PARLIAMENTARY TRACKER : THE NEW PROPOSAL ON SYSTEMATIC CONTROLS AT EU EXTERNAL BORDERS

by Beatrice FRAGASSO (*)

On Friday 7 April,   Regulation (EU) 2017/458  reinforcing of checks against relevant databases at external borders for all travellers crossing the external Schengen borders, including European nationals, has entered into force. It is the latest  but not the last amendment to the Schengen Border Code (Regulation (EC) 562/2006 ): other amendments are currently negotiated in the framework of the so called Smart Border Package (and others will follow in the coming months) such as

-the two proposals on the ENTRY-EXIT System (issues currently debated are i) the scope of the EES; ii) the optimal choice and use of biometric identifiers; iii) the calculation of the 90/180 day- timeframe regarding Member States which do not yet apply the Schengen acquis in full; iv) the conditions under which stamps will still be used on travel documents; v) the transfer of data to third countries and other third parties; vi)the interaction between the EES and the bilateral agreements under which a Member State extends the stay of the third country national concerned for a period longer than 90 days).

-the proposal to create a European Travel Information and Authorisation System (ETIAS) in order for the visa-exempt third country nationals to be authorised to travel to the Schengen Area for short-stay visits following a pre-screening prior to their trip. Such pre-screening should allow the competent authorities to assess whether such travel poses a security or migration risk. However, it should be noted that this authorisation would not grant entry to the Schengen Area, which remains to be decided by the border guards. ETIAS would cover all external border types (air, land and sea).

– the establishment of additional functionalities for the SIS such as the creation of SIS alerts on irregular migrants who are the subject of return decisions; the use of facial images for biometric identification, in addition to fingerprints; the automatic transmission of information on a hit following a check; the storing of hit information on discreet and specific check alerts in the SIS Central System; the creation of a new alert category on ‘Wanted Unknown Persons’ for which forensic data may exist in national databases (e.g. a latent print left behind at a crime scene) and the extension of the scope of SIS for immigration purposes.  (SEE 7644/16 – Communication from the Commission to the European Parliament and to the Council Stronger and Smarter Information Systems for Borders and Security)

PROCEDURAL ASPECTS :

This latest reform  reinforcing of checks against relevant databases at external borders (Legislative PROCEDURE COD(2015)0307) was proposed by the European Commission (see COM(2015)0670) at the end of 2015 following the Paris terrorists attacks. The Council adopted a “general approach” already on February 25 , 2016 as a basis for a trilogue with the European Parliament and the Commission.

On his side the EP LIBE Committee adopted its Report on 21 June 2016 (A8-0218/2016) . Since then, several technical meetings  and at least three trilogues meetings , (on 13 July 2016, 11 October 2016 and 5 December 2016 ) have taken place. As usual there is no transparency on this kind of legislative negotiations from June 2016 to February 2017 and the only accessible reference is a multicolumn document leaked by Statewatch (dated 8 July 2016). According to that document and other informal sources the main issues debated between the Parliament and the Council were : i) regarding air borders, the extent of the transitional period during which it will be possible to derogate from the systematic checks; ii) the question whether reference should be made in the text to consultation of national data bases to verify that there is no threat to the internal security, etc.; iii) the question whether the scope of cases to be exempted from systematic checks under certain conditions shall be limited to the disproportionate delays (and if allowed by the relevant risk analysis) or would be broaden; iv) The sunset clause which the Parliament wants to be included in the text in order to have the application of this Regulation terminated after a given time.

The Member States pressure on the European Parliament has been particularly strong after  the “informal” meeting of the Heads of State or Government at Bratislava on 16 September 2016 and the result of it (and of the trilogues) has been a compromise wich has been endorsed by LIBE has submitted and submitted to the  European Parliament.

The latter has adopted its position on 16 February 2017 and this  text  is particularly interesting because it shows clearly all the amendments agreed on by the Co-legislator (European Parliament and Council) on the original Commission proposal.. Needless to say, the Council unanimously endorsed the text on Tuesday 7 March, with the only exception of UK, IRL (which can decide to join later) and of DK.

However Slovenia while approving the text confirmed in a separate statement its strong concerns because  “.. checks carried out systematically on all persons crossing the external borders, including those enjoying the right of free movement under Union Law, without targeted checks as a basic principle for efficient border checks and without taking into consideration justified exemptions, is a disproportionate measure in relation to the pursued objective of the change….Additional doubts to the efficiency of the new provisions of Article 7(2) of the Code are related to the possible transitional period for border checks at air borders that are especially vulnerable part of the external borders. The implementation on the scale as specified in Article 7 (2) of the Code will have an adverse effect on passenger flows at external borders as it will also have financial implications for Member States. Slovenia cannot be held ultimately accountable for such outcomes.”

These concerns have been echoed also in a statement of Croatia. The latter is formally a member of the Schengen cooperation but has still to obtain (like Romania and Bulgaria) the Council decision which states that  all the technical tests have been past and internal controls can be suppressed. In practice Croatia is considered still outside the Schengen area and the internal borders controls with Slovenia and Hungary will continue until the Council gives its green light.  For this reason “..the Republic of Croatia regrets that these measures are to be implemented not only at the European Union’s external borders but also at internal borders between Member States fully applying the Schengen acquis and Member States not yet fully applying the Schengen acquis. The title of the Regulation itself implies its application at the European Union’s external borders, not at Schengen borders. For that precise reason, all Member States should have been treated equally. Such a regime will constitute a significant additional burden on the national resources of the Republic of Croatia in terms of the required level of technical and personnel capacities, which could have negative implications for the Croatian economy and the efficient flow of passenger and goods traffic. The Republic of Croatia considers that not even at a symbolic level does such a regime at internal borders contribute to unity in achieving the objectives of this Regulation….”

SOME HIGHLIGHTS OF THE NEW REGULATION AND ECHOES OF THE EP DEBATE 

To have an idea of the impact of the new regulation suffice to remember that in 2014 there has been 60.906.914 Schengen external borders crossings of those 48.792.665 EU citizens.  In the first half of 2016: 26.842.855 passengers, of those 21.385.972 EU citizens.

The new Regulation concerns in particular the Article 7 of Regulation 562/2006, that rules the border checks on persons. Reinforcing the checks against databases at external borders is a response, in particular, to the increased threat of terrorism, and it aims to guarantee the proper functioning of the Schengen area. The new regulation introduces the obligation of systematic checking of all citizens (also EU citizens) at air, sea and land borders on the basis of police databases, such as the Schengen Information System (SIS) or the Interpol database of stolen or missing documents, in view of tracking journeys possibly made for terrorist purposes.

While third-country nationals are already subject to systematic document and security checks against relevant databases upon entry, according to the current legislation EU citizens were subjects to a minimum control based on a rapid and straightforward verification of the validity of the travel document for crossing the border.

The phenomenon of foreign terrorist fighters, many of whom are Union citizens, has generated the need to reinforce checks at external borders with regard to persons enjoying the right of free movement under Union law (i.e. EU citizens and members of their families who are not EU citizens). These new provisions try to face the risks posed by returning terrorist foreign fighters, who have returned to the EU from non-EU countries, exercising their right of free movement.

The regulation introduces a new ordinary procedure for border checking.

The travel documents of persons enjoying the right of free movement under Union law should be checked systematically, on entry into and on exit from the territory of Member States, against SIS and Interpol databases for stolen, misappropriated, lost and invalidated travel documents in order to ensure that such persons do not hide their real identity.

Border guards should conduct systematically checks using data provided by the SIS, Interpol database on stolen and lost travel documents, national databases. To that end, the Member States should ensure that their border guards have access at external border crossing points to the national and Union databases.

The EP rapporteur Monica Macovei (ECR – Romania) at the plenary (on 15 February 2017) gave an example of how the control system is supposed to work: the passport will be scanned and, if one of the databases shows information about that person, further analysis will be done on that traveller. She underlined that it will be a fast verification, because border guards will utilise only one interface, that gather all the databases. According to the regulation, such systematic checks of course should be carried out in full compliance with relevant Union law, including the Charter of Fundamental Rights of the European Union and should fully respect human dignity.

As an exception to the systematic controls, Member States will be allowed to carry out “targeted” (non-systematic) control to particular cases in which systematic checks at the border would have a disproportionate impact on the flow of the traffic. In these cases, a Member State may decide to carry out those checks on a targeted basis at specified border crossing points. This exemption is allowed just if, on the basis of a risk assessment, it is determined that such a relaxation would not lead to a security risk. Such a risk assessment should be transmitted to the European Border and Coast Guard Agency.  In cases where there are doubts about the travel document or where there are indications that such a person could represent a threat to the public policy, internal security, public health or international relations of the Member States, the border guard should consult all named databases.

The regulation provides for adaptations to take account of the problems, mostly of a technical nature, raised by certain member states: at the air borders, for instance, the Member States will be allowed to carry out “targeted” controls over a six-month transition period, once the new regulation enters into force. This timeframe could then be extended for a maximum 18-month period in exceptional circumstances, for instance if airports need to adapt because they do not have the infrastructure to enable them to carry out the systematic controls.

The rapporteur Monica Macovei (ECR – Romania) at the plenary (on 15 February 2017) highlighted the main changes to the Schengen Borders Code. Since now EU citizens have not been checked on entering and leaving the Schengen area and the citizens from third countries are checked only at the entrance, and not in exit. This will change with the regulation: everyone, EU citizens, and non-EU citizens, will be checked both at entry and exit of the EU external border (and not only of the Schengen Area). The rapporteur underlined also the important responsibility of Member States in the regulation’s implementation: Member States should enter data into the EU databases and ensure that the data are accurate and up-to-date and that they are obtained and entered lawfully.

However, the first days of implementation showed some difficulties and inadequacies of the Regulation. As the deputy Tanja Fajon (S&D, Slovenia) had already predicted in her intervention at the plenary (15 february 2017), the first days of implementation produced traffic chaos on some borders, especially on the Slovenia-Croatia one (Slovenia is a member of the Schengen Area, Croatia not yet). Many holidaymakers from Austria, Germany and Switzerland spent hours in queues and during Easter break and summer holidays it will probably get worst.

Tanja Fajon stated that border guards would not have been able to handle the new provisions and that border states would have dealt with queues at the borders. She pointed out that the new rules are characterized by an excessive inflexibility and that they are too unbalanced: they increase security but at the expense of measures user-friendly for all passengers.

And that’s what happened the last weekend on the Slovenia-Croatia borders. Late on Friday Slovenian police suspended the systematic checks of all passengers and continued checking only those from third countries, as the Regulation allows in particular cases in which systematic checks have a disproportionate impact on the flow of the traffic. Slovenian Prime Minister Miro Cerar said that Slovenian police would continue with a “softer” implementation of the new regime until the normalisation of conditions at the border. He stated that the new Regulation is “unacceptable” and the Croatian Prime Minister Andrej Plenkovic agreed with him: Slovenia and Croatia will present proposals to the European Commission to change the Regulation as soon as possible.

The debate at the plenary that took place on 15 February shows also other controversial elements in the Regulation, criticized by MEPs.

Sophia in t’ Veld, on behalf of the Alde Group, criticized the lack of impact assessment, as also Ulrike Lunacek (on behalf of Verts/ALE Group) did: they criticized the fact that the Commission didn’t give any proof that the regulation will make EU more secure. In second place, both the groups find it strange that the Commission use as justification for the proposal the Paris attacks, because one of the main shortcomings emerged in that case was that Member States were not sharing information and terrorists were able to cross internal borders without problems.

Then, with regard with legislative text, Alde group would have preferred a risk-based system, proportional and necessary, rather than the default setting of systematic checks. They also would have liked risk assessment at the European level, based on common European criteria.

Furthermore, they pushed for an equal treatment of land, air and sea borders, with no results. It would therefore have been logical to introduce this equivalence, because if everybody is submitted to systematic checks at airports, but there can be exceptions for land and sea borders, obviously a person who wants to escape control will take the car.

However, Alde group is satisfied for the introduction of the limitation of compulsory checks to well-defined databases, rather than the general reference that was included initially (all relevant databases).

Marie-Christine Vergiat, on behalf of the GUE/NGL group, affirmed that her group firmly oppose the regulation, because it represents another stage in the building of Europe as a security state. GUE/NGL affirm that controls will be random because databases will be consulted just in case of doubt about the validity of travel documents and certain categories of person may also be exempted. They consider that this regulation will affect fundamental rights, without the right to the safety being strengthened.

Laurențiu Rebega, on behalf of ENF group, pointed out that under the justification of security they are building huge databases which are beyond any democratic control. Furthermore, they consider unfair and humiliating that States that are not in Schengen will have the same obligations of Schengen States, but without enjoying the same rights.

All the interventions, anyway, highlighted that the Regulation will be useless if Member States keep ignore the system in place and if Member States do not feed information into it and do not check it. Member States should accept that there is an obligation to use the existing system. The parliamentary debate shows also the shared need to improve dialogue between the databases, and interconnectivity between them and the infrastructure responsible for management of external borders, in full respect of the rules on data protection and fundamental rights.

(*) FREE Group Trainee

  1. Statement by SloveniaThe Republic of Slovenia reaffirms its commitment to implement the provisions of the Schengen Border Code (hereinafter the Code) introducing strengthened checks on persons crossing the external borders of Member States, also on those enjoying the right of free movement under Union law. While the purpose of exercising border checks in this manner is expected to deliver an improvement to control of external borders, to increase Member States’ internal security and to prevent terrorism, this will also have other consequences.By this declaration, Slovenia wishes to draw attention to the potential consequences that will follow from consistent implementation of Article 7(2) of the Code.
    The Republic of Slovenia, as a country whose territory is one of the most heavily burdened entry and exit areas enabling access to Member States1, is fully aware of its responsibility of carrying out border control in the interest of all Member States. In Slovenia’s view, checks carried out systematically on all persons crossing the external borders, including those enjoying the right of free movement under Union Law, without targeted checks as a basic principle for efficient border checks and without taking into consideration justified exemptions, is a disproportionate measure in relation to the pursued objective of the change. Additional doubts to the efficiency of the new provisions of Article 7(2) of the Code are related to the possible transitional period for border checks at air borders that are especially vulnerable part of the external borders. The implementation on the scale as specified in Article 7 (2) of the Code will have an adverse effect on passenger flows at external borders as it will also have financial implications for Member States. Slovenia cannot be held ultimately accountable for such outcomes.

    Slovenia also welcomes the intention of the European Commission to assess regularly the implementation of the Code, including the consequences of amended provisions, and propose relevant amendments if necessary.

    Statement by Croatia

    The Republic of Croatia supports the objective of this Regulation. It is of the opinion that implementing the mechanisms established thereunder will help to strengthen and maintain security throughout the territory of the European Union and the Schengen area, and also contribute to the overall control of our border, that is the external border of the European Union. At the same time, the Republic of Croatia regrets that these measures are to be implemented not only at the European Union’s external borders but also at internal borders between Member States fully applying the Schengen acquis and Member States not yet fully applying the Schengen acquis. The title of the Regulation itself implies its application at the European Union’s external borders, not at Schengen borders. For that precise reason, all Member States should have been treated equally. Such a regime will constitute a significant additional burden on the national resources of the Republic of Croatia in terms of the required level of technical and personnel capacities, which could have negative implications for the Croatian economy and the efficient flow of passenger and goods traffic. The Republic of Croatia considers that not even at a symbolic level does such a regime at internal borders contribute to unity in achieving the objectives of this Regulation.

    Nevertheless, the Republic of Croatia remains fully committed to consistent compliance with and implementation of the Regulation, and welcomes the European Commission’s intention to regularly monitor its implementation and propose relevant amendments whenever it deems this possible.

    With a view to ensuring efficient implementation, the Republic of Croatia also recalls the specific situations of certain Member States and invites the European Commission to take steps, in consultation with stakeholders and further to the European Council conclusions of December 2016, to find appropriate solutions to address those specific situations.

    The Republic of Croatia therefore has an interest and is actively engaged in finding ways to mitigate the undesired consequences of the measures introduced on the flow of passenger and goods traffic both at its external border and at its internal land border with the Republic of Slovenia and Hungary. Bearing in mind the Regulation’s objective and benefits for the European Union as a whole and the fact that it enjoys the broad support of Member States, the Republic of Croatia, as a constructive Member State, supports its adoption.

     

The Return of the Sovereign: A Look at the Rule of Law in Hungary – and in Europe

ORIGINAL PUBLISHED ON VERFASSUNGSBLOG ( 5 Apr 2017 )

by Renáta Uitz (*)

Spring arrived in Budapest with sunshine, magnolias in full bloom, hordes of stag partiers from the U.K. – and a sovereign ready to fight against foreign invaders by legal means. After a lengthy media and political campaign against migrants, foreign influence and George Soros, the Hungarian government resorted to a surgical strike via lawmaking. The first bills of the spring seek to regulate foreign universities and civil society organizations receiving foreign funds with new-found vigor and persistence. This regulatory campaign is launched in the spirit of reclaiming national sovereignty. Were the Hungarian government to succeed in its recent efforts, it may well seriously shatter whatever is left from the rule of law in Europe.

A new law and an alleged bill

On Sunday, April 2, 2017 thousands of Hungarians spent their afternoon demonstrating against the impending amendment of the national higher education law (Act no. 204 of 2011). The amendment became law with the speed of light: the bill was tabled on March 28, 2017 and was passed by the Hungarian Parliament in a procedure of exceptional urgency on April 4, 2017 amidst intense international and domestic protest.

The disputed amendment sought to introduce brand new conditions for the operation of universities accredited outside the EU (foreign universities in the terminology of the bill) in Hungary. According to the reasoning of the Minister of Education who tabled the bill, the amendment aims to regulate third-country (non-EU) universities, as their operation is significant for Hungary’s international relations, and because the movement of scholars and students presents a genuine national security concern.

Among several other conditions the amended law requires foreign universities to maintain a campus in the jurisdiction which has accredited them. The Hungarian government’s concern is that without a campus in the accrediting company, the foreign accreditation agency does not continue to exercise quality control over these institutions. Also, a foreign university may be established solely on the basis of an international agreement concluded by the Hungarian government and the jurisdiction which accredited the institution.

