What next after the UK vote to leave the EU?

ORIGINAL PUBLISHED ON EU LAW ANALYSIS

Professor Steve Peers

Many of the consequences of the UK’s vote to leave the EU will not be clear for some time. However, here’s my initial take on some of the key issues, in their broader political context.

1 Is the referendum vote binding?

Legally, no. But it is politically unthinkable that it will be ignored, in particular by MPs whose constituency voted to leave.

2 Could the UK simply renegotiate its EU membership again, and then hold a referendum on those results, rather than actually Leave the EU?

This is technically possible, and some on the Leave side hinted at this as a possibility. However, a lot of Leave voters might resent this idea, as they probably thought that they were actually voting to leave the EU – although they would of course have the chance to confirm that position in the second referendum. This option would also require the remaining EU to be willing to offer such a re-renegotiation, and it might also be difficult to put into effect, since it would probably need a Treaty amendment (limiting the free movement of people, for instance) ratified by all Member States.

3 What is the process to leave the EU?

The official process is set out in Article 50 of the Treaty of European Union. I’ve blogged about that in detail here, and there’s a shorter version of my analysis here. It would also be possible to leave the EU by amending the Treaties, although it is hard to see why that would be an attractive option to the UK, since it would require long ratification periods and unanimous voting on the EU side.

Some on the Leave side have hinted that they think there is some alternative mystery process to leave, although they have not defined why they think this or what that would entail. The likelihood is therefore that Article 50 will be used. Any alternative approach would likely face a successful legal challenge.

4 What does Article 50 say?

The UK notifies a withdrawal decision to the EU. That triggers a two-year period at the end of which the UK is no longer an EU member. That time can be shorter (if an EU/UK withdrawal treaty provides for this). It could also be longer if all Member States and the UK agree.

It is up to the UK when exactly to notify the withdrawal decision. It could delay making the notification, although a very long delay could possibly increase economic uncertainty and fuel distrust by Leave voters.

The negotiation concerns a withdrawal agreement. It is not clear if this is a technical agreement limited to the fiddly details of the UK leaving, or whether it would also govern the EU-UK future relationship. The point is relevant since otherwise the EU-UK relationship would have to be negotiated separately, and different rules would apply. While the withdrawal agreement is subject to majority voting among the remaining EU Member States, it is more likely that a separate deal would be subject to unanimous voting and national ratification.

It is also not clear if a notification to leave the EU can be withdrawn after it is made. That would be relevant if the plan were to negotiate the future UK/EU relationship, then ask the public in another referendum whether they wanted to leave on those terms or not.

5 Can the UK amend laws relating to EU membership already? Continue reading “What next after the UK vote to leave the EU?”

EU Referendum Briefing 6: A Bonfire of Rights? EU Employment and Equality Law after Brexit

ORIGINAL PUBLISHED ON EU LAW ANALYSIS

by  Steve Peers

It’s been suggested that there would be a ‘bonfire of rights’ if the UK left the EU – in particular rights relating to employment and equality. As a response, some have suggested that the EU has nothing to do with employment and equality law in the UK – that all such rights are actually home-grown.

As I will demonstrate in detail in this blog post, it is undeniably the case that EU law has significantly raised the level of employment and equality rights in the UK – particularly as regards equality for women in the workplace.

My study of all the cases reaching the EU court concerning UK law on these issues shows that 60% of all the EU court cases about equal treatment of women in Britain resulted in a finding that UK law breached EU law – therefore raising the standards of protection for women in the workplace. 62% of the other cases on workers’ rights led to the same result.

As for what would happen in the event of Brexit, we cannot be absolutely certain – but a large number of the most prominent supporters of Brexit have admitted in detail their intention to lower those standards.

I’ll first summarise the main points, and then set out the facts in detail.

Summary

The EU has not set uniform standards on every aspect of employment and workplace equality law – and it never will.  Its role, according to the Treaties, is to set minimum standards in certain areas of employment and equality law. So where the EU hasn’t acted at all – such as on zero hours contracts, trade union laws or minimum wages – Member States can do as they like. The blame (or credit) for the choices which the UK makes on those issues must go entirely to this country’s government.

On the other hand, where the EU has acted – such as on holiday pay and equality in the workplace – Member States can set higher standards, but not lower ones. The EU rules in effect set a floor below which Member States can’t go; but there is no corresponding ceiling.

It’s been argued during the referendum that because the UK has sometimes adopted laws on certain employment or equality issues before the EU did, the EU therefore added nothing. This argument profoundly misunderstands the law in this area. Just because the UK put the Equal Pay Act on the statute books before it was covered by EU laws on equal pay for men and women doesn’t mean that those EU laws had no added value. That’s because British laws in this area have often contained many exclusions or exceptions, and EU law has often removed them.

In this blog post, I prove that point by looking at every single ruling of the EU court concerning UK law on employment or equality issues. As I noted in the introduction in 60% of cases, regarding women’s equality at work, and 62% of other workers’ rights cases, UK law fell below EU standards.

In practical terms, this increased protection regarding (among other things): equal pay for work of equal value for women; protection at work during pregnancy and maternity leave; better protection of pensions when an employer goes broke; and extension of paid holidays to include more workers.

However, a significant number of the relevant laws have been targeted for removal by serious supporters of Brexit.

In conclusion, European Union law has significantly increased the level of protection in a number of areas of employment and equality law. Leaving the EU would not automatically mean that those protections are lost, but they would no longer be guaranteed – and many of the most senior figures supporting Brexit have expressed their intention to remove some of them.

Detailed analysis

The following analysis looks at (a) the main features of EU involvement in employment and equality law; and (b) the prospect of the rules stemming from EU law being repealed after Brexit.

Mainly the EU’s impact in this area has been in the form of laws that set minimum standards on some workers’ rights issues, and on discrimination against workers on some grounds. EU law also bans discrimination outside the workplace on grounds of sex or race. In a lot of these areas, the UK had its own laws beforehand. For instance, the Race Relations Act dates back to 1965. However, there have been some areas where UK law changed because of a new EU law which the UK implemented, or because of a ruling of the EU courts, or the UK courts interpreting EU law. A complete list and summary of all the relevant EU court cases is set out in the Annex. Some of the key cases are discussed further in the main part.

While some argue that the rights concerned anyway derive from Conventions (international treaties) agreed within the framework of the International Labour Organisation (ILO), ILO treaties are not enforceable in British law. The very fact that the EU court has ruled on UK breaches of EU employment and equality law proves that the existence of ILO treaties does not by itself guarantee employment or equality law protection in individual cases.

Employment law

The EU does not deal with every employment law issue. In fact, it can’t. The EU treaties rule out any EU laws on pay or trade union rights. So there are no EU laws on those issues, although in some cases the EU has an indirect impact on these topics.  There are also some areas where the EU could act if all Member States agreed, such as rights on the termination of employment. But it is hard to reach unanimous agreement on employment law issues, and so there are few laws in these areas either.

What topics does EU law address? First and foremost, there are a number of EU laws on health and safety. The most prominent of these is the law on working time, which guarantees a minimum amount of four weeks’ paid holiday. Although the UK had a law in force on this issue before the EU law, it did not guarantee paid holidays for all workers. The EU court case law has specified in particular that the UK has to ensure paid holidays for fixed-term workers (BECTU), and to include allowances (Williams) and commissions (Lock) in holiday pay.

Next, there are EU laws on major changes to workers’ employment contracts. In particular, there are EU laws on three issues: rights in the case of mass redundancies; rights when an employment contract is affected by the transfer of the employer; and rights when a business goes broke.

The mass redundancies law doesn’t ban or limit the grounds for redundancies, or provide for rules on redundancy payments – so the UK and other EU countries can regulate those issues however they want to. First and foremost, this law it sets out a waiting period before large numbers of redundancies can be made, once the employer has decided in principle to make a lot of its workers redundant. The employer must give a detailed explanation of its plans to the workers who are set to lose their jobs. During the waiting period, the workers’ representatives and the employer must hold discussions with a view to helping as many affected workers as possible, for instance by saving jobs or retraining. If the employer fails to do this then there must be some form of sanction.

The EU court has ruled that the UK had not applied this law properly when it said that employers only had to consult the workforce when there was a trade union recognised by the employer. This was a breach of the EU law because that law required workers to be consulted about mass redundancies whether there was a trade union representing the workforce or not, and whether the trade union was recognised by the employer or not. Also the UK had not provided enough of a sanction for employers who breached the law. While employers were in principle subject to a fine for breaking the law, they could deduct it from the redundancy payments which they had to pay to workers anyway.

If a business goes broke, EU legislation provides that a minimum amount of workers’ back pay which may be owing at the time of insolvency has to be guaranteed. This law also requires a basic protection of occupational pensions where businesses go broke. The key EU court case of Robins said that the UK was not doing enough to protect pensions in such cases. British law was changed as a result.

Another issue addressed by EU law is so-called ‘atypical work’. This refers to work which is different from the traditional full-time open-ended contract with one employer. In particular, there are different EU laws for three types of atypical work: part-time work, fixed-term work and agency workers. There are no EU laws on ‘zero-hour’ contracts or internships, however.

Basically these EU laws say that the atypical workers who are covered by them should be treated equally with regular employees as regards their pay and conditions. Also, employers should make it easier for part-time workers or agency workers to join the regular workforce, and for full-time workers to switch to part-time work if they wish.  For fixed-term workers, there must be limits on the number of times a contract can be renewed over and over, to protect against exploitation.

Finally, another issue addressed by EU laws is worker consultation and information. There is both a general law on worker consultation and information in large companies, and a specific set of rules of ‘European works councils’, which applies to multinational companies with over 1000 employees across the EU. These laws allow the employers and the workforce to reach alternative arrangements if they wish. There are no EU rules requiring small businesses to inform and consult their workers, except in the special case where the employee contracts are transferred.

Discrimination law

There are EU laws banning discrimination on six grounds: sex, race, age, disability, religion and sexual orientation. The laws on sex and race discrimination go beyond employment, and also ban sex or race discrimination in access to goods or services, like insurance. However, the laws on the other four grounds only extend to discrimination in employment.

These laws ban direct discrimination, ie discrimination purely based on someone’s age, race, sex, etc. However, they also ban indirect discrimination: unequal treatment for another reason, but which mostly affects people of a particular age, sex, etc. For instance, unequal treatment of part-time workers will affect both male and female workers, since there are some men working part-time. But it mostly affects women, since they make up the majority of part-time workers. So it would be an example of indirect sex discrimination, although since the adoption of an EU law devoted to the issue of part-time workers (see above in this chapter), the sex discrimination angle is no longer as relevant.

