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Brexit: can the ECJ get involved?

ORIGINAL TEXT PUBLISHED ON EU LAW ANALYSIS

by Steve Peers

Today’s ruling by the High Court requires the government to obtain approval from Parliament if it wishes to trigger ‘Article 50’, ie the process of withdrawing from the European Union. This short post won’t focus on the national constitutional law issues, but on the process of possible involvement of the EU courts in Brexit disputes.

The government has announced its intention to appeal today’s ruling to the Supreme Court. Some have suggested that the case might then be ‘appealed’ to the ECJ, but this misunderstands the judicial system of the European Union. There is no ‘appeal’ from national courts to the ECJ. Rather a national court may suspend proceedings and ask the ECJ some questions relating to EU law that the national court believes it needs the answers to. After the ECJ gives the answers to those questions, the national court resumes its proceedings and gives its judgment in light of them. The ECJ normally takes about 16 months to give a ruling, although it could (and probably would) fast-track a case raising fundamental questions about Brexit.

What EU law questions arise in this case? The obvious one is whether a notification to leave the EU under Article 50 of the TEU can be revoked once it is given. This is relevant because at the heart of the UK case is a dispute about the ‘royal prerogative’, ie the underlying powers of the UK executive. The royal prerogative allows the executive to conduct international relations, including decisions relating to international treaties. But prior case law makes clear that the prerogative cannot extend to taking away rights conferred by Parliament. The High Court has ruled today that this is what would happen if the executive invoked Article 50, since rights are conferred by the European Communities Act.

Yet logically if an Article 50 notification is revocable, then the decision would arguably not as such necessarily lead to the removal of rights conferred by Parliament. Only the subsequent failure to revoke it would. The High Court assumed in its judgment that the notification was not revocable, but that’s only because the parties agreed on this. The claimants agreed that an Article 50 notification was irrevocable because otherwise it would have weakened their case. The government agreed, perhaps because it would have been politically awkward to argue the opposite.

But it’s not up to parties in a national proceeding to decide on what the correct interpretation of EU law is. Article 267 TFEU says that final national courts must send questions of EU law to the ECJ if necessary to give judgment. So the Supreme Court may decide that it wants to have this question answered.

The revocability of Article 50 is not just an issue in this litigation. It’s a broader political issue, since some politicians would like there to be another referendum before the UK fully leaves the EU, once the public knows the terms of exit. That’s only a feasible suggestion if it is possible to revoke an Article 50 notification once it’s made, given that the EU refuses to discuss the terms of exit with the UK until that notification is made.

What if the Supreme Court decides not to refer to the ECJ – is that the end of the matter? Not quite. Since the ECJ judgment in Kobler, it’s established that a Member State can be liable in damages if its supreme court gets EU law wrong without asking the ECJ questions about it. So individuals could go to a lower UK court claiming damages on this basis, and the lower court might deem it necessary to clarify the point by asking the ECJ about revocability, perhaps ordering the government not to make the Article 50 notification in the meantime.

There are several other possibilities for Brexit issues to come before the CJEU. It might be disputed what could be included within the scope of an Article 50 withdrawal agreement, and in particular whether this must be separate from a treaty on the post-Brexit EU/UK relationship. There might be other issues about that latter treaty; some say that the EU legally cannot negotiate one until the UK has fully left. Many say that the UK cannot negotiate trade deals with non-EU countries until it has left.

How could such issues reach the Court? Article 218 TFEU allows it to rule on future treaties between the EU and non-EU states, so in principle could be used. Any Member State, or the EU Commission, Council or Parliament, could invoke it. A lot of issues arise here, though. Does Article 218 apply to Article 50 at all – since the UK hasn’t left yet, and Article 50 only refers to some parts of Article 218? Is it too soon (for now) to ask about future treaties between the UK and EU, given that notification and negotiations haven’t happened yet?

Alternatively, Article 273 TFEU allows Member States to bring a dispute with each other about issues related to EU law to the CJEU by special agreement. However, the UK would have to be willing to use this provision, and it would have to find another Member State to agree to do so, in order to bring issues before the ECJ.

Other issues may arise about Brexit, even in other Member States’ national courts. An Irish court has already ruled that European Arrest Warrants issued by the UK are still valid in light of Brexit. But this issue is likely to keep arising. UK citizens living in the EU (and vice versa) might want to litigate the argument that they cannot lose their EU citizenship.

In any event, the status of British goods, services and citizens in the remaining EU will doubtless be raised in the EU courts after Brexit, either by means of interpreting EU/UK treaties and/or autonomous EU laws (governing non-EU migration, for instance).

It’s probably only a matter of time before some aspect of the Brexit issue gets decided by the EU courts; and there’s no small irony in that prospect.

BREXIT : UK High court says parliament must vote on triggering article 50

FULL TEXT HERE

Summary of the court judgement

Here is the full text of the official summary (pdf) of the high court judgemen from the Lord Chief Justice (Lord Thomas of Cwmgiedd), the Master of the Rolls (Sir Terence Etherton) and Lord Justice Sales.

The question

1- The issue before the court is whether, as a matter of UK constitutional law, the Government is entitled to give notice of a decision to leave the European Union under Article 50 by exercise of the Crown’s prerogative powers and without reference to Parliament. This is a pure question of law. The court is not concerned with and does not express any view about the merits of leaving the European Union: that is a political issue.

2- It is accepted by all sides that this legal question is properly before the court and justiciable: under the UK constitution, it is one for the court to decide [5]. It turns on the extent of the Crown’s powers under its prerogative [explained at 24-29]. The Government accepts that neither the European Union Referendum Act 2015 nor any other Act of Parliament confers on it statutory authority (as distinct from the Crown’s prerogative power) to give notice under Article 50 [67-72, 76 and 105-108].

Background

3 – On 1 January 1973 the United Kingdom joined what were then the European Communities, including the European Economic Community. Parliament passed the European Communities Act 1972 (1972 Act) to allow that to happen since it was a condition of membership that Community law should be given effect in the domestic law of the United Kingdom and primary legislation was required to achieve this [1 and 36-54]. The European Communities have now become the European Union.

4 – Pursuant to the European Union Referendum Act 2015 a referendum was held on 23 June 2016 on the question whether the United Kingdom should leave or remain in the European Union. The answer given was that the UK should leave [2].

5- The process for withdrawal is governed by Article 50 of the Treaty on European Union, which states that once a Member State gives notice to withdraw there is a two-year period in which to negotiate a withdrawal agreement. If no agreement is reached in this time then, subject only to agreement on an extension of time with the European Council acting unanimously, the EU Treaties shall cease to apply to that State. The Government accepts that a notice under Article 50 cannot be withdrawn once it has been given. It also accepts that Article 50 does not allow a conditional notice to be given: a notice cannot be qualified by stating that Parliament is required to approve any withdrawal agreement made in the course of Article 50 negotiations [9-17].

6 – Therefore, once notice is given under Article 50, some rights under EU law as incorporated into domestic law by the 1972 Act would inevitably be lost once the Article 50 withdrawal process is completed [57-66].

The constitutional principles

7 – The most fundamental rule of the UK’s constitution is that Parliament is sovereign and can make and unmake any law it chooses. As an aspect of the sovereignty of Parliament it has been established for hundreds of years that the Crown – i.e. the Government of the day – cannot by exercise of prerogative powers override legislation enacted by Parliament. This principle is of critical importance and sets the context for the general rule on which the Government seeks to rely – that normally the conduct of international relations and the making and unmaking of treaties are taken to be matters falling within the scope of the Crown’s prerogative powers. That general rule exists precisely because the exercise of such prerogative powers has no effect on domestic law, including as laid down by Parliament in legislation [18-36].

8 – In the present case, however, the Government accepts, and indeed positively contends, that if notice is given under Article 50 it will inevitably have the effect of changing domestic law. Those elements of EU law which Parliament has made part of domestic law by enactment of the 1972 Act will in due course cease to have effect [76-80].

9 – The central contention of the Government in the present case is that Parliament must be taken to have intended when it enacted the 1972 Act that the Crown would retain its prerogative power to effect a withdrawal from the Community Treaties (now the EU Treaties), and thereby intended that the Crown should have the power to choose whether EU law should continue to have effect in the domestic law of the UK or not [76-81].

Conclusion

10 – The Court does not accept the argument put forward by the Government. There is nothing in the text of the 1972 Act to support it. In the judgment of the Court the argument is contrary both to the language used by Parliament in the 1972 Act and to the fundamental constitutional principles of the sovereignty of Parliament and the absence of any entitlement on the part of the Crown to change domestic law by the exercise of its prerogative powers [82-94, 97-104]. The Court expressly accepts the principal argument of the claimants [95-96].

11 – For the reasons set out in the judgment, we decide that the Government does not have power under the Crown’s prerogative to give notice pursuant to Article 50 for the UK to withdraw from the European Union.

A guide to EU procedures for the conclusion of international trade agreements (EP Briefing)

ORIGINAL PUBLISHED HERE

by Laura Puccio (European Parliament Members’ Research Service)

SUMMARY

The European Union (EU) was the world’s biggest exporter and importer of goods and services in 2015, representing 32.51 % of global trade in goods and services. The USA and China, meanwhile, accounted for 12.01 % and 10.68 % respectively. The EU has been negotiating trade agreements since the 1970s, then as the European Communities. Over time it has diversified its trading partners, and is now negotiating trade agreements with partners from every continent. The content of trade agreements has also evolved as EU trade competences have developed. The EU is currently in the process of amending and modernising some of its older trade agreements and is working on some of the most ambitious trade agreements since its inception (such as the Comprehensive Economic and Trade Agreement (CETA) with Canada and the Transatlantic Trade and Investment Partnership (TTIP) with the USA).The Lisbon Treaty modified both the EU’s competences in trade and the procedure for concluding trade agreements, giving a stronger role to the European Parliament. This briefing looks at how trade negotiations are conducted and concluded in the EU, and discusses some of the key issues in the current EU trade policy debate.

In this briefing:

1.Background
2.Negotiations
3.EU competences, mixed agreements and the legal basis for Council decisions regarding trade agreements
4. Signature and provisional application
5. Conclusion of trade agreements

Background

In 2015, the EU-28 was the largest global exporter and importer of goods and services, representing 32.51 % of total world trade in goods and services (Source: World Bank data), while the US and China represented 12.01 % and 10.68 % respectively.
The EU has been negotiating trade agreements since the 1970s, back then as the European Communities. Originally focused on European, African, Caribbean and Pacific (ACP) and Mediterranean trade partners, the EU now negotiates with partners on every continent. From the point of view of substance, the content of trade agreements has evolved, from mainly agreements on trade in goods, instituting free trade areas, to agreements including WTO+ commitments¹ in a wide range of areas (such as services, intellectual property rights, investment and regulatory cooperation). The EU has started a great number of negotiations in order either to modernise older agreements (such as those with Mediterranean countries and with Mexico and Chile), or to negotiate new bilateral agreements with Asian, Oceanic and North American partners, as well as to advance the multilateral trading system (through the Trade in Services Agreement (TiSA) or the Environmental Goods Agreement (EGA) for instance).
The evolution in the content of trade agreements reflects that of EU competences in trade, but has raised several questions as to whether the more recent agreements fall entirely within EU competence and, consequently, whether ratification at national level is required. Moreover, growing criticism and political debate at national level have raised some procedural issues, such as whether an individual EU Member State can stop EU negotiations, and what happens if one Member State does not ratify a trade agreement.
The procedures for concluding international agreements are mainly set out in Article 218 of the Treaty on the Functioning of the European Union (TFEU). In the case of trade agreements, rules are also to be found in the specific provisions of Article 207 (TFEU) dealing with common commercial policy and any other article mentioned as a legal basis in the Council decisions to sign and to conclude a given trade agreement.

Figure 1: State of play of EU trade relations

eu-trade

Source: European Commission, DG Trade, 2016.

EPRS EU procedures for conclusion of international trade agreements

treatiesworkflow1

Negotiations

TTIP negotiations: can a single Member State stop the negotiations?

The negotiating directive establishing the Commission negotiating mandate for TTIP was adopted by the Council on 17 June 2013, launching the negotiations. The EU and the USA concluded the 15th round of negotiations in October 2016.

At the end of August 2016, the French minister for foreign trade expressed his government’s wish to request a halt in the TTIP negotiations at the informal Council meeting of 22-23 September. Member States are divided on the issue and 12 Member States clearly expressed their opposition to the French proposal. After the meeting on 23 September, the Slovak Prime Minister declared that the TTIP negotiations would continue but that it was unrealistic to finalise an agreement before the end of US President Barack Obama’s term in office.

The Council can withdraw or suspend the negotiating mandate for a trade negotiation but only on the basis of Article 218 TFEU, which requires a qualified majority (see below for details of the Council’s voting procedure). In general, the Council always tries to take decisions by consensus (i.e. with the agreement of all parties) if the decision concerns shared competences.

Before negotiations begin, the Commission first holds a public consultation and conducts what is known as a scoping exercise. The scoping exercise is a series of informal dialogues with the other country (or countries, if the agreement is inter-regional) on what could be the broad lines of the content of the negotiations between the parties.

