EU law, although other elements of the overall deal would, when implemented: the planned legislation on free movement issues, and the Council Decision on Eurozone issues. The Decision also contains rules on the application of EU law in practice (namely, Member States’ voting in Council after a ‘red card’ is issued by national parliaments) and a commitment to amend the Treaties in future, as regards the Eurozone governance and the exemption of the UK from ‘ever closer union’.

Indeed, the Decision could not have changed EU law as such, without following the formal procedures to that effect set out in EU law itself. I discussed the issue of amending EU secondary law above, but the same is true of EU primary law (the Treaties). The prior Decisions relating to Denmark and Ireland did not change the EU Treaties, and they could not, because the CJEU had ruled that the Treaties could only be amended using the procedure set out within them, in the Defrenne II judgment. Like the prior decisions, the Decision specifies that it does not amend EU as such, but interprets it. This is consistent with CJEU case law, which accepted in the Rottmann judgment that the previous Decision on Denmark could be used to interpret EU law.

However, the Decision does include legal obligations for Member States as a matter of international law; this is fine as long as the particular obligations don’t conflict with EU law. In the event of any conflict, the primacy of EU law means that the latter takes precedence over the renegotiation Decision. But is there any conflict? This is a substantive question, and in any event where the renegotiation Decision calls for EU secondary law measures to be adopted (the free movement legislation, the Eurozone Decision) the real question is whether those measures wouldthemselves breach the Treaties if adopted. I will examine whether there is any conflict with the Treaties as regards competitiveness and sovereignty in a subsequent post, but I will comment on one here: the commitment of Member States to block Council decision-making if a ‘red card’ is pulled by national parliaments, on the condition that national parliaments’ concerns are not addressed.

Andrew Duff has argued that this breaches EU law, because it infringes the powers of the European Parliament in decision-making. In my view, this is incorrect. A decision by the Council to stop discussing proposed EU legislation does not alter the Parliament’s role. It’s always open to the Council to stop discussing proposed legislation if there is insufficient interest in a proposal or for any other reason, and it’s not rare for it to do so. Every year, the Commission withdraws proposals because it has given up hope that the Council will ever agree to them (for the most recent such decision, see here). The EP can block proposed legislation too, where the ‘ordinary legislative procedure’ applies; it just does so less frequently than the Council.

A subtler argument is that this clause in the Decision in effect amends the Treaty (and so is therefore inapplicable due to the conflict with EU law) because it introduces a new voting rule in the Council without amending the Treaty to that effect. It’s more problematic than the new rule on delaying Council voting as regards Eurozone issues, since that latter rule doesn’t block the adoption of a proposal, and follows an existing secondary law precedent. However, as with a comparable clause in the ‘fiscal compact’ treaty, an agreement by Member States to coordinate their voting in Council does not amend the Treaties, whether it takes the form of an informal agreement (as it more often does) or a formal treaty to that effect. Even if this rule did breach EU law, how could the primacy of EU law beenforced in this context anyway? By a national court, or the CJEU, telling a Member State to vote a way it didn’t want to vote in the Council? This would be an unprecedented incursion into the relationship between national governments and national parliaments, which the Treaties recognise (in the Protocol on national parliaments) is a matter for national law alone to regulate.

As for the Treaty amendment process, it’s correct to say (as Andrew Duff does) that that the Treaty gives a role to the Commission and EP. But let’s not overstate that role: neither of them can block Treaty amendments, in most cases. The only exception is Treaty amendments which solely concern more majority voting, or more powers for the EP. But the renegotiation deal does not call for either of that special sort of Treaty amendment, but (implicitly) for the usual procedure to amend the Treaties.

Otherwise, the EP’s sole power is to insist that there has to be a fully-fledged ‘Convention’, with delegates from the EU institutions, national parliaments and national governments, to discuss proposed Treaty amendments. But the EP can’t set the agenda for the Convention, or determine its outcome. Anyway, that outcome is not binding upon the Member States, which then hold an Inter-Governmental Conference (IGC) to negotiate the final text – which the EP cannot reject. The result of that Convention will probably influence the outcome of the IGC, but doesn’t bind it.

What would actually happen, if a ‘Convention’ is established? The last Convention, in 2002-3, had a broad agenda, and in practice the EP was able to steer it toward a highly integrationist conclusion. But any Convention convened in (say) 2017 would now include a lot more national parliamentarians critical of the EU, from every perspective. They might well want to drive the Convention towards a stronger version of the ‘red card’ for national parliaments, as well as repatriation of powers from the EU. Anyway, the wording of the Treaty suggests that the agenda of the Convention is limited to the issues originally tabled for Treaty amendment.

So the real impediment to Treaty amendments is not at the EU level. Rather, it’s the risk of rejection in national parliaments (and occasionally referendums), with a further long-stop risk of rejection by national constitutional courts. It’s impossible to guess at this point what would happen to the Treaty amendments foreseen by the renegotiation Decision at national level. So there is no legal certainty that those Treaty amendments would definitely be approved.

On the other hand, the renegotiation Decision itself does not need national parliamentary approval, at least as a matter of EU law (whether some Member States’ law might require it is a separate question). Nor does it need any sort of approval from any of the EU’s institutions – although the planned legislation referred to in the Decision does, of course, need those institutions’ involvement. Since it’s not part of EU law, the validity of the renegotiation Decision could not be challenged directly before the CJEU, although it is possible that a national court could ask whether national implementation of EU based on the renegotiation Decision was in conflict with EU law.

As for the timing, the renegotiation Decision was apparently already formally adopted on 19 February. The text of Section E of the Decision says it will come into force automatically as soon as a ‘Remain’ vote (if there is one) is notified. The Decision is irreversible in the sense that the UK government has to consent to amend it or repeal it; this is explicitly confirmed by the European Council conclusions. There is no provision for a Member State to denounce it, or any other indication that it’s possible to do so; therefore it is subject to the general rule in Article 56 of the Vienna Convention that a treaty cannot be denounced in the absence of a clause to that effect.

However, the distinction between the renegotiation Decision and EU law does mean that there is a gap in the Decision’s enforceability. Section E of the Decision refers to bringing a dispute between Member States about the application of the Decision before the European Council. But unlike the fiscal compact Treaty, there is no provision on bringing a dispute before the CJEU, which could then impose fines. So despite the binding nature of the renegotiation Decision, there is no clear mechanism for making it stick. This brings us back to the issue of trust, discussed further below.

Finally, some commentators on my previous blog posts on this issue raised the question of whether Heads of State and Government could still act outside the framework of the EU Treaties, given that the Treaty of Lisbon upgraded the status of the EU institution in which they meet – the European Council. In my view, that change in EU law did not transfer the capacity of Heads of State and Government to act to the European Council, except where the Treaty amendments did that expressly (for instance, as regards appointments to the European Central Bank). This follows from the principle of ‘conferred powers’ set out in the Treaties: in the absence of any power for the European Council to adopt anything like the renegotiation Decision, it couldn’t have adopted it.

Can the EU be trusted?

As noted already, the EU has agreed Decisions like the renegotiation Decision twice before, as regards Ireland and Denmark. In those Decisions, the EU promised a Treaty amendment to Ireland, and delivered it in the form of a protocol several years later. It didn’t expressly promise a Treaty amendment to Denmark, but delivered one anyway, as part of the Treaty of Amsterdam (another Protocol, attached to the Treaties, which has since been amended). It’s sometimes suggested that the EU tricked Denmark because the CJEU later ignored the Danish opt-out of EU citizenship. But this is a myth: the fact is that Denmark never opted out of EU citizenship. The 1992 Decision on Denmark simply contained clarifications relating to the meaning of EU citizenship (see Section A of that decision), not any form of opt-out.

Another Treaty amendment (in the form of a protocol), relating to the legal effect of the EU Charter of Fundamental Rights, was promised to the Czech Republic if it ratified the Treaty of Lisbon. In this case, there was no Decision of Member States’ Heads of State and Government, but the draft Protocol and the promise were set out in conclusions of the European Council. The Protocol was subsequently formally proposed, but it was not pursued after a new Czech governmentwithdrew the previous government’s request. It’s possible that the Czech government decision was influenced by the European Parliament, which had voted against the draft Protocol. But as noted above, the EP does not have a veto over Treaty amendments: indeed, even after the EP’s objection, the Council recommended that the Treaty amendment process get underway.

The most the EP can do to stop Treaty amendments is to demand that a ‘Convention’ be established to discuss them. But remember: the Convention process does not give the EP any kind of veto over a Treaty amendment either. Ultimately a subsequent Inter-Governmental Conference decides what the final text of those Treaty amendments will be. So if the Czech government had really wanted to insist upon the adoption of its Protocol, it would have got it in the end.

For those who really don’t trust the EU to deliver on the renegotiation package, there’s always one further option. The UK government could commit itself, perhaps in the form of an Act of Parliament addressing the renegotiation deal, that it will report regularly on the implementation of that deal. If the key aspects of the deal are not in fact implemented for any reason, and there is no prospect that they will be, it would, as I’ve argued before, be reasonable to argue for another referendum.

Overview: is the renegotiation deal legally secure?

It follows from the above that the renegotiation deal is binding – and anyone who says otherwise (without clarification) is just not telling the truth. But there are two significant caveats to that: (a) parts of the deal, concerning the details of the changes to free movement law and Treaty amendments, still have to be implemented separately; and (b) there are limits to the enforceability of the deal.