How do these laws affect the UK? As noted above, the UK usually had laws on these issues before the EU did. However, the EU laws have had an impact on some of the details that are important to large numbers of individual cases.

Looking at the case law of the EU court, there have been important rulings which improved UK standards in particular on:

  • equal pay for work of equal value;
  • prohibiting the dismissal of women earlier than men due to retirement age difference;
  • effective remedies (removing the cap on damages for sex discrimination);
  • dismissal due to pregnancy;
  • equal treatment after returning from maternity leave; and
  • dismissal of transsexuals.

Effect of Brexit

Leaving the EU has no automatic effect on employment law. But a number of Brexit supporters, including cabinet ministers like the employment minister, havespecifically stated that they want to use the opportunity that Brexit would create in order to remove protections guaranteed by EU law.

In particular, in their own words, they aspire to scrap the laws on:  collective redundancies; atypical workers; working time (including paid holidays); driving time limits for the self-employed; rights for pregnant workers and women on maternity leave;  and worker consultation rights.

For his part, Nigel Farage has argued that women who have children are ‘worth less’ to an employer.

It should be noted that changes like these would not even have to go through as an Act of Parliament – Vote Leave supporters plan to fast-track the abolition of EU laws after Brexit.

Conclusion

As we have seen, EU law has had a demonstrable impact on UK employment and discrimination law. It is not the source of all UK law but it definitely provides protection which would not otherwise exist in certain areas, such as holiday pay and equality for women in the workplace. It is highly likely, based on the expressed intentions of senior supporters of Brexit, that there would be a ‘bonfire’ of some of these rights after Brexit.

Further reading:

Analyses of EU effect on UK employment law by:

 

Annex

EU court cases: UK employment and equality law

The following is a list of all EU court cases involving UK employment and equality law. I have grouped them by topic and indicated for each case what the subject matter was, and whether the UK law was in breach of EU law or not in each case.

Equality at work – 32 breach, 23 no breach: breach of EU law in 55% of cases
(Sex equality: 32 breach, 21 no breach: breach in 60% of cases)
Burton – no breach – sex discrimination – voluntary redundancy
Garland – breach – art 119 – after-work benefit
Jenkins – breach – art 119 – part-time work
Worringham – breach – art 119 – pension contributions
McCarthys – breach – art 119 – previous employee
Commission v UK – C-165/82 breach – sex discrimination – private household, small business
Commission v UK – C-61/81 breach – art 119 – job classification
Johnston – breach – sex discrimination – women on police force
Marshall – breach – sex discrimination – dismissal at retirement age
Roberts – no breach – pension age sex discrimination
Newstead – no breach – pension contributions
Drake – breach – social security directive
Clark – breach – social security directive
Barber – breach – art 119 and occupational pensions
Foster – breach – sex discrimination – dismissal at retirement age
Johnson – no breach – social security directive
Jackson and Cresswell – no breach – income support and sex discrimination
Ex parte EOC – no breach – social security contributions
Smithson – no breach – social security and housing benefit
Neath – no breach – actuarial benefits and occupational pensions
Thomas – breach – social security and invalidity pension
Marshall II – breach – limits on compensation for sex discrimination
Coloroll – breach – occupational pensions
Enderby – breach – Art 119
Birds Eye – no breach – occupational pensions
Bramhill – no breach – social security
Johnson – no breach – social security
Smith v Avdel – breach – occupational pensions
Webb – pregnancy dismissal – breach
Gillespie – art 119 and maternity leave – no breach
Graham – social security – no breach
P v Cornwall CC – transsexual dismissal – breach
Richardson – social security – breach – prescription charges
Atkins – social security – bus concessions – no breach
Meyers – sex discrimination and family credit – breach
Sutton – social security and interest – no breach
Magorrian – art 119 – breach – time limits
Levez – sex discrimination – breach – remedies
Grant – sex discrimination – no breach re sexual orientation
Boyle – pregnancy – breach in part
Brown v Rentokil – pregnancy dismissal – breach
Sirdar – women in military – sex discrimination – no breach
Coote – sex discrimination – breach – remedies
Seymour-Smith – sex discrimination – no breach
Preston – sex discrimination – breach
Hepple – social security – no breach
Taylor – social security – breach – winter fuel
KB – transexuals and pensions – breach
Allonby – equal pay – (mostly) no breach
Alabaster – maternity leave and pay rise – breach
Cadman – art 119 – no breach
Richards – transsexual and pension – breach
Coleman – disability discrimination – breach
Age Concern – age discrimination – no breach
CD – surrogate mothers and maternity leave – no breach
 

Employment law: 13 higher standards, 7 no breach, 1 lower standard: 62% higher standard
Comm v UK – breach – collective redundancies
Comm v UK – breach – TUPE
Everson – insolvency – breach
Allen – TUPE – breach
BECTU – working time and fixed-term work – breach
Bowden – working time and transport work – no breach
Martin – TUPE and early pensions – breach
Celtec – TUPE and transfer date – breach
Robinson-Steele – working time and ‘rolled-up’ holiday pay – breach
Comm v UK – working time – breach
Comm v UK – health and safety – employer liability – no breach
Robins – insolvency and pensions – breach
Stringer – working time and sick leave – partial breach
Williams – working time and allowances  – breach
Nolan – collective redundancies and US airbase – no breach
Alemo-Herron – TUPE – breach (but case in favour of employer)
Lock – working time and commissions – breach
Lyttle – collective redundancies – no breach
USDAW and Wilson – collective redundancies and Woolworths – no breach
O’Brien – part-time work – breach
Greenfield – part-time work – no breach
Viking Line – trade unions and freedom of establishment – not included in stats; case left to national court to decide, then settled

EU Referendum Brief 5: How would Brexit impact the UK’s involvement in EU policing and criminal law?

ORIGINAL PUBLISHED ON EU LAW ANALYSIS

by Steve Peers

What impact does EU membership have on policing and criminal law in the UK – and what would be the impact of Brexit? I’ll give the shorter summary version of the answer to those questions first, followed by a longer more detailed version.

Summary

The UK had a veto over EU laws in this area adopted before the Treaty of Lisbon came into force (1 December 2009). Since then, it has had two opt-outs instead: a) it can opt in (or out) of any new EU law in this field adopted after that Treaty; and b) it could go back and opt out of any old EU laws which were adopted before that Treaty. The UK used the latter power to opt out of the majority of pre-Lisbon laws.

There are five main areas of EU criminal law and policing. One area is the definition of crime, where the UK has opted into a small number of EU laws on issues such as child abuse. A second area is criminal procedure, where the UK has opted into some EU laws on suspects’ rights and crime victims’ rights. These are basically domestic areas of law, and there’s no reason to think the UK would change its rules after Brexit.

However, the other three areas concern international cooperation, where it is impossible for any individual country to act alone. Those areas are: a) recognition of criminal decisions (on arrest warrants or gathering evidence, for instance); b) the exchange of police information; and c) EU agencies like Europol, the EU police intelligence agency.

On criminal law mutual recognition, there are other international rules on some of these issues – such as extradition – but they do not go as far as the EU rules. In some cases, there are no alternative international rules on the same issue. The UK could seek to negotiate a treaty with the EU on these issues, but the past precedents show that non-EU countries are able to negotiate only limited participation in these EU laws.

On EU agencies, non-EU countries can participate as associates, but this means a more limited involvement in each agency than they would have as EU Member States.

The UK’s involvement in police information exchange with the EU would also be subject to renegotiation if the UK left the EU. Again, past precedents show that non-EU countries are able to negotiate only limited participation in these EU laws. And if the UK did not continue to sign up to EU data protection laws fully, there would be difficult legal disputes that could limit the transfer of policing data to the UK’s law enforcement authorities from the EU.

It cannot be seriously argued that the UK has ‘lost control’ over its law enforcement and intelligence agency operations to the EU, given the UK’s opt-out, the focus of EU law on cross-border issues, and the lack of any EU law on intelligence issues.

Overall, a Brexit is very likely to lead to a significant reduction on cooperation in criminal and policing matters between the UK and the EU.

The details

First and foremost, while the EU has adopted a number of laws in this area, the UK only participates in some of those laws, and has an opt-out over future laws in this area too. This blog post will in turn: (a) describe the basics of EU law in this area, including the UK opt-out; (b) summarise the main EU laws in which the UK does (or does not) participate in; and (c) indicate what could happen in the event of ‘Brexit’. For a full academic treatment of these issues, see the fourth edition of my EU Justice and Home Affairs Law book (volume 2).

(a) The basics of EU policing and criminal law 

Before the entry into force of the Treaty of Lisbon (on 1 December 2009) police and criminal law matters were subject to a different legal framework from ordinary EU (or European Community) law. The powers of the EU institutions (Commission, European Parliament, EU Court) were more limited, and each Member State, including the UK, had a veto over all laws.

The Treaty of Lisbon repealed these special rules, bringing EU criminal and policing law into the general framework of EU law. From this point on, the usual rules of EU law have applied to this field, with a few exceptions. However, the key point for the UK is that in place of a veto, it got not just one but twoopt outs from EU law in this field.

First, the UK can opt out of (or into) any individual EU laws on criminal law or policing proposed after the entry into force of the Treaty of Lisbon.

Secondly, the UK got the power to opt out of EU criminal laws which it had already agreed to before the entry into force of the Treaty of Lisbon. It could invoke this power as of 1 December 2014. The UK government used this to opt out of all but 35 of the EU criminal laws adopted before the Treaty of Lisbon. (See the discussion of that process here).

(b) Which EU criminal and policing laws does the UK apply?

EU criminal and policing law touches on five main issues:

(a)    substantive criminal law (ie the definition of crimes);
(b)   mutual recognition in criminal matters (ie applying another EU Member States’ criminal law decision, where there is a cross-border issue like gathering evidence in another EU country, or asking another country to hand over a fugitive to face a trial or serve a sentence);
(c)    harmonisation of criminal procedure;
(d)   exchange of police information; and
(e)   EU agencies.

The effect of the two sets of opt-outs is that the UK has been highly selective about the EU law in this area which it wishes to apply. Taking the five areas of law in turn, first of all the UK has opted out of almost all EU substantive criminal law. It is covered by the EU Directives adopted since the Lisbon Treaty defining offences relating to trafficking in personssexual abuse of children and attacks on information systems (a form of cyber-crime), but not by EU laws defining offences relating to terrorism, organised crime, fraud, drugs, market abuse by bankers, racism, or currency counterfeiting.

