“Person identification, human rights and ethical principles: Rethinking biometrics in the era of artificial intelligence”

STUDY (*) : European Parliament Research Service (EPRS) 16/12/2021

ABSTRACT : As the use of biometrics becomes commonplace in the era of artificial intelligence (AI), this study aims to identify the impact on fundamental rights of current and upcoming developments, and to put forward relevant policy options at European Union (EU) level.

Taking as a starting point the proposal for a regulation of the European Parliament and of the Council laying down harmonised rules on AI, presented by the European Commission in April 2021, the study reviews key controversies surrounding what the proposal addresses through the notions of ‘remote biometric identification’ (which most notably includes live facial recognition), ‘biometric categorisation’ and so-called ’emotion recognition’.

Identifying gaps in the proposed approaches to all these issues, the study puts them in the context of broader regulatory discussions. More generally, the study stresses that the scope of the current legal approach to biometric data in EU law, centred on the use of such data for identification purposes, leaves out numerous current and expected developments that are not centred on the identification of individuals, but nevertheless have a serious impact on their fundamental rights and democracy.

EXECUTIVE SUMMARY

This study explores biometrics in the era of artificial intelligence (AI), focusing on the connections between person identification, human rights and ethical principles. As such, it covers a subject of the greatest political and societal prominence. Among the many controversies in this area, certainly one of the most salient is the discussion surrounding facial recognition, and more specifically about the potential risks stemming from the use of live facial recognition technology in public spaces. The potentially negative impact of the widespread use of such technology has indeed mobilised a strong response from parts of civil society in Europe and globally.

From a policy and legislative viewpoint, in the European Union (EU) this discussion is currently being framed in terms of regulating possible uses of remote biometric identification. Live facial recognition technology uses facial templates that allow for the unique identification of individuals, and thus constitute – due to such capability for ‘unique identification’ – biometric data for the purposes of applicable EU data protection law.

For many years, the exploration of possible normative frameworks to accompany and duly channel the advent of AI has primarily turned around ethical considerations and principles. In 2020, however, the European Commission started openly and decidedly moving towards the adoption of a new legal framework for AI as main priority in this regard. For this purpose, the European Commission notably published in April 2021 a proposal for a regulation of the European Parliament and of the Council laying down harmonised rules on AI (COM(2021) 206 final) (hereafter also ‘the proposed AI act’ or ‘the proposed AIA’).

The proposal puts forward rules that apply to a variety of AI systems. Demonstrating the importance of biometric technologies, three types of AI systems, explicitly defined in the proposal and subject to specific rules, are in fact defined in the very text of the proposal on the basis of their connection with biometric data: these are ‘remote biometric identification systems’, ’emotion recognition systems’ and ‘biometric categorisation systems’:

  • remote biometric identification systems are defined as AI systems used ‘for the purpose of identifying natural persons at a distance through the comparison of a person’s biometric data with the biometric data contained in a reference database, and without prior knowledge of the user of the AI system whether the person will be present and can be identified’;
  • emotion recognition systems are defined as AI systems used ‘for the purpose of identifying or inferring emotions or intentions of natural persons on the basis of their biometric data’, and
  • biometric categorisation systems are defined as AI systems used ‘for the purpose of assigning natural persons to specific categories, such as sex, age, hair colour, eye colour, tattoos, ethnic origin or sexual or political orientation, on the basis of their biometric data’.

These notions are however not yet fully consolidated at EU level, and thus one of the objectives of the study is to unpack their rationale, scope and possible limitations.

The proposed regulation defines ‘biometric data’ as ‘personal data resulting from specific technical processing relating to the physical, physiological or behavioural characteristics of a natural person, which allow or confirm the unique identification of that natural person, such as facial images or dactyloscopic data’ (COM(2021) 206 final 42). This definition of biometric data is exactly the same as the one featured in the main instruments of EU data protection law, where the processing of biometric data for the purpose of uniquely identifying a natural person is regarded as constituting the processing of a special category of data that deserves the most stringent level of protection.

Scope and structure of the study

This study has been prepared on the basis of desk research. The focus of the study is the EU framework, although due consideration has also been given to international developments when relevant. The study first provides an overview of current trends in biometrics and AI, including technological considerations and information about notable uses, as well as specific information in relation to remote biometric identification, emotion recognition and biometric categorisation. Second, it presents the regulatory framework, illustrating that ongoing developments in the area of biometrics and AI do not occur in a legal vacuum, but amid pre-existing legal provisions and overarching EU fundamental rights obligations. Third, it reviews current policy discussions, in particular in the EU and as embodied by the European Commission’s proposal for a regulation on AI, and then puts forward policy options.

Biometrics and AI

Biometric data are increasingly used in a great variety of contexts. At EU level, the processing of biometric data has been actively encouraged and directly supported over the past years in the context of EU-level large-scale information technology (IT) systems in the area of freedom, security and justice (AFSJ). These systems, initially set up by the EU for asylum and migration management but increasingly also serving internal security, almost systematically rely on the massive collection of biometric data.

The review of ongoing technological and societal developments at the crossroads of biometrics and AI shows that, although identification is a crucial notion for biometrics, there are many developments aimed not primarily at identification but at the categorisation of individuals, assigning them to different categories, for instance on the basis of age or gender. It is however not always clear how the processing occurring for the purposes of categorisation is linked to identification, or to what extent such practices can always be separated.

Most notably, it is sometimes unclear, first, whether the data processed for categorisation purposes concern an identified or identifiable person at all, and whether such data should thus be regarded as personal data for the purposes of EU law. Second, it is sometimes unclear whether the data at stake – which often relate to the body – constitute or not biometric data, which requires taking into account whether the data allow for the identification of the individual (even if they are processed for the purpose of categorisation). Complicating the situation further, sometimes the categorisation of individuals is in practice a step taken towards their identification.

Regulatory framework

There is currently no European legislation relating exclusively to biometrics. The most directly relevant specific rules of EU law are to be found in EU data protection law. In addition, the whole existing EU fundamental rights architecture is fully applicable to the use of biometric technologies.

A review of this architecture and of the most relevant rules on biometrics and on automated decision-making in EU data protection law, as well as of the most important case law in this area emanating from the Court of Justice of the EU (CJEU) and the European Court of Human Rights (ECtHR), shows that ongoing technological developments are taking place amid – and possibly also somehow despite existing rights and principles, which might thus possibly need to be reinforced, clarified, or at least fine-tuned.

Impact on fundamental rights

AI-enabled biometric technologies pose significant risks to numerous fundamental rights, but also to democracy itself. In this sense, for instance, the pervasive tracking of individuals in public spaces constitutes not only a major interference with their rights to respect for private life and to the protection of personal data, but can also impact negatively on their rights to freedom of expression, and to freedom of assembly and association, altering the way in which certain individuals and groups are able to exercise social and political protest. The deployment of facial recognition technologies during peaceful assemblies can discourage individuals from attending them, limiting the potential of participatory democracy. Bias and discrimination are a well-documented issue in this field, and can be the result of a variety of factors.

Different uses of biometric technologies can have different specific types of impact on fundamental rights. The deployment of remote biometric identification in public spaces, in this sense, is particularly problematic as it potentially concerns the processing of individuals’ data – without their cooperation or knowledge, on a massive scale.

Regulatory trends and discussions

There is an ongoing – even if not fully systematic – shift from the discussion of ethical frameworks for AI to the regulation of AI systems by law. It appears nevertheless clear to many actors that an improved framework is needed to guarantee the fairness, transparency and accountability of AI systems, an objective that can be pursued by enhancing representation at various levels of decision-making.

Developments in the United States (US) are numerous and illustrate a variety of approaches, most notably targeting facial recognition. In Europe, the Council of Europe has been particularly active in this area and is currently working on a possible new legal framework at its level for the development, design and application of AI, based on recognised Council of Europe standards in the field of human rights, democracy and the rule of law. In 2021, there was registered a European citizens’ initiative named ‘Civil society initiative for a ban on biometric mass surveillance practices’, calling for strict regulation of the use of biometric technologies in order to avoid undue interference with fundamental rights.

The European Commission published its proposal for a regulation of the European Parliament and of the Council laying down harmonised rules on AI (COM(2021) 206 final) on 21 April 2021. The proposal is based on Articles 16 and 114 of the TFEU, on personal data protection and the internal market, respectively. The proposed AI regulation prohibits the use of some AI systems (listed in the proposed Article 5), and qualifies other AI systems as ‘high-risk’, detailing the rules applicable to such ‘high-risk’ systems.

The area of biometric identification and categorisation of natural persons is in principle ‘high risk’, but under this heading (heading 1), only a concrete group of AI systems are mentioned: ‘AI systems intended to be used for the ‘real-time’ and ‘post’ remote biometric identification of natural persons’. There is, however, no reference to biometric categorisation being recognised as ‘high risk’. Potentially, it is possible to imagine there might exist AI systems that involve the processing of biometric data in all other areas listed as ‘high risk’.

The AI regulation proposed by the European Commission foresees, as a general principle, ‘the prohibition of the use of ‘real-time’ remote biometric identification systems in publicly accessible spaces for the purpose of law enforcement‘. Nevertheless, such real-time remote biometric identification systems can be used as far as such use is strictly necessary for certain objectives and under certain conditions.

The proposed AI regulation explicitly excludes from its scope of application AI systems that are components of existing and upcoming EU-wide large-scale IT systems, if the systems were placed on the market or put into service during the first year of application of the regulation, or before that date. This rule would, however, not be applicable if the legal acts establishing such EU-wide large-scale IT systems would lead ‘to a significant change in the design or intended purpose of the AI system or AI systems concerned’ (proposed Article 83(1) AIA). The proposed text notes, despite the proposed regulation not being applicable as such to the systems mentioned, that the requirements that it lays down must ‘be taken into account, where applicable’ in the evaluation of these large-scale IT systems as provided for in those respective acts (idem), but it is unclear what such ‘taking into account’ would imply.

Policy options

In light of the findings of the study, the following policy options are put forward:

Delimit better the regulation of biometrics and biometric data: the proposed AIA reproduces the definition of ‘biometric data’ present in EU data protection law since 2016. The interpretation of the definition is not completely clear, and there are significant uncertainties as to how to apply EU data protection rules to biometric data. The definition, in any case, does not appear to cover all the problematic practices that are often framed in the literature and even by policy-makers as related to biometrics. It is thus important to shed further light on the scope and relevance of the definition, but also to think critically about the impact of conditioning some other notions put forward in the AIA (such as ‘biometric categorisation’ or ’emotion recognition’) to the processing of biometric data defined in such a way.

Improve the future qualification of new AI systems as high-risk: it is necessary to envisage a faster, clearer and accessible path to qualifying additional AI systems as high-risk systems in the future. Civil society organisations could be given a role to raise the alarm of major risks, especially insofar as the affected persons would potentially be in vulnerable positions.

Explicitly ban certain uses of live facial recognition: the proposed AI regulation fails to prohibit real-time remote biometric identification in public spaces for law enforcement purposes, despite conceding that it triggers even more risks than ‘high-risk’ AI systems. The regulation should at least formally and effectively ban the persistent tracking of individuals in public spaces by means of remote biometric identification, as it has major consequences for fundamental rights and democracy.

Regulate ‘post’ remote biometric identification in the same manner as ‘real-time’ remote biometric identification: the proposed AI regulation fails to address properly the risks connected with the retroactive identification, using facial recognition, of individuals whose images have been recorded while they were in public spaces. In practice, the risk of persistent tracking and its associated adverse impact on fundamental rights and democracy are, however, at least equivalent to the risk associated with ‘real-time’ remote biometric identification. ‘Post’ remote biometric identification of natural persons recorded while in public spaces should be subject to the same rules as the ‘real-time’ equivalent.

Establish at EU level the necessary safeguards for real-time remote biometric identification: the proposed AI regulation leaves it up to the Member States to define, by law the exact conditions for the use of in principle prohibited but actually permitted real-time remote biometric identification in public spaces for law enforcement purposes. The only detailed condition is the need for prior authorisation granted by a judicial authority or by an independent administrative authority. Substantive safeguards for the prohibited but exceptionally permitted uses of real-time remote biometric identification, if any, must be specified at EU level in the future AIA itself, as opposed to being left to the discretion of the Member States.

Ban AI systems assigning to categories that constitute sensitive data based on biometric data: the proposed AI regulation gives a definition of ‘biometric categorisation system’ that is unclear and conceptually problematic, most notably to the extent that it seems to endorse the idea that it is possible – scientifically, ethically and legally – to use AI systems to assign natural persons to a sexual or a political orientation. If a reference to the use of similar AI systems persists in the draft, it should be phrased clearly as a prohibition.

Clarify the regulation of ’emotion recognition’: the status of ’emotion recognition’ in the proposal for a regulation on AI is not entirely clear. The proposed definition of emotion recognition seems to imply that emotions and intentions of individuals can be inferred from biometric data. This would only possibly make sense if biometric data are understood in a broad sense, not limited to data concerned with the unique identification of individuals. In addition, the list of high-risk systems in Annex III includes various references to systems used ‘to detect the emotional state of a natural person’, without clarifying if these would correspond to what is defined as ’emotion recognition’ systems or would potentially be something else.

Increase transparency towards individuals as a necessary means to guarantee rights and remedies: the proposed AI regulation privileges imposing obligations on actors other than the users of AI systems, who are only subject to a limited number of provisions. The use of extremely high-risk systems in particular should be conditioned to additional obligations imposed on users towards individuals, notably in terms of transparency both prior to the use and during the use. Transparency is crucial for the exercise of rights and the effectiveness of remedies. Limitations to transparency should be compensated with measures that guarantee the accountability of such limitations.

Do not allow for special exemptions to general rules for EU large-scale databases: the use of biometrics and AI in EU large-scale IT systems is massive, raising serious risks for fundamental rights. The fact that the European Commission’s proposal for a regulation on AI deliberately leaves out of its scope of application certain AI systems to be used in the AFSJ is of great concern. It is essential that large-scale IT systems in the AFSJ comply fully with the highest standards of EU law.

LINK TO THE FULL STUDY LINK TO THE ANNEX

(*) This study has been written by Professor Gloria González Fuster and Michalina Nadolna Peeters of the Law, Science, Technology and Society (LSTS) Research Group at Vrije Universiteit Brussel (VUB) at the request of the Panel for the Future of Science and Technology (STOA) and managed by the Scientific Foresight Unit, within the Directorate-General for Parliamentary Research Services (EPRS) of the Secretariat of the European Parliament.

Belarus Crisis : Should also the European Parliament ask the Commission to withdraw its art.78.3 TFEU Proposal ?

by Emilio DE CAPITANI

On Wednesday 15th following Council and Commission statements a Plenary debate is foreseen on a  Legislative proposal by the European Commission for a “COUNCIL DECISION on provisional emergency measures for the benefit of Latvia, Lithuania and Poland” (2021/0401(CNS) COM(2021) 752). The proposal has been referred to the Civil Liberties Committee (LIBE) and the legal basis is the art.78.3 of the TFEU according to which: «In the event of one or more Member States being confronted by an emergency situation characterized by a sudden inflow of nationals of third countries, the Council, on a proposal from the Commission, may adopt provisional measures for the benefit of the Member State(s) concerned.”

  1. On the choice of art. 78.3 as legal basis 

The first point to be evaluated by the EP is if the chosen legal basis is appropriate and justified bearing in mind that the so called “sudden inflow of third Country nationals” started five months ago and has substantially decreased in the recent weeks (also because of the EU diplomatic and political pressure exerted on Belarusian authorities). Are still today Poland Lithuania, and Latvia in an emergency situation? This is apparently no more the case even for the Members of the  European Commission who some days ago didn’t qualify it as a migration crisis, declared that the situation was easing, and even that the influx of migrants to Minsk “has more or less stopped totally.”

If so, the chosen legal basis of art.78.3 which under exceptional  circumstances unsettles on a temporary basis the institutional balance and the principle of “separation of powers” in the EU is no more appropriate. Choosing art.78.3 should remain the Ultima Ratio and the EP should continue playing fully his Constitutional responsibilities and a co-decisive role in a domain where the EU intervention is deemed to give specific expression fundamental rights such as the right to asylum or the non-refoulement obligation. Furthermore excluding the European Parliament by maintaining the current art.78.3 legal basis will also be extremely prejudicial to the EP credibility also because the draft Decision intend to amend even if on a temporary basis some pieces of EU legislation hardly negotiated and adopted by the EP.