The following table lists the binding elements of the renegotiation deal and summarises how enforceable they are and whether they need further implementation (and if so, what exactly this entails).

Decision of Heads of State and Government (in general)

Binding: in international law

In effect: after Remain vote notified

Further approval needed: No, unless national law requires parliamentary approval in some States

CJEU vulnerability: Zero; although CJEU might disagree with some interpretations of EU law

Reversible without UK consent: No

Commitment to amend treaty

Binding: in international law

In force: after Remain vote notified

Further approval needed: Yes, from national parliaments and possibly electorates; Commission, European Parliament have non-binding role in Treaty revision

CJEU vulnerability: Zero; although challenges under national constitutions are possible

Reversible without UK consent: No

Commitment to apply ‘red card’ for national parliaments

Binding: in international law

In force: after Remain vote notified

Further approval needed: No

CJEU vulnerability: Low

Reversible without UK consent: No

Council Decision on voting on financial issues

Binding: in EU law

In force: after adoption of this Decision, on date that Remain vote is notified

Further approval needed: Council has to adopt; no role for any other EU institution or national parliaments

CJEU vulnerability: low

Reversible without UK consent: No (arguably)

Legislation on free movement issues (3 measures)

Binding: in EU law

In force: after proposals tabled and adopted, which is due after Remain vote is notified

Further approval needed: Yes. Commission proposals (political commitment to make them); Council approval (political commitment from Member States to support 2 proposals); European Parliament (position unknown)

CJEU vulnerability: Low-medium for 2 proposals (family members, child benefit); High for emergency brake

Reversible without UK consent: Yes

Photo credit: http://www.leftfootforward.org

The final UK renegotiation deal: immigration issues

MY COMMENTS : Steve PEERS contribution is, as always, focused, and legally outstanding. It is interesting to note that in case of positive result of the UK referendum  it will be up to the EP to decide if, to preserve the UK “special” status, substantial amendments to the EU legislation on freedom of movement should be adopted. However what is at stake is the principle of non discrimination between EU citizens as defined by art. 9 of the TEU according to which “..In all its activities, the Union shall observe the principle of the equality of its citizens, who shall receive equal attention from its institutions, bodies, offices and agencies.”  

I do believe that in a “political” Union, worth its name and its former ambitions,  this should the objective of the negotiations  should had been to delete the existing protocols granting special status to some Countries and (their national Citizens) who become more “equal” than the others EU citizens.. However thanks to Mr Cameron it is now abundantly clear that our EU leaders are no more “Dwarfs on giant’s shoulders” but only short sighted political dwarfs… What is even more troubling is that, if the UK which has been for more than 40 years consistent with its initial position, other EU Countries, rhetoric statements taken apart,  have a much more ambiguous position towards the EU ( see France, Polonia, Hungary, Sweden, Finland and even Italy) and behave in a way incompatible with the idea of being part of the same family.

Emilio DE CAPITANI

 

ORIGINAL PUBLISHED ON EU LAW ANALYSIS (Saturday, 20 February 2016)

by Steve Peers*

So David Cameron has achieved his deal on the renegotiation of the UK’s EU membership (full text of that deal here). This is the first of a series of posts on the final deal – starting with the issue of ‘EU immigration’ (or, from the EU law point of view, the free movement of EU citizens). This builds on (and partly recycles) myearlier post on the EU immigration issues in the draft deal.

I will write later about the other substantive issues (competitiveness, Eurozone relations, sovereignty) and on the legal form of the deal (although see already my post on the legal form of the draft deal; my comments there won’t change much when I update them in light of the final deal). And see also Katarzyna Granat’s analysis of the ‘red card’ for national parliaments – again, the final text of the deal doesn’t differ from the draft here).

The deal takes the form of seven legal texts: a Decision of the EU Member States’ Heads of State and Government (the ‘Decision’); a Statement of the Heads of State and Government (which consists of an agreed Council Decision); aDeclaration by the European Council (which consists of the EU Member States’ Heads of State and Government, although when acting collectively they are legally distinct from the European Council): and four declarations by the Commission. Of these, Section D of the draft Decision and three of the Commission declarations relate to immigration issues. One of these Commission declarations (relating to child benefit exports) was added during the negotiation, while the text of Section D and another declaration (on the ‘emergency brake’ in in-work benefits) was amended. The other declaration (on so-called ‘abuse’ of free movement) was not changed.

While Section D contains some important attempts to clarify EU free movement law, the key feature of the deal on immigration is the intention to propose amendments to the three main current EU laws. These three laws are: (a) the EU citizens’ Directive, which sets out the main rules on most EU citizens moving to other Member States: (b) the EU Regulation on free movement of workers, which contains some specific rules on workers who move; and (c) the Regulation on social security, which sets out rules on coordination and equal treatment in social security for those who move between Member States.

All three sets of amendments are to be proposed by the Commission as soon as the main Decision enters into effect. That will happen (see Section E of the Decision) as soon as the UK announces that it will remain a member of the EU – if, of course, the UK public vote to remain in the upcoming referendum. The deal includes a commitment from the Commission to make these proposals, and from the other Member States to support their adoption in the EU Council (oddly, the latter commitment does not apply to the planned amendment to the citizens’ Directive, since that proposal is not referred to in the main Decision).

However, all three proposals will be subject to the ‘ordinary legislative procedure’, meaning that they have to be agreed with the European Parliament. It is also possible that their legality would be challenged before the EU Court of Justice. I can’t appraise the political likelihood of the European Parliament approving the proposals, although the largest party (the European People’s Party, made up essentially of centre-right parties like Angela Merkel’s Christian Democrats) hasannounced that it supports the renegotiation deal in principle, subject to examination of the details. However, I offer some thoughts below about possible challenges to the legality of these laws if they are adopted.

Unlike some other parts of the deal (on the position of non-Eurozone states, and the exemption of the UK from ‘ever closer union’), there is no mention of future Treaty amendments to give effect to any part of the text dealing with free movement (immigration) issues. So the main impact of the deal in this area will come from the three legislative proposals, once adopted. Since those proposals will not be tabled or agreed until after the UK ‘Remain’ vote (if there is one), this means that the analysis of the details is necessarily somewhat speculative. There are some important points of detail that will only be clear once the legislation is proposed and approved. I flag up some of those finer points below.

Although the press discussion has focussed on the ‘emergency brake’ in in-work benefits, there are three categories of issues: benefits (including a couple of points besides that emergency brake); the family members of non-EU citizens; and EU citizens who commit criminal offences. I refer back to Cameron’s November 2014 speech on EU immigration issues (which I analysed here) where relevant.

It should be noted that there is no text in the deal on two of the issues which Cameron had raised: removal of job-seekers if they do not find a job within six months, and a requirement to have a job offer before entry. Both these changes would have required a Treaty amendment, in light of the Antonissen judgment of the CJEU.

Benefits

There are three benefits issues in the draft deal: (a) the ‘emergency brake’ for in-work benefits; (b) the export of child benefit; and (c) benefits for those out of work.

‘Emergency brake’ on in-work benefits

Cameron had called for no access to tax credits, housing benefits and social housing for four years for EU citizens, but later signalled his willingness to compromise on this point. The position of non-workers and job-seekers is discussed below; but the position of workers is legally and politically difficult, since the Treaty guarantees them non-discrimination.

In the end, the deal provides not for permanent discrimination on this issue, but temporary discrimination on the basis of an ‘emergency brake’. The Commission will propose legislation on this issue, which will provide that the UK (or other Member States) can apply a four-year ban on in-work benefits, subject to substantive and procedural criteria. Procedurally, the rules will say that a Member State will apply to the Council to authorise the ban. The Council will presumably act by the default voting rule in the Treaties: a qualified majority on a proposal from the Commission. That means no single Member State can veto the request to pull the brake. The final deal leaves vague the exact authorisation process which will apply in the Council, to avoid annoying the European Parliament (EP); but that detail will have to be addressed sooner or later. Certainly the EP will have to approve the legislation which sets up that process in the first place; the question is whether it would have a role deciding if the brake should be pulled.

A Commission declaration states the UK qualifies to pull this ban immediately, in particular because it did not apply transitional controls to workers from new Member States in 2004. However, there is nothing in the deal to suggest that Member States – who would have the final word – also agree. The restrictions would only to those who were ‘newly arriving for a period of seven years’, and would have to be phased out during that time. Again, the seven years matches the transitional period which the UK could have applied to control the numbers of workers from new Member States, back in 2004.

Several points of detail arise. First of all, after the seven years have expired, it’s not clear how much time would then have to pass before the brake could be applied again. Secondly, it will be important to clarify the meaning of those who are ‘newly arriving’. What about those who lived in the UK before, and are now returning here? How much time would they have had to spend in Poland (say) before they are considered ‘newly arriving’ again? Presumably the brake would not apply to those who are already here when the brake is pulled, but are not working at that time (due to youth, unemployment, childcare or illness) but who get work afterward.

Thirdly, it will be necessary to define how to calculate the four year period. It’s easy enough to apply it to those who begin work as soon as they (newly) arrive in the country, and who work for the full four years afterward. But what about those (a non-working spouse, or a teenager, for instance) who start work some time after they enter the country? What about those who start work, stop for whatever reason and then restart? What about those who start work during the brake period, then spend a year or so in Poland, then come back? And how can we be sure when exactly someone entered the country in the first place?

