by Paolo Gambatesa (FREE Group Trainee)

Section I – about facts and EU reaction under Article 7 TEU perspective


  • On 8 October 2015, ahead of the general elections for the Sejm (lower chamber of the Polish Parliament) of 25 October 2015, the outgoing legislature nominated five persons to be ‘appointed’ as judges by the President of the Republic in accordance of Article 194 of the Polish Constitution. Three judges would take seats vacated during the mandate of the outgoing legislature while two judges would take seats vacated during that of the incoming legislature which commenced on 12 November.
  • On 19 November 2015, the new legislature, through an accelerated procedure, amended the Law on the Constitutional Tribunal, introducing the possibility to annul the judicial nominations made by the previous legislature and to nominate five new judges. The amendment also shortened the terms of office of the President and Vice-President of the Tribunal from nine to three years, with the current terms coming to an automatic end within three months of the amendment’s adoption.
  • On 25 November 2015, the new legislature annulled the five nominations by the previous legislature and on 2 December nominated five new judges.
  • The Constitutional Tribunal was seized concerning the decisions of both the previous legislature and the incoming legislature. The Tribunal delivered two judgements, on 3 and 9 December 2015.
  • On 3 December, the Court ruled (K 34/15) that the previous legislature was entitled to nominate only three judges for seats vacated during its mandate, but was not entitled to make the two nominations for seats vacated during the term of the new legislature.
  • On 9 December, the Court ruled (K 35/15) that the new legislature was not entitled to annul the nominations for the three appointments under the previous legislature, but that it was entitled to appoint the two judges whose mandate began under the incoming legislature. 
  • The consequence of the judgements is that the President of the Republic is obliged to “appoint” (i.e. take the oath of) the three judges nominated by the previous legislature. However, the President of the Republic has in the meantime taken the oath of all five judges nominated by the new legislature. The judgments of the Constitutional Tribunal have thus not been implemented, and the correct composition of the Tribunal remains disputed between the institutions of the State.
  • On 22 December 2015, the legislature adopted new rules on the functioning of the Constitutional Tribunal, which, among other things, render more difficult the conditions under which the Tribunal may review the constitutionality of newly passed laws, i.a. by increasing the number of judges hearing cases, and by raising the majorities needed in the Tribunal to hand down judgements (in full configuration, judgements shall be adopted by a majority of two-thirds of the votes, instead of by simple majority as under the former rules). [in-depth analysis about all events see The Constitutional crisis in Poland 2015-2016]
  • On 23 December 2015, First Vice-President Timmermans wrote to the Polish Government to request further information regarding the current situation of the Constitutional Tribunal. Timmermans also recommended that the Polish Government consult the Venice Commission before enacting the proposed changes to the Law on the Constitutional Tribunal. The Polish Government requested a legal assessment from the Venice Commission on 23 December, but has proceeded with the conclusion of the legislative process before receiving the Venice Commission’s opinion, which will be issued on 11 March 2016.
  • On 30 December 2015, Moreover the Polish Senate adopted the “small media law” concerning the management and supervisory boards of the Polish public television broadcaster (TVP) and public radio broadcaster (PR). The new law appears to modify the rules for the appointment of the Management and Supervisory Boards of the public service broadcasters, putting them under the control of the Treasury Minister, rather than an independent body. The new law also provided for the immediate dismissal of the existing Supervisory and Management Boards. [in-depth analysis see Poland: Independence of public service media]