Secondly, the UK is far more engaged in mutual recognition in criminal matters, in particular the flagship law on the European Arrest Warrant (EAW), which is a fast-track extradition system. The UK has also signed up to EU laws on:

(a)    mutual recognition of investigation orders (gathering physical evidence, or interviewing witnesses, in another EU country);
(b)   victim protection orders (where the victim of domestic violence moves to another EU country and wants a restraining order against her abuser to be transferred to that country when she moves there);
(c)    pre-trial supervision (so a criminal suspect can be released on bail to await trial on less serious offences back in Britain, rather than spend a long time in pre-trial detention in a foreign prison);
(d)   confiscation of assets and freezing orders (to ensure that the proceeds of crime held by alleged or convicted criminals in another EU country can be frozen pending trial, and seized if the suspect is convicted);
(e)   the effect of prior sentences or other judgments (so that previous criminal offences committed in another EU country are counted when assessing whether someone is a repeat offender); and
(f)     the transfer of prisoners and criminal sentences (simplifying the movement of foreign prisoners to jails in their EU country of origin, and recognizing fines imposed by a criminal court too – including any penalties imposed against companies for breach of criminal law).

Conversely, the UK has opted out of only one measure in this field, concerning the mutual recognition of probation and parole orders.

Thirdly, as regards the harmonisation of criminal procedure, the UK participates in the EU Directiveon crime victims’ rights. However, the UK has only opted in to two of the six EU laws which set out criminal suspects’ procedural rights. In particular, it has opted into the laws on translation and interpretation, and giving suspectsinformationon their rights; but it has opted out of laws on access to a lawyer,presumption of innocencechild suspects’ rights, and a proposed law on legal aid(not yet agreed).

Fourthly, the UK is particularly keen to participate in the exchange of police information. It participates in every significant measure in the field:

(a)    the Schengen Information System (information on wanted persons and stolen objects, including terrorist suspects under surveillance);
(b)   the Customs Information System (used particularly in drug trafficking cases);
(c)    the ‘Prum’ decisions (which give access to other EU countries’ police databases on fingerprints, licence plates and DNA); and
(d)   the laws on exchange of criminal records.

Finally, as regards EU agencies, the UK participates in Europol(the EU police intelligence agency) and Eurojust (the agency which coordinates work of prosecutors in cross-border cases) at present. However, it has opted out of a new law concerning Europol, and a proposed new EU law concerning Eurojust, which set out (or would set out) revised rules for those agencies following the entry into force of the Treaty of Lisbon, although it might decide to opt in to those Regulations after they are adopted. The UK used to host the European Police College (a training agency), but refusedto continue hosting it and opted out of a new version of the relevant law.

There has been some concern particularly about the prospect of the UK participating in a law to create a European Public Prosecutor. While the EU Commission proposeda law to create a European Public Prosecutor in 2013, the UK has opted out of that proposal. Indeed, the UK would have to hold another referendum before it opted in to that law, according to the European Union Act 2011.

(c) What would the impact of ‘Brexit’ be?

It’s sometimes argued that EU laws on policing and criminal law are irrelevant to the UK’s membership of the EU, because the UK can simply do everything it wishes to do in this field in its domestic law. That’s a valid argument for two of the five areas of law described above: substantive criminal law and harmonisation of procedure. But it doesn’t work for the three other areas – mutual recognition, exchange of information and participation in EU agencies – which necessarily require some cooperation with other states. Put simply, a British Act of Parliament cannot regulate how France or Germany issue extradition requests.

What would happen if the UK left the EU? In each case, as with other areas of EU law and policy, it would depend on what the UK and EU negotiated afterward. But it is possible to give some general indication of the consequences.

In the area of mutual recognition, the UK can fall back on Council of Europe treaties, which address some of the same issues (note that the Council of Europe is a separate body from the EU, which includes non-EU European countries like Turkey and Russia; some of its treaties can be signed also by non-European states like the USA).

However, the relevant treaties do not go into as much detail as the EU laws, and are often less effective.  As an indication of this, see the UK governmentinformationabout the application of EU law in this area. Extradition from the UK has gone from 60 people a year (to all countries) before 2004 to 7000 since 2004 on the basis of the European Arrest Warrant. Over 95% of those sent to other Member States are not British.

Moreover, in some cases the UK and/or some other Member States have not ratified the relevant treaties. For instance, fewer than half of all Member States have ratified the Council of Europe Convention on validity of criminal judgments; the UK has not ratified it either. But the EU law on mutual recognition of criminal penalties sets out rules on one of the key issues in that Council of Europe treaty: the recognition of criminal financial penalties imposed by another Member State’s court. Some issues have not been the subject of Council of Europe treaties at all, such as the pre-trial supervision rules set out in EU law. In these cases, the EU law is the only means of ensuring the cooperation in question.

Another alternative is to negotiate treaties with the EU on these issues.  The EU has been willing in practice to negotiate access to some aspects of its criminal law measures: a form of the EAW for Norway and Iceland, an extradition treaty with theUSA, and mutual assistance (exchange of evidence) with Norway and Iceland, theUSAand Japan. But the extradition treaty with Norway and Iceland took years to negotiate, is still not in force at time of writing, and does not oblige States to extradite their own citizens – meaning that the UK would not be able to ask Germany to extradite Germans, for example. That restriction cannot easily be negotiated away in the event of Brexit, because some EU countries have constitutional problems which prevent them extraditing their own citizens outside the EU. (On these sorts of issues, see E Guild, ed, Constitutional challenges to the European Arrest Warrant).

Overall, there are no such treaties agreed with any non-EU countries on the large majority of EU criminal law mutual recognition measures. Of the treaties which are agreed, not a single one goes as far as the relevant EU legislation in force.

A particular concern of critics of the EU rules on extradition is the ‘sufficient evidence’ (‘prima facie’) test which was traditionally applied by the UK before accepting an extradition request. While it is sometimes argued that the EAW abolished the ‘prima facie’ test as regards EU countries, this is not correct. In fact, the UK waived the right to apply this test to European countries when it signed up to the Council of Europe extradition treaty back in 1990, over a decade before it signed up to the EU’s EAW: see the Extradition Act 1989, section 9(4), which was implemented by the European Convention on Extradition Order 1990 (SI 1990 No. 1507). In other words, the test was not abolished because of EU law, but was already abolished well before the EU had any involvement in extradition law.

Why did the UK abolish the prima facie test? As noted in the 2011 Baker review of UK extradition law, the decision was made because of the difficulties it posed for extradition in practice: a White Paper of 1986 stated that it ‘did not offer a necessary safeguard for the person sought by the requesting State but was a formidable impediment to entirely proper and legitimate extradition requests’. Ultimately the Baker review recommended that there was ‘no good reason to re-introduce the prima facie case requirement’ where it had been abolished, and that ‘No evidence was presented to us to suggest that European arrest warrants are being issued in cases where there is insufficient evidence’.

The prima facie test is sometimes described as an aspect of the ‘presumption of innocence’, although in fact a fugitive who is extradited pursuant to this test still either has to be convicted pursuant to a trial in the requesting State, or has already been convicted but fled the country. In other words, the presumption of innocencestill applieswhen the substantive criminal trial takes place (or took place).

As regards the EU agencies, the UK can enter into agreements to cooperate with Europol and Eurojust, like other non-EU countries. However, as the Director of Europol points out, such agreements don’t allow the UK to have direct access to databases, to lead investigation teams, or to take part in the management of those agencies: both Europol and Eurojust have had British Directors.

Finally, as regards policing, the EU has given some non-EU states access to theSchengen Information System, and to the ‘Prum’ rules on access to each Member State’s national policing databases. But this was linked to those countries fully joining the Schengen system. The UK would obviously not do that after a Brexit.

The EU has also signed treaties on the exchange of passenger name records with non-EU countries (the USACanada and Australia), as well as a treaty on the exchange of financial information (concerning alleged terrorists) with the USA, so might be willing to sign similar treaties with the UK. It has also recently agreed an ‘umbrella’ treaty on general exchange of police information with the USA, although this is not yet in force.

However, the EU has not extended access to its system on exchange of criminal records to any non-EU countries. While there is a Council of Europe treaty on mutual assistance in criminal matters (which the UK and all other Member States are party to) that provides for some exchange of information of such records, it results in far less information exchange. The exchange of criminal records is particularly important for the UK: the government has reportedthat the UK is one of the biggest users of the EU system, and that criminal records checks of foreign nationals in the criminal justice system have increased 1,650% since 2010.

However, there is a particular issue that has complicated the exchange of personal data between the EU and with non-EU countries, particularly as regards policing data. Are their data protection standards sufficient as compared to the standards maintained by the EU? If not, then the European Parliament may be reluctant to approve the deal, or it might be challenged in the EU Court. This isn’t a hypothetical possibility – it has happened several times already.

I have discussed this issue in more detail in a recent blog post for The Conversation, but I will summarise the main points there again.

As regards deals between non-EU countries and the EU itself, the EU Court of Justice has struck down a Commission decision on the transfer of personal data to the USA, because there was insufficient examination of the data protection standards applied by US intelligence agencies as regards access to personal data on social media. A replacement deal is planned, but will also be challenged in court. A further case is pending, where the EU Court has been asked to rule on the legality of the most recent EU/Canada treaty on the exchange of passenger records data, to ascertain if it meets EU standards for data protection.

If the UK left the EU, any UK/EU agreement on the transfer of personal data would have to meet the same requirements. Those requirements cannot simply be negotiated away, since they stem from the EU Charter of Rights – part of the primary law of the EU. The Charter can be amended, but to have legal effect the EU Treaties would also have to be amended to refer to that revised text. It is hard to believe this could happen at the behest of a country which has just left the EU.

Would UK legislation meet the test of being sufficiently similar to EU standards? The Court of Justice has been asked in the pending Davis and Watson case whether the rules on police access to personal data comply with the EU law that binds the UK as a Member State. Another Bill on this issue is pending before the UK Parliament, and would likely become an Act of Parliament before Brexit. Since many privacy campaigners are critical the draft Bill, there would almost certainly be similar legal challenges to transfers of personal data to and from the UK after Brexit, unless the UK agrees to continue fully applying EU data protection law.