By the time the protesters got home on Sunday, they found out from a news portal that the government appears to have a bill ready to discipline civil society organizations receiving foreign funds. The leaked document which very clearly resemble a bill has not yet been tabled. The idea is to have NGOs which receive more than 7.2M HUF (approx. 24.800 USD / 23.200 EUR) to register themselves with the government as “foreign funded” NGOs. The measure is justified in the name of the fight against money laundering and international terrorism, and is placed in the legal framework of existing rules against money-laundering. According to the preamble of the bill, civil society organizations may be used in Hungary by unknown foreign interest groups to influence Hungarian politics against the interests of the Hungarian people and thus endanger the “influence free operation” of legal institutions.

In the meantime, the self-defending sovereign seeks to gain support to warding off foreign influence in a freshly launched National Consultation. A National Consultation is a direct mailing campaign surveying Hungarian citizens on “important national questions.” (It is not to be mistaken for a referendum or plebiscite.) In this round the government seeks to stop Brussels from abolishing the reduction of utility fees and imposing illegal migrants on Hungary, while it also seeks to enhance the financing of civil society organizations. According to the secretary of state announcing the latest survey“[p]articipating in the national consultation is a strong manifestation of support for Hungary’s independence.”

The legal measures launched in April clearly fit in this rhetoric and mental framework of defending national independence and sovereignty from unwanted foreign influence. But what does this have to do with the rule of law? And why should anyone in Europe care?

Rule of law – rule by law?

The measures discussed in this post fail to meet even the most basic features of how legal rules are envisioned in a rule of law framework. The rules are not general or neutral: they target particular legal entities under the guise of general norms. Although the measures are justified by the need to control harmful foreign influence, they are hardly necessary or proportionate to the aims to be achieved. The manner and speed with which the amendment of the higher education law was passed is antithetical to the most basic premises of legal certainty. These rules single out particular legal entities chosen on the basis of political (in)convenience and subject these target organizations to special treatment serving arbitrary political aims.

The targets of the recent legal measures are organizations which are not government-funded (thus, not government-controlled) and appear to have a  public presence which the government views to be harmful or at least dangerous to Hungarian national identity.

The amendment of the higher education law affects 28 institutions of higher education, out of which 27 do not meet the newly introduced conditions of operation. From the public discourse it transpired very quickly that the primary target of this legislative measure was Central European University, a private graduate university founded by George Soros. Sources in the ruling party regularly referred to CEU in the media as the Soros-university. The parliamentary debate on the bill made it evident that CEU indeed was the target of the measure.

The government’s own communication has made it crystal clear that the leaked NGO bill fits in the Hungarian government’s efforts to rid Hungary of Mr Soros’s philanthropy. In the past few days voices in the ruling party called on the Hungarian government to refuse to pay the Hungarian Helsinki Committee (sic) which had won a major case before the ECtHR challenging the core of ideas of the Hungarian government’s border control measures. This is a mild gesture compared to the political test balloons which suggested that Hungary should exit the European Convention on Human Rights.

In light of the above it would be hard to claim that the newly enacted or the leaked bill contain legal norms of general application. Despite the carefully crafted language of these bills and the conditions they set, it is clear for an observer familiar with the local context that these bills are political instruments targeting very specific legal entities. This is not to suggest that it is per se illegitimate for a government to re-regulate a market sector inhabited by a handful of actors. It is at least curious that e.g. the foreign universities affected by the newly adopted amendment had not been involved in the preparation of the bill, nor had they been invited to participate in the legislative process.

As for the necessity and proportionality of the legal measures against the foreign universities, it is important to note that the operation of these institutions has been well-familiar to the Hungarian authorities. In the heat of the protest against the bill, the Education Authority confirmed that CEU had met the conditions of operation in Hungary under the existing legal framework. Thus, the regulatory impetus and especially the special emergency procedure with which the bill was passed in Parliament are hard to justify even at first sight.

As for the conditions in the amended higher education law, one cannot help but notice that the overwhelming majority of the affected institutions do not meet them at the time of their adoption and would also find it most challenging to comply with them in the immediate future. Under the newly passed amendment they would need to broker an international agreement and open a campus in a second country where they are not present at the moment. This is hardly a coincidence in the case of a bill which affects roughly two dozen institutions which are well-familiar to the very ministry which prepared the bill to re-regulate foreign actors in the education sector.

As for the conditions themselves, the idea that foreign universities can only operate in Hungary based on an international agreement deserves special attention. This condition in and of itself introduces the sovereign to the picture with its might and doubles its weight. It is not only that the sovereign sets a condition, but it also takes the sovereign’s benevolence for a foreign university to be able to meet this condition. If the Hungarian government were not in the mood to compromise with a foreign government on the principles of establishing a university, this statutory condition cannot be met by the organization to which it applies.

Furthermore, a last minute rider to the bill further specified this requirement: for federal entities the Hungarian government is expected to conclude an international agreement with the federal unit in which the university had been accredited, based on the prior approval of the respective federal government. Now, in case such a legal construct (i.e. a state-level treaty with prior federal consent) does not exist in the foreign jurisdiction in question, the condition for the operation of a foreign university set by Hungarian law simply cannot be met.

In brief, these adopted and planned laws are best seen as the decisions of a free-roaming sovereign striking its subjects at will, with the force of the law. This strategy is familiar in Hungary: when a new law on churches was enacted in 2011 to divest hundreds of religious organizations of their legal entity status, the reasons were clearly disclosed in the legislative debate: it is for Parliament, as the representative of the sovereign will of the people, to decide who is a church and who is not. All the Hungarian government learnt since 2011 is that when selecting friends from foes, the sovereign is better off disguising its naked will and political preferences as a national security consideration or a counter-terror measure. Picking on universities and civil society organizations was certainly a smart move: unlike churches the legal entity status of which is considered to be part and parcel of freedom of religion in international and European human rights law, the jurisprudence on academic freedom or the freedom of association is much less developed. As a result, the sovereign may have a broader margin of appreciation to discipline unwanted organizations even in the eyes of a well-meaning regional court.

Why should the EU care?

Recent developments in Hungary have grave relevance for the EU, symbolic and political, as well as constitutional.

It is true that the Hungarian-born U.S. financier and philanthropist George Soros has been the favorite villain of the Hungarian government for years, but he is not the only one. The EU comes as a close second. Civil society organizations partly funded by Mr Soros’ Open Society Foundations have received ample criticism as unpatriotic and destructive. The fact that the same NGOs would also accept funds in the EEA scheme (commonly known as Norwegian funds in Hungary) has singled them out for continued governmental harassment for years.

The draft NGO bill comes one step closer to vilifying EU money: when calculating the 7.2M HUF base-line, EU funding which is not distributed by Hungarian public institutions counts as funding of unknown origin. Thus, if an NGO receives funding from EU institutions directly, it is treated as potentially being under the influence of unknown foreign sources (draft NGO bill, Article 1(3)).

The symbolic and political relevance of recent Hungarian events was put succinctly by the German President Frank-Walter Steinmeier to the European Parliament on April 4, 2017:

“… if we want to be a lighthouse in the world for the rule of law and for human rights, then we cannot ignore, when these foundations are shaken in the midst of Europe. Europe, then, must not be silent, when civil society, even academia – as now at Central European University, Budapest – are deprived of the air to breathe.”

These are important words at a time when European political leaders are still indebted to the Hungarian Prime Minister for putting his weight behind Donald Tusk as the president of the European Council. Prime Minister Orbán, as a true European citizen, said that his priority was Europe’s operability, despite the Polish government’s disapproval. It is in this light that the leaders and the members of the European People’s Party (as well as their voters) may wish to consider President Steinmeier’s words.

On the constitutional level, one may see the awakening of the Hungarian sovereign as a testing of the limits of the European constitutional construct, using the leeway given to the member states to define and defend their national identities under TEU Article 4(2). Article 4(2) as part of the script on subsidiarity, a foundational premise of the EU. Foundational as it may be, it competes with forces which pull towards defining and defending a European constitutional core.

So far much ink has been spilled on reconciling national constitutional identity with the premises of the common European constitutional project. It is time to pay closer attention to the national security exception, which Article 4(2) makes the “sole responsibility” of the member states. If used lightly and carelessly, the national security exception can be a much stronger centrifugal force in Europe than cries of constitutional identity could ever be.

It is hardly by accident that these new Hungarian legal measures are phrased in terms of national security and courter-terrorism. They appeal to the constitutional exception in Article 4(2) as well as to the sentiments of those governments which have been targeted by terrorist attacks. Foreign observers and their governments will be sympathetic to such reasons in the age of global terror and will not be ready to suspect foul play when the sovereign speaks the language of the law. After all, many such observers live in countries where charities and private foundations are used by the supporters of global terrorism to channel funds. From there it may be hard to fathom that in other countries the unwanted foreign influence is the one which defends such ideals as the rule of law and fundamental rights from invasions by its very own government. Therefore, it is all the more important that European constitutional and political actors realize: The carefully crafted new Hungarian laws use the cloak of national security to stab the rule of law, as understood in Europe, in the heart.

(*) Renáta Uitz is professor of comparative constitutional law, chair of the Comparative Constitutional Law program and co-director (with Károly Bárd) of the clinical specialization at CEU Legal Studies. She obtained her Doctor iuris degree (with summa cum laude) at Eotvos Lorant University, Faculty of Law in 1996 and received an LLM in Comparative Constitutional Law at CEU Legal studies in the following year. Her S.J.D. (summa cum laude) in comparative constitutional law earned in 2001 is also from CEU Legal Studies. She started teaching at CEU in 2001, and became chair of the Comparative Constitutional Law program in 2007. Her teaching covers subjects in comparative constitutional law in Europe and North America, transitional justice and human rights protection with special emphasis on the enforcement of constitutional rights and on issues of bodily privacy and sexuality. Theories and practices of good governance in and after democratic transition, and the role of courts in constructing the constitutional subject are at the center of her research interests. “Constitutions, Courts and History” (2004) was her first book, while her most recent is “Freedom of Religion in European Constitutional and International Case Law” (2007). In addition she is the author of over 30 articles and book chapters which appeared mainly in English, Hungarian and Russian. She regularly speaks at international conferences on comparative constitutional subjects.

Guide to the Brexit Negotiations

ORIGINAL PUBLISHED ON EU LAW ANALYSIS

Professor Steve Peers

Last week the Brexit process formally got underway, as the UK formally sent the ‘Article 50’ withdrawal letter to the EU on March 29, and the EU in turn drew up a draft of its Brexit negotiating guidelines.

The following is a detailed annotation of the text of the EU’s draft guidelines, which I compare throughout to the UK position – which is most fully set out in Theresa May’s Chatham House speech in January (discussed here). The draft guidelines might be changed before final adoption (due for April 29), but at present it seems unlikely there will be radical changes (if any), so my analysis is based on the text as it now stands. I will update this blog post if there are significant amendments.

I also make reference to the draft position of the European Parliament (EP). This is less important than the draft EU position, since the European Parliament is not (even partly) the negotiator in the talks – no matter how much it might claim to be, or how much some in the UK media believe that it is.  However, the EP position is still worth considering because the EP has a veto over the final Article 50 deal, and this power could influence the actual negotiators’ position. (There’s a full discussion of the EP’s role here). My comments are both legal and political – although we should keep in mind that most legal analysis about Article 50 TEU (which sets out the process of leaving the EU) is purely speculative in the absence of any ECJ case law.

While the initial attention in the UK has focussed on a misunderstanding of what the draft EU guidelines say about Gibraltar, the most significant issue is actually that the EU and UK in principle have many negotiating objectives in common. Most notably, the EU has accepted the UK’s objective of aiming towards a comprehensive EU/UK free trade agreement (FTA) without provisions on the free movement of persons or contributions to the EU budget.

The devil will therefore be in the considerable details. For example, the EU and UK still disagree on the timing of Brexit talks, (possibly) the role of the ECJ, financial issues (the ‘divorce bill’), the Gibraltar issue (although this will be an issue for bilateral talks with Spain), whether the UK should comply with environmental and other standards as part of a deal, and whether ‘sectoral’ deals are possible. Further points of detailed disagreement will surely emerge as the talks get underway.

Is an EU/UK relationship based on a free trade deal the right way forward? Frankly, in my view, it’s not the first or even the second best option. But it is still a vastly better option than reversion to trade with the EU on a ‘WTO-only’ basis, as some are contemplating. This would lead to significant tariff and non-tariff barriers on many goods and services traded, and therefore hurt both sides.

There’s a democratic dimension to this too. Many of those voting ‘Leave’ were particularly concerned about EU budget contributions and the free movement of people, and an UK/EU FTA would resolve both concerns. But equally the ‘Leave’ side argued repeatedly that any concerns about a drop in UK trade with the EU were misplaced, because the UK and the EU would sign a free trade agreement without commitments relating to the free movement of persons or EU budget contributions.

They also claimed that such an agreement could be reached quickly and easily, on the UK’s terms. This was an obvious falsehood, as the EU’s draft negotiating guidelines have confirmed.  But rather than focus on this untruth, I believe we should move forward. It’s up to the government to move on with the negotiations, never forgetting that a reversion to a WTO-only trading relationship with the UK’s largest trading partner would both make a nonsense of the government’s aim of a free-trading ‘Global Britain’ and lack the slightest shred of democratic legitimacy. Moreover, it would damage both sides, and in particular put many people in the UK out of a job. These negotiations won’t be easy, but they are necessary. The time for fantasies, flag-waving and faffing about is over.

Annex I

On 29 March 2017, the European Council has received the notification by the United Kingdom of its intention to withdraw from the European Union and Euratom. This allows for the opening of negotiations as foreseen by the Treaty.

Note that the guidelines refer throughout to ‘negotiations’. Some have erroneously asserted that the EU will draft a text and present to the UK on a ‘take-it-or-leave-it’ basis. This is incorrect: Article 50(2) TEU refers several times to ‘negotiations’, and the draft guidelines reflect this.

The guidelines do not refer to any possible withdrawal of the UK notification, although the EP resolution (point L) assumes that a withdrawal of the notification is possible with consent. There is also an argument that the time period for withdrawal in Article 50 could be extended indefinitely. I will return to this issue another time.

Some have speculated that the EP might insist that the UK hold a referendum result on the outcome of the talks, as a condition for its consent to the deal. This would almost certainly backfire spectacularly, and in any event the draft EP resolution does not address this.

European integration has brought peace and prosperity to Europe and allowed for an unprecedented level and scope of cooperation on matters of common interest in a rapidly changing world. Therefore, the Union’s overall objective in these negotiations will be to preserve its interests, those of its Member States, its citizens and its businesses.

The United Kingdom’s decision to leave the Union creates significant uncertainties that have the potential to cause disruption, in particular in the UK but also in other Member States. Citizens who have built their lives on the basis of rights flowing from the British membership of the EU face the prospect of losing those rights. Businesses and other stakeholders will lose the predictability and certainty that come with EU law. With this in mind, we must proceed according to a phased approach giving priority to an orderly withdrawal.

The EU expressly asserts here its goal of an ‘orderly withdrawal’. Indeed Article 50(2) creates an obligation to negotiate with the withdrawing Member State (implicitly in good faith, as with any other negotiation under international law). Legally the wording of Article 50 equally suggests it aims to ensure an orderly withdrawal, and the ECJ is very likely to interpret it the same way. This necessarily implies that the EU cannot simply walk away from negotiations. However, in the event of a legal challenge it is unlikely (based on its prior case law on the EU’s international relations, which emphasises political discretion for the EU institutions) that the ECJ would rule that the general obligation to negotiate requires the EU to adopt (or refrain from adopting) specific negotiation objectives.

Politically this paragraph (and other similar references) confirms that the EU is aiming to reach a deal with the UK. So it would be false for anyone to assert that it is not.

In these negotiations the Union will act as one. It will be constructive throughout and will strive to find an agreement. This is in the best interest of both sides. The Union will work hard to achieve that outcome, but it will prepare itself to be able to handle the situation also if the negotiations were to fail.

The first sentence confirms that the EU will negotiate as a bloc, as Article 50 provides for (‘the Union shall negotiate and conclude an agreement with that State’). This does not preclude informal bilateral talks between the UK and key Member States’ governments, which is common when the EU discusses trade deals with non-EU states.

The overall tone here is diplomatic and asserts an intention to reach a deal, although the final sentence also asserts that the EU will prepare itself for a ‘no deal’ scenario as an alternative. This would likely entail getting draft EU laws ready for approval and gearing up national customs administrations et al for a UK departure presumably in one of two scenarios: a) on the date set out pursuant to Article 50; b) if the UK purports to leave the EU in breach of the terms of Article 50. In the latter scenario the EU Member States might not wait for the end of the Article 50 period, but declare that the UK has committed a material breach of the EU Treaties within the meaning of Article 60 of the Vienna Convention on the Law of Treaties, and suspend the UK from the Treaties.

The guidelines make no mention of amending the Treaties to remove reference to the UK, but one would not expect them to, since logically that is not an issue which the EU would negotiate with the UK.  It is not yet clear whether the EU will embark upon such a course; legally it might be argued that Article 50 is ‘self-executing’ in the sense that references to the UK automatically become legally irrelevant on Brexit Day. One issue might be whether other changes to the Treaties might be made at the same time; if so, this would become difficult to negotiate. Even a purely technical Treaty amendment which only removes references to the UK would take some time to ratify, so one would expect work to get underway soon, if it is going to happen – although there could be a legal problem in that in principle the UK ought to participate in the Treaty amendment process as long as it is a member. One solution might be to draw up such a treaty after Brexit Day, and backdate its application date.

Paras 30 and 32 of the draft EP resolution refer to possible changes to EU law as a result of the UK’s departure as an issue for the EU-27, although they make no specific reference to Treaty amendment.

These guidelines define the framework for negotiations under Article 50 TEU and set out the overall positions and principles that the Union will pursue throughout the negotiation. The European Council will remain permanently seized of the matter, and will update these guidelines in the course of the negotiations as necessary.

Article 50(2) states that the negotiation must take place ‘in light of’ these guidelines. It is unclear precisely what legal effect this has. For instance, could an outvoted Member State challenge the Article 50 deal for breaching the guidelines? As it happens, there is a pending ECJ case which raises (among other things) the legal effect of European Council guidelines in the asylum context, discussed here.

The predominant effect of the guidelines will of course be political; note that the European Council is prepared to ‘update’ them (ie amend or elaborate upon them further). They will necessarily be fleshed out in detail in a rather longer treaty text, on the basis of drafts tabled and negotiated by each side.