  • On 13 January 2016, the Commission launched a dialogue with the Polish authorities in order to seek solutions to its concerns regarding the Constitutional Tribunal. More specifically, this represents the first stage of “pre-Article 7 procedure” which was described by the European Commission in a new Framework for addressing systemic threats to the Rule of Law  in any of the EU’s 28 Member States, adopted on 11 March 2014. The purpose of the framework is to enable the Commission to find a solution with the Member State concerned in order to prevent the emerging of a systemic threat to the rule of law that could develop into a “clear risk of a serious breach” which would potentially trigger the use of Article 7 TEU. The process has three stages: I) Commission assessment; II) Commission Recommendation; III) Follow-up to the Commission Recommendation.
  • Between February 2016 and July 2016, the Commission and the Polish Government exchanged a number of letters and met on several occasions.
  • On 9 March 2016, the Constitutional Tribunal ruled that the law adopted on 22 December 2015 was unconstitutional. That judgment has so far not been published by the Government in the Official Journal, with the consequence that it does not have legal effect. The Government officially justifies its decision by claiming that the Tribunal should have delivered the judgement in the legally prescribed quorum, as provided by the law which was declared unconstitutional. However, in the Constitutional Tribunal there were only 12 lawfully appointed judges, and three remaining judges appointed by the Sejm in October 2015 were awaiting to be sworn in by the President of the Republic.
  • On 13 April 2016, the European Parliament voted for a Resolution urging the Polish Government to respect, publish and fully implement the judgments of the Constitutional Tribunal.
  • On 1 June 2016, in the absence of solutions from the Polish authorities, the Commission formalised its concerns by sending a Rule of Law Opinion to the Polish Government.
  • On 22 July 2016, the Sejm adopted a new law on the Constitutional Tribunal which was published in the Official Journal on 1 August 2016.
  • On 27 July 2016, after further exchanges were unable to resolve the Commission’s concerns, the Commission adopted a Rule of Law Recommendation, finding that there was a systemic threat to the rule of law in Poland, in particular with regard the non-publication of the judgments of the Constitutional Tribunal adopted on 3 and 9 December 2015 that has rendered this judgments deprivated of any legal effect. The Commission invited the Polish authorities to address its concerns within three months, but the Polish Government informed the Commission that it disagreed on all the points raised.
  • On 11 August 2016, the Constitutional Tribunal rendered a judgment (K 39/16) on the law of 22 July 2016 and declared unconstitutional some provisions of this law. The Polish Government did not recognise the validity of this judgment and did not publish it in the Official Journal.
  • On 16 August 2016, the Polish Government published 21 judgments of the Tribunal rendered in a period from 6 April 2016 to 19 July 2016. However, the judgments of 9 March 2016 and of 11 August 2016 were not published by the Government.
  • On 14 September 2016, the European Parliament adopted a Resolution on the situation in Poland i.a. calling on the Polish Government to cooperate with the Commission pursuant to the principle of sincere cooperation as set out in the Treaty.
  • 14 October 2016, the Venice Commission adopted its opinion on the law of 22 July 2016 on the Constitutional Tribunal.
  • On 31 October 2016, the United Nations Human Rights Committee expressed concerns about the negative impact of legislative reforms.
  • On 1 and 2 December 2016, the Senate adopted the law of 30 November 2016 on the legal status of judges of the Constitutional Tribunal (‘law on the Status of Judges’) and the law of 30 November 2016 on organisation and proceedings before the Constitutional Tribunal (‘law on Organisation and Proceedings’).
  • On 19 December 2016, the President of the Republic appointed judge Julia Przyłębska, a judge elected by the new Sejm, to the position of acting President of the Constitutional Tribunal.
  • On 21 December 2016, according to the Commission important issues remained unresolved and thus it adopted a second Rule of Law Recommendation, concluding that there continued to be a systemic threat to the rule of law in Poland. The Polish Government again disagreed with the Commission’s assessment, because the Government assumed that the appointment of the new President of the Tribunal on 21 December 2016 as well as the entry into force of the three new laws governing the functioning of the Constitutional Tribunal created the proper conditions for the functioning of the Tribunal.