Under these circumstances it could be wise for the EP to decide on the position to be taken if maintaining or not art.78.3 as a legal basis only after having verified on the ground and with the EU Member States concerned what is the current state of things.

  • Can an “Hybrid war” justify the violation of fundamental rights ?

For the EU and its Member States this may look as a rhetorical question but in the case of the Belarus crisis is not. As recently  stated by several ONGs, “while the people in the middle of the crisis are being used as parties in the conflict between the EU and Belarus which has a security dimension, the people themselves are not a security threat, and should neither be referred to nor be treated by either side as though they were a weapon.” Migrants not being themselves a security threat it is important that , at least the EU and Its Member States respect the EU and international law according to which everyone seeking asylum at the borders, irrespective of the manner of their arrival, has the right to make an asylum application. As a consequence access to asylum in Poland, Lithuania and Latvia should be restored both in law and in practice.

The state of emergency declared by the EU Member States blocking  the arrival of civilian and vulnerable people may become an overreaction as it is preventing people from reaching the EU’s territory. Seeking asylum is a fundamental right and non-refoulement is a non-derogable principle that must be observed even in times of emergency.

The use of force, conducting push-backs, prohibiting asylum applications from being lodged through limiting effective access to the procedure via geographical restrictions on where claims can be lodged, are practices incompatible with international and EU law.

As denounced by Human Rights Watch these clear violations of the law by Belarus could not justify a similar behavior by the EU Member States on the other side of the border.

This is notably the case of Poland whose Parliament has decided that migrants can be « pushed back » to the Border and that their asylum requests can be ignored.

Morevoer the fact that the ECHR has adopted not less than 47 Interim Measures in conformity with art.39 of the ECHR to block several refoulements (now  called “push backs”) as it is the silence of the European Commission (so called “Guardian of the Treaties”) on the same facts.

  • How EU Solidarity may be decisive to overcome the Belarus crisis ?

Unfortunately migratory and Asylum Crisis are not new in the EU History. Since the fall of the Berlin Wall and the adoption of the Treaties of Maastricht and Amsterdam the EU has played a growing role in helping its member states in moment of emergency and crisis. Already in 2001 an EU Directive (still into force) has been adopted to face situations where a mass influx of people could push under pressure the Member States Asylum services. In these cases a temporary humanitarian protection may be granted for the time necessary to examine the request for asylum,  and a relocation mechanism is foreseen to share the burden with the other EU Member States. This very notion of EU solidarity is now mirrored in art. 80 of the TFEU and has been the background of the relocations measures adopted in 2015 to help Italy and Greece which were under the pressure of the migrants escaping the Syrian War.

Quite surprisingly the European Commission has not yet foreseen a similar initiative to support Lithuania, Latvia and Poland by relocating in other EU countries, (even on a voluntary basis) the migrants stranded at the Belarus Border.

For the time being the solidarity  has been of financial nature and €360 million have been allocated to these Member States under the Border Management and Visa Instrument (BMVI) for this financial period, and a  further top-up of around €200 million (that will be available for 2021 and 2022) has been granted to support them in managing the inflow of some thousands Third Country Nationals. These financial initiatives should be more than welcome but as in all the other cases of EU financing should be conditioned to the full respect of fundamental rights and of the Rule of Law (as required by the “Common Provisions” Regulation and the Regulation on Budgetary conditionality).

4 On the content of the Commission draft Decision

By choosing the art. 78.3 as legal basis the European Commission had the opportunity on the basis of the CJEU jurisprudence to submit (even if only on a temporary basis) the long awaited revision of the Dublin Regulation (which still after Lisbon ignores the notion of Solidarity in art. 80 of the TFEU) or could have proposed the humanitarian visa at EU level (as repeatedly required by the EP) or even the establishment of humanitarian corridors not to speak of the decriminalization at EU level of ONG intervening for humanitarian reasons.  

Quite the reverse the main derogations proposed by the European Commission have been to some essential EU Directives already adopted in co-decision by the European Parliament such as:

-the Asylum Procedures Directive (Article 6(1) of, Articles 25(6) point (b), Article 31(8) and 43(1) point (b) Article 43(2) Article 46(5) and (6) (see art.2 of the Commission Proposal)

– the Asylum “Reception” Directive 2013/33/EU Article 17 and 18 (see art.3 of the Commission Proposal)

– the “Return” Directive 2008/115/EC. (see art.4 of the Commission Proposal)

The proposed derogations are highly questionable because almost all the measure presented as an expression of the principle of Solidarity are de facto at the expenses of the Migrants fundamental rights. Moreover they create a blurred space which threatens the principles of legal certainty and of the Rule of Law not to speak of the EU mission of placing “…the individual at the heart of its activities, ..” (EU Charter Preamble).

As a result of this proposal fundamental rights could be threatened without relieving the pressure on the EU Member States involved.

It is then not surprising that most of the measures proposed have already been severely criticized by and civil society representatives and legal scholars such as the Meijers Committee, which in its comments on December 14th, criticized:

  • The broad possibilities to apply an accelerated border procedure without consideration of personal circumstances other than particular health issues; Short time limits may make it impossible for the applicant to substantiate his asylum application and for the authorities to conduct an appropriate examination of the application. The obligation to follow an accelerated procedure in these situations may lead the determining authority to refrain from a rigorous examination of the application. The ECtHR has held that the speed of the procedure cannot undermine the effectiveness of the procedural guarantees which aims to protect the applicant against arbitrary refoulement. The CJEU has also recognised in its case law that short time limits may impede the effective exercise of EU procedural rights, such as the right to be heard.
  • The excessively lengthy period granted to Member States for registering an asylum application and granting access to their territory, likely to result in large scale  de facto detention at the external borders. Although the asylum border procedure does not necessarily entail detention, applicants subject to the asylum border procedure are not authorised to enter the Member State’s territory. This will in all probability lead to a considerable increase in the use of detention of applicants for international protection.
  • Withholding automatic suspensive effect of appeals in the ‘emergency migration and asylum management procedure’; and the lowering of reception conditions to the basic minimum, which is not further defined in the proposal, and risks not being able to address the particular needs of asylum seekers as a vulnerable group in need of special protection. It is of importance to note that the ECtHR has held that in view of the importance of Article 3 of the Convention and the irreversible nature of the damage which may result if the risk of torture or ill-treatment materialises in cases in which a State Party decides to remove an alien to a country where there are substantial grounds for believing that he or she faces a risk of that nature Article 13 requires that the person concerned should have access to a remedy with automatic suspensive effect.

Not surprisingly the Meijers Committee ask the Commission to withdraw its Proposal and it is now up to the EP to decide if endorsing the same request by reserving the right to challenge the text before the Court in case of adoption by the Council.

Are “sovereign” decisions really above the law? After Sharpston, what about the new EU agencies “seats” cases?

by Ezio PERILLO (*)

Following the Sharpston-Council orders, declaring the former British Advocate General’s action against the appointment of a new AG inadmissible (cases C-684/20P and C-685/20P, 16 June 2021), even the decisions that the governments of the Member States claim to take by mutual agreement for determining the seats of the European agencies seem to fall outside the EU Court’s judicial review. This is, at least, the opinion expressed by AG Bobek, delivered on 6 October 2021, in joined cases, EMA (European Medicines Agency) and ELA (European Labour Authority), C-59/18, C-182/18 and C-743/19, and EMA C-106/19 and 232/19. According to the AG, these are “decisions taken by the Member States outside the framework of the Treaties” (paragraph 173) [1].

I will say right away, in tweetmode, that the opposite solution is also true.

  1. “Sovereign” national decisions or obligations of European origin?

In establishing the Community’s institutions, the Masters of the Treaties decided at that time, for political and practical reasons, to “delegate” to their respective governments the task of determining their seats. Article 341 TFEU still provides, nowadays, that “the seats of institutions of the Union shall be determined by common agreement of the governments of the Member States“.

These decisions are therefore taken by the national governments in their own name and on behalf of the authors of the Treaties but, substantially, in the exclusive interest of the European Union, since the seats to be determined are those of the institutions belonging to this new legal order.

It follows that, in this context, national governments fully act within the EU legal framework and not outside of it, as if they were actors of international law. In so acting, they shall therefore respect the limits attached to this delegation as well as the prerogatives which the Treaties confer in similar matters to the EU institutions.

In other words, if they extend, at their discretion, the scope of the delegation received by the Masters of the Treaties, national governments act ultra vires. In this event, the corresponding decisions must be subject to the judicial review of the Court of Justice which has indeed the duty to ensure the observance of the institutional balance between the prerogatives the treaties confer to the national governments and those conferred to the EU institutions.

These decisions are therefore “atypical Union law acts“.

The same applies, by the way, also to the appointments of the members of the EU Court, which the Masters of the Treaties did not certainly intend to leave to the arbitrium (the free will) of their governments.

For instance, article 253 TFEU, currently provides that “every three years there shall be a partial replacement of the Judges and Advocates-General”. Exactly a three-year term! Not one that best suits their respective governments.                                                                                                                                                                                                                                                                                        

The Community is a legal order and not a mere arrangement founded on convenience“, stated Robert Lecourt, the eminent president of the EU Court, back in 1976, pointing his finger at certain governments lagging behind. Indeed, ” the institutional provisions of the Treaties [those relating, in this case, to the appointment of the EU judges], and the dates when they are to be applied are binding and leave no room for discretion [2].

2. Determining the seats of the institutions and agencies: two different procedures

First of all, there is no specific provision of EU law on the seats of European agencies similar to that of Article 341 TFEU on the seats of the institutions.

Instead, the general competence for establishing European agencies, on a sector-by-sector basis, is with the European Parliament and the Council, as EU lawmakers, and, in a specific case, solely with the Council.

Article 45 TEU, specifically states that the “statute, seat and operational rules” of the European Defence Agency are established by the Council and, therefore, not by the governments of the Member States (see, in this regard, also current Articles 85(1) and 88(2) TFEU on Eurojust and Europol).

It follows that, according to the Lisbon Treaty, the basic, general rule on this matter is: “only who has the authority to establish an agency (the European Parliament and/or the Council), has the authority to determine its seat as well”.

3. The location of the EU agencies and Protocol No. 6 to the Lisbon Treaty

Still, according to the Council, Protocol No. 6 to the Lisbon Treaty extended the scope of Article 341 TFEU to include the location of the seats of agencies.

However, unlike all the other 36 Protocols annexed to the Treaty (the introductory line of which is “The High Contracting Parties … have agreed“), Protocol No. 6 begins with the words “The representatives of the Governments of the Member States“, i.e.  legal entities which, in principle, are not entitled to adopt Protocols or amend or interpret the Treaties[3].

Therefore, regardless of the countless “practices”, which are certainly not customary, followed in recent years by the Council (sometimes, perhaps, even contra legem Unionis[4]), Protocol No. 6 remains a mere implementation act pursuant to Article 341 TFEU and can in no way constitute an appropriate legal source allowing for an extensive interpretation of this article so as to include the location of the agencies. According to article 341 TFUE, the national governments are, indeed, “obliged” to implement the scope of this provision and not “authorised” to extend it. To quote, once again, president Lecourt, “the Community is a legal order and not a mere arrangement founded on convenience“.

4. The notion of “institutional balance” and the broad interpretation of Article 263 TFEU

In its Post-Chernobyl judgment dated 22 May 1990, C-70/88, the EU Court, reversing its own initial case-law, stated that the same was required to “ensure preservation of the institutional balance and, consequently, [to ensure, with respect to each institution, the necessary] judicial review“, because this entails protection of the prerogatives which the Treaties expressly have conferred on each of them (paragraphs 21-23).

Thus, “ the absence in the Treaties of any provision giving the Parliament the right to bring an action for annulment may constitute a procedural gap, but it cannot prevail over the fundamental interest in the maintenance and observance of the institutional balance laid down in the Treaties” (paragraph 26).

It follows that the list of challengeable acts in that article, just like the list of persons entitled to bring an action, is not comprehensive.

However, in Sharpston, EMA and ELA cases, the acts challenged before the Court were not acts by the institutions, as in the Post-Chernobyl case, but decisions taken, upon common accord, by the national governments.

Even considering this important difference, I believe that our jurisprudential framework remains unchanged.

Observance of the EU institutional balance is in fact an “autonomous”, European legal principle, which “requires that it should be possible to penalize any breach of that rule which may occur” (paragraph 22). Constitutionally speaking, institutional balance means “separation of powers”, i.e. a legal structure governed by constitutional “checks and balances”. So, if it is for the institutions and the national governments to respect the “EU Treaties balances”, it is for the EU Court to ensure, in case of breach of the institutional balance, the due “EU judicial checks”.

5. Three examples of national governments’ decisions

Let’s suppose that the national governments were to appoint, upon common accord, not only some judges of the EU Court or of the EU General Court (see article 253 and 254 TFUE) but also, during the same intergovernmental meeting, certain judges of a specialised court, such as, for example, the European Civil Service Tribunal (before its abolishment a few years ago).

The difference is obviously not a formal one. According to article 257 TFUE, the appointment of the judges of a specialised court is a decision of the Council which, as such, is an act potentially subject to an action for annulment pursuant to Article 263 TFEU. On the contrary, any “all-in-one” appointment decision by the national governments, concerning all the three categories of EU Court members, would not, at least on paper (or according to the nomen auctoris criterion), be included among the acts specifically provided for by that article.

The EMA and ELA cases are not much different from this hypothesis.

In these cases, the national governments have in fact decided to transfer (in EMA) and set up (in ELA) the seat of two EU agencies despite the fact that (i) Article 341 TFEUverbatim limits such power to the determination of the seat of the EU “institutions”, and (ii) Protocol n. 6 does not allow the extension in the scope of the delegation under such Article.

In these three cases and in light of the PostChernobyl judgment, the institutional balance has clearly not been observed.

Therefore, the national governments, acting in compliance with the obligations referred to in Articles 253 and 341 TFEU, i.e. in “the fields covered by Union law” (Article 19 TEU), are fully subject to the EU Court judicial review process. And, in this context, it belongs only to the EU Court to ensure the crucial “effective judicial protection” (Article 19 TEU) against breach of the institutional balance at stake[5].

6. Conclusions

Observance of the institutional balance is a general rule designed to ensure the proper functioning of the entire system for the distribution of competences created within the Union’s legal system. Accordingly, “any breach of that rule” shall be subject to a sanction by the EU Court for the purpose of ensuring an “effective legal protection”, notwithstanding any procedural shortcomings of Article 263 TFEU.

Ultimately, the combination of these two factors – i.e. observance of the institutional balance and effective judicial protection – also strengthens the legality of the intergovernmental decisions taken by the national governments according to articles 253 or 341 TFUE. Indeed, in Union law these decisions cannot constitute “les faits des princes”. On the contrary, they are acts taken in the exclusive interest of the Union and which shall therefore be adopted in compliance with rule-of-law and democracy values around which the entire legal structure of the Union revolves.

(*) Former General Court Judge and EP Director

NOTES


[1] With reference to the Sharpston orders,see L. Gradoni, Unpersuasive but Wise: how the CJEU (Almost) Made the Right Call in Sharpston, in Verfassung Blog, 24 June 2021. On EMA and ELA cases see, T. Bucht, Sometimes less is more, a critical view on AG Bobek’s Opinion on the seats of the agencies, in European Law Blog, 14 October 2021.

[2] See, Curia, Formal Hearings, 1976, p. 27.

[3] It is worth noting that in the Treaty for European Constitution, Protocol No. 6 began with the words “the High Contracting Parties“. After failure to ratify that Treaty, however, this sentence was replaced, as in the previous Treaties of Amsterdam and Nice, with the correct wording, namely “the representatives of the Governments of the Member States …”.

[4] In the case, for instance, of the first regulation establishing the EMA, adopted at the time by the Council with the Parliament merely giving its opinion, Article 74 of that act provided: “This Regulation shall enter into force on the day following that on which the competent authorities have decided on the seat of the Agency”. The entry into force of a Community’s regulation cannot be affected by a decision resting with unidentified authorities not involved in the legislative process in question, such as the national governments. If that were the case, this would constitute a clear breach of the principle of legislative autonomy characterizing the Union’s legal system. In any event, the rules governing the adoption of the legislative Union acts are not available to the institutions nor the national governments. The Court should therefore not go along with it, especially when the institutional balance’s observance is at stake.

[5] Otherwise, such decisions would be deprived of any kind of judicial review, since no other Court, whether national or international, such as the European Court of Human Rights, could legitimately hold jurisdiction over the legality of EU collective national governments acts.