  1. Core principles
  1. The European Council will continue to base itself on the principles set out in the statement of Heads of State or Government and of the Presidents of the European Council and the European Commission on 29 June 2016. It reiterates its wish to have the United Kingdom as a close partner in the future. It further reiterates that any agreement with the United Kingdom will have to be based on a balance of rights and obligations, and ensure a level-playing field. Preserving the integrity of the Single Market excludes participation based on a sector-by-sector approach. A non-member of the Union, that does not live up to the same obligations as a member, cannot have the same rights and enjoy the same benefits as a member. In this context, the European Council welcomes the recognition by the British Government that the four freedoms of the Single Market are indivisible and that there can be no “cherry picking”.

The June 2016 statement can be found here. The second sentence matches the UK government’s objective of a future close partnership. Any ‘sectoral’ deals are excluded; this contradicts the UK government position, which had the objective of obtaining such deals. In any event sectoral deals would be potentially vulnerable to challenge under WTO rules, which require any free trade agreement to cover ‘substantially’ all trade in goods (Article XXIV GATT) or services (Article V GATS). It would however be possible for mutual recognition agreements to cover certain sectors of trade. There is no reference in the guidelines to the UK government’s objective to achieve some form of special customs agreement, except implicitly as regards Northern Ireland.

  1. Negotiations under Article 50 TEU will be conducted as a single package. In accordance with the principle that nothing is agreed until everything is agreed, individual items cannot be settled separately. The Union will approach the negotiations with unified positions, and will engage with the United Kingdom exclusively through the channels set out in these guidelines and in the negotiating directives. So as not to undercut the position of the Union, there will be no separate negotiations between individual Member States and the United Kingdom on matters pertaining to the withdrawal of the United Kingdom from the Union.

It’s not clear whether the ‘single package’ refers more narrowly to the specific issues which the EU wants to negotiate first, or the talks on later status of UK/EU relations. This is important because there is a strong case for concluding a first treaty on withdrawal issues, including in particular the status of UK and EU citizens who have moved between Member States, separately from any subsequent treaties.

This paragraph reconfirms the ‘no separate negotiations’ point already made in the guidelines. As noted above, this does not prevent some informal bilateral discussions on specific issues. For instance, UK/Ireland discussions on border issues could be significant, and the guidelines in effect require separate talks between the UK and Spain regarding Gibraltar. They also refer to bilateral UK/Cyprus issues.

Article 50 refers to the EU acting by qualified majority vote (without the UK voting), so the common assumption that any Article 50 deal must be agreed unanimously and ratified by all national parliaments is incorrect. However, some aspects of the overall Brexit deal (ie on future relationship) might entail unanimous voting and national ratification; and the EU might be unwilling to proceed with the Article 50 deal against the opposition of one or more Member States.

  1. A phased approach to negotiations
  1. On the date of withdrawal, the Treaties will cease to apply to the United Kingdom, to those of its overseas countries and territories currently associated to the Union, and to territories for whose external relations the United Kingdom is responsible. The main purpose of the negotiations will be to ensure the United Kingdom’s orderly withdrawal so as to reduce uncertainty and, to the extent possible, minimise disruption caused by this abrupt change.

This refers to the entities referred to in Article 353 TFEU, ie Gibraltar, the Channel Islands, the Isle of Man, and some small remaining semi-colonies. For a discussion of their status, see this House of Lords report. The reference to minimising disruption is important, although qualified (‘to the extent possible’).

To that effect, the first phase of negotiations will aim to:

settle the disentanglement of the United Kingdom from the Union and from all the rights and obligations the United Kingdom derives from commitments undertaken as Member State;

provide as much clarity and legal certainty as possible to citizens, businesses, stakeholders and international partners on the immediate effects of the United Kingdom’s withdrawal from the Union.

The European Council will monitor progress closely and determine when sufficient progress has been achieved to allow negotiations to proceed to the next phase.

This asserts the EU’s determination to discuss withdrawal issues before trade issues, whereas the UK has wanted to discuss them in tandem. However, the EU guidelines do not require the withdrawal issues to be fully agreed before talks on post-Brexit issues get underway. The ‘sufficient progress’ test is deliberately flexible; it can be argued that agreement in principle on the main issues will be sufficient, even if some details have to be worked out.  Para 14 of the EP draft resolution largely matches this, although the EP will not have any formal role in determining whether ‘substantial progress’ (the slightly stricter test which the EP proposes) has been met.

  1. While an agreement on a future relationship between the Union and the United Kingdom as such can only be concluded once the United Kingdom has become a third country, Article 50 TEU requires to take account of the framework for its future relationship with the Union in the arrangements for withdrawal. To this end, an overall understanding on the framework for the future relationship could be identified during a second phase of the negotiations under Article 50. The Union and its Member States stand ready to engage in preliminary and preparatory discussions to this end in the context of negotiations under Article 50 TEU, as soon as sufficient progress has been made in the first phase towards reaching a satisfactory agreement on the arrangements for an orderly withdrawal.

The EP draft resolution (point 15) also rules out conclusion of a ‘future relationship’ treaty before Brexit, so it seems unlikely to happen.

This discussion of a ‘future relationship’ between the UK and the EU (concerning trade and other issues) is separate from a possible ‘transitional arrangement’ referred to in the next paragraph (‘may also’). So it is unclear whether a transitional deal could also only be concluded after the UK leaves.

In any event, it is arguable that a longer-term deal could be concluded (or at least signed and applied provisionally) on the date of withdrawal, or failing that, it could be backdated to that date. Such an approach would be consistent with the EU’s objectives of an orderly withdrawal and minimising disruption. However, the references to ‘preliminary and preparatory’ and ‘overall understanding’ seem to rule that out.

In any event, it would be hard in practical terms to negotiate all the details of the long-term framework within the time available, even though this is Theresa May’s objective. This is particularly true given that some of the available time will be taken up negotiating withdrawal issues before moving on to the ‘future relationship’ talks.

  1. To the extent necessary and legally possible, the negotiations may also seek to determine transitional arrangements which are in the interest of the Union and, as appropriate, to provide for bridges towards the foreseeable framework for the future relationship. Any such transitional arrangements must be clearly defined, limited in time, and subject to effective enforcement mechanisms. Should a time-limited prolongation of Union acquis be considered, this would require existing Union regulatory, budgetary, supervisory and enforcement instruments and structures to apply.

It is certainly in the EU’s interest to maintain trade flows and other relationships with the UK, and as noted above this would be consistent with the EU’s objectives of an orderly withdrawal and minimising disruption. They would obviously be ‘necessary’ to the end of avoiding a switch to a WTO-only framework for trade between the UK and the EU. Again as noted already, this paragraph is unclear about when a transitional deal might be concluded, although as compared to the previous paragraph it does not explicitly state that talks could not be completed or that an agreement could not be concluded before Brexit Day. It is also vague about the relevant legal base: is it Article 50 (qualified majority vote) or other Treaty provisions (more likely to entail unanimity and national ratification)? The exact scope of Article 50 is unclear legally; the wording here suggests some uncertainty about what is ‘legally possible’, which it may be necessary to ask the ECJ to clarify (see Annex II).

The transitional deal would have to be limited in time, which could reassure those who do not want the UK to remain in such an arrangement indefinitely. It is not expressly clear that all aspects of EU membership would be carried over. In particular, it is not clear that the only transition which the EU would consider would be continuing in force the EU acquis. The distinction is important because a) flexibility on this issue could involve ending the free movement of people, or continuing it with an ‘emergency brake’, from Brexit Day; and b) an ‘enforcement mechanism’ might fall short of continuing EU ‘existing regulatory, budgetary, supervisory and enforcement’ measures. The latter phrase would logically entail keeping in force the ECJ’s current jurisdiction, while a mere ‘enforcement mechanism’ could entail a more limited role for the ECJ (no references from UK courts or direct impact on UK law) or a different dispute mechanism system entirely, such as using the EFTA Court which already exists and rules on certain EU law issues as regards Norway, Iceland and Liechtenstein. However, the more different a transitional system would be from current EU membership, the longer it would take to negotiate, and the bigger the risk of running out of time.

The UK government’s position seems to contemplate some form of interim transitional period, without calling it such. The Chatham House speech refers instead to ‘phased implementation’, during which aspects of EU law will still apply. But despite the difference in wording, fundamentally there are strong similarities between the UK and EU positions here.

The EP draft resolution is similar (para 28). It sets a maximum time limit of three years for the transitional deal, although otherwise it is as vague as the European Council draft guidelines.

  1. The core principles set out above should apply equally to the negotiations on an orderly withdrawal, to any preliminary and preparatory discussions on the framework for a future relationship, and to any form of transitional arrangements.
  1. The two year timeframe set out in Article 50 TEU ends on 29 March 2019.

It should be noted that Article 50(3) provides that the withdrawal agreement may set a different date (which could implicitly be later or earlier), and that the UK and the remaining EU, voting unanimously, may postpone the overall deadline.

III. Agreement on arrangements for an orderly withdrawal

  1. The right for every EU citizen, and of his or her family members, to live, to work or to study in any EU Member State is a fundamental aspect of the European Union. Along with other rights provided under EU law, it has shaped the lives and choices of millions of people. Agreeing reciprocal guarantees to settle the status and situations at the date of withdrawal of EU and UK citizens, and their families, affected by the United Kingdom’s withdrawal from the Union will be a matter of priority for the negotiations. Such guarantees must be enforceable and non-discriminatory.

The EU, like the UK, places priority on an early deal on the rights of each other’s citizens. While some had claimed that the EU could not or would not address this issue in the Article 50 talks, it clearly intends to do so. The reference to ‘non-discriminatory’ arrangements confirms that there will not be bilateral talks on this issue, as some people had expected. While some have claimed that the EU lacks legal power to regulate the position of non-EU citizens, Articles 77-79 TFEU confer such powers and the EU has adopted a number of laws in this area. In any event, it is strongly arguable that Article 50 confers power upon the EU to negotiate any issue which arose pursuant to the withdrawing Member State’s membership of the European Union, and the status of UK and EU citizens is one obvious example of such an issue.

The reference to an ‘enforceable’ guarantee does not necessarily entail using the ECJ. There could be some other form of dispute settlement, or a commitment to make the agreement binding in national law and to hold discussions about any issues which arise might suffice.

It should be noted that the guidelines make no reference to the idea, promoted by some in the EP, of an optional right for UK citizens to retain EU citizenship. The EP draft resolution does refer to this issue, but states that such arrangements should be reciprocal (para 27). It is hard to imagine the UK government agreeing to such a deal.

  1. Also, the United Kingdom leaving the Union will impact EU businesses trading with and operating in the United Kingdom and UK businesses trading with and operating in the Union. Similarly, it may affect those who have entered into contracts and business arrangements or take part in EU-funded programmes based on the assumption of continued British EU membership. Negotiations should seek to prevent a legal vacuum once the Treaties cease to apply to the United Kingdom and, to the extent possible, address uncertainties.

This indicates a general intention to retain contracts and legal arrangements in force, if they have been concluded before Brexit Day. This could be relevant to research funding, regional funding or farm subsidies, for instance. It could also be the basis for arguing that UK banks who already have a licence to sell financial services to the EU market can retain it.

  1. A single financial settlement should ensure that the Union and the United Kingdom both respect the obligations undertaken before the date of withdrawal. The settlement should cover all legal and budgetary commitments as well as liabilities, including contingent liabilities.

This is likely to be one of the most difficult issues to negotiate. The draft guidelines do not put a specific figure on the ‘bill’, although press reports note amounts such as €50 billion. There is no reason why the amount of any bill should be paid upfront, as some of it relates to funding over the next few years and to pensions payable over the longer term. For detailed discussions of this issue see this House of Lords report and this Brueghel report.

  1. The Union has consistently supported the goal of peace and reconciliation enshrined in the Good Friday Agreement, and continuing to support and protect the achievements, benefits and commitments of the Peace Process will remain of paramount importance. In view of the unique circumstances on the island of Ireland, flexible and imaginative solutions will be required, including with the aim of avoiding a hard border, while respecting the integrity of the Union legal order. In this context, the Union should also recognise existing bilateral agreements and arrangements between the United Kingdom and Ireland which are compatible with EU law.

The EU and UK both make a priority of addressing the border issue between Ireland and Northern Ireland. (It should be noted that there is no specific reference to Scotland in the EU guidelines; the EP resolution merely notes that Scotland voted to Remain). There are indications of great willingness to compromise here (‘flexible and imaginative solutions’) and it should be noted that Protocols to the Treaties require the EU to facilitate the operation of the Common Travel Area between the UK and Ireland (the words ‘should also recognise’ these arrangements do not adequately take account of this legal obligation). However, the Protocols do not lay down in detail what happens in the event of UK withdrawal, which therefore has to be the subject of negotiations. Equally, arguments about the history of the UK and Ireland are irrelevant, as there has never been a previous situation when one of those countries was in the EEC/EC/EU and the other was not.

  1. The Union should agree with the United Kingdom on arrangements as regards the Sovereign Base Areas of the United Kingdom in Cyprus and recognise in that respect bilateral agreements and arrangements between the Republic of Cyprus and the United Kingdom which are compatible with EU law, in particular as regards the situation of those EU citizens resident or working in the Sovereign Base Areas.

There is a specific Protocol to the 2003 Accession Treaty on the position of the UK sovereign base in Cyprus, which will presumably have to be amended in order to take account of any such agreement. Here, despite the overall EU-wide approach to talks, there is recognition that there will be a bilateral agreement between the UK and Cyprus alongside an EU-UK agreement.

  1. Following the withdrawal, the Union with 27 Member States will continue to have the rights and obligations of the Union with 28 Member States in relation to international agreements. The United Kingdom will no longer be covered by agreements concluded by the Union or by Member States acting on its behalf or by both acting jointly. The European Council expects the United Kingdom to honour its share of international commitments contracted in the context of its EU membership. In such instances, a constructive dialogue with the United Kingdom on a possible common approach towards third country partners and international organisations concerned should be engaged.

The EU position is that the UK ceases to be part of any treaty with non-EU countries within the scope of EU law – whether concluded by the EU alone, by the Member States alone (but affecting EU law) or by both together. This is particularly relevant to trade agreements (see discussion by Markus Gehring here) but affects other agreements as well (for example, environmental deals).

The UK will likely seek to secure replacement agreements with the countries concerned. This is even encouraged by the EU, which seeks a ‘constructive dialogue’ on these issues. The reference to ‘international organisations’ most obviously refers to the WTO.

In practical terms, the issue which particularly arises is ‘tariff rate quotas’, ie allowing in a certain amount of products at a low tariff. Say the EU allows 100,000 tons of olives imported from Morocco at a low tariff: the obvious solution is to split that between the UK and the remaining EU based on recent trade flows (ie how much of those olives were imported into the UK in the last three years, as compared to the rest of the EU?).

Non-EU countries will obviously have to agree to this process, and the UK might want to focus particularly on replicating those agreements with a major impact on UK exports: for instance, the EU agreements on the protection of the name ‘Scotch Whisky’.

  1. While the future location of the seats of EU agencies and facilities located in the United Kingdom is a matter for the 27 Member States, arrangements should be found to facilitate their transfer.

The intention is obviously to move these bodies as soon as possible after Brexit Day, if not before. The UK will not be involved in decisions on where they move to, but will be involved in the logistics of moving them.

  1. Arrangements ensuring legal certainty and equal treatment should be found for all court procedures pending before the Court of Justice of the European Union upon the date of withdrawal that involve the United Kingdom or natural or legal persons in the United Kingdom. The Court of Justice of the European Union should remain competent to adjudicate in these procedures. Similarly, arrangements should be found for administrative procedures pending before the European Commission and Union agencies upon the date of the withdrawal that involve the United Kingdom or natural or legal persons in the United Kingdom. In addition, arrangements should be foreseen for the possibility of administrative or court proceedings to be initiated post-exit for facts that have occurred before the withdrawal date.

The EU assumes that EU court cases pending on Brexit Day should remain within the competence of the Court to decide. This is a classic transitional issue and the EU suggestion makes sense, since the cases concern the pre-Brexit legal position. (Compare to the planned Great Repeal Bill, which will provide that pre-Brexit ECJ case law will still be binding). It is slightly more ambiguous as regards pending administrative procedures like competition law and state aid (‘arrangements should be found’). The same applies to cases with EU law issues pending in the UK courts on Brexit Day, or which are brought in the UK courts in summer 2019 relating to a 2018 tax bill, for instance.

This paragraph is too limited, as the transitional deal needs to take explicit account of all legal proceedings pending on Brexit Day pursuant to EU law, not just those which involve or may involve the EU institutions: for instance a pending claim to recognise a German court judgment in the UK, or the French authorities’ obligation to execute a European Arrest Warrant issued by the UK before that date. Most implementation of EU law is carried out by national courts and administrations, not EU bodies, and the transitional rules should take account of this.

  1. The withdrawal agreement should include appropriate dispute settlement mechanisms regarding the application and interpretation of the withdrawal agreement, as well as duly circumscribed institutional arrangements allowing for the adoption of measures necessary to deal with situations not foreseen in the withdrawal agreement. This should be done bearing in mind the Union’s interest to effectively protect its autonomy and its legal order, including the role of the Court of Justice of the European Union.

The institutional arrangements will presumably entail an EU/UK Joint Committee with the power to take decisions by joint agreement. There are similar bodies in other EU treaties with non-EU states. The first and third sentences, read together, do not explicitly insist that the ECJ have jurisdiction over the withdrawal agreement (although it will inevitably have jurisdiction as regards the EU side). The reference to ensuring EU autonomy reflects ECJ case law which states that treaties with non-EU countries cannot affect the separate development of EU law or the essential features of the Court’s powers: see Opinion 1/91 and Opinion 1/00. Compare with point 17 of the EP resolution, which explicitly calls for the ECJ to have jurisdiction over the withdrawal agreement.

  1. Preliminary and preparatory discussions on a framework for the Union – United Kingdom future relationship
  1. The European Council welcomes and shares the United Kingdom’s desire to establish a close partnership between the Union and the United Kingdom after its departure. While a relationship between the Union and a non Member State cannot offer the same benefits as Union membership, strong and constructive ties will remain in both sides’ interest and should encompass more than just trade.

The EU accepts in general the UK position of having a close partnership, including but going beyond trade. There is no explicit reference to the form of the relationship, which is relevant given that it could affect whether the EU side has to vote unanimously and ask national parliaments to ratify any treaty. (EU treaties with non-EU states can be partly applied provisionally pending such ratification).Point 22 of the EP draft resolution hints at a possible association agreement: this entails unanimous voting and usually also national ratification.