  • On 10 January 2017, the Vice-President of the Constitutional Tribunal was obliged by the newly appointed President of the Tribunal to take his remaining leave. On 24 March 2017 the mandatory leave was prolonged until the end of June 2017, despite the request of the Vice-President to resume his work as judge in the Tribunal as of 1 April 2017.
  • On 12 January 2017, the Minister of Justice launched a procedure before the Constitutional Tribunal to review the constitutionality of the election, in 2010, of three judges of the Tribunal. Following this procedure, cases have no longer been assigned to these three judges.
  • On 20 January 2017, the Polish Government announced a comprehensive reform of the judiciary in Poland.
  • On 16 May 2017, the Commission informed the Council on the situation in Poland, and there was broad support among Member States for the Commission’s role and efforts to address the issue. Member States called upon Poland to resume the dialogue with the Commission.
  • On 5 July 2017, following the end of the mandate of the previous Vice-President of the Constitutional Tribunal, the President of the Republic appointed a new Vice-President of the Tribunal, Mr. Mariusz Muszyński, despite the fact that he was one of the three judges in the Tribunal appointed unlawfully.
  • On 13 July 2017, the Commission wrote to the Polish authorities expressing its concerns about the pending legislative proposals on the reform of the judiciary, underlining the importance of refraining from adopting the proposals as they were drafted at that time, and calling for a meaningful dialogue. The Commission explicitly invited the Polish Foreign Minister and Polish Justice Minister to meet at their earliest convenience. These invitations were ignored.
  • On July 2017, the Polish Parliament had adopted four judicial reform laws which in the Commission’s assessment will increase the systemic threat to the rule of law: the Law on the Supreme Court, the Law on the National Council for the Judiciary (both ‘vetoed’ on 24 July by the President of the Republic), the Law on the Ordinary Courts Organisation (signed by the President of the Republic on 25 July and awaiting publication and entry into force); and the Law on the National School of Judiciary (published and in force since 13 July). These Laws, in their current form, will structurally undermine the independence of the judiciary in Poland and have an immediate and very significant negative impact on the independent functioning of the judiciary.
  • On 26 July 2017, after the last judicial reform the Commission adopted a third Rule of Law Recommendation, reiterating its existing concerns about the Constitutional Tribunal and setting out in addition its grave concerns about the judicial reforms. The Commission’s Recommendation set out a list of proposed remedies, and urged the Polish authorities in particular not to take any measure to dismiss or force the retirement of Supreme Court judges.
  • On 29 July 2017, the European Commission launched an infringement procedure against Poland by sending a Letter of Formal Notice in accordance to Article 258(1) TFEU, following the publication in the Polish Official Journal of the Law on the Ordinary Courts Organisation on Friday 28 July.
  • On 11 September 2017, the Polish Government initiated a campaign named ‘Fair Courts’ aimed at gaining social support for the ongoing judicial reform. On the same day, the Constitutional Tribunal in a panel of five judges declared the unconstitutionality of certain provisions of the Code of Civil Procedure allowing ordinary courts and the Supreme Court to assess the legality of the appointment of the President and the Vice-President of the Tribunal.
  • On 12 September 2017, the European Commission decided to send a Reasoned Opinion to Poland regarding the Polish law on the Ordinary Courts Organisation, thus the Commission brings it at the second stage of the infringement procedure started in July 2017.
  • On 13 September 2017, the Minister of Justice started exercising the powers to dismiss court presidents and vice-presidents pursuant to the law on Ordinary Courts Organisation.
  • On 25 September 2017, the Commission again informed the Council of the situation in Poland, and there was again broad agreement on the need for Poland to engage in a dialogue with the Commission.
  • On 26 September 2017, the President of the Republic transmitted to the Sejm two new draft laws on the Supreme Court and on the National Council for the Judiciary.
  • On 11 October 2017, the Parliamentary Assembly of the Council of Europe adopted a resolution on new threats to the rule of law in Council of Europe member States, expressing concerns also about developments in Poland, which put at risk respect for the rule of law, and, in particular, the independence of the judiciary and the principle of the separation of powers
  • On 23 October 2017, the United Nations High Commissioner for Human Rights requested that the Polish authorities accept the United Nations recommendations on upholding judicial independence.
  • On 15 November 2017, the European Parliament adopted a Resolution expressing support for the Recommendations issued by the Commission, and considering that the current situation in Poland represents a clear risk of a serious breach of the values referred to in Article 2 of the TEU.
  • On 8 December 2017, the two new draft laws propsoed by the President of the Republic were adopted by the Sejm, the lower house of the Polish Parliament, after further legislative work. On the same day, the Venice Commission of the Council of Europe adopted two opinions on the judicial reforms in Poland, concluding that they enable the legislative and executive powers to interfere in a severe and extensive manner in the administration of justice, and thereby pose a grave threat to judicial independence.
  • On 15 December 2017, the two laws were approved by the Polish Senate, the upper house of the Polish parliament. In particular, the law on the Supreme Court lowers the general retirement age of Supreme Court judges from 70 to 65. This measure applies to all judges currently in office.
    Judges who attained 65 years of age or will attain that age within 3 months from the entry into force of the law, will be retired, unless they request to the President of the Republic to prolong their active mandate. Furthermore, as regards the power of the President of the Republic there are no criteria, no time-frame for taking a decision and no judicial review provided for in the law.
  • On 20 December 2017, the fourth Rule of Law Recomandation of the European Commission, it was adopted immediately before the formal activation of the procedure of the Article 7.
  • On 22 December 2017, lastly the European Commission activated formally the procedure of Article 7(1) TEU through the proposal addressed to the Council for its Decision on the determination of a clear risk of a serious breach by the Republic of Poland of the rule of law.


  • On 20 March 2018, the Council (General Affair) expressed the hope that the dialogue between the Commission and the Polish authorities will bring positive results on the issue.
  • On 17 April 2018, the Council (General Affair) has started the discussion about the rule of law in Poland. Ministers encouraged the Commission and the Polish authorities to continue their dialogue with a view to achieving concrete results.
  • On 26 June 2018, the Council (General Affair)  held the first hearing under Article 7(1) TEU on the rule of law in Poland.
  •  On 18 September 2018, the Council (General Affair) held the second hearing under Article 7(1) TEU on the rule of law in Poland.
  • On 16 October 2018, the Council (General Affair) “reiterated the importance of upholding the rule of law in all EU member states and stressed the need to achieve tangible progress”.
  • On 11 December 2018, the Council (General Affair) held the third hearing under Article 7(1) TEU on the rule of law in Poland.