Are the new EU Agencies in the Freedom Security and Justice Area Becoming the New Sorcerer’s Apprentices? (*)

by Emilio De Capitani & Giulia Del Turco

Agencification is a relatively recent and yet highly relevant phenomenon at EU level: developed over the past two decades, it can be seen as a compromise between the functional needs to provide Brussels with more regulatory capacity and the reluctance of the Member States to transfer executive authority to the European Commission. Agencies have been rapidly mushrooming, being empowered with a wide range of regulatory tasks and resources.
According to the 2020 European Court of Auditors report, the existing 42 agencies can count on a total budget of €3.7 billion, their staff amounting to 12,881 officials (about 18% of the total number of staff members employed by the EU).

Since the entry into force of the Amsterdam Treaty (1999), agencies have increased their role notably in the Area of Freedom Security and Justice (AFSJ), to such an extent that they are now implementing (if not, in some cases, designing) some essential policies: protection and promotion of Fundamental Rights (FRA), management of large Information systems (EU-LISA), strengthening of the police cooperation (EUROPOL, CEPOL, EMCDDA, ENISA),
judicial cooperation in criminal matters (EUROJUST, EPPO), establishment of a Common European Asylum System (EASO, now becoming EUAA) and, last but not least, shaping the EU Integrated Border management (Frontex/EBCG).

This process is not without controversies and has indeed raised many issues in the scientific debate (See the 2018 EP Study “EU Agencies, Common Approach
and Parliamentary Scrutiny”
). What is particularly striking is that, apart from Europol and Eurojust, there is no explicit legal basis in the Treaties, nor a clear reference to the possibility of delegating to the EU Agencies a discretional power, even if the EU Court of Justice (ECJ) has recently updated its old “Meroni doctrine” (according to which the EU institution cannot delegate their discretional powers to other bodies and this to preserve the institutional balance between the institutions themselves and in a more general perspective the democratic accountability of the EU construction as such).Following the 2014 “ESMA” ruling – where the ECJ considered that Agencies may exercise some discretional powers, although circumscribed by various conditions and criteria – the situation has radically changed. The EU legislator is creating new agencies by conferring them a vast set of powers, ranging from strategic to regulatory and operational powers with also a treaty-making and budgetary competence (as clearly written in the new founding regulations of Frontex and of the European Agency for Asylum).

Such trend may be understood as a consequence of the expansion of EU competencies and powers since the entry into force of the Lisbon Treaty. But it is taking place in a questionable way because the tools are created before defining in clear terms the legal and political framework of the policy which the new agency should serve. Quite paradoxically, being it difficult to agree on a common policy (e.g., a common migratory policy), the EU legislator is turning to the creation of a “technical” tool, which could pave the way for the establishment of the common EU policy. Accordingly, Europol defines the objective of the EU Internal Security policy that it should implement; Frontex defines the content of the integrated border management it is deemed to implement; the EU Agency on Asylum has been reshaped before the definition of the Common European Asylum System and has been charged of the definition of a Fundamental Rights Strategy in this domain. Unfortunately, these apparent “pragmatic” shortcuts are only delaying the hard political and Institutional choices which should be made.

Moreover, the principles of legal certainty and of the EU institutional balance risk to be shattered: formally, Agencies are set up as “independent” supranational bodies, but in fact they are mainly driven by Member States representatives, while the European Commission has a very limited control on their Management Board. Similarly, both the European and the National
Parliaments have no real means of controlling the Agencies activity because most of their activities is classified as confidential and it is extremely difficult to retrieve both at European and national level. Directors answer to the management Board where Ministerial representatives share the same profile and have no incentive in denouncing any possible shortcoming.

Not surprisingly, being freed from adequate external control, some Agencies are operating outside the scope of their mandate, as it patently happens in the case of Frontex. The latter whose legal basis covers the protection of the external borders and of Irregular migration is de facto becoming a central piece of the EU Internal Security policy (which should be in principle be covered by other legal basis in the EU Treaties) by so becoming de facto the first EU-wide Law Enforcement Authority.

To make things even more worrisome, these Agencies now enjoy also operational powers in domains where EU legislation is adressed to the Member States and does not frame the activities of the EU Agencies (with the exception of EPPO, and of the EDPS). To overcome this situation there are an increasing number of soft law instruments such as “Guidelines”, “Handbook”… which could not be considered an adéquate legal basis when impacting or limiting individual fundamental rights. Even if since the entry into force of the Lisbon treaty there is the possibility of asking a judicial redress before the Court of Justice it is self evident that both administrative or judicial mechanisms of accountability are, to say the least, difficult to trigger (notably in case of omission), by vulnerable categories such as migrants and asylum seekers (not to speak of the EU Citizens themselves).

Last but not least the lack of a legal framework for the implementation of the principle of good administration as required by art. 41 of the EU Charter and of art.298 of the TFEU is worsened by the lack of a credible policy on access to internal documents so that it becomes almost impossible for an ordinary EU citizen as well as for a specialized journalist to discover possible Agencies’ wrongdoing or omissions.

In such degrading situation it would be sensible that the European Parliament with the active support of the European Commission re-launch the initiative of a true binding legal framework for this parallel and unchartered EU Agencies administrative world.

The situation is more than urgent for Agencies operating in the Freedom, Security and Justice Area and it would be wise that the Parliamentary Committee in charge of controlling those Agencies (LIBE) establish as soon as possible an inquiry on the real impact of these Agencies in the European Freedom Security and Justice Area. At the end of the day, all these Agencies have been shaped and established in co-decision also by the European Parliament and this institution, no matter of the Meroni or ESMA jurisprudence, is at least indirectly corresponsible of their current shortcomings. Furthermore it should now be clear that the “Strategies” framing the activities of these Agencies should be endorsed by the European Parliament and the Council themselves (at least as delegated acts according to art.290 of the TFEU) and their Executive Directors should have a time limited mandate and enjoy the trust of both the co-legislators and be accountable before the European Parliament as it is the case, for instance for the US Congress.

Emilio DE CAPITANI

Against this background, the Academy of Law and Migration (ADIM) devoted its Fourth annual Conference (recording available here) to the complex issues surrounding the agencies operating in the AFSJ. In particular, it addressed the question as whether and to what extent the expansion of their mandates provides adequate solutions to the implementation needs and shortcomings of the EU migration governance. But also, whether and to what extent this expansion of powers has been accompanied by an equally increased level of accountability with regard to the agencies’ operational and administrative tasks.

In particular, Jacopo Alberti (see at min. 7:38) provides an overview of the topic of decentralized implementation through agencies, highlighting the institutional and normative issues that arise from the lack of a legal basis in the Treaty for the creation of such agencies. Attention is especially devoted to the negative implications of the use of soft law instruments by the agencies, mostly in terms of judicial review. Such issue is also dealt with by reflecting on the opportunity to extend to the AFSJ the experience of the Board of Appeal, an internal but independent administrative review mechanism, which is already available in 9 EU agencies, allowing individuals to review the validity of the actions of agents.

Valsamis Mitsilegas (see at min. 28:57) questions whether the experimentalist governance, which denotes a certain excess on the extension of the exercise of power, acts as a flexible means to achieve a more effective management of migration or as a threat to the rule of law. His analysis focuses on Frontex and Europol, whose instances of experimentalist governance are intertwined with the well-known process of securitization that has characterized European
migration policies for years. It then addresses the interagency cooperation also in the external relations policies (e.g., Operation Sofia and now Irini), where the deficit of rule of law appears even more exacerbated.

Marco Stefan (see at min. 1:12:34) analyzes the Frontex’s fundamental rights administrative complaint mechanism. He notes, in particular, that, although the 2019 reform of the mechanism has significantly increased the chance for individuals to hold Frontex accountable, the mechanism still suffers from significant shortcomings: notably in terms of independence, as it remains an internal procedure, as well as in terms of effectiveness of the performed
control.

An overall assessment of the new European Asylum Agency is conducted by Lilian Tsourdi (see at min. 1:32:53), highlighting the complex compromises behind the adoption of the new regulation, which indeed appears to be particularly limited when compared to the proposal put forward by the European Commission. In particular, the operational involvement of the
agency in asylum procedures, is still defined in terms of “facilitation” or “assistance” to Member States, but this does not reflect the current administrative reality where instead we have many more models of joint implementation, in which agency staff conduct part of the procedures independently. Also, part of the compromise is the new monitoring mechanism to control the operational and technical implementation of the CEAS, the full application of which has been blocked by Mediterranean States until the current Dublin Regulation is replaced.

The role of Frontex also recurs in the presentation by Roberto Cortinovis (see at min. 2:18:00), who analyzes the approach and initiatives that have been established in the New Pact on Migration and Asylum in the field of search and rescue. Cortinovis, in particular, observes how the Common (non binding) european approach to SAR, while on the one hand confirms and strengthens the role of Frontex in the so-called “disembarkation crisis”, on the other fails to provide any element to address the long-standing ambiguities concerning it, such as the absence of any specific mandate to engage in proactive SAR, or the multiple accusations of human rights violations for directly or indirectly pushbacks practices.

Tamás Molnár (see at min. 2:37:30) closes the conference with a presentation investigating the role of the EU Fundamental Rights Agency in monitoring respect for fundamental rights at the EU’s external borders. He also offers a comprehensive assessment of the new independent monitoring mechanism foreseen in Article 7 of the Proposal for a “Screening” Regulation, which
provides for the involvement of the FRA but only as a guidance for Member States, highlighting the presence of some aspects that raise serious concerns and need a rethink in the sense of a more effective safeguarding of fundamental rights.

Giulia DEL TURCO


(*) THIS IS AN EXTENDED VERSION OF A POST PUBLISHED ALSO ON ADIM WEB PAGE

Suggested citation: E. DE CAPITANI, G. DEL TURCO, Are the New EU Agencies in the Freedom Security and Justice Area Becoming the New Sorcerer’s Apprentices?, ADiM Blog, Editorial, November 2021.

Artificial intelligence in the EU: promoting economy at the expenses of the rights of the individual?

by Emilio DE CAPITANI (*)[1]

“The advent of artificial intelligence (‘AI’) systems is a very important step in the evolution of technologies and in the way humans interact with them. AI is a set of key technologies that will profoundly alter our daily lives, be it on a societal or an economic standpoint. In the next few years, decisive decisions are expected for AI as it helps us overcome some of the biggest challenges we face in many areas today, ranging from health to mobility, or from public administration to education. However, these promised advances do not come without risks. Indeed, the risks are very relevant considering that the individual and societal effects of AI systems are, to a large extent, unexperienced.…”[2]

Foreword

1. According to the European Commission the recent proposal for a regulation on Artificial Intelligence is consistent with the EU Charter of Fundamental Rights and the secondary EU legislation on data protection, consumer protection, non-discrimination and gender equality. Notably, it “complements” the General Data Protection Regulation (Regulation (EU) 2016/679) and the Law Enforcement Directive (Directive (EU) 2016/680) by setting “..harmonised rules applicable to the design, development and use of certain high-risk AI systems and restrictions on certain uses of remote biometric identification systems”.

Is it true or the text is mainly economic oriented and fail to place the rights of those who will be subject to such AI systems at the heart of its reflection?

2. First of all it is worth noting that, while some commentators may have considered this new proposal to be the equivalent of the General Data Protection Regulation for AI, its general scheme is much more similar to Regulation (EU) 2019/1020 of 20 June 2019 on market surveillance and product compliance, the objective of which is to improve the internal market by strengthening market surveillance of products covered by Union legislation instead of protecting or promoting fundamental rights. The Commission’s proposal is essentially aimed at holding companies producing and marketing AI systems accountable, which is in itself a positive element in the context of the establishment of a European normative framework on artificial intelligence. According to EC Proposal AI systems must meet a number of criteria and undergo conformity assessment procedures, which are more or less stringent depending on the risks involved (see Articles 8 to 51 and Annexes IV to VIII [3]

3. However,  it is quite surprising that the proposal is focused only on a “product”, (a “software” developed from techniques and approaches listed in an annex) and does not address the general notions of “algorithms” and “big data” which are the main feature artificial intelligence (AI) applications which needs huge amounts of data necessary to train it and it allowing, in return, to process the same data.  By not referring directly on the nature of algorithms or the notion of big data, the Commission avoid placing the AI applications within the general framework of fundamental rights and data protection. Needless to say, a “right-based” approach is specular to the notion of ”duty” to protect that right by another individual or by the public administration. Take the case of Regulation 2016/679 or of Directive 2016/680 where the “rights of the data subject” are detailed in specific chapter whereas there is no similar provision in the AI proposal. Similarly, if the proposal defines AI system providers (“providers”), users (“users”), importers (“importers”) and distributors (“distributors”), it makes no reference at any time to persons who are subject to such systems. Moreover nothing, in particular, is said about the possible possibilities of recourse of individuals challenging the use of an AI system.

By choosing a market centric approach the Commission is undermining the aim of placing the individual at the core of the EU policies as declared in the EU Charter preamble. 

I- Definitions and classifications

4. The proposal is built on a risk-based approach, but the classification of the systems as unacceptable, high or low is not clear:

– Article 6 on the classification of high-risk systems is a simple description of the systems falling within this category, without justification of the reasons for the choices made,

– Article 7, on the “amendments to Annex III”, which is the annex containing the systems considered to be high risk, does, however, contain a number of criteria which the Commission will have to take into account in order to add other systems in the future, if necessary.- However, the terms chosen lack precision: the systems referred to are those likely to harm health, safety or have a negative effect on fundamental rights («risque of adverse impact on fundamental rights»). But how to understand in this context the concept of negative effect?

5. The breakdown between the systems to be prohibited and those with a high risk is not further explained: why, for example, prohibit real-time remote facial recognition in public places for repressive purposes, But to authorize, considering them at high risk, the systems that, in terms of criminal prosecutions or management of migration, asylum and border control aim to detect the emotional state of a person? Similarly, what about systems that generate or manipulate audio or video content or images, which then appear to be falsely authentic, and which can be used in criminal proceedings without informing persons (section 52)?

6. Above all, this approach suggests that respect for fundamental rights may be variable in geometry, even though fundamental rights are not negotiable and must also be guaranteed, regardless of the level of risk presented by the AI system in question.[4]

II- Articulation with data protection 

7. In this proposal, the Commission’s position on the European data protection framework is characterized by its ambiguity:

–  Article 16 TFEU is one of the two legal bases of the proposal, alongside Article 114 TFEU. However, in its statement of reasons, the Commission is careful to point out that the basis of Article 16 concerns only those provisions relating to restrictions on the use of AI systems with regard to remote biometric identification in places accessible to the public and for the purposes of criminal proceedings (point 2.1. See also recital 2 of the proposal). However, the protection of individuals about the processing of their personal data cannot be limited to this single hypothesis, given the operating modalities of AI systems which, as indicated above, are based on massive data collections, which are not all non-personal or anonymized. In addition, anonymized data may in some cases be re-identified, and an interlaced set of non-personal data may identify individuals. In addition, anonymized data can be used to build profiles and have a direct impact on the privacy of individuals and create discrimination.

– Recital 41 states that the new Regulation should not be understood as constituting a legal basis for the processing of personal data, including special categories of data. Nevertheless, under recital 41 above, the classification of an AI system as high risk does not imply that its use is necessarily lawful under other European legislation, in particular those relating to the protection of personal data, and the use of polygraphs and similar tools or other systems to detect the emotional state of individuals. That recital specifies to that end that such use should continue to occur only in accordance with the applicable requirements resulting from the Charter and Union law. It therefore seems to follow that certain provisions of this proposal may prove to be incompatible with other provisions of European law: far from «supplementing» the legislative framework on data protection, the future regulation may, on the contrary, open the way to situations of conflict of laws.

– on the other hand, recital 72 states that this Regulation should provide the legal basis for the use of personal data collected for other purposes with a view to developing certain AI systems in the public interest in the case of AI regulatory “sandboxes”. However, as reminded above the Commission also states in its explanatory statement that this proposal is without prejudice to and complements the General Data Protection Regulation 2016/679 and Police Directive 2016/68 (point 1.2).

8. Furthermore, if certain AI systems authorized by this proposal are not to be approved because they would infringe the provisions of the Charter and European data protection law, this raises the question of the relevance of the proposed classification, if it legitimizes systems contrary to fundamental rights in general, and to data protection in particular. But who will decide at EU and national level which rule should prevail between the Data Protection and AI Regulations? The establishment of a new committee, the European Artificial Intelligence Committee, and the creation of national authorities responsible for ensuring the application of the proposal (Articles 56 to 59) risks to become a conflicting structure with the parallel decentralized structure for Data Protection and its European Data Protection Board and the EDPS [5].