If after the scoping exercise the Commission considers it appropriate to open negotiations on a trade agreement with the country/countries, it then makes recommendations to that end to the Council on the basis of Article 207(3) TFEU. The Council must give a green light to the start of the negotiations by adopting a decision on the basis of Articles 207(3) and 218(2) TFEU. The Council also issues a negotiating mandate detailing the area in which the Commission is authorised to negotiate.

Under Article 207(3) TFEU, the Commission is in charge of conducting negotiations, reporting to the Council’s Trade Policy Committee (TPC). The negotiating team is led by a chief negotiator and includes experts covering all the topics of the negotiation. While the Commission’s DG Trade takes the lead, experts may come from other DGs within the Commission. Negotiations are conducted in rounds, but meetings and contacts between lead negotiators and experts continue outside these. In its guide to trade negotiation procedures, the Commission considers the duration of negotiations to be two to three years on average. The negotiations are conducted on the basis of multiple and specific negotiating directives that the Council issues on the basis of Articles 207 and 218 TFEU. These frame the position that the EU must hold during the negotiations.

With TTIP, the Commission began publishing the EU’s text proposals online; these are the EU’s proposals for the drafting of concrete provisions within the various chapters of the agreement. The text proposals that the Commission drafts must be agreed with the Council before they can be tabled for discussions with the other party (parties) to the negotiations.

Often forgotten but fundamental, Article 207(3) makes the Council and Commission jointly responsible for ensuring that the agreement negotiated is compatible with internal EU policies and rules.

The European Parliament’s role in negotiations

While the European Parliament has no formal role in starting and conducting trade negotiations, the TFEU imposes a duty of information: the European Parliament must be informed immediately and fully at all stages of the procedures. Moreover, the fact that the European Parliament has to give its consent at the end of the negotiations, has made it necessary to discuss some EU positions in the negotiations with the European Parliament first, in order for the Commission to verify the existence of political support. The Commission therefore reports regularly to both the European Parliament and the TPC. While it has no legal obligation to do so, Parliament will often signal its political position by issuing a resolution. In the past, the European Parliament has adopted resolutions on the opening of negotiations, either prior to or after the issuing of the negotiating mandate These resolutions give an initial sense of Parliament’s political stance on the negotiations, and set out the main concerns that Parliament wants the Commission to include or exclude from the scope of the negotiations (e.g. the resolution adopted on TTIP in 2013). EP resolutions can be issued during the negotiations in order for Parliament to give the Commission recommendations on the future development of the negotiations (e.g. the resolution adopted on TTIP in 2015). The Commission is not legally bound to follow the EP’s recommendations but given that EP consent is needed to adopt the agreement, it does take them into account when devising the EU positions and discussing them with the Council or the other party.

Ex ante sustainability impact assessments during the negotiations have become the norm for all major multilateral and bilateral EU trade negotiations since 1999, when the EU began incorporating the concept of sustainable development into the definition and planning of its trade policy. Sustainability impact assessments (SIAs) comprise a consultation process and analysis by independent organisations (think-tanks or universities) to assess the potential economic, social, human rights and environmental impacts that a trade agreement could have. SIAs are carried out after the scoping exercise, as the latter defines the scope of the negotiations and will indirectly define the SIA’s coverage.

When negotiations reach the final stage, i.e. parties have agreed in principle on a single text, the European Parliament and Council are informed and legal scrubbing starts to ensure that the text is legally coherent. Some minor changes may still occur at this stage. Once legal scrubbing is complete, the text is initialled, i.e. the chief negotiators from each party place their initials on every page of the agreement to signify that this is the agreed text. Initialling does not amount to the text being legally binding. In order to enter into force an agreement must be signed and ratified. To start such a procedure, the EU needs to define the legal basis for the trade agreement, which determine who has competence in the EU to ratify the treaty.

EU competences, mixed agreements and the legal basis for Council decisions regarding trade agreements

The various types of EU competence and their implications for trade agreements

The EU is based on the principle of conferral; in other words the EU acts within the limits of the competences conferred upon it by the Treaties. There are different types of competence that can influence the way in which procedures for concluding an agreement unfold. These are: exclusive competences,² shared competences³ and concurrent competences.⁴ Whenever an international agreement includes shared competences or concurrent competences or Member States’ competences, then the agreement is said to be ‘mixed’. Whenever a trade agreement also contains provisions belonging to shared competences, it is concluded as a mixed agreement. While for agreements falling under exclusive EU competence the EU ratification procedure (explained below) is sufficient to ensure the entry into force of the agreement, mixed agreements must be ratified by EU Member States in accordance with their domestic ratification procedures. Domestic procedures vary from Member State to Member State. In federal Member States, ratification procedures also involve approval by the chamber of the national parliament representing the regions (such as the Bundesrat in Germany) or the approval of the regional and community parliaments (as in the case of Belgium), whenever competences of sub-federal entities are concerned by the agreement. While mixed agreements concluded by the EU and only some EU Member States (called partial or incomplete mixity) do exist, trade agreements concluded as mixed agreements (such as association agreements) require the participation of all Member States.

The evolution of trade competences and recent EU trade agreements

The common commercial policy (CCP), which defines EU trade policy, has always been an exclusive competence of the EU, however the content of the CCP has evolved over time. While services and intellectual property rights were originally considered shared competences, the Lisbon Treaty includes all services and commercial aspects of intellectual property rights within the CCP’s scope (Article 207(1) TFEU).

Article 207(1) TFEU also introduces foreign direct investment to the list of CCP competences. This evolution in the scope of CCP has led the Commission to consider whether it can conclude that some trade agreements focusing on purely commercial matters (including investment provisions) fall under exclusive EU competence. The argument of the Commission is contested by most Member States who consider that those agreements must be concluded as mixed. The main controversy between the Council and the Commission concerns whether investment now falls under exclusive EU competence. On the one hand, Member States consider that CCP covers only foreign direct investment (FDI) and not portfolio investments. However the Commission derives an implicit exclusive competence on portfolio investments from third countries from a rule in the internal market prohibiting the introduction of barriers at Member State level to capital flows and payments from third countries. For that reason the European Commission asked for an opinion of the Court of Justice of the EU (CJEU) to decide on the nature of the EU competence to conclude the EU-Singapore agreement. A hearing has been held and the opinion is expected for either late 2016 or early 2017. The CJEU opinion will formally only affect the EU-Singapore agreement, but could influence the choice of the competence (exclusive or mixed) for other agreements (such as the EU-Vietnam agreement).

The concept of mixity in EU agreements and the choice of legal basis

The decision with respect to the mixed character of an agreement depends on the legal basis given to that agreement, which also defines the main competences involved. When the Commission proposes a Council decision to sign, conclude or provisionally apply a Treaty, it must also propose a legal basis, which will define the nature of the agreement (exclusive or mixed). The legal basis is usually discussed with Member States and it is normally in the Commission’s interests to agree with the Member States on this point.

The Council can always modify the Commission proposal in accordance with Article 293(1) TFEU, which requires unanimity. A proposal can remain blocked if the Council decides not to act. This can happen in situations where the Council is divided on the issue of legal basis (i.e. no unanimity is reached to modify the Commission proposal), and it cannot reach a qualified majority (or unanimity, depending on the procedure required by the legal basis in the original proposal) to pass the act as is. In that case, the Commission can modify its proposal at any time in order to unblock the situation (Article 293(2) TFEU).

Understanding the political and legal implications of the legal basis: the case of CETA

There were divergent opinions on whether the Comprehensive Economic and Trade Agreement negotiated between the EU and Canada should be concluded as a mixed agreement. The Commission considered that CETA fell under exclusive EU competence as in the case of the EU-Singapore agreement. The Commission was reported therefore to favour the idea of submitting a Council decision on CETA as an EU-only agreement with CCP as the sole legal basis. However, after discussing the matter informally with the Member States, the Commission ultimately decided to submit it as a mixed agreement. (See also: W. Schöllmann, Is CETA a mixed agreement?, EPRS ‘at a glance’ note, July 2016)

Signature and provisional application

Once the Council has adopted the decision to sign the treaty, a date for its signature can be chosen. In practice, for mixed agreements, the EU and the Member States sign the treaty simultaneously. Signature signals the intention to conclude, it does not conclude the agreement as such.

The possibility for an international treaty to apply provisionally under EU law is set out under Article 218(5) TFEU, which provides for the Council decision on provisional application to be taken simultaneously with the Council decision to sign the treaty.

In theory, under Article 218(5) TFEU, the decision on provisional application can take place even before the treaty is concluded at EU level, i.e. before the EP gives its consent and the Council adopts the decision to conclude the treaty in accordance with Article 218(6). However, in practice (since the South Korea FTA),⁵ provisional application is enforced only after hearing the European Parliament’s position on the agreement or even only after the European Parliament has given its consent to conclusion. Consequently, the Commission normally submits the draft decisions to the Council simultaneously: the draft decision to sign, that to provisionally apply the treaty and one for the conclusion of the treaty.

CETA: provisional application

Provisional application of CETA will be effective from the first day of the month after the parties have notified each other that they have completed the domestic procedures necessary for provisional application. The procedure in the EU is contained in Article 218(5) TFEU. In line with EU practice, the decision on the provisional application of CETA, if adopted by the Council, will be applied only after the EP has taken a position on the agreement.

The main discussions in Council concerning the provisional application of CETA focus on its scope. The draft Council decision on provisional application of CETA, submitted by the Commission, does not refer to any specific provisions, thus provisional application would refer to the whole treaty.

In order to modify the scope of this decision, the Council needs to act by unanimity (pursuant to Article 293(1) TFEU) or has to agree with the Commission that it submit a new proposal for a Council decision. Furthermore, partial provisional application requires the agreement of Canada. Indeed under Article 30(7)(3)(b) CETA, Canada can object to partial provisional application of the treaty and either decide not to allow provisional application of the treaty or to propose unilaterally to exclude equivalent provisions from provisional application.

While a decision on the matter is yet to be reached, a proposal was circulated in the Council on 5 October 2016. This would exclude, inter alia, part of the investment and financial services chapters. It also requires provisional application of sustainable development chapters, as only provisions falling under EU competences, as these do, can be provisionally applied.

The provisional application of mixed agreements negotiated by the EU takes place, however, before the completion of ratification procedures at the Member State level. This makes sense as the entire rationale of provisional application is to allow for application while waiting for the completion of the ratification procedure. However provisional application under Article 218(5) TFEU can only be granted for provisions relating to EU competence and cannot include Member State competences unless all the Member States have agreed to it separately. Decisions on the provisional application of a mixed agreement in its entirety usually include a statement clarifying that Member States have given their agreement with respect to their competences.

Conclusion of trade agreements

For trade agreements, the special procedure under Article 218(6) TFEU is applied. This procedure requires the European Parliament’s consent.⁶ Once Parliament has given its consent, the Council can then adopt a decision to conclude the agreement following the procedure and voting rules set out in Article 218(6) and Article 218(8) TFEU respectively. As mentioned above, mixed agreements also require the agreement to be ratified at national level by Member States. In the case of mixed agreements, the treaty enters into force only when the non-EU trade partner, the EU and all Member States have exchanged ratification instruments.

Voting procedure in the Council

Voting procedure in Council under Article 218(8) TFEU

EU-Ukraine Association Agreement: provisional application and ratification procedure

The EU-Ukraine Association Agreement, negotiated between 2007 and 2012, has been partly provisionally applied since 2014, while the provisional application of the commercial part of the Association Agreement began on 1 January 2016. The provisional application currently applies only to EU competences. In order to enter fully into force, the EU-Ukraine Association Agreement, being a mixed agreement, requires the ratification procedure to be complete at EU and also at Member State level. At EU level, the EP has given its consent for the Council to conclude the agreement in two different resolutions (one covering treatment of third-country nationals and one covering the other provisions). The Council is waiting for the Member States to finalise the ratification process in order to formally adopt its decision on the conclusion of the agreement. All Member States, with the exception of the Netherlands, have ratified the Treaty.

The Netherlands held an advisory referendum on the EU-Ukraine Association Agreement on 6 April 2016, which yielded a negative result (over 61 % of the voters rejected the ratification of the Association Agreement (AA) between the EU and Ukraine, though turnout was low, at only 32 %). The referendum was an advisory referendum and as such has not put an end to the ratification procedure in the Netherlands. However, should the Netherlands notify its intention not to ratify the agreement, this would then signify that the EU-Ukraine Association Agreement could not enter into force in its present form. Under Article 25 of the Vienna Convention on the Law of Treaties, provisional application can only remain pending the entry into force of a treaty. If ratification fails and entry into force of the treaty becomes impossible, provisional application would also have to be lifted. Suspension of the provisional application would have to be carried out in accordance with Article 218(9) TFEU and the notification procedure under Article 486(7) of the EU-Ukraine Association Agreement. As has been done in the past, the Commission could argue on the basis of the duty of cooperation that the provisional application, which concerns EU competences only, should be maintained in order to allow renegotiation and to find a mutually acceptable solution.