The final crucial point of detail is, obviously, the grounds on which the brake can be applied. According to the Decision, it would apply where:

‘an exceptional situation exists on a scale that affects essential aspects of [a Member State’s] social security system, including the primary purpose of its in-work benefits system, or which leads to difficulties which are serious and liable to persist in its employment market or are putting an excessive pressure on the proper functioning of its public services’.

There’s certainly a widespread perception that one of more of these problems exist in the UK and are caused by the large increase in the number of workers from other Member States in recent years. However, there are two serious problems with the proposed mechanism. Firstly, as Jonathan Portes has argued, objective evidence for this view is lacking. Secondly, while the CJEU has been willing to accept certain limits to free movement rights on the grounds of protecting health systems (see myprior blog post for details), this would have a much more far-reaching impact on non-discrimination for workers. It’s certainly conceivable that by analogy from the Court’s obvious willingness to keep EU monetary union afloat, along with its endorsement of restrictions for non-workers in recent years (see below), it mightaccept that these plans do not violate the Treaties. But as EU law currently stands, that is probably a long shot.

Export of child benefit

Cameron sought to end payment of child benefit to children living in other Member States. This payment is provided for in the EU social security coordination Regulation, which would have to be amended to change those rulesThere was a strong argument that the plan would have breached the Treaties, since in the case ofPinna the CJEU struck down EU legislation that allowed Member States not to export such benefits at all as a breach of the rules on free movement of workers.

The deal does not go as far as Cameron wanted: instead child benefit can be limited by indexing it to the ‘conditions’ in the receiving State. This will only apply to ‘new claims made by EU workers in the host Member State’; but after 1 January 2020, this ‘may’ be extended to ‘existing claims already exported by EU workers’. This is clarified by the Commission declaration, which states that the ‘conditions’ refers to the ‘standard of living and level of child benefits’ in the child’s State of residence. The transitional rule, and the Commission declaration, were added during negotiations. It’s an open question whether this new law would breach the Treaties, since there is no case law on the point.

Several points of detail arise here. It’s explicit that the new rules will be optional, so Member States can still be more generous if they want to. There’s nothing to limit their application to the UK (although I will refer to the UK and Poland here, purely for the sake of readability). It’s not clear whether the rules will also apply to Britishcitizens who have children in other Member States; arguably the principle of non-discrimination will require that they do. It’s also not clear what happens to ‘mixed’ families of (say) British and Polish parents (or indeed step-parents). Will it depend on which parent is the worker? What if both are workers? What if that changes over time?

The transitional clause also raises issues. The Decision distinguishes between ‘new claims’ and ‘existing claims already exported by EU workers’. Presumably the new law will state a precise date at which claims can be regarded as ‘existing’ (say 1 January 2017). These must be existing exported claims, so if a child moves to Poland after 1 January 2017, or is born after that date and resides in Poland, then child benefits could be reduced, even if the worker is already in the UK. So if my estimated date is correct, anyone who is thinking about having a child, and who wants to avoid the application of these rules, had better get a move on. Perhaps this Easter will be the season of fertility even more than usual.

Finally, it should be noted that a challenge by the Commission to other aspects of UK payment of child benefit to EU citizens is still pending. The non-binding opinion of an Advocate-General argues in favour of the UK in this case (for a critical view, see Charlotte O’Brien’s analysis here). It wouldn’t surprise me if the Commission quietly withdrew this legal challenge. You read that here first.

Benefits for those out of work

Cameron sought to end social assistance for job-seekers. The EU legislation already rules out social assistance for job-seekers, so this reflects the status quo. Although the CJEU has said that job-seekers have a right to access benefits linked to labour market participation, if they have a link already with the labour market in question, it took a narrow view of this rule in the judgment in AlimanovicPure benefit tourists (who have never had work in the host State) are not entitled to benefits, according to the judgment in Dano. So the Decision simply reiterates this case law, which has already satisfied Cameron’s main objectives in this field. It should be noted that another judgment by the Court of Justice on EU benefits issues is due next week.

EU citizens’ family members

Under the EU citizens’ Directive, currently EU citizens can bring with them to another Member State their spouse or partner, the children of both (or either) who are under 21 or dependent, and the dependent parents of either. This applies regardless of whether the family members are EU citizens or not. No further conditions are possible, besides the prospect of a refusal of entry (or subsequent expulsion) on grounds of public policy, public security or public health (on which, see below).

In principle EU law does not apply to UK citizens who wish to bring non-EU family members to the UK, so the UK is free to put in place restrictive rules in those cases (which it has done, as regards income requirements and language rules). However, the CJEU has ruled that UK citizens can move to another Member State (the ‘host Member State’) and be joined by non-EU family members there, under the more generous rules in the EU legislation. Then they can move back to the UK (the ‘home Member State’) with their family members, now invoking the free movement rights in the Treaties. This is known in practice (in the UK) as the ‘Surinder Singh route’, because of the name of the case which first established this principle. In 2014, the CJEU clarified two points about this scenario (as discussed by Chiara Berneri here): (a) it was necessary to spend at least three months in the host Member State exercising EU law rights and residing with the family member, before coming back; and (b) the EU citizens’ Directive applied by analogy to govern the situation of UK citizens who return with their family members.

In his 2014 speech, David Cameron announced his desire to end all distinction between EU citizens and UK citizens as regards admission of non-EU family members, by allowing the UK to impose upon the EU citizens the same strict conditions that apply to UK citizens. Since this would have deterred the free movement of those EU citizens who have non-EU family members, there is a good chance that it would have required not just a legislative amendment but a Treaty change.  (Note that according to the CJEU, EU free movement law does not just require the abolition of discrimination between UK and other EU citizens, but also the abolition of non-discriminatory ‘obstacles’ to free movement).

However, the deal does not go this far. The main Decision states that:

‘In accordance with Union law, Member States are able to take action to prevent abuse of rights or fraud, such as the presentation of forged documents, and address cases of contracting or maintaining of marriages of convenience with third country nationals for the purpose of making use of free movement as a route for regularising unlawful stay in a Member State or for bypassing national immigration rules applying to third country nationals.’

The Commission Declaration then states that it will make a proposal to amend the citizens’ Directive:

‘to exclude, from the scope of free movement rights, third country nationals who had no prior lawful residence in a Member State before marrying a Union citizen or who marry a Union citizen only after the Union citizen has established residence in the host Member State. Accordingly, in such cases, the host Member State’s immigration law will apply to the third country national.’

That Declaration also states that the Commission will clarify that:

‘Member States can address specific cases of abuse of free movement rights by Union citizens returning to their Member State of nationality with a non-EU family member where residence in the host Member State has not been sufficiently genuine to create or strengthen family life and had the purpose of evading the application of national immigration rules’; and

‘The concept of marriage of convenience – which is not protected under Union law – also covers a marriage which is maintained for the purpose of enjoying a right of residence by a family member who is not a national of a Member State.’

It seems clear that these ‘clarifications’ will not be included in the legislative proposal, since the declaration later concludes (emphasis added):

‘These clarifications will be developed in a Communication providing guidelines on the application of Union law on the free movement of Union citizens.’

Let’s examine the planned legislative amendments, then the guidelines which will provide ‘clarifications’. The amendments will exclude two separate categories of non-EU citizens from the scope of the citizens’ Directive: those who did not have prior lawful residence in a Member State before marrying an EU citizen who has moved to another Member State; and those who marry such an EU citizen after he or she has moved to a Member State. For these people, national immigration law will apply.

The background to this proposal is CJEU case law. In 2003, in the judgment inAkrich, the CJEU ruled that Member States could insist that non-EU family members had previously been lawfully resident in the Member State concerned (previously no such rule appeared to exist). But in 2008, in Metock, the CJEU overturned this ruling and said that a prior legal residence requirement was not allowed.

Several points arise. First, the basic definition: what is lawful residence exactly? Presumably it means more than lawful presence, ie a stay of three months on the basis of a valid visa or visa waiver. But what about ambiguous cases, such as a pending asylum application or appeal? EU legislation says that asylum-seekers can usually stay until the application fails (if it fails), and then during the appeal (subject to some big exceptions). According to the CJEU, the EU’s main rules on irregular migrants therefore don’t apply to asylum-seekers whose application is pending.

Secondly, it’s odd to refer to national law alone, since sometimes EU law governs the admission of non-EU nationals. Even the UK (along with Ireland) is bound by the first-phase EU asylum law, and by the EU/Turkey association agreement. Denmark is bound by the latter treaty. And all other Member States are bound by the second-phase asylum law, along with EU legislation on admission of students and researchers and some categories of labour migrants (the highly-skilled, seasonal workers and intra-corporate transferees).

Thirdly, it’s arguable that the EU principle of non-discrimination applies. That would mean, for instance, that if a German woman already in the UK married her American husband, the UK would have to treat her the same as a British woman in the same situation – but no worse. This would in fact be relevant to every Member State – there’s nothing in this part of the deal that limits its application to the UK. (One important point of detail is whether all Member States would be obliged to apply the new rules on ‘prior lawful residence’ and ‘marriage after entry of the EU citizen’, or whether they could choose to waive one or both of those rules. The EU citizens’ Directive already states that Member States can apply more liberal standards if they wish to).