III- Prohibitions and their limits

9. In a very symbolic way, the proposal opens, after a first title relating to the general provisions, with a title entitled “prohibited artificial intelligence practices”, which in reality only contains a single article, while the next title on high-risk systems consists of 46 articles.

There are four systems considered unacceptable:

–  systems deploying subliminal techniques to distort a person’s behavior in a manner that causes or is likely to cause physical or psychological harm to the person or to another person;

– systems exploiting the vulnerabilities of a specific group of people due to their age, physical or mental disability, to distort the behavior of a person belonging to that group in a manner that causes or is likely to cause physical or psychological harm;

– systems used by public authorities for the evaluation or classification of the reliability of individuals over a period of time based on their social behavior or known or predicted personal or personality characteristics, with the establishment of a social score (“social score”) leading to one or both of the following: adverse or adverse treatment of persons in social contexts unrelated to the contexts in which the data were initially generated or collected; or/and adverse or adverse treatment of persons that is unjustified or disproportionate to their behavior or the seriousness of their behavior;

–  ‘real-time’ remote biometric identification systems in public spaces in a criminal context, unless and to the extent that such use is strictly necessary for one of the following purposes: the targeted search for potential victims of an offence, the prevention of a specific, serious and imminent threat to the life or safety of persons, or of a terrorist attack, the search, location, the identification or prosecution of the offender or a suspect, where the maximum penalty for the offence is at least three years.

10. It follows from this list that the prohibitions mentioned are subject to several limitations and prohibitions:

– in the case of the first two prohibitions, they both imply at least the possibility of physical or psychological harm. However, with regard to vulnerable persons, the demonstration of the existence of a possibility of harm may be sensitive,

– with regard to the prohibition of the social score, it is envisaged only to the extent that this score is established by public authorities (and not private entities) and leads to unfavorable treatment in a context unrelated to the context from which the data were collected or in cases where such treatment appears disproportionate. The reading of these conditions reveals that in reality the social score is not prohibited as such. This analysis is confirmed by the review of Annex III, which includes several high-risk AI systems.  Among them, systems to assess the reliability of individuals or establish their credit score (“credit score”) in cases of access to and use of essential public and private services,

– Finally, remote biometric identification systems are prohibited only if they aim at “real-time” identification, in public spaces and in criminal proceedings.

11. These limitations leave the field open to a posteriori identification, by private entities or by public authorities not acting in a repressive framework. It should also be noted that despite its regulatory form, the proposal leaves considerable room for manoeuvre for Member States to decide whether or not to use remote biometric identification systems in real time.

IV- Uses in criminal matters

12. In addition to the exceptions to the aforementioned prohibitions on real-time remote biometric identification, the proposal allows the possible use of AI systems in criminal matters[6].

Annex III, which lists the high-risk systems referred to in Article 6(2), provides for the following systems:

– systems intended to be used for the risk assessments for the commission of an offence or for recidivism by a person, or risk assessments for potential victims of an offence,

– systems intended to be used as polygraphs and similar tools or to detect the emotional state of a natural person,

– systems intended to be used to detect “deepfake” referred to in Article 52 (3),

– systems intended for use in assessing the reliability of evidence during an investigation or criminal prosecution,

– systems intended to be used to predict the occurrence or repetition of an actual or potential criminal offence, on the basis of the profiling of natural persons referred to in Article 3 para.4 of Directive 2016/680 or the assessment of personality traits and characteristics or past criminal behaviour of persons or groups,

– systems intended to be used for profiling persons referred to in Article 3 par.4 of Directive 2016/680 in the course of the detection, investigation or prosecution of criminal offences,

– AI systems for use in the analysis of crime involving natural persons, enabling law enforcement authorities to search for large datasets available in different data sources or data formats, to identify unknown patterns or to discover hidden relationships in the data.

13. Furthermore, a certain number of guarantees are limited or even excluded in the context of the use of AI systems in criminal matters:

– prior authorisation by a judicial or independent administrative authority for the use of real-time remote biometric identification may be postponed in urgent cases,

– Article 52, which seeks to impose an obligation to inform persons subject to certain systems, whether they are high-risk or not, excludes this obligation in criminal matters. This applies in particular to systems of emotional recognition or biometric categorisation, as well as those generating or manipulating audio, video or image content, which then appear to be falsely authentic,

– finally, Article 43, on conformity assessment of systems, provides for an assessment limited to internal control for all systems considered to be high-risk, with the exception of those relating to biometric identification and the categorization of persons.

14. The framework proposed by the Commission paves the way for highly controversial practices, particularly in predictive policing. The doctrine is very divided on the added value of AI systems in the assessment of future behavior of offenders, highlighting the risks of discrimination inherent in the functioning of algorithms [7].

It is worth recalling that this practice has already been unfortunately authorized by the EU with the anti-Money Laundering legislation [8]and notably by the infamous EU Directive on the use of Passenger Name Record data [9]. On the latter practice the CJEU has already adopted a very interesting Opinion (1/15) [10] dealing with a draft EU-Canada PNR Agreement  but is now again seized of this subject because of several Preliminary Ruling requests challenging the EU Directive compliance with the art. 7 and 8 of the EU Charter as well as the with the principles of necessity and proportionality [11].

15. The possible use of lie detectors (“polygraphs”) also generates debate and there is no consensus on its use in criminal matters. It should also be pointed out that the Commission allows the use of polygraphs in the field of migration, asylum and the management of external borders, thus reinforcing the experience currently carried out under the “iBorderCtrl” project.

Similarly, the possibilities for the use of a posterior biometric recognition systems are also the subject of criticism within doctrine and civil society. Thus, on May 27, 2021, the NGO Privacy International announced the filing of several claims in Europe against the American company Clearview AI [12], specialized in facial recognition and the commercialization of data collected to law enforcement.

Conclusion

The European Commission may have missed the opportunity here to ensure full respect for European values in the context of the ‘collective digital transformation dimension of our society’. Beyond the question of whether the AI proposal is fully compatible with European data protection legislation and the requirements of the European Charter, it is clear that when decisions are taken on the basis of AI applications individuals should have the right to specific explanations, and collective rights should also be strengthened as it is already the case in other domains of wider impact (as it happens with the Aarhus legal framework in the environment related legislation).

Negotiations on the European Commission proposal are currently underway inside the European Parliament [13]  and the Council of the EU [14]. Once established their respective positions the interinstitutional dialogue will start. In the meantime it is worth noting that the EP has already voted on October a non-legislative resolution curtailing  the use of AI techniques for such activities as facial surveillance and predictive policing [15].

It remains to be seen if this “non-legislative” resolution will be mirrored in the coming months also in the legislative trialogue between the EP, the Commission and the Council where the pressure of the interior Ministers in favor of surveillance measures risks to remain rather strong.

NOTES


[1] I hereby thanks Mrs Michelle DUBROCARD working at the European Data Protection Supervisor Office for her unvaluable contribution and comments when drafting the present article.

[2] EDPS and EDPB joint Opinion 5/2021 recalling also that “…in line with the jurisprudence of the Court of Justice of the EU (CJEU), Article 16 TFEU provides an appropriate legal basis in cases where the protection of personal data is one of the essential aims or components of the rules adopted by the EU legislature. The application of Article 16 TFEU also entails the need to ensure independent oversight for compliance with the requirements regarding the processing of personal data, as is also required Article 8 of the Charter of the Fundamental Rights of the EU.”

[3] It is also likely that all these new obligations, which will have to be placed on the shoulders of companies, will not fail to revive the debate on the cumbersome nature of European legislation.

[4] Consistently with this approach the EDPS and the EDPB in their Joint Opinion 5/2021 “…call for a general ban on any use of AI for an automated recognition of human features in publicly accessible spaces – such as of faces but also of gait, fingerprints, DNA, voice, keystrokes and other biometric or behavioural signals – in any context. A ban is equally recommended on AI systems categorizing individuals from biometrics into clusters according to ethnicity, gender, as well as political or sexual orientation, or other grounds for discrimination under Article 21 of the Charter. Furthermore, the EDPB and the EDPS consider that the use of AI to infer emotions of a natural person is highly undesirable and should be prohibited.”

[5] To avoid these risks, the future AI Regulation should clearly establish the independency of the supervisory authorities in the performance of their supervision and enforcement tasks. According to the EDPB/EDPS Joint Opinion cited above “..The designation of data protection authorities (DPAs) as the national supervisory authorities would ensure a more harmonized regulatory approach, and contribute to the consistent interpretation of data processing provisions and avoid contradictions in its enforcement among Member States.”

[6] Furthermore, according to the EDPS/EDPB Joint Opinion 5/2021, “..the exclusion of international law enforcement cooperation from the scope set of the Proposal raises serious concerns for the EDPB and EDPS, as such exclusion creates a significant risk of circumvention (e.g., third countries or international organisations operating high-risk applications relied on by public authorities in the EU)”.

[7] Literature on the risks of “Predictive Criminal Policy” is growing day by day.  As rightly stated by A.Rolland in “Ethics, Artificial Intelligence and Predictive Policing” First, the data can be subject to error: law enforcers may incorrectly enter it into the system or overlook it, especially as criminal data is known to be partial and unreliable by nature, distorting the analysis. The data may be incomplete and biased, with certain areas and criminal populations being over-represented. It may also come from periods when the police engaged in discriminatory practices against certain communities, thereby unnecessarily or incorrectly classifying certain areas as ‘high risk’. These implicit biases in historical data sets have enormous consequences for targeted communities today. As a result, the use of AI in predictive policing can exacerbate biased analyses and has been associated with racial profiling”.

[8] Fight against money laundering and terrorist financing (AML/CFT) at EU level is governed by a number of instruments which have to provide for rules affecting both public authorities and private actors who constitute the obliged entities: supervision, exchange of information and intelligence, investigation and cross-border cooperation on the one side, and obligations such as reporting or customer due diligence on the other. For this reason, the relevant instruments are based on a number of different legal bases spanning from economic policy and internal market to police and judicial cooperation. On 20 July 2021, the Commission proposed a legislative package that should enhance many of the above rules. The package consists of 1)A Regulation establishing a new EU AML/CFT Authority; 2)A Regulation on AML/CFT, containing directly-applicable rules; 3-A sixth Directive on AML/CFT (“AMLD6”), replacing the existing Directive 2015/849/EU (the fourth AML directive as amended by the fifth AML directive); 4) A revision of the 2015 Regulation on Transfers of Funds to trace transfers of crypto-assets (Regulation 2015/847/EU); 5)A revision of the Directive on the use of financial information (2019/1153/EU), which is not presented as part of the package, but is closely related to it.

[9] Directive (EU) 2016/681 of the European Parliament and of the Council of 27 April 2016 on the use of passenger name record (PNR) data for the prevention, detection, investigation and prosecution of terrorist offences and serious crime.

[10] Opinion 1/15 pursuant to Article 218(11) TFEU — Draft agreement between Canada and the European Union — Transfer of Passenger Name Record data from the European Union to

[11] The leading Case 817/19 has been raised by the Belgian Constitutional Court and it will give the opportunity to the CJEU to decide if the indiscriminate collection of passengers data and their scoring for security purposes through secret algorithms (as currently done also in some Third Countries) is compatible with the EU Charter and with the ECHR and does not amount to a kind of general surveillance incompatible with a democratic society.

[12] In June 2020, the European Data Protection Board expressed its doubts about the existence of a European legal basis for the use of a service such as that proposed by Clearview AI  .

[13] See the current state of legislative preparatory works here : https://www.europarl.europa.eu/legislative-train/theme-a-europe-fit-for-the-digital-age/file-regulation-on-artificial-intelligence

[14] See the State of the play diffused by the Council Presidency here: https://data.consilium.europa.eu/doc/document/ST-9674-2021-INIT/en/pdf

[15] See the report Artificial intelligence in criminal law and its use by the police and judicial authorities in criminal matters,

(VERFASSUNGSBLOG) Protecting Polish Judges from the Ruling Party’s “Star Chamber” The Court of Justice’s interim relief order in Commission v Poland (Case C-791/19 R)

Laurent Pech Do 9 Apr 2020

1. The third order granting interim measures against Poland on rule of law grounds

The European Court of Justice’s order in Case C-791/19 R is the third time the Court has granted the interim measures applied for by the Commission so as to preserve the rule of law from being seriously and irreparably harmed by Polish authorities. 

The first time the Court had to noticeably step in was when Polish authorities openly disobeyed a previous order of the Court to stop their (unlawful) logging in the Białowieża forest. In an unprecedented step, the Court granted the Commission’s request to impose a penalty payment of at least €100,000 per day of non-compliance within the framework of an application for interim relief. 

The second time the Court was forced to make history happened at the time of the Polish authorities’ attempt to purge Poland’s Supreme Court, in obvious breach of both the Polish Constitution and EU law. The Court then ordered the immediate suspension of the application of the legislation which retroactively lowered the retirement age for Supreme Court judges. This meant that Polish authorities had to restore the Supreme Court to its situation prior to the entry into force of the law being challenged by the Commission. 

In the present and third instance, which is the subject of this post, the Court of Justice has just ordered the immediate suspension of the activities of the so-called “disciplinary chamber” as regards disciplinary cases concerning judges. The Court’s order is particularly significant to the extent that this “disciplinary chamber”, a modern “star chamber”, is for all intents and purposes the stepping stone on which the arbitrary new disciplinary regime put in place by Poland’s ruling party is built. 

2. The third infringement action against Poland on rule of law grounds

The Court’s order is connected to Case C-791/19, which is itself the third infringement action launched by the Commission on the basis of Article 19(1) TEU in order to protect Polish judges from the ruling party’s political control. This is also the third infringement action which brings to the Court’s attention issues the Commission had repeatedly raised with Polish authorities as part of the Rule of Law Framework and subsequently as part of the Article 7(1) procedure. 

In this case, the main subject-matter of the action is the so-called “disciplinary chamber” established in 2017 and whose own “judges”, it may be worth recalling, adopted a resolution in April 2019 whereby they held themselves to have been appointed properly (nemo judex in causa sua, anyone?).

Be that as it may, the lack of independence and impartiality of the “disciplinary chamber” has been an issue repeatedly raised by multiple bodies and experts specialising in rule of law matters. In this context, it is also worth noting that for the very first time, the European Commission simultaneously raised a violation of Article 267 TFEU to the extent that the new disciplinary regime would create “a chilling effect for making use of this mechanism”.

3. A belated application for interim measures 

Considering the threat of political control over Polish judges alleged by the Commission, one could find it difficult to comprehend why the Commission did not apply for interim measures when it decided to refer Poland to the Court of Justice on 10 October 2019 (with case effectively lodged on 25 October) although the Commission did request the Court to expedite the proceedings. By contrast, in the case relating to the independence of Poland’s Supreme Court, the Commission requested both interim measures and expedited proceedings. In light of the pattern of systemic violation of judicial independence and multiple instances where rulings of the Court of Justice or national courts were preceded by threats of non-compliance or just openly ignored, not to mention the more recent examples of targeted harassment of national judges seeking to apply Article 19(1) TEU, the Commission’s failure to apply for interim measures could leave one seriously perplexed. 

When this stance faced renewed public criticism following Polish authorities’ defiant refusal to comply with the ruling of the Labour and Social Security Chamber of Poland’s Supreme Court which found the “disciplinary chamber” not to constitute a court within the meaning of EU and Polish law by application of the AK preliminary ruling of the Court of Justice, the European Commission belatedly decided to apply for interim measures on 14 January 2020 (with the application effectively lodged with the Court on 23 January 2020). As correctly noted by the Commission itself, “despite the judgments, the Disciplinary Chamber continues to operate, creating a risk of irreparable damage for Polish judges and increasing the chilling effect on the Polish judiciary”.

The Court’s order deals with this aspect, which was predictably raised by the Polish government at the stage of the examination of the urgency of the Commission’s request for interim measures. Instructively, the Court makes clear the Commission’s rationale (paras 97-98). In a nutshell, the Commission decided not to apply for interim measures because it expected the A.K. and others preliminary ruling (joined cases C-585/18, C-6224/18 and C-625/18) to deal with the issue of the disciplinary chamber. While the Court found the Commission’s rationale to be “reasonable”, one may not find it neither coherent nor judicious. As the Court of Justice itself explained in a not so subliminal message to the Commission in the cases of Miasto Łowicz and Prokurator Generalny (Joined Cases C558/18 and C563/18), “the task of the Court must be distinguished according to whether it is requested to give a preliminary ruling or to rule on an action for failure to fulfil obligations” (para. 47, analysis here). Speaking plainly, the Commission’s deferment has meant more months of additional harassment for Polish judges than would have been the case had the Commission apply for interim measures from the start of its infringement action. 

