An EU Institutions “Google Maps”? Six years after Lisbon Treaty still the quest for a common compass …

by Emilio DE CAPITANI (*)

As a preliminary disclaimer I have to say that the following observations could not be seen as neutral as I have been an official of the European Parliament for 26 years and it is more than likely that I have been influenced by that experience. That having been said what I will say echoes a direct experience in some crucial moments of the interinstitutional relations since the negotiation of the Single European Act until the entry into force of the Lisbon Treaty. I have to say that the evolution of the role of the European Parliament has not been linear even if its importance was growing Treaty after Treaty but also with some stops, not to say, some regressions, as I am afraid it is happening, quite surprisingly, since the entry into force of the Lisbon Treaty.

However it has been an exciting experience to see how that institution has been able to play a decisive role when the European Community first and the European Union later faced the challenge of establishing an internal market as a supranational area without borders, and, even more when after the fall of the Berlin Wall, the Member States decided, albeit with several reservations to transform progressively the EU in a full-fledged supranational political organization.

It looks like ages ago, when, for instance, under the impulsion of Commissioner Sutherland the Institutions tried in ’87 to define their first common legislative programme.  Moreover it was an extraordinary experience to accompany the European Parliament in its transformation from a consultative body  to a co-legislator  by shaping its internal rules dealing with the legislative activity and the special relation with the Commission (also in the Comitology framework -see OJ L 197, 18.7.1987) or , after Maastricht when the first modus vivendi on codecision procedures was agreed.

The EU Freedom security and Justice area at the core of Member States and EU Institutions relations  

But probably the most interesting experience also from an interinstitutional perspective  has been when, before the entry into force of the Amsterdam treaty I had the chance to lead the secretariat of the Civil liberties Committee (LIBE) which was (and still is) in charge of almost all the freedom security and justice related policies. At that time LIBE was also the Committee in direct relation with the EU Member States notably when they played their role as initiators of EU legislation (which is still the case for judicial cooperation in criminal matters).

From 99 until 2009 (at the entry into force of the Lisbon Treaty) the legislative dialogue between the Member States meeting in the Coreper II, the various Council Presidencies  and LIBE was intense and fruitful notably in the domains already covered by the codecision procedure such as borders, migration and asylum as well as domains giving specific expression (to use a CJEU definition) to fundamental rights such as anti-discrimination measures, transparency and data protection.

To prove the seriousness of the relation between the EP and the Council reference can be made to the fact that it was LIBE who started in 2001 the practice of the so called “first reading agreements” in legislative procedures. It is more than unfortunate that since then this practice of informal trilogues has been progressively developed following the Council internal practice of closed doors by transforming legislative negotiations which should by definition be transparent it in a sort of Bermude’s triangle. I can only hope that the Court of Justice will draw to an end this practice which threatens the implementation of the democratic principle in the EU as well as the right to access foreseen by the Treaties and the European Charter.

Before entry into force of the Lisbon Treaty LIBE committee was also consulted on legislation dealing with judicial and police cooperation in criminal matters and it as more than clear that the Council wanted to maintain a full control and responsibility of these domain so that the only possibility for LIBE to influence the content of the EU legislation in third pillar was by indirect means through it codecision powers on community legislation which was complementary to third pillar measure (see the case of EU legislation on irregular migration,..). When this was not possible and the EP was convinced that the Council or Commission measure was infringing the Treaty or threatening its constitutional prerogatives the European Parliament also brought to the Court the Council and/or the Commission.

In this perspective of reaching an objective by indirect means a pivotal role was played by the legislation on protection of personal data where the European Parliament was co-legislator since the entry into force of the Maastricht Treaty. As, according to the Treaties (and now the Charter) protection of personal data requires an assessment of the necessity and proportionality of a measure taken also in the security domain the LIBE committee took this occasion to assess also the content and the proportionality of EU security related policies such as the infamous PNR agreement with the US. We all know that the EU will also have soon its own “EU-PNR” which have now been agreed with the EP as co-legislator also in the judicial and police cooperation in criminal matters. Someone will think that this 13 years long saga is now drawing to an end. I am not sure. I will advise him to wait at least the incoming CJEU Opinion on the EU-Canada PNR agreement and maybe the first judicial cases on the new EU rules ..

With the entry into force of the Lisbon Treaty and of the Charter of fundamental rights the EP did no more need to use transversal tactics to reach the objectives he was searching before. Judicial and police cooperation was finally ordinary competence to be dealt with qualified majority and fall in the co-decision procedure. Moreover the Charter emphasis on the rights of the individual in all the EU policies and notably in  the freedom security and justice area was paving the way to what LIBE was asking for since its creation in 1992.

After Lisbon still need of a legal “Google Maps” ?

