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CALL FOR A TRUE EUROPEAN AREA OF FREEDOM SECURITY AND JUSTICE

By the “Fundamental Rights European Experts Group” (FREE Group) (see below)
“Let’s be driven by our values and not by our fears”

1. Three years after Lisbon the objective of an EAFSJ is still far away…

Three years after the entry into force of the Lisbon Treaty and of the European Charter of fundamental rights one can wonder if the European Union and its Member States are really committed to the objective of building the European Freedom Security and Justice Area. It is worth recalling that this objective dates back to 1997 when the Amsterdam Treaty was signed, but it has since then been substantially upgraded by the Lisbon Treaty.

After years of hard negotiations between the MS the EAFSJ has been tightly linked to a newly binding Charter of fundamental rights and some of the previous political, legal and democratic flaws have been solved. For three years the qualified majority voting has been the normal Council decision-making rule, the EP is a full co-legislator and the Commission and the European Court of Justice can fully play their role.

2. A deceiving outcome on quantitative and qualitative terms..

However notwithstanding these undeniable constitutional advances, the EU recent activity is quite deceptive both in quantitative as in qualitative terms. The EU and its MS seem still in a transitional and survival phase than in the long awaited building phase of true EAFSJ.

On quantitative aspects suffice it to note that since the beginning of the legislative term less than fifty legislative proposals have been submitted and only twenty have until now been adopted (1). If this trend continues one can wonder if the European Parliament and the Council will be able to adopt in the last 18 months of this legislature all the texts currently on the table not to speak of the proposals that the Commission has announced notably from the second half of 2013.

But much more concerning are the qualitative aspects of the institutional activity in a domain which is deemed to be now the core of the European public space.

To start with some positive aspects it is more than likely that the new Common European Asylum System foreseen by the art. 78 TFEU (and by the art.18 of the Charter) will be adopted before the end of this year (2). Progress has also been achieved with the adoption of the first measures dealing with the suspect’s rights in criminal proceedings (3) as well as in the judicial cooperation in civil matters (4) and on the establishment of new Agencies (5).

These decisions have often been taken after lengthy and painful negotiations and have been accompanied by the conclusion of international agreements as happened with the EU-US TFTP and PNR agreements. However a positive assessment on the latter is not obvious and the risks has been denounced that the final outcome could still not comply with the European Charter as well as of the European Convention of Human rights standards (6). The EP rejection of the ACTA agreement (7) has confirmed that the EU institutions often do not share the same vision of the balance to be struck between freedom and security.
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Illegal migration: the “Returns” Directive in the recent case-law of the ECJ

by: Rosa Raffaelli

The judgment of the ECJ in the Achughbabian case, which follows closely the recently issued El Dridi judgment, has further clarified the scope of application of the Returns Directive (Directive 2008/115/EC).

The Directive, adopted under the co-decision procedure by the European Parliament and the Council, aims at establishing common standards and procedures to be applied in Member States for returning illegally staying third-country nationals (Article 1).
The Directive therefore requires States to issue a return decision to any irregularly staying third-country national, save in exceptional circumstances (Article 6).

The return decision must – as a general rule – include a period for voluntary return of between 7 and 30 days: during this period, the immigrant may not be forcibly expelled but he/she is expected to leave the national territory “voluntarily.” If the immigrant does not comply with the order, or if (exceptionally) no period for voluntary return is granted, States must take all necessary measures to enforce the return decision, including, if strictly necessary, through coercive measures (Article 8).

While the return procedure is ongoing, the third country national may also be detained, if less coercive measures appear insufficient to ensure the positive outcome of the procedure. Articles 15 and 16 provide for a number of guarantees concerning such detention, including a limit on its maximum length (6 months, exceptionally to be extended to a maximum of 18) and the possibility for judicial review, as well as establishing the principles according to which detention may only last as long as there is a reasonable prospect of removal and is to take place in specialized detention facilities. The Directive also provides for the possibility of issuing re-entry bans, lasting for up to 5 years, which are effective on the whole territory of the EU.

The compromise leading to the adoption of the directive was extremely difficult to achieve – so much so that the European Parliament, in order to encourage States to find an acceptable compromise, “froze” the European Return Fund until a directive was approved on the issue. Moreover, the final outcome clearly left many member States unsatisfied, as emerges from the low level of implementation of the Directive even after the deadline for its transposition expired (in December 2010).

Interested parties were, however, left with the possibility of raising the issue of the compatibility of national measures applicable to them with the EU Directive, leading to a surprising number of requests for preliminary rulings being filed to the ECJ.
Continue reading “Illegal migration: the “Returns” Directive in the recent case-law of the ECJ”

European Union and Hungary: towards a new “Haider” case ?

(Original IT – translation still to be revised)

Hungary puts at risk the Union’s values?

”Such a change among the democratic frameworks that we did today was only done by revolutions before. […] Hungarians today have proved that there is a reason for democracy. […] Hungarians today overthrew a system of oligarchs who used to abuse their power.” The new government will be modest and humble. “ (1)

Two years later, these April 2010 Viktor Orban statements celebrating the Fidesz Party two thirds majority in Parliament following the Hungarian elections, sound now very different as it is the case for the economic forecasts following the 2010 Hungarian elections according to which such an electoral result would had made possible for the Hungarian Forint to recover from the crisis from which it had been barely saved in 2008 by the International Monetary Fund and the European Union.

Now, not only the relations between the EU and the IMF seem to have reached their lowest point (at least judging from the recent interruption of the negotiations with the Hungarian monetary authorities) but even bolder critics are emerging at European level as far as the compatibility of various initiatives of the Orban Government with fundamental rights and respect for democratic principles are concerned.

The situation is so worrying to push Guy Verohfstadt, President of the Liberal Group in the European Parliament to declare that Hungary seems not to fully respect anymore the “values” it subscribed when it joined the European Union, (“values” that the Lisbon Treaty has made even more explicit (2). Hence, according to Verohfstadt the European institutions should trigger the “alert” procedure foreseen by art. 7 par. 1 of the EU Treaty (3).

It is worth noting that such an “alert” procedure may be launched by the European Parliament itself and that it is designed to verify if “.. there is a clear risk of a serious breach“ by a Member State of the founding values of the European Union and, if such a risk exists the Council would be entitled to formally recommend the State who has lost its bearings to come back on the rights track.