Section II – At glance to pendant cases in front of the jurisdictional authorities

  • The infringement procedure and the ECJ’s decision on interim relief:

The infringement procedure began when the Commission notified the Letter of Formal Notice dated 29 July 2017 has come to next stage: the judgment of the Court of Justice in order to access the violation of the rule of law with regard to the independence of Polish courts will be undermined by the fact that the Minister of Justice has been given a discretionary power to prolong the mandate of judges which have reached retirement age (legal basis: Article 19(1) TEU in combination with Article 47 of the EU Charter of Fundamental Rights). According to the Commission Polish law puts also into effect the discrimination on the basis of gender due to the introduction of a different retirement age for female judges (60 years) and male judges (65 years). This is contrary to Article 157 of the Treaty on the Functioning of the European Union (TFEU) and Directive 2006/54 on gender equality in employment.

Furthermore, the Commission asked to the Court the immediate suspencion of the application of the Polish legislation relating to the retroactive lowering of the retirement age for the Supreme Court judges (legal basis: Article 279 TFEU). The requested interim relief was adopted by the ECJ Vice-President on 19 October 2018 and than it was confirmed by the ECJ President on 15 November 2018. Until now, the case on its merit has not been decided yet (Commission/Poland, C- 619/18).

  • The preliminary ruling from the Polish Judges to the ECJ:

Several of preliminary ruling questions were referred by Polish judges to the ECJ, pursuant Article 267 TFEU, which concerning the most critical aspects of the Polish justice reforms, as the discrimination on grounds of age or the principles of irremovability and independence of judges.

  • The preliminary ruling from the Polish Judges to the Polish Constitutional Tribunal:

On 23 August 2018 the Prosecutor General, who is also the Minister of the Justice referred a preliminary ruling to the Constitutional Tribunal (K 7/18) for declaring the unconstitutionality of the Article 267 TFEU “so far as it permits the national court to submit preliminary references on the interpretation of the Treaties or on the validity and interpretation of acts of the institutions, bodies, offices or agencies of the Union in matters relating to the system, form and organization of the judiciary as well as proceedings before judicial authorities of the EU Member State”. [in-depth analysis see Though this be Madness, yet there’s Method in’t: Pitting the Polish Constitutional Tribunal against the Luxembourg Court

Section III – The consequent legisltive proposals about the protction of rule of law

  • 2018/0136 (COD)Protection of the Union’s budget in case of generalised deficiencies as regards the rule of law in the Member States” [see also the Commission Proposal and the Text Adopted by the Plenary].
  • 2018/0207(COD)Rights and values programme 2021–2027” [see also the Commission Proposal and the Text Adopted by the Plenary].

[All informations exposed in this document were extrapolated by the Press Relese of the European Commission (https://ec.europa.eu/info/news_en?pages=36994) and by the official documents of the EU Institutions]

Manufacturing Discontent: Q and A on the legal issues of asylum-seekers crossing the Channel


Professor Steve Peers, University of Essex*
*Supported by an ESRC Priority Brexit Grant on ‘Brexit and UK and EU Immigration Policy’.

Cynical politicians, aided by an uncritical media, aim to manufacture a moral panic from a modest number of people crossing the Channel. Be that as it may, these crossings raise a number of legal issues. There’s already a good discussion of many of them in the Free Movement blog, but I think it might also be useful to address some legal issues here, in a question and answer format.

Where are the international law rules on asylum?They are scattered all over the place incoherently. International lawyers like to describe their subject as ‘fragmented’, and that’s particularly true of asylum law. There are three main sources of law on asylum in Europe, and although they are legally separate, their rules overlap and interact. I won’t discuss every way in which this happens in this blog post – just those most relevant to the Channel crossings.

The UN Refugee Convention  The starting point is the United Nations (Geneva) Convention on the status of refugees, which defines what a refugee is and lists the rights of refugees. But that Convention does not deal with issues like asylum procedure, and has an uneasy and uncertain relationship with immigration law.

ECHR Secondly, the European Convention on Human Rights (ECHR) says nothing about asylum explicitly, but the case law of the European Court of Human Rights has addressed a number of asylum-related issues, in particular arising from Article 3 ECHR, the ban on torture or other inhuman or degrading treatment. According to that case law, removal to another country to face a sufficiently serious risk of Article 3 treatment in that other country infringes Article 3 in the country removing the person concerned. A series of procedural obligations then follow from that.  (There are other international human rights treaties which take a broadly similar approach, but I focus here on the ECHR as its court rulings are binding and have a greater impact in practice).

EU asylum lawThirdly, EU law has aimed to create a Common European Asylum System (CEAS) in several phases.  A first phase of EU asylum law was adopted from 2003 to 2005, and a second phase was adopted between 2010 and 2013. A (de facto) third phase of laws, responding to the perceived European refugee crisis of 2015, was proposed in 2016, but negotiations on those laws are still continuing.