  1. The British government has indicated that it will not seek to remain in the single market, but would like to pursue an ambitious free trade agreement with the European Union. Based on the Union’s interests, the European Council stands ready to initiate work towards such an agreement, to be finalised and concluded once the United Kingdom is no longer a Member State.

The EU accepts the UK position of seeking a far-reaching free trade deal, rather than continued single market participation. Note that there is no reference to continuing with the free movement of persons or contributions to the EU budget – two key objectives of the UK side. The timing is an issue, as noted already: no finalisation or conclusion until after Brexit Day, which means that a transitional deal will be important in the meantime. Although in theory this could be on or soon after Brexit Day, there is unlikely to be enough time for that.

  1. Any free trade agreement should be balanced, ambitious and wide-ranging. It cannot, however, amount to participation in the Single Market or parts thereof, as this would undermine its integrity and proper functioning. It must ensure a level playing field in terms of competition and state aid, and must encompass safeguards against unfair competitive advantages through, inter alia, fiscal, social and environmental dumping.

It is common for EU trade agreements to make some reference to state aid and competition law, although only some of them require the non-EU state to apply EU competition and state aid law as such. The guidelines leave it open as to what exactly the EU side will aim for. In any event WTO rules also contain some restrictions on granting subsidies and set out the possibility for trading partners to retaliate if subsidies are granted, although these rules are less far-reaching and enforceable than those applying to EU Member States. (Note that the EU does not ban state aids entirely, but restricts them to certain cases).

The ‘safeguards against unfair competitive advantages’ the EU side wants refers to – among other things – ‘fiscal, social and environmental dumping’. This does not explicitly refer to the adoption of EU law by the UK, and in any event there is no EU law on minimum corporate tax rates. (Compare to para 24 of the EP resolution, which refers more explicitly to EU laws, although to ‘tax evasion and avoidance’ as distinct from tax rates). The UK might argue that it would be sufficient to remain party to international treaties on environmental law and social protection (in the ILO, the Council of Europe and the UN Covenant on Economic, Social and Cultural Rights), and to hold regular discussions on corporate tax rates – which could cut both ways. In any event, many in the UK would welcome safeguards against cuts in environmental and social standards, and would be concerned about how public services could be funded in the event of large cuts in corporate tax.

It remains to be seen what exactly the EU side would accept as safeguards, but the EU’s position should be seen in its overall context: as noted already, the EU is not insisting on free movement of people or financial contributions. It is striking that the EU side makes no explicit references to services, where the UK has a trade surplus. If the UK wants to maintain that strong surplus by having an advanced trade relationship that offers more free trade in services than the EU usually agrees (but still falling short of single market participation) this is the condition which the EU wants to set.

  1. Beyond trade, the EU stands ready to consider establishing a partnership in other areas, in particular the fight against terrorism and international crime as well as security and defence.

This matches the UK’s position. Neither side sets out any real details here.

  1. The future partnership must include appropriate enforcement and dispute settlement mechanisms that do not affect the Union’s autonomy, in particular its decision-making procedures.

There is no specific mention of the ECJ here, and the autonomy issue was discussed above. It’s not usual for the Court to have jurisdiction as regards non-EU states, bar a few exceptions like the European Aviation Area treaty, which facilitates aviation between EU and other European countries. But it is common for the EU to agree dispute settlement similar to the WTO dispute settlement system in agreements with non-EU countries. Interestingly, the EU does not use such systems in its trade agreements in practice, although it does often use the WTO.

In short, the WTO system provides for panels of experts to decide on whether there is a breach of WTO law; their decisions can be appealed to an Appellate Body. If a WTO party which was found to have breached WTO law does not comply with these rulings, the victorious party which brought the complaint can be authorised to retaliate against it with proportionate trade sanctions. Dispute settlement bodies are not unique to the EU and WTO – there is an active system in the NAFTA agreement between the US, Canada and Mexico, for instance. Such systems fall short of the legal effect of EU law in national legal systems, but still place some constraints upon the parties to trade treaties.

  1. After the United Kingdom leaves the Union, no agreement between the EU and the United Kingdom may apply to the territory of Gibraltar without the agreement between the Kingdom of Spain and the United Kingdom.

This clause has attracted much overreaction. It is not a claim to Gibraltar territory or joint sovereignty, so there is no need to respond to it with talk of military action. It merely acknowledges that the EU will not apply post-Brexit treaties to the UK unless the UK and Spain have separately agreed to this. It will be up to the UK and Spain to find agreement for each treaty, or failing that to accept that the treaty in question will either not be concluded or not apply to Gibraltar.

  1. Principle of sincere cooperation
  1. Until it leaves the Union, the United Kingdom remains a full Member of the European Union, subject to all rights and obligations set out in the Treaties and under EU law, including the principle of sincere cooperation.

This reflects the UK’s continued position that it will apply EU law until Brexit Day. Point 5 of the EP draft resolution matches it.

  1. The European Council recognises the need, in the international context, to take into account the specificities of the United Kingdom as a withdrawing Member State, provided it remains loyal to the Union’s interests while still a Member. Similarly the Union expects the United Kingdom to recognise the need of the 27 Member States to meet and discuss matters related to the situation after the withdrawal of the United Kingdom.

The first sentence is ambiguous about a key issue: can the UK already discuss trade deals with non-EU countries? It can’t conclude them without violating EU law (para 23); normally it could not negotiate them either, but does this sentence accept the argument that discussions on a post-Brexit deal would be acceptable, as a consequence of the UK’s position as a withdrawing Member State? The second sentence asserts the remaining EU’s right to meet without the UK, presumably going beyond the talks relating to Brexit without the UK present as referred to in Article 50. However, such meetings must remain informal, as the next paragraph confirms.  

Compare to point 6 of the draft EP resolution, which more explicitly argues that the UK cannot negotiate with non-EU countries before Brexit, and argues that the UK should be excluded from EU trade talks with non-EU countries if it does. Such an exclusion would not be legal; the remedy in such cases of alleged breach of EU law is for the Commission or another Member State to bring the UK to the ECJ.  

  1. While the United Kingdom is still a member, all ongoing EU business must continue to proceed as smoothly as possible at 28. The European Council remains committed to drive forward with ambition the priorities the Union has set itself. Negotiations with the United Kingdom will be kept separate from ongoing Union business, and shall not interfere with its progress.

The UK retains its formal position as a Member State until Brexit Day, although obviously it will have declining influence as there will be little interest in addressing its concerns and the other Member States merely have to wait out any veto or participation in a blocking minority vote by the UK.

  1. Procedural arrangements for negotiations under Article 50

The European Council endorses the arrangements set out in the statement of 27 Heads of State or Government on 15 December 2016.

These procedural arrangements are discussed in the next annex.

Annex II – Procedural rules

Here are the December 2016 procedural rules, with annotations.

  1. The first step following the notification by the United Kingdom will be the adoption by the European Council of guidelines that will define the framework for negotiations under Article 50 TEU and set out the overall positions and principles that the EU will pursue throughout the negotiation. The European Council will remain permanently seized of the matter, and will update these guidelines in the course of the negotiations as necessary.

This refers to the guidelines of the European Council (the Member States’ Heads of State and Government), the draft of which is now available and was discussed above. Article 50 requires the guidelines to be adopted at the start of the process.

  1. After the adoption of the guidelines, the European Council will invite the General Affairs Council to proceed swiftly with the adoption of the decision authorising the opening of the negotiations, following a recommendation by the European Commission, and to deal with the subsequent steps in the process. The Council will also adopt negotiating directives on substance as well as on the detailed arrangements governing the relationship between the Council and its preparatory bodies on the one hand and the Union negotiator on the other. These negotiating directives may be amended and supplemented as necessary throughout the negotiations, to reflect the European Council guidelines as they evolve.

This follows the normal process of EU treaty negotiation with non-EU countries, as set out in Article 218 TFEU: a Commission recommendation to start talks, and a Council mandate with detailed negotiation objectives, which may be amendment throughout the talks. That mandate will likely be more detailed than these guidelines. The General Affairs Council is made up of Member States’ foreign or Europe ministers, and meets monthly. The Council’s ‘preparatory bodies’ consist of working groups and Member States’ permanent representatives (the latter meets weekly, and is known as ‘Coreper’).

  1. The Council will be invited to nominate the European Commission as the Union negotiator. The Commission’s nomination of Michel Barnier as chief negotiator is welcome. To ensure transparency and build trust, the Union negotiator’s team will be ready to integrate a representative of the rotating Presidency of the Council. Representatives of the President of the European Council will be present and participate, in a supporting role, in all negotiation sessions, alongside the European Commission representatives. The Union negotiator will systematically report to the European Council, the Council and its preparatory bodies.

Article 50 leaves open who the negotiators will be, and some had assumed it would be the Council. Nominating the Commission follows the usual approach under Article 218 TFEU. However, including a representative of the Council Presidency (which rotates every six months) and the European Council President (Donald Tusk) in the talks is an innovation, which reflects their importance. The obligation to report back to EU bodies reflects Article 218 TFEU.

  1. Between the meetings of the European Council, the Council and Coreper, assisted by a dedicated Working Party with a permanent chair, will ensure that the negotiations are conducted in line with the European Council guidelines and the Council negotiating directives, and provide guidance to the Union negotiator.

Article 218 TFEU (and Article 207 TFEU, regarding trade) refer to Council working parties supervising Commission negotiators, so this is nothing new. As regards trade, the Commission refers to the committee which supervises it as the ‘mothers-in-law’ (don’t shoot the messenger!).

  1. The members of the European Council, the Council and its preparatory bodies representing the United Kingdom will not participate in the discussions or in the decisions concerning it.

This simply respects the wording of Article 50, extended (logically enough) to the Council’s working parties, not just to the official meetings of ministers or heads of state.

  1. Representatives of the 27 Heads of State or Government (Sherpas/Permanent Representatives) will be involved in the preparation of the European Council as necessary. Representatives of the European Parliament will be invited at such preparatory meetings.

This gives a slightly greater role than usual to the European Parliament.

  1. The Union negotiator will be invited to keep the European Parliament closely and regularly informed throughout the negotiation. The Presidency of the Council will be prepared to inform and exchange views with the European Parliament before and after each meeting of the General Affairs Council. The President of the European Parliament will be invited to be heard at the beginning of meetings of the European Council.

The first sentence reflects Article 218 TFEU, which calls for the EP to be fully and immediately informed throughout negotiations. The second and third sentences go into more detail, and give a bigger role to the EP than usual during EU talks with non-EU countries. As noted already, however, the EP is not a negotiator as such, although its power to give its consent to the final deal (not referred to explicitly here) nevertheless means it is a significant actor. The additional meetings referred to here will be a forum for the EP to influence the negotiations.

There is no reference to the ECJ, which can rule on legal issues concerning draft treaties with non-EU countries pursuant to Article 218 TFEU, at the request of the Commission, Council, EP or a Member State. It is not clear whether the whole of Article 218 necessarily applies to the Brexit treaty process, since Article 50 only refers to some of it. There are also other ways that Brexit legal questions can reach the ECJ: national courts can ask the Court about them, the Commission can sue a Member State (or Member States can sue each other), or Member States or the EU institutions can sue the [other] EU institutions for various aspects of their conduct of the negotiation.

“IN LIGHT OF THE GUIDELINES”: BREXIT AND THE EUROPEAN COUNCIL REVISITED

ORIGINAL PUBLISHED ON EUROPEAN LAW BLOG ON APRIL 4, 2017
By Darren Harvey

 

Introduction

Following the delivery by Sir Tim Barrow of a letter to European Council President Donald Tusk notifying the European Council of the United Kingdom’s intention to withdraw from the EU, the two-year time period within which the UK and EU shall negotiate and conclude a withdrawal agreement has commenced.

According to Article 50(2) TEU, the first step in this process is for the European Council to agree upon a set of guidelines defining the framework for the EU side of the negotiations. A first draft of these guidelines was circulated by European Council President Donald Tusk on Friday 31st March 2017.

The purpose of this post is to follow up from a post written last October on the role of the European Council and the Brexit process.

Amending the Guidelines

As was noted in the previous post, Article 50(2) TEU clearly stipulates that in the absence of guidelines from the European Council, the negotiations between the UK and the EU cannot proceed. It is worth emphasizing from the outset that the draft guidelines shall not be formally adopted by the European Council until it meets on 29th April 2017. One must bear in mind the possibility, therefore, that yesterday’s document may be subject to amendment prior to the adoption of a final version later this month.

What is more, according to the introductory remarks, the European Council may update or amend the guidelines as it sees fit throughout the course of the negotiations. It is unclear whether Article 50(2) TEU gives the power to the European Council to unilaterally amend the guidelines as and when it wishes.

On one interpretation, “in light of the guidelines provided by the European Council, the Union shall negotiate and conclude an agreement” could allow for a continuous process of revision throughout the process of negotiation and conclusion of the withdrawal agreement. This still leaves open the question of whether the European Council is free to alter the guidelines unilaterally or may only do so upon request from another interested party e.g. the Commission.

The next step in the Article 50 TEU process may be instructive here. Following adoption of guidelines in the European Council, the Commission will then issue a series of recommendations to the Council concerning the finer details of its negotiating mandate and further institutional arrangements. We will therefore have guidelines from the European Council and we will have a more detailed negotiating mandate suggested by the Commission and adopted by the Council. As Dr Camilla Macdonald has recently pointed out, the Commission, in issuing its recommendations to the Council, will be utilizing its technical, legal and policy expertise to fill in all the missing details from the European Council’s guidelines, including firm recommendations on each area under negotiation.

An example of how these Council guidelines may be amended throughout the negotiation process is provided by the EU-Canada Comprehensive and Economic Trade Agreement (CETA), in which the original 2009 guidelines were amended in 2011 by the Council following a recommendation to modify the negotiating directives from the Commission.  It remains to be seen, therefore, whether the European Council will be free to unilaterally update its guidelines throughout the negotiations, particularly when one considers that the Council’s negotiating directives are likely to flesh out the details of those guidelines. Based solely upon the wording of the European Council’s draft last week, it certainly seems to be the case that the heads of state and government of the 27 Member States reserve the right to alter their guidelines as and when they deem it appropriate to do so.

The Scope and Content of the Guidelines

Turning to the guidelines themselves, they address in general terms the basic principles underlying the EU’s negotiating position such as acting with one voice, mitigating uncertainty for citizens and businesses, adhering to the principle of sincere cooperation and ensuring the integrity of the internal market.

In addition, they also address, with varying degrees of detail, all of the following issues: the order in which negotiations on withdrawal and any agreement detailing future UK-EU relations will be negotiated; transitional arrangements; reciprocal guarantees for UK and EU citizens; preventing a legal vacuum liable to disrupt business upon withdrawal; a single financial settlement for legal and budgetary commitments as well as liabilities; the aim of avoiding a hard border on the island of Ireland; the status of the UK’s Sovereign Base Areas in Cyprus; international agreements concluded by the EU during the UK’s membership; the transfer of the seats of EU agencies; cases pending before the Court of Justice and administrative proceedings before the European Commission and EU agencies on the date of withdrawal EU; dispute settlement mechanisms for both the interpretation and application of the withdrawal agreement and any future agreement; institutional arrangements allowing for the adoption of measures to deal with situations arising under the withdrawal agreement; the need to prevent a race to the bottom on fiscal, environmental and employment regulation; Gibraltar and the keeping of ordinary EU business separate from the withdrawal negotiations over the coming two years.

Constraints of space preclude an examination of all these issues in the current post, which is intended only as a first reaction to what I consider to be some of the more intriguing or controversial points raised by the guidelines. The following shall therefore discuss some of the more procedural and institutional aspects of the guidelines, whilst leaving much of the points relating to the substance of any future agreement(s) such as safeguards against fiscal, social and environmental dumping for another time.

How many agreements?

There has been much discussion in recent months on whether the UK’s withdrawal from the EU will require the negotiation and conclusion of one, two or three separate agreements. The uncertainty here stems in large part from the wording of Article 50(2) TEU, which provides that the EU shall negotiate and conclude an agreement with a withdrawing state “setting out the arrangements for its withdrawal, taking account of the framework for its future relationship with the Union.”  The general consensus seemed to be that that there would need to be at least two separate agreements: one to deal with the UK’s withdrawal and another providing for any future trading relationship between the two parties. It was also generally accepted that it would be possible to have some form of transitional agreement so as to prevent all of the UK’s rights and obligations coming to an abrupt end before any agreement covering future UK-EU relations could be agreed.

The draft guidelines have clarified matters to a certain extent here. As they make clear at point 3 under the heading “A Phased Approach to Negotiations”, the negotiations are envisaged as proceeding in two phases.

The first phase shall involve the disentanglement of the UK from the EU and from all the rights and obligations that the United Kingdom derives from commitments undertaken as Member State. In particular, it shall aim at providing clarity and legal certainty to citizens, businesses, stakeholders and international partners on the immediate effects of the UK’s withdrawal.

With regards to the second phase of the negotiations, the guidelines state that it will not be possible to conclude an agreement setting out any future relationship between the UK and the EU until the UK formally leaves the EU and becomes a third country.

However, in light of the abovementioned requirement in Article 50(2) TEU that the parties take account of the framework for their future relations within the withdrawal negotiations, the EU and the remaining 27 Member States have indicated that they are willing to engage in “preliminary and preparatory discussions” with a view to establishing an overall understanding on the framework for future UK-EU relations. These preparatory discussions are subject to the significant caveat at point 4 that they will only commence “As soon as sufficient progress has been made in the first phase towards reaching a satisfactory agreement on the arrangements for an orderly withdrawal.”  Contrary to the views of some members of the British government, therefore, it does not appear possible to begin negotiating a future trade agreement alongside the withdrawal agreement immediately – a point which was re-emphasised by President Tusk in his remarks on Friday: “Once, and only once we have achieved sufficient progress on the withdrawal, can we discuss the framework for our future relationship. Starting parallel talks on all issues at the same time, as suggested by some in the UK, will not happen.”