Needless to say that such an “alert procedure” is very different from the “nuclear option” laid down in the second paragraph of the article 7 where the Council could even suspend a Member State voting rights if “a serious and persistent breach” of European Values has been ascertained.

Yet the mere fact of evoking the “alert” procedure has already led the European Parliament’s political groups, to position themselves as in previous cases by mirroring the political position present at national level (situation which will make difficult to reach the third majority needed in the European Parliament to vote the request the Council to address formal recommendation to Hungary).(4)

The European Parliament debate on this issue will take place during the January Plenary session in Strasbourg then the competent parliamentary committee could start its work as far as the European Commission has shown that there is ground to proceed and the Conference of Presidents of political groups consider that a formal report should be prepared following the proposal of the ALDE President Verohfstadt.

All that having being said on procedural aspects, it is worth recalling which have been the main concerns raised by the recent Hungarian initiatives.
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The first EU steps towards the accession to the European Convention of Human rights

The European Parliament Committee on Civil Liberties, Justice and Home Affairs (LIBE) debated on February 23rd the state of the play of the EU accession to the European Convention of Human Rights (ECHR).

The accession is imposed by Article 6 TEU and its main impact will be the creation of an additional layer of protection of fundamental rights in the EU legal order. This entails the possibility to challenge before the European Court of Human Rights (ECtHR) also EU acts if they breach the fundamental rights of an individual (see my previous post here).

Continue reading “The first EU steps towards the accession to the European Convention of Human rights”

Basic Reference : EU and Fundamental rights

With the entry into force of the Lisbon Treaty the protection of fundamental rights has become one of the vital aspects of European Union activity and we are now witnessing the fundamental change of the nature of the European construction which was born in 1957 mainly as an economy oriented organisation.

Notwithstanding the recent critics of the German Constitutional Court, the EU system of protection is now much more articulated than before and the possibility for an individual to challenge the EU acts has been improved.

According to art. 6 TUE (*) Fundamental rights are now protected in the European Union under three diverse and complementary perspectives: as general principles of the EU, as defined by the European Charter and as protected by the European Convention of human rights.

Fundamental rights protected as part of the “general principles of the EU law”
It is worth recalling that the founding Treaties did’nt make any reference to fundamental rights and that even in ’59 the Court itself denied itself the competence to judge on the legality of some CECA decisions from the perspective of protection of fundamental rights as granted by the German Constitutional Court (Judg. February 4th, 1959, Judg. 1/58, Stork V.High Authority, February 1960, Judg. 16-18/59, Geitling v. Hig Authority). By so doing, the Luxembourg judges avoided a confrontation with the European Court for Human rights in Strasbourg and with the national Constitutional Courts.

Therefore, only a few years later in ’63 and ’64 by proudly declaring the autonomy of the Community legal order with the landmark “Van Gend en Loos” and “Costa contro Enel” Judgements, and by empowering the European citizens to invoke the primacy of Community law before the national Judges, the Luxembourg Court faced the opposition of the Constitutional Courts of Italy (Judgement “Frontini e Pozzani” of March 7, 1974, n. 14) and Germany (“Solange I” Judgment of May 19th, 1976 in BverGE, 37, p. 271) which did not accept such a primacy of Community law when fundamental rights as protected by the national Consitution could have been at stake.
To counter this national opposition and the lack of an explicit reference to fundamental rights in the founding Treaties, the Court of Justice developed a very cleaver and original doctrine by declaring that Member States should protect fundamentalr rights (“Stauder”, C- 29/69, ” “Handelsgesellschaft” C-228/69) as an “integral part of the general principles of [European Community] law” when implementing EU law (“Wachauf” C-5/88, July 13th, 1989) because the “…Respect for human rights is therefore a condition of the lawfulness of Community acts..” (ECJ Opinion 2/94)
It is worth noting that with the doctrine of the EU “general principles” stemming from the constitutional traditions common to the Member States, the EU judges have not only created a strong common ground both for the national and european legal orders but also an evolving mechanism mirroring the evolution of the national Constitutional orders and of the Member States international relations (“Nold”, C-4/73 of May 14th, 1974).
The interaction beteween the national and european level makes it possible to match the evolution of the EU society notably when fundamental rights are at stake. It is therefore not surprising that in sixty years several “generations” of fundamental rights came to the attention of the european Judges and legislators.
Therefore, it took some time before the doctrine of “general principles” (as a legal cross-fertilisation mechanism between the national and european level) had been mirrored in the Treaties but it happened in ’93 with the Maastricht Treaty, confirmed by the Amsterdam Treaty and now clearly stated in the Lisbon treaty.

Fundamental rights as protected by the European Charter of Fundamental rights

The main weakness of the “general principles” doctrine is that it depends on the interpretation of the judges who can act only on a case by case basis. At the end of the eighties it became necessary to link the enlargment process to new Member States and the extension of the EU missions to the codification of ECJ jurisprudence of the previous decades by making fundamental rights more visible to the european citizen and to the EU legislator itself.
This codification of fundamental rights as stemming from the ECHR, the common constitutional traditions of the Member States and from the jurisprudence of the ECJ has been decided by the European Council in Cologne on the 3/4 June ’99 in parallel with the entry into force of the Amsterdam Treaty: “There appears to be a need, at the present stage of the Union’s development, to establish a Charter of fundamental rights in order to make their overriding importance and relevance more visible to the Union’s citizens. The European Council believes that this Charter should contain the fundamental rights and freedoms as well as basic procedural rights guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms and derived from the constitutional traditions common to the Member States, as general principles of Community law. The Charter should also include the fundamental rights that pertain only to the Union’s citizens. In drawing up such a Charter account should furthermore be taken of economic and social rights as contained in the European Social Charter and the Community Charter of the Fundamental Social Rights of Workers (Article 136 TEC), insofar as they do not merely establish objectives for action by the Union.”

Following this mandate an extraordinary “Convention”, composed of representatives of the Heads of State and Government, the President of the Commission as well as members of the European Parliament and national parliaments, prepared a text which even if without a binding status was proclamed by the EU institutions in Nice in December 2000.
With the entry into force of the Lisbon Treaty the Charter (slightly updated in 2007) is now part of the EU Constitutional order even if UK and Poland enjoy a specific regime as defined in two protocols.