Continue reading

(From Verfassungsblog) Capturing Bulgaria’s Justice System: The Homestretch


Author : Radosveta Vassileva (9 Jan 2019)

On 18 December 2018, Magistrats Européens pour la Démocratie et les Libertés (MEDEL) announced that it had sent a letter to the European Commission in which it raised concern about the lack of independence of the Bulgarian judiciary, naming inter alia the “recurrent pressures” faced by the President of Bulgaria’s Supreme Court of Cassation. 

While focusing on other EU members facing challenges in the area of rule of law, foreign commentators may not realize that the situation in Bulgaria is critical. Bulgaria’s executive is now headed into the homestretch of capturing the entire justice system. The current unprecedented proceedings against the President of the Supreme Court of Cassation would complete the capture if the plan that shows through – remove him from office – works.

The Homestretch

Continue reading

Implementing EU law at national level: still a bumpy road…

The European Parliament Research Service has recently published a briefing  dealing with the Challenges in the implementation of EU Law at national level. The document authored by Melanie Smith, (Reader in Law, Cardiff School of Law and Politics, Cardiff University) is clear and updated on the basis also of the recent European Commission works in the so called “better legislation” agenda. The missing point in the Parliament and in the Commission works is that still now true transparency is not yet granted in this delicate phase of the EU policy cycle. European Citizens as well as the European Parliament have no access to the informations dealing with the transposition and implementation of EU law. The same happen for national Parliaments when they want to know how the transposition is progressing in another EU Country.

The relations between the Commission and each Member State remain confidential at least until when the Commission under its discretion as Guardian of the Treaty that an infringement procedure should be launched. This mechanism could had been acceptable when the EU was only an internal market but has became inadequate since when the EU measures can have an impact on the rights of millions of EU citizens.

I am convinced  that the principle of sincere cooperation (art 4.3 TEU) according to which (*) Member States should implement the EU legislation would require now that when an EU measure is adopted the Member State should not only inform the Commission but also its own Citizens on the national measures to be taken by listing the adminstrations in charge and the organizational measures to be taken. Participative democracy should play its role not only in the ascending phase of the EU legislation but also in the descending phase of the EU policy cycle when rights and obligations of citizens are framed at national level. 

(*) Pursuant to the principle of sincere cooperation, the Union and the Member States shall, in full mutual respect, assist each other in carrying out tasks which flow from the Treaties.The Member States shall take any appropriate measure, general or particular, to ensure fulfilment of the obligations arising out of the Treaties or resulting from the acts of the institutions of the Union. The Member States shall facilitate the achievement of the Union’s tasks and refrain from any measure which could jeopardise the attainment of the Union’s objectives.


Continue reading

Has the EU lost its compass towards an European Area of Freedom Security and Justice ?


Night view of Europe

 Transforming the European Union into an Area of Freedom, Security and Justice: Twenty years after Tampere and ten after Lisbon, the objective is still out of reach.

 Rome, 28 January 2019, 9.30/12.30 – 14.00/17.30

Spazio Europa (managed by the European Parliament Office in Italy and the European Commission Representation in Italy) Via Quattro Novembre 149 (ground floor) – Roma

Twenty years ago, the Amsterdam Treaty entered into force and with it the objective of transforming and developing the European Union into an Area of Freedom, Security and Justice area (AFSJ). This objective confirmed ten years later by the Lisbon Treaty and by the Charter of Fundamental Rights, signaled the EU Member States determination of transforming the internal market into a new kind of supranational political space placing “..the individual at the heart of its activities, by establishing the citizenship of the Union and by creating an area of freedom, security and justice.”[i] However, since then, the experience has shown us that despite some important successes, that goal is still far from being realized.

Many factors of political, bureaucratic, institutional nature and, above all, the overlapping of several external and internal crises have put a strain on the Union and its Member States. Although it will not be possible to analyze them in detail in one day seminar of 28 January, we will try to understand what the nature of the major shortcomings and which political legal and institutional steps can be taken to overcome these difficulties during the next parliamentary term, without revising the current Treaties.

Our brain storming will be take place around four round tables open to people coming from European and national institutions or from the academia who have followed closely the evolution of the different policies that contribute directly or indirectly to the transformation of the Union. in Space for freedom, security and justice.

During the round tables the institutional dimension will be taken into consideration (not only at European but also national level), as well as the growing role of European Agencies and Authorities and the international dimension (United Nations, Council of Europe)

1st  Round table: The values that the EU and the Member States must protect and promote

Sharing common values is the prerequisite of achieving together the objectives set by the Treaties and is the basis of mutual trust between Member States, notably when they implement the AFSJ related policies. When these values are risk or are violated, the Treaty provide the possibility to suspend even the voting rights of the Member State in question (Article 7 TEU). In the same perspective the Court of Justice has also recognized that also the mutual trust between the EU MS could be compromised and that this could hinder the mutual recognition mechanisms notably when respect for the rule of law is at stake. This round table will discuss on one side the common policies related to the AFSJ so that they respect the EU fundamental values and rights and on the other side the measures to be taken when one or more Member States jeopardize the values and the objectives of the EU. One can therefore ask whether, new mechanisms should be created to prevent these shortcomings at EU and National level.