Consequently, the guidelines have clarified that it will not be possible to set out all of the details governing both the UK’s withdrawal and any future UK-EU relations within a single Article 50 TEU agreement. What is more, whilst it may be possible to discuss future relations, the EU will not be in a position to conclude any agreement to this effect until the UK has formally withdrawn and become a third state. What remains to be seen, however, is whether the scope and content of any agreement governing future UK-EU relations could be agreed upon in principle prior to “Brexit day” on 29th March 2019 and then concluded quickly thereafter.  Whilst the complexities of international trade negotiations dictate that the prospects of getting all this done in less than two years are rather slim, there is nothing in the guidelines which explicitly rule this out. That said, as the guidelines now make clear, the UK is to be treated as a third state for the purposes of any agreement setting out future UK-EU relations. This raises the prospect of such an agreement being a so called “mixed agreement” requiring ratification from  national parliaments.

Finally, with regards to any transitional arrangements, point 5 of the guidelines states that “To the extent necessary and legally possible, the negotiations may also seek to determine transitional arrangements which are in the interest of the Union and, as appropriate, to provide for bridges towards the foreseeable framework for the future relationship.”  The use of the phrase “to the extent legally possible” thus leaves open the question of whether these may be included within the Article 50 TEU withdrawal agreement itself or rather must be situated in a separate agreement?

Depending upon one’s interpretation, there is arguably a nod in the direction of three separate agreements being required (or at least being possible) in point 7 of the guidelines, which states that: “The core principles set out above should apply equally to the negotiations on an orderly withdrawal, to any preliminary and preparatory discussions on the framework for a future relationship, and to any form of transitional arrangements.”

Enforcement and Dispute Settlement

The guidelines insist at several points that some form of mechanism for enforcement and dispute settlement will be required not only for the withdrawal agreement, but also for any transitional arrangement and agreement governing future UK-EU relations. Concerning the withdrawal agreement, point 8 stresses the importance of ensuring that reciprocal guarantees made to UK and EU citizens and their respective family members (for example, the right of EU citizens to remain in the UK) must be enforceable and non-discriminatory.

Moreover, point 16 states that: “The withdrawal agreement should include appropriate dispute settlement mechanisms regarding the application and interpretation of the withdrawal agreement, as well as duly circumscribed institutional arrangements allowing for the adoption of measures necessary to deal with situations not foreseen in the withdrawal agreement. This should be done bearing in mind the Union’s interest to effectively protect its autonomy and its legal order, including the role of the Court of Justice of the European Union.”

This envisages the likelihood of disputes arising in the future from and in relation to the withdrawal agreement itself. For example, should the withdrawal agreement enable EU citizens currently living and working in the UK to continue to do so on the same conditions as UK citizens, will those citizens who feel that their rights as enshrined in that agreement are not being respected be entitled to some form of redress?

Absent any concrete proposals in the guidelines as to how such dispute settlement mechanisms may operate, a number of possibilities present themselves.

One option would be to entrust an existing judicial body such as the CJEU with the task of interpreting the withdrawal agreement and settling disputes. Alternatively, one could envisage the establishment of a new court or tribunal for this specific purpose. A further possibility would be some form of ad hoc arbitral tribunal to hear disputes as and when they arise. From a different perspective, it may be possible for both the UK and EU to agree on a mechanism whereby disputes arising may be settled via diplomatic means and thus not involve any court-type entity.

In addition to the withdrawal agreement, one finds similar references to enforcement and dispute settlement in point 5 with regards to transitional measures, namely “Any such transitional arrangements must be clearly defined, limited in time, and subject to effective enforcement mechanisms. Should a time-limited prolongation of Union acquis be considered, this would require existing Union regulatory, budgetary, supervisory and enforcement instruments and structures to apply.”

The crucial point to note here is that, according to point 5, any transitional arrangement in which a time-limited prolongation of the Union acquis is envisaged would necessarily result in the continued payment by the UK into the EU budget for the duration of that arrangement, along with the continued applicability of EU law in the UK and with it the continued jurisdiction of the Court of Justice.  Whilst this makes sense from the perspective of ensuring a smooth transition from EU membership to a future trading relationship, much of the leave campaign during the referendum was based upon putting an end to much of these budgetary and institutional arrangements.

Finally, point 21 states that any future partnership between the EU and UK must include appropriate enforcement and dispute settlement mechanisms that do not affect the Union’s autonomy, in particular its decision-making procedures.

Irrespective of how these issues are ultimately resolved, it is clear that the negotiations over the withdrawal agreement (and potentially any transitional measures and future trade deal) are now likely to require substantial work on institutional arrangements to account for the settlement of potential disputes arising after the UK has formally left the EU, in addition to the more mainstream issues of assets, liabilities, citizens’ rights, pensions etc.

Gibraltar

As was noted in my previous post, “will the Spanish government seek to place the status of Gibraltar and its future EU membership explicitly on the table at the outset by pushing for its inclusion in the guidelines which shall guide the EU’s side of the negotiations?” The reason why it was foreseeable that issues relating to Gibraltar would be placed on the table at the outset is because once the guidelines have been negotiated and concluded by consensus in the European Council, there exists no means for an individual Member State to veto the withdrawal agreement, with a Qualified Majority in the Council and the consent of the European Parliament sufficient to conclude the deal.

Attention was therefore drawn to the prospect of those Member States with particularly pressing matters of national interest trying to have them included in the negotiation agenda from the beginning by including them in the European Council guidelines. And so it has come to pass, with the guidelines stating in no uncertain terms at point 22 that “After the United Kingdom leaves the Union, no agreement between the EU and the United Kingdom may apply to the territory of Gibraltar without the agreement between the Kingdom of Spain and the United Kingdom.”

This is to be read alongside point 3, which stipulates that on the date of withdrawal, the Treaties will cease to apply to the United Kingdom, to those of its overseas countries and territories currently associated to the Union, and to territories for whose external relations the United Kingdom is responsible.

Interestingly, point 22 does not address the Article 50 TEU withdrawal agreement. Instead, it addresses only any future UK-EU agreement which, depending on its contents, may require a unanimous vote in the Council to conclude, which would give Spain a veto at the end of the process anyway. Nonetheless, inclusion of Gibraltar in the guidelines seems to have caught the UK government off-guard and has been met with consternation in some sections of the UK media, with accusations that Spain is using the pretext of Brexit to take back Gibraltar.

The first point to keep in mind here is that the guidelines are still in draft format. It would therefore be possible for the UK and Spanish governments to try and come to some form of understanding over the coming month and have point 22 removed from the final version of the guidelines. But should this provision make it into the formally adopted guidelines, what would this mean for the UK, EU and Gibraltar moving forward?

It is important to consider the default position here before moving to examine the possible impacts of point 22 of the guidelines.

The default position in public international law is set down in Article 29 of the Vienna Convention on the Law of Treaties (VCLT) which stipulates that unless a different intention appears from the Treaty or is otherwise established, a Treaty is binding upon each party in respect of its entire territory.

In terms of what constitutes the territory of a state, the CJEU has held that, “In the absence, in the Treaty, of a more precise definition of the territory falling within the sovereignty of each Member State, it is for each of the Member States to determine the extent and limits of that territory, in accordance with the rules of international public law.” (C‑111/05, Aktiebolaget NN v Skatteverket, paragraph 54)

In this regard, as the UK Foreign Office’s guidelines on the extension of treaties to overseas territories makes clear, overseas territories such as Gibraltar are not constitutionally part of the United Kingdom. The default position is therefore that, absent any provision dealing with the matter, any Treaty entered into by the UK does not automatically cover the territory of Gibraltar. An example of such a provision in a Treaty is provided in the EU Treaties themselves, with Article 355(3) TFEU providing that the EU Treaties shall apply to the European territories for whose external relations a Member State is responsible. This provision has been held by the CJEU to include Gibraltar (Case C-145/04, Spain v UK, paragraph 19).

Absent such a provision in the Treaty, it nevertheless remains possible for the UK to extend the territorial scope of treaties that it ratifies to include overseas territories, either at the time of ratification or at some later date. When doing so, the UK must consult the government of Gibraltar at the earliest stage possible and allow them a proper length of time to consider the implications of having any treaty extended to them.

Thus, in an “ordinary” state of affairs, any agreement between the UK and EU governing future relations could cover Gibraltar either by an explicit provision in the agreement itself or by a decision of the UK government, having consulted the government of Gibraltar, to extend the Treaty to the territory of Gibraltar.

The problem posed by point 22 of the guidelines from the UK’s perspective, however, is that the EU’s default position seems to be that any future agreement will include an explicit clause excluding its application to the territory of Gibraltar. Alternatively, point 22 could be interpreted as meaning that a provision in the agreement stating that it applies to Gibraltar will only be inserted following agreement between the UK and Spain. If correct, the question then becomes what it is that Spain would seek in return for dropping the prohibition on applicability to Gibraltar or including a provision stipulating that Gibraltar is covered by the agreement.

It is important to keep in mind that the sovereignty of Gibraltar or its coming under Spanish control are not discussed in the guidelines. They only address the applicability of any future UK-EU agreement to the territory of Gibraltar.

Thus, as things currently stand, the UK faces the prospect of having to choose between signing a comprehensive free trade agreement with the EU which will explicitly exclude the territory of Gibraltar from its scope of application, on the one hand, and leaving the EU without any agreement at all governing future relations, on the other.

In order to prevent ever having to make such a choice, UK officials could seek to negotiate with their Spanish counterparts between now and the end of April in a bid to have point 22 dropped from the final version of the negotiating guidelines.

Conclusion

As mandated by Article 50(2) TEU, the European Council has provided a draft set of guidelines which shall direct the EU side of the negotiations with the UK regarding its withdrawal from the EU. Whereas one might have expected the guidelines to be rather abstract in nature and simply set out a list of general principles, the present draft is rather detailed in terms of both its scope and content. This blog post has provided a first reaction to merely a few of the many considerable points set down by the European Council guidelines, which shall undoubtedly be the subject of much discussion and analysis in the coming days and weeks. Turning to the immediate future, the draft guidelines will need to be formally adopted by the European Council at the end of April 2017 and it remains to be seen whether any amendments shall be made to the guidelines between now and then.

The EU as a community of law: Overview of the role of law in the Union

ORIGINAL PUBLISHED ON THE  EPRS (European Parliamentary Research Service) Site

Author: Rafał Mańko

SUMMARY : The term ‘community of law’ was popularised by Walter Hallstein in the 1960s. It emphasises that the Community, and now the European Union, is founded on the ‘rule of law’ principle, and underscores the role of law in the European project, which has been described by political scientists precisely as ‘integration through law’. Modern definitions of the ‘rule of law’ include such elements as the limitation of the powers of public officials by the law, the fact that laws are public, general and apply equally, and finally the presence of an independent, impartial and neutral judiciary. The building blocks of the EU as a community of law have been laid, from the 1950s onwards, in the case law of the Court of Justice.
The ECJ’s case law proclaiming numerous general principles of Community law was inspired by the common legal traditions of the Member States. Over time, many such principles became enshrined in the written sources of EU law, notably the Charter of Fundamental Rights and the Treaties. The ‘life cycle’ of EU law – including its creation, application, interpretation and enforcement – involves various institutional actors. Key roles in the creation of EU law are played by the Commission, Parliament and Council, while the application of EU law on a day-to-day basis is predominantly the task of national courts. Supreme authority to interpret EU law, and to review the compatibility of legislation with the treaties is vested in the ECJ. Individuals – natural and legal persons – enjoy the status of subjects of EU law, and can seek judicial enforcement of their rights based on EU law before national courts. In certain situations they can also seek legal protection directly from the EU courts – the General Court and the Court of Justice.

Introduction

The expression ‘community of law’ (Rechtsgemeinschaft) – was made famous by Walter Hallstein (1901-1982), first President of the European Commission (1958-1967) who in a speech delivered in March 1962 famously remarked that the Community: ” was not created by military power or political pressure, but owes its existence to a constitutive legal act. It also lives in accordance with fixed rules of law and its institutions are subject to judicial review. In place of power and its manipulation, the balance of powers, the striving for hegemony and the play of alliance we have for the first time the rule of law. The European Economic Community is a community of law [Rechtsgemeinschaft] because it serves to realize the idea of law.1″

The expression ‘community of law’ alludes to the notion of a ‘state of law’ (referring inter alia to Rechstaat, état du droit, państwo prawa, stato di diritto) which is the equivalent, in continental legal cultures, of the Anglo-American notion of the ‘rule of law’. Walter Hallstein’s phrase was picked up literally by the European Court of Justice (ECJ) only in 1986, in the case of Les Verts v Parliament (C-294/83). However, the building blocks of the EEC as a community of law were laid by the Court much earlier, starting in the 1950s.

The ‘rule of law’ concept

The origins of the concept of ‘rule of law’ – to which the expression ‘Community of law’ clearly alludes – can be traced back to ancient Greek political philosophy, where it was first formulated by Aristotle.2 Today, the concept of ‘rule of law’ is deemed to be central not only for legal discourse, but also for public discourse in general.3 It is understood as comprising three basic elements:4

  • government limited by law – officials must operate within the framework of existing law, and if they wish to change the law, they must follow the prescribed procedures;
  • formal legality – laws must be laid down in advance (no retroactive laws), they must be general (applicable to everyone in a similar situation), and they must be publicly available (promulgated),
  • rule of law, not men – the task of applying the law must be entrusted to an independent and unbiased judiciary, which acts in a manner free of passion, prejudice and arbitrariness, and is neutral towards the parties; the judiciary also has the power of judicial review over other branches of government, ensuring that the principles of government limited by law and formal legality are duly followed.

Building a community of law: from ECJ case law to the Charter

Principles of a community of law in early ECJ case law

The basic principles of the rule of law, allowing to speak of the EEC as a ‘community of law’, were laid down in early ECJ case law.5 These included, first of all, four substantive principles of the rule of law, including the principle of legality (Case 7/56 Algera); legal certainty (Case 7/56 Algera; Case 42/59 SNUPAT; Case 265/78 Ferwerda); confidence in the stability of a legal situation (Case 23/68 Klomp, para. 12-14); and proportionality (Case 11/70 Internationale Handelsgesellschaft; Case 147/81 Merkur; Case 15/83 Denkavit).

These substantive principles were supplemented by a number of procedural guarantees embodying the rule of law, such as the right to be heard (Case 32/62 Alvis), the right of defence (Case 155/79 AM & S Europe), the right of access to the file (Case 85/76 Hoffmann-La Roche), and the duty of the authority to duly motivate its decision (Case C-42/01 Portugal v Commission).

Codification of the principles of the rule of law in primary law

The principles of the rule of law, stemming from the common traditions of the Member States and adopted as general principles of EU law in ECJ case law, have been, to a great extent, codified in primary law – in particular the Treaty on European Union (TEU) and the Charter of Fundamental Rights (CFR).

In the TEU’s preamble, the Member States confirm their ‘attachment to the principles … of the rule of law’. This idea is reiterated in Article 2 TEU which indicates that the EU ‘is founded on … rule of law’, and that these ‘values are common to the Member States’. The principle of the rule of law is therefore treated as one of the EU’s values which – in light of Article 3(1) TEU – the Union promotes. Furthermore, under Article 21(1) TEU, the rule of law (among other values, such as democracy and human rights) is to guide EU action on the international scene. More specifically, by virtue of Article 21(2)(b) TEU, the EU defines and pursues its external policies and actions, inter alia to ‘consolidate and support democracy, the rule of law, human rights and the principles of international law’. Elements of the rule of law are also codified in the Charter. In particular, Article 41 provides for the right to good administration, and Article 47 provides for the right to an effective remedy and a fair trial.

Integration through law

Political scientists, describing the European integration project, often refer to the notion of ‘integration through law’,6 in order to emphasise the special role of law in the EU. Indeed, the role of law, as a sphere of social life distinct from politics and the economy,7 has been special in European integration. In contrast to projects of (merely) political and (merely) economic integration, the European project has been characterised, from the outset, by the crucial role of law in integrating the Member States. The rules and principles of EU law have contributed to European integration in three principal ways: (1) by replacing divergent rules of national law by the uniform rule of EU regulations; (2) by approximating divergent rules of national law (‘positive harmonisation’ by directives); and (3) by removing legal obstacles on the internal market which infringe the fundamental freedoms (‘negative harmonisation’ by ECJ case law).

EU legal instruments for achieving integration through law

Unification through regulations

Regulations are directly applicable EU instruments (Article 288 TFEU) which, as all EU law, enjoy priority before national legislation. Hence, in areas where the law has been unified by an EU regulation, only EU rules are applicable.

Positive harmonisation through directives

The EU legislature adopts directives which are directed to the Member States (Article 288 TFEU). It is up to national legislators to implement (transpose) directives into national law in order to achieve the results prescribed in each directive. Directives are referred to as ‘two-stage legislation’, because – in contrast to regulations – they are addressed to the Member States and not to private parties. Only in the second stage, when Member States transpose the directive into their national laws, are the rules (of the national implementing measures) addressed to all legal subjects (citizens, companies, etc.).

A minimum harmonisation directive contains semi-mandatory rules directed to the Member States. They need to implement the minimum standard of protection (e.g. of consumers) required by the directive.8 However, they may introduce or maintain a higher level of protection, provided that they do not infringe the fundamental freedoms of the internal market. In contrast, a maximum harmonisation directive must be implemented by the Member State without any modifications, e.g. granting a higher level of protection to consumers. This makes maximum harmonisation directives similar to regulations.

Negative harmonisation through case law

Negative harmonisation consists of the ECJ declaring certain types of national rules as incompatible with the Treaty freedoms, for instance the free movement of goods. In areas not subject to legal unification or harmonisation, negative harmonisation has ensured the proper functioning of the internal market through the mutual recognition of national rules by other Member States. The trend towards negative harmonisation started in the 1970s, inaugurated by such cases as Dasonville (8/74) and Cassis de Dijon (120/78). This line in ECJ case law has been based on the assumption that certain rules imposed by the Member States may actually amount to barriers to the free movement of goods, even if they are not openly discriminatory.

Creation, application, interpretation and enforcement of EU law

Creation and judicial development of EU law

Principle of conferral

Unlike national legislatures, which are, in principle, free to enact legislation in any field they wish (with the exception of areas of exclusive EU competence), EU co-legislators are bound by the will of the Member States, expressed in the Treaties, laying down the precise fields of potential EU legislative activity. This is in line with the principle of conferral (Article 5(2) TEU), according to which the EU has only those competences conferred upon it by the Member States.