Fundamental rights as protected by the ECHR

As outlined above the ECHR is the main reference and the founding block of fundamental rights protection in Europe even if it focuses mainly on political and civil rights (the so called “first generation”) which were considered the main priority after the second World War. Already in April 1979 the European Commission proposed that the European Community could become member of the ECHR but the procedure was only launched after another Commission Communication of November 19th, 1990. The proposal was followed by a Council request for an opinion from the ECJ. The Opinion (2/94 was adopted on March 28th, 1996 and stated quite surprisingly that “..No Treaty provision confers on the Community institutions any general power to enact rules on human rights or to conclude international conventions in this field. Accession to the Convention would, however, entail a substantial change in the present Community system for the protection of human rights in that it would entail the entry of the Community into a distinct international institutional system as well as integration of all the provisions of the Convention into the Community legal order. Such a modification of the system for the protection of human rights in the Community, with equally fundamental institutional implications for the Community and for
the Member States, would be of constitutional significance and would therefore be such as to go beyond the scope of Article 235. It could be brought about only by way of Treaty amendment.“
Therefore the fact that the EU, contrary to its Member States, was and still is not formally member of the ECHR. This has created some problems when Member States are brought before the Strasbourg Court for breaching fundamental rights with a national law that conflicts EU law.
In two landmark cases “Matthews” in ’99 and more clearly “Bosphorus ” in 2005, the Strasbourg Judges made it clear that even if the EU fundamental rights protection regime “…could have been considered to be, and to have been at the relevant time, “equivalent” to that of the Convention system….Such a presumption could be rebutted if, in a particular case, it was considered that the protection of Convention rights was manifestly deficient. In such cases, the interest of international co-operation would be outweighed by the Convention’s role as a “constitutional instrument of European public order” in the field of human rights”.

The consequence of this reasoning is that EU Member States when implementing European Union law would be summoned by the Strasbourg Court (if the EU legislation does not grant sufficient protection to fundamental rights) and at the same time summoned by the Luxembourg Court for not implementing the same rules.
To avoid being caught between a rock and a hard place or to be taken hostage between the two legal regimes of Luxembourg and Strasbourg, the Member States decided that with the Lisbon Treaty the European Union should also become party to the Convention so that its acts could be directly challenged before the Strasbourg Court in case of violation of the European Convention of Human rights.
By adopting Protocol 14 the accession is now legally possible on part of the Council of Europe even if the negotiation of this accession already seems far from being easy.

A wider right of access for Judges

It would had been meaningless to have so many ways to invoke the protection of fundamental rights against the EU acts, if this new legal construction would not have been accompanied by an easier access of the individual to the EU judge.
Here again the Lisbon Treaty brings some improvements.
In the previous situation (art. 230 p4 of the TEC) an individual was entitled to bring an action against an EU act only if he was directly and individually concerned by these acts.
The situation of legal and/or physical person “individually” concerned by an EU act was rather common at the beginning of the EU construction when many Decisions of the Institutions (such as the ones of the CECA High Authority or of the Commission acting in the competition policy) were addressed to specific enterprises, but has become less frequent the more the EC and the EU developed their “legislative” activity by adopting acts of regulatory nature. Indeed, nearly all actions brought by individuals against Community regulations have been declared inadmissible by the ECJ because the requirement of ‘individual concern’ was not fulfilled. The doctrine considered then that the approach of the Community courts was too restrictive to guarantee effective legal protection of individuals against acts of a general nature.
The Court of Justice considered therefore that “effective legal protection” was in any case guaranteed by the right of individuals to bring an action before national courts against national measures implementing an EC/EU regulation in individual cases (since these courts acting as “decentralized european judges” would have been able to refer to preliminary questions to the Court of Justice).
This indirect solution was therefore unavailable when Community measures didn’t require national implementation. In these cases, as denounced by the Advocate General Francis Jacobs in the “Jégo-Quéré,” case before the Court of First Instance, the only way for the individuals to obtain justice was to infringe the EU measure and challenge its validity during the penal or other proceedings brought against him.
The CFI in its Judgment of 3 May 2002, followed the AG Jacobs ruling by considering a person as “individually concerned” by a measure of general application when it affects his legal position in a manner which is both definite and immediate, by restricting his rights or imposing obligations on him. However, the Court of Justice rejected this interpretation (“UPA” Case of 25 June 2002) by considering that a reform of the system of judicial review would had been possible only through a Treaty amendment.

Such a reform was finally adopted, albeit in a rather unclear way, during the negotiations of the Constitutional Treaty and thereafter mirrored in the Lisbon Treaty.
The former art. 230 TEC has now become Article 263 of the TFEU which reads as follows:
‘Any natural or legal person may, under the same conditions, institute proceedings against an act addressed to that person or which is of direct and individual concern to him or her, and against a regulatory act which is of direct concern to him or her and does not entail implementing measures.’”

Therefore the main question surrounds the Treaty’s lack of definition of the notion “regulatory acts”.
Does this formula cover all the acts of general application be it of legislative or non legislative nature or does it refers only to “non legislative” acts as considered by part of the doctrine (Bruno De Witte)?
This second interpretation will therefore allow the legislator to hide in legislative acts all the measures for which he does not want be challenged by the individuals. Moreover this interpretation will also counter ECJ jurisprudence according to which only the contents of the act are decisive and not its legal form.

(*) TUE Article 6(as modified by the Lisbon Treaty)
1. The Union recognises the rights, freedoms and principles set out in the Charter of Fundamental Rights of the European Union of 7 December 2000, as adapted at Strasbourg, on 12 December 2007, which shall have the same legal value as the Treaties.
The provisions of the Charter shall not extend in any way the competences of the Union as defined in the Treaties.
The rights, freedoms and principles in the Charter shall be interpreted in accordance with the general provisions in Title VII of the Charter governing its interpretation and application and with due regard to the explanations referred to in the Charter, that set out the sources of those provisions.
2. The Union shall accede to the European Convention for the Protection of Human Rights and Fundamental Freedoms. Such accession shall not affect the Union’s competences as defined in the Treaties.
3. Fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms and as they result from the constitutional traditions common to the Member States, shall constitute general principles of the Union’s law.