Speakers: Enzo Cannizzaro, Valerio Onida, Oreste Pollicino

2nd Round Table: Freedom of movement, border control, asylum and migration

Freedom of movement within the EU and the abolition of internal border controls are the proof of the existence of a supranational human mobility area so that it is worrying that several EU Member States are trying to re-establish in a more or less permanent way these checks at the internal borders. In the last years, (starting in 2013 from the Schengen governance reform), the European Union has developed an impressive series of initiatives protecting the external borders and has launched an integrated border management which is deemed granting the highest level of security. Many scholars and representatives of institutions such as the European Data Protection Controller, have considered the requests for further internal and external border checks disproportionate face to the alleged threats.

The same security-focused strategy has also been at stake to limit the right to asylum and even to limit the EU management of migratory flows as well as the visa policy. Also limited have been the EU initiatives to promote the integration of migrants in national societies and labor markets or to facilitate access for regular migrants.

Speakers: Giuseppe Cataldi, Steve Peers, Mario Savino

 12,30 Buffet

 3rd Round table: the internal (and external) security area

The EU has developed since 9/11 its Internal Security agenda and this process has even intensified during the last ten years with a particular focus on preventing terrorism. Unfortunately most of these EU measures have been adopted without a proper prior and post impact assessment so that it is very hard to judge their effectiveness or even revise their scope. The lack of information from the Member States hinders the democratic control, especially at the European level, as it has been proved by a recent EP resolution.

To counter this the EU is developing interoperability between European and national databases even if these databases were originally designed for other purposes (e.g. EURODAC, VIS). Last but not least using the external security legal framework (which is not binding and lacks parliamentary control) for internal security policies makes everything more complex and less transparent.

Speakers: Tony Bunyan, Luisa Marin, Marc Rotenberg

 4th Round table: the European judicial area

The European judicial area has developed considerably in the civil field but has remained incomplete in the criminal field. The principle of mutual recognition of measures taken at national level has undergone several setbacks with the weakening of mutual trust between Member States and in the presence of highly differentiated national contexts in a supranational area where some Countries are particularly affected by organized crime and others which are practically immune). The “Lisbonisation” of EUROJUST and the creation of the European Public Prosecutor’s Office are good steps in the right direction but synergies between police and judicial cooperation at EU level are still incomplete and there is no currently an EU Strategy for strengthening the criminal justice area.

Speakers: Luca de Matteis, Lorenzo Salazar, Andrea Venegoni

 Chair: Emilio De Capitani

 Working language: Italian, English

[i] From the EU Charter of Fundamental rights preamble.


Organizational secretary: Fondazione Lelio e Lisli Basso.  Via della Dogana Vecchia, 5 – Roma Tel. 06 6879953 – basso@fondazionebasso.it

Asylum Legislative Package: State of Play (according to the Council of the European Union)

Council Presidency Progress report  Reform of the Common European Asylum System and Resettlement  (Source : Council Document n. 12802/17)

NOTA BENE : Emphasis and links to the Procedural files on the EP Legislative Observatory have been added)


On 4 May and 13 July 2016, the Commission submitted seven legislative proposals aimed at reforming the Common European Asylum System. This package included the recast of the Dublin Regulation and of the Eurodac Regulation, a proposal for a Regulation on the establishment of the European Union Agency for Asylum (EUAA), a proposal for a Regulation establishing a common procedure in the EU, a proposal for a Qualification Regulation, the recast of the Reception Conditions Directive and a proposal for a Regulation establishing a Union Resettlement Framework.

The Estonian Presidency has taken forward the examination of the above-mentioned proposals, initiated by the Netherlands Presidency and continued by the Slovak and Maltese Presidencies. The current progress report builds on the previous report presented to the Council on 9 June, as set out in document 9781/17.


Pursuant to the repeated requests by the European Council on making progress on the EU’s asylum policy and building on the progress made under the Maltese Presidency, the Estonian Presidency has taken forward the discussions with a view to reaching a compromise on the effective application of the principles of solidarity and responsibility. This work has been based on the common understanding of the need to strike the right balance between the principles of responsibility and solidarity and the need to ensure resilience to future crises, as well as on the broad support for a comprehensive approach of which the reform of CEAS is only one aspect.

Building on the elements, which were identified under the Maltese Presidency as the ones, which could attract a good measure of agreement and on those that needed further work, the current Presidency has focused on a number of key specific issues to consolidate the required support.