(d) Arguments by the referendum campaigns

The official leaflet summarising the position of the two sides in the referendum campaign contains a number of relevant claims from each side. For the Remain side, the pamphlet says that the EAW ‘allows us to deport criminals from the UK and catch those fleeing justice across Europe’, and that EU membership helps to tackle ‘global threats like terrorism’. For the Leave side, the pamphlet says that the EU ‘will continue to control…vital security policies such as counter-terrorism’ and the EU Court ‘will keep taking powers over how our intelligence services fight terrorism’.

Are these claims valid? As for the first Remain claim, as noted above the statistics show that the number of persons extradited to and from the UK have indeed increased since the EAW has been applied – although some extradition would still take place even if the UK did not apply the EAW.

In light of the official UK government information referred to above, other operational cooperation via Europol and other forms of EU police and criminal law cooperation presumably has some impact on combating threats like terrorism and other serious crimes in practice. However, it is not possible to estimate their impact compared to purely national actions and other forms of international  cooperation.

As for the arguments by the Leave side, it is clear from the description of the laws which the UK applies that the EU does not ‘control…vital security policies’. The functioning of the UK law enforcement authorities is up to the UK, and there is no EU regulation of intelligence agencies. EU law impacts only cross-border issues.

As we have seen, the only EU case law to date impacting intelligence agencies concerns non-EUintelligence agencies. The ruling restricts transfers of data gathered by social networks to those non-EU countries in that context, unless those countries apply EU data protection law. If the UK left the EU, it would therefore be subject to the same restrictions on obtaining personal data in criminal cases from the EU. Leaving the EU is therefore more likely to impede UK intelligence agencies’ work, than it is to facilitate it.

Conclusion

The UK’s participation in EU criminal and policing law has led to an increase in cooperation in areas such as extradition and the exchange of police information. In these cases, there are question marks about what would happen after Brexit – mainly political but to some extent legal too. In the event of Brexit, there is a very high likelihood that cooperation between the UK and the remaining EU would be reduced (although not to zero). And in light of the UK’s opt-outs and the limited effect of EU law on purely domestic matters, it cannot seriously be argued that UK law enforcement and intelligence agencies are ‘controlled by’ the EU.

Openness, Transparency and the Right of Access to Documents in the EU

THIS IS AN  “In-depth analysis” FOR THE PETITIONS COMMITTEE OF THE EUROPEAN PARLIAMENT. FULL TEXT ACCESSIBLE HERE 

AUTHORS : Deirdre CURTIN, Päivi LEINO-SANDBERG.

Abstract . Upon request of the PETI Committee, the Policy Department on Citizens’ Rights and Constitutional Affairs commissioned the present analysis, which examines the situation in relation to openness, transparency, access to documents and information in the EU. Case law and developments in the jurisprudence of the CJEU are examined, notably for legislative documents, documents relating to administrative proceedings, to Court proceedings, infringement proceedings and EU Pilot cases, protection of privacy and international relations. Current and future challenges, as well as conclusions and policy recommendations are set out, in order to ensure compliance with the Treaties’ and Charter of Fundamental Rights’ requirements aimed at enhancing citizens’ participation in the EU decision-making process, and consequently stronger accountability and democracy in the EU.

  1. OPENNESS, TRANSPARENCY AND THE RIGHT TO ACCESS DOCUMENTS IN THE EU

The Treaty of Lisbon, in force since December 2009, includes a number of reforms emphasising open-decision making, citizen participation and the role of transparency and good administration in building up the democratic credentials of the European Union (EU).

As regards democratic decision-making and transparency in particular, a specific Title in the Treaty on the European Union (TEU) now includes a number of core provisions on democratic principles, applicable in all areas of Union action.

They underline the principle of representative democracy through the European Parliament, representing the citizens directly at Union level, and through the governments forming the European Council and the Council and that are democratically accountable either to their national parliaments, or to their citizens.1

Even participatory democracy enjoys a pivotal role in the new Treaty framework; in order to guarantee the right of ’every citizen’ to ’participate in the democratic life of the Union’, the Treaty establishes that ’[d]ecisions shall be taken as openly and as closely as possible to the citizen’ and that both citizens and representatives should be given opportunities to ’make known and publicly exchange their views in all areas of Union action’.2

These provisions have a linkage both with the new citizens’ initiative3 and with Article 15 TFEU, which places the legislature under an obligation to act publicly, and establishes that citizens have the right to access documents held by all Union institutions, bodies and agencies.

The right of access to documents, and its nature as a fundamental right, is further emphasised by Article 42 of the EU Charter of Fundamental Rights, which now enjoys ‘the same legal value as the Treaties’.4

In practice, open decision-making is to a large extent realised through the right of the general public to access documents. Regulation No 1049/2001 on public access to documents held by the EU institutions (Access Regulation),5 builds on the principle of ‘widest possible access’, and has together with case law been instrumental in operationalising the right of citizen access by establishing procedures and standards for the exercise of their democratic rights.

All documents held by the European Parliament, Council and Commission are public, as the main principle, but certain public and private interests are protected through specific exceptions under Article 4. But as exceptions derogate from the principle of the widest possible public access to documents, they must, according to established case-law, be interpreted and applied narrowly.6

Article 15(3) TFEU extends the public right of access to documents of all the Union institutions, bodies, offices and agencies. The Court of Justice, the European Central Bank and the European Investment Bank are subject to this provision only when exercising their administrative tasks.

The original 2001 Regulation only directly applies to the European Parliament, the Council, and the Commission. However, its application has been extended to the agencies by virtue of a specific provision in their respective founding acts. Furthermore, a number of institutions and bodies have adopted voluntary acts laying down rules on access to their documents which are identical or similar to Regulation No 1049/2001.

It has been 15 years since the adoption of Regulation No 1049/2001. In the same time frame the Commission and the Council set about adopting internal rules based on their rules of procedure on security and other classifications for documents. Such rules continue to exist in amended form today and exist alongside the legislative rules on access to documents.

Discussions on the reform of Regulation No 1049/2001 have been pending since 2008.7

While one would think that the tendency was – in line with the recent Treaty reforms – to strengthen the rights of citizens further, in fact the opposite seems to be the case, with discussions on reform mainly circulating around new ways to limit citizen access,8 many of them in rather fundamental ways that seem to be at odds with the letter of the Treaties.

These discussions bear witness to what seems to be a change of paradigm and priorities.

The tendency since the Treaty of Maastricht has been to strengthen the rights of citizens,9 now this objective seems lees squarely at the forefront of either the policy agenda or actual institutional practice. Staffan Dahllöf, a journalist specialising in freedom of information, describes the situation as follows: The voices asking for openness and citizen’s involvement are today weaker and fewer than they were when the present rules were decided in 2001 – at least amongst the Member State governments, and definitely in the Commission. It’s more like the Empire strikes back.10

Since there is a complete impasse in the legislative procedure (already for a very long time) on amending the 2001 Regulation, the role of the CJEU is very much centre-stage with litigants attempting to challenge a range of embedded secretive practices across a range of institutions and tasks.11

From a democratic point of view this can be considered problematic as it shifts responsibility from the EU legislator to the courts who cannot re-design the system in the required manner but deal with issues on a case by case basis, as and when they are brought before it. The same applies to the European Ombudsman, although her work is increasingly significant in bringing specific secretive practices to light and tackling them both on a case by case basis and more structurally through a growing number of own initiative enquiries.

Keeping in mind Dahllöf’s accurate observation quoted above, opening negotiations on the reform of Regulation No 1049/2001 naturally brings with it a risk of discussions leading to a further tightening of the EU transparency regime. The current Commission is not necessarily positively disposed to increasing transparency (as evidenced in legal observations before the CJEU in particular), and it has the backup of the majority of Member States in the Council.

Despite this, we think that there should be an open discussion about the possibilities of increasing openness. If this proves to be impossible, the Parliament can always block any reform that could result in negative outcomes or a levelling down.

In this note we discuss recent developments in jurisprudence and the challenges that currently exist in the application of the Regulation No 1049/2001 with a focus on public access by citizens. We conclude with a number of policy recommendations for consideration.

CONTINUE READING...

NOTES (to the section above)

1 Article 10(1) and (2) TEU.
2 Article 10(3) TEU, Article 11 TEU.
3 See Regulation No 211/2011 on the citizens’ initiative, OJ L [2011] 65/1.
4 Article 6(1) TEU.
5 Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents, OJ L 145/43.
6 See e.g. C-280/11 P Council v Access Info Europe para 30 and the case law quoted in the paragraph.
7. See e.g. Ian Harden, ‘The Revision of Regulation 1049/2001 on Public Access to Documents’, 15(2) European Public Law (2009) 239-256.
8 See the open letter by Beatrice Ask, Minister for Justice, Sweden and Anna-Maja Henriksson, Minister of Justice, Finland, published at http://www.wobbing.eu/sites/default/files/Open%20letter.pdf.
9 For one account of the EU’s transparency development so far, see Deirdre Curtin, ’Judging EU Secrecy’, Cahiers de Droit Européen, 2012 (2) 459 – 490.
10 Staffan Dahllöf, ‘Guide to the battle of transparency – UPDATED’, 09/06/2012, available at the EU wobbing website http://www.wobbing.eu/news/guide-battle-transparency-%E2%80%93-updated. On the varying positions of the Member States to the reform process, see M.Z. Hillebrandt, D.M. Curtin and A.J. Meijer, ‘Transparency in the EU Council of Ministers: An Institutional Analysis’, 20(1) European Law Journal, 2014, 1-20.
11 For a discussion, see Päivi Leino, “Transparency, Participation and EU Institutional Practice: An Inquiry into the Limits of the ‘Widest Possible’”, EUI Working Paper (LAW 3/2014).

EU Referendum Briefing 4: Immigration

ORIGINAL PUBLISHED ON EU LAW ANALYSIS

Steve Peers

Introduction

What impact does the UK’s membership of the European Union (EU) have on immigration and asylum? This post examines that controversial issue, looking in turn at migration to the UK by non-EU and EU citizens.

Non-EU migration

It’s central to distinguish between non-EU and EU migration in the referendum debate for two reasons. First of all, because while EU migration is obviously closely connected to the UK’s membership of the EU, non-EU migration is not. That’s simply because the UK has negotiated and used opt outs from EU laws on non-EU migration and asylum, particularly from the EU’s borderless Schengen zone. This means that the UK can control its borders with the rest of the EU as regards non-EU citizens, applying its own law to admit them or to refuse them entry. So it’s false to say that the UK has ‘lost control of its borders’ as far as non-EU migration is concerned.