Interlaken declaration and Action plan to reform the European Court of Human Rights

The text below have been taken from the official Council of Europe Press release presenting the result of the Interlaken Conference (19.02.2010)
It is worth noting that on Thursday, just before the opening of the Ministerial Conference, the Russian Minister of Justice Alexander Konovalov deposited the ratification instrument of Protocol 14 which will therefore enter into force on 1 June 2010.

Interlaken Declaration
19. February 2010

The High Level Conference meeting at Interlaken on 18 and 19 February 2010 at the initiative of the Swiss Chairmanship of the Committee of Ministers of the Council of Europe (“the Conference”):
1 Expressing the strong commitment of the States Parties to the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) and the European Court of Human Rights (“the Court”);
2 Recognising the extraordinary contribution of the Court to the protection of human rights in Europe;
3 Recalling the interdependence between the supervisory mechanism of the Convention and the other activities of the Council of Europe in the field of human rights, the rule of law and democracy;
4 Welcoming the entry into force of Protocol No. 14 to the Convention on 1 June 2010;
5 Noting with satisfaction the entry into force of the Treaty of Lisbon, which provides for the accession of the European Union to the Convention;
6 Stressing the subsidiary nature of the supervisory mechanism established by the Convention and notably the fundamental role which national authorities, i.e. governments, courts and parliaments, must play in guaranteeing and protecting human rights at the national level;
7 Noting with deep concern that the number of applications brought before the Court and the deficit between applications introduced and applications disposed of continues to grow;
8 Considering that this situation causes damage to the effectiveness and credibility of the Convention and its supervisory mechanism and represents a threat to the quality and the consistency of the case-law and the authority of the Court;
9 Convinced that over and above the improvements already carried out or envisaged additional measures are indispensable and urgently required in order to:
i. achieve a balance between the number of judgments and decisions delivered by the Court and the number of incoming applications;
ii. enable the Court to reduce the backlog of cases and to adjudicate new cases within a reasonable time, particularly those concerning serious violations of human rights;
iii. ensure the full and rapid execution of judgments of the Court and the effectiveness of its supervision by the Committee of Ministers;
10 Considering that the present Declaration seeks to establish a roadmap for the reform process towards long-term effectiveness of the Convention system;

The Conference

(1) Reaffirms the commitment of the States Parties to the Convention to the right of individual petition;

(2) Reiterates the obligation of the States Parties to ensure that the rights and freedoms set forth in the Convention are fully secured at the national level and calls for a strengthening of the principle of subsidiarity;

(3) Stresses that this principle implies a shared responsibility between the States Parties and the Court;

(4) Stresses the importance of ensuring the clarity and consistency of the Court’s case-law and calls, in particular, for a uniform and rigorous application of the criteria concerning admissibility and the Court’s jurisdiction;

(5) Invites the Court to make maximum use of the procedural tools and the resources at its disposal;

(6) Stresses the need for effective measures to reduce the number of clearly inadmissible applications, the need for effective filtering of these applications and the need to find solutions for dealing with repetitive applications;

(7) Stresses that full, effective and rapid execution of the final judgments of the Court is indispensable;

(8) Reaffirms the need for maintaining the independence of the judges and preserving the impartiality and quality of the Court;

(9) Calls for enhancing the efficiency of the system to supervise the execution of the Court’s judgments;

(10) Stresses the need to simplify the procedure for amending Convention provisions of an organisational nature;

(11) Adopts the following Action Plan as an instrument to provide political guidance for the process towards long-term effectiveness of the Convention system.

ACTION PLAN:

A. Right of individual petition
1. The Conference reaffirms the fundamental importance of the right of individual petition as a cornerstone of the Convention system which guarantees that alleged violations that have not been effectively dealt with by national authorities can be brought before the Court.
2. With regard to the high number of inadmissible applications, the Conference invites the Committee of Ministers to consider measures that would enable the Court to concentrate on its essential role of guarantor of human rights and to adjudicate well-founded cases with the necessary speed, in particular those alleging serious violations of human rights.
3. With regard to access to the Court, the Conference calls upon the Committee of Ministers to consider any additional measure which might contribute to a sound administration of justice and to examine in particular under what conditions new procedural rules or practices could be envisaged, without deterring well-founded applications.

B. Implementation of the Convention at the national level
4. The Conference recalls that it is first and foremost the responsibility of the States Parties to guarantee the application and implementation of the Convention and consequently calls upon the States Parties to commit themselves to:
a) continuing to increase, where appropriate in co-operation with national human rights institutions or other relevant bodies, the awareness of national authorities of the Convention standards and to ensure their application;
b) fully executing the Court’s judgments, ensuring that the necessary measures are taken to prevent further similar violations;
c) taking into account the Court’s developing case-law, also with a view to considering the conclusions to be drawn from a judgment finding a violation of the Convention by another State, where the same problem of principle exists within their own legal system;
d) ensuring, if necessary by introducing new legal remedies, whether they be of a specific nature or a general domestic remedy, that any person with an arguable claim that their rights and freedoms as set forth in the Convention have been violated has available to them an effective remedy before a national authority providing adequate redress where appropriate;
e) considering the possibility of seconding national judges and, where appropriate, other high-level independent lawyers, to the Registry of the Court;
f) ensuring review of the implementation of the recommendations adopted by the Committee of Ministers to help States Parties to fulfil their obligations.
5. The Conference stresses the need to enhance and improve the targeting and coordination of other existing mechanisms, activities and programmes of the Council of Europe, including recourse by the Secretary General to Article 52 of the Convention.

C. Filtering
6. The Conference:
a) calls upon States Parties and the Court to ensure that comprehensive and objective information is provided to potential applicants on the Convention and the Court’s case-law, in particular on the application procedures and admissibility criteria. To this end, the role of the Council of Europe information offices could be examined by the Committee of Ministers;
b) stresses the interest for a thorough analysis of the Court’s practice relating to applications declared inadmissible;
c) recommends, with regard to filtering mechanisms,
i. to the Court to put in place, in the short term, a mechanism within the existing bench likely to ensure effective filtering;
ii. to the Committee of Ministers to examine the setting up of a filtering mechanism within the Court going beyond the single judge procedure and the procedure provided for in i).

