The new proposal on the security of EU informations: transforming the EU “Bubble” in an EU “Fortress” ? (3)

3. How the INFOSEC proposal builds a wider, but still incomplete, legal framework for EU Classified informations (EUCI)

“The core of the proposed Regulation on the security of EU information (hereafter the INFOSEC proposal) concerns the creation and management of EU classified information (EUCI). In doing so, it substantially modifies Article 9 of Regulation 1049/2001, which deals with public access (or not) to so-called “sensitive documents”.

According to that article:

“Sensitive documents are documents originating from the institutions or the agencies established by them, from Member States, third countries or International Organizations, classified as ‘TRÈS SECRET/TOP SECRET’, ‘SECRET’ or ‘CONFIDENTIEL’ in accordance with the rules of the institution concerned, which protect essential interests of the European Union or of one or more of its Member States in the areas covered by Article 4(1)(a), notably public security, defense and military matters.”

Paragraph 3 of the same article also makes clear that: “Sensitive documents shall be recorded in the register or released only with the consent of the originator.”

Paragraph 7 says: “The Commission and the Council shall inform the European Parliament regarding sensitive documents in accordance with arrangements agreed between the institutions.”

It should be noted that Article 9 of Regulation 1049/2001 was a “fast and dirty” solution for a problem which arose in July 2000: Javier Solana, newly appointed Secretary General of the Council, negotiated with the new NATO Secretary General, Mr Robertson, an administrative arrangement with NATO on the exchange of classified information with the Council of the EU. However, that arrangement was challenged before the Court by the European Parliament (EP) and the Dutch government, because they considered that it limited a citizen’s fundamental right of access to documents, and exceptions to such fundamental right should have been framed by law.

At the time, the negotiation of Regulation 1049/01 was under the pressure of a deadline established in the Treaty. The reference to “sensitive” documents was added at the end of the legislative procedure and, because of this, the EP and the Dutch government withdrew their case before the Court.

Unfortunately, it was a Pyrrhic victory – it soon became clear that Article 9 of Regulation 1049/2001 was (and still is) a rather elusive and patchy framework for EU classified information.

A number of points can be made in this regard:

a) It does not regulate how the information should be classified and declassified in the interests of the EU, as opposed to the interests of the originator (whether that be a member State, EU institution, agency or body). Quite the contrary – by transferring the definition of these aspects to the internal security of each institution it paved the way to different standards and the very well-known risk of over classification.

b) It foresees a very weak framework for parliamentary oversight. By making reference to interinstitutional agreements and not codifying in secondary law the EP’s constitutional right to oversee classified information, it places the institution in an ancillary position. It is unfortunate that the EP has not fought until now to obtain