What is paradoxical is what happened at interinstitutional level after the entry into force of  that Treaty and of the Charter. The EU institutions have not all moved at the same pace towards the new constitutional legal framework order and this is a source of growing misunderstanding between them and ultimately of confusing messages for the EU citizens (what can explain why many of them are turning their back to the EU construction) .

If there was a Legal “Google Maps” I  would say that now the only institution which is strongly rooted in Lisbon is, no surprise, the CJEU (even if sometime it is also taken by the nostalgia of the previous world..).

Let me quote some statements in the CJEU in Opinion 2/13 where it is written that : the founding treaties of the EU, unlike ordinary international treaties, established a new legal order, possessing its own institutions, for the benefit of which the Member States thereof have limited their sovereign rights, in ever wider fields, and the subjects of which comprise not only those States but also their nationals… …These essential characteristics of EU law have given rise to a structured network of principles, rules and mutually interdependent legal relations linking the EU and its Member States, and its Member States with each other, which are now engaged, as is recalled in the second paragraph of Article 1 TEU, in a ‘process of creating an ever closer union among the peoples of Europe’…

This legal structure is based on the fundamental premise that each Member State shares with all the other Member States, and recognises that they share with it, a set of common values on which the EU is founded, as stated in Article 2 TEU. That premise implies and justifies the existence of mutual trust between the Member States that those values will be recognised and, therefore, that the law of the EU that implements them will be respected. Also at the heart of that legal structure are the fundamental rights recognised by the Charter (which, under Article 6(1) TEU, has the same legal value as the Treaties), respect for those rights being a condition of the lawfulness of EU acts, so that measures incompatible with those rights are not acceptable in the EU

The autonomy enjoyed by EU law in relation to the laws of the Member States and in relation to international law requires that the interpretation of those fundamental rights be ensured within the framework of the structure and objectives of the EU… As regards the structure of the EU, it must be emphasised that not only are the institutions, bodies, offices and agencies of the EU required to respect the Charter but so too are the Member States when they are implementing EU law.

The pursuit of the EU’s objectives, as set out in Article 3 TEU, is entrusted to a series of fundamental provisions, such as those providing for the free movement of goods, services, capital and persons, citizenship of the Union, the area of freedom, security and justice, and competition policy. Those provisions, which are part of the framework of a system that is specific to the EU, are structured in such a way as to contribute — each within its specific field and with its own particular characteristics — to the implementation of the process of integration that is the raison d’être of the EU itself. Similarly, the Member States are obliged, by reason, inter alia, of the principle of sincere cooperation set out in the first subparagraph of Article 4(3) TEU, to ensure, in their respective territories, the application of and respect for EU law. In addition, pursuant to the second subparagraph of Article 4(3) TEU, the Member States are to take any appropriate measure, general or particular, to ensure fulfilment of the obligations arising out of the Treaties or resulting from the acts of the institutions of the EU “

Are these ambitious concepts also shared by Member States or the Council or in our Google Maps is still trapped in the Maastricht interpillars games (with some Member States even dreaming to go back in the pre-Schengen era)?  The experience of the last six years and of notably of the last year on the Migration Border and Asylum Crisis shows that several Member States are going backward to the old good time  and do not change the former legal situation notably in police and judicial cooperation in criminal matters.

The fact that even today

  • there is no real Internal Security Strategy adopted with the support of the European Parliament and in full knowledge of national Parliament (and this notwithstanding the art. 70 and 71 of the Treaty on functioning of the European Union requires a close parliamentary oversight of these policies);
  • that the “threats” EU impacting on the EU citizens are defined, measured and assessed only at bureaucratic level at national and european level within EU Agencies (such as EUROPOL, FRONTEX and EUROJUST ) whose oversight is almost virtual
  • that sharing security related information between EU MS is still mostly on voluntary basis
  • that the so called “policy cycle” bringing together (on a voluntary basis) the MS administrations is still managed without a credible connection with judicial authorities at EU and national level.

All this shows that notwithstanding 40 years of engagement (since Trevi in 1975) Member States are still far from sharing their experience and implement the principle of solidarity in the old latin meaning where faced to a common problem everyone is responsible “in solidum” with all the others.

As an EU citizen I am appalled to see that even after more than one year of successive terrorists attacks the EU has not yet decided:

  • to build an EU Anti-terrorism Enquiry Commission (as the US did decided immediately after 9/11)
  • to strengthen the powers of EUROJUST in terrorist domain (as required also by the 2005 decision) in preparation of a future EPPO competence as already foreseen by the Treaties. Let’s hope that the European Parliament unblock the Commission proposal and that the Ministers of interior will not wait for other terrorists attacks before launching a credible “lisbonised” Eurojust (if needed even in a form of enhanced cooperation) .

What is worrying is that instead of strengthening the operational cooperation on specific and measurable targets,  the measures adopted (or under negotiations) at EU level increase the impact on individual’s rights.