D. Repetitive applications
7. The Conference:
a) calls upon States Parties to:
i. facilitate, where appropriate, within the guarantees provided for by the Court and, as necessary, with the support of the Court, the adoption of friendly settlements and unilateral declarations;
ii. cooperate with the Committee of Ministers, after a final pilot judgment, in order to adopt and implement general measures capable of remedying effectively the structural problems at the origin of repetitive cases.
b) stresses the need for the Court to develop clear and predictable standards for the “pilot judgment” procedure as regards selection of applications, the procedure to be followed and the treatment of adjourned cases, and to evaluate the effects of applying such and similar procedures;
c) calls upon the Committee of Ministers to:
i. consider whether repetitive cases could be handled by judges responsible for filtering (see above Section C);
ii. bring about a cooperative approach including all relevant parts of the Council of Europe in order to present possible options to a State Party required to remedy a structural problem revealed by a judgment.

E. The Court
8. Stressing the importance of maintaining the independence of the judges and of preserving the impartiality and quality of the Court, the Conference calls upon States Parties and the Council of Europe to:
a) ensure, if necessary by improving the transparency and quality of the selection procedure at both national and European levels, full satisfaction of the Convention’s criteria for office as a judge of the Court, including knowledge of public international law and of the national legal systems as well as proficiency in at least one official language. In addition, the Court’s composition should comprise the necessary practical legal experience;
b) grant to the Court, in the interest of its efficient functioning, the necessary level of administrative autonomy within the Council of Europe.
9. The Conference, acknowledging the responsibility shared between the States Parties and the Court, invites the Court to:
a) avoid reconsidering questions of fact or national law that have been considered and decided by national authorities, in line with its case-law according to which it is not a fourth instance court;
b) apply uniformly and rigorously the criteria concerning admissibility and jurisdiction and take fully into account its subsidiary role in the interpretation and application of the Convention;
c) give full effect to the new admissibility criterion provided for in Protocol No. 14 and to consider other possibilities of applying the principle de minimis non curat praetor.
10. With a view to increasing its efficiency, the Conference invites the Court to continue improving its internal structure and working methods and making maximum use of the procedural tools and the resources at its disposal. In this context, it encourages the Court in particular to:
a) make use of the possibility to request the Committee of Ministers to reduce to five members the number of judges of the Chambers, as provided by Protocol No. 14;
b) pursue its policy of identifying priorities for dealing with cases and continue to identify in its judgments any structural problem capable of generating a significant number of repetitive applications.

F. Supervision of execution of judgments
11. The Conference stresses the urgent need for the Committee of Ministers to:
a) develop the means which will render its supervision of the execution of the Court’s judgments more effective and transparent. In this regard, it invites the Committee of Ministers to strengthen this supervision by giving increased priority and visibility not only to cases requiring urgent individual measures, but also to cases disclosing major structural problems, attaching particular importance to the need to establish effective domestic remedies;
b) review its working methods and its rules to ensure that they are better adapted to present-day realities and more effective for dealing with the variety of questions that arise.

G. Simplified Procedure for Amending the Convention
12. The Conference calls upon the Committee of Ministers to examine the possibility of introducing by means of an amending Protocol a simplified procedure for any future amendment of certain provisions of the Convention relating to organisational issues. This simplified procedure may be introduced through, for example:
a) a Statute for the Court;
b) a new provision in the Convention similar to that found in Article 41(d) of the Statute of the Council of Europe.

Implementation

In order to implement the Action Plan, the Conference:
(1) calls upon the States Parties, the Committee of Ministers, the Court and the Secretary General to give full effect to the Action Plan;
(2) calls in particular upon the Committee of Ministers and the States Parties to consult with civil society on effective means to implement the Action Plan;
(3) calls upon the States Parties to inform the Committee of Ministers, before the end of 2011, of the measures taken to implement the relevant parts of this Declaration;
(4) invites the Committee of Ministers to follow-up and implement by June 2011, where appropriate in co-operation with the Court and giving the necessary terms of reference to the competent bodies, the measures set out in this Declaration that do not require amendment of the Convention;
(5) invites the Committee of Ministers to issue terms of reference to the competent bodies with a view to preparing, by June 2012, specific proposals for measures requiring amendment of the Convention; these terms of reference should include proposals for a filtering mechanism within the Court and the study of measures making it possible to simplify the amendment of the Convention;
(6) invites the Committee of Ministers to evaluate, during the years 2012 to 2015, to what extent the implementation of Protocol No. 14 and of the Interlaken Action Plan has improved the situation of the Court. On the basis of this evaluation, the Committee of Ministers should decide, before the end of 2015, on whether there is a need for further action. Before the end of 2019, the Committee of Ministers should decide on whether the measures adopted have proven to be sufficient to assure sustainable functioning of the control mechanism of the Convention or whether more profound changes are necessary;
(7) asks the Swiss Chairmanship to transmit the present Declaration and the Proceedings of the Interlaken Conference to the Committee of Ministers;
(8) invites the future Chairmanships of the Committee of Ministers to follow-up on the implementation of the present Declaration.

After Lisbon a reshuffle for the consular and diplomatic protection of the EU citizens ?

Will the Treaty of Lisbon, the new Stockholm Programme and the new figure of the European Union High Representative wake up the sleeping beauty of the consular and diplomatic protection of the European citizens ?

Even the Head of State and Government have recognised that “..This right, enshrined in the Treaties, is not well publicised, and more effort is needed to ensure its full application. Targeted communication campaigns could be conducted in connection with this right…” Moreover they have invited the Commission to “..consider appropriate measures establishing coordination and cooperation necessary to facilitate consular protection in accordance with Article 23 TFUE.”

As a matter of fact not many of the half billion European citizens know that since the entry into force of the Maastricht Treaty in 1994 …“[e]very citizen of the Union shall, in the territory of a third country in which the Member State of which he is a national is not represented, be entitled to protection by the diplomatic or consular authorities of any Member State, on the same conditions as the nationals of that State.” (art. 23 TFUE, formerly art 20 of TEC)

It is worth recalling that under international public law, both customary and treaty law (1) , Consular and diplomatic protection should be provided by the States to their nationals.