The voting rule for Council decisions is contained in Article 218(8) TFEU. It refers to the Council voting procedure throughout the entire process of negotiating and concluding international agreements under Article 218 TFEU. These voting rules therefore apply equally to Council decisions taken pursuant to Article 218(5) TFEU in order to sign and provisionally apply a treaty, and to Council decisions taken pursuant to Article 218(6) TFEU to conclude an agreement. Although in practice the Council tries to take all decisions regarding shared competences on the basis of the ‘common accord’ of all Member States (i.e. by consensus), the voting procedure under the TFEU does not depend on the nature of the agreement but on the competences and legal basis upon which the agreement is adopted.

Article 218(8) TFEU states that qualified majority must be used throughout international agreement negotiation and conclusion procedures. There are some exceptions to this qualified majority rule; these include the following situations or agreements.

Fields for which unanimity is required for the adoption of a Union act: Any measure which requires unanimity for the purpose of EU internal legislation, will also require unanimity for any decisions taken under Article 218 TFEU. In practice, this rule provides for parallel decision-making on external policy and EU internal legislative procedures. This rule on parallelism ensures that the EU internal legislation procedure requiring unanimity for certain measures is not circumvented by the conclusion of similar measures within an international agreement under Article 218 TFEU.
Association agreements
Agreements referred to in Article 212 TFEU (i.e. economic, financial and technical cooperation arrangements) with states that are candidates for accession
Accession of the Union to the European Convention for the Protection of Human Rights and Fundamental Freedoms.⁷

The parallel internal and external decision-making provided for under Article 218(8) TFEU requires analysis of all fields mentioned in the legal basis chosen for the decisions to sign and conclude the agreement in order to understand which voting rule applies.

The trade legal basis under Article 207 TFEU and its voting procedure

The relevant rules for common commercial policy agreements and measures always include Article 207(4) TFEU (in addition to other legal bases, such as the transport legal basis in CETA). Article 207(4) TFEU normally requires qualified majority but it specifies that the Council must take its decision by unanimity for the following measures.

In the field of trade in services and the commercial aspects of intellectual property, as well as foreign direct investment, where such agreements include provisions for which unanimity is required for the adoption of internal rules: this is another formulation of the parallelism between internal and external decision-making procedures in order to avoid circumvention of unanimity in the internal rules via external relations agreements. However, the impact of this provision may be rather limited. There are few internal legal bases requiring unanimity in these fields. Article 118 TFEU requires unanimity only for regulations establishing language arrangements for European intellectual property rights, whereas qualified majority remains the rule under the same Article 118 TFEU for measures establishing the creation of measures for the ‘uniform protection of intellectual property rights throughout the Union and for the setting up of centralised Union-wide authorisation, coordination and supervision arrangements’.⁸ Other internal market provisions requiring unanimity include: Article 113 TFEU on tax harmonisation, Article 115 TFEU on approximation of laws and Article 64(2) TFEU on the introduction of restrictions to capital movements.⁹ If the agreement in question incorporates provisions covering one of these types of measure then unanimity will be required.
Unanimity is also required for EU actions in the field of trade in cultural and audiovisual services where there is a risk of prejudicing the Union’s cultural diversity. Again this provision has a rather limited impact on the conclusion of trade agreements. Unanimity only applies if there are measures related to trade in cultural and audiovisual services and where there is risk of prejudicing the Union’s cultural The EU has sometimes omitted the field of cultural and audiovisual services from negotiations in its entirety (exception culturelle) as is the case for TTIP (where the audiovisual sector is excluded from the negotiating mandate). Other agreements include a protocol on cultural cooperation aiming for instance to implement, in the context of those agreements, the Unesco Convention on the Protection and Promotion of the Diversity of Cultural Expressions. Still, even in those agreements where provision is made for cultural cooperation, cultural and audiovisual services are carved out from the services commitments or are included in specific reservations so that there can be no risk of prejudicing cultural diversity.
Unanimity is also required for EU actions in the field of trade in social, education and health services where there is a serious risk of disturbing the organisation of these services at national level. These social, education and health services are subject to several reservations in the Treaties so as to prevent trade agreement commitments from having any negative impact on them.

Main references

Devuyst, Youri, ‘European Union Law and Practice in the Negotiation and Conclusion of International Trade Agreements’, Journal of International Business and Law, 12: 259 (2013)
Eeckhout, Piet, EU External Relations Law, Oxford University Press, 2011
Hillion, Christophe, Koutrakos, Panos, Mixed Agreements Revisited, Hart Publishing, 2010
Koutrakos, Panos, EU International Relations Law, Hart Publishing, 2015Endnotes
¹ WTO+ commitments are commitments in trade agreements that go beyond those made at the WTO. In some literature a distinction is made between commitments in trade agreements that extend liberalisation commitments already existing at WTO level (WTO+) and commitments that deal with issues not covered by WTO law (WTO extra).
See: H. Horn, P. C. Mavroidis and A. Sapir, ‘EU and US Preferential Trade Agreements’, in Preferential Trade Agreements: A Law and Economics Analysis, Kyle W. Bagwell, Petros C. Mavroidis (eds), Cambridge University Press, 2011.
² Exclusive competences of the EU signify a complete transfer of competences from the Member States to the EU; the existence of an EU exclusive competence means that Member States cannot act on their own unless an EU regulation allows for Member State actions.
³ Shared competences are competences that fall within the remit of both the EU and the Member States. EU action in these competences pre-empts any action on the part of the Member States, in other words, Member States cannot act unilaterally if action is being undertaken at EU level.
⁴ Concurrent competences are EU competences to support, coordinate or supplement Member States’ action; these EU competences co-exist with Member States’ competences.
⁵ Youri Devuyst, ‘The European Parliament and International Trade Agreements: Practice after the Lisbon Treaty’, in The European Union in the World: Essays in honour of Marc Maresceau, I. Govaere, E. Lannon, P. Elseweghe and S. Adam (eds), Martinus Nijhoff Publisher, 2014.
⁶ Parliament gives its consent in accordance with Rules 108 and 99 of its Rules of Procedure.
⁷ The Court of Justice of the European Union issued an opinion in 2014 on the draft agreement for EU accession to the ECHR, considering it not in line with EU law.
⁸ On the relevance or not of this provision to the decision-making procedure under Article 218(8) TFEU, see C Pitschas, ‘Economic Partnership Agreement and EU trade policy: objectives, competences, and implementation’, in J. Drexl, EU bilateral trade agreements and intellectual property for the better or worse, H. Grosse, R. Khan, S. Nadde-Phlix (eds)
Springer, 2013, p. 222.
⁹ See also: Panos Koutrakos, EU International Relations Law, Hart Publishing, 2015, p. 135.

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Worth reading : The text of the CETA Agreement and of the EU-Canada Joint Declaration

NOTA BENE : The Council adopted the Decisions authorising the signature and provisional application of CETA between the European Union and its Member States and Canada and agreed to forward the agreement to the European Parliament for its consent. The Council agreed that, pursuant to Article 1.2 of the Council Decision on provisional application, the date by which the notification referred to in Article 30.7(3) of the Agreement is to be sent to Canada shall be 17 February 2017, provided that the European Parliament has given its consent to the Agreement.

The negotiations on the Strategic Partnership Agreement (SPA) between the European Union and its Member States, of the one part, and Canada, of the other part, were successfully concluded with the initialling of the Agreement on 8 September 2014. On 13 April 2015, the Commission and the High Representative for Foreign Affairs and Security Policy submitted a joint proposal for a Council Decision on the signing, on behalf of the European Union, and provisional application of the Agreement (Doc. 7906/15 + ADD 1) The Transatlantic Relations Working Party (COTRA) discussed the draft Council Decision on numerous occasions in 2015 and 2016, in particular the scope of provisional application of the Strategic Partnership Agreement (SPA). As no consensus could be obtained either on the original proposal or on a proposal for a “category approach”, which aimed at an ambitious and flexible provisional application of the Agreement, the COTRA Working Party agreed to revert to the usual “list approach” for provisional application, whereby those articles to be provisionally applied are expressly listed in the Council Decision.

On 7 September 2016, the Permanent Representatives’ Committee reached an agreement on the text of the draft Council Decision on the signing and provisional application of the Agreement. The text of the Strategic Partnership Agreement (SPA) between the European Union and its Member States, of the one part, and Canada, of the other part, as finalised by the legal-linguistic experts, is set out in doc. 5368/2/16 REV 2 (SEE BELOW)

At the time of the signature the following Joint Decalaration has been adopted

XVI EU-CANADA SUMMIT Brussels, 30 October 2016 JOINT DECLARATION
Continue reading “Worth reading : The text of the CETA Agreement and of the EU-Canada Joint Declaration”

‘I Travel, therefore I Am a Suspect’: an overview of the EU PNR Directive

ORIGINAL PUBLISHED ON EU Immigration and Asylum Law and Policy BLOG

By Niovi Vavoula, Queen Mary University of London

According to the PNR (Passenger Name Record) Directive 2016/681 of 27 April2016, a series of everyday data of all air passengers (third-country nationals but also EU citizens, including those on intra-Schengen flights) will soon be transferred to specialised units to be analysed in order to identify persons of interest in relation to terrorist offences and other serious crimes. This new instrument raises once again fundamental rights challenges posed by its future operation, particularly in relation to privacy and citizenship rights. Therefore, the story of the PNR Directive, as described below, is probably not finished as such concerns open up the possibility of a future involvement of the Court of Justice.

1. The story behind the EU PNR System

In the aftermath of 9/11 and under the direct influence of how the terrorist attacks took place, the US legislature established inextricable links between the movement of passengers, ‘border security’ and the effective fight against international terrorism. Strong emphasis was placed on prevention through pre-screening of passengers, cross-checking against national databases and identification of suspicious behaviours through dubious profiling techniques. At the heart of this pre-emptive logic has been the adoption of legislation obliging airlines flying into the US to provide their domestic authorities with a wide range of everyday data on their passengers. These so-called PNR data constitute records of each passenger’s travel arrangements and contain the information necessary for air carriers to manage flight reservations and check-in systems. Under this umbrella definition, a broad array of data may be included: from information on name, passport, means of payment, travel arrangements and contact details to dietary requirements and requests for special assistance. Amidst concerns regarding the compliance of such mechanisms with EU privacy and data protection standards, this model was internalized at EU level through the conclusion of three PNR Agreements with the US – one in 2004, which wasstruck down by the CJEU in 2006, and others in 2007 and 2012. In addition, PNR Agreements with Canada (currently awaiting litigation before the CJEU) andAustralia have also been adopted.

The idea of developing a similar system to process EU air travel data had been on the agenda for almost a decade, particularly since the EU-US PNR Agreements contain reciprocity clauses referring to the possibility of the EU developing such systems. The first proposal for a Framework Decision dates back to 2007. However, no agreement was reached until the entry into force of the Lisbon Treaty. A revised proposal was released in 2011, essentially mimicking the EU-US PNR model, at least as regards the types of data to be processed and the focus on assessing the risks attached to passengers as a mean of preventing terrorist attacks or other serious crimes. In comparison to the proposed Framework Decision it constituted an improvement (for instance, it provided for a reduced retention period and prohibited the processing of sensitive data), yet it was met with great scepticism by a number of EU actors, including the European Data Protection Supervisor, the Fundamental Rights Agency and the Article 29 Working Party who argued that it failed to respect the principles of necessity and proportionality. Eventually, the proposal was rejected by the European Parliament on fundamental rights grounds, but the voting was postponed and the proposal was transferred back to the LIBE Committee.

The EU PNR project was brought back to life after the Charlie Hebdo events in January 2015. In the extraordinary JHA Council meeting of 20 November, immediately after the Paris terrorist attacks, the Council reiterated ‘the urgency and priority to finalise an ambitious EU PNR before the end of 2015’. Indeed, on 4 December 2015 a compromise text was agreed. A few days later, the Council confirmed the agreement, but the Parliament did not give its blessing until April 2016, presumably in the light of the negotiations on the Data Protection legislative reforms, which were running in parallel. The fact that the legality of the EU-Canada PNR Agreement was disputed did not affect the course of the negotiations.

2. The EU PNR Directive in a nutshell

The EU PNR Directive places a duty on airline carriers operating international flights between the EU and third countries to forward PNR data of all passengers (as set out in Annex 1) to the Passenger Information Unit (PIU) established at domestic level for this purpose (Article 4). According to Article 2 of the Directive, Member States are given the discretion to extend the regime set out in the Directive to intra-EU flights, or to a selection of them (for a discussion see Council Documents 8016/11 and 9103/11, partly accessible). Perhaps unsurprisingly, all participating Member States have declared their intention to make use of their discretion.

Once transmitted, the data will be stored and analysed by the PIU. The purpose of this is to ‘identify persons who were previously unsuspected of involvement in terrorism or serious crime’ and require further examination by the competent authorities in relation to the offences listed in Annex II of the Directive. Contrary to the Commission’s assertions that PNR data will be used in different ways – reactively, pro-actively and in real-time – the focus on prevention is central. The analysis entails a risk assessment of all passengers prior to their travel on the basis of predetermined criteria to be decided by the respective PIU and possibly involving cross-checking with existing blacklists (Article 6(3)).