Under this perspective it is doubtful that the Council has followed its own internal guidelines according to which (quote) : The recent case law of the European Court of Justice[1] confirms that the Court will not satisfy itself with anything less than a strict assessment of the proportionality and necessity of measures that constitute serious restrictions to fundamental rights, however legitimate the objectives pursued by the EU legislature. It also indicates that such measures do not stand a serious chance of passing the legality test unless they are accompanied by adequate safeguards in order to ensure that any serious restriction of fundamental rights is circumscribed to what is strictly necessary and is decided in the framework of guarantees forming part of Union legislation instead of being left to the legislation of Member States.  (emphasis added)

And where may you find the European Parliament in a virtual Google Maps ?

I think that you can find it  somewhere between Amsterdam and Lisbon as it looks more and more afraid to take position in domains which are clearly still unfamiliar to him and on which relevant background informations are not shared by the Commission or by the Member States (not to speak of the EU agencies and of the so called COSI). I don’t see other explanation to the fact that more and more frequently the EP start working on the most sensitive issues only after the Member States have agreed on something. So, one sensible way to help the EP in playing its co-legislative role would be to share with a credible picture of what is happening on the ground in the different Member States. It is quite promising that when this happens (as now in the framework of the new Shengen evaluation mecahnism)  the EP and the national parliaments feel much more confident than before. But when the same will happen in the framework of the mutual evaluation of  judicial and police cooperation in criminal matters as it is required by the art. 70 of the TFEU ? In the absence of this regular exchange of information how can be improved the mutual recognition of national measures?

This is today a rhetorical question because the Member States with the support of the Commission, which, as we all know, is the “guardian of the Treaties have just decided that the mutual evaluation should remain on a voluntary basis as framed in a Joint Action dating back to the Maastricht era.

Will the EP accept to be continuously be side-lined? I am afraid it will and this not for a legal or institutional reasons but for the very trivial reason that its current political majority is in a way or another mirrored in the main Member States governments so that it may feel uneasy in dealing with issues which can place these Governments in a wrong perspective. As a citizen I can’t but blame this situation because I consider that a weak Parliament could not protect my rights and fullfill the objectives outlined in the EU Charter. Any way what the European and national parliaments don’t dare to do is more and more done by national judges (see the NS and ARANYOSI Jurisprudence as well as the recent ruling of the BVG on the European Arrest Warrant).

Again as Citizen I would prefer to be protected by a clearly defined law and not depend from the appreciation of a judge but this is apparently more and more what we have expect from the EU legislation as the envisaged Directive on terrorism I have cited above.

And the Commission ? In a virtual Google maps the Commission is in a sort of Neverland still trying to re-build its pre-Santer role by trying to become at the same time the Guardian  of the Treaty as well as the true Government of the EU. Has this strategy any chance to succeed ? Could the President of the Commission pretend to have also a support of the EU citizens in alternative to the EP itself because of the Spitzencandidat invented in the very last days before the EU elections ? I am not sure even if are now countless the family’s photo bringing together the Presidents of the EP, of the European Council and of the Commission.

What I notice instead is that executive functions also in the Freedom Security Justice Area are more and more transferred to European Agencies where the Member States come back on the driving seat by becoming some pre-federal entities (which are deemed to be INDEPENDENT both from the Commission and of the Parliament which can play a light oversight). This “agencification” trend notably in the freedom security and justice area can now be further developed thanks to the ESMA ruling and will probably progressively change the institutional balance.

The case of Frontex is to my understanding a proof of this. It is unfortunate that until now the Member States have not found the same courage for the EPPO notwhistanding the explicit provisions in  the Treaty. In this perspective the Better Law Making agreement by which the Commission is trying to harness the legislative policy cycle looks more like a tail which pretend to move a dog ….  But even when the Commission has to play its role faces some difficulties . Look at the draft Directive on terrorism which has been presented without a credible impact evaluation of the existing legislation nor of the new rules. Guess how could had been the text if it was not proposed by the same Vice President of the Commission in charge of the Better Law making and of the implementation of the EU Charter..

I can’t end my short intervention without making reference to a new “Quasi-EU” Institution more and more proactive within the freedom security and justice area. We can call it the “Head of State and of Governement Group” which has recently agreed with Turkey a so-called Deal. The EP and also some scholars have raised questions about the legal nature of such a deal. The provisional answers given until now even the President of the European Council is that it is binding but it is not a formal EU agreement. This remind me the famous Magritte painting showing a pipe but stating “this is not a pipe”. Following the same logic the next question is;

“Is this still an European Union or are we already looking at in the new season of Games of Thrones ?

(*) NOTA BENE : this is a transcripition of an intervention at the ECLAN Seminar on : The Needed Balances of EU Criminal Law: Past, Present and Future  (Brussels 25-26 April 2016)

NOTES

[1]             See Judgment of 8 April 2014, Cases C‑293/12 and C‑594/12,  Digital Rights Ireland (information note by the Council Legal Service in doc. 9009/14)

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