Finally, the consequences of the rule will need to be clearer in the future legislative amendments. Does the exclusion from the scope of the Directive mean that the family member is excluded forever from the scope of the citizens’ Directive – even if the person concerned is admitted pursuant to national immigration law? That would mean that national immigration law (or EU immigration legislation, in some cases) would continue to govern issues such as the family member’s access to employment or benefits, or subsequent permanent residence. It’s also not clear what happen to children such as the step-child of the EU citizen, or a child that was born to the EU and non-EU citizen couple while living in a third country.

Could this legislative amendment violate the EU Treaties? In its judgment inMetock, the Court referred almost entirely to the wording of the citizens’ Directive. It mainly referred to the Treaties when concluding that the EU had the competenceto regulate the status of EU citizens’ third-country national family members. But it also referred to the Treaty objective of creating an ‘internal market’, as well as the ‘serious obstruct[ion]’ to the exercise of freedoms guaranteed by the Treaty, if EU citizens could not lead a ‘normal family life’. It must therefore be concluded that there is some possibility that the revised rules would be invalid for breach of EU free movement law.

Would the amendment violate the EU Charter right to family life? That’s unlikely. While the right to family life is often invoked to prevent expulsions of family members, the case law of the European Court of Human Rights gives great leeway to Member States to refuse admission of family members, on the grounds that the family could always live ‘elsewhere’ – as the CJEU has itself acknowledged (EP v Council). There is some possibility, though, that the CJEU would be reluctant to follow that case law (EP v Council concerns families entirely consisting of non-EU nationals) in the context of free movement: the idea that you could go away and enjoy your family life somewhere else is antithetical to the logic of free movement.

As for the ‘clarifications’ in future guidelines, they will of course not be binding. They first of all refer to cases where an EU citizen has moved to another Member State and come back to the home State. The definition of what constitutes a ‘sufficiently genuine’ move to another country is set out in the case law (three months’ stay with a family member) and mere guidelines cannot overturn this.

It should be noted that the Surinder Singh case law is in any event derived from theTreaty. This line of case law does not accept that such movement between Member States is an ‘evasion’ of national law – as long as free movement rights are genuinely exercised with a family member for a minimum time. The CJEU also usually assumes (see Metock, for instance) that a ‘marriage of convenience’ cannot apply to cases where there is a genuine relationship, even if an immigration advantage is gained. (The Commission has released guidelines already on the ‘marriage of convenience’ concept: see analysis by Alina Tryfonidou here).

Having said that, the planned legislative changes will complicate the plans of people who wish to move to another Member State with their non-EU family and then move back, since national immigration law will apply to their move to the hostMember State. It will be important to see how the legislative amendments address the transitional issues of people who have already moved to a host Member State before the new rules apply. Can the home Member State say, possibly based on the Commission’s ‘guidance’ (which might be issued before the new legislation is adopted) that those families must now obtain lawful residence in the host State for the non-EU family member, before the non-EU family member can come to the home State?

Criminality and free movement law

The Treaties allow for the refusal or entry or expulsion of EU citizens on ‘grounds of public policy, public security or public health’. The citizens’ Directive sets out detailed substantive and procedural rules on this issue, which has been the subject of considerable CJEU case law.

What does the renegotiation deal do? First of all, the Decision states that:

‘Member States may also take the necessary restrictive measures to protect themselves against individuals whose personal conduct is likely to represent a genuine and serious threat to public policy or security. In determining whether the conduct of an individual poses a present threat to public policy or security, Member States may take into account past conduct of the individual concerned and the threat may not always need to be imminent. Even in the absence of a previous criminal conviction, Member States may act on preventative grounds, so long as they are specific to the individual concerned.’

To this end, the Commission declaration states that it will:

‘also clarify that Member States may take into account past conduct of an individual in the determination of whether a Union citizen’s conduct poses a “present” threat to public policy or security. They may act on grounds of public policy or public security even in the absence of a previous criminal conviction on preventative grounds but specific to the individual concerned. The Commission will also clarify the notions of “serious grounds of public policy or public security” and “imperative grounds of public security” [grounds for expelling people who have resided for longer periods in a host Member State].  Moreover, on the occasion of a future revision of [the citizens’ Directive], the Commission will examine the thresholds to which these notions are connected.’

It’s not clear whether the revision of the Directive referred to at the end here is as imminent as the proposal to amend the rules to create a ‘prior lawful residence’ rule for non-EU family members. Otherwise the plan to issue guidelines is clearly not binding. The language in these guidelines partly reflects the existing law, but some features are new: the greater emphasis on past conduct, the lesser need to show that a threat is imminent and the possibility of expelling someone as a ‘preventative’ measure.

These changes fall within the scope of Cameron’s desire to have ‘stronger measures to deport EU criminals’. However, it should be noted that there is no specific reference to his plans for ‘tougher and longer re-entry bans for foreign rough sleepers, beggars and fraudsters’. While a conviction and re-entry ban for fraud might be covered by the guidelines referred to above, there’s no mention of clarifying entry bans as regards those guidelines, or changing the legislation on this issue. Also, as I noted in my comments on Cameron’s plans at the time, EU legislation does not allow for re-entry bans for rough sleepers and beggars, since the EU citizens’ Directive states unambiguously that a ban on entry cannot be imposed where a person was expelled for grounds other than public policy, public security and public health. Put simply, a Member State can impose an entry ban where an EU citizen has been expelled due to criminality – but not where he or she has been expelled due to poverty.

Longer waiting periods for free movement of persons from new Member States

Finally, it should be noted that the Decision briefly refers to Cameron’s plan to have longer waiting periods for free movement of persons in future accession treaties. It does not incorporate his suggestion, but merely notes it. However, since the details of each new Member State’s adaptation to EU law are set out in each accession treaty, which has to be approved by each Member State, the UK can simply veto any future accession treaties unless longer waiting periods for free movement are indeed included. The next accession to the EU is at least four years away, probably more. So nothing really turns on the absence of agreement with the UK’s position for now.

Conclusion

The key point to remember about the renegotiation deal, particularly as regards EU immigration, is that it consists of different parts. The main deal takes the form of a Decision, which essentially clarifies EU law without amending it. According to CJEU case law (Rottmann), the Court is willing to take Decisions like these into account when interpreting EU law.

However, in the area of EU immigration, the other parts of the deal are more relevant: the intention to pass three new EU secondary laws. Those new laws will be a fully-fledged amendment to existing EU rules, not simply a clarification of it. While some points of detail remain to be worked out, it is clear from the deal that the Commission will make proposals in these areas, and all Member States (ie the Council) will support them. It remains to be seen whether the European Parliament will approve them, and whether the CJEU would accept challenges to their legality. My assessment of the Court’s likely response, as detailed above, is that the amendments on family members will probably be acceptable; the child benefit reforms are an open question; and the changes on in-work benefits are highly vulnerable. Of course, there’s no prior case law on these specific issues, and so we can’t be certain of the Court’s approach in advance.

Overall, as I concluded in the earlier post on the draft agreement, these changes, if they are all implemented as planned, will fall short of a fundamental change in the UK’s relationship with the EU. But equally it is clearly wrong to say that they mean nothing – if in fact they are implemented. The changes would be modest but significant: amendments to three key pieces of EU legislation that would for the first time roll back EU free movement law, not extend it. Leaving aside the calls for non-binding guidelines, there would be cutbacks in in-work benefits (albeit for a limited period), significantly more control on the admission of non-EU family members of EU citizens, and more limited export of child benefit.

Barnard & Peers: chapter 13

Photo credit: http://www.telegraph.co.uk
*Disclosure: I will be consulting for the European Parliament on the free movement aspects of the renegotiation. However, my advice will be fully independent; I don’t represent or advocate for the European Parliament (or anyone else) on these (or any other) issues.

Posted by Steve Peers at 01:35 15 comments:

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Labels: benefits, Brexit, child benefit, EU citizenship, EU referendum, EU reform, expulsion, family benefit, free movement of persons, tax credits, UK renegotiation

Thursday, 18 February 2016

Mutual trust – blind trust or general trust with exceptions? The CJEU hears key cases on the European Arrest Warrant

Henning Bang Fuglsang Madsen Sørensen, Associate Professor, Department of Law, University of Southern Denmark

Monday 15 February was a busy day in Luxembourg. The Court held a hearing in C-404/15, Aranyosi, which was lodged at the Court in July 2015. But the Court also received C-659/15, Caldararu, at 9 December 2015 under the ‘emergency’ PPU-procedure. The Court decided to join the two cases as they were submitted by the same court – Hanseatisches Oberlandesgericht in Bremen, Germany – and concerned the same issue – should surrender on a European Arrest Warrant be refused if there is reason to fear the wanted person will be exposed to inhumane prison conditions in the requesting state? So the hearing concerned both cases and it turned out to be a busy but also interesting day because the two cases touch upon the application of the principle of mutual recognition as the cornerstone of EU criminal law as recognized by recital 6 of the Framework Decision establishing the European Arrest Warrant.

During the day, the Court heard the submissions from the lawyers of Aranyosi and Caldararu, the referring judge from Bremen, 9 Member States (Germany, Ireland, Spain, France, Lithuania, Hungary, The Netherlands, Romania and UK) and of course the Commission.