Furthermore, the PIUs will respond to requests by national authorities to access the data on a case-by-case basis and subject to sufficient indication (Article 6(2(b)). Nevertheless, processing should not take place on the basis of sensitive data revealing race, ethnic origin, religion or belief, political or any other opinion, trade union membership, health or sexual orientation etc. (Recital 20). According to Article 12, the initial retention period is six months, after which PNR data will be depersonalised, meaning that the PIU is entrusted with the task of masking out the names, address and contact information, payment information, frequent flyer information, general remarks and all API data. This process should not be confused with anonymisation, as the data could be re-identifiable and may still be used for criminal law purposes under ‘very strict and limited conditions’ (Recital 25). Therefore, upon expiry of the six-month retention period, disclosure of the full PNR data is permitted if so approved by a judicial authority or another national authority competent to review whether the conditions have been met and subject to information and ex post review by the Data Protection Officer of the PIU (Articles 12(3) and 5).

3. Privacy and surveillance of movement

The challenges that the development of the EU PNR system poses to the protection of privacy and data protection rights are acute. In essence, as with thePNR Agreements, the Directive allows the systematic, blanket and indiscriminate transfer, storage and further processing of a wide range of personal data of millions of travellers from and to the EU. Drawing from Digital Rights Ireland and the recent opinion of AG Mengozzi on the EU-Canada PNR Agreement, the interference with the rights to privacy (Article 7 EUCFR and 8 ECHR) and data protection (Article 8 EUCFR) is particularly serious. On the basis of the data collected, which include biographic information, credit card details and contact information, law enforcement authorities shall be able to compile a rather complete profile of travellers’ private lives.

The involvement of the private sector in the fight against terrorism and serious crime is considerably extended, particularly if one takes into account that the obligations on air carriers are extended to non-carrier economic operators (e.g. travel agencies). In addition, the inclusion of intra-EU flights within the scope of the Directive significantly expands the reach of surveillance. Indeed, back in 2011, it was noted that intra-EU flights represent the majority of EU flights (42%) followed by international flights (36%), and only 22% of flights operate within a single Member State (Council Document 8016/11). In this framework, the movement of the vast majority of travellers, including EU citizens, is placed under constant monitoring, irrespective of the fact that they are a priori innocent and not suspected of any criminal offence. In fact, the operation of the PNR scheme signifies the reversal of the presumption of innocence, whereby everyone is deemed as a potential security risk, thus necessitating their examination in order to confirm or rebut this presumption. Besides, there is no differentiation between flights transporting persons at risk and others.

Furthermore, the risk assessment will take place in a highly obscure manner, particularly since the Directive fails to prescribe comprehensively and in detail how the data will be analysed. The underlying rationale is the profiling of all passengers and the identifying of behavioural patterns in a probabilistic logic, but nowhere in the Directive it is indicated that this is indeed the case. This lack of clarity raises concerns considering that the recently adopted Data Protection Directive includes a definition of profiling (Article 3(4)). Moreover, it is stated that ‘relevant databases’ may be consulted, however, it is not clear which these are. For instance, a possible examination on a routine basis of the databases storing asylum seekers’ fingerprints’ or visa applicants’ data (Eurodac and VIS respectively) will frustrate their legal framework, resulting in a domino effect of multiple function creeps. It may even grow the appetite for Member States to desire the systematic processing of EU nationals’ personal data in centralised databases in the name of a more ‘efficient’ fight against terrorism.

This ambiguous modus operandi of PIUs may even call into question the extent to which the interference with privacy is ‘in accordance with law’ (Article 8(2) ECHR) or in EU terms ‘provided for by law’ (Article 52(1) EU Charter). According to settled case law of the ECtHR, every piece of legislation should meet the requirements of accessibility and foreseeability as to its effects (Rotaru v Romania). The lack of clear rules as to how the processing of data will take place may suggest that travellers cannot foresee the full extent of the legislation.

Another contested issue is the ambiguous definitions of terrorism and serious crimes at EU level. The offences falling under the remits of terrorism are currently revised, which had led to criticism for lack of clarity, whereas the definition of serious offences (acts punishable by a custodial sentence or detention order of a maximum period of three years or longer) constitutes a relatively low threshold, particularly in those Member States where domestic criminal law allows for potentially long custodial sentences for minor crimes. In addition, as regards the conditions of access by national competent authorities, the requirement that the request must be based on ‘sufficient indication’ seems to falls short of the criteria established in Digital Rights Ireland. The threshold is particularly low and may lead to generalised consultation by law enforcement authorities, whereas it is uncertain who will check that there is indeed sufficient indication. As for the offences covered by the scope of the Directive, although Annex II sets out a list in this regard, PNR data could still be used for other offences, including minor ones, when these are detected in the course of enforcement action further to the initial processing.

Moreover, in relation to the period for which the data will be retained, it appears that the EU institutions by no means have a clear understanding of what constitutes a proportionate retention period. For instance, the 2007 proposal envisaged an extensive retention period of five years, after which time the data would be depersonalised and kept for another eight years, whereas the 2011 proposal prescribed a significantly reduced initial retention period of 30 days, after which the data would be anonymised and kept for a further period of five years. In its General Approach (Council Document 14740/15), the Council called for an extension of the initial retention period to two years, followed by another three years of storage for depersonalised data. A more privacy-friendly approach can be found in an Opinion of the Council Legal Service dating from 2011, according to which the data of passengers in risky flights would be initially retained for 30 days and then be held for an overall period of six months (Council Document 8850/11 – in German). Some Member States supported a retention period of less than 30 days (Council Document 11392/11). Although it is welcomed that there are two sets of deadlines and, more importantly, that re-personalisation may take place only under limited circumstances. However, there is no indication of why the chosen retention periods are proportionate. Furthermore, an approach suggesting a differentiation between flights at risk or not at risk, with different retention periods, seems more balanced.

4. Free movement and citizenship concerns

In addition to the privacy challenges highlighted above, another point of concern is whether the processing of PNR data, including on intra-EU flights, could infringe free movement enjoyed by EU citizens. In this respect, the Commission Legal Service found that the EU PNR does not obstruct free movement (see Council Document 8230/11, which is partially available to the public, although the outcome of the opinion is attested in Council Document 8016/11). Nonetheless, the Parliament managed to include a reference that any assessments on the basis of PNR data shall not jeopardise the right of entry to the territory of the Member States concerned (in Article 4). The extent to which this reference is sufficient is doubtful.

According to Article 21 of the Schengen Borders Code, police controls performed in the territory of a Member State are allowed insofar as they do not have the equivalent effect of border control. Such an effect is precluded when, inter alia, the checks are carried out on the basis of spot-checks. In Melki, the CJEU found that ‘controls on board an international train or on a toll motorway’ limiting their application to the border region ‘might (…) constitute evidence of the existence of such an equivalent effect’ (para 72). By analogy, the focus on controls at the border area to the systematic manner set out in the directive, could have the equivalent effect of a border check. The lack of any differentiation between flights at risk or not at risk (an approach that was also favoured by the Council Legal Service, Council Document 8850/11) and the fact that member States are left entirely free to determine the extent to which they monitor flights to and from other Member States could enhance the risk of falling into the category of controls with an equivalent effect to border control.

5. Conclusion

The EU PNR Directive is yet another example of how the counter-terrorism rhetoric outweighs serious fundamental rights concerns in the name of ensuring security. The storyline is well-known: after a terrorist attack, numerous ideas – either incorporated in legislative proposals that have stalled or which were ultimately too ambitious and controversial to be presented in the first place – feature on the EU agenda. The EU PNR initiative was buried due to privacy concerns and was brought back from the dead when the circumstances matured. Soon national law enforcement authorities will put their hand into the passengers’ data jar and will deploy their surveillance techniques on an unprecedented and unpredictable scale.

By internalising US standards, the EU puts the privacy of individuals under threat. The new instrument does no longer target third-country nationals only, but also EU citizens, thus marking the end of an era where instruments were used ‘solely’ on foreigners. Undoubtedly, there is a strong ‘momentum’ for justifying mass surveillance practices. In waiting for the ruling on the EU-Canada PNR Agreement, as well as the ruling on Tele2 Sverige (following up on Digital Rights Ireland), one can only hope that the CJEU will uphold its inspiring reasoning and reiterate the important limits placed on deploying surveillance practices, by giving proper weight to the fundamental right to the protection of personal data.

Scotland and Brexit: Brave Heart or Timorous Beastie?

ORIGINAL PUBLISHED ON EU LAW ANALYSIS (13/10/16)

by Steve Peers

At the Scottish National Party (SNP) party conference yesterday, Scotland’s First Minister (Nicola Sturgeon) announced that the Scottish Government would issue a draft of a second independence referendum bill next week. She also announced that the Scottish government would soon table an alternative plan “to protect Scotland’s interests in [the EU] and keep us in the single market – even if the rest of the UK decides to leave”. This would entail “substantial additional powers for the Scottish Parliament”, namely all the Scottish powers that “currently lie with the EU – and significant new powers”, namely the power to negotiate international treaties and “greater powers over immigration”.

Implicitly the Scottish government is offering the UK government a choice: negotiate to ensure that Scotland stays in the single market as a distinct part of the UK, or face another independence referendum. I’ll examine the legal issues arising from these two options in turn, and conclude with some broader observations about the Brexit process compared to the prospect of Scottish independence.

Scotland in the UK – and the single market

Is EU single market participation possible if a) Scotland stays in the UK, and b) the UK as a whole is not in the single market anymore? Some people have called this prospect a ‘reverse Greenland’, referring to the deal whereby Greenland left the EU but Denmark stayed in. Given the huge differences between Greenland and Scotland, I suggest we call this idea by a different name: say the ‘Scottish Economic Area’. I have written about this prospect separately in iScot magazine, but I will summarise my points again here.

Only independent countries which are EU members can fully participate in EU membership. But in theory at least, a part of a non-EU country could participate in the internal market, even if the rest of that non-EU country did not. Of course, the EU and the UK’s Westminster government would have to consent to this in as part of their post-Brexit treaty, and it could only work if there was significant related devolution to Scotland, as the First Minister suggested.

What would it mean in practical terms? The ‘single market’ consists of the free movement of goods, services, persons and capital, which includes the freedom of establishment of companies and the self-employed. To facilitate all this, there’s extensive EU legislation setting common standards for many industries. The single market also includes common rules on competition law and state aid to industry. But a number of rules on other matters (such as trade with non-EU countries) are not necessarily part of it. Full participation in the single market goes further than a free trade agreement with the EU which the Westminster government currently seems likely to prefer, as it will abolish more non-tariff barriers to the trade of goods and services. For instance, most free trade agreements don’t give as much access to financial services markets as single market participation does. So if Scotland is in the single market and the rest of the UK is not, more financial services businesses may stay in Edinburgh, or move from London to Edinburgh rather than to the EU.

Is this feasible in practice though? The easy part would be applying EU laws in Scotland which only have domestic effect, like consumer, environmental and labour law. When it comes to laws with a cross-border effect on trade between Scotland and the EU, such as financial services market access, it would be necessary to define exactly when a firm was based in Scotland (benefitting from single market participation in the Scottish Economic Area), and when it was based in the rest of the UK (subject to a less favourable trade agreement).

The most difficult issues relate to movement of goods and people. Would different rules on Scottish/EU relations compared to the relations between the EU and rest of the UK mean that there would need to be border controls between Scotland and the rest of the UK? On this point, the Westminster government has promised there will be no border controls between Northern Ireland and the Republic of Ireland, even though that border will become an EU/non-EU border. Surely whatever deal is reached to this end could be adapted for use at the Scotland/England land border too.

The Scottish government would not have a direct role in EU decision-making. But it could be given the same role as Norway and Iceland have in their single market treaty with the EU (discussed further below): consultation on proposed EU laws, the power to reject them (although that’s subject to the risk of retaliation), and participation in the EFTA Court that decides on single market disputes as regards Norway and Iceland.

The suggestion above is undeniably complex, although the whole Brexit process is complex anyway. However, the idea isn’t all or nothing: it would be possible in theory for Scotland to participate fully in parts of the single market, rather than all of it like Norway and Iceland.

Independent Scotland Continue reading “Scotland and Brexit: Brave Heart or Timorous Beastie?”

Meijers Committee on EU latest proposals on “Dublin”, Eurodac and European Asylum Agency.