In particular Consular protection or assistance is the provision of help and immediate assistance by a State to its nationals, both individuals and bodies, or to nationals of another State (2) when in distress. The most frequent situations are the relief and repatriation of distressed citizens of the Union, the assistance of victims of serious accident or serious illness, or of violent crime or the assistance to people arrested and detained or even the repatriation of the bodies in cases of death or catastrophes such the tragic Haiti earthquake. In these case, the State supports, by career or honorary consuls, its nationals (or non-nationals) in asserting their rights under the legal system of a foreign State, provided that the individual concerned has given his consent.

Diplomatic protection consists of the invocation by a State of the responsibility of another State for an injury caused by an internationally wrongful act of that State to a natural or legal person that is a national of the former State with a view to the implementation of such responsibility (3) . In this case, the State acts on its own behalf, to protect its rights, on an international level and through diplomatic action or other means of peaceful settlement conducted by diplomatic officials or Government representatives (4) .

It is only very recently the EU has been associated to the exercise of these functions so deeply rooted in the States sovereign functions and this it happened only during the last twenty years with the developpement of the Schengen cooperation which brought progressively together the officials of the member states administrations in activities such as the visa delivering and by implementing the same common consular instructions.

Therefore Member States remain jealously attached to these functions and even after the Lisbon Treaty they avoided a legislative role of the EU institutions by stating that “Member States shall establish the necessary rules among themselves and start the international negotiations required to secure this protection.”

Even if the wording of art. 23 TFUE is adamant in conferring directly to EU citizens (5) this right (confirmed also in Article 46 of the now legally binding Charter of Fundamental Rights of the European Union) to transform it in a reality and to enforce it before a judge, Member States should have had agreed a sound and coherent legal implementing framework.
Therefore the true fact is that since the entry into force in ’94 of art. 20 TEC only few binding acts have so far been taken by the Member States (6) and art. 1 of the first ’95 general decision (which entered into force only in 2002), covers only the consular protection .
Even in this case the approach has been minimalistic as it appears from the one page Decision of ’95 (7) which looks more anxious to avoid financial assistance, and to guarantee full repayment in cases of extreme distress, than to establish a full fledged system of assistance and alleviate suffering for EU citizens.

In the last twelve years no other bindings acts have been adopted on Consular protection and only recently, after 2006, under the pressure of the European Council and of the Commission the member states have agreed on some complementary and non-binding Guidelines on consular protection of EU citizens in third countries as well as on non-binding measures to counter crisis outside the territory of the EU (such as the notion of the “Lead State Concept” according to which a member state will on voluntary basis coordinate the consular protection in a specific third country and prepare if needed evacuation plans in case of disasters or of terrorists attacks) (8).

Moreover there are not many signs that Member States have started ” … the international negotiations required to secure this protection. “ as required by art. 23 of the TFUE (former art. 20 of the EC Treaty)

It could then be considered an understatement the European Parliament declaration according to which the right to consular and diplomatic protection has remained ‘underdeveloped’(9). The Strasbourg Assembly should then be praised as it asked to the Member States and Commission to foster the current situation by improving the current :
a) – lack of legal certainty : The generic brochure published on the Council Site and the publication on the EU Citizens passports of the art.23 TFUE (former 20 TEC) are useful but, still , could not be considered sufficient for European Citizens who can challenge this situation before the national and european Courts;
b) – lack of common EU standards. For the time being Member States are obliged not to discriminate between their own nationals and citizens of the other EU countries. Given that the standards granted are different according to the countries concerned (for instance it seems that Danes authorities, due to their constitutional duties ensure a wider protection than the one the UK authorities give) also the treatment granted for the non nationals will be different from the one they can enjoy from their own country.
c) – lack of operational transparency. The situation is unsatisfactory also as far as the practical issues are concerned as there is no simple way to know which consular post of an EU Member State could be contacted in a specific third country . Even the notion of “lead state” remain very vague even between the Member States themselves (guess how could be for one of the 180 millions of EU citizens travelling abroad ..)
d) – lack of financial solidarity. The most frequent cases are the ones of people who lost everything and need financial help. Due to the absence of common system of compensation between the member States (such as the ones who exists on the territory of the EU for other purposes) the Consular Offices are very reluctant in assuming financial burdens.

Will this unsatisfactory situation be overcome ?

After the Lisbon Treaty the EU institutions even if without legislative powers will be entitled to financially and logistically support the MS actions in the framework of EU Directives to be adopted according to art. 23 of the TFUE as evoked in the Stockholm Programme.

It is more than likely that the first proposals will mainly try to overcome the weaknesses denounced by the EP resolution (clear definition of scope of the consular protection, financial compensation system between the Member States when anticipating money for another MS citizen, creation of an Internet global site which can give the links to the “Lead State” offices in each third Countries …etc etc) even if this institution will not be involved in codecision but will be only consulted…

Moreover a positive evolution could come out from the strengthened cooperation between the MS diplomatic missions with the new European Union External Action Service as defined by the Article 35 TEU (ex Article 20 TEU) which states that :
“The diplomatic and consular missions of the Member States and the Union delegations in third countries and international conferences, and their representations to international organisations, shall cooperate in ensuring that decisions defining Union positions and actions adopted pursuant to this Chapter are complied with and implemented.
They shall step up cooperation by exchanging information and carrying out joint assessments.
They shall contribute to the implementation of the right of citizens of the Union to protection in the territory of third countries as referred to in Article 20(2)(c) of the Treaty on the Functioning of the European Union and of the measures adopted pursuant to Article 23 of that Treaty.”