Legislative procedure

The task of creating new EU laws falls predominantly on the co-legislators (Parliament and Council) which, however, may act only on the basis of a proposal submitted by the Commission (Article 17 TEU). However, Article 225 TFEU empowers the European Parliament to call upon the Commission to present a legislative proposal (indirect legislative initiative).9 A right of indirect legislative initiative has also been granted to the Council (Article 241 TFEU), as well as to 1 million EU citizens (European Citizens’ Initiative, Article 11(4) TEU). Since the Lisbon Treaty, the Commission must give reasons for any refusal to propose legislation following a request from the Parliament.

Judicial review of EU legislation

The conformity of EU legislation with the Treaties (including the limits of EU competences in line with the principle of conferral) is guaranteed by the ECJ, which performs judicial review of EU legislation in line with Article 263 TFEU (action for annulment). The power to trigger judicial review rests with a Member State, the European Parliament, the Council or the Commission. The Court of Auditors, the European Central Bank and the Committee of the Regions may also trigger an action for annulment in order to protect their prerogatives. Moreover, in certain cases, individuals too may trigger this procedure (see below). An action for annulment pursuant to Article 263 TFEU must be based on one of the following grounds: lack of competence, infringement of an essential procedural requirement, infringement of the Treaties or of any rule of law relating to their application, or misuse of powers. The deadline for filing an action for annulment is two months from the publication of the contested legislative act.

Application of EU law

A specific feature of the EU constitutional set-up is the role of the courts and administrative bodies of the Member States in the application, interpretation and enforcement of EU law. It is the national courts and administrative bodies which have the task of applying EU law on a daily basis. In fact, the ECJ cannot directly resolve disputes before national courts, making national judges actual ‘engines’ of integration through European law.10 National courts and administrative authorities can apply EU law either directly, if they base their decision on an act of EU law, or indirectly, if the national judge or official acts on the basis of a provision of national law which implements a provision of EU law. The first case – direct application of EU law – occurs whenever national judges and officials apply EU regulations or, which happens somewhat less frequently, the EU Treaties. The second case concerns the application of national rules which implement EU directives.

Duty to respect the EU Charter of Fundamental Rights

Whenever national judges or administrative bodies act within the sphere of EU law, they have the duty to take into consideration the EU Charter of Fundamental Rights. This follows explicitly from Article 51 of the Charter which provides that it is ‘addressed … to the Member States only when they are implementing Union law’. Whenever they do, they must ‘respect the rights, observe the principles and promote the application thereof in accordance with their respective powers’.

Procedural autonomy and principles of equivalence and effectiveness National courts and administrative bodies enjoy, in principle, ‘procedural autonomy’ when applying EU law. This means that unless there are EU rules specifically prescribing how the administrative or judicial proceedings should be conducted, the Member States are free to lay down their procedural rules. However, the most important limitation to the Member States’ procedural autonomy is to be found in the principles of equivalence and effectiveness, first proclaimed by the ECJ in Case 33/76 Rewe-Zentraflinanz. Under the principle of equivalence, Member States must treat rights granted under EU law on an equal footing to rights granted under domestic law. Under the principle of effectiveness, the Member States must ensure that the rights granted under EU law are effectively enforced.11

Application of EU law by the Commission in individual cases

In certain areas of the law, such as antitrust, state aid, public procurement for the EU institutions, as well as funding from the EU budget administered by the Commission, the latter takes individual decisions, thereby applying EU law in individual cases. EU agencies and bodies are also sometimes empowered to take individual decisions. For instance, the EU Intellectual Property Office (formerly the Office for Harmonization in the Internal Market, OHIM) in Alicante delivers decisions in individual cases regarding trademarks. All individual decisions taken by the Commission or other EU institutions, bodies or agencies are subject to judicial review (action for annulment – Article 263 TFEU). Cases are heard by the General Court, and there is a possibility of appeal to the Court of Justice.

In 2015,12 the General Court received 382 direct actions (mainly for annulment), of which 342 were brought by individuals. In the same period, it also received 342 cases concerning intellectual and industrial property – appeals from OHIM.

Interpretation and judicial development of EU law

Preliminary reference procedure

Whilst the day-to-day interpretation, application and enforcement of EU law is the task of national judicial and administrative authorities, the latter may harbour doubts as to the interpretation of a given provision of EU law. If such a doubt arises before a court or tribunal, it may refer the issue to the Court of Justice. This is possible only if the question regarding the interpretation of EU law or the conformity of an EU act of secondary law (directive, regulation, decision) with EU primary law (Treaties, Charter) is necessary for that court or tribunal to give a decision. Therefore, general and abstract questions (even if practically relevant – but not in a concrete case), as well as purely hypothetical questions are not admissible.

Once the ECJ gives its ruling, it is binding on the national court which submitted the question. However, according to the case law of the ECJ, the interpretation of EU law given by that Court in the preliminary reference procedure is binding not only in the dispute in which the question was raised (inter partes effect), but it also has general binding force for all judicial and administrative authorities in the Member States (erga omnes effect) (Cases 283/81 CILFIT and C-10/97 IN.CO.GE.). As a result, national judges – whenever they apply EU law directly or indirectly – must follow earlier interpretations of that law given by the ECJ.

In 2015,13 the ECJ decided on 404 preliminary references. At the same time, 436 new preliminary references were submitted, the largest numbers originating from Germany (79), Italy (47), the Netherlands (40), Spain (36) and Belgium (32). The topics of preliminary references decided in 2015 were concerned mainly with free movement and internal market law (74 cases), taxation (55 cases), intellectual property (51 cases), competition and state aid (49 cases), as well as the area of freedom, security and justice (also 49 cases).

Methods of interpretation of EU law

When interpreting EU law, the CJEU pays particular attention to the aim and purpose of EU law (teleological interpretation), rather than focusing exclusively on the wording of the provisions (linguistic interpretation).14 This is explained by numerous factors, in particular the open-ended and policy-oriented rules of the EU Treaties, as well as by EU legal multilingualism.15 Under the latter principle, all EU law is equally authentic in all language versions. Hence, the Court cannot rely on the wording of a single version, as a national court can, in order to give an interpretation of the legal provision under consideration. Therefore, in order to decode the meaning of a legal rule, the Court analyses it especially in the light of its purpose (teleological interpretation) as well as its context (systemic interpretation).

Harmonious interpretation by national courts

The interpretation of EU law provided by the ECJ is binding on national courts. This applies not only to situations when a given national court referred a particular question under the preliminary ruling procedure, but to all situations when a national court applies EU law directly (e.g. when it applies an EU regulation) or indirectly (e.g. when it applies national rules implementing an EU directive). A national court, when interpreting national rules implementing EU law, must take into account the EU directive which was implemented. This is known as the principle of ‘harmonious interpretation’ and has been proclaimed in ECJ case law (Cases 14/83 Von Kolson, C-106/89 Marleasing; C-397/01 Pfeiffer and C-555/07 Kücükdeveci). This also extends to following guidance given by the ECJ in earlier case law (see above).

Judicial development of EU law by the ECJ

Apart from being changed by legislation, EU law is also developed (richterliche Rechtsfortbildung) through the case law of the ECJ. As early as 1955, the Court, noting that a certain issue was not regulated explicitly in the Treaties, pointed out that ‘unless [it] is to deny justice it is therefore obliged to solve the problem by reference to the rules acknowledged by the legislation, the learned writing and the case law of the member countries’ (Case 7/56 Algera, page 55). It is worth noting that some of the fundamental principles of EU law, such as supremacy and direct effect, were proclaimed by the ECJ, without having been spelt out previously in the Treaties.16 This allows describing the role of the ECJ not only as that of purely applying and interpreting EU law, but also contributing to its development, especially through the formulation of general principles of EU law.17 Some authors speak in this context of ‘de facto precedent’ at the ECJ.18

Enforcement of EU law vis-à-vis the Member States

Whilst EU law is being applied, on a daily basis, by national judges adjudicating disputes which fall into the scope of EU law, they do not necessarily have the means (legal and political) to ensure that EU law is correctly implemented and respected by the authorities of the Member States. To this end, appropriate powers have been vested in the Commission as ‘guardian of the treaties’, and in the ECJ as the court competent to decide disputes regarding violations of EU law by the Member States. According to Article 17 TFEU, the Commission ‘ensure[s] the application of the Treaties and of the measures adopted by the institutions pursuant to them’, and ‘ oversees the application’ of EU law.

Infringement proceedings

If the Commission considers that a Member State has failed to fulfil its obligations following from the Treaties, it may take legal steps against it. According to Article 258 TFEU, the first step the Commission must take in such a situation is to deliver a reasoned opinion on the matter after giving the Member State concerned the opportunity to submit its observations (by letter of formal notice). Only if that Member State does not comply with the opinion within the period laid down by the Commission, may the Commission launch a legal action against that state before the ECJ.

Main areas concerned

Recently, the Commission’s focus in ensuring the proper implementation and application of EU law at national level has been on the following areas:

In 2015, the Commission sent 742 letters of formal notice to Member States, and 248 reasoned opinions.19 The largest numbers of reasoned opinions were addressed to Poland (21), Spain (19), Greece (16) and Italy, France and Luxembourg (13 each). At the other end of the spectrum, only one was sent to Croatia, two to Latvia and four each to Denmark and Slovakia. As of 31 December 2015, a total of 1 368 infringement cases remained open, with the largest number of cases pending against Italy (89), Germany (89), Spain (83), Greece (82), France (80) and Poland (78). At the same time, below 30 cases were on-going against Croatia (21), Denmark (23), Malta (24), Estonia (26) and Latvia (28).

Article 260(1) TFEU provides that if the ECJ finds that the defendant Member State indeed failed to fulfil its obligations under the Treaties, that state must ‘take the necessary measures to comply with the judgment’.

In 2015, the ECJ gave 25 judgments in infringement cases. The Commission won in 82 % of them. Poland lost in four cases; Belgium, Bulgaria, France, Germany, Greece and Luxembourg lost in two cases each, and the UK lost one case. The Commission lost in two cases brought against Slovakia, and one brought against the UK.

However, not all Member States comply with a judgment declaring its infringement, and therefore Article 260(2) TFEU provides that the Commission – if it believes that the judgment has not been complied with – may bring the case back to the ECJ. However, before doing so, it must give the Member State the opportunity to submit its observations. In an action under Article 260(2) TFEU, the Commission specifies the amount of the lump sum or penalty payment to be paid by the Member State concerned which it considers appropriate in the circumstances. If the Commission’s action is successful, the ECJ may impose such a lump sum or penalty payment, although it is not obligatory.

At the end of 2015, 85 ‘persistent’ infringement proceedings were open against Member States which, in the Commission’s view, did not comply with a judgment rendered under Article 258 TFEU. The largest number of cases were open against Greece (10), Poland (8) and Spain (7), and were related to environment (35), transport (12), taxation (9) and health and consumer protection (7). In 2015, the Court delivered three judgments against Member States persistently infringing EU law, and imposed penalty payments on two countries – Italy and Greece. In the case of C-653/13 Commission v Italy (concerning waste management in the Campania region) the ECJ imposed a lump-sum payment of €20 million and a penalty of €120 000 for each day of non-compliance with the original judgment. In the case of C-367/14 Commission v Italy (concerning state aid in Venice and Chioggia) the ECJ imposed s lump-sum payment of €30 million and a periodic penalty: €12 million for each half year of non-compliance with the original judgment under Article 258 TFEU). In case C-167/14 Commission v Greece (concerning treatment of urban waste water) the lump sum was set at €10 million and the periodic penalty at €3.64 million for each half year of non-compliance with the original judgment.

Rule of law procedure preventive mechanism20

The ‘rule of law procedure which can be launched against a Member State is in fact concerned with a ‘breach of EU values’ by an EU country. Whilst the notion of ‘values’ is rather vague, it is nonetheless the case that Article 2 TEU clearly includes the ‘rule of law’ amongst the ‘values … common to the Member States’. Hence, a breach of the rule of law in a Member State can lead to the triggering of the procedure established in Article 7 TEU. The procedure consists of two distinct mechanisms: the ‘preventive mechanism’, established by the Nice Treaty, and the ‘sanctions mechanism’, established by the Amsterdam Treaty. Both mechanisms are independent of each other, meaning that the sanctions mechanism can be triggered without going through the preventive mechanism.

Under the ‘preventive mechanism’ (Article 7(1) TEU), the Council may determine that there is a clear risk of a serious breach of the EU values by a Member State. The procedure can be initiated by the Parliament, Commission or one third of EU Member States. The Council issues a decision by a majority of four fifths of its members after having received Parliament’s consent which, in turn, requires a two-thirds majority of the votes cast, representing an absolute majority of all Members (Article 354(4) TFEU). The Member State incriminated does not vote in the Council.

Rule of law procedure sanctions mechanism

The sanctions mechanism (Article 7(2)-(3) TEU) can be triggered by the Commission or one third of the Member States, but not by the Parliament. In the first phase, the European Council (Heads of State or Government) determines by unanimity and after obtaining Parliament’s consent (by a two-thirds majority of the votes cast, and an absolute majority of Members) the existence of a serious and persistent breach of EU values by a Member State. The incriminated Member State does not vote in the European Council.

In June 2016, the Commission has issued a rule of law recommendation to Poland in June 2016. This document followed an orientation debate held by the College of Commissioners in January 2016, during which the Commission decided to examine the situation under the Rule of Law Framework, mandating First Vice-President Timmermans to enter into a dialogue with the Polish authorities. In its recommendation, the Commission expressed the opinion that there is a ‘systemic threat’ to the rule of law in Poland in connection with the dispute concerning the composition of Poland’s constitutional court and the constitutionality of its legal framework. The Polish government does not agree with the Commission’s recommendation, describing it as ‘groundless’ and ‘one-sided’.

Citizens in a community of law

A community of states and citizens

Whilst the original text of the Treaties did not provide explicitly for individual rights,21 the ECJ’s landmark decisions of the early 1960s (Case 26/62 Van Gend & Loos and Case 6/64 Costa v E.N.E.L.) proclaimed that the Community is not only a legal order between states (as a classic international organisation), but also a community of states and citizens. Therefore, the subjects of EU law are not only its Member States, but also private individuals – natural and legal persons, both under private and public law. Hence, individuals can rely directly on certain rights provided for in EU law before national courts, which the latter need to protect (direct effect of EU law), even in case of divergent rules of national law which need to be set aside (supremacy of EU law). The Member States confirmed the special status of individuals in the EU legal order by introducing, in the Treaty of Maastricht (1992), the concept of EU citizenship conceived as a legal bond linking the nationals of EU Member States with the Union as such.

Fundamental rights as general principles of EU law and their recognition in the charter

The legal status of individuals under EU law was further strengthened by the introduction by the ECJ of fundamental rights as general principles of EU law. In Case 29/69 Stauder v Ulm, the ECJ mentioned that ‘fundamental human rights’ are not only ‘enshrined in the general principles of Community law’ but also ‘protected by the Court’. In later case law, the ECJ recognised such fundamental rights22 as the right to dignity and personal integrity (Case C-377/98 Netherlands v Parliament and Council), the right to freedom of expression (Case C-288/89 Gouda), the right to equality before the law (Case C-15/95 EARL; C-292/97 Karlsson), and the right to good administration (Case 222/86 Heylens; Case 374/87 Orkem; Case C-255/90 P Burban). The introduction of fundamental rights back in the 1960s is seen as a consequence of the earlier proclamation of the principles of direct effect and supremacy, which would have been questioned by national courts if they were not backed by fundamental rights at EU level.23 A further step in making EU citizens subjects of Union law was the entry into force, on 1 December 2009, of the Charter of Fundamental Rights, as a legally binding instrument of primary EU law. As judge Marek Safjan pointed out, the rules of the Charter, frequently referred to in ECJ case law, ‘influence the process of interpretation, of determination of the very content of particular norms [of EU law], their extent and legal consequences’.24

Protection of individual rights under EU law before national courts

Vertical direct effect of Treaty provisions

The possibility for individuals to invoke Treaty provisions vis-à-vis national authorities (vertical direct effect of the Treaties) was already allowed by the ECJ in Van Gend & Loos with regard to Article 12 of the EEC Treaty, introducing a standstill on tariffs in intra-Community trade. Later ECJ case law extended direct effect to further Treaty articles.

Treaty provisions having vertical direct effect25

Article 21(1) TFEU (free movement of citizens); Article 28 TFEU (customs union); Articles 34-35 TFEU (prohibition of quantitative restrictions in intra-EU trade); Article 37(1) TFEU (state commercial monopolies); Article 45 TFEU (free movement of workers); Article 49 TFEU (freedom of establishment); Article 56-57 TFEU (free movement of services); Article 63(1) TFEU (free movement of capital and payments); Article 101(1)-(2) TFEU (antitrust rules); Article 102 TFEU (prohibition of abuse of dominant market position); Article 108(3) TFEU (state aid); Article 110 TFEU (non-discrimination in tax matters); Article 157 TFEU (prohibition of gender discrimination).

Vertical and horizontal direct effect of regulations

Regulations – which are binding directly and in their entirety – have both vertical and horizontal direct effect with regard to individuals. However, in order to be directly applicable in an individual dispute, the rule in question must be clear, precise and leave no discretion to the Member States (Case 9/73 Schlüter).

Vertical direct effect of directives

Directives are predominantly addressed to the Member States (Article 288 TFEU) which need to implement them. However, under certain conditions they can exert vertical direct effect (vis-à-vis national authorities). In Case C-91/92 Dori the ECJ ruled that if a directive has not been implemented in a timely fashion, individuals who would have enjoyed rights under the national implementing provisions may claim damages from the state which failed to implement the directive. However, the Court excluded the possibility of horizontal direct effect, i.e. the possibility of enforcing rights envisaged in an unimplemented directive vis-à-vis another individual (Dori, para. 30). Detailed conditions of state liability vis-à-vis individuals for breach of EU law were laid down in the 1996 judgment, Brasserie du Pecheur (C-46/93).

Horizontal direct effect of Treaty provisions

Whilst the direct effect of Treaty provisions is mainly vertical (vis-à-vis the Member States), some Treaty provisions are also capable of being enforced in disputes between two individuals. This is the case, for instance, with Article 49 TFEU on freedom of establishment (Case C-438/05 Viking) and Article 102 TFEU prohibiting agreements in restraint of competition (Case C-453/09 Courage).