In this context, it is also difficult to understand why the Commission did not follow the same path as in the case relating to the independence of Poland’s Supreme Court and requested the Court that it provisionally grants the requested interim measures before the submission by Poland of its observations and until such time as an order is made closing the interim proceedings. Considering the repeated threats of non-compliance with ECJ rulings and current Polish authorities’ track record of non-compliance with rulings of Polish courts, the Commission’s failure to ask the Court to impose a penalty payment in case of non-compliance is also surprising, to say the least. The least the Commission could do was to reserve the right to submit an additional request seeking that payment of a fine be ordered in case of non-compliance in full with the interim measures ordered following its request for interim relief, which the Commission did.

4. Key aspects of the Court’s order

Leaving the issue of likely future non-compliance aside, and to keep this analysis as brief as possible, the Court’s order most significant aspects will be highlighted. 

To begin with, following the line of case law developed since its seminal “Portuguese judges” ruling, the Court makes clear that the obligation for every Member State to respect and maintain the independence of their national courts or tribunals (which may apply or interpret EU law) includes an obligation to comply with the principle of independence of judges as far as disciplinary proceedings against judges are concerned. This means inter alia that EU law precludes the setting up of disciplinary bodies which fail themselves to satisfy the guarantees inherent in effective judicial protection, including that of independence. In answer to the tired argument of the Polish government that the Court would lack jurisdiction to review its “reforms”, the Court refers the Polish government to its recent ruling in the cases of Miasto Łowicz and Prokurator Generalny. In this ruling, loudly praised by Poland’s Ministry of Justice as the preliminary ruling requests were found inadmissible, the Court yet again reiterated that “although the organisation of justice in the Member States falls within the competence of those Member States, the fact remains that, when exercising that competence, the Member States are required to comply with their obligations deriving from EU law and, in particular, from the second subparagraph of Article 19(1) TEU” (para. 36). 

Secondly, by including unusual developments outlining how its own A.K. ruling and connected rulings issued by the Polish Supreme were disregarded by Polish authorities and in particular the “disciplinary chamber” at the beginning of its order (paras 18-24), the Court implicitly but unmistakeably indicates its disapproval at the disciplinary chamber’s defiant and persistent refusal to obey both EU and Polish law. This was bound to legally matter when the Court had to decide whether the Commission had correctly established that the granting of the requested interim measures satisfied the condition in relation to the existence of fumus boni juris (para. 52 et seq.). Unsurprisingly, having first meticulously recalled what it had previously decided in A.K. as regards the scope of the requirements of independence and impartiality, the Court concludes that the Commission’s claim regarding the lack of a guarantee as to the independence and impartiality of the “disciplinary chamber” appears, prima facie, not unfounded. 

Thirdly, as regards urgency, the Court, in line with its previous case law, strongly emphasises how the so-called “judicial reforms” pushed by Poland’s ruling party threaten to damage the independence of Polish courts and as such, simultaneously threaten to damage the decentralised and interconnected legal order organised by the EU Treaties. In an unprecedented step (to the best of our knowledge), the Court finds that a body such as the “disciplinary chamber” pauses a threat of serious and irreparable harm to the EU legal order due to the scope of its disciplinary jurisdiction as regards Polish judges and the fact that its lack of independence and impartiality cannot be, prima facie, ruled out. The Court’s holistic approach, which looks at the broader and systemic impact the seemingly lack of independence of the disciplinary chamber could have on ordinary courts and the Supreme Court as a whole, may be viewed as both warranted and compelling. Particularly significant is the Court’s observation (para. 90) that the “mere prospect” for Polish judges to “face the risk of a disciplinary procedure”, which could bring them before a body whose independence would not be guaranteed, is likely to affect their independence regardless of how many proceedings may have been initiated or the outcomes of these proceedings to date. 

Fourthly, the Court has suspended, again for the first time to the best of our knowledge, the activity of a body masquerading as a court. With its usual chutzpah, the Polish government claimed that the Commission was asking the Court to take measures which would violate the “fundamental structural principles of the Polish state” (para. 106) having previously claimed a violation of the principle of irremovability of judges (para. 43), which they already been found to have violated twice by the Court in two previous unprecedented rulings (analysed e.g. here and here). Without having to examine the Polish government’s well established track record when it comes to violating the Polish Constitution and annihilating judicial independence, the Court of Justice patiently explained that its order does not in fact require the dissolution of the disciplinary chamber nor the suspension of its administrative and financial services or the dismissal of the individuals appointed – unlawfully one may add – to this body which, let us not forget, was already found not to constitute a court by Poland’s Supreme Court prior to the Court of Justice’s order. The eventual budgetary as well as the limited practical consequences of the suspension of (arbitrary) cases pending before the non-court entity known as the disciplinary chamber (see e.g. the pending kangaroo proceedings against Judge Tuleya), cannot in any event prevail over the general interest of the EU in the proper functioning of its legal order. 

Accordingly, and unsurprisingly, the Court granted the Commission’s application for interim measures. A number of weak spots can be identified from this otherwise compellingly reasoned and, on all points, fully convincing Grand Chamber order. These weak spots are all connected to the limited scope of the Commission’s application for interim relief in a situation where the Commission is furthermore yet to act against the “muzzle law”. Very briefly: (i) Not asking for a penalty payment from the start of the action beggars belief considering the track record of Polish authorities, which the Court itself noted as regards its AK ruling, which means Polish authorities will have all the time in the world to ignore the Court’s order until their capture process is completed; (ii) What about prosecutors who have been similarly harassed and subject to Kafkaesque proceedings and arbitrary sanctions; (iii) How long before we see Polish authorities switching to criminal proceedings against judges to achieve their (autocratic) goals?; (iv) What about the procedural defects characterising the arguably unlawful appointment process of the basis of which additional “judges” were appointed to the Supreme Court by the Polish President?

5. Still Too little, still too late? 

Polish authorities have not only been “actively and purposely organising non-compliance with the ruling of the Court of Justice of 19 November 2019 and the judgment of the Supreme Court of 5 December”, they have since also refused to acknowledge, let alone comply with the resolution adopted by three chambers of Poland’s Supreme Court on 23 January 2020 and which reiterated that the “disciplinary chamber” is not a court due to its lack of independence and therefore its “decisions” shall be considered null and void irrespective of when they were issued as they “deserve no protection”.

Viewed in light of this dictatorial pattern and the Soviet-style disciplinary developments witnessed over the past five years, culminating with a suspension and a pay cut of 40% imposed on Juge Juszczyszyn for seeking to apply the Court’s preliminary ruling of 19 November 2019, and the intervention of the “cardboard cut-out Constitutional Tribunal” to (illegally) neutralise the application of the Supreme Court resolution of 23 January 2020 notwithstanding the Constitutional Tribunal’s obvious lack of competence to do so, the Court of Justice was left with no choice but disable a body whose lack of independence and impartiality has been for a long time obvious to all but Poland’s autocratic party and associates.  

What else to do when according to the First President of Poland’s Supreme Court – herself one of the targets of the law which sought to retroactively lower the retirement regime of Supreme Court judges later found in breach of Article 19(1) TEU – the EU is faced with a situation where a Member State “no longer have independent courts or a third branch of government, independent of the executive.”

Let that sink in: Poland has no longer independent courts according the President of Poland’s (not-yet-but-soon-to-be-captured) Supreme Court. 

To contain this clear and present danger to the rule of law, the von der Leyen Commission must wake up from its current torpor and initiate infringement actions against the “muzzle law”; the ENCJ-suspended “National Council for the Judiciary”; the sham “Extraordinary Control and Public Affairs Chamber”; and last but not least, the captured “Constitutional Tribunal” whose intervention the Polish PM announced a few hours after the ECJ’s order. 

The Polish PM’s latest ploy is just the latest edition of a trick they previously used to disregard a binding resolution of the not-yet-captured chambers of the Poland’s Supreme Court to save the new “National Council for the Judiciary” which was established on the back of yet another obvious breach of the Polish Constitution. The Commission should remove their rose-tinted glasses and face up the harsh reality: They are dealing with rogue officials who have recurrently violated the EU principle of loyal cooperation while repeatedly showing their readiness to break all national rules, constitutional or otherwise, whenever convenient for the party. National governments should similarly stop wasting time with heart-warming rhetoric/no action statements when they have in fact the power to do something about Poland’s descent into authoritarianism by bringing infringements actions directly on the basis of Article 259 TFEU (on this note, we should however be grateful to the governments of Belgium, Denmark, the Netherlands, Finland and Sweden for supporting the Commission’s application. This is the least other governments should do). 

Dialogue wasn’t, isn’t and will NEVER be an effective way forward when dealing with bad faith actors engaged in an obvious constitutional coup d’etat. Failing to face up reality will only result in the Commission winning several legal battles, which, no matter how significant, will not prevent it from losing the broader one, similarly to what happened a few years ago in relation to Hungary. To put it concisely, and looking beyond the Commission’s interim relief victory, the von der Leyen Commission must now decide between swiftly pursuing difficult and no doubt controversial infringement actions or accepting the consolidation of a second autocracy within the EU

European Bonds for the European renaissance: with or without Germany?

an interview of Ezio PERILLO (Former judge at the General Court of the European Union)

Why are all these legal skirmishes still going on in the European Union Headquarters?
It’s true. Given the present situation, everyone would expect a Union with a human face and less technical attitudes. Instead, even at times like these, the Union seems to get entangled in legal harness and, above all, to suffer the diktats put forward by certain States which claim to be entitled to keep control, at least indirectly through the ESM’s condionality, on the expenses of the others Member States.
This was not the spirit with which in 1952, in the aftermath of the end of a horrible war,  the first European community was born. In the preamble to the ECSC Treaty (1952), the six founding States sought the establishment the “ of a broader and deeper community between peoples for a long time divided by bloody conflicts, and to lay the foundations for institutions – and I like to emphasise this passage – which will give direction to a destiny henceforward shared».


What is needed today?
We must regain these common aims. The ECB, the EIB and the Commission are certainly making massive efforts to tackle the current health emergency and a recession that is already upon us.They do so, however, with the resources and means they normally have, without daring, instead, to take the vital step that is required to face exceptional circumstances, in particular when they are caused by natural terrible factors.Public opinion cares very little about the technicalities of the ESM or the news that the provisions on the euro-stability have been suspended for some time, a suspension, by the way, which makes superfluous the possible ESM bailouts.
On other continents, also affected by the corona virus, nobody cares about the stability of the US dollar, the Chinese yuan or the Japanese yen. What really matters is to introduce as soon as possible the appropriate instruments to tackle the present situation, instruments that everyone can see and understand, citizens as businesses. 


Are you referring to European bonds?
Yes, but not to « eurobonds”, that where those designed only to ensure the stability of the euro. Today, European securities are needed exclusively to ensure the stability of the economy of the whole Union, in order to avoid the economic recession also in the area of non-euro Member States , such as Denmark, Sweden or Poland .Instruments that, like most of the bonds of this kind, will create fresh liquidity to be put in to the different circuits of the production and the trade. In short, securities in order to revive the economy of an entire continent and which we could therefore call, with true community sense, European Renaissance Bonds.


But, to issue them don’t we need the agreement of all the Member States?
Not at all. If Germany, like any other Member State, cannot help without the Union, the Union, on the other hand, does not always and necessarily need Germany or Holland to go ahead, certainly not in order to establish European debt securities.
The EIB, which has the legal and technical competences to issue securities of this type, takes its decisions by qualified majority.
Moreover, the Lisbon Treaty (2009) provides for the possibility, for nine Member States, the possibility to create, between them, an enhanced cooperation,  which  « shall aim to further the objectives of the Union, protect its interests and reinforce its integration » and which can be established quite rapidly. It is sufficient that the nine Heads of State or Government, the same as those who signed the letter of 25 March last, agree to submit a request accordingly. The authorisation is then granted by the Council, subject to the approval of the European Parliament, a condition which therefore legitimises the democratic basis for the issuance of these securities. Germany and Holland would obviously be welcome but, at this point, it would be up to them alone to decide whether or not to get on the train of European anti-recession solidarity.


But, funds will still be needed to secure these European bonds. Who puts them on?Certainly, the States affected by the pandemic cannot be asked to make other financial contributions to the Union for this purpose. For this same reason, the European budget does not appear to be the right financial support either. It is in fact an expenditure budget, largely made up of financial contributions provided by the States.

Could the funds from the ESM then be used?

First of all, let me recall that the ESM is not an EU body but an intergovernmental organization created by the euro area States.The ESM, however, is not the only instrument aimed to protect the stability of the euro. In fact, Article 136 TFEU provides that euro area States « can »  establish a stability mechanism, which means that they do not have the exclusive prerogative.
In any case, in order to change the operating conditions of the ESM (in particular that of a “strict conditionality” to which the granting of any financial assistance by the ESM must in any case be subject in any case) it is necessary to modify the said article of the Treaty, a procedure which requires the unanimity of the Governments involved and then the subsequent ratification by all the States concerned. In short, biblical times, compared to the emergency of a recession now at the doors.
Of course, every State, as it joined the ESM, can also unilaterally withdraw from it, taking back the money it paid to this fund. However, I am convinced that facing the European public opinion, Germany will not want to reach this latest ratio, so to oblige the nine States to leave the Mechanism. A Mechanism, in hindsight, which is by now not so useful and functional to the stability of the euro and to the recovery of deficits. Under the terrible blows of the coronavirus storm, which forced us all to stay on the same boat with equal rights and equal duties, the time has perhaps come to “scrap” this obsolete intergovernmental financial vehicle, in order to change it, as the European Parliament already wished in 2011,  into « a mechanism of the Union », structured upon community criteria  and operating through community procedures and on whose board the ECB and the Commission are not just, as now, simple « observers » .

When Adenauer went to the Bundestag immediately after the signing of the Treaties of Rome (1957) he said to the elected members of that assembly: « in Rome we signed a treaty not to make a German Europe but to move towards a European Germany » .

The problem of bonds aimed at revitalise the European single market and its economic  is undoubtedly also a political problem. In this perspective, I am also convinced that, as already widely voiced by many political figures, Germany is and will remain European. As Commissioner Gentiloni has rightly said, we still have to «bet »  on Germany. France, like Italy, Spain and the other signatory States of the letter of March 25, will do their part in this regard.
The path of enhanced cooperation, legally practicable also in this delicate matter, as it has already been for the creation, currently underway, of the European Public Prosecutor, seems to be the only one that is the most adequate and the quickest to effectively combat the looming recession. With the creation of the ECSC, the six founding States de facto abandoned the Marshall Plan’s method, to walk faster on the path of their economic recovery, and with their own legs.
All Member States, meeting in the European Council, could then instruct the Commission to submit to the Parliament and the Council a legislative proposal based on Article 5 TFEU, concerning the complementary competences of the Union in the field of close coordination of the economic policies of the Member States (articles 119, 121 and 136.1, TFEU), in order to create, on the pattern of the old one, a new European Union Stability Mechanism, completed by specific and distinct actions in the field of coordination of employment policies (Articles 145 and 149 TFEU) and social policies (article 155 and following TFEU) of the Member States in response to the pandemic crisis 2020.
Virtus unita, fortior.