ORIGINAL DOCUMENT ACCESSIBLE HERE

CM1609: Note on the proposed reforms of the Dublin Regulaton (COM (2016) 197), the Eurodac recast proposal (COM (2016) 272 fnal), and the proposal for an EU Asylum Agency (COM(2016)271 fnal)

Comments on the Dublin recast proposal

General observatons

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

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

The Meijers Commitee wishes to add that Dublin’s ineffectiveness not only results from the difficulty of effectuating transfers but also from a general failure to initiate Dublin procedures, because asylum seekers have not been registered upon entering the EU. It is well known, not only that asylum seekers may seek to avoid registration, but that some Member States also disregard their obligation to register asylum seekers – some even on a large scale. It has been estimated, for example, that only half the persons entering Italy and applying for asylum somewhere in the EU were registered in that country¹In 2014, the proportion of physical Dublin transfers to the number of applicants for international protection in the EU was about 4 %, which suggests that Dublin is applied in far fewer cases than all those to which it is in fact applicable.²

To remedy these shortcomings, the Commission proposes two options: 1. Supplementing the present system with a corrective fairness mechanism, or 2. A new system for allocating asylum applications in the EU based on a distribution key. Because the second option would be difficult to envisage in the short or medium term, the Commission has chosen to pursue the first one.

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

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

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

Detailed observatons

Continue reading “Meijers Committee on EU latest proposals on “Dublin”, Eurodac and European Asylum Agency.”

Frontières de l’Union : chronique d’une « recommandation » annoncée ou la flétrissure

ORIGINAL PUBLISHED ON GDR SITE

par Nuno Piçarra, Omnia, Université de Lisbonne

Le 12 mai 2016, le Conseil a adopté la décision d’exécution 2016/894 « arrêtant une recommandation relative à la réintroduction temporaire du contrôle aux frontières intérieures en cas de circonstances exceptionnelles mettant en péril le fonctionnement global de l’espace Schengen » (ci-après, « décision d’exécution »). Celle-ci se base notamment sur l’article 29 du Code frontières Schengen (ci-après, « CFS ») qui prévoit une « procédure spécifique » tendant à la réintroduction d’un tel contrôle. C’est la première fois que cette procédure, ajoutée au CFS par le règlement n°1051/2013, trouve à s’appliquer.

1. La décision d’exécution 2016/894 du Conseil : recommandations et obligations pour les États Schengen concernés

Concrètement, le Conseil a recommandé qu’à partir du 12 mai 2016 et pendant une durée maximale de six mois, « des contrôles temporaires et proportionnés » soient maintenus (i) par l’Allemagne, à la frontière terrestre avec l’Autriche ; (ii) par l’Autriche, aux frontières terrestres avec la Hongrie et la Slovénie ; (iii) par le Danemark, dans les ports depuis lesquels sont assurées des liaisons par transbordeur vers l’Allemagne, et à la frontière terrestre avec l’Allemagne ; (iv) par la Suède, dans les ports situés dans les régions de police Sud et Ouest, et au pont de Öresund ; (v) par la Norvège, dans les ports depuis lesquels sont assurées des liaisons par transbordeur vers le Danemark, l’Allemagne et la Suède.

La Norvège n’étant pas un État membre de l’UE mais un « pays associé à l’application de l’acquis de Schengen », l’expression « États membres concernés » utilisée par la décision d’exécution, doit être entendue dans le sens de « États de l’espace Schengen » ou simplement « États Schengen ».

Au 12 mai 2016, les cinq États concernés effectuaient déjà des contrôles à leurs frontières intérieures en réponse, selon la décision d’exécution, « à une menace grave pour leur ordre public ou leur sécurité intérieure causée par les mouvements secondaires de migrants en situation irrégulière consécutifs aux défaillances graves dans les contrôles aux frontières extérieures. (…) ces mesures sont nécessaires et considérées comme proportionnées » (attendu 11).

Outre la recommandation de maintien du contrôle aux frontières intérieures identifiées, la décision d’exécution établit de vraies et propres obligations pour les cinq États concernés.

La première est, toutefois, d’exécution difficile voire impossible dans la mesure où, selon le texte qui l’établit, « avant de mettre en place de tels contrôles, les États membres concernés devraient procéder à des échanges de vues avec l’État (les États) membre(s) voisin(s) concerné(s) afin de s’assurer que ces contrôles ne sont effectués que sur les tronçons de la frontière intérieure où ils sont jugés nécessaires et proportionnés, conformément au code frontières Schengen ».

En fait, ce que la décision d’exécution recommande aux cinq États concernés est, non pas de « mettre en place », mais plutôt de « maintenir » des contrôles aux frontières intérieures qui ont été mis en place à partir de septembre 2015. Pour accomplir rigoureusement l’obligation dont il s’agit, il faudrait donc supprimer ou suspendre au préalable ces contrôles afin que l’« échange de vues » puisse avoir lieu avant leur mise en place. Ceci se heurterait, néanmoins, à un obstacle juridique supplémentaire : la décision d’exécution ayant été adoptée le 12 mai 2016 et devant s’appliquer à partir de cette même date, l’échange de vues préalable qu’elle impose ne sauraient s’effectuer en temps utile.

La deuxième obligation imposée aux États concernés est celle de notifier aux autres États Schengen, au Parlement européen et à la Commission « leur décision » de maintenir les contrôles recommandés. C’est, d’ailleurs, ce que prévoit l’article 29, paragraphe 2, quatrième alinéa, CFS. Toutefois, le même article prévoit également au paragraphe 3 que, « en cas de non application par un État membre de la recommandation visée au paragraphe 2, celui-ci en communique sans tarder les motifs par écrit à la Commission ».

Dès lors que la décision d’exécution reprend dans son texte la première disposition citée du CFS, elle aurait dû reprendre également la seconde, pour des raisons de cohérence et de complétude liées au principe de légalité. Et cela même si le Conseil était persuadé que, dans le cas d’espèce, aucun des États concernés ne se prévaudrait de la possibilité prévue par l’article 29, paragraphe 3, CFS pour refuser l’application de la recommandation.

Finalement, la décision d’exécution oblige chaque État concerné à « réexaminer régulièrement la nécessité, la fréquence, le lieu et la durée des contrôles, adapter ces derniers au niveau de la menace à laquelle ils visent à répondre, les supprimant progressivement s’il y a lieu (…) ». Il est ainsi rappelé que les critères fournis par les articles 26 et 30 CFS pour la prise d’une décision de réintroduction temporaire du contrôle aux frontières intérieures « sur tous les tronçons ou sur certains tronçons spécifiques » s’appliquent aussi en aval d’une telle décision.

2. La pratique de réintroduction, par les États Schengen concernés, du contrôle à leurs frontières intérieures avant la décision d’exécution

La date du 12 mai 2016 coïncide précisément avec celle à partir de laquelle l’Allemagne a cessé de pouvoir se prévaloir des dispositions du CFS qu’elle avait invoquées depuis le 13 septembre 2015 – et ce dans le contexte de la « crise des migrants et des réfugiés sans précédent » – pour réintroduire le contrôle à toutes ses frontières intérieures et en particulier à celle avec l’Autriche. L’exemple de l’Allemagne a été suivi trois jours plus tard par l’Autriche, le 12 novembre par la Suède, le 26 novembre par la Norvège et le 4 janvier 2016 para le Danemark.

Dans un premier temps, tous ces États se sont prévalus de l’actuel article 28 CFS, qui établit une procédure spécifique pour la réintroduction exceptionnelle et temporaire du contrôle aux frontières intérieures dans les cas nécessitant une action immédiate. Toutefois, en vertu du même article, la durée totale de cette réintroduction ne peut pas dépasser les deux mois.

Dans ces conditions, l’Allemagne le 14 novembre 2015, l’Autriche le 16 novembre suivant, la Suède le 9 janvier 2016, la Norvège le 15 janvier et le Danemark le 4 mars se sont prévalus des articles 25 à 27 CFS pour maintenir le contrôle à leurs frontières intérieures. Ces articles établissent les conditions et les limites à la réintroduction temporaire d’un tel contrôle en cas d’évènements prévisibles.

Le 23 octobre 2015, la Commission a émis un avis sur la nécessité et la proportionnalité du contrôle aux frontières intérieures réintroduit par l’Allemagne et l’Autriche ainsi que de ses prolongations. Ce contrôle a été considéré conforme au CFS. [C(2015) 7100]. Parmi les commentateurs, il a été relevé que l’avis de la Commission tend à assimiler le franchissement des frontières extérieures par un grand nombre de ressortissants de pays tiers à une menace pour l’ordre public et la sécurité intérieure, même si des preuves de risques liés à la criminalité organisée ou au terrorisme n’ont pas été apportées (voir Evelien Brouwer, « Migration flows and the reintroduction of internal border controls: assessing necessity and proportionality », 2015, et bibliographie y citée).

En vertu de l’article 25, paragraphe 4, CFS, la durée totale de la réintroduction du contrôle aux frontières intérieures en cas d’évènements prévisibles ne peut excéder six mois. Par conséquent, à partir du 12 mai 2016, l’Allemagne cesserait de pouvoir invoquer les articles 25 à 27 CFS pour maintenir le contrôle à ses frontières intérieures. Il en irait de même pour l’Autriche le 15 mai, pour la Suède le 9 juillet, pour la Norvège le 15 juillet et pour le Danemark le 4 août 2016.

Dans ces conditions, la seule possibilité légale pour les États concernés de maintenir le contrôle à leurs frontières intérieures est de le baser sur les articles 29-30 CFS. En effet, en vertu de ces dispositions, la durée totale de la réintroduction de ce contrôle peut être étendue à une durée maximale de deux ans (article 29, paragraphe 1, in fine).

3. L’autre État Schengen concerné par la décision d’exécution : la Grèce. Questions de légalité

La réintroduction ou le maintien du contrôle, par un État Schengen, à ses frontières intérieures conformément à l’article 29 CFS présuppose, outre une recommandation du Conseil sur une proposition de la Commission, l’imputation à un autre ou à d’autres États Schengen des « manquements graves persistants liés au contrôle aux frontières extérieures », à la suite d’une évaluation effectuée en application du règlement nº 1053/2013. Plus précisément, la première condition pour déclencher la procédure prévue à l’article 29 est la persistance de ces manquements, constatée par la Commission au terme d’un délai de trois mois à compter de la date à laquelle l’État Schengen concerné a fait rapport sur la mise en oeuvre de son «plan d’action destiné à remédier à tout manquement constaté dans le rapport d’évaluation ». Ce plan d’action, à son tour, doit être présenté dans un délai d’un mois à compter des recommandations concernant les mesures correctives des manquements en cause, adoptées par le Conseil sur une proposition de la Commission (article 21, paragraphe 3, CFS).

À cette première condition d’ordre simultanément substantiel et procédural, vient s’ajouter une deuxième, d’ordre substantiel : les « manquements graves persistants dans l’exécution du contrôle aux frontières extérieures» constatés par la Commission à l’égard d’un État Schengen doivent « mettre en péril le fonctionnement global de l’espace sans contrôle aux frontières intérieures ». En d’autres mots, ils doivent représenter « une menace grave pour l’ordre public ou la sécurité intérieure » dans cet espace ou sur certains de ses tronçons. Par ailleurs, une telle menace doit s’avérer insusceptible d’être effectivement atténuée, soit par le déploiement d’équipes européennes de gardes-frontières aux frontières extérieures de l’État Schengen en cause, soit par la présentation à Frontex des plans stratégiques basés sur une évaluation des risques, soit par toute autre mesure.

Aux termes de l’article 29 CFS, la réintroduction du contrôle aux frontières intérieures ne peut être recommandée par le Conseil qu’« en dernier ressort et à titre de mesure de protection des intérêts communs au sein de l’espace sans contrôle aux frontières intérieures » face aux manquements graves constatés. Une telle réintroduction doit être évaluée au regard de son adéquation pour « remédier correctement à la menace pour l’ordre public ou pour la sécurité intérieure au sein d’un tel espace », ainsi que de sa proportionnalité. À cette fin il doit être tenu compte, notamment, de la disponibilité de mesures de soutien technique ou financier auxquelles il serait possible de recourir ou auxquelles il a été recouru au niveau national ou au niveau de l’Union, ou à ces deux niveaux, ainsi que de l’incidence probable de la réintroduction du contrôle sur la libre circulation des personnes au sein de l’espace Schengen (article 30, paragraphe 1).

Les conditions extrêmement restrictives pour l’application de cette procédure spécifique de réintroduction ou de maintien du contrôle aux frontières intérieures portent à croire qu’une telle procédure serait surtout destinée à jouer un rôle préventif d’avertissement aux États Schengen pour qu’ils prennent effectivement au sérieux leurs obligations communes de vérification et de surveillance à leurs frontières extérieures, en abandonnant toute pratique incompatible.

Quoi qu’il en soit, l’application de l’article 29 permet de vouer un État Schengen à l’ostracisme et à l’exclusion, jusqu’à deux ans, de l’espace sans contrôle aux frontières intérieures. Il suffit que le Conseil recommande à tous les autres États Schengen de réintroduire le contrôle à leurs frontières communes avec le premier et que tous ces États décident de suivre une telle recommandation. Celle-ci jouera en pratique le rôle de mesure réactive de type sanctionnateur (voir en ce sens Henri Labayle, « Schengen : un espace dans l’impasse », Revue Europe, 2016).