Standing of individuals before EU courts

Action for annulment of an EU act

Article 263(4) TFEU provides that any natural or legal person may bring an action for annulment of an EU act intended to produce legal effects, if that act is: (1) addressed to that person; (2) of direct and individual concern to that person; and (3) it is a regulatory act which is of direct concern to that person and does not need to be further implemented. The action may be based on one of the following grounds: (1) lack of competence; (2) infringement of an essential procedural requirement; (3) infringement of the Treaties; (4) infringement of any rule of law relating to the application of the Treaties; or (5) misuse of powers. The action for annulment must be brought within two months of the day when the act in question was published or notified. If it was neither published nor notified, the deadline starts to run from the day on which the individual learned about the act.

Action for failure to act

Article 265 TFEU provides that in case the European Parliament, the European Council, the Council of the EU, the Commission or the European Central Bank fails to act, in infringement of the Treaties, the Member States and the other institutions of the Union may bring an action before the Court of Justice of the European Union to have the infringement established. This Article shall apply, under the same conditions, to bodies, offices and agencies of the Union which fail to act.

Action for damages against the EU

Article 340 TFEU grants individuals the right to bring an action for damages against the EU institutions.26 According to ECJ case law (C-352/98 P Bergaderm), the EU incurs liability only if there is a ‘sufficiently serious’ breach of EU law, i.e. if the institution concerned ‘manifestly and gravely disregarded the limits on its discretion’. If the institution had no discretion, but still acted illegally, then ‘the mere infringement of Community law may be sufficient to establish the existence of a sufficiently serious breach’. Apart from a sufficiently serious breach, the individual in question (usually a company) needs to prove loss and causal link between that loss and the illegal action or forbearance.

Main references

Thomas von Danwitz, ‘The Rule of Law in the Recent Jurisprudence of the ECJ’, Fordham International Law Journal 37.5 (2014): 1311-1377
E.M. Poptcheva, Member States and the rule of law: Dealing with a breach of EU values, EPRS Briefing, PE 554.167 (2015).Endnotes
1 W. Hallstein, Europäische Reden (1979), pp. 343-344, translation after: T. von Danwitz, ‘The Rule of Law in the Recent
Jurisprudence of the ECJ’
, Fordham International Law Journal 37.5 (2014): 1311-1377, p. 1312-1313.
2 R. Stein, ‘Rule of Law: What Does it Mean?’, Minnesota Journal of International Law 18.2 (2009): 293-303, 297-298;
J. Podczaszy, ‘Koncepcja rządów prawa a jej stosowanie w Polsce’, in: Rządy prawa i europejska kultura prawna, ed.
A. Bator et al. (Prawnicza i Ekonomiczna Biblioteka Cyfrowa, 2014), pp. 29-30.
3 T. Pietrzykowski, Ujarzmianie Lewiatana: Szkice o idei rządów prawa (Wyd. Uniw. Śląskiego, 2014), p. 7.
4 See e.g. B.Z. Tamanaha, ‘The History and elements of the Rule of Law’, Singapore Journal of Legal Studies (2012): 232-
247, p. 236. See also: R. Stein, ‘Rule of Law…’, p. 300-302.
5 T. von Danwitz, ‘The Rule of Law…’, pp. 1314-1316.
6 A. Vauchez, ‘Integration-through-Law: Contribution to a Socio-history of EU Political Common Sense’, EUI Working
Papers RSCAS 2008/10, p. 1.
7 Sociologists typically differentiate law from other social systems (also known as ‘fields’ or ‘institutional worlds’), such
as, notably, politics and the economy. See e.g. P. Berger, P. & Luckmann, The Social Construction of Reality: A Treatise in the Sociology of Knowledge (Penguin 1991); P. Bourdieu, ‘The Force of Law: Toward a Sociology of the Juridical Field’, Hastings Law Journal 38 (1987): 805-853; N. Luhmann, Introduction to Systems Theory (Polity Press 2002).
8 R. Mańko, Contract law and the Digital Single Market, EPRS in-depth analysis, PE 568.322 (2015), pp. 19-20.
9 E.M. Poptcheva, Parliament’s legislative initiative, EP Library Briefing (2013).
10 J. Neimanis, ‘The Role of a Judge in European Integration’, in European Integration and Baltic Sea Region: Diversity
and Perspectives
, ed. I. Muižnieks et al. (University of Latvia Press 2011), p. 175.
11 D. Šulmane, ‘The Principle of Effectiveness – The Guarantee of Rule of Law in Europe?’, in European Integration and
Baltic Sea Region: Diversity and Perspectives
, ed. I. Muižnieks et al. (University of Latvia Press, 2011), pp. 238-239. Cfr.
M. Bobek, ‘Why there is no principle of “procedural autonomy” of the Member States’, in The ECJ and the Autonomy
of the Member States (Intersentia 2011).
12 ECJ, Annual Report for 2015 (2016).
13 Ibid.
14  A. Arnull, The European Union and Its Court of Justice (2nd ed., OUP 2006), p. 612; T. Schilling, ‘Beyond
Multilingualism: On Different Approaches to the Handling of Diverging Language Versions of a Community Law’,
European Law Journal 16.1 (2010): 47-66, p. 60; J. Barcik, A. Wentkowska, Prawo Unii Europejskiej (Beck 2014), p. 313.
15 R. Mańko, Legal aspects of EU multilingualism, EPRS briefing, PE 595.914 (2017), pp. 7-8.
16 See e.g. K. Alter, Establishing the Supremacy of EU Law (OUP 2013).
17 A. Sulikowski, ‘Tworzenie prawa przez Europejski Trybunał Sprawiedliwości. Wybrane problemy’, in Teoria prawa
europejskiego, ed. J. Kaczor (WUWr 2005), p. 221-232; A. Arnull, The European Union and its Court of Justice (OUP
2006), p. 626–628;
18  J. Helios, ‘Sędziokracja w Unii Europejskiej? Uwagi w kontekście działalności interpretacyjnej Trybunału
Sprawiedliwości Unii Europejskiej’ in Rządy prawa…, pp. 193-194; P. Marcisz, Koncepcja tworzenia prawa przez
Trybunał Sprawiedliwości Unii Europejskiej (LEX 2015).
19 European Commission, Monitoring the application of European Union law – 2015 Annual Report, COM(2016) 463
final, p. 22.
20 This and the subsequent section are based on: E.M. Poptcheva, Member States and the rule of law: Dealing with a
breach of EU values
, EPRS Briefing, PE 554.167 (2015).
21 K. Alter, Establishing the Supremacy of European Union Law: The Making of an International Rule of Law in Europe
(OUP 2002), p. 37; A. Stone Sweet, ‘The Juridical Coup dEtat and the Problem of Authority’, German Law Journal 8
(2007): 915-928, p. 924; G. Conway, The Limits of Legal Reasoning of the European Court of Justice (CUP 2012), p. 29.
22 F. Ferraro, J. Carmona, Fundamental Rights in the European Union: The role of the Charter after the Lisbon Treaty,
EPRS in-depth analysis, PE 554.168 (2015), pp. 4-6.
23 T. Jurczyk, ‘Zasady ogólne prawa Unii Europejskiej a Karta Praw Podstawowych’, in Rządy prawa…, p. 199.
24 M. Safjan, ‘Fields of application of the Charter of Fundamental Rights and constitutional dialogues in the European
Union’
, EUI LAW – Centre for Judicial Cooperation working paper 2014/02, p. 2.
25 M.M. Kenig-Witkowska (ed.), Prawo instytucjonalne Unii Europejskiej (Beck 2015), pp. 308-309.
26 D. Chalmers et al., European Union Law (CUP 2014), pp. 458-464.

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Reunifying Ireland: An EU law perspective

ORIGINAL PUBLISHED ON EU LAW ANALYSIS

by Nikos Skoutaris,  (Lecturer in EU law in the University of East Anglia; website on Secessions, Constitutions and EU law).

On 23 June 2016, Northern Ireland was one of the two UK constituent nations that voted to remain in the EU. Following that, Sinn Féin has called for a referendum for the unification of Ireland and thus for Northern Ireland to remain in the EU. This discussion has intensified after the most recent Northern Ireland Assembly election where the Unionist vote was significantly reduced.

Independently of whether such development is politically prudent and/or feasible, one has to note that, legally speaking, ‘Westminster has formally conceded that Northern Ireland can secede from the United Kingdom to join a united Ireland, if its people, and the people of the Irish Republic, voting separately, agree to this.’ Section 1 of the Northern Ireland Act 1998 is a rare example of a provision of a constitutional statute that explicitly recognises the right of secession of a region (see also the Good Friday Agreement). According to Schedule 1 of the Northern Ireland Act, however, such a referendum can only be organised if ‘it appears likely to [the UK Secretary of State] that a majority of those voting would express a wish that Northern Ireland should cease to be part of the United Kingdom and form part of a united Ireland.’ Theresa Villiers, the former Northern Ireland Secretary has made clear that, according to her, ‘there is nothing to indicate that there is majority support for a poll.

Still, if in the future, the majority of the people in Northern Ireland democratically decide to secede from the UK and join the Republic of Ireland, the EU legal order is able to accommodate such political development. The secession of Northern Ireland will not mean the creation of a new (Member-)State. Instead, it will trigger the territorial expansion of an EU Member State to which EU law already applies in accordance with Article 52 TEU. In a way, the reunification of Ireland could follow the precedent of the German reunification where the application of the acquis was extended to East Germany without an amendment of the primary legislation. The difference is that, in the case of Germany, the EU acquis did not apply at all in the East before the reunification, something that is very different with the situation in Northern Ireland.

However, Taoiseach Enda Kenny has asked recently for a special provision in any Brexit deal to allow Northern Ireland to rejoin the EU should it be united with the Republic. He did so, notwithstanding the fact that a special deal for Northern Ireland is the declared goal of the UK government.

So, the question is how could such a provision look like?

Obviously, there are not many EU law provisions that regulate the (re)unification of (Member-)States. The closest example is Article 4 of Protocol No 10 on Cyprus of the Act of Accession 2003. Protocol No 10 provides the terms for the application of EU law in Cyprus given that the island had not been unified at the moment it joined the EU. In particular, it provides for the suspension of the application of the acquis in northern Cyprus, a suspension which shall be lifted in the event of a solution.

If such solution occurs in the future, Article 4 provides for a simplified procedure that enables the Union to accommodate the terms of the reunification plan. In particular, Article 4 allows the EU, by a unanimous Council Decision at a future date and in the event of reunification, to alter the terms of Cyprus’ EU accession that are contained in the Act of Accession 2003. In other words, it allows the Council to amend primary law (ie Act of Accession 2003) with a unanimous decision.

This might sound like a heresy. However, the Treaties foresee special procedures for their amendment in some cases. The best example, for the purposes of this post, is the Council decision on the basis of Article 2(2) of the 1994 Accession Treaty which adjusted the instruments of accession after Norway’s failure to ratify. Several Articles of this Accession Treaty and of the Act of Accession were amended by a Council decision while other provisions were declared to have lapsed. Thus, in that case, the Council, itself, amended primary law in a simplified procedure without any ratification of the Member States.

To the extent that the ‘Brexit’ Agreement will be considered as part of primary law, a similar provision regulating the reunification of Ireland could be included and could assist the smooth transitioning of Northern Ireland back to the EU. Of course, the question of the reunification of Ireland –as many other questions related to Brexit- is first and foremost political. It is important to point out, however, that EU law is flexible enough to accommodate such political developments.

Parliamentary Tracker: Revision of Dublin, Qualification Directive, Refugees situation in Greece, EASO reform.. (LIBE debates on March 9,2017)

by Luigi LIMONE (Free-Group Trainee)

Main Points on the Agenda
MEETING DOCUMENTS ARE ACCESSIBLE HERE

REVISION OF DUBLIN REGULATION (Proposal for a Regulation of the European Parliament and of the Council establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person (recast) – Presentation of the draft report by rapporteur Cecilia Wikström.

According to the EP Rapporteur Cecilia Wikström (ALDE – Sweden), the Dublin system has collapsed and the current reform gives the European Parliament the possibility to have a rethinking of the whole system. She underlined four main points to accomplish such a reform:
a) every member state has to participate in the system;
b) the management of external borders has to be reformed;
c) applicants’ secondary movement has to be reduced;
d) the system needs to earn applicants’ trust, with regard to information and access to fair asylum procedures in particular.

Cecilia Wikström said that the proposal should be based on solidarity and not on ad-hoc  emergency measures. The European Union needs a pragmatic and practical mechanism to relocate applicants in Europe, as well as the introduction of the principle of shared responsibilities among Member States.
One of the key points of her draft report deals with admissibility in the first country of arrival:  admissibility check procedures prior to the establishment of the Member State responsible, as proposed by the Commission, would imply introducing an unreasonable new additional burden on frontline Member States.
She also proposed simplified procedures for family reunification and the possibility for applicants to be registered as a group in case there are some connections, for example language, ethnic origin and so on.  The latter provision would enable Member States to relocate those people as a group, thus reducing the costs for translation, simplifying the procedures for relocation and limiting secondary movement.
She also proposed a transitional system as far as the distribution quotas are concerned: for the first period, those Member States who are new to the migratory phenomenon will receive less migrants, in order to become familiar with refugee reception and asylum applications.
She then highlighted the importance of a strong link between the relocation system and the protection of external borders. An efficient relocation system would reduce the burden on frontline Member States. With this respect, she proposed the introduction of sanctions, such as an interruption of structural funds, for those Member States which do not respect their obligations.
The fight against secondary movement is the key element of the proposal.
For this reason, applicants’ registration in Eurodac is necessary, in order to establish an efficient relocation system capable of limiting secondary movements. Member States must therefore register applicants and respect the rules concerning the reception of asylum seekers. This would create a predictable system capable of making people feel safe in the first country of arrival. In this way, secondary movements would be discouraged and migrants would stop relying on smugglers in order to reach the Member State they wish to live in.
Among the issues which require further attention, Cecilia Wikström mentioned the situation of unaccompanied minors: thousands of migrants still go missing today and the EU has to provide them with protection, so that they receive appropriate care and they do not fall into the hands of smugglers or criminal networks. She therefore proposed some provisions regarding the quick appointment of guardians and the creation of teams for the assessment of the situation of child asylum seekers. Specifically, every single Member State should be able to offer an appropriate system for the reception of unaccompanied minors.

According to Alessandra Mussolini (shadow rapporteur for EPP – Italy), the draft report is very decisive and ambitious and many of the innovations introduced will be able to increase the flexibility of the Dublin system. The key elements for the reform of the Dublin system are greater solidarity and a greater sense of shared responsibility among Member States. To reach this solidarity, mutual recognition between Member States and their full participation in the Dublin system are required. With regard to admissibility, she stated that the reform proposed by the rapporteur would make the definition of admissibility criteria faster, while reducing the burden on frontline Member States. She also appreciated the wider flexibility family reunification criteria and the possibility to consider groups of people who share the same language or the same ethnic origin, since it would make registration and relocation procedures faster. On unaccompanied minors, she said that in order to prevent them from disappearing or falling into the hands criminal networks, Member States should need greater specialisation and greater solidarity as well as more responsibility and safety.

According to Elly Schlein (shadow rapporteur for S&D – Italy), the main problem is that while the European Parliament is discussing the reform of the Dublin system for the fourth time, the Council is not even looking at the proposal of the Commission. For her, one of the major obstacles of the current Dublin system is the management of EU external borders.
On admissibility, she confirmed that the introduction of systematic admissibility checks before the application of the Dublin criteria would imply a significant additional burden on frontline Member States, thus reducing their incentives to properly register applicants and promoting secondary movements.
She also said that an automatic relocation mechanism would help the system move forward. On reception, she said that EU Member States should provide decent reception conditions, instead of applying coercive measures. In her opinion, the EU should be able to find a balance between the duties of Member States and the responsibilities of applicants.
She appreciated the reforms on guardianship for unaccompanied children and the flexibility on family reunification- For her, Member States have in fact to respect the family links applicants may have with a Member State different from the country of first arrival.
Elly Schlein was quite critical on the proposal for a transitional period for countries who are less accustomed to receiving refugees. For her, this “exception” would create different responsibilities among Member States and it might therefore weaken solidarity.

Daniel Dalton (shadow rapporteur for ECR – UK) was quite disappointed regarding the proposal for the introduction of the automatic and mandatory relocation system proposed by Commission. In his opinion, Member States cannot be forced to take people if they do not want or they are not ready to do so. He also criticised the conditionality between participation of Member States in mandatory relocation and suspension of EU financial support:  for him, it is completely unacceptable to link the two things, since imposing sanctions on Member States could undermine solidarity and mutual trust. According to him, the EU should reinforce its control procedures in order to fight secondary movement and prevent migrants from absconding. Migrants should be discouraged to take journeys, by giving them the impression that they could not choose the Member State they want to live in.

For Cornelia Ernst (shadow rapporteur for GUE/NGL – Germany), the Dublin system is dead and anyone who says anything else is a dreamer. The system has totally failed and if the Member States wants to get something out of it, they should start thinking not only about their own interests but also about the interests of asylum seekers. She welcomed the proposal to extend family reunification conditions, since in her opinion family goes beyond the mother/father/child relationship. She also welcomed the positive changes concerning guardianship for unaccompanied minors. She found the proposal to register migrants in groups quite positive and she agreed that Member States should be more flexible when dealing with reception of migrants.
On the other hand, she was very critical about the differences in the application of the legislation among Member States. She said, in particular, that the problem of secondary movement would continue to exist as long as refugees were locked up by some Member States, such as Hungary. In her opinion, the European Parliament should make pressure on Member States, so that they all respect the system in the same way. Adopting exceptional measures in order to avoid secondary movements is not the solution, since the real problem is the approach chosen by some Member States. As far as external boundaries are concerned, she said that the proposal of the Commission was too theoretical and it did not take into account the concrete situation that frontline Member States were facing.

For Jean Lamber (shadow rapporteur for Greens/EFA – UK), the key point of the Dublin system is to ensure that the application for asylum is examined and that Member States respect their obligations to do so. She was quite satisfied with the innovations regarding children and unaccompanied minors. On relocation, she found the idea of collective registration and transfer very interesting. However, according to her, today one of the main obstacles to relocation is integration. It is therefore fundamental to reduce barriers to integration in the European societies.