Justice and Home Affairs in the future UK/EU relationship: analysis of the negotiation positions

EU LAW ANALYSIS : ORIGINAL POST HERE

Professor Steve Peers, University of Essex


The EU has now adopted its negotiation mandate for future relationship talks with the UK (discussed here). The UK has now done the same. Lots of commentators have looked in detail at the two sides’ approach to the future relationship on economic issues: this blog post aims to do the same on justice and home affairs issues (immigration, asylum, civil cooperation, judicial and police cooperation).
I’ve reproduced the full text of both sides’ positions side-by-side, thematically, with detailed commentary – plus links to relevant treaties and legislation.
Warning: this blog post criticises both sides where warranted. Supporters of Brexit probably already have my photo pinned to a dartboard; cheerleaders for every position the EU takes might now wish to do the same. In particular, the latter group of people really need to stop claiming that the UK must accept the CJEU’s jurisdiction for any treaty in this field, given that the EU has never insisted on any such thing for any other non-EU country.
In particular, the EU negotiation position for these talks is that in the event of disputes between the parties relating to EU law, the CJEU has to be the final arbiter. The EU has taken that position because the CJEU requires it – but we can find ways to avoid the situationsin which the CJEU requires it, in particular by not referring to EU law as such, and/or avoiding a dispute settlement system which includes arbitrators that might be called on to interpret it. Indeed, the EU and other non-EU countries have found ways to do just that many times before, in all the areas covered by this blog post. If the EU doesn’t trust the UK, it will have the possibility to terminate or suspend the treaty if its concerns are confirmed in practice.
In some ways, this is an update of a previous blog post I wrote on the possibility of a security treaty between the two sides post-Brexit – although obviously events have moved on since then, which I have fully taken account of. Another background source is the House of Lords committee report on a future UK/EU security treaty (which I was a special adviser to).
Note that the withdrawal agreement already provides for the details of winding up the UK’s participation in these issues at the end of the transition period. In the event of future treaties on these issues, arguably the agreement’s Joint Committee can amend these provisions to suit (see Article 164(5)(d), giving it the power to amend the agreement ‘to address situations unforeseen when this Agreement was signed’).
Since there is a significant possibility that the UK/EU negotiations on economic relations will be about as successful as the recent Cats movie, a lot turns on whether there will be a separate treaty on this issue. This is an explicit demand by the UK side, although the EU position is vague. We can only speculate at this point whether a collapse of the economic talks would anyway scupper other negotiations on separate treaties for political reasons.
To ease comparison, the EU position is in italics throughout. The UK position is underlined. My commentary is in ordinary text. I have marked each point by a traffic light system to indicate my assessment of the likelihood of agreement as things stands: Green is more likely than not; Amber is possible, but complicated; Red is unlikely.
In an alternate universe, there’s an alternative Professor Peers, who has the technical ability to do more exciting things with a text; but we are all stuck in this universe.  

Civil cooperation59. In areas not covered by existing international family law instruments and taking into account the United Kingdom’s intention to accede to the 2007 Hague Maintenance Convention, the Parties should explore options for enhanced judicial cooperation in matrimonial, parental responsibility and other related matters.64. The UK proposes continuing to work together with the EU in the area of civil judicial cooperation through multilateral precedents set by the Hague Conference on Private International Law and through the UK’s accession as an independent contracting party to the Lugano Convention 2007.
Amber. The Hague Conference is an international process to draft treaties (among other things) facilitating civil judicial cooperation worldwide. The EU as such is a member alongside its Member States, and has signed up to some of the relevant treaties, including the 2007 Hague Maintenance Convention. (the UK’s ratification is planned for the end of the transition period: see these declarations).  The EU has gone further than the Hague Conference on some civil law issues, by adopting legislation going into more detail on civil jurisdiction (which country’s court has jurisdiction over a cross-border dispute), conflict of law (which country’s law applies in a cross-border dispute; this does not necessarily match the court with jurisdiction), and recognition of judgments as between countries (ie how an American judgment might be enforced in Japan). The Lugano Convention is a treaty copying the text of general EU law on civil jurisdiction and recognition of judgments as it stood in 2007 (it was amended in 2012) and extending it to Norway, Iceland, and Switzerland.
The EU refers specifically to family law, apparently contemplating specific arrangements, while the UK refers generally to the Hague Conference and more precisely to the Lugano Convention. There’s a specific process for signing up to that Convention, in Articles 70 and 72. For a country not part of the EU and EFTA, as the UK will be, it needs the unanimous consent of the existing Contracting Parties. The EFTA States have already supported the UK’s accession; it remains to be seen what view the EU will take. The existing parties ‘shall endeavour to consent’ to the request for accession within a year after they agree to it. As part of the accession request, the applicant country must, among other things, supply ‘information on the appointment and independence of judges’.
Note that although the Lugano Convention copies an EU law text, it does not give the CJEU jurisdiction over the treaty as regards non-EU signatories. Rather Protocol 2 to the Convention says that the parties shall give ‘due account’ to each other’s court’s judgments, including the judgments of the CJEU. There is a system for discussing divergences in interpretation of the Convention, but this does not include any binding dispute settlement – therefore no arbitrators who might be called upon to ask the CJEU how to interpret EU law. Note that the UK’s intention to sign up to the Convention indicates that this does not violate the UK’s ‘red line’ objections to CJEU jurisdiction, presumably because it does not involve jurisdiction for the CJEU or provide for arbitrators to refer questions to the CJEU in the event of a disputeEqually we can deduce it doesn’t violate EU ‘red line’ objections either – given that the EU signed up to the Convention already.
There’s also no ‘dynamic alignment’, ie no obligation to keep up with changes in EU law. Indeed, the 2012 amendment of EU law did not affect the Convention, which still reflects the EU law on this issue adopted in 2001.
In order to move things forward, the UK would have to apply as soon as possible to sign up to the Lugano Convention. If the EU wants to continue cooperation on family law it should table a text soon. Copying the existing EU law texts into a separate treaty, following the format of the Lugano Convention, would be the easiest way forward. As explained above, the Lugano Convention does not breach the UK’s red lines. 
Immigration and asylum145. The envisaged partnership should envisage cooperation to tackle irregular migration of nationals other than those of the Parties, including its drivers and consequences, whilst recognising both the need to protect the most vulnerable and the United Kingdom’s future status of a non-Schengen third country that does not provide for the free movement of persons. This cooperation should cover: a) cooperation with Europol to combat organised immigration crime in line with arrangements for the cooperation with third countries set out in the relevant Union legislation; b) a dialogue on shared objectives and on cooperation, including in third countries and international fora, to tackle irregular migration upstream.54. The UK has made a specific commitment to seek to negotiate a reciprocal agreement for family reunion of unaccompanied children seeking asylum in either the EU or the UK, with specified family members in the UK or the EU, where this is in the child’s best interests.
55. Beyond this, the UK is open to an agreement regulating asylum and migrant returns between the UK and the EU, or alternatively with individual Member States, underpinned by data sharing, to help counter illegal migration and deter misuse of our asylum systems.
Red. The EU seems to be interested in operational cooperation in this area, while the UK wants to negotiate on unaccompanied children seeking asylum, and is also open to a broader arrangement on ‘asylum and migrant returns’ either with the whole EU or individual Member States. The CJEU has not clarified whether this is an issue within EU exclusive competence (ie Member States can’t sign treaties with non-EU countries) or not. The European Parliament also supported the idea of a treaty in this field (para 61 of its resolution on the future relationship), but it is not the negotiator.
In order to move this issue forward, the UK should table a text in this area as soon as possible. If the EU is not interested, the UK should adapt that text into a model treaty with individual Member States and table it to them. NGOs interested in asylum issues should do their best to encourage interest on the EU side.
It is sometimes suggested that the EU should only sign treaties on asylum responsibility with non-EU countries which have signed up to Schengen. But as discussed below, the ‘signed up to Schengen’ rule is not consistently applied by the EU in these negotiations. And frankly, it is not defensible to prioritise an arbitrary and incoherent ‘rule’ above the family unity of vulnerable unaccompanied children seeking asylum.
Note that the EU’s treaties in this field do not require the non-EU country to accept CJEU jurisdiction. For instance the treaty with Norway and Iceland refers to an exchange of case law, political dispute settlement, and the possible termination of the treaty.
56. Mobility arrangements, including on visa-free travel for short-term stays, in the envisaged partnership should be based on non-discrimination between the Union Member States and full reciprocity.57. The envisaged partnership should aim at setting out conditions for entry and stay for purposes such as research, study, training and youth exchanges.58. The envisaged partnership should address social security coordination.60. Any provisions should be without prejudice to the Common Travel Area (CTA) arrangements as they apply between the United Kingdom and Ireland, as referred to in Article 38(2) of the Withdrawal Agreement and in Article 3 of the Protocol on Ireland/Northern Ireland.17. Social security coordination can remove barriers and support mobility of labour between countries. Arrangements that provide healthcare cover for tourists, short-term business visitors and service providers, that allow workers to rely on contributions made in two or more countries for their state pension access, including uprating principles, and that prevent dual concurrent social security contribution liabilities, could be good for business and support trade. These arrangements could benefit UK nationals and EU citizens travelling or moving between the UK and the EU in future.
18. The UK is ready to work to establish practical, reciprocal provisions on social security coordination. Any agreement should be similar in kind to agreements the UK already has with countries outside the EU and respect the UK’s autonomy to set its own social security rules. These arrangements should support mobility by easing the process for those working across borders, including underpinning the reciprocal arrangements on the temporary entry and stay for business purposes (‘Mode 4’ provisions).
Green (social security, visas, CTA); Red (students etc). The two sides both seem interested in negotiating a social security treaty. The UK does not reply to the EU’s visa point, but the relevance of that is limited because the EU has already waived short-term visitor visa requirements for UK citizens unilaterally, as discussed here. The UK also does not reply to the EU’s points about researchers and students, although both sides have their own legislation on admission of these groups of people already (the EU law is discussed here). Nor does the UK refer to the Common Travel Area, but the withdrawal agreement refers to it already.
Police and criminal law: General115. With a view to the Union’s security and the safety of its citizens, the Parties should establish a broad, comprehensive and balanced security partnership. This partnership will take into account geographic proximity and evolving threats, including serious international crime, organised crime, terrorism, cyber-attacks, disinformation campaigns, hybrid-threats, the erosion of the rules-based international order and the resurgence of state-based threats.116. The envisaged partnership should reaffirm the Parties’ commitment to promoting global security, prosperity and effective multilateralism, underpinned by their shared principles, values and interests. The security partnership should comprise law enforcement and judicial cooperation in criminal matters, foreign policy, security and defence, as well as thematic cooperation in areas of common interest.27. The safety and security of our citizens is the Government’s top priority. The UK already has world leading law enforcement capabilities. At the end of the transition period, we will fully recover our sovereign control over our borders and immigration system, which will further enhance our security capabilities.
28. Against this background, the UK stands ready to discuss an agreement on law enforcement and judicial cooperation in criminal matters, to the extent that this is in both parties’ interests. It should include: arrangements that support data exchange for law enforcement purposes; operational cooperation between law enforcement authorities; and judicial cooperation in criminal matters.
29. The agreement should facilitate police and judicial cooperation between the UK and EU Member States; equip operational partners on both sides with capabilities that help protect the public and bring criminals to justice; and promote the security of all our citizens.
Both sides support motherhood. And puppies. Lots of puppies. Other than the international criminal puppies.
Police and criminal law: Red Lines117. The security partnership should provide for close law enforcement and judicial cooperation in relation to the prevention, investigation, detection and prosecution of criminal offences, taking into account the United Kingdom’s future status of a non-Schengen third country that does not provide for the free movement of persons. The security partnership should ensure reciprocity, preserve the autonomy of the Union’s decision-making and the integrity of its legal order and take account of the fact that a third country cannot enjoy the same rights and benefits as a Member State.30. This should be a separate agreement with its own appropriate and proportionate governance mechanism. The agreement must not constrain the autonomy of the UK’s legal system in any way. It should not provide any role for the CJEU in resolving UK-EU disputes, which is consistent with the EU’s approach to cooperation with third countries on law enforcement and judicial cooperation in criminal matters, including between the EU and neighbouring non-EU countries on tools such as the Second Generation Schengen Information System (SIS II) and Prüm.
Both sides emphasising the importance of the ‘autonomy’ of their own legal order here – but emphasising different examples of what their ‘red line’ is in that context. For the UK, it’s no ‘role for the CJEU in resolving UK-EU disputes’. (The UK doesn’t – and couldn’t seriously – object to a role for the CJEU in interpreting the treaty on the EU side; see, for instance, the CJEU judgment on the EU/US extradition treaty, discussed here).  The UK government correctly points out that in practice the EU has consistently agreed treaties with non-EU countries on these issues without requiring jurisdiction for the CJEU to settle disputes. For the treaties it refers to, see for instance the Schengen association agreement with Norway and Iceland (review of the case law; political dispute settlement; termination if dispute is not settled), and the Prüm agreement with the same countries (review of the case law; political dispute settlement).
Having said that, the EU has not made any specific demand on the CJEU issue – besides the general position that if arbitrators are called upon to settle a dispute involving interpretation of EU law, they must ask the CJEU. But the EU makes no mention of how it thinks dispute settlement should work in this specific area. There is no reason why arbitrators must always be involved in settling disputes about interpretation of a treaty, and the EU has never insisted on it before in this field.
The EU’s specific ‘red line’ is ‘taking into account the United Kingdom’s future status of a non-Schengen third country that does not provide for the free movement of persons.’ That correctly describes the UK’s future status; but as we will see, the EU applies this test inconsistently, objecting to the UK continuing to participate in the second-generation Schengen Information System (SIS II), but supporting the UK continuing to participate in some other EU measures only extended to non-EU Schengen associates, or not extended to non-EU countries at all.
Police and criminal law: human rights and data protection118. The envisaged partnership should be underpinned by commitments to respect fundamental rights including adequate protection of personal data, which is a necessary condition for the envisaged cooperation. In this context, the envisaged partnership should provide for automatic termination of the law enforcement cooperation and judicial cooperation in criminal matters if the United Kingdom were to denounce the European Convention of Human Rights (ECHR). It should also provide for automatic suspension if the United Kingdom were to abrogate domestic law giving effect to the ECHR, thus making it impossible for individuals to invoke the rights under the ECHR before the United Kingdom’s courts. The level of ambition of the law enforcement and judicial cooperation envisaged in the security partnership will be dependent on the level of protection of personal data ensured in the United Kingdom. The Commission will work toward an adequacy decision to facilitate such cooperation, if applicable conditions are met. The envisaged partnership should provide for suspension of the law enforcement and judicial cooperation set out in the security partnership, if the adequacy decision is repealed or suspended by the Commission or declared invalid by the Court of Justice of the European Union (CJEU). The security partnership should also provide for judicial guarantees for a fair trial, including procedural rights, e.g. effective access to a lawyer. It should also lay down appropriate grounds for refusal of a request for cooperation, including where such request concerns a person who has been finally convicted or acquitted for the same facts in a Member State or the United Kingdom.31. Cooperation will be underpinned by the importance attached by the UK and the EU to safeguarding human rights, the rule of law and high standards of data protection. The agreement should not specify how the UK or the EU Member States should protect and enforce human rights and the rule of law within their own autonomous legal systems.
32. The agreement should include a clause that allows either party to suspend or terminate some or all of the agreement. This should enable either the UK or the EU to decide to suspend – in whole or in part – the agreement where it is in the interests of the UK or the EU to do so.
33. In line with precedents for EU third country agreements on law enforcement and judicial cooperation in criminal matters, the agreement should not specify the reasons for invoking any suspension or termination mechanism.
Amber. Both sides express their concern about data protection and human rights, but diverge on what that might mean in practice – although that divergence is not so broad that compromise is impossible.  The EU wants to suspend or terminate the treaty for reasons related to human rights or data protection, while the UK accepts the possibility that the treaty could be suspended or terminated, but does not want the treaty to specify the reasons why it might be suspended or terminated. The obvious compromise is that the treaty provides for its suspension or termination if either party decides, without mentioning the grounds, while the EU provides in its own law that it will automatically trigger these clauses for specified human rights or data protection reasons. (This approach could apply equally to divergences from case law: the UK could hardly object to the EU terminating a treaty on those grounds, having accepted that either side should be able to terminate the treaty on grounds they may choose).
The UK refrains from responding to the EU’s implied concern about human rights protection in the UK, but a neutral observer concerned with this issue might well call for a plague on both their houses: the disturbing attacks on judicial independence in Poland being matched by British politicians and commentators who slaver to follow this example. Once the British establishment fantasised that it was Greece to America’s Rome; now it aspires to be Mini-Me to Poland’s Dr. Evil.  
Data exchange119. The envisaged partnership should establish arrangements for timely, effective, efficient and reciprocal exchanges between Passenger Information Units of Passenger Name Record (PNR) data and of the results of processing such data stored in respective national PNR processing systems. It should also provide a basis for transfers of PNR data by air carriers to the United Kingdom for the flights between the United Kingdom and a Member State. Such arrangements should comply with the relevant requirements, including those set out in the Opinion 1/15 of the CJEU.40. The agreement should provide for reciprocal transfers of PNR data to protect the public from serious crime and terrorism.
41. The transfer of Passenger Name Record data from airlines to the UK or EU Member State competent authorities is an important law enforcement capability. It enables law enforcement and security agencies to identify known and otherwise unknown individuals involved in terrorism related activity and serious crime, and track criminal networks from their patterns of travel.
42. The agreement should be based on, and in some respects go beyond, precedents for PNR Agreements between the EU and third countries – most recently, the mandate for the EU-Japan Agreement.
Green. Both sides agree to negotiate on passenger name data, with no big conflict between their positions – although it’s not clear what the UK seeks by ‘going beyond’ the usual EU treaties. On this issue, the EU has a record of agreeing treaties with non-EU countries (including non-Schengen countries), as the UK points out. There’s no CJEU jurisdiction required for the non-EU countries: see the EU/US PNR treaty, for instance (political dispute settlement).
The EU side refers to a 2017 CJEU judgment (discussed here), which criticised the EU/Canada PNR agreement on data protection grounds, but did not rule out the EU agreeing such treaties if there were stronger safeguards. Note that a further CJEU challenge is pending, on the EU’s own PNR legislation; this might have implications for the EU’s external treaties on this issue too. The EU cannot simply negotiate away these safeguards, as the CJEU rulings are based on EU primary law (the EU Charter of Fundamental Rights).
120. The envisaged partnership should provide for arrangements between the Parties ensuring reciprocal access to data available at the national level on DNA and fingerprints of suspected and convicted individuals as well as vehicle registration data (Prüm).38. The agreement should provide for the fast and effective exchange of national DNA, fingerprint and vehicle registration data between the UK and individual EU Member States to aid law enforcement agencies in investigating crime and terrorism.
39. The agreement should provide similar capabilities to those currently delivered through the Prüm system, drawing on the precedent for such cooperation between the EU, Norway and Iceland as well as between the EU and Switzerland and Liechtenstein. These precedents include a political dispute resolution mechanism with no jurisdiction in those third countries for the CJEU.
Green. Both sides agree to negotiate on this particular form of exchange of data, with no conflict between their positions. The UK correctly points out that the EU has already signed agreements with Schengen associates linking them to the EU legislation on this exchange of information, with no CJEU jurisdiction for the non-EU countries and political dispute settlement.
121. Without prejudice to the exchange of law enforcement information through Interpol, Europol, bilateral and international agreements, the envisaged partnership should provide for alternatives for simplified, efficient and effective exchanges of existing information and intelligence between the United Kingdom and Member States law enforcement authorities, in so far as is technically and legally possible, and considered necessary and in the Union’s interest. This would include information on wanted and missing persons and objects.43. The agreement should provide a mechanism for the UK and EU Member States to share and act on real-time data on persons and objects of interest including wanted persons and missing persons. This capability is currently provided by the Second Generation Schengen Information System II (SIS II), making alerts accessible to officers on the border as well as to front-line police officers in the UK.44. SIS II is used by EU and non-EU Schengen members (Switzerland, Norway, Iceland and Liechtenstein). The UK will continue to use SIS II until the end of 2020.
45. The agreement should provide capabilities similar to those delivered by SIS II, recognising the arrangements established between the EU and non-EU Schengen countries (Switzerland, Norway, Iceland and Liechtenstein). The EU’s agreements with these non-EU Schengen countries include a political dispute resolution mechanism with no jurisdiction in those third countries for the CJEU.
Red. The UK seeks something ‘similar’ to SIS II, while the EU rules out the UK’s participation in SIS II as such. This is not explicit in the EU position, but is set out unambiguously in the Q and As published by the Commission. Currently the UK participates in the criminal and police information exchange in SIS II, not the immigration aspects of the database, as discussed here. There’s another law known informally as the ‘Swedish Framework Decision’, but it concerns exchange of information in specific cases, not a database. So while both sides are willing to negotiate something, it’s not clear what that might be.
122. The envisaged partnership should provide for cooperation between the United Kingdom and Europol and Eurojust in line with arrangements for the cooperation with third countries set out in relevant Union legislation.46. The agreement should provide for cooperation between the UK and Europol to facilitate multilateral cooperation to tackle serious and organised crime and terrorism. The UK is not seeking membership of Europol. Europol already works closely with a number of non-EU countries, including the US, through dedicated third country arrangements.
47. The agreement could go beyond existing precedents given the scale and nature of cooperation between the UK and Europol. For example, the UK was the highest contributor of data to Europol for strategic, thematic and operational analysis in 2018.
49. The agreement should provide for cooperation between the UK and Eurojust. Eurojust is an EU agency which brings together prosecutors, magistrates and law enforcement officers to assist national authorities in investigating and prosecuting serious cross-border criminal cases. The UK is not seeking membership of Eurojust.
50. Eurojust already works closely with a number of non-EU countries, including the US, through dedicated third country arrangements. The agreement should follow these precedents to enable ongoing cooperation between the UK and Eurojust.
Green. Both sides are broadly in agreement here, and both correctly point out that there is a framework for Europol and Eurojust to cooperate with non-EU countries (already being applied, as the UK points out).  The UK’s goal of going beyond precedent as regards Europol might not be reciprocated by the EU side. Cooperation with non-EU countries does not go as far as being a Member State. Contrary to the popular belief that ‘cooperation with Europol means CJEU jurisdiction yada yada yada’, there’s no such requirement for non-EU states: see the Europol agreements with the USA, for instance.
Criminal justice cooperation123. The envisaged partnership should establish effective arrangements based on streamlined procedures subject to judicial control and time limits enabling the United Kingdom and Union Member States to surrender suspected and convicted persons efficiently and expeditiously, with the possibilities to waive the requirement of double criminality for certain offences, and to determine the applicability of these arrangements for political offences and to own nationals, including the possibility for the Union to declare, on behalf of any of its Member States, that nationals will not be surrendered, as well as to allow for the possibility to ask for additional guarantees in particular cases.51. The UK is not seeking to participate in the European Arrest Warrant as part of the future relationship. The agreement should instead provide for fast-track extradition arrangements, based on the EU’s Surrender Agreement with Norway and Iceland which came into force in 2019, but with appropriate further safeguards for individuals beyond those in the European Arrest Warrant.
Amber. Both sides agree on a fast-track extradition system in place of the European Arrest Warrant, which has only ever been applied between EU countries. The UK explicitly refers to the precedent with Norway and Iceland, which is very similar to the EAW with certain exceptions (from the ‘red line’ perspective, there’s no CJEU jurisdiction for the non-EU countries, exchange of case law and political dispute settlement). The only other EU extradition treaty is with the USA. The UK refers to ‘further safeguards’, while the EU refers to ‘additional guarantees’: similar in principle, but the devil will be in the details.
As for those details, the EU position that some Member States might refuse to extradite their own citizens already applies in the withdrawal agreement transition period and in the EU/Norway/Iceland agreement. It’s derived from long-standing national constitutional rules, not a vengeful tantrum by the EU: Barnier did not travel back in time to tell Member States’ constitution drafters and constitutional court judges to punish the UK for leaving the EU decades in the future.
pointed out that this would happen before the referendum, and was told this was ‘Project Fear’; nobody has had the humility or integrity to apologise for their ignorance on this issue. It’s almost as if not everybody knew what they were voting for after all. And the sight of people who wanted the UK to become a non-EU country becoming upset because the UK is now being treated as a non-EU country is…unappealing.
The EU refers to the possibility of waiving ‘dual criminality’ – the usual rule of extradition law that an act or omission must be a crime in both the State requesting extradition and the State being requested to hand over a fugitive for extradition to apply. The European Arrest Warrant waives that rule as regards 32 crimes; the EU/Norway/Iceland treaty makes the waiver only optional. As a whole, the EU/Norway/Iceland treaty copies most of the EAW legislation, with several other exceptions.
124. To ensure effective and efficient practical cooperation between law enforcement and judicial authorities in criminal matters, the envisaged partnership should facilitate and supplement, where necessary, the application of relevant Council of Europe conventions, including by imposing time limits and providing for standard forms. It should also cover necessary supplementary forms of mutual legal assistance and arrangements appropriate for the United Kingdom future status, including on joint investigation teams and the latest technological advancements, with a view to delivering capabilities that, in so far as is technically and legally possible and considered necessary and in the Union’s interest, approximate those enabled by the Union instruments.52. The agreement should provide for arrangements delivering fast and effective mutual legal assistance in criminal matters including asset freezing and confiscation. These arrangements should build and improve on those provided by relevant Council of Europe Conventions including the 1959 Council of Europe Convention on Mutual Legal Assistance and its Protocols, for example by providing for streamlined and time limited processes.
Amber. Both sides are willing to supplement the Council of Europe treaties on mutual assistance (the rules on transferring evidence cross-border). The EU has previously negotiated mutual assistance treaties with Norway and Iceland, the USA and Japan. Internal EU law (the European Investigation Order, discussed here), has aimed to replace the Council of Europe measures with a fast-track system too. The details of what is contemplated are not clear, however. The UK refers explicitly to freezing and confiscation (the subject of separate EU and Council of Europe measures), but the EU does not; the reverse is true for joint investigation teams.
125. Supplementing and facilitating the application of the European Convention on Mutual Legal Assistance in Criminal Matters of 20 April 1959 and its Additional Protocols, the envisaged partnership should put in place arrangements on exchange of information on criminal records appropriate to the United Kingdom’s future status with the view of delivering capabilities that, in so far as technically and legally possible and considered necessary and in the Union’s interest, approximate those enabled by the Union instrument.35. The agreement should provide for the fast and effective exchange of criminal records data between the UK and individual EU Member States, recognising that this is an important tool for investigations, prosecutions and sentencing, as well as for wider community safety.
36. To that end, the agreement should provide for capabilities similar to those provided by the European Criminal Records Information System (ECRIS). ECRIS is a secure, automated, electronic system providing for exchange of criminal records information held on countries’ own national databases within specific deadlines.
37. These arrangements should draw on precedents for similar networks of national databases for law enforcement purposes between the EU and third countries (see Prüm below).
Green. Both sides agree in principle to exchange of criminal records on a similar basis to existing EU law (ECRIS was initially set up on the basis of two EU laws: a Framework Decision and a Decision. These laws were amended and replaced by a Regulation and Directive). The details remain to be worked out, however. Note that the EU has not previously agreed to such measures with any non-EU country – even the Schengen associates.
Other issues126. The envisaged partnership should include commitments to support international efforts to prevent and fight against money laundering and terrorist financing, particularly through compliance with Financial Action Task Force (FATF) standards. The provisions in the envisaged partnership should go beyond the FATF standards on beneficial ownership information, among others by providing for the existence of public registers for beneficial ownership information for companies and semi-public registers of beneficial ownership information for trusts and other legal arrangements.53. The agreement should establish effective and reciprocal arrangements to transfer prisoners between the UK and EU Member States, enabling prisoners to be moved closer to home and be rehabilitated in the community to which they will be released. These should build and improve on arrangements provided by the 1983 Council of Europe Convention on the Transfer of Sentenced Persons and its Protocols, and could include time limited processes.
Red. The UK wants to go beyond the Council of Europe rules on the transfer of prisoners, although it does not explicitly refer to the EU law on this issue. There is no matching interest in negotiating this from the EU. On the other hand, the UK does not match the EU interest in negotiating on money laundering (again, there’s no explicit reference to EU law on money laundering) – although in this case, the EU position is almost word for word what the UK agreed with the EU in the political declaration on the future relationship (para 89, discussed here). It’s fair to say, as noted above, that the UK refers to freezing and confiscation of assets, which are part of this issue – but the banking law aspects are part of it too.