Il convient de rappeler, par ailleurs, que dans le cadre du contentieux franco-italien de 2011 (concernant la réintroduction par la France des contrôles à sa frontière commune avec l’Italie, suite à l’arrivée d’un grand nombre de migrants en provenance de la Tunisie au territoire italien), le Conseil européen du 23-24 juin 2011, secondé par la Commission [COM(2011) 561 final], a proposé l’introduction dans le CFS d’une « clause de sauvegarde » d’application tendanciellement automatique « afin d’autoriser, à titre exceptionnel, le rétablissement des contrôles aux frontières intérieures en cas de situation véritablement critique, lorsqu’un Etat membre n’est plus en mesure de respecter ses obligations au titre des règles Schengen », quelle qu’en soit la cause (voir « Internal border controls in the Schengen area: Is Schengen crisis-proof? » Study for the LIBE committee, 2016, p. 23-25).

Ce n’est donc qu’en faisant une inexplicable table rase soit du contenu que peut revêtir une recommandation du Conseil basée sur l’article 29 CFS, soit des travaux préparatoires concernant cette disposition, que la Commission peut affirmer qu’une telle mesure « n’est pas une sanction à l’encontre d’un ou de plusieurs États membres, pas plus qu’elle ne vise à exclure quelque État membre que se soit de l’espace Schengen », mais simplement « une mesure visant à préserver le fonctionnement global» de cet espace [COM (2016)120 final].

L’application pratique de l’article 29 devient d’autant plus problématique que celui-ci ne fait pas une distinction que la « crise des migrants et des réfugiés sans précédent », survenue au cours de 2015, a rendu indispensable et urgente. Il s’agit de la distinction entre, d’une part, les « manquements graves persistants dans l’exécution du contrôle aux frontières extérieures », susceptibles d’être évités à travers d’une « diligence moyenne » de la part de l’État Schengen concerné et, d’autre part, les manquements du même type qui sont manifestement hors du contrôle de cet État, en raison notamment de l’ampleur, de l’intensité et de la persistance de la pression migratoire à ses frontières extérieures maritimes et terrestres, ainsi que de l’insuffisance au moins provisoirement insurmontable des moyens humains et matériels pour leur faire face.

Cette dernière situation, frôlant le cas de force majeure, a été vécue par la Grèce surtout à partir de septembre 2015 et au moins jusqu’à « la mise en œuvre initiale de la déclaration UE-Turquie du 18 mars 2016 ». Ce n’est donc nullement par hasard que la Grèce est le sixième État Schengen concerné para la décision d’exécution. Celle-ci lui impute des manquements graves persistants dans l’exécution des contrôles à ses frontières extérieures, certains desquels persistent et mettent en péril le fonctionnement global de l’espace Schengen.

À cet égard, la question essentielle de savoir si d’autres États Schengen ont pu manquer à leur devoir de solidarité vers la Grèce n’est même pas soulevée. La décision d’exécution se limite à relever que « du fait de sa situation géographique, la République hellénique est particulièrement touchée par [la crise des migrants et des réfugiés sans précédent] et a dû faire face à une augmentation spectaculaire du nombre de migrants arrivant sur les îles de la mer Égée », la zone la plus exposée (attendu 2). Le mot « spectaculaire » apparaît assez malheureux dans ce contexte. Le bon mot serait sans doute « incontrôlable ».

Cette critique d’ordre terminologique n’est sûrement pas la seule susceptible d’être adressée à la décision d’exécution, qui vise avant tout à légitimer, au regard du CFS, le maintien du contrôle, par les cinq États concernés, à leurs frontières intérieures au de-là du 12 mai 2016. Il convient surtout de vérifier si cette décision respecte intégralement les conditions prévues par l’article 29 CFS pour imputer en même temps à la Grèce des manquements graves persistants dans l’exécution du contrôle à ses frontières extérieures, représentant « une menace grave pour l’ordre public ou la sécurité intérieure» dans l’espace Schengen ou sur des tronçons de cet espace, qu’aucune autre mesure « ne peut effectivement atténuer ». Cette imputation constitue en effet une conditio sine qua non pour le maintien du contrôle aux frontières intérieures recommandé par le Conseil.

Or, c’est la décision d’exécution elle-même qui, dans son attendu 13, lance des doutes considérables à cet égard : « La République hellénique a accompli des progrès importants dans la correction de nombreux manquements que présente la gestion de ses frontières extérieures, constatés au cours de l’évaluation de novembre 2015. En outre, la mise en œuvre initiale de la déclaration UE-Turquie du 18 mars 2016 ainsi que les opérations en cours menées par Frontex et l’OTAN ont entraîné une diminution sensible du nombre de migrants en situation irrégulière et de demandeurs d’asile qui partent de la Turquie pour gagner la République hellénique. Cette réduction substantielle du flux de migrants en situation irrégulière et de demandeurs d’asile vers la République hellénique, ainsi que le soutien apporté par les agences de l’Union européenne et d’autres États membres dans les centres d’enregistrement, ont permis à la République hellénique d’améliorer sensiblement l’enregistrement des migrants en situation irrégulière et des demandeurs d’asile nouvellement arrivés » (italiques ajoutés).

Au vu de ces constatations – et si les mots employés par le Conseil ont un sens précis –, il n’est pas du tout évident que la conclusion puisse être celle qui est tirée à l’attendu 16 : « comme aucune autre mesure n’a pu effectivement atténuer la menace grave constatée, il s’ensuit que les conditions pour appliquer l’article 29 (…) en dernier recours sont remplies ». En effet, plusieurs mesures ont pu effectivement atténuer la dite « menace grave », même si, le cas échéant, elles ne l’auraient pas totalement éliminée. En tout état de cause, ce n’est pas cette dernière exigence que fait l’article 29, même si dans sa proposition de décision d’exécution [COM (2016) 275 final, p. 5] la Commission semble utiliser ces deux verbes comme synonymes.

Dans ce contexte, la décision d’exécution reproche encore à la Grèce le fait que la surveillance à sa frontière avec l’ancienne République yougoslave de Macédoine « n’est actuellement pas totalement conforme au code frontières Schengen » (attendu 14). Comment pourrait-elle l’être dans l’immédiat si ce pays tiers a carrément fermé cette frontière commune avec la Grèce pour des périodes considérables, en bloquant sur le territoire grec les migrants et requérants de protection internationale désireux de la franchir ?

Toujours selon la décision d’exécution, « Cette situation accroît le risque de mouvements secondaires de migrants vers d’autres États membres ». Toutefois, pour que « le risque persistant de mouvements secondaires de migrants en situation irrégulière » (que la décision d’exécution ne cherche même pas à démontrer,) puisse légitimer le maintien du contrôle aux frontières intérieures en cause, il faudrait également examiner au préalable, au regard du principe de proportionnalité. son « incidence probable » sur la libre circulation des personnes au sein de l’espace Schengen [article 30, paragraphe 1, lettre c), CFS]. C’est un exercice que la décision en cause a manifestement omis de faire, dans la mesure où elle a accepté sans plus les justifications fournies par les cinq États destinataires de la recommandation.

Par ailleurs, pour ce qui est de la légalité procédurale de la décision d’exécution, il semble également critiquable qu’elle ait été adoptée avant l’expiration du délai de trois mois prévu par l’article 16, paragraphe 4, du règlement nº 1053/2013 pour que, à la suite des recommandations de mesures correctives adoptées par le Conseil le 12 février 2016, la Grèce rende compte de la mise en oeuvre de son plan d’action. Ce délai expirerai précisément le 12 mai 2016. Toutefois, dès lors que la Grèce avait fait ce compte-rendu le 26 avril, la Commission a estimé qu’elle « ne devrait pas attendre l’expiration du délai de trois mois pour évaluer si, au 12 mai 2016, la situation persistera (…) ». Le 4 mai elle a présenté sa proposition de « recommandation annoncée » au Conseil.

Ces anticipations ne semblent pourtant pas compatibles au moins avec l’esprit de l’article 29 CFS – qui exige que l’État Schengen dont le contrôle à ses frontières extérieures a été considéré gravement défaillant puisse avoir une opportunité effective d’essayer de résoudre tous les problèmes jusqu’à l’expiration des délais prévus à cette fin (voir dans ce sens Steve Peers, EU Justice and Home Affairs Law, Volume I, Oxford : OUP, 2016, p. 113).

Il est certes vrai que, nonobstant la menace grave et nullement atténuée imputée illégalement à la Grèce, la décision d’exécution n’a pas recommandé aux cinq États concernés de réintroduire le contrôle à leurs frontières communes avec la Grèce, lesquelles ne comprennent pas des frontières terrestres. Cette décision ignore ainsi la relation directe établie, bien ou mal, par l’article 29 entre défaillances qualifiées dans les contrôles aux frontières extérieures d’un État Schengen et réintroduction/maintien, par d’autres, du contrôle aux frontières intérieures avec premier.

Il ne s’ensuit cependant pas que, dans cette mesure, la décision d’exécution doive être considérée aussi illégale. En effet, l’article 29 ne semble pas exiger que, en cas de constatation de manquements graves liés au contrôle des frontières extérieures, mettant en péril le fonctionnement global de l’espace Schengen, la réintroduction du contrôle aux frontières intérieures qui peut en découler, le cas échéant, doive comprendre forcément l’État qui a fait l’objet d’une telle constatation.

Quoi qu’il en soit, même si dans le cas d’espèce la Grèce n’a pas été exactement suspendue de l’espace Schengen voire vouée à l’ostracisme, il n’en reste pas moins qu’en passant, la décision d’exécution produit sur elle l’effet d’une flétrissure, avec tout ce que cela implique du point de vue de la confiance mutuelle, sans laquelle l’espace Schengen ne peut pas subsister.

Est cela le signe d’un temps où, s’agissant de la refondation de l’Union européenne souhaitée par certains, la Grèce ainsi que d’autres États membres n’auront pas de place en pied d’égalité, et la Commission, au lieu de maintenir son rôle essentiel de « gardienne des traités », assumera le rôle d’adjoint d’un Conseil « directorial » ? Ou (et) s’agit-t-il d’un signe d’un temps où l’Union européenne se permet déjà de traiter plus sévèrement les États membres dont les gouvernements ne reflètent pas intégralement des partis ouverts aux « grandes coalitions », au sens germanique de l’expression ?

Will UK citizens have to pay to visit the EU after Brexit?

ORIGINAL PUBLISHED ON EU LAW ANALYSIS

by Steve Peers

Following a Guardian article on Saturday, and the Home Secretary’s confirmation on Sunday, it’s clear that the EU is planning to institute some kind of Electronic System of Travel Authorisation (ESTA) in future, which could well apply to UK citizens visiting the EU after Brexit. I’ll examine the background, context and consequences in this post.

Background

What is an ESTA?

First of all, let’s establish what an ESTA is not. It’s not a means of regulating longer-term migration as such, although there is an indirect link between long-term migration rules and ESTA systems, as discussed below. Rather it’s a means of regulating short-term visits for tourism or other reasons.

Nor is an ESTA a tourist visa. A lot of people have confused it with one, perhaps because a Guardian sub-editor initially put an inaccurate headline on the original story (I see the online headline has since been corrected). A tourist visa is a bigger hassle for visitors than an ESTA, since travellers must visit a consulate or pay an agency to handle their application. It entails higher fees and a longer waiting period, and probably a bigger risk of rejection.

During the Brexit referendum campaign, the prospect of a visa regime between the UK and EU was not raised by the Leave side generally. However, it was raised by a junior minister, Dominic Raab, and at the time I trashed the idea here. Since then, Theresa May has shown sufficient judgment to return Raab to the backbenches, so hopefully we have heard the last of this idea for a while.

So what is an ESTA? It’s a way of gathering travellers’ information in advance of travel, usually for citizens of countries subject to a visa waiver, for instance the USA and Japan. In fact, the best-known example of an ESTA is the American version, although there are several other countries with one. If a traveller fails to complete an ESTA in advance of travel, they will likely be denied boarding or admission at the border. The US version includes a fee for administration and tourism promotion. Usually the form is completed, and the fee paid, online. It’s recommended to complete the ESTA form several days in advance, although on my last trip to the USA, I did it just before dashing out of the house to catch my plane. (I am not suggesting this as best practice).

The EU context

The EU has been considering an ESTA for a while. It would form part of the Schengen system of standardised external border controls, which are paralleled by the abolition (in principle) of internal border controls between Schengen States. The Schengen states comprise all the EU countries except Ireland – although Romania, Bulgaria, Cyprus and Croatia do not fully participate yet – plus four non-EU Schengen associates (Norway, Iceland, Switzerland and Liechtenstein).

A key feature of EU law in this area is that the Schengen system interacts with EU free movement law. So because the UK and Ireland have signed up to the free movement of EU citizens as EU Member States, their citizens are fast-tracked across the Schengen external borders. The same is true of the Schengen associates, because they have all signed up to free movement of their citizens with the EU as well.

Other non-EU citizens are subject to more intensive checks at the Schengen external border, as set out in the Schengen Borders Code. There’s a simple reason for this: they don’t have an underlying right to stay in the country, whereas citizens of EU Member States and the Schengen associates do – subject to exceptions. There are also distinctions between non-EU countries: some (like the US or Canada) have a visa waiver from the Schengen countries, while others (like India and China) don’t.