As I noted in the first EU Referendum Briefing, these opt-outs could only be removed by a Treaty amendment which the UK government and parliament agreed to. Moreover, the Schengen opt-out can only be removed by a public referendum.

Secondly, the distinction is important because non-EU migration actually accounts for agreater share of net migration to the UK than EU migration does, as demonstrated here:

Moreover, for those who would like to see net migration to the UK reduced to the level of (say) 50,000 or below 100,000, it is self-evident from this graph that leaving the EU will not, by itself, accomplish this. Even with no EU migration, non-EU migration alone would still be well above the 100,000 level, as we can clearly see. Conversely, some would like to see more non-EU migrants admitted to the UK. Fine: the UK can admit them any time it likes. It’s entirely the government’s decision not to. But doing so would clearly move the UK further away from a target of 100,000 migrants, even if the UK leaves the EU.

A small minority of non-EU citizens in the UK are covered by EU law. First of all, non-EU family members of EU citizens are covered by EU free movement law. However, the UK’s renegotiation deal (as discussed here) would allow it to restrict their numbers considerably, by tightening the rules on their entry.

Secondly, the UK opted into the ‘first phase’ of EU asylum law, in 2003-05. At that time, though, it had a veto over asylum law proposals, and used it to insist that the EU rules would not change UK law. Although the ‘Leave’ side claims that the EU court ‘controls Britain’s asylum system’, in fact the only British asylum cases which the EU court has decided concern the ‘Dublin’ system of allocating responsibility for asylum applications between EU countries.

This system allows the UK to insist that other Member States take back asylum-seekers who have entered their territory before they got to the UK. If the UK left the EU, it would no longer be subject to these Dublin rules, unless the EU agreed to sign a treaty with the UK to that effect. This is pretty unlikely, since the EU has only signed such treaties with countries like Norway and Switzerland, for the sole reason that those countries also signed up to be part of the Schengen area at the same time.

Let’s think about what all this means in practice. Some non-EU migrants who have travelled through the rest of the EU do attempt illegal entry into the UK, or would probably like to do so (those in Calais and Dunkirk, for instance). But why would that change if the UK left the EU? The people concerned wouldn’t suddenly lose all desire to come to the UK. Their intended illegal entry would not become harder in any way. It would be against the law – but it already is now. Brexit would not actually move the UK further away from the continent geographically. People do attempt illegal entry into non-EU countries, like the USA; and refugees flee to and stay in non-EU countries (like Turkey, Kenya or Lebanon) too.

Some on the Leave side have suggested that the UK is vulnerable to sexual assault from non-EU migrants on the continent. Let’s unpack that. None of the non-EU migrants concerned have the right of entry into the UK. The UK can simply refuse them entry at the border. In contrast, the Orlando killer was a US citizen, who could have come to the UK without a visa, on the basis of the UK’s visa waiver for US citizens.

It’s sometimes suggested that non-EU migrants in the rest of the EU will all gain EU citizenship and come to the UK shortly afterward. But as shown in three separate analyses – by Full Fact, BBC Reality Check, and Open Europe – gaining EU citizenship is very difficult for non-EU citizens. It requires a long wait, a clean criminal record and satisfaction of many other criteria. If non-EU citizens don’t have legal residence status, or their asylum application fails, they can be deported. Nearly 200,000 non-EU citizens are in fact expelledfrom the EU every year.

Finally, let’s apply this analysis to this poster produced by some on the Leave side, unveiled last week:

No one on the poster has any right to enter the UK. All of them can be refused at the border. Brexit would change nothing in this regard – besides making it harder to remove to the EU those who do manage to enter illegally and apply for asylum. The prospect that many of them would gain EU citizenship and move to the UK is remote.

So the poster is essentially unrelated to the referendum. As such, it is not an attempt at rational argument – but rather an appeal to irrational fear.

EU migration

In contrast, as noted already, the migration of EU citizens is indeed relevant to the referendum debate. Much of this debate is about the economic impact of EU migration, including its impact on public services. I’ll leave that side of the debate to the economists. But there are some important legal issues that should be clarified, related to access to benefits and exclusion on grounds of criminality. The key point is that the free movement of EU citizens, while generous compared to ordinary immigration laws, is not unlimited.

What are these limits? First of all, EU citizens have to meet the criteria to stay. The main legislation on the free movement of EU citizens – known as the ‘Citizens’ Directive’ – provides that EU citizens and their family members can move to another member state initially for a period of three months. But it also says explicitly that the EU citizen has no right to any social assistance benefits during this time. Indeed, the UK has removed EU job-seekers’ access to job-seekers’ allowance during the first three months of their stay.

After three months, the Citizens’ Directive says that EU citizens and their family members can stay subject to further conditions: they are either workers or self-employed; or have ‘sufficient resources’ not to burden the social assistance system, along with health insurance; or are students in a post-secondary institution, if they have health insurance and declare that they will not be a burden to the social assistance system. The EU court hasconfirmed that there is no right to stay just to obtain social assistance without ever working in the host country. Recently it also confirmed the UK government’s refusal to pay child benefit or child tax credit to those who did not qualify to stay.

It’s sometimes suggested that ‘500 million people can move to the UK’ under EU free movement law. Yes – if there were 500 million jobs for them to come and do. Or 500 million university places available. Or if all of those 500 million people had a small fortune stashed away. Obviously nothing like those numbers of jobs, university places or self-sufficient people exist.

What about EU migrants who come to the UK and look for work? David Cameron has suggested they can be automatically removed after six months if they don’t find work. This isn’t correct: the Citizens’ Directive says that they can stay if they ‘can provide evidence that they are continuing to seek employment and that they have a genuine chance of being engaged’. But as mentioned already, they are not entitled to any benefits from the UK while looking for work. Also, they must meet the criteria of self-sufficiency, otherwise they would not be entitled to stay after three months anyway.

What if an EU migrant works in the UK for a time, then becomes unemployed? It is possible that they can retain status as a (former) worker, and therefore keep access to social assistance benefits. There are limits to this, however.  In particular, if the EU worker has been employed for less than one year in the UK, he or she would only retain ‘worker’ status for six months after becoming unemployed. At that point the UK can cut off access to their benefits, as the CJEU has confirmed.

Workers are entitled to equal treatment as regards benefits, including top-up benefits paid to those in work, which are a large part of the UK tax and benefit system. However, thedeal on the renegotiation of the UK’s EU membership specifies that if the UK votes to stay in the EU, the current EU rules will be changed so that the UK can apply a four-year ban for workers from other EU member states on in-work benefits.

There renegotiation deal also says that the UK will be able to limit on the child benefit exported to EU workers with children in other member states, fixing the rate of that child benefit to the cost of living in the country of the children’s residence.

After five years’ legal stay on the basis of the Citizens’ Directive, EU citizens and their family members can obtain permanent residence status, meaning that they no longer have restricted access to social benefits.

As for criminality, it is sometimes suggested or inferred that the UK cannot refuse entry or expel EU migrants on criminal law grounds at all. This is clearly false. The Citizens’ Directive allows for expulsion, entry bans or refusal of entry for those who are a threat to ‘public policy, public security or public health’. There are limits, however. Restrictions must be proportionate and ‘based exclusively on the personal conduct of the individual concerned’. People cannot be excluded on general preventive grounds, but on ‘personal conduct’ which ‘must represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society’.

British authorities can check on an individual’s police record after entry, and can also issue an entry ban preventing that person from coming to the UK in the first place. For those who are on the territory, there is greater protection against expulsion over time, but there is never any absolute ban on expulsion.

It has been suggested that the EU court has prevented 50 EU criminals from being removed from the UK. This is false. Any such judgments were made by UK courts or the European Court of Human Rights.

To prove that point, let’s look at a list of all the cases which the EU court decided on EU citizenship in the last five years. There are 53 cases, and only five of them concern expulsion or exit bans of EU citizens due to criminality. Of those five cases, just three concern the UK.

In those five cases, the Court decided that:

  1. a) time spent in prison in the UK  by an EU citizen’s family member did not count toward getting permanent residence under EU law (Onuekwere);
  1. b) an EU citizen convicted of child cruelty could not count prison time toward a ten-year threshold giving extra protection against expulsion (G case);
  1. c) the UK does not have to give an EU citizen information which could compromise national security during an expulsion proceeding (ZZ case);
  1. d) people with a drug trafficking conviction can be banned from leaving the country (Gaydorov); and
  1. e) child abusers can be expelled on grounds of ‘public security’ even if they have been resident for over ten years (I case).

So in every single relevant judgment in the last five years, the EU Court confirmed that Member States could limit the rights of convicted criminals or terrorist suspects.

The ‘Leave’ side has referred to another supposed EU court ruling, about the daughter-in-law of a terrorist in the UK. In fact there is no ruling in that case yet – only the non-bindingopinion of an ‘Advocate-General’. And according to that opinion, the person concerned can indeed be expelled, if a British court believes that she is a risk to public security.

It is also possible to expel EU citizens on grounds that they rely on social assistance.

One final point about the free movement of EU citizens. The Leave side has referred several times to the possibility of Turkey joining the EU. It’s sufficient to point out, as I discussed in a previous Referendum Briefing, that: a) every Member State has a veto on this; Turkey has agreed 1 out of 35 negotiating chapters, in 11 years of talks; and there would also be a lengthy period after Turkish accession before the free movement of persons applied.

Meijers comments on the proposed reforms of Dublin, Eurodac and of the new Asylum Agency

ORIGINAL PUBLISHED ON THE MEIJERS COMMITTEE SITE (*)

Comments on the Dublin recast proposal  (COM (2016) 197)

  1. General observations

The Meijers Committee would like to take this opportunity to comment on the proposed reform of the Dublin Regulation, as set forth in the 6 April 2016 EC communication to the EP and Council (COM (2016) 197) and the 4 May 2016 proposal for a regulation of the EP and Council establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person (recast) (COM (2016) 270). The later proposal will be further referred to here as Dublin III recast.

On page 4 of the 6 April 2016 communication, the Commission succinctly lists the shortcomings of the Dublin regulation: “difficulties in obtaining and agreeing on evidence proving a Member State’s responsibility for examining the asylum application, leading therefore to an increase in the number of rejections of requests to accept the transfer of applicants. Even where Member States accept transfer requests, only about a quarter of such cases result in effective transfers, and, after completion of a transfer, there are frequent cases of secondary movements back to the transferring Member State. The effectiveness of the system is further undermined by the current rules which provide for a shift of responsibility between Member States after a given time. […] A further impediment to the effective functioning of the Dublin system results from the difficulty in transferring applicants to Member States with systemic flaws in critical aspects of their asylum procedure or reception conditions. The effective suspension of Dublin transfers to Greece since 2011 has proved a particularly critical weakness in the system. […] The Common European Asylum System is also characterized by differing treatments of asylum seekers, including in terms of the length of asylum procedures or reception conditions across Member States, a situation which in turn encourages secondary movements.”