But what was all the fuss about? Well, let us have a look at the two cases first. Then we will turn to the submissions of the Member States and the Commission.

The cases

Aranyosi is a young man, living with his parents in Bremen. He has a girlfriend in Germany, with whom he has a child. He was arrested in Bremen 14 January 2015 as Hungary had requested his surrender on a European Arrest Warrant. Aranyosi is suspected for two accounts of burglary. However, Aranyosi resisted the surrender, referring to reports from the Committee on the Prevention of Torture (CPT) and case law from the European Court of the Human Rights, which documented a massive over-crowding in Hungarian prisons to an extent that could be considered a violation of ECHR art. 3 (corresponding to Article 4 of the EU Charter of Fundamental Rights). The Bremen Court decided to ask the Luxembourg Court if it was possible to read article 1(3) of the EAW Framework Decision (the ‘human rights’ clause) as an opportunity to refuse the surrender in case of strong indications of detention conditions insufficient to satisfy ECHR art. 3. The Bremen Court also asked if it was possible to request assurances concerning the prison conditions from the requesting state before surrender was allowed. Due to Aranyosi’s connections with Bremen, the judge decided to release Aranyosi while the case was pending.

Caldararu is also a young man. He was sentenced to 8 months in prison by a court in Romania for driving without a driver’s license. The case was heard in absentia. However, Caldararu left Romania before the sentenced time could be served and Romania issued a European Arrest Warrant for Caldararu. He was arrested in Bremen, Germany, on 8 November 2015, and his surrender to Romania was then allowed on 20 November 2015. He refused however to consent to the surrender with reference to the detention conditions in Romania. The Bremen Court decided to keep Caldararu in custody as the Bremen Court also sent a request for a preliminary ruling in this case. The request was sent on 9 December 2015.

So, two cases from the same court, basically concerning the same question: Can a judge refuse surrender if it is feared that detention facilities in the requesting state are inadequate?

But the reply to these questions touches upon a number of arguments, and the day turned out to be very intense as these arguments involves fundamental rights, the principle of mutual recognition, the relationship between Member States and not least what to do if surrender is denied. The parties were far from a common understanding of how these arguments should be used, and the hearing turned out to be a very interesting and well-spent day in Luxembourg.

Let us have a look at some of the major arguments.

The first argument – mutual trust means blind trust!

One could argue that mutual trust means blind trust to such a degree that the executing Member State must execute the European Arrest Warrant without any checks for anything else other than the grounds for refusal to execute an EAW mentioned in Articles 3 and 4 of the Framework Decision (such as double jeopardy, or age of a child).

The Bremen judge of course opposed this view as this would make his request for a preliminary ruling obsolete.

Especially Spain supported this argument, saying that the evaluation of the protection of fundamental rights is a privilege for the court in the issuing State as the court in the executing State is not empowered to make abstract evaluations of the prison conditions in another Member State. The prior CJEU judgment inMelloni was mentioned as an example of a situation, where Spain was denied the possibility to make the surrender conditional upon specific guarantees. Spain had difficulties aligning the conclusions of Melloni with a possibility to make evaluations of foreign prison systems prior to deciding surrender and then perhaps condition the surrender on guarantees regarding detention conditions. Spain therefore held, that the executing State had to surrender unless Article 3 or 4 of the Framework Decision were applicable and it would then be for the courts of the requesting state to evaluate whether prison conditions would amount to a violation of ECHR art. 3 / Charter art. 4.

Lithuania presented a similar argument, arguing that the principle of mutual trust would fall apart if Member States were given the power to check each other in regard to prison conditions. Lithuania further referred to TEU art 7 (on the possible suspension of a Member State from the EU on human rights grounds) as the procedure prescribed by the treaties in case a Member State is found not to respect fundamental rights. Lithuania also expressed concern whether the issuing State would be able to make its arguments before the court in the executing State deemed the prison conditions in the issuing State insufficient in regards to fundamental rights, and it could lead to a situation where the issuing State would be denied the possibility to use the EAW as such. This would make it impossible to prosecute absconded criminals and would thus threaten the idea of AFSJ as such.

The remaining States together with the Commission were in opposition to Spain and Lithuania. The parties argued in general in favor of understanding mutual trust as a general trust in opposition to a blind trust. The Bremen judge reported his difficulties when reading about the prison conditions in Hungary, and how he had asked the German Government in vain to obtain guarantees concerning the prison conditions for Aranyosi. He argued that it would be unacceptable to demand that a judge should ignore obvious reasons to fear for violations of fundamental rights and the possibility of denying the execution of the EAW had to be present in such a situation. Being a judge himself, he called upon the Luxembourg judges not to put this burden on him.

The German Government along with Ireland, France, Hungary, The Netherlands, Romania, UK and the Commission presented various arguments in favor of understanding mutual trust as a general trust which only is rebuttable in very exceptional circumstances.

Germany argued that the executing state cannot be making assessments of the respect for fundamental rights in other Member States, except when under very exceptional circumstances. Such circumstances could be several reports from the Council of Europe, CPT, judgements from the ECtHR, reports from NGOs and even from the American Secretary of State. Germany further read recital 13 in the preamble together with art. 1(3) of the EU Framework Decision in such a way that a risk of violation of fundamental rights is a general reason for denying execution of the EAW in supplement to the specific reasons mentioned in Articles 3 and 4 of the law. Ireland supported this argument with a reference to recital 12, while Hungary supported the argument with reference to recital 10. The UK also argued in favor of reference also to recitals 5 and 6, together with recital 10, 12 and 13 and Article 1(2) and 1(3).

The Commission argued for the need of a balance between mutual trust and the protection of fundamental rights, requiring Member States to have a general trust in each other with a possibility to test the protection of fundamental rights if there seems to be a real risk for a violation of fundamental rights. The Commission found support for this in Art. 19(2) of the Charter (non-removal from a Member State to face torture et al), as the Commission supported the Bremen judge by finding it unacceptable to force a Member State to surrender to a known risk of violation of fundamental rights without taking action to protect fundamental rights. The Commission further stressed that if the principle of mutual recognition would prevail over the protection of fundamental rights, then a principle had been given more weight than fundamental rights. Fundamental rights, being a part of primary law and the reason for the Union as such, could not be set aside by a general principle within EU law.

When is the obligation to examine a potential risk triggered?

If detention facilities in the requesting Member State may be examined prior to the decision of surrender, then how much is needed for triggering such an examination?

The main question was whether an examination should be accepted only in case of systemic failures in the requesting state or whether an individual risk concerning the specific person should be enough. The first situation, where an examination only is acceptable in cases of systemic failures, correspond to the conclusions of the Luxembourg Court in the cases of N.S. (on the Dublin system in Greece). andMelloni, and also paragraphs 191-194 of Opinion 2/13 (on ECHR accession). The second situation corresponds to the conclusion of ECtHR in Soering (on extradition to ‘death row’ in the USA).

Germany, UK and The Netherlands argued in favor of the individual approach, exemplified by a person who may be kept under harsh detention conditions due to religion or sexual orientation. Ireland argued together with France, Romania and Hungary in favor of the systemic approach, and also stressing that the threshold that has to be met had to be set rather high in respect for the principle of mutual trust. Spain argued against both approaches, as Spain found the examination to be directed against the detention facilities of the requesting state and as such not covered by any of the terms. Lithuania referred to art 7 TEU as the correct method to handle suspicions concerning violation of fundamental rights in a Member State, and concluded on this basis that the examination conducted in the executing Member State should be limited to an examination of whether or not art. 7 had been activated in regards to the issuing Member State.

The Commission found it relevant to initiate an investigation if an individual risk were present.

The parties were thus split in half on the question of whether an examination was allowed only in case of systemic failures or whether the examination should be allowed based on the individual risk of the person wanted for surrender. The submissions of the Member States were however also influenced by the question of what to do if the examination leads to the conclusion of a present and relevant risk in case of surrender – should the requesting state be given the opportunity to eliminate the found risk through guarantees or should the surrender be conditioned upon guarantees? The position of the Member States on this issue will be reported below. First, we must turn our attention to how the Member States would examine a real and present danger of a violation of a fundamental right in case surrender is allowed.

How will the Member States examine a claimed risk of violation of fundamental rights?

The problem of how a court in one Member State can obtain information on the detention system in another Member State in order to establish whether or not these detention facilities may be seen as a violation of fundamental rights were also included in the submissions of the parties.

Germany referred to reports from the CPT and the Council of Europe, together with the case law of the ECtHR, reports from NGOs and even the American Secretary of State. Germany stressed that these sources had to be published within a reasonably short time before the national court was to decide on the question of surrender. The UK also supported the use of reports from international organs, the case law of the ECtHR, individual claims and testimonies and reports from national experts. Ireland and The Netherlands also argued for the use of reports from the CPT and the case law of the ECtHR, while France considered especially the case law of the ECtHR as relevant. Hungary elaborated on the fact that reports from the CPT are at least one year underway, while a judgement of the ECtHR refer to facts as they were at the time of the claimed violation. That could be several years prior to the judgement were handed down. These sources thus had to be used with great care.