EUROPEAN ARREST WARRANT: Framework for analysis and preliminary findings on its implementation

(European Parliament Research Service – EPRS- Authors
IVANA KIENDL KRISTO
Wouter VAN BALLEGOOIJ )

Executive summary

EU Member States have been extraditing suspects and sentenced persons to each other for many decades on the basis of bilateral and multilateral conventions. Those arrangements were, however, slow and thwarted by exceptions based on national sovereignty. As EU integration has progressed, the Member States have agreed to base their cooperation on the principle of mutual recognition of judicial decisions, moving away from a system in which decisions on extradition were ultimately taken at government level. This principle was implemented in the Framework Decision on the European Arrest Warrant and Surrender Procedures (FD EAW), adopted in 2002 on the basis of rapid negotiations following the 9/11 terrorist attacks.

This paper is the first of two publications on the implementation of the European arrest warrant that EPRS will prepare for the LIBE committee.

It provides a framework for analysis as well as preliminary findings on the implementation of the above-mentioned legislation in practice. This paper will be followed by a study (due in April 2020) that will present a comprehensive assessment of the implementation of the FD EAW and tentative recommendations on how to address shortcomings identified.

The FD EAW, adopted in 2002 and implemented since 2004, is generally recognised as a successful instrument. The data available show that it has led to a considerable simplification and speeding up of handover procedures, including for some high-profile cases of serious crime and terrorism. In 2017, the average time between the arrest and surrender of people who did not consent to surrender was 40 days, a remarkable reduction compared to the one year average under the pre­existing extradition regime.

Notwithstanding these achievements a number of challenges remain. More specifically, reports by EU institutions, case law and contributions by practitioners, academics and non-governmental organisations (NGOs) point to a number of challenges in the issuance and execution of EAWs. Those challenges relate back to core debates concerning judicial independence, the nature of mutual recognition and its relationship with international norms, primary EU law and values, including fundamental rights, and (the need for) additional harmonisation measures. In particular, they concern the following matters:

the definition of issuing judicial authorities and their independence from government, which excludes police officers and organs of the executive, but can include public prosecutors in accordance with certain conditions (Section 2.1.1);

the proportionality of a number of EAWs issued for ‘minor crimes’ and before the case was ‘trial ready’, also in view of other possible judicial cooperation measures, where the European Parliament’s call for legislative reform has been answered through guidelines in a Commission Handbook (Section 2.1.2)

the verification of double criminality by executing judicial authorities, leading to a lively academic debate on the compatibility of this requirement with the principle of mutual recognition and potential further questions to be raised with the CJEU; and the lack of approximation of certain offences for which verification is no longer allowed (Section 2.2.1);

EAWs for nationals and residents of the executing Member State and their interplay with the Framework Decision on the Transfer of Prisoners with the dual aim of social rehabilitation and the prevention of impunity (Section 2.2.2);

EAWs based on decisions following proceedings at which the person concerned was not present (in absentia) raising practical problems caused by non-implementation, differences concerning implementation, or incorrect implementation or application of the legislation implementing the Framework Decision on in absentia (Section 2.2.3);

and the role of the executing judicial authority in safeguarding the fundamental rights of the requested person as developed in the CJEU’s case law both as regards EAWs where there are concerns relating to poor detention conditions and broader concerns relating to the right to a fair trial, including an independent and impartial tribunal (Section 2.2.4).

Finally, requested persons have also faced difficulties in effectively exercising their procedural rights in the issuing as well as the executing Member State based on the specific provisions relating to the EAW in the various directives approximating the rights of suspected and accused persons within the EU (Section 2.3).

LINK TO THE FULL TEXT OF THE STUDY https://www.europarl.europa.eu/RegData/etudes/IDAN/2020/621814/EPRS_IDA(2020)621814_EN.pdf

Transparency at EU level : still a bumpy road …

by Emilio DE CAPITANI (Former Secretary of the European Parliament Civil Liberties Committee – LIBE) 18/02/20

Foreword

1. Asking for transparency in a public organization where most of the members are bureaucrats, diplomats and politicians has always been a challenge because each one of these categories will try to preserve and expand its power without being accountable to anyone. This kind of secrecy that ancient Romans called “Arcana Imperii” remains even today the main temptation of power holders who only recently have reluctantly accepted the checks and balances preventing the concentration of powers. Needless to say such checks and balances can prevent abuses only if rule of law is preserved and legislation is adopted with transparent debates and votes as it should be in a democratic society where citizens may play a role when choosing their representatives (representative democracy) but are also associated to the willing to definition of the public policies (participative democracy).

The evolution of transparency in the first phase of the European Communities

2. Transparency (and fundamental rights) where not cited by the founding treaties of the European Economic Community which was mainly focused on the establishment of the internal market and of the four freedoms, but become unavoidable when the ambition of the ECC became more clearly political at the end of the Seventies in the perspective of an “ever closer” Union of the peoples of these member States. It is therefore not surprising that this change of perspective triggered also a change of practices and administrative culture on the side of bureaucrats, diplomats and politicians working in the European institutions.

Suffice it to say that still in the mid-1970s, decision-making and administrative transparency were limited to some essential aspects such as the introductory justifications of each  European Community measure and the mandatory publication of most (but not all) of the EC acts on the Official Journal ( which at the time was only printed in less than 20,000 copies).