It is worth noting that some signals of this change of attitude and more positive approach from the MS diplomats could be taken in the latest Council report on the ways to respond to disasters in third countries.
In the same perspective it is also possbile that the European Parliament even if it would not play a direct legislative role will probably make full use of its budgetary powers to make more evident the european solidarity in these situations.
EDC

NOTES
(1) See also Vienna Convention on Diplomatic Relations of 1961, United Nations, Treaty Series, Vol. 500, p. 95. http://untreaty.un.org/ilc/texts/instruments/english/conventions/9_1_1961.pdf and Vienna Convention on Consular Relations http://untreaty.un.org/ilc/texts/instruments/english/conventions/9_2_1963.pdf
(2) Article 5 (e) and 8 Vienna Convention on Consular Relations. In particular, the latter states: ‘Upon appropriate notification to the receiving State, a consular post of the sending State may, unless the receiving State objects, exercise consular functions in the receiving State on behalf of a third State’.
(3) International Law Commission, Article 1 Draft articles on Diplomatic Protection.
(4) Provided that the requirements of diplomatic protection have been met, i.e. there has been a violation of international law for which the respondent State can be held responsible, local remedies have been exhausted and the individual concerned has the nationality of the acting State. According to Articles 46 and 45 (c) Vienna Convention on Diplomatic Relations, only temporary and at the request of a third State not represented in the receiving State or in case of breakdown in diplomatic relations between two States, a State may, with the prior consent of a receiving State, undertake the protection of the interests of the third State and of its nationals.
(5) In a consistent line of case law, the ECJ has elaborated different aspects and consequences inherent to these treaty provisions, emphasising that “citizenship of the Union is destined to be the fundamental status of nationals of the member states”. See inter alia ECJ, Case C-413/99, Baumbast [2002] ECR I-7091, para. 82; for a recent assessment see Attorney General Colomer, opinion in Cases C-11/06 and 12/06, Morgan and Bucher, 20.3.2007
(6) See: 95/553/EC: Decision of the Representatives of the Governments of the Member States meeting within the Council of 19 December 1995 regarding protection for citizens of the European Union by diplomatic and consular representations ; 96/409/CSFP: Decision of the Representatives of the Governments of the Member States, meeting within the Council of 25 June 1996 on the establishment of an emergency travel document (See the consolidated version from 1.1.2007)
(7) As example of a MS Ratification see FR: http://www.franceurope.org/pdf/adapt/decret2002701.pdf LUX: http://www.legilux.public.lu/leg/a/archives/1997/0049/a049.pdf#page=2
(8) See Council of the European Union, Guidelines on consular protection of EU citizens in third countries, Council Doc. 10109/06, 2.6.2006(a), as adopted by the General Affairs Council during its 2736th Council meeting in Luxembourg, 12.6.2006. See Council of the European Union, Reinforcing the European Union’s emergency and crisis response capacities, Council Doc. 10551/06, Brussels, 15.6.2006(b); see also M. Barnier, For a European civil protection force: Europe aid, European Commission, Brussels, May 2006
(9) European Parliament, Committee on Civil Liberties, Justice and Home Affairs, Working Document on diplomatic and consular protection for citizens of the Union in third countries, 13 June 2007, Rapporteur Ioannis Varvitsiotis http://www.europarl.europa.eu/oeil/file.jsp?id=5531372
(10) “CONSULAR ASSISTANCE : Besides further refining the Lead State Concept, two papers have been studied and adopted by the Consular Affairs working group, as part of the consular guidelines already approved by the Council: an “Internal Information Strategy”, aimed at ensuring proper training of consular staff on issues derived from obligations under the treaties; and a paper on “Consular Crisis Coordination”, aimed at strengthening cooperation during consular crises affecting several Member States. The Commission will assist in the development of a “training kit” on EU-related obligations, to be used by Member States in their national training of staff to be posted abroad. Work has also been initiated to develop the next generation of European emergency travel documents (ETDs) containing new security features. A Troika meeting has been held with the US to discuss issues of common concern and possibilities for strengthened cooperation in third countries. Training sessions for Member State’s consular staff have been organised, facilitating the exchange of information and best practise between actors in the field of consular protection.”

The new powers of the Court of Justice after the entry into force of the Lisbon Treaty

The press release published on November 30th by the Court of Justice is worth reading by everybody interested in the European Law as well by the every individual whishing to bthe protection of its rights.
The very essential and clear text is the following:

The Treaty of Lisbon and the Court of Justice of the European Union

The Treaty of Lisbon, which was signed on 13 December 2007 by the 27 Heads of State or Government of the Member States of the Union, comes into force on 1 December 2009. It amends the two fundamental treaties – the Treaty on European Union (TEU) and the Treaty establishing the European Community, with the latter to be known in future as the ‘Treaty on the Functioning of the European Union’ (TFEU). (1)
The Treaty of Lisbon makes changes to the organisation and jurisdiction of the Court of Justice of the European Union.

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New prospects for relations between the Court of Justice and national courts

Everyone knows the fundamental role of the Court of Justice in the construction of a European legal space. Indeed, thanks to its preliminary rulings which guide the work of national courts when they are called upon to enforce community law. Over the decades, the dialogue between European and national courts has ensured an increasingly faithfully interpretation of community law as well as the development of a true common legal culture.

After all, what value might have fundamental rights to stakeholders if judges are not capable to secure their correct application?

In this regard it must be recognised that the increased synergy between European and national judges (acting in this case as ‘European’ judges) together with the new powers of European Court of Justice in the area of freedom, security and justice resulted by the entry into force of the Treaty of Lisbon will definitely increase individual’s rights in this domain.

For example, in the field of police and judicial cooperation in criminal matters (the so-called “third pillar”), before the entry into force of the Lisbon Treaty, the Court’s ability to issue preliminary rulings relied upon Member States’ discretion on the basis of Article 35 of the Treaty on European Union (*). Indeed up to the 30 November several of these Member States did not accept the Court’s competence competence.

Another example relates to the domains ‘communitarised’ in 1999 with the Treaty of Amsterdam (immigration, borders, asylum and judicial and criminal cooperation). Although in this case the situation was a bit better, Article 68 TEC (**) limited the possibility to obtain pre-trial interpretation only to judges of last appeal.

With the Treaty of Lisbon this situation has radically changed. With a Communication appeared in the Official Journal on 5 December, the European Court of Justice has published a series of apparently non-binding guidelines aimed at establishing a daily relation between national and European judges.

In this regard, the guidelines concerning the urgent preliminary ruling procedure related to the area of freedom, security and justice are particularly interesting. They state:

The procedure is governed by Article 23a of Protocol (No 3) on the Statute of the Court of Justice of the European Union (OJEU 2008 C 115, p. 210) and Article 104b of the Rules of Procedure of the Court of Justice. National courts may request that this procedure be applied or request the application of the accelerated procedure under the conditions laid down in Article 23a of the Protocol and Article 104a of the Rules of Procedure.”