An ESTA was first discussed in a Commission discussion paper back in 2008. This was followed up by a very detailed study in 2011 which recommended against the idea, after which the Commission dismissed it. In 2013, the Commission decided instead to propose an entry-exit system, which would record the movements of non-EU citizens (besides the Schengen associates) into and out of the Schengen external borders. Discussions on that proposal moved slowly, and the Commission proposed a new version of it in spring 2016. The intention is to agree on this system by the end of the year, although it will take several years afterward to get the system up and running in practice.

At the same time, the Commission revived talk of a possible EU ESTA, in a discussion paper on EU information systems. This excited many Member States, as can be seen by a Dutch EU Council Presidency paper published in the spring, which argued that the system could be a quid pro quo for visa waivers with countries like Ukraine and Turkey. Now the idea is on the agenda for the summit of the ‘EU27’ (ie the EU without the UK) to be held this week. It is being pushed by France and Germany in particular. Surely only a cynic would link this to the upcoming elections in those countries…

Consequences

Like the entry-exit system, an EU ESTA would take some time to set up. The details of how it would work would remain to be determined: the Commission is due to make a proposal this autumn, which would then be agreed by the Council (only Schengen States get a vote, so not the UK) and the European Parliament. So it might not follow the US model exactly, in terms of fees or the link to the broader border control system, or the two-year period of validity.

For one thing, some of the EU documents suggest an EU ESTA will apply at external land borders, whereas the US system does not. Also, some EU papers suggest an ESTA will be used as a method of screening people and denying them entry in advance, while others refer to it simply as generating information for border guards to use to speed up their work. It’s not clear whether an ESTA would apply to those UK citizens who live in the EU already, if they (for instance) visited the UK and then returned to France.

But it does seem very likely that it will apply to all non-EU countries which don’t have a treaty on free movement of citizens with the EU. This would follow the existing model of the Schengen Borders Code, the Schengen Information System (which includes data on non-EU citizens to be refused entry) and the proposed entry-exit system. It’s simply common sense: fast-track entry at the border for those who are not subject in principle to immigration controls, but scrutiny at the border (or in advance of it) for those who are.

It’s been suggested that the application of an EU ESTA to the UK would be an act of ‘spite’. This is simply ridiculous. If a country leaves the EU, it leaves behind both the pros and cons of membership. In short: divorce doesn’t come with bed privileges.

Many on the Leave side argued that the UK should leave the EU and then stop applying free movement law, so that it could exercise more control over EU citizens at the border. Applying an EU ESTA to UK citizens would just be exactly the same principle in reverse. Equally UK citizens would no longer be fast-tracked at Schengen external borders, would be subject to the EU entry-exit system and (for a few) would be listed in the Schengen Information System as people to be denied entry into any Schengen State. This isn’t ‘scaremongering’: it’s simply a description of existing and proposed EU law.

So will the UK be subject to an EU ESTA after Brexit? The obvious way to avoid it (and the other forms of stepped-up border control) would be to conclude a deal on free movement of persons with the EU (this need not mean joining Schengen). Arguably even a free movement deal with derogations – for instance, limiting the numbers of EU citizens who can work in the UK in some way – could justify an exemption from stepped-up border controls, as long as those UK controls are not applied at the border. I can foresee the counter-argument that ‘the EU will never negotiate an exception to free movement of people’; but has it occurred to anyone that this might simply be a negotiating position?

If an EU ESTA does end up being applied to UK citizens, the UK could reciprocate with a system of its own, applied to EU visitors. But this doesn’t rule out some form of deal on immigration flows between the UK and the EU, which could be agreed in return for continued UK participation in the single market. The mere existence of a UK ESTA – perhaps accompanied by some other form of immigration safeguard on EU citizens – might arguably go some way to satisfying those who want additional border controls. It could be accompanied by further mutual sharing of data on serious convicted criminals, for use in the ESTA process. Latvia’s daft decision to release a convicted murderer after only a few years in prison should not have had tragic consequences in the UK, or any other Member State.

THE FUTURE OF NATIONAL DATA RETENTION OBLIGATIONS – HOW TO APPLY DIGITAL RIGHTS IRELAND AT NATIONAL LEVEL?

ORIGINAL PUBLISHED ON EUROPEAN LAW BLOG ( JULY 25, 2016)

By Vanessa Franssen

On 19 July, Advocate General (AG) Saugmandsgaard Øe delivered his much awaited opinion on the joined cases Tele2 Sverige AB and Secretary of State for the Home Department, which were triggered by the Court of Justice’s (CJEU) ruling in Digital Rights Ireland, discussed previously on this blog. As a result of this judgment, invalidating the Data Retention Directive, many Member States which had put in place data retention obligations on the basis of the Directive, were confronted with the question whether these data retention obligations were compatible with the right to privacy and the right to protection of personal data, guaranteed by Articles 7 and 8 of the EU Charter of Fundamental Rights (Charter). Hence, without a whisper of a doubt, several national legislators eagerly await the outcome of these joined cases, in the hope to get more guidance as to how to applyDigital Rights Ireland concretely to their national legislation. The large number of Member States intervening in the joined cases clearly shows this: in addition to Sweden and the UK, no less than 13 Member States submitted written observations. The AG’s opinion is a first – important – step and thus merits a closer look.

National and European shock waves after Digital Rights Ireland

The Digital Rights Ireland case was ground-breaking in many respects, and caused a real shock effect across the EU. As a result of the CJEU ruling, national data retention legislation was invalidated in several Member States. For instance, the District Court of The Hague struck down the Dutch national data retention legislation on 11 March 2015, and shortly afterwards, on 11 June 2015, the Belgian data retention law was annulled by the Constitutional Court, which largely copy-pasted the CJEU’s reasoning. This situation creates great uncertainty about the further potential use of traffic and location data of electronic communications in national and transnational criminal investigations (see eg the Workshop on data retention organized by the Consultative Forum and the Luxembourg Presidency), especially because such data are used in an increasingly large number of criminal cases, not just as incriminating, but also as exculpatory evidence.

In other Member States, the legislator very quickly launched the process for amending the national data retention legislation. For instance, in the UK, the Data Retention and Investigatory Powers Act was adopted only three months after the CJEU’s ruling. By contrast, in Luxembourg, which has invested significantly in the digital economy in the last few years while also emphasizing the importance of the protection of privacy and personal data, the legislative process kicked off in January 2015 but has still not resulted in new legislation.

At the European level, the legislator has so far shown little appetite to adopt a new Data Retention Directive, despite some attempts of the Luxembourg Presidency in the Autumn of 2016 to initiate such legislative process, or at least to stimulate the discussion. This should not come as a real surprise. On the one hand, the CJEU has been very active in the field of data protection over the last two years, addressing a large number of questions and raising new ones (some of which have been discussed previously on this blog: see here, here and here). On the other, the EU was already busy tackling other urgent and delicate data protection issues, such as the adoption of the new General Data Protection Regulation, repealing Directive 95/46/EC, and the Data Protection Directive with respect to the processing of personal data for criminal investigations, repealing Council Framework Decision 2008/977/JHA, and the negotiations and adoption of the new Umbrella Agreement with regard to EU-US law enforcement cooperation.

Short background to the cases

Immediately after the Digital Rights Ireland ruling, Tele2 Sverige AB (a provider of electronic communications) notified the Swedish competent authority that it would no longer comply with the Swedish national data retention obligations as it considered those obligations were not meeting the CJEU’s conditions. This decision obviously caused great concern for the national authority, ordering Tele2 Sverige to resume its retention of data. Yet, Tele2 Sverige persevered and appealed this order before the Administrative Court in Stockholm and subsequently before the Administrative Court of Appeal, which referred the matter for a preliminary ruling to the CJEU. (Opinion, §§ 50-55)

In the meantime in the UK, the 2014 Data Retention and Investigatory Powers Act was challenged before the High Court of Justice of England and Wales and declared invalid on 17 July 2015, because the data retention regime did not provide for adequate safeguards in order to protect the right to privacy and the right to protection of personal data laid down in the Charter. In other words, the UK data retention regime did not comply with the conditions put forward by the CJEU inDigital Rights Ireland. However, the Home Secretary appealed this judgment and the Court of Appeal decided to refer two questions to the CJEU for a preliminary ruling. (Opinion, §§ 56-60)

Questions submitted to the CJEU

Interestingly, the approach of both referring courts is quite different, as results clearly from the way they formulate their respective questions for the CJEU.

The Swedish referring court asks the CJEU, first of all, whether

‘a general obligation to retain data in relation to all persons and all means of electronic communication and extending to all traffic data, without any distinction, limitation or exception being made by reference to the objective of fighting crime (…) [is] compatible with Article 15(1) of Directive 2002/58, taking into account Articles 7, 8 and 52(1) of the Charter?’ (Opinion, § 55)

Should such a general data retention obligation not be compatible with the Charter, could a data retention obligation then nevertheless be compatible with the Charter if the access of the competent authorities to the retained data is regulated as it is under Swedish law, if the protection and security of the data are regulated as they are under Swedish law, and if all relevant data must be retained for a period of 6 months before being erased, as imposed by Swedish law?

By contrast, the Court of Appeal of England and Wales is of the view that the CJEU did not set out ‘specific mandatory requirements of EU law with which national legislation must comply, but was simply identifying and describing protections that were absent from the harmonised EU regime.’ (Opinion, § 59)

Nevertheless, to be absolutely sure, it asks the CJEU to clarify this point:

‘Does the judgment of the Court of Justice in Digital Rights Ireland (including, in particular, paragraphs 60 to 62 thereof) lay down mandatory requirements of EU law applicable to a Member State’s domestic regime governing access to data retained in accordance with national legislation, in order to comply with Articles 7 and 8 of the [Charter]?’ (Opinion, § 60)

Furthermore, the Court of Appeal would like to know whether Digital Rights Irelandexpands the scope of Articles 7 and/or 8 of the Charter beyond that of Article 8 of the European Convention of Human Rights (ECHR), as interpreted by the European Court of Human Rights (ECtHR). Put differently, the referring court wonders whether the level of protection offered by the Charter is higher than that under the ECHR.

The AG’s opinion

The latter question raised by the Court of Appeal in the UK case should be rejected as inadmissible according to the AG, because it is only ‘of purely theoretical interest’ (§ 82) and not ‘relevant to the resolution of the disputes’ (§ 75). Even if the Court would want to address the question, EU law does of course not prevent the Court (or the legislator) from going beyond the protection offered by the ECHR (§ 80). On the contrary, in my view it may be quite desirable to go beyond the minimum safeguards guaranteed by the ECHR, and not just with respect to Article 8. Unfortunately, EU legislation – for instance also with respect to procedural safeguards in criminal proceedings – does not pass, or barely passes, the minimum level of protection granted by the ECHR (see, for instance, the analysis on this blog regarding the recently adopted Presumption of Innocence Directive).

Subsequently, the AG addresses the first question of the Swedish referring court, regarding the compatibility of a general data retention obligation with Article 15(1) ofDirective 2002/58/EC (the Directive on privacy and electronic communications) and Articles 7 and 8 of the Charter. In a first step, the AG affirms that a general data retention obligation falls within the scope of Directive 2002/58/EC, despite the exclusion of State activities relating to criminal law by Article 1(3) of the Directive. Indeed, it is not because the data retained can be accessed and used by police and judicial authorities for criminal investigations that the data retention rules, which address private actors providing electronic communications services (service providers), would themselves be excluded from the scope of the Directive (§§ 87-97). Next, the AG scrutinizes whether the possibility offered by Article 15(1) of Directive 2002/58/EC to restrict the rights and obligations of the Directive allows for the creation of a general data retention regime by national law. Unlike some of the civil liberties organisations intervening in the joined cases, the AG considers that the wording of Article 15(1) of Directive 2002/58/EC (‘Member States may, inter alia, adopt legislative measures providing for the retention of data for a limited period’) indicates that data retention obligations are not, as such, inconsistent with the Directive. The same goes for general data retention obligations, yet only if they ‘satisfy certain conditions’ (§ 108). Recital (11) of the Directive confirms this as it states that the Directive

‘does not alter the existing balance between the individual’s right to privacy and the possibility for Member States to take the measures referred to in Article 15(1) of this Directive, necessary for the protection of public security (…) and the enforcement of criminal law.’

Hence, it

‘does not affect the ability of Member States to carry out lawful interception of electronic communications, or take other measures, if necessary for any of these purposes and in accordance with the [ECHR]’

provided that those

‘measures [are] appropriate, strictly proportionate to the intended purpose and necessary within a democratic society and (…) subject to adequate safeguards in accordance with the [ECHR].’