According to Laura Ferrara (shadow rapporteur for EFDD – Italy), the proposal of the Commission is highly critical of the Dublin reform and nothing seems to have changed over the years. The main point of the proposal appears to be the need to block secondary movement. However, in her opinion this should not be considered the priority, since the main issue is that frontline Member States will continue to be overburdened. People can’t be forced  to stay in bad conditions and, as a consequence, they try to reach other countries where reception conditions are better. The key aspect of the reform of the Dublin system is solidarity. Therefore, the EU needs to put into place an automatic relocation mechanism, which should always be applied and not only for emergency situations. On family reunification, she said that the Member State responsible for the examination of the asylum application should always be that in which the applicant has some family connections. As a result, the applicant should be transferred to that Member State as fast as possible.

MEPs interventions:
According to Tomáš Zdechovský  (Czech Republic – PPE), the Dublin system cannot be based on penalties. Member States who do not respect their obligations should not be sanctioned and coercive conditionality between participation of Member States and financial support cannot be accepted.
According to Jussi Halla-Aho (ECR – Finland), Member States should not forget that most of the people who arrive in Italy or Greece hope to travel across Europe and not to stay in the county of first arrival. The EU therefore needs to discourage people to take journeys, making it clear that applicants cannot choose where they want to go. For him, Italy and Greece are called on to put into practice measures of return and readmissions of migrants driven by socio-economic causes as soon as possible.
For Kristina Winberg (EFDD – Sweden), the reform under discussion will collapse soon,  since Member States will start experiencing some problems relating to its implementation.
Ana Gomes (S&D – Portugal) proposed the introduction of new solutions based on the creation of safe and legal pathways for asylum seekers. On relocation, she said that the introduction of an automatic mandatory relocation mechanism would be a very good element.   In her opinion, the use of structural funds needs to be reconsidered: the EU should stimulate  Member States’ solidarity through structural funds. She also raised some concerns on how to reinforce the role of EASO within the relocation mechanism.
In conclusion, the Rapporteur Cecilia Wikström (ALDE – Sweden) stated again that the EU should stop adopting ad-hoc solutions and should make more concrete efforts to reform the Dublin system, in order to reinforce the stability of the system itself. She reiterated the importance of helping overburdened countries, Italy and Greece in particular, in a spirit of solidarity and equal responsibilities. According to her, the EU needs, however, to establish a system that is able to function not only for Italy and Greece, but which can prevent from having a similar situation in other parts of Europe in the future. Member States should therefore act in solidarity and remember that they are dealing with people who are in need of international protection.

 

2) “Qualification Directive” : (Proposal for a Regulation of the European Parliament and of the Council on Standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status of refugees or for persons eligible for subsidiary protection and for the content of the protection granted and amending Council Directive 2003/109/EC of 25 November 2003 concerning the status of third-country nationals who are long-term residents – Presentation of the draft report by rapporteur.
Tanja Fajon (S&D – Slovenia), Rapporteur underlined the importance to reform the qualification system, by stating that around 1.5 million people have arrived in Europe over the last two years. According to her, the EU needs a step forward to reform a system which is still based on the principle of the first country of arrival. She also raised some concerns on the role played by cohesion funds. According to her, these funds, which mostly go to the EU Eastern countries should be used as a condition to stimulate Member States to respect their obligations. Her report has been drafted after several meetings with NGOs working in this domain.  According to her, the key elements for an efficient qualification system are a more equitable distribution of burdens among Member States and the introduction of new measures aiming at a rapid integration of refugees within the European societies.
Among the essential elements proposed in the report, she highlighted:
a) the adoption of efficient measures to encourage refugee integration and avoid secondary movement;
b) equal treatment for refugees and EU citizens and non-discrimination against minority groups;
c) the equation between asylum and subsidiary protection in terms of length of residence permits (5 years for both status).
As regards the revision of international protection, it should be optional and it needs to take into account the situation of the applicant’s country of origin. The introduction of a systematic revision of the status is not a good element and could represent an additional burden for the Member State responible.
The draft report also proposes to extend the criteria of eligibility to international protection to new categories, in particular to persons in need of protection due to a natural or a man-made disaster. The definition of family members should be broadened as well and it has to include brothers and sisters in order to encourage family reunification.

According to Alessandra Mussolini (shadow rapporteur for EPP – Italy), the EU needs  some common ground on the reform of the qualification directive. It is essential to simplify, streamline and speed up the procedures if the EU wants to fight illegal activities and reduce the burdens on Member States. She also found very important to harmonise the timeframe for residence permits of the two status of international protection. As regards family links, she said that the more the EU tried to define new categories eligible to international protection, the more the other categories are excluded, with possible negative impacts on vulnerable people. She also raised some concerns on married minors, for whom the situation could me more difficult to be examined.

According to Jussi Halla-Aho (shadow rapporteur for ECR – Finland), secondary movement and asylum shopping are the major threats to the Schengen area and to the credibility of the asylum system. He also recalled that many people in the world flee the general economic conditions of their countries and not for reasons of real persecution. This constitute an abuse of the asylum system. In his opinion, a regulation is the right instrument to harmonise measures within the EU. However, the liberal interpretation and the maximum standards of protection adopted in the draft report should be substituted by a conservative interpretation and minimum standards, since the objective of the system should be to discourage and not to encourage migration flows. He said that he could not accept the inclusion of environmental migrants as beneficiaries of international protection and he stated that international protection should be always temporary and that subsidiary protection should last no more than one year. He also reiterated the importance to asses the situation in the country of origin before the renewal of the status of international protection, while taking into consideration that the purpose of the system should always be to send people back home as soon as possible, in particular those who do not show a cooperative and open attitude towards the integration into the society of the host Member State.

Cecilia Wikström (on behalf of Angelika Mlinar, shadow rapporteur for ALDE) said that the draft report appeared to be very good and that the reform should be based on incentives instead of sanctions and on the extension of the scope of family reunification.

For Barbara Spinelli (shadow rapporteur for GUE/NGL – Italy), some points of the report need to be totally revisited, since the new regulation risks leading to a downward harmonisation. This holds especially true when it comes to the equation between subsidiary protection and refugee status, since the harmonisation can lead to less safeguards for people in need of protection compared to what some Member States, such as Italy, already grant. She also underlined that the respect of the non refoulement obligation should always be at the base of the reform. She also highlighted the importance of including environmental migrants among the beneficiaries of international protection. She made the example of land grabbing, a phenomenon which is forcing many people from Africa and other parts of the world to leave their countries. She also called for the extension of the residence permits as well as the inclusion of new family ties for family reunification. The spirit should be to include more and more categories as beneficiaries of international protection, and even though it is true that the definition of these categories can exclude other categories, that is the spirit under which subsidiary protection was introduced and the EU therefore needs to continue in that direction.

For Jean Lamber (shadow rapporteur for Greens/EFA – UK), the new regulation must not level down the situation. In particular, she said that the systematic examination of the status each year could become a nightmare for Member States and could have serious damages on integration. For example, in the case of integration in the labour market, employers would be discouraged to take people on, if they know that after one year they will not probably be there anymore. For her, the alignment between asylum and subsidiary protection is necessary. The definition of family should be extended as well, together with the scope of those in need of protection, including environmental refugees.

3) Refugees/Migrants issue in Greece: State of play and future scenarios. Exchange of views with Ioannis Mouzalas, Minister of Migration Policy of Greece.
Ioannis Mouzalas talked about the current migration situation in Greece. He said that there had been around 850,000 migrants in Greece in 2015 and that Greeks had showed great solidarity and friendship towards the migrants, with the exception perhaps of the people of the islands, where some populist responses and reflexes had aroused.
On the situation of reception centres and refugee camps in his country, he said that their conditions had not not been very good in the beginning, but the situation had improved over time. According to him, Greece has managed to build around many  new centres and has made concrete efforts to create new safe spaces inside the camps for unaccompanied minors. As far as the migration situation on the islands is concerned, conditions are worse than the mainland mostly because of overpopulation, and Greek people living on the islands are often afraid of these massive arrivals. However, the Greek government has planned to create 10,000 further housing slots in the islands and it wants to provide refugees and asylum seekers with cash payment as well as work permits in the cities where they live.
In his opinion, the EU needs an automatic procedure to provide overburdened countries, such as Greece, with the assistance they require. The EU cannot continue to manage migration flows through voluntary support. Solidarity cannot be voluntary, because such a voluntary clause would create a situation in which only some Member States would be willing to participate in solidarity actions and actually this is already the case in Europe with countries, such as Germany, Greece, Italy and Sweden, which are facing alone the current migration crisis, while others are not participating in the system at all.

MEPs interventions:
Roberta Metsola (EPP – Malta) said that in Greece there had been a huge influx of migrants over the past years. For her, real solidarity needs to be improved and it should represent the starting point to deal with this situation. However, she asked for more clarity on the number of migrants who are currently entering Greece and those who are being returned under the EU-Turkey agreement. She also asked for more accuracy on the information regarding the financial aid Greece is receiving from the EU in order to manage the situation.
For Birgit Sippel (S&D – Germany), the situation Greece is facing clearly demonstrates that flexible solidarity is even more senseless if some Member States continue to do nothing.
Cornelia Ernst (GUE/NGL– Germany), asked about the functioning of the allocation system in Greece, in particular with regard to allocation of minors.
For Judith Sargentini (Greens/EFA – Netherlands), Greece is not relocating refugees as it should do, due to the fact that they do not fit the nationality criteria or as an effect of the EU-Turkey deal. According to her, relocation seems to have become a game in Europe.
Malin Björk (GUE/NGL – Sweden) talked about a letter from 160 NGOs concerning the need to change the course of the current EU migration policy. She criticised the stricter externalisation of borders in general and the institutionalisation of Greek islands camps in in particular. According to her, the European Parliament should put more and more pressure on the Council in order to close these camps. The Parliament should also ask for an elimination of the measures on refugee detention and introduce new measures on minor protection, since minors in Greece are now sent back to Turkey under the EU-Turkey agreement.
Monika Hohlmeier (EPP – Germany) asked about the relation between the islands and the mainland, since for her there is a lack of clear figures on the people who have been effectively  relocated form the islands to the mainland and on the people who have been sent back under the EU-Turkey agreement.
According to Elly Schlein (S&D – Italy) the admissibility/inadmissibility checks discussed under the reform of the Dublin system could end up being an additional burden for frontline states, and this can have negative impact on Greece. She also affirmed that minors and vulnerable groups should not be returned to Turkey, and that the Commission and the Council should include some obligations for Member States on that point.
Ana Gomes (S&D – Portugal) asked for concrete numbers on relocation from Greece, as well as for some clarification on the orientation Greece is adopting with regard to vulnerable people. According to her, vulnerable categories should have priority in relocation measures. She also said that unaccompanied minors should not be returned to countries like Afghanistan,  where terrorist attacks are the norm.

In reply, Minister Ioannis Mouzalas said that Greece was the second country in Europe in terms of number of asylum applications received and that the country therefore needed the help of the other Member States, some of which were not cooperating at all. He criticised for example those Member States which had failed to keep their promises in terms of relocation and providing staff for the European Asylum Support Office (EASO). He then stated again that Greece was making concrete efforts in order to improve the situation of refugees, under full respect of international obligations. In particular, he said that Greece was trying to manage vulnerable categories as efficiently as possible, but he called for the support of the EU and its agencies, especially EASO, in terms of resources and concrete assistance.

OTHER POINTS ON THE AGENDA

4) Proposal for a regulation of the European Parliament and of the Council on the financial rules applicable to the general budget of the Union – Presentation of the draft opinion to the BUDG Committee  by rapporteur Daniele Viotti (S&D – Italy)

Birgit Sippel (S&D Germany) talked on behalf of Rapporteur Daniele Viotti. She said that, according to the rapporteur, the proposal of the Commission could be further improved. The rapporteur, in fact, asked for more transparency on the EU agencies and called for a standardisation of the agencies, while stating the importance of taking into account the specificity of each of them. On the revision of the financial regulation concerning the EU Trust Fund, the rapporteur said that the Trust Fund should be used only in exceptional circumstances, since it was not placed under the Parliament’s budget scrutiny.

MEPs’ interventions:
Tomáš Zdechovský (EPP – Czech Republic) said that the LIBE Committee should fight for sufficient flexibility of the EU budget and find a balance between flexibility and control. He completely disagreed with Daniele Viotti’s report and he called for a discussion to reach a new compromise.

 
5) EASO REVISION (Proposal for a regulation of the European Parliament and of the Council on the European Union Agency for Asylum – Presentation of the state of play of trilogue negotiations by rapporteur Péter Niedermüller.
Rapporteur Péter Niedermüller (S&D – Hungary) stated that the European Parliament wanted a strong independent agency capable of providing support to Member States. He said that there had been some conflicts during the trilogue negotiations, with regard to monitoring, training and power balances in particular, even though in the end negotiations had had some positive results.

MEPs’ interventions:
According to Carlos Coelho (EPP – Portugal), the legal basis for the European Union Agency for Asylum should be set up as soon as possible, since the role its role could be extremely important not only during crisis but also for crisis prevention.

6) UKRAINE VISAS (Proposal for a regulation of the European Parliament and of the Council amending Regulation (EC) No 539/2001 listing the third countries whose nationals must be in possession of visas when crossing the external borders and those whose nationals are exempt from that requirement (Ukraine) – Presentation of the state of play of trilogue negotiations by rapporteur Mariya Gabriel (EPP – Bulgaria)
Michal Boni (EPP – Poland) spoke on behalf of Rapporteur Mariya Gabriel. He said that excellent collaboration between the EP, the Commission and the Council had existed throughout the whole negotiation. He also said that Ukraine had achieved all the benchmark criteria necessary to obtain visa liberalisation and that the country had gone even further. According to the rapporteur, every country which respects the criteria should benefit from the liberalisation of visa for its citizens and Ukraine falls within this case.

7) Electronic vote
During the meeting, MEPs were voted on:

a) the compromise text  on UKRAINE – VISA WAIVER agreed during the inter-institutional negotiations (Proposal for a regulation of the European Parliament and of the Council amending Regulation (EC) No 539/2001 listing the third countries whose nationals must be in possession of visas when crossing the external borders and those whose nationals are exempt from that requirement -Ukraine).

b) the draft report on the on the proposal for a regulation of the European Parliament and of the Council amending Council Regulation (EC) 1030/2002 laying down a uniform format for residence permits for third-country nationals.

8) European Commission Report on the implementation of Directive on combating the sexual abuse and sexual exploitation of children and child pornography (Presentation by the Commission of the report to the European Parliament and the Council assessing the extent to which the Member States have taken the necessary measures in order to comply with Directive 2011/93/EU and the report assessing the implementation of the measures referred to in Article 25 of Directive 2011/93/EU.  
According to the European Commission, Directive 2011/93/EU is an ambitious and comprehensive legal instrument that covers investigation, prosecution, prevention and assistance to victims of sexual abuse. The transposition of such a directive represents a big step in the right direction, but there are still a number of steps which need to be made, starting from the accomplishment of satisfactory levels of implementation.
There has been a lot of progress with regard to setting up cooperation schemes in order to improve cooperation among national actors. Member States have also made relevant steps forward with regard to blocking the dissemination of materials on child sexual abuse. However, prevention from sexual abuse remains the less developed area.
Further efforts are also required in the field of assistance and protection of child victims, including the family of the victim, as well as in the fields of investigation and prosecution. The European Commission is fully supporting Member States in the implementation of the directive and it is cooperating with Interpol for a stronger control of the Internet in order to protect children and prevent from child abuse and pornography.

MEPs’ interventions:
Anna Maria Corazza Bildt (EPP – Sweden), rapporteur for the session, said that Member States should do more in terms of how the directive could be put into practice. Member States have done great progress in implementing the directive and the civil society has played an important role in advocating as well as supporting Member States. However, crimes against children are still frequent in Europe and they need to be combated more concretely. In her opinion, stronger cooperation between Member States is required to fight against the cross-border criminal networks which exploit children. In particular, she said that the number of sex extortion and revenge pornography cases was increasing in Europe.  The EU should therefore make stronger and more concrete efforts to combat these phenomena. For her, a better identification of victims as well as of potential offenders is also needed, if Member States want to put into practice efficient prevention mechanisms.
Birgit Sippel (S&D – Germany) spoke on behalf of the shadow rapporteur for S&D. She said that the party welcomed the report on implementation prepared by the Commission, but she noticed that the two reports had shed light on the differences among Member States’ practices to protect children against sexual abuse. She also highlighted the importance of educational campaigns in order to raise awareness of the consequences of child sexual exploitation.
For Branislav Škripek (shadow rapporteur for ECR – Slovakia), the directive should be implemented in toto and Member States should make efforts to bring about a change in the behaviour of offenders.
According to Nathalie Griesbeck (shadow rapporteur for ALDE –  France), today child sexual abuse is a matter of great urgency in Europe. She clarified that it was not a question of freedom of the Internet, but a question of targeting specifically sexual abuse and other crimes against children. For her, the report of the Commission is very clear and it confirms that there is still much to be done.

9) Croatia preparation of Schengen operational phase.  (Proposal for a Council Decision on the application of the provisions of the Schengen acquis in the area of the Schengen Information System in the Republic of Croatia )– Presentation by the Commission and intervention by the Maltese Presidency.
According to the Commission, discussions for the integration of Croatia in the Schengen Information System (SIS) started in 2016 after they country had accepted to undergo this process in 2015. The objective of these evaluations is to allow Croatia to gradually participate  in the Schengen Information System. A wide range of domains were discussed and Croatia was found technically ready to be integrated into the system.
The Commission explained that Croatia had accomplished all the criteria required but that, since the Council had not take its final decision on the full Schengen evaluation process yet, there would be some restrictions applied to Croatia, with regard to entry alerts in particular.

The Council confirmed that a process of verifying the correct implementation of the Schengen acquis across different domains, in particular data protection, had been carried out and Croatia had met all the requirements. The country was therefore found technically ready to join the Schengen Information System. According to the Council, the integration of Croatia is important because it will increase cooperation in the areas of information collection and exchange as well as in the field of police cooperation.

MEPs’ interventions:
Nuno Melo (EPP – Portugal), rapporteur for the session, said that from a legal point of view the assessment of Croatia had been positive and that Croatia had met all the requirements. According to him, the evaluation of the country’s contribution to the Schengen Information System can only take place once Croatia has joined the system.
For Birgit Sippel (S&D – Germany), if Croatia has really fulfilled the criteria, further steps should be made in order to make the country part of the system as soon as possible. However, she raised some doubts as regards Croatia’s readiness to contribute to data protection.