The Meijers Committee wishes to add that Dublin’s ineffectiveness not only results from the difficulty of effectuating transfers but also from a general failure to initiate Dublin procedures, because asylum seekers have not been registered upon entering the EU. It is well known, not only that asylum seekers may seek to avoid registration, but that some Member States also disregard their obligation to register asylum seekers – some even on a large scale. It has been estimated, for example, that only half the persons entering Italy and applying for asylum somewhere in the EU were registered in that country1 In 2014, the proportion of physical Dublin transfers to the number of applicants for international protection in the EU was about 4 %, which suggests that Dublin is applied in far fewer cases than all those to which it is in fact applicable.2

To remedy these shortcomings, the Commission proposes two options:

  1. Supplementing the present system with a corrective fairness mechanism, or
  2. A new system for allocating asylum applications in the EU based on a distribution key.

Because the second option would be difficult to envisage in the short or medium term, the Commission has chosen to pursue the first one.

The Meijers Committee would first of all like to point out that none of the shortcomings listed by the Commission will be remedied by the first option, since it is essentially a continuation of the present Dublin system, which is demonstrably a failure. Why continue with a broken system instead of fixing the shortcomings, even though this may not produce significant results in the short term? Additionally, the Meijers Committee points to the fact that the Dublin regulation was only very recently recast (19 July 2013), so this recast has been undertaken within 3 years of the entry into force of the last recast regulation, while that recast came 10 years after the entry into force of the Dublin II regulation.

The Meijers Committee points out that at present there are two infringement procedures ongoing with regard to the Dublin regulation (in respect of Italy and Hungary), as well as four infringement procedures regarding the closely related Eurodac regulation (in respect of Croatia, Greece, Italy and Cyprus). Additionally, the Commission has recently sent a second supplementary letter to Greece expressing concerns over the persistence of serious deficiencies in the Greek asylum system, as well as a 10 February 2016 recommendation.

The belief that the Dublin system allocates responsibility unsustainably is widely held and is mentioned on page 3 of the explanatory memorandum to the Dublin III recast proposal. It is no coincidence that the infringement procedures mentioned above concern Member States on the EU’s external borders. These Member States have for a long time complained that they cannot process the large numbers of asylum seekers entering the EU through their territories. While the suggested corrective fairness mechanism can go some way to remedy this situation, it will not change the fact that it is these Member States who will bear the brunt of new arrivals. The corrective fairness mechanism will not be triggered until a Member State has received 150% of the maximum allocated number of applications deemed fair on the basis of that State’s GDP and population size. This only partly corrects disproportionate burden sharing, without addressing the fundamental shortcomings of the Dublin system, namely that this system wrongly presupposes that the asylum procedures are adequate and up to standard in all Member States. On the contrary, Member States still continue to display systemic deficiencies, which make Dublin transfers impossible. As has been accepted by the ECtHR in several recent judgments, there are significant national differences in the quality of reception and asylum systems, which continue to exist and which encourage secondary movements.3 Additionally, the Commission must take stock of the fact that its similar attempt of September 2015 at such a mechanism has so far not been successful: of the 160,000 asylum-seekers who should have been relocated, only 1,500 (909 from Greece and 591 from Italy) have been relocated.

The proposals under Dublin III recast do very little to address this unsustainable burden sharing, focusing instead on the risk of abuse of the rules laid down in the Dublin III regulation by individual asylum seekers, including their absconding.

  1. Detailed observations

Continue reading “Meijers comments on the proposed reforms of Dublin, Eurodac and of the new Asylum Agency”

Referendum Briefing 3: Does the EU have a ‘democratic deficit’?

ORIGINAL PUBLISHED ON EU LAW ANALYSIS

by Professors Laurent Pech and Steve Peers

The EU is regularly accused from suffering a ‘democratic deficit’. In particular, it is often asserted that all EU decisions are made by the EU Commission – who are ‘unelected bureaucrats’.

As we demonstrate in this post, this criticism is clearly invalid. It fundamentally misunderstands (a) the powers that the Commission has – and more generally how decisions are made in the European Union; and (b) the way in which the European Commission gets into office. We will examine each of those issues in turn.

Who does what? Does the Commission adopt all EU laws?

The crucial thing about the EU system is that the Commission does not have anywhere near as much power as many people think it has. The standard EU’s decision-making process is: the Commission alone makes legislative proposals. Those proposals are thenconsidered by the Council (the intergovernmental body representing elected national governments), jointly with the elected Members of the European Parliament (representing EU citizens), whose powers have been gradually and significantly increased over the last three decades. Some people say that the Council and European Parliament simply rubber-stamp Commission proposals, but that is not true: they sometimes reject them and almost always amend them.

This graph illustrates the EU decision-making process: Continue reading “Referendum Briefing 3: Does the EU have a ‘democratic deficit’?”

EU Referendum Briefing 1: Can the UK control the EU’s future if it stays a member?

 ORIGINAL PUBLISHED ON EU LAW ANALYSIS BLOG

by Steve Peers

During the EU referendum campaign, a number of arguments have been made that staying in the EU is risky, because of possible future developments of the EU itself. While there will always be someone somewhere who says they would like to see an EU army, or some development related to the single currency, such an expression of opinion is meaningless by itself.  The fundamental issue is whether the UK could control such developments – either by vetoing them or opting out.

So what’s the worst that can happen? In this post, I’ll examine in turn the main alleged risks to staying in the EU. As we’ll see, in every single case the UK has control, either by an opt-out or a veto. In other words, none of these things can happen without the British government’s consent. Nearly all of them would also need our Parliament’s consent. And the large majority – all the fundamental possible changes to the EU that many are concerned about – would actually need the consent of the British public in another referendum. (Anyway, there’s nothing to stop the UK holding another referendum on EU membership in future, if it wanted to).

All of these safeguards for UK control of further developments of the EU exist in the current law of the EU – as I will show in detail. None of them are first created by the renegotiation of EU membership agreed this February.

I’ll look at seven issues where the UK has control over future EU developments:

a) defence;
b) transfers of power;
c) new Member States, including Turkey;
d) taxation;
e) non-EU immigration, asylum and criminal law;
f) the single currency; and
g) the EU budget, including the UK rebate.

There’s also an earlier blog post on the controversial issue of the planned EU/US trade deal (TTIP) and the NHS.

a) EU Defence and foreign policy Continue reading “EU Referendum Briefing 1: Can the UK control the EU’s future if it stays a member?”

EU Referendum Briefing 2: How could Brexit affect young people?

ORIGINAL PUBLISHED  ON EU LAW ANALYSIS BLOG

by Steve Peers

If British voters decide to Leave the EU in the upcoming referendum, how would that affect young people? I’ll look at that from three perspectives: education, travel and the economy.

Education

The EU doesn’t regulate the content of education, or issues like tuition fees. These limits on the EU’s role are set out in Article 165 of the Treaty on the Functioning of the EU:

The Union shall contribute to the development of quality education by encouraging cooperation between Member States and, if necessary, by supporting and supplementing their action, while fully respecting the responsibility of the Member States for the content of teaching and the organisation of education systems and their cultural and linguistic diversity.

So tuition fees differ across the EU – just as they do within the UK. Instead, the EU is involved in the cross-border aspects of education. Article 165 goes on to list these, including:

– encouraging mobility of students and teachers, by encouraging inter alia, the academic recognition of diplomas and periods of study,

– encouraging the development of youth exchanges…

This takes the form of the Erasmus programme. It’s sometimes suggested that the Erasmus programme is nothing to do with the EU. That’s clearly not true: the Erasmus programme is based on an EU law, first adopted in 1987. The most recent EU law on Erasmus dates from 2013. While the Erasmus programme is best known for exchanges of university students, it also provides for exchanges of school pupils, apprentices and college students.

Could the UK still participate in the Erasmus programme after Brexit? The current EU law (see Article 24) lists the five categories of countries which participate: a) EU Member States; b) Norway, Iceland and Liechtenstein, on the basis of a free movement treaty; c) Switzerland; d) countries applying to join the EU; and e) neighbourhood countries, like Ukraine.

Also, some of the non-EU countries don’t fully participate in Erasmus: only Norway, Iceland and Liechtenstein, along with Turkey and Macedonia, are full participants (‘programme countries’). The others are ‘partner countries’, who have only ‘limited access’ to the student exchanges (see page 34 of the Erasmus Programme Guide). Similarly, 75% of the money for youth and volunteer exchanges is spent on the programme countries (see page 75 of the guide).

So could the UK become a programme country after Brexit, to retain full participation in Erasmus? It wouldn’t be a current or candidate Member State. It wouldn’t be a ‘neighbourhood country’ either: that term applies to the countries on the EU’s eastern and southern borders (the purple and darker yellow states on this map):

The other countries fully participating in Erasmus are countries with a deal on the free movement of persons: Norway, et al and Switzerland. It’s striking that when the Swiss decided to end their treaty with the EU on free movement of persons, the EU decided that because the link with free movement was now broken, Switzerland could no longer be a programme country. It also suspended Swiss participation in research funding.

So currently, full participation in Erasmus extends only to countries which have applied to join the EU or which have a free movement agreement with it. The official position of the Vote Leave side is that the UK should not participate in the free movement of people or the single market (ie the ‘Norway option’) after Brexit. Therefore the UK will not qualify for full participation in Erasmus. The EU could agree to change the rules – but there are no guarantees of that. Moreover, the example of Switzerland suggests that it won’t.

A Brexit would have other impacts on British students who want to study in the EU – whether they participate in Erasmus or not. First of all, the EU rule that students pay thesame tuition fees as locals – which enables British students to pay the same low fees as most local students in EU universities – would no longer apply. (Even under the ‘Norway option’, this rule doesn’t apply). UK students in EU universities would therefore pay foreign fees, unless the UK government was able to negotiate reciprocal deals with each country to avoid this.

Secondly, unless the UK still signs up to the free movement of persons, the EU rules onrecognition of qualifications will not apply. So British employers will not be obliged to recognise qualifications from universities in the EU – and EU employers will not be obliged to recognise British qualifications either. They might still choose to do so, or to apply some non-EU rules on recognition, but overall there will be fewer legal guarantees of recognition.