Romania did not elaborate on the question of how to make an examination. Also Spain and Lithuania opposed the general idea of letting foreign courts examine domestic prison conditions, but did not elaborate on how this may be done in case the Luxembourg Court would allow it.

The Commission supported the use of the case law of ECtHR, reports from international organisations, statistics on the over-crowding of prisons in the requesting State and even any other relevant source. The Commission was thus in line with especially Germany and UK.


The importance of dialogue between Member States – the concept of guarantees

Several parties stressed the importance of dialogue between the requesting Member State and the executing Member States.

The Bremen judge, Germany and France argued in favour of giving the judge of the court in the executing Member State the possibility to call for guarantees from the issuing Member State. The guarantees would be able to remove the fear for a violation of fundamental rights, and the surrender should therefore be denied if the required guarantees were not provided.

Ireland and The Netherlands found no basis for refusing to surrender due to the lack of diplomatic guarantees. The executing Member State had to make its mind up whether or not there would be a real and present risk for a violation of fundamental rights and handle the request for surrender in accordance with this.

Spain argued against the use of guarantees, as the judge calling for the guarantees may be setting the criteria that has to be met before he or she will allow surrender. This would generate a risk of huge variations in the way the Member States use this possibility, and would therefore threaten the uniformity of Union Law. Lithuania also argued against the use of guarantees by elaborating on the fact that the guarantee is not worth much if the requesting Member State decides not to fulfill its obligations in accordance with the guarantee after the surrender has taken place.

Especially Hungary stressed the importance of Article 15(2) of the Framework Decision. If a Member State is afraid of surrendering due to the fear of violation of fundamental rights, then the two involved states must engage in a dialogue for the purpose of removing the reasons for this fear. Hungary saw the risk of violations as a specific and concrete problem, which could be handled with specific and concrete solutions. Such solutions could be alternative detention measures, a decision to keep the surrendered person in custody in another prison or perhaps show the executing court that the reasons are obsolete due to for instance the constructions of new prisons following e.g. a judgment from the ECtHR. This line of arguments was supported by the UK as well as Ireland and The Netherlands. These arguments were also supported by Romania by stating that the risk for a violation of fundamental rights may be real and present but nevertheless possible to eliminate in the specific case. The Commission also supported this view.

Especially Romania also raised another issue concerning equal treatment, as Romania mentioned that if certain inmates where kept under custody under more beneficial conditions due to guarantees while other inmates were kept in custody under normal conditions. Romania pointed to the simple fact that if prisoners with guarantees were to be given more space, then the remaining prisoners would have even less space. This motivated the referring judge to ask Romania, Germany and France to elaborate on this risk concerning unequal treatment. Romania found this risk to be non-acceptable, while France argued that the risk of unequal treatment were a less evil than the risk of violating fundamental rights. Germany stated, that Germany did not want unequal treatment, but appropriate prison conditions. The risk of unequal treatment was however the only way to respect the Soeringjudgment of the ECtHR.

Thus, there were different views on whether surrender could be conditioned upon guarantees or whether guarantees should be seen more as a dialogue comforting the executing judge in the removal of a risk of violation of fundamental rights. However, there seemed to be general consensus when it came to how guaranties should be issued, as the parties found this should be regulated in national law of the specific Member State.

The consequence of denying surrender

The last major issue touched upon by the parties was the question of what should happen if surrender were refused.

The Bremen judge explained how German law made it possible to let Germany continue the criminal proceedings if surrender was denied, but practical problems in regards to witnesses etc. made this theoretical possibility an illusion in real life. In regards to Aranyosi, a decision not to surrender would therefore in real life also be decision to discontinue the criminal proceedings. In regards to Caldararu, who was sentenced in Romania, a decision to not surrender could provide the basis for letting Caldararu serve the sentence in Germany, but this would also result in a number of practical problems as Caldararu only had stayed a very short time in Germany. He therefore does not speak the language nor would any initiatives to rehabilitate him into the German society have any likelihood for success.  So it was also questionable whether it would be relevant to transfer the sentence to Germany in the present case. The Bremen judge made it clear that it would not be satisfactory if a denial to surrender the sought person would mean crimes would go unpunished.

The German government shared this view, while France noted that it was for each Member State to decide whether they would let their courts have jurisdiction in cases in which surrender had been denied. Romania also made it clear, that it would be unacceptable if criminal activities were going un-punished because of a decision to deny surrender. If the executing Member State denies surrender, then the executing Member State must bear the responsibility to see justice fulfilled. Lithuania pointed to the fact that a decision not to surrender due to unsatisfactory detention facilities would in practice create areas within the AFSJ it which it would be impossible to punish crimes as the criminals would be able to commit their crimes in such areas and then flee to other parts of the AFSJ without risking surrendering afterwards.

A number of parties also underscored this as the major difference between asylum law and the test used in the N.S. case against criminal law and the test that may be used in the present cases. If the return of an asylum seeker is impossible, then the Member State in which the asylum seeker is at the moment will be able to process the application for asylum. It is of lesser importance for the asylum seeker whether one or the other Member State processes the application for asylum as asylum law is almost fully harmonized. The consequence of not surrendering a suspect in a criminal case could very well be that crimes would go unpunished, which is a rather different result and of course not acceptable.

What next?

The Advocate General promised to announce within 24 hours when his opinion will be submitted to the Court. The cases were heard on 15 February 2016 but the Curia-webpage still do not contain any new information by the end of the 17 February 2016. Nonetheless, Caldararu is a PPU-case as Caldararu is kept in custody, and we must therefore expect the opinion of the general advocate within few days. The decision of the Court will then be expected within a few weeks or perhaps a month, so the excitement will soon be released.

It seems apparent that especially Spain and Lithuania were very skeptical as to whether one Member State should be allowed to examine the detention facilities in another Member State at all. The other seven Member States seemed to find it appropriate to have the possibility in very exceptional circumstances. France, Romania and Hungary seemed to limit the possibility to cases with systemic problems, while the remaining Member States also wanted to be able to conduct an examination in cases with individual problems. Germany wanted to let the executing Member State demand guarantees from the issuing Member State so surrender could be denied if the requested guarantees were not delivered. The remaining Member States seemed to agree that the two Member States had to engage in a dialogue to establish whether there was a problem in the specific case at all and whether a problem could be solved by for instance alternative detention measures. It is also worth noticing the position of the Commission as a rather pragmatic approach, where the Commission supported the need to make investigations in even individual cases, using a variety of sources.

EP ADOPTS A CODIFIED VERSION OF THE SCHENGEN CODE

Following a fast-track procedure agreed by the EU legislative institutions in 94 the European Parliament has adopted on February 2 in Strasbourg, the new text of the Schengen code by consolidating in a single text the basic Regulation (EC) No 562/2006 and all the subsequent amendments entered into force to date. This makes the text adopted more readable both for the people  covered by the Schengen rules as well as by the EU Member states which have to implement it.

Continue reading “EP ADOPTS A CODIFIED VERSION OF THE SCHENGEN CODE”

EU-US “Umbrella Agreement on Data Protection: Opinion of EDPS

EDPS (*) Preliminary Opinion Published HERE on 12 February 2016

(*) The European Data Protection Supervisor (EDPS) is an independent institution of the EU, responsible under Article 41(2) of Regulation 45/2001 ‘With respect to the processing of personal data… for ensuring that the fundamental rights and freedoms of natural persons, and in particular their right to privacy, are respected by the Community institutions and bodies’, and ‘…for advising Community institutions and bodies and data subjects on all matters concerning the processing of personal data’. He was appointed in December 2014 together with Assistant Supervisor with the specific remit of being constructive and proactive. The EDPS published in March 2015 a five-year strategy setting out how he intends to implement this remit, and to be accountable for doing so.

This Opinion builds on the general obligation that international agreements concluded by the EU must comply with the provisions of the Treaty of the Functioning of the European Union (TFEU) and the respect for fundamental rights that stands at the core of EU law. In particular, the assessment is made so as to analyse the compliance of the content of the Umbrella Agreement with Articles 7, 8 and 47 of the Charter of Fundamental Rights of the European Union and Article 16 TFEU ensuring personal data protection.

EXECUTIVE SUMMARY

Investigating and prosecuting crime is a legitimate policy objective, and international cooperation including information exchange has become more important than ever. Until now, the EU has lacked a robust common framework in this area and so there are no consistent safeguards for individuals’ fundamental rights and freedoms. As the EDPS has long argued, the EU needs sustainable arrangements for sharing personal data with third countries for law enforcement purposes, fully compatible with the EU Treaties and the Charter of Fundamental Rights

Therefore, we welcome and actively support the efforts of the European Commission to reach a first ‘Umbrella Agreement’, with the US. This international law enforcement agreement aims at establishing for the first time data protection as the basis for information sharing. While we recognise that it is not possible to replicate entirely the terminology and definitions of EU law in an agreement with a third country, the safeguards for individuals must be clear and effective in order to fully comply with EU primary law.

The European Court of Justice in recent years has affirmed data protection principles including fairness, accuracy and relevance of information, independent oversight and individual rights of individuals These principles are as relevant for public bodies as they are for private companies, regardless of any formal EU adequacy finding with respect to third countries data protection safeguards; indeed they become all the more important considering the sensitivity of the data required for criminal investigation.