In sum, what matters, is that (general) data retention rules meet certain requirements, which ensure striking an acceptable balance between the purposes pursued by those rules and the individual’s fundamental rights. These rights are not just the ones laid down in the ECHR, but also the ones of the Charter as data retention rules ‘constitutes a measure implementing the option provided for in Article 15(1) of Directive 2002/58’ (§ 121). In other words, national legislation encompassing data retention obligations are ‘governed’ by EU law, which triggers the application of the Charter, as the CJEU clarified in the Åkerberg Fransson case(discussed on this blog) and refined in later case law (eg Siragusa, also analysed on this blog, and Julian Hernández and others, §§ 32-49). By contrast, whether the Charter also applies to the national rules determining under what conditions police and judicial authorities can access the retained data is less obvious, because Directive 2002/58/EC does not cover ‘activities of the State in areas of criminal law’ (Art. 1(3)). While the AG is inclined to conclude that the Charter does not apply to those rules (§§ 123-124), he also stresses that

‘the raison d’être of a data retention obligation is to enable law enforcement authorities to access the data retained, and so the issue of the retention of data cannot be entirely separated from the issue of access to that data. As the Commission has rightly emphasised, provisions governing access are of decisive importance when assessing the compatibility with the Charter of provisions introducing a general data retention obligation in implementation of Article 15(1) of Directive 2002/58. More precisely, provisions governing access must be taken into account in the assessment of the necessity and proportionality of such an obligation.’ (§ 125, emphasis)

In other words, does this mean that the Charter indirectly applies to national rules regulating the access to the retained data? It will be interesting to see if and how the CJEU addresses this point, adding another piece to what Benedikt Pirker described on this blog as ‘the jigsaw puzzle of earlier decisions on the scope of EU fundamental rights’.

This brings the AG to the biggest and most tricky questions submitted for a preliminary ruling, combining the second question of the Swedish court and the first question of the Court of Appeal, concerning the conditions national legislation should respect when creating a general data retention obligation. Without a doubt, general data retention obligations constitute a serious interference with the right to privacy (Article 7 of the Charter) and the right to the protection of personal data (Article 8 of the Charter) (§ 128). So the crucial question is whether such interference may be justified and on what conditions (§ 129).

Based on a reading of Article 15(1) of Directive 2002/58/EC and Article 52(1) of the Charter, the AG identifies six cumulative conditions that must be met to justify the serious interference caused by a general data retention obligation:

‘–        the retention obligation must have a legal basis;

–        it must observe the essence of the rights enshrined in the Charter;

–        it must pursue an objective of general interest;

–        it must be appropriate for achieving that objective;

–        it must be necessary in order to achieve that objective;

–        it must be proportionate, within a democratic society, to the pursuit of that same objective.’ (§ 132)

While most of these requirements were already put forward by the CJEU in Digital Rights Ireland, when evaluating the legal regime laid down in the Data Retention Directive, the AG nevertheless wishes to revisit them, ‘[f]or the sake of clarity and given the facts which distinguish the present cases from Digital Rights Ireland’ (§ 133). In particular, he wants to have a closer look at the requirement of a legal basis (which was not addressed in Digital Rights Ireland) and the necessity and proportionality of data retention obligations in a democratic society.

The first requirement, imposing the need for a legal basis, should be interpreted in light of Article 52(1) of the Charter, stating that limitations to the rights of the Charter should be ‘provided for by law’ – a phrase that resonates the wording of the ECHR (‘in accordance with the law’, Article 8 ECHR) and the case law of the ECtHR (§ 141) – as well as in light of Article 15(1) of Directive 2002/58/EC. As a result, a regime of general data retention should be established on the basis of measures adopted by a legislative authority, that are accessible and foreseeable while offering adequate protection against arbitrary interference with the rights of privacy and data protection (§ 153). That being said, considering the differences in the various language versions of Article 15(1) of Directive 2002/58/EC (§§ 145-147), the AG acknowledges that regulatory measures adopted by an executive authority might also suffice, although he would personally prefer to give the executive authority only the responsibility of implementing the measures adopted by the legislative authority (§§ 152-153).

Second, any general data retention regime should observe the essence of the rights enshrined in Articles 7 and 8 of the Charter, as the CJEU also highlighted inDigital Rights Ireland. As long as the national data retention obligations do not concern the content of the electronic communications and as long as they provide for safeguards that ‘effectively protect personal data’ retained by service providers ‘against the risk of abuse and against any unlawful access and use of that data’ (§ 159), this requirement does not seem to create particular problems in the cases submitted to the CJEU.

Third, the interference with the rights to privacy and data protection caused by a general data retention obligation can only by justified if the latter pursues ‘an objective of general interest recognised by the European Union’. As the CJEU pointed out in Digital Rights Ireland, the objective to fight serious crime (such as international terrorism) is definitely recognized by EU law; Article 6 of the Charter does not only warrant the right to liberty, but also the right to security. Yet, whether data retention obligations are also justifiable, more generally, to combat ordinary crime, or even in proceedings other than criminal proceedings, as the UK government argues in its submission before the CJEU, is much less obvious. It should be acknowledged that limitations allowed for by Article 15(1) of Directive 2002/58/EC are not confined to ‘serious crime’. Indeed, this provision allows Member States to adopt restrictions that are necessary, appropriate and proportionate within a democratic society ‘to safeguard national security (i.e. State security), defence, public security, and the prevention, investigation, detection and prosecution of criminal offences’. Nevertheless, in the AG’s view, the interferences caused by a general data retention regime are so serious that the fight against ‘ordinary offences and the smooth conduct of proceedings other than criminal proceedings’ are not ‘capable of justifying a general data retention obligation’ considering the ‘considerable risks that such obligations entail’ (§§ 172-173).

Moving forward, the AG evaluates the proportionality of general data retention obligations, which he splits up in three separate (sub-)requirements: are they appropriate (fourth requirement) as well as strictly necessary (fifth requirement) to achieve the aforementioned objective of fighting serious crime and proportionate in a democratic society (sixth requirement). Like the CJEU in Digital Rights Ireland, the AG sees no obstacle in the appropriateness of general data retention obligations to fight serious crime (§ 177). He even insists on the usefulness of such data, which allow police and judicial authorities to ‘examine the past’, even with respect to persons who were not suspected of a serious crime at the time of the electronic communications (§§ 178-181). Considering the current safety threats and the numerous terrorist attacks that took place after the Digital Rights Irelandjudgment, any other viewpoint would have surprised.

Next, the AG addresses the fifth requirement: are general data retention obligations really (ie strictly) necessary to combat serious crime? This requirement unfolds in two questions. For one, is a general data retention obligation strictly necessary, or on the contrary, does it go ‘beyond the bounds of what is strictly necessary for the purposes of fighting serious crime, irrespectively of any safeguards that might accompany such an obligation’ (emphasis added)? For another, if a general data retention does not exceed what is strictly necessary, ‘must it be accompanied by all the safeguards mentioned by the Court in paragraphs 60 to 68 of Digital Rights Ireland’ (§ 189).

As regards the first of these two questions, the AG adheres to the point of view that most parties (in particular the Member States) took in their written submissions: a general data retention obligation as such does not exceed the limits of strict necessity. According to the AG, paragraphs 56 to 59 of Digital Rights Irelandshould indeed be interpreted as meaning that a general data retention obligation does not pass the strict necessity test but only if ‘it is not accompanied by stringent safeguards concerning access to the data, the period of retention and the protection and security of the data’ (§ 195, original emphasis).

One may wonder whether this is a correct reading of the CJEU’s judgment, which emphasized that the Data Retention Directive required the retention of all traffic data relating to all means of electronic communications and regarding all persons (‘practically the entire European population’), ‘without any differentiation, limitation or exception being made in light of the objective of fighting against serious crime’ (§§ 56-57). That being said, as some governments pointed out, if the Court would have considered that a general data retention obligation by itself exceeds the threshold of what is strictly necessary, then why did it bother to spell out in the subsequent paragraphs the safeguards that should apply? The upcoming judgment will undoubtedly tell us which interpretation is the right one.

Furthermore, the AG insists on the fact that national courts will have to assess whether there are no equally effective and less restrictive means available in the national system to achieve the same goal as a general data retention obligation (§§ 206-215), thereby passing on a difficult but very important balancing exercise to the national courts.

Assuming a general data retention obligation is strictly necessary, then all the safeguards put forward by the CJEU in Digital Rights Ireland (§§ 60-68) should respected by national law. Any other approach which would allow for a further balancing exercise between the different safeguards (as, for instance, the German government suggested, using the metaphor of ‘communicating vessels’) would, according to the AG, empty those safeguards of their practical effect (§§ 221-227). This means that national data retention rules should

1) make sure that the ‘access to and the subsequent use of the retained data [are] strictly restricted to the purpose of preventing and detecting precisely defined serious offences or of conducting criminal prosecutions relating thereto’ (§ 229);

2) make the access to those data ‘dependent on a prior review carried out by a court or by an independent administrative body’ in order to assess the strict necessity of the access and subsequent use of the data (§ 232);

3) require service providers ‘to retain data within the European Union, in order to facilitate the review’ and to make sure that the EU safeguards apply (§§ 238-240), and

4) limit the retention period in function of the usefulness of the data (§ 242).

While it is again for national courts to evaluate whether the safeguards provided for by national law are sufficient, the AG does not hide his opinion that both the Swedish and the UK regime reveal a number of deficiencies in this respect (§§ 230, 233 and 239).

Sixth and last, the AG emphasizes the need to evaluate the ‘proportionality stricto sensu’ of a general data retention obligation, which consists in weighing the advantages and disadvantages of such an obligation within a democratic society (§ 248). Once more, the AG argues this is a task for national courts, but he nonetheless points out that a general data retention obligation entails a considerable risk of mass surveillance (§ 256). Based on an analysis of a large amount of (meta-)data, authorities could easily find as much, or even more, about an individual as they can by means of targeted surveillance measures, including the interception of content data (§§ 254 and 259). Unlike the content of communication, meta-data ‘facilitate the almost instantaneous cataloguing of entire populations’ (§ 259). If one just considers the large amount of requests service providers in Sweden and the UK receive from the competent authorities, one realizes that the risk of abusive or illegal access to the retained data is far from ‘theoretical’ (§ 260).

Some first thoughts

As the above analysis suggests, the AG’s opinion offers a lengthy and mitigated assessment of the six cumulative requirements that general data retention obligations under national law should meet. Some of these requirements (eg the requirement of a legal basis) can easily be fulfilled. Yet others will raise many problems for national legislators when delineating the domestic data retention framework.

For instance, the requirement that general data retention obligations must pursue ‘an objective of general interest recognised by the European Union that is capable of justifying a general data retention obligation’ will undoubtedly raise many problems at the national level. Is the fight against serious crime indeed the only acceptable objective? For sure, the ‘material objective’ of the Data Retention Directive was ‘to contribute to the fight against serious crime and thus ultimately to public security’, which made the CJEU decide that the Directive satisfied an objective of general interest (Digital Rights Ireland, §§ 41-44). But does this mean, as the AG advocates, that it is the only possible justifiable objective for nationaldata retention obligations, considering the seriousness of the interferences with the right to privacy and the right to protection of personal data? Furthermore, assuming it is, what offences are sufficiently ‘serious’ to justify a general data retention obligation? In Digital Rights Ireland, the CJEU explicitly stated that this is to be ‘defined by each Member States in its national law’ (§ 41). Yet, the AG suggest a different approach, by stressing that it should be ‘an objective of general interest recognized by the European Union’. Hence, how much leeway do Member States have? If an EU-wide understanding of the label ‘serious crime’ is to be preferred, would the list of Eurocrimes (which are in fact broad categories of crimes) in Article 83(1) TFEU then be of sufficient guidance?

Another concern of police and judicial authorities, which national legislators will want to take into account, is that what starts out as a simple, ‘ordinary’ criminal case, may very well turn out to be much more ‘serious’ in a later stage of the investigation. It may not be so easy to reconcile this concern with the safeguard to limit the data retention period in light of the usefulness of the data, ie considering the objective pursued or according to the persons concerned.

One may also wonder whether the AG’s opinion provides as much clarity as national legislators hope to get from the CJEU. Many issues will still need to be addressed by national legislators (eg to design safeguards that pass the Digital Rights Ireland test) and national courts (eg to evaluate whether there are no less restrictive alternatives than a general data retention obligation and whether the risk of mass surveillance does not outweigh the benefits offered by a general data retention obligation).

For sure, this is only a first reflection. Further reflection will undoubtedly follow after the Grand Chamber of the CJEU will have rendered its ruling. In the meantime, national legislators will have to be patient and uncertainty will persist about the potential use in criminal proceedings of traffic and location data retained on the basis of a general data retention obligation.

ORIGINAL TEXT PUBLISHED ON EU LAW ANALYSIS

FULL TEXT HERE

Summary of the court judgement

The question

Background

The constitutional principles

Conclusion

ORIGINAL PUBLISHED ON EU LAW ANALYSIS (13/10/16)

1. La décision d’exécution 2016/894 du Conseil : recommandations et obligations pour les États Schengen concernés

2. La pratique de réintroduction, par les États Schengen concernés, du contrôle à leurs frontières intérieures avant la décision d’exécution

3. L’autre État Schengen concerné par la décision d’exécution : la Grèce. Questions de légalité

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