3. It is only after the first direct European Parliament elections and its association to the decision-making process even if only as a consultative body that the Commission decided (notwithstanding the opposition of some Member States in the Council) to publish its proposals and, in accordance with the case law of the Court, to better describe in the preamble of the draft acts the essential elements of the procedure as well as the legal basis justifying their adoption.[1]

4. Even if the legislative nature of certain Community measures was already recognised in the case-law of the Court ([2]) the word “legislative” was a penumbral concept in the Institution’s practices and appeared only indirectly in the mid-1980s, first in the practices of the institutions after the Single European Act (entered into force in 1987) with the establishment of a “legislative program” whose aim was to describe notably the “cooperation procedures” requiring two successive readings by the European Parliament.

5. Finally the notion of a more transparent European legislation (both for the content as well as for the adoption procedure) appeared in the Conclusions of the European Council meeting in Birmingham on October 16, 1992 ([3]) as a political response of the EU institutions to the first negative referendum in Denmark ta the time of the ratification of the Maastricht Treaty.

Thanks to this Referendum and to the Maastricht Treaty a radical change of approach has been triggered notably inside the Council marking the new EU’s ambition to upgrade its economic mission to a more political one and, consequently, to make its decision-making process more democratic (with the codecision procedure) and transparent. (see the Declaration attached to the Maastricht treaty)

Legislative and not legislative transparency  

6. This approach will be reinforced with the Amsterdam Treaty which entered into force on May 1, 1999 and which provides for the first time at the level of primary law in Article 255 of the EC Treaty (TEC) the fundamental right of citizens to access European Parliament and Council Commission documents. In addition to this article art. 207 p. 3 of the TEC gave the Council the right to determine “..the cases in which it must be regarded as acting in its capacity as legislator in order to allow better access to documents in these cases, while preserving the efficiency of its process of decision making… “.

7. In application of art. Art 255 TCE the European Parliament and the Council subsequently framed with Regulation 1049/2001 the principles as well as the exceptions ([4]) to the right of access to documents which was considered an essential element of participative democracy.

Unfortunately Regulation 1049/01 was not able to make a clear distinction between legislative and not legislative activity because it mirrored the definition given by the Council internal procedures according to which were “legislative” all the EU measures “binding in and for the Member States” even if  most of these measures were administrative and not legislative so that a lower level of transparency could had been justified .

The stalemate after the Lisbon Treaty

8. The entry into force on 1st December 2009 of the Lisbon Treaty and of the Charter of fundamental Rights was deemed to mark a new era for the European Union and for its Citizens because since then most of the pre-existing problems at Constitutional level were adressed: the Unanimity rule in the Council is now the exception (and no more the rule), the European Parliament has been transformed in a full-fledged co-legislator (also in domains previously jealously controlled by the Member States such as the judicial and police cooperation in criminal matters) and the Court of Justice has been recognised fully competent on almost all the European Policies.

9. Moreover the preamble of the European Charter has proclaimed a sort of Copernican Revolution by announcing that the EU was placing “.. the individual at the heart of its activities, by establishing the citizenship of the Union and by creating an area of freedom, security and justice’  and this announcement is now mirrored in the new Title II of the TEU, dealing with democratic principles which now stipulates that ‘the Union shall observe the principle of the equality of its citizens, who shall receive equal attention from its institutions’ (Article 9) and that ‘every citizen shall have the right to participate in the democratic life of the Union. Decisions shall be taken as openly and as closely as possible to the citizen’ (Article 10(3))[5].

10. Participative democracy is now hammered in the art. 11.1 [6]and 2 TEU according to which the EU institution shall“..give citizens and representative associations the opportunity to make known and publicly exchange their views in all areas of Union action‘ and  ‘maintain an open, transparent and regular dialogue with representative associations and civil society”.

11. But the main rule for participative democracy (along the right to submit legislative initiatives to the attention of the Commission) is the Art 15 of the TFEU whose opening words are the following :” In order to promote good governance and ensure the participation of civil society, the Union’s institutions, bodies, offices and agencies shall conduct their work as openly as possible.” This general obligation is clearly linked to the article 41 of the Charter which promote the principle of good administration inside the EU and the art. 298 of the same Treaty which states that “In carrying out their missions, the institutions, bodies, offices and agencies of the Union shall have the support of an open, efficient and independent European administration.” [7]

12. The second paragraph states of art 15 that “The European Parliament shall meet in public, as shall the Council when considering and voting on a draft legislative act.” Public debates and votes may look quite a basic rule when enacting a legislation, but this was not the case in the European Union before the Lisbon treaty. Even if Council votes were public, this was not the case of legislative debates unlike what was happening in the European Parliament where debates were and still are public at committees and Plenary level. This situation of half transparency notably when the legislation is enacted in co-decision by the European Parliament and by the Council is clearly unacceptable for the EU citizens and even the national Parliaments which in principle should have the right to know and to follow the EU decision-making process no matter if debates are in the Parliament or in the Council.

13. Moreover after Lisbon there is no more ambiguity between legislative and non legislative procedures because the Treaty itself :

  • consider as legislative the measures adopted following the “ordinary” or the “special” procedure
  • foresee the explicit announcement in the draft agendas of the Council the legislative debates/votes
  • makes no more reference to the need of protecting the efficiency of decision making process.

14. It is worth noting that in cases of non legislative procedures the General Court and the Court of Justice have already accepted before the enry into force of the Lisbon Treaty a lower level of transparency than for legislative procedures by recognising a general presumption of non access ([8]) to five this kinds of non legislative documents.

This jurisprudence has been on my opinion rightly criticised by the doctrine [9] because Regulation 1049/01 does not make any reference to this kind of presumption. Quite the opposite the Regulation require an examination on each relevant document by also imposing a dialogue with the person who is asking the access. Moreover the presumption of confidentiality for the documents exchanged between the Commission and a Member States during the transposition of EU law in national law is prejudicial not only for the european citizens but also for the European Parliament. [10]

15 As far as legislative procedures were concerned the European Parliament in December 2011 voting on the revision of Regulation 1049/01 has decided to delete the reference in art 4 to the “efficiency of the decision making process” for the legislative procedures. But this vote has not been followed by the Council which is obviously more than happy to continue in its pre-Lisbon practices thanks to the survival of this exception in Regulation 1049/01 (which is still into force). Unfortunately the European Commission has also until now been supportive of the exception of the protection of the “efficiency of the decision making process” because it has found it very useful when confronted to requests for documents linked to the competition policy or dealing with its relations with the Member States when transposing EU law.

16. It is worth noting that this exception which until today is still the main reason for refusing the access to documents also for legislative procedures is not justified with the necessity to avoid a possible danger for the EU (which may justify even the creation of “classified” documents) but quite simply with the need of the Member States representatives to change their negotiating position without having to explain the real motivation to their national citizens or even …to their national parliaments.

17. When legislative procedures are at stake the Court of Justice has tried to reverse the Council and Commission position with several groundbreaking rulings such as the “Hautala” ([11])  the  “Turco” ([12] ) and Access Info ([13]) cases but the impact on the Council and Commission behaviour has been very limited.  Even two very interesting recent rulings in 2018 of  the Court of Justice and of the General Court have received until now a limited impact on the EU legislative transparency.

18. The first “Client Heart” case [14] is significant insofar as it clarifies the scope of the concept of ‘legislative documents’, which requires a wider threshold of openness. Deciding as Grand  Chamber the Court of Justice found that also documents drawn up in the context of an impact assessment qualify as legislative documents even if as outcome of the this analysis the Commission decide of not launching a legislative procedure.

The second “De Capitani v European Parliament” Ruling regarding the exception for the protection of the decision-making process, is Case T-540/15 where the General Court clarified that the negotiations between the European Parliament and the Council in presence of the Commission (so called “Trilogues”) are an essential phase of the legislative work (no matter if described as “informal”) so that the documents exchanged during these meeting and notably the multicolumn documents should be accessible even if they are evolving and provisional.

How change everything to..change nothing

19. Unfortunately two years after these two rulings the institutions have not changed their behaviour, (even if in some cases they accept specific requests on a case by case basis).

The Council is routinely marking most of the internal legislative documents debated in the working groups or at Coreper level as LIMITE and covered by “professional secrecy” even when they are transmitted to the National Parliaments (which prevent them from debating publicly) and the European Parliament still does not consider trilogues related documents as of legislative (preparatory) nature ! ([15])  Now the point is that if “Trilogues” are an essential phase of the legislative procedure the documents debated during these meetings should be proactively published as required by art. 15 TFEU([16]) and art. 12 par 2  of Regulation 1049/01 ([17]).

20. The “trilogue” procedure is already per se an extraordinry way to foster the EU decision making process and this can explain why now almost all the legislative procedures are negotiated in this framework. That having been said, pretending that this procedure should remain confidential is a blatant violation of the principle lf legislative transparency now embedded in the Treaties and in the Charter. It will be an exception on an already exceptional procedure where, moreover, the provisional texts exchanged when accessible are in only one language and where once a compromise is reached there is no real possibility for amendments!

Why making access to information simple when you can make it complex ?

21. To make things even worse, 18 years after the entry into force of Regulation 1049/01 the EU institutions are still quarelling on the the way how the EU citizens can have a simplified access to the documents negotiated under a specific legislative procedure.

The idea of a common “portal” was debated already debated in 2002 and some pilot projects have been tested since then in the Commission and more recently in the Office of EU publication who is in charge of the production of EURLEX. It may be surprising but institutions who spend millions of euro for the production and diffusion of their internal documents are not able of agreeing common exchange format for the most important EU activity which is to legislate for half billion people.. Such situation in the era of Google and Facebook is frankly unacceptable and in my opinion should trigger soon or later an enquiry by the Ombusdman or even by the Court of Auditors having regard to the social and economic impact of this EU institutions failure.


[1] Il s’agit notamment de la base juridique justifiant dans les traités l’adoption de la mesure, ainsi que les institutions  consultés ainsi que un argumentaire permettant de comprendre le problème que la mesure était censé résoudre.

[2] Voir le point 33 de l’arret “Isoglucose”, SA Roquette Freres v Counseil [Case 138/79, 1980]) selon lequel la consultation « .. est LE MOYEN QUI PERMET AU PARLEMENT DE PARTICIPER EFFECTIVEMENT AU PROCESSUS LEGISLATIF DE LA COMMUNAUTE . CETTE COMPETENCE REPRESENTE UN ELEMENT ESSENTIEL DE L ‘ EQUILIBRE INSTITUTIONNEL VOULU PAR LE TRAITE . ELLE EST LE REFLET , BIEN QUE LIMITE , AU NIVEAU DE LA COMMUNAUTE , D ‘ UN PRINCIPE DEMOCRATIQUE FONDAMENTAL , SELON LEQUEL LES PEUPLES PARTICIPENT A L ‘ EXERCICE DU POUVOIR PAR L ‘ INTERMEDIAIRE D ‘ UNE ASSEMBLEE REPRESENTATIVE »

[3] Voir les Conclusions du Conseil européen ( https://www.consilium.europa.eu/media/20501/1992_october_-_birmingham__eng_.pdf) et la Resolution du conseil du 8 juin 1993 relative à la qualité rédactionnelle de la législation communutaire (https://eur-lex.europa.eu/legal-content/FR/TXT/?uri=CELEX%3A31993Y0617%2801%29 )

[4] Exceptions qui doivent être interprétées et appliquées strictement (arrêt du 13 juillet 2017, Saint-Gobain Glass Deutschland/Commission, C‑60/15 P, EU:C:2017:540, point 63 et jurisprudence citée).

[5] [5] Comme reconnu par la Cour la possibilité, pour les citoyens, de contrôler et de connaître l’ensemble des informations qui constituent le fondement de l’action législative de l’Union est une condition de l’exercice effectif par ces derniers de leurs droits démocratiques, reconnus notamment à l’article 10, paragraphe 3, TUE (voir, en ce sens, arrêts du 1er juillet 2008, Suède et Turco/Conseil, C‑39/05 P et C‑52/05 P, EU:C:2008:374, point 46, ainsi que du 17 octobre 2013, Conseil/Access Info Europe, C‑280/11 P, EU:C:2013:671, point 33).

[6] [6] Article 11,  TEU

1. The institutions shall, by appropriate means, give citizens and representative associations the opportunity to make known and publicly exchange their views in all areas of Union action.

2. The institutions shall maintain an open, transparent and regular dialogue with representative associations and civil society.

3. The European Commission shall carry out broad consultations with parties concerned in order to ensure that the Union’s actions are coherent and transparent.

4.Not less than one million citizens who are nationals of a significant number of Member States may take the initiative of inviting the European Commission, within the framework of its powers, to submit any appropriate proposal on matters where citizens consider that a legal act of the Union is required for the purpose of implementing the Treaties.

The procedures and conditions required for such a citizens’ initiative shall be determined in accordance with the first paragraph of Article 24 of the Treaty on the Functioning of the European Union.

[7]It is a disgrace that notwithstanding repeated formal requests of the European Parliament the European Commission do not intend to present a legislative proposal covering this objective.

[8] À ce jour, la Cour a reconnu l’existence de présomptions générales de confidentialité au bénéfice de cinq catégories de documents, à savoir les documents d’un dossier administratif afférent à une procédure de contrôle des aides d’État, les mémoires déposés devant les juridictions de l’Union au cours d’une procédure juridictionnelle tant que celle-ci est pendante, les documents échangés entre la Commission et les parties ayant procédé à une notification ou des tiers dans le cadre d’une procédure de contrôle des opérations de concentration entre entreprises, les documents se rapportant à une procédure précontentieuse en manquement, y inclus les documents échangés entre la Commission et l’État membre concerné dans le cadre d’une procédure EU Pilot, et les documents afférents à une procédure d’application de l’article 101 TFUE (voir, en ce sens, arrêt du 16 juillet 2015, ClientEarth/Commission, C‑612/13 P, EU:C:2015:486, point 77 ainsi que jurisprudence citée ; s’agissant des mémoires déposés devant les juridictions de l’Union, voir, en ce sens, arrêt du 18 juillet 2017, Commission/Breyer, C‑213/15 P, EU:C:2017:563, point 41 et jurisprudence citée ; s’agissant des documents échangés dans le cadre d’une procédure EU Pilot, voir arrêt du 11 mai 2017, Suède/Commission, C‑562/14 P, EU:C:2017:356, point 51). Dans chacun de ces cas, le refus d’accès en cause portait sur un ensemble de documents clairement circonscrits par leur appartenance commune à un dossier afférent à une procédure administrative ou juridictionnelle en cours (arrêt du 16 juillet 2015, ClientEarth/Commission, C‑612/13 P, EU:C:2015:486, point 78 ; voir, également, arrêt du 11 mai 2017, Suède/Commission, C‑562/14 P, EU:C:2017:356). »

[9] See notably “Beware of Courts Bearing Gifts: Transparency and the Court of Justice of the European Union

Marios Costa* & Steve Peers**

[10] For instance in case of Directives the obligations or the advantages for the national citizens arise mainly from the national measure transposing the Directive. Make transparent the informations exchanged during this phase is clearly more interesting for the Citizens than the access to the information in the “Brussels” phase. Under this perspective the national transposition phase is still an “european phase” and it would be bizarre that an EU institution hide these information. As far as the European Parliament is concerned this confidentiality during the transposition phase for codecision measure is contrary to common sens the EP being the co-author of the measures concerned.

Under this perspective the EP should had challenged this Commission practice since year as contrary to the principle of loyal cooperation.

[11]Case C-353/99 P, Council of the European Union v. Heidi Hautala, Judgment of the European Court of Justice of 6 December 2001

[12] Joined Cases C-39/05 P and C-52/05 P Sweden and Turco v Council 4

[13] See e.g. C-280/11 P Council v Access Info Europe

[14] Judgment of 4 September 2018, C‑57/16  ‘ClientEarth’ .

[15] See the EP Bureau Decision of 2010 listing the documents of legislative nature which should be proactively published and which does not foresee trilogues related documents.  https://www.europarl.europa.eu/RegData/PDF/rev_801268_1_EN.pdf

[16] Art.15,3par 5subparagraph TFEU : “The European Parliament and the Council shall ensure publication of the documents relating to the legislative procedures under the terms laid down by the regulations referred to in the second subparagraph”.

[17] Art 12. 2 Regulation 1049/01 “ In particular, legislative documents, that is to say, documents drawn up or received in the course of procedures for the adoption of acts which are legally binding in or for the Member States, should, subject to Articles 4 and 9, be made directly accessible.