In the bilateral contacts with delegations, the Presidency has aimed at consolidating the understanding of all the generally stable points and finding as much common ground as possible on issues where the compromise has so far not proved possible.

Based on these contacts, the issue will be further discussed at political level in due course in order to find the right balance that would allow for continuation of the examination of the Commission proposal by the Council preparatory bodies. It has to be stressed that all the aspects of the current reform are interlinked and compromise will be required on all sides in order to establish the required support leading to the reform of the current CEAS.


The proposal on the recast of the Reception Conditions Directive was initially examined by the Asylum Working Party and is currently being pursued by the JHA Counsellors. Progress was made on many aspects of the proposal. However, some issues still need to be tackled, in particular the provisions related to the measures aimed at preventing secondary movements, including the assignment of residence, detention and the reduction and withdrawal of material reception conditions, as well as the provisions on the unaccompanied minors.

The Presidency aims at reaching a partial general approach and at starting negotiations with the EP at the earliest opportunity.


Under Estonian Presidency, a mandate for negotiations with the European Parliament was obtained in Coreper on 19 July 2017. The provisions containing cross-references to other proposals in the CEAS package and specific provisions, which need further discussion in the Council preparatory bodies, are not included in this mandate and are expected to be agreed at a later stage. Two specific issues (the definitions of family members and a new annex, which would contain the various information to be provided to the beneficiaries of international protection) are also not included in the mandate either. The Presidency intends to discuss further these two issues already in October with the aim of including them in a revised mandate by the end of its term.

The trilogues with the European Parliament have started in September 2017. The first discussions highlighted, among others, the following sensitive issues: approximation of both statuses and length of residence permits, Internal Protection Alternative and its application, status reviews for beneficiaries of refugee and subsidiary protection statuses, the possibility for a beneficiary of international protection to remain on the territory of the Member State for three months after the withdrawal of the status on the basis of cessation (“grace period”). On these aspects, the positions of the Council and of the European Parliament are very different and, therefore, complex negotiations are to be envisaged.

The Presidency’s aim is to advance the discussions with the European Parliament as much as possible towards an agreement by the end of its term.


The Estonian Presidency finalised the first examination of the whole proposal on the Asylum Procedure Regulation, in the beginning of September, and started the discussion of the first draft compromise proposals in the Asylum Working Party in the same month. In June 2017, the European Council gave a clear mandate to the Council to align the Commission´s proposal on the Asylum Procedures Regulation, regarding the safe third country concept, with the effective requirements of the Geneva Convention and the EU primary law. In order to identify the best way to fulfil this mandate, the Presidency held a policy debate on this issue in SCIFA (28 September 2017). As a next step, the Presidency aims to redraft the relevant provisions in the Asylum Procedure Regulation. The Presidency intends to pursue the examination of the compromise proposals and to make as much progress as possible towards a general approach.


Following the agreement at Coreper, on 15 June 2017, on an extended mandate for negotiations with the EP and the vote in the LIBE committee, on 30 May 2017, negotiations between the Council and the European Parliament on the recast Eurodac Regulation started in September 2017.

While the positions of both the Council and the EP are rather similar on most provisions of the recast Regulation, access of law enforcement authorities to Eurodac, data retention periods and special provisions relating to minors can be expected to require negotiations that are expected to be more complex. Both co-legislators aim at reaching an agreement on this file before the end of the term of the current Presidency.

As regards the inclusion of data on resettled persons in Eurodac, the Presidency will present drafting proposals to the Council preparatory bodies in order to complete the mandate for negotiations with the European Parliament.

VII.      EUAA REGULATION (COD 2016/0131)

Following the agreement on a partial general approach in Council, on 20 December 2016, the Maltese Presidency started negotiations with the European Parliament in January 2017.

As a result of a series of technical meetings and trilogues, the Maltese Presidency reached an agreement on the enacting terms of the text during the trilogue of 28 June. The Estonian Presidency is currently continuing work at a technical level in order to align the recitals of the text with the main body of the proposal. The issue of references to other proposals in the field of the CEAS that have been placed in square brackets in the Council´s mandate for inter-institutional negotiations still needs to be reflected upon after the end of technical discussions.


JHA Counsellors have pursued the discussion on the Resettlement Framework Regulation and have examined draft compromise proposals at two meetings under the Estonian Presidency (18 September and 3 October).

Progress has already been made on many aspects of the proposal, but there are still some issues that remain open, including the definitions and the scope of “resettlement” and “humanitarian admission” as well as the status given to the persons admitted.

The Presidency is currently working on new compromise proposals in order to make progress in this file at JHA Counsellors level. The Presidency aims to reach a Council´s mandate for starting negotiations with the European Parliament at the earliest opportunity.