This Opinion aims to provide constructive and objective advice to the EU institutions as the Commission finalises this delicate task, with broad ramifications, not only for EU-US law enforcement cooperation but also for future international accords. The ‘Umbrella Agreement’ is separate from but has to be considered in conjunction with the recently announced EU-US ‘Privacy Shield’ on the transfer of personal information in the commercial environment. Further considerations may be necessary to analyse the interaction between these two instruments and the reform of the EU’s data protection framework.

Before the Agreement is submitted for the consent of the Parliament, we encourage the Parties to consider carefully significant developments since last September, when they signalled their intention to conclude the Agreement once the Judicial Redress Act is passed. Many safeguards already envisaged are welcome, but they should be reinforced, also in the light of the Schrems judgment in October invalidating the Safe Harbor Decision and the EU political agreement on data protection reform in December, which covers transfers and judicial and police cooperation.

The EDPS has identified three essential improvements which he recommends for the text to ensure compliance with the Charter and Article 16 of the Treaty:

* clarification that all the safeguards apply to all individuals, not only to EU nationals;

* ensuring judicial redress provisions are effective within the meaning of the Charter;

* clarification that transfers of sensitive data in bulk are not authorised.

The Opinion offers additional recommendations for clarification of the envisaged safeguards by way of an accompanying explanatory document. We remain at the disposal of the institutions for further advice and dialogue on this issue. 

Continue reading “EU-US “Umbrella Agreement on Data Protection: Opinion of EDPS”

The draft UK/EU renegotiation deal: is it ‘legally binding and irreversible’?

ORIGINAL PUBLISHED ON EU LAW ANALYSIS (Wednesday, 10 February 2016)

by Steve Peers

The draft deal on renegotiation of the UK’s EU membership has already caused great controversy: both from those (mostly in the UK) who think it does not go far enough, and those (mostly in the rest of the EU) who think it goes too far in revising EU law to satisfy the objections of one Member State. These issues are mainly substantive, and I have addressed some of them in an earlier post about theimmigration aspects of the draft deal. I’ll write later about the remaining substantive issues, although I will touch on some in this blog post. There’s already an analysis of the proposed ‘red card’ for national parliaments by Katarzyna Granathere.

Yet in addition to concerns about the substance of the deal, there are doubts about its legal nature. In particular, is the deal ‘legally binding and irreversible’, as David Cameron had pledged? The answer is complicated, because there are several different parts of the deal, taking different legal forms. For each part, the legal status depends on several different factors: when the text would be adopted; who would have to approve it; whether the EU courts have power to overturn it, and whether they are likely to do so; and whether the text could be repealed or amended in future. (I am assuming throughout that by ‘irreversible’, David Cameron meant irreversible without the UK’s consent).

This blog post answers that question, looking first at the legal form of the agreement. Next, I suggest ways in which the draft deal could be made more legally secure. Then I examine, based on prior experience, whether the EU can be ‘trusted’ to implement the draft deal. Finally, I provide, in one table, my assessment indication of the extent to which each of the parts of the draft deal are ‘legally binding and irreversible’, based on the factors mentioned above.

Legal form of the main deal

The draft deal takes the form of six draft legal texts: a Decision of the EU Member States’ Heads of State and Government (the ‘draft Decision’); a Statement of the Heads of State and Government (which consists of a draft Council Decision); aDeclaration by the European Council: and three declarations by the Commission. Implicitly, it also includes three planned EU legislative proposals, all dealing with the free movement of EU citizens (the emergency brake on benefits, EU citizens’ non-EU family members and export of child benefit), which are referred to in these texts. The UK government is also likely to table some domestic legislation linked to the renegotiation deal: I consider that prospect briefly (and propose some further national laws which the UK might consider) below.

The basic legal form of the deal, and even some of the proposed text, corresponds with suggestions I made back in May 2014, as supplemented in May 2015 and June 2015. However, the text falls short in some respects of what I suggested there; that’s a substantive issues, so more on that in a later blog post. I’ve integrated the main relevant points from those previous posts into this one, for the reader’s convenience.

One important point before we continue: while the title of the deal refers to the UK only, none of the actual text of the deal applies solely to the UK. So it would apply to all Member States. That means it’s possible, for instance, that a proposal which the UK supports could be stymied by other Member States’ national parliaments (via the Council), using the proposed new ‘red card’. It is possible, however, that the UK would be the only Member State aiming to implement some parts of the proposed deal, in particular the ‘emergency brake’ on benefits; and of course some of the existing opt-outs referred to in the draft deal only apply to the UK and one or two other Member States.

Let’s begin with the easiest parts of the draft deal: the planned EU legislation. We know the legal effect of EU legislation, once it’s adopted: it’s binding and directly applicable (in the case of the two planned Regulations), or binding as to the result to be achieved, leaving national authorities the choice of form and methods (in the case of the planned Directive). (See the definitions of EU legislation set out in Article 288 TFEU). The more difficult question here is the process. Can it be guaranteed that the proposals will: (a) be made; (b) be adopted; (c) not be struck down by the EU Court of Justice (CJEU); and (d) not revoked?

It’s up to the Commission to make proposals. The draft Decision of Member States can’t bind the Commission (more on that below), but the draft deal includes two declarations by the Commission, announcing its intention to make these proposals. For those proposals to be adopted, they must be approved by the Council (by a qualified majority) and the European Parliament (by a majority of the vote, under most variants of the EU legislative process). Again, the draft Decision of Member States can’t bind the Council or the European Parliament. But the Council is made up of Member States’ ministers, and in the draft deal the Member States commit themselves to supporting two of these three proposals (on child benefit and the emergency brake). It’s odd that there’s no parallel commitment as regards the third proposal (on EU citizens’ non-EU family members), but this may be a drafting oversight. The timing of these measures depends on how soon they would be adopted, although the Commission declares that it will table them after a ‘Remain’ vote.

The deal foresees that the law creating an ‘emergency brake’ for EU workers’ in-work benefits would subsequently have to be implemented following a UK request to use it. This would need a proposal from the Commission and a vote by the Council (by qualified majority). There would be no role for the EP at that stage. A draft Commission declaration states that the Commission is willing to make this implementing proposal; there is no commitment from the Member States to support it. Again, this might possibly be a drafting oversight. The timing would follow the adoption of the legislation on this topic: it would likely take at least one month for the UK’s request to be approved. Continue reading “The draft UK/EU renegotiation deal: is it ‘legally binding and irreversible’?”

The EU or the Commonwealth: a dilemma for the UK – or a false choice?

ORIGINAL PUBLISHED ON EU LAW ANALYSIS (29 November 2015)

by Steve Peers

The United Kingdom has its finger in many pies: the EU, NATO, the United Nations Security Council and the Commonwealth, to name just a few. Of these, the Commonwealth – which has just finished its latest summit meeting – obviously has the closest specific link to British culture and history, since it’s mainly comprised of our former colonies. (A few Commonwealth members are not former colonies, and some obscure ex-colonies like the USA chose not to join. For a full list of members, see here).

Like many British citizens, I have friends and relatives in many Commonwealth countries: Canada, India, New Zealand, Australia, Singapore and South Africa. But I also have friends in the rest of the EU, as well as a professional interest in EU law. There’s no incompatibility between the two at a personal level: we can all enjoy poutine as well as paella, or watch Antonio Banderas one day and Hugh Jackman the next. But is the same true of the UK’s trade relationships?

When the UK joined the EU over forty years ago, it sundered special trade links which it had with most of the Commonwealth, and replaced them with trade links with the EU (as it’s called now). One of the arguments sometimes invoked in favour of the UK leaving the EU in the forthcoming referendum on membership is that the UK could reverse this process, reviving its Commonwealth trade.

But a lot has changed in forty years. In my view, what’s true for individuals is also true for the country as a whole: the UK does not have to choose between trade with the Commonwealth and trade with the EU, but can (and increasingly does) have both. This blog post explains why. (I’ll write another post on the issue of the EU’s trade with non-Commonwealth countries in future).

Background

Back in 1973, the UK had to end special trade ties with the Commonwealth because the EU is a customs union, which (according to the definition set out in international law) means that it has common trade rules with the rest of the world. The EU has power to sign certain types of trade deals, instead of its Member States (although in practice those deals are usually subject to Member States’ unanimous consent). But the EU’s powers don’t extend to all types of ‘trade deals’, as that phrase is used by non-specialists. Those powers apply to the imposition of taxes at the border (known as tariffs) or other economic regulation of trade between countries, but not to commercial agreements with other countries to buy British goods. So, for instance, the UK and India were free to conclude £9 billion worth of trade deals of that broader type during the recent visit of the Indian Prime Minister.

It’s sometimes argued that trade deals are irrelevant, because ‘governments don’t trade, businesses do’. While it’s true to say that much trade takes place on the basis of contracts between companies, governments still play a large role – either as purchasers of many goods and services, or as regulators with the power to impose tariffs or regulation which might reduce the volume of trade.

When the UK joined the EU, the EU was mainly only interested in special trade deals with nearby countries (although this included the Commonwealth countries of Cyprus and Malta). Mostly the EU then preferred to trade with third countries on the basis of multilateral rules instead. However, the EU did extend its existing special trade agreement for former sub-Saharan African, Caribbean and Pacific (ACP) colonies of France and Belgium to most of the former colonies of the UK in those parts of the world. But it did not extend any special treatment to richer Commonwealth countries, like Canada and Australia, or Commonwealth states in Asia, like India or Malaysia.