Conditions for the application of the urgent preliminary ruling procedure

33. The urgent preliminary ruling procedure is applicable only in the areas covered by Title V of Part Three of the TFEU, which relates to the area of freedom, security and justice.

34. The Court of Justice decides whether this procedure is to be applied. Such a decision is generally taken only on a reasoned request from the referring court. Exceptionally, the Court may decide of its own motion to deal with a reference under the urgent preliminary ruling procedure, where that appears to be required.

35. The urgent preliminary ruling procedure simplifies the various stages of the proceedings before the Court, but its application entails significant constraints for the Court and for the parties and other interested persons participating in the procedure, particularly the Member States.

36. It should therefore be requested only where it is absolutely necessary for the Court to give its ruling on the reference as quickly as possible. Although it is not possible to provide an exhaustive list of such situations, particularly because of the varied and evolving nature of the rules of European Union law governing the area of freedom, security and justice, a national court or tribunal might, for example, consider submitting a request for the urgent preliminary ruling procedure to be applied in the following situations: in the case, referred to in the fourth paragraph of Article 267 TFEU, of a person in custody or deprived of his liberty, where the answer to the question raised is decisive as to the assessment of that person’s legal situation or, in proceedings concerning parental authority or custody of children, where the identity of the court having jurisdiction under European Union law depends on the answer to the question referred for a preliminary ruling.

However, it must be pointed out that these new competences will not be applied before five years in the area of police and judicial cooperation in criminal matters for acts adopted before the entry into force of the Treaty of Lisbon (art. 10 Protocol 36).

Also with this temporally exception it is nonetheless clear that a new phase has now started also for European judges. The interpretation of community law can now be based on an even more authority Court which in turn can rely on the Treaty and the binding Charter on Fundamental Rights binding for all the institutions, including European and national judges.

EDC

(*) EX Article 35 (TEU)
1. The Court of Justice of the European Communities shall have jurisdiction, subject to the conditions laid down in this Article, to give preliminary rulings on the validity and interpretation of framework decisions and decisions, on the interpretation of conventions established under this Title and on the validity and interpretation of the measures implementing them.
2. By a declaration made at the time of signature of the Treaty of Amsterdam or at any time thereafter, any Member State shall be able to accept the jurisdiction of the Court of Justice to give preliminary rulings as specified in paragraph 1.

3. A Member State making a declaration pursuant to paragraph 2 shall specify that either:

(a)any court or tribunal of that State against whose decisions there is no judicial remedy under national law may request the Court of Justice to give a preliminary ruling on a question raised in a case pending before it and concerning the validity or interpretation of an act referred to in paragraph 1 if that court or tribunal considers that a decision on the question is necessary to enable it to give judgment, or

(b) any court or tribunal of that State may request the Court of Justice to give a preliminary ruling on a question raised in a case pending before it and concerning the validity of interpretation of an act referred to in paragraph 1 if that court or tribunal considers that a decision on the question is necessary to enable it to give judgment. Treaty on European Union 25

4. Any Member State, whether or not it has made a declaration pursuant to paragraph 2, shall be entitled to submit statements of case or written observations to the Court in cases which arise under paragraph 1.

5. The Court of Justice shall have no jurisdiction to review the validity or proportionality of operations carried out by the police or other law enforcement services of a Member State or the exercise of the responsibilities incumbent upon Member States with regard to the maintenance of law and order and the safeguarding of internal security.

6. The Court of Justice shall have jurisdiction to review the legality of framework decisions and decisions in actions brought by a Member State or the Commission on grounds of lack of competence, infringement of an essential procedural requirement, infringement of this Treaty or of any rule of law relating to its application, or misuse of powers. The proceedings provided for in this paragraph shall be instituted within two months of the publication of the measure.

7. The Court of Justice shall have jurisdiction to rule on any dispute between Member States regarding the interpretation or the application of acts adopted under Article 34(2) whenever such dispute cannot be settled by the Council within six months of its being referred to the Council by one of its members. The Court shall also have jurisdiction to rule on any dispute between Member States and the Commission regarding the interpretation or the application of conventions established under Article 34(2)(d).

(**) Article 68 TCE
1. Article 234 shall apply to this title under the following circumstances and conditions: where a question on the interpretation of this title or on the validity or interpretation of acts of the institutions of the Community based on this title is raised in a case pending before a court or a tribunal of a Member State against whose decisions there is no judicial remedy under national law, that court or tribunal shall, if it considers that a decision on the question is necessary to enable it to give judgment, request the Court of Justice to give a ruling thereon.

2. In any event, the Court of Justice shall not have jurisdiction to rule on any measure or decision taken pursuant to Article 62(1) relating to the maintenance of law and order and the safeguarding of internal security.

3. The Council, the Commission or a Member State may request the Court of Justice to give a ruling on a question of interpretation of this title or of acts of the institutions of the Community based on this title. The ruling given by the Court of Justice in response to such a request shall not apply to judgments of courts or tribunals of the Member States which have become res judicata.

After Lisbon, still a bumpy road for transparency in the EU institutions..

Two weeks after the entry into force of the new Lisbon Treaty the main objective of which is to increase the democratic accountability of all the EU institutitions the European Parliament has invited the Council and the Commission to work together on the reform of the EU legislation in this sensitive matter building on the new art. 15 (*) of the Treaty on the functionning of the European Union.
Not surprisingly the debate has showed that the Strasbourg plenary is still alone in the search of more transparency.
The proof of it is the fact that on its side the Commission did’nt move of one comma of its 2008 contested initiative legislative proposal and even confirmed it as a basic text of the legislative work also under the Lisbon Treaty even if it is now clearly outdated face to the last two years of progressive judgments of the Court of Justice and to the Lisbon Treaty which impose the principle of transparency to all the EU Institutions, bodies and Agencies.
On its side the Council has taken an even more restrictive approach by adopting the minimum of possible amendments to its internal rules of procedures following the entry into force of the new Treaty and of some of its directly applicable rules (such as the one referring to the legislative proceedings), followed by the European Council itself where the Head of State and Governement have taken the confidentiality as a general principle in their internal rules.
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