CONCLUSION : COREPER and Council are invited to take note of this progress report.




By Szilárd Gáspár-Szilágyi

Opinion 2/15 is already causing quite a stir in legal academia. While some take an EU law perspective, others look at it from the perspective of investment law or public international law. In this short post I will not focus on purely legal issues. Instead, I will look at the Opinion’s effects on the EU’s investment policy and propose a change in the Commission’s approach to the negotiation of international economic agreements.

The Current Approach and Its Drawbacks

 The EU is not new to negotiating preferential trade agreements (PTAs). However, negotiating free trade agreements that include investment chapters (FTIAs), resembling bilateral investment treaties (BITs), is a new and challenging experience for the EU. In its relations with Canada, Vietnam, Singapore, the USA, and Japan the EU has chosen an ‘all-in’ approach, seeking the negotiation and conclusion of comprehensive and lengthy trade agreements which are bolstered with extensive provisions on sustainable development, labour standards, the protection of intellectual property rights, and investment protection.

Combining trade and investment under one roof is not a novel phenomenon. In a previous co‑authored paper, Maxim Usynin and I have analyzed over 150 PTAs world-wide and we found that ever since the dawn of NAFTA, countries and REIOs such as Japan, Canada, US, Australia, and ASEAN have included investment chapters in most of their PTAs, while others, such as India, China, CARICOM, Chile and the EU are increasingly doing so. The reasons for this approach can be plentiful: states might want to export their norms, stronger parties might want to impose pre-existing templates on weaker parties, states might want to replace existing international economic agreements, or it might be more cost effective to conclude one set of negotiations, covering a vast array of fields, instead of having a sector-based approach.

Choosing an ‘all-in’ approach is not in itself problematic, provided that the issues and fields discussed in such agreements are not contentious internationally or domestically. Problems do occur, however, when a contentious issue is included in one of these agreements. According to Putnam’ s seminal article, a country entering into international negotiations takes part in a two-level game because it needs to simultaneously satisfy the international partner(s) and domestic constituencies. If a certain issue covered by the negotiations, such as ISDS, is highly contentious domestically, then the negotiation process might become more time and resource consuming or might even end up in a deadlock. If ISDS is not a contentious issue then the domestic ‘win-set’ for both parties is large and mostly overlapping. Thus, it is highly likely that in such a case the contracting parties will agree on the inclusion of ISDS in the PTA and conclude the agreement in a timely and resource efficient fashion. For example, the China-New Zealand FTA (includes ISDS) was negotiated in only 3 years. However, if ISDS is a contentious domestic issue in State A, but not in State B, then the inclusion of ISDS in the agreement is less certain. The negotiation outcomes in this scenario will vary according to how the perception of the contentious issue in State A changes over time and according to whether State B conditions the existence of the agreement on the inclusion of the contentious issue. In this latter case State B might be willing to change its stance if certain concessions are given by the other party. In case the inclusion of ISDS might compromise the conclusion of the trade agreement or might lead to protracted and costly negotiations, states could choose to have a sequential approach to their economic relationship, as observed in late Chilean FTAs. The parties can include ‘anchor’ clauses on future talks or consultations on investment protection (e.g. Chile-Turkey FTA, Article 61).

In case of the EU one can talk about a multi-level game, in which the Commission – as the EU negotiator – needs to ensure that new international economic agreements satisfy the third-state contracting party, on the one hand, as well as the Member States, their constituencies, and the EU level institutions, on the other. Thus far the Commission’s attempt to satisfy all the different levels is not entirely successful. On the international level contracting parties such as Canada and Singapore are clearly frustrated. In the case of Canada, the 2014 version of the treaty text had to be revised so as to include the EU’s new Investment Court System (ICS) and the negotiations ended up taking seven years. Furthermore, the Belgian and possibly the Slovenian governments are about to ask for a CJEU Opinion on the compatibility of CETA’s ISDS mechanism with EU law. Singapore had to wait two years in order for Opinion 2/15 to be handed down and now it faces a renegotiation of the agreement so as to include the ICS. Furthermore, a Japanese official has recently declared that they would favour a classical type of ISDS mechanism in their FTIA with the EU, instead of the ICS. Even more problems will result from including the ICS in the negotiations with more powerful actors, such as China and the USA (currently on hold). Domestically things do not look brighter. Civil society and NGOs have been protesting against including ISDS in EU FTIAs, followed by groups of academics and regional parliaments.

All in all it is fair to conclude that the inclusion of ISDS and investment protection in EU trade agreements is causing enormous headaches for the Commission, it is tarnishing the EU’s image as a reliable treaty partner and it causes domestic discontent. In light of these, some authors have argued for a removal of ISDS from these agreements.

 Proposal: Split the FTIAs into Separate Trade and Investment Agreements 
Continue reading