But times have changed. In recent years, the EU has become more interested in negotiating bilateral trade agreements with many countries, and not relying so much on the multilateral trade system established by the World Trade Organisation (WTO). This has transformed the EU’s trade relationship with Commonwealth countries (along with many other states). Some of these treaties don’t have the words ‘free trade agreement’ in their title, but the substance includes free trade rules; and indeed the agreements are notified as free trade agreements to the World Trade Organisation.

EU/Commonwealth trade today

The result of this change in policy is that the EU has agreed free trade agreements (FTAs), or is in the process of negotiating free trade agreements, with the vast majority of Commonwealth states – a full 90% of the 50 Commonwealth countries that are not in the EU. This includes the six Commonwealth states that accounted (in 2011) for 84% of Commonwealth trade – and many more besides.

More precisely, there are already FTAs in force between the EU and 18 of those 50 Commonwealth states (36% of the remaining Commonwealth). The EU has agreed FTAs with 14 of those countries (28%), subject only to completing the ratification process. It is negotiating or about to start negotiating FTAs with 13 states (26%). That leaves only 5 Commonwealth states (10% of the non-EU total) that the EU is not planning FTA talks with. (For full details of the status of EU trade relations with each of the countries concerned, with links to further information, see the annex to this blog post).

Of course, the Commonwealth includes many different types of economy, but the EU has agreed FTAs with two of the wealthiest Commonwealth states (Canada and Singapore), and has recently committed to talks with two more (Australia and New Zealand). It also has deals or is negotiating with most of the larger developing Commonwealth members (India, Nigeria, South Africa and Malaysia).

It’s sometimes suggested that the EU’s trade deals with other countries don’t benefit the UK. But the UK’s exports to Commonwealth countries have beenincreasing at over 10% a year – with increases (over two years) of 33% to India, 31% to South Africa, 30% to Australia and 18% to Canada. In fact, since 2004, Britishexports to India are up 143%. Needless to say, this increase in trade with the Commonwealth (while an EU member) must have created or maintained many British jobs.

Criticisms of the EU’s trade policy

The EU’s trade policy is often criticised on three particular grounds. While there may be some force to these arguments, the issue in the upcoming referendum is whether these problems would actually be solved by the UK leaving the EU.

First of all, it’s often argued that EU trade agreements are not fair for developing countries. In fact, the EU’s negotiation of FTAs with developing Commonwealth countries in the last decade is in part due to WTO rulings that the EU could not just sign one-way trade deals, liberalising only access to EU markets; such treaties have to liberalise trade on both sides (the EU had resisted this). The EU does offer less generous unilateral trade preferences as an alternative to two-way deals (and some Commonwealth states, like Bangladesh, prefer this).

If the UK left the EU, it could decide not to sign trade deals with some of the developing Commonwealth countries that the EU has signed deals with. It could also offer a more generous version of unilateral trade preferences. However, the UK would not be free to sign deals for one-way trade liberalisation, since it would be bound by the same WTO rules on trade agreements that the EU breached when it signed those deals. Moreover, while not replacing the EU’s trade deals would arguably help the poorest countries’ economies, UK exports to those States would logically be lower.

The second argument is that the EU’s trade deals are a problem for the environment and public services, and give industry overly generous intellectual property protection, with the result (for instance) that prices of basic medicines rise due to extended patent protection. But this argument is equally made against many trade deals that the EU is not a party to at all – such as the recent Trans-Pacific Partnership agreement.

So, while (stepping outside the Commonwealth for a moment) the planned EU/US trade agreement, known as TTIP, has attracted critics concerned about its effect upon the UK’s health care (among many other things), those issues would not magically go away if the UK, having left the EU, sought to negotiate its own trade agreement with the USA instead. The controversial parts of the draft deal are surely attractive to the US side as well as the EU side; it’s not as if the EU is in a position to issue non-negotiable demands to desperate, poverty-stricken Americans.

The third argument is that the EU is not sufficiently interested in pursuing trade deals. As the facts discussed above show, it’s quite false to suggest that the EU is not interested in trade deals with Commonwealth countries, or that the UK’s EU membership makes it impossible for British businesses to increase their exports to those countries. But could it be argued that the UK alone would do a better job of negotiating such trade deals, and negotiating them more quickly, after Brexit?

It’s true that it often takes years to negotiate EU trade agreements, and that some negotiations stall or slow down to a snail’s pace (with India, for instance). But this is not unique to the EU. Over twenty years ago, for instance, the Clinton administration developed a plan for a ‘Free Trade Area of the Americas’ – but it has never come to full fruition, and talks eventually fizzled out. There’s no guarantee that the UK alone would be able to reach agreements more quickly than the EU as a whole.

In any event, as noted above, the EU already has agreed trade deals with 64% of Commonwealth countries, and is negotiating with another 26%. Some of the latter negotiations are likely to be completed by the time that Brexit took place – since that would probably happen two years after the referendum date, so likely in 2018 or 2019 (for more discussion of the process of withdrawal from the EU, see here).

So the UK would have to ask perhaps three-quarters of its Commonwealth partners for trade deals to replace those already agreed with the EU. They might agree quickly to extend to the UK a parallel version of their existing arrangement with the EU, since that would not really change the status quo. But they might not be interested in negotiating any further trade liberalisation. If they are interested, they will ask for concessions in return, and this will take time to negotiate.

For the remaining one-quarter or so of states, the UK will have to start negotiations from scratch, in some cases having to catch up with EU negotiations that are already underway. And there is no guarantee that these other states will want to discuss FTAs, or that negotiations would be successful.

Overall then, there’s no certainty that UK exports to the Commonwealth would gain from Brexit. They might even drop, if some Commonwealth countries aren’t interested in replicating the EU’s trade agreements. Alternatively, they might increase – but it’s hard to see how any gain in British exports would be enormous, given the existence of so many FTAs between the EU and Commonwealth countries already, and the uncertainty of those states’ willingness to renegotiate those deals.

Could this very hypothetical increase in exports to the Commonwealth make up for any loss in UK exports to the EU following Brexit? Obviously, this assessment depends on how Brexit would affect UK/EU trade relations. That’s a hugely complex subject, which I will return to another day, but suffice it to say that while I think a UK/EU trade deal after Brexit is likely, it’s far from guaranteed. And it’s hugely unlikely that any such trade deal would retain 100% of the UK’s access to the EU market. There are many reasons to doubt this could happen, but first and foremost: why would the EU send the signal that a Member State could leave the EU but retain all of its trade access? If it did that, the EU would be signing its own death warrant.

The key fact to keep in mind here is that the UK’s trade with the Commonwealth isless than one-quarter of its trade with the EU. So to make up for even a 10% drop in exports to the EU, the UK would have to increase exports to the Commonwealth by more than 40%. How likely is that, when the vast majority of trade between the EU and the Commonwealth would already be covered by FTAs at that point?

Taken as a whole then, it’s clear that the UK can remain a member of the EU andtrade with the Commonwealth – and that this trade will only increase in future as more EU FTAs with Commonwealth states come into force or are negotiated. Leaving the EU, on the other hand, is liable to lead to reduction in trade with the remaining EU without any plausible likelihood that trade with the Commonwealth would increase by anything near the level necessary to compensate.

Annex

Canada: FTA agreed. It must still undergo the formal ratification process.
Australia: FTA negotiations start soon
New Zealand: FTA negotiations start soon
South Africa: FTA in force
India: FTA under negotiation
Singapore: FTA agreed. It must still undergo the formal ratification process.
Malaysia: FTA under negotiation
Pakistan, Bangladesh, Sri Lanka, Maldives: No plans for FTA
12 Caribbean Commonwealth states: FTA in force between EU and 15 countries including Antigua and Barbuda, Bahamas, Barbados, Belize, Dominica, Grenada, Guyana, Jamaica, Saint Vincent and the Grenadines, Saint Lucia, Saint Kitts and Nevis and Trinidad and Tobago
Brunei: No plans for FTA
2 Pacific Commonwealth states: FTA in force with Papua New Guinea and Fiji
7 more Pacific Commonwealth states: FTA under negotiation between EU and 12 more countries including Kiribati, Nauru, Samoa, the Solomon Islands, Tonga, Tuvalu and Vanuatu
3 West African Commonwealth states: FTA agreed with 16 West African countries including Nigeria, Ghana and Sierra Leone. It must still undergo the formal ratification process. (Note that Gambia left the Commonwealth in 2013; but it is also part of this agreement).
Cameroon: FTA in force
4 East African Commonwealth states: FTA agreed with 5 East African countries including Kenya, Tanzania, Uganda and Rwanda. It must still undergo the formal ratification process.
2 Southern and Eastern African Commonwealth states: FTA in force with 4 Southern and Eastern African countries including Mauritius and Seychelles (and also Zimbabwe, a former Commonwealth country).
2 other Southern and Eastern African Commonwealth states: FTA under negotiation with 7 more Southern and Eastern African countries including Malawi and Zambia.
5 Southern African Commonwealth states: FTA agreed with Botswana, Lesotho, Namibia, Swaziland and Mozambique. It must still undergo the formal ratification process. (Update: the Commission proposed the signature and provisional application of this deal in January 2016)