Thirdly, it will be more difficult for students to move to an EU country for more than three months.  (Again, this assumes that – as Vote Leave says – the UK would not still sign up to the free movement of persons). The EU has rules on the admission of non-EU students (the UK, Ireland and Denmark have an opt-out), which were recently amended(see discussion here). They will not simply be able to jump on a plane to move to another Member State, but will have to apply for a residence permit up to three months in advance and pay a fee for that application. If they wish to stay after study there may be complications – to which we now turn.

 

Travel

Many young people are used to travelling to Amsterdam or Barcelona for the weekend. Most likely such short-term trips will be equally easy to make after Brexit, because as long as the UK does not impose a need to get a short-term visa (for visits of less than three months) on any EU countries, the EU will not demand that British citizens will need a visa to travel to the EU. That’s the EU policy of visa reciprocity. (Note that Ireland, like the UK, has opted out of this policy, so trips to Ireland shouldn’t be affected by Brexit).

However, there is some risk that weekend visits or longer holidays will be disrupted. A prominent Vote Leave campaigner, the justice minister Dominic Raab, has suggested that the UK should impose a visa requirement on EU citizens after Brexit, and accepted that this will mean that UK citizens would be subject to visa requirements to visit the EU. That’s because the EU visa reciprocity policy works both ways.

What would this visa requirement mean in practical terms? I have discussed the impact in detail here, but I’ll summarise the main points again. The EU rules on short-term visas for non-EU citizens are set out in a ‘visa code’, so we know exactly what would happen.

There would be a €60 application fee for every individual over 18, for every visit. Usually there would be an additional fee to pay to a private service provider to handle the documents. Visits to the EU couldn’t be very spontaneous, since applicants would have to wait several days for their visa to be approved. Without the visa stamped in their passports, airlines and ferry companies wouldn’t allow them to travel. Not everyone would get a visa either: young people who haven’t got a job yet are more likely to be turned down. Any refusal of a visa application would be recorded on an EU-wide database for several years, increasing the chance of further refusals.

What about stays of longer than three months? Unless the UK agrees to continue with the free movement of people to and from the EU, any young (or indeed not-so-young) people wishing to stay for longer than three months in an EU country to work or study, or to join a family member, will no longer have the right to do so after Brexit. Instead, they will be subject to far more restrictive national immigration laws (partly harmonised by the EU), as discussed in detail here.

Economy

How could Brexit affect young Britons’ economic prospects? Economic forecasts of the effect of Brexit aren’t certainties. The negative predictions about leaving the EU made by many economists and international institutions could turn out to be wholly incorrect, or at least overstated.

But in Martin Lewis’ objective assessment, there are more economic risks to a Leave vote. And even the pro-Brexit economist Andrew Lilico predicts that there will be a negative economic effect to Brexit in the short-term, with a positive impact starting in 2030:

If this forecast is correct, less economic growth means fewer jobs. And young people looking for work after school or graduation are looking for their first job now, or in the next few years – not in 2030.

Conclusion

Nigel Farage recently said he was ‘shocked’ that British students would want to study in the EU – referring to the rest of the world instead. But it’s possible to want to visit Rome as well as Rio, or study in Madrid instead of Mumbai.

We can’t be certain of the impact of Brexit upon young people in advance. But the evidence suggests that access to the Erasmus scheme may be under threat. And it will certainly be harder to move to an EU country for any reason if the UK is no longer participating in the free movement of persons – as Farage and the official Vote Leave camp suggest. Moreover, if there are negative economic effects, at least in the short-term, that would affect every young person in the UK looking for work in the next few years.

Accord politique ou juridique : Quelle est la nature du “machin” conclu entre l’UE et la Turquie en matière d’asile?

ORIGINAL PUBLISHED HERE  on 10 Friday Jun 2016

Par Olivier Cortenet Marianne Dony, Professeurs ordinaires à l’Université libre de Bruxelles,

Alors que trois demandeurs demandeurs d’asile – apparemment deux Pakistanais et un Afghan dans les affaires T-192/16, 193/16 et 257/26 – ont demandé au Tribunal de l’Union Européenne l’annulation de l’accord conclu le 18 mars 2016 entre l’UE et la Turquie, il est permis de s’interroger sur la nature exacte de ce “machin” considéré par le service juridique du Parlement Européen comme un simple accord politique, sachant cependant que la recevabilité du recours sera tout d’abord au coeur des débats…

Les autorités européennes affirment à l’unisson que la « déclaration UE-Turquie », dont le contenu a été détaillé dans un communiqué de presse du Conseil européen du 18 mars dernier, n’est pas un accord international mais une simple déclaration d’intention. Qu’en est-il vraiment, au regard des règles du droit de l’Union européenne et du droit international public ?

Si l’on s’en réfère au droit de l’Union européenne, il est permis d’en douter au vu de la jurisprudence de la Cour de justice (de l’Union européenne).

Ainsi, dans un arrêt du 23 mars 2004, C-233/02, France c. Commission (points 42 à 45), la Cour s’est interrogée sur le point de savoir si des « lignes directrices » finalisées en février 2002 par communication entre les négociateurs des services de la Commission et leurs homologues américains et sur lesquelles aucune signature n’avait été apposée pouvaient être considérées comme un accord international. La Cour a indiqué que le critère décisif était de savoir si ces lignes directrices avaient, ou non, force obligatoire et qu’à cette fin, il fallait s’en référer à l’intention des parties. En l’espèce, la Cour a alors constaté qu’il résulte explicitement du texte de ces lignes directrices que les parties avaient l’intention de les appliquer sur une base volontaire et que de surcroît l’intention des parties de ne pas contracter d’engagements obligatoires avait été à maintes reprises expressément réitérée durant la phase de négociations des lignes directrices. C’est sur cette base que la Cour conclut que ces lignes directrices ne constituent pas un accord international et ne sont donc pas visées par l’article 300 CE, devenu article 218 TFUE.

Par ailleurs, dans l’arrêt du 26 novembre 2014, C-103/12 et C-165/12, Parlement et Commission c. Conseil (points 60 à 74) la Cour a analysé le contenu et le but d’une déclaration relative à l’attribution de possibilités de pêche dans les eaux de l’Union européenne à des navires de pêche battant pavillon » de la République du Venezuela pour considérer qu’elle devait s’analyser comme une offre adressée à cette dernière, subordonnée au respect de certaines conditions précises et que la République du Venezuela  en transmettant des demandes d’autorisation de pêche dans les eaux concernées avait consenti à cette offre. Elle a dès lors conclu qu’un accord avait bien été conclu entre ces dernières, en ajoutant que « le fait qu’un tel accord est formalisé dans un seul document commun ou dans deux ou plusieurs instruments écrits connexes est dépourvu de pertinence ».

Il résulte donc clairement de ces arrêts que la forme n’importe pas. Ce n’est pas parce que le choix d’une déclaration, ou d’un communiqué de presse, a été fait qu’il ne peut s’agir d’un accord international. Au contraire, il faut analyser le but et le contenu de cette déclaration pour déterminer si elle contient des engagements ayant force obligatoire.

Et, en passant à l’analyse de la déclaration UE-Turquie, une lecture même rapide permet de relever que l’UE et la Turquie « sont convenues » d’un certain nombre d’actions pour atteindre un objectif commun. Au nombre de ces actions:

  • il est d’abord prévu que « tous les nouveaux migrants en situation irrégulière qui partent de la Turquie pour gagner les îles grecques à partir du 20 mars 2016 seront renvoyés en Turquie », étant entendu que tous les « coûts des opérations de retour des migrants en situation irrégulière seront pris en charge par l’UE » ;
  • ensuite, « pour chaque Syrien renvoyé en Turquie au départ des îles grecques, un autre Syrien sera réinstallé de la Turquie vers l’UE », un mécanisme devant, à cette fin, être « mis en place, avec le soutien de la Commission, des agences de l’UE et d’autres États membres » ;
  • de plus, la Turquie « prendra toutes les mesures nécessaires pour éviter que de nouvelles routes de migration irrégulière, maritimes ou terrestres, ne s’ouvrent au départ de son territoire en direction de l’UE »  et l’UE « accélèrera (…) le versement du montant de trois milliards d’euros initialement alloué au titre de la facilité en faveur des réfugiés en Turquie ».
  • Finalement la déclaration affirme que tous « ces éléments progresseront en parallèle et feront l’objet d’un suivi mensuel mené conjointement ».
  • A titre accessoire, on mentionnera que le considérant 4 de la proposition de décision modifiant la décision du Conseil du 22 septembre 2015 instituant des mesures provisoires en matière de protection internationale au profit de l’Italie et de la Grèce, déposée par la Commission le 21 mars 2016, indique que « les chefs d’État ou de gouvernement sont convenus, le 7 mars, d’une série de principes devant constituer la base d’un accord avec la Turquie … », que la proposition entend partiellement mettre en œuvre. Nous noterons que c’est la Commission elle-même qui a souligné ces termes dans la présentation de sa proposition.

L’ensemble de ces éléments est de nature à indiquer que la déclaration ne contient pas simplement un certain nombre d’actions que les parties entendent appliquer sur une base volontaire mais bien des engagements à caractère obligatoire. On peut donc conclure que cette déclaration constitue bien en réalité un accord international.

Conséquences en droit européen

La conséquence en est que cette déclaration relève de l’article 218 TFUE. En effet, ainsi que l’a indiqué expressément la Cour dans son arrêt du 26 novembre 2014 (point 83), cet article « régit la négociation et la conclusion des accords entre l’Union et des pays tiers », étant entendu que le terme « accord » utilisé à cet article « doit être compris dans un sens général, pour désigner tout engagement pris par des sujets de droit international et ayant une force obligatoire, quelle qu’en soit la qualification formelle ».

En outre, comme l’a souligné la Cour de justice dans un arrêt du 16 juillet 2015C-425/13, Commission c. Conseil (point 62), cette disposition « constitue une norme autonome et générale de portée constitutionnelle, en ce qu’elle attribue aux institutions de l’Union des compétences déterminées », en « visant à établir un équilibre entre ces dernières ».

Que prévoit cette disposition? (voy. à ce sujet, M. Dony,   Droit de l’Union européenne, points 358 à 368). Il résulte de l’article 218, paragraphe 6, TFUE, que c’est le Conseil, sur proposition du négociateur (qui est normalement la Commission), qui adopte, en principe à la majorité qualifiée, une décision portant conclusion de l’accord, et ce après approbation du Parlement européen, lorsque cet accord couvre un domaine auxquels s’applique la procédure législative ordinaire, ce qui est le cas pour la politique d’asile (article 78, paragraphe 2, TFUE) et d’immigration (article 79, paragraphe 2, TFUE).

Il est patent qu’en l’espèce, cette procédure n’a absolument pas été respectée : en effet, il n’y a pas trace d’une quelconque proposition de la Commission ; la « déclaration UE-Turquie » a fait l’objet d’un communiqué du Conseil européen et non d’une décision du Conseil et enfin, last but not least, le Parlement européen, non seulement n’a pas approuvé l’accord, mais n’a tout simplement pas été impliqué du tout. Il est même permis de penser que le terme « déclaration » a été consciemment choisi pour notamment éluder l’application de la procédure de l’article 218 TFUE.

En vertu d’une jurisprudence constante, le non-respect de la procédure de l’article 218 TFUE est de nature à affecter la légalité de la décision de conclusion d’un accord. C’est ainsi que la Cour, dans son arrêt précité du 26 novembre 2014, a annulé la décision adoptant la déclaration en cause au motif que le Parlement avait été simplement consulté et n’avait pas donné son approbation à l’accord. De même, dans un arrêt du 9 août 1994, C-327/91, Conseil c. Commission, la Cour a annulé l’acte par lequel la Commission avait entendu conclure un accord avec les Etats-Unis concernant l’application de leur droit de la concurrence, après avoir jugé que l’accord aurait dû être conclu par le Conseil, qui seul détient la compétence de conclusion des accords internationaux.

Cela étant, deux difficultés se présentent dans le cadre du droit de l’Union européenne:

D’abord, la question se pose de savoir comment il est possible de contester la validité du communiqué de presse contenant la « déclaration UE-Turquie », qui doit être considérée comme « la décision de conclusion » de cet accord.

La voie à laquelle chacun pense spontanément est l’action en annulation prévue par l’article 263 TFUE. La forme qu’a prise cette « décision » n’est pas un obstacle, car il est de jurisprudence constante que « recours en annulation doit être ouvert à l’égard de toutes les dispositions prises par les institutions de l’Union, indépendamment de leur nature ou de leur forme, à condition qu’elles visent à produire des effets de droit », comme l’a rappelé la Cour de justice dans son arrêt précité du 16 juillet 2015 (point 26).

Ce recours est ouvert sans conditions aux Etats membres, au Parlement européen, au Conseil ou à la Commission. En revanche, les personnes physiques ou morales doivent quant à elle établir que l’acte dont elles demandent l’annulation les concerne « directement et individuellement » et il paraît très difficile voire téméraire de soutenir que tel pourrait être le cas d’un tel acte. Elles devraient donc s’en remettre à une action introduite par un des requérants dits privilégiés, ou plus précisément au Parlement européen ou un Etat membre.

Une voie plus indirecte, et plus incertaine, pourrait être envisagée, qui consisterait, en application de l’article 267 TFUE, à saisir une juridiction nationale et de lui demander de poser à la Cour de justice une question préjudicielle en appréciation de validité de cette « décision ».

Ensuite, il résulte d’une jurisprudence constante que la Cour de justice peut seulement annuler ou invalider la décision de conclusion d’un accord international mais non l’accord lui-même. Ainsi, dans l’arrêt précité du 9 août 1994, la Cour a interprété le recours en annulation de l’accord introduit par la France comme étant dirigé contre l’acte par lequel la Commission a entendu conclure cet accord. La question de la conséquence d’une telle annulation sur la validité de l’accord international doit être abordée au seul regard du droit international public, vers lequel il importe donc de se tourner.

Conséquences en droit international

A cet égard, en droit international public, la notion de traité est entendue assez largement, comme en témoigne cette définition codifiant le droit coutumier reprise dans la Convention de Vienne de 1986 sur le droit des traités entre Etats et organisations internationales ou entre organisations internationales : « […] l’expression ‘traité’ s’entend d’un accord international régi par le droit international et conclu par écrit […] que cet accord soit consigné dans un instrument unique ou dans deux ou plusieurs instruments connexes, et quelle que soit sa dénomination particulière » (voy. les commentaires de cet article et des autres dispositions pertinentes des conventions de Vienne sur le droit des traités dans O. Corten et P. Klein (dir.), Les Conventions de Vienne sur le droit des traités. Commentaire article par article).

La dénomination, ou plus généralement la forme de l’accord, n’importe donc pas. Ont ainsi été considérés comme des traités entre Etats (mais on peut sans aucun doute transposer ces enseignements aux traités entre Etats et organisations internationales) : un échange de lettres (C.I.J., Affaire du Différend territorial (Libye/Tchad), Recueil 1994, not., § 31) , un simple procès-verbal de réunion (C.I.J., Affaire de la Délimitation maritime et des questions territoriales entre le Qatar et Bahreïn, Recueil 1994, § 23.), un communiqué conjoint (C.I.J., Affaire du Plateau continental de la Mer Egée, Recueil 1978, §§ 95-98) ou encore … une déclaration commune (C.I.J., Affaire de la Frontière terrestre et maritime entre le Cameroun et le Nigéria, Recueil 2002, § 263). Le caractère informel de la « déclaration UE-Turquie » ne constitue donc aucunement un obstacle à sa qualification de traité. Le droit international et le droit européen se rejoignent sur ce point.

La seule condition potentiellement problématique en l’espèce est celle selon laquelle l’accord doit être « régi par le droit international », ce qui suppose une volonté des parties de produire des engagements juridiques relevant du droit international public. Ici aussi, les critères du droit international sont très similaires à ceux dégagés par la Cour de justice qui d’ailleurs s’y réfère explicitement.

En l’espèce, et comme indiqué ci-dessus (point 4), la « déclaration UE-Turquie » a pour objet la circulation des personnes et le statut de réfugié, un domaine qui relève indéniablement de l’ordre juridique international. La terminologie utilisée témoigne d’ailleurs d’une volonté de s’engager, comme en témoignent les extraits suivants : « l’UE et la Turquie ont décidé ce jour de … »,  « sontconvenues des points d’action complémentaires suivants… »… « La Turquieprendra toutes les mesures nécessaires pour éviter que… » ; … « un programme d’admission humanitaire volontaire sera activé. Les États membres de l’UE ycontribueront… ». Les termes ainsi soulignés ont une portée qui, loin d’être simplement exhortative ou indicative, est normative et prescriptive. De manière tout à fait explicite, les parties précisent encore que : « Cela se fera en totale conformité avec le droit de l’UE et le droit international » ou encore « conformément aux normes internationales applicables ».

Bref, au vu des termes mêmes de cette déclaration, il paraît difficile de lui dénier la qualité de « traité », au sens du droit international public. Cela étant, le non-respect des procédures internes de l’UE lors de la conclusion de ce traité pourrait avoir des conséquences non sur l’existence, mais sur la validité de ce dernier. Le droit coutumier en la matière est exprimé dans deux dispositions de la Convention précitée de Vienne de 1986 :

« Article 27 […]

2. Une organisation internationale partie à un traité ne peut invoquer les règles de l’organisation comme justifiant la non-exécution du traité.

3. Les règles énoncées dans les paragraphes précédents sont sans préjudice de l’article 46 ».

« Article 46 […]

2. Le fait que le consentement d’une organisation internationale à être liée par un traité a été exprimé en violation des règles de l’organisation concernant la compétence pour conclure des traités ne peut être invoqué par cette organisation comme viciant son consentement, à moins que cette violation n’ait été manifeste et ne concerne une règle d’importance fondamentale.

3. Une violation est manifeste si elle est objectivement évidente pour tout Etat ou toute organisation internationale se comportant en la matière conformément à la pratique habituelle des Etats et, le cas échéant, des organisations internationales et de bonne foi ».

Il en découle que, si, en principe, l’UE ne pourrait se prévaloir de la violation de ses propres règles pour justifier la non-exécution du traité, une exception est cependant réservée aux cas de violation « manifeste » concernant une règle d’une « importance fondamentale ».

Pour ce qui est de la deuxième condition,  l’accord a été conclu  en violation totale du prescrit de l’article 218 TFUE (point 7). Or cette disposition doit indéniablement être considérée comme une règle d’une importance fondamentale. La Cour internationale de justice a ainsi indiqué que  « les règles relatives au pouvoir de signer des traités au nom d’un Etat sont des règles constitutionnelles d’une importance fondamentale » (Affaire de la Frontière terrestre et maritime entre le Cameroun et le Nigéria, précitée, § 265) et cette affirmation peut assurément être transposée au droit d’une organisation internationale comme l’UE, d’autant que, comme déjà indiqué, la Cour de justice de l’Union européenne lui a expressément accordé ce statut. On peut d’ailleurs penser que c’est ce qui explique que le Conseil européen ait préféré dénier la qualité d’accord à la déclaration commune avec la Turquie : par le biais de cette qualification, sans doute espérait-il échapper à l’obligation de respecter l’article 218 TFUE…

Peut-on également considérer que cette violation était « manifeste » et donc « objectivement évidente » pour la Turquie ? Dans l’affaire que l’on vient de citer, la Cour internationale de justice est restée très prudente sur cette question, puisqu’elle estime que la connaissance par un Etat d’une règle constitutionnelle de droit interne d’un autre Etat suppose que ce dernier l’ait « rendu[e] publique de manière appropriée ».

Dans notre cas, on n’est cependant pas devant une règle de droit interne, mais devant des règles conventionnelles qui sont par définition publiques, les traités européens faisant l’objet de diverses publications, écrites et électroniques. Plus précisément, il est difficile d’imaginer que la Turquie, candidate à l’adhésion et engagée dans des négociations à cet effet depuis des années, n’ait pas connaissance des principes régissant la conclusion des accords internationaux de l’Union et en particulier des principes selon lesquels le Parlement européen doit être impliqué dans la procédure de conclusion de ces accords et que le Conseil européen n’est  en revanche pas habilité à y intervenir.

En conclusion

Dans ces conditions, et toujours si l’on s’en tient au droit international public, il apparaît que la « déclaration UE-Turquie » peut a priori être qualifiée de traité, mais un traité dont il est sérieusement permis de douter de la validité. Rien ne devrait dès lors sérieusement empêcher de remettre en cause les effets juridiques de cette déclaration, que ce soit en droit européen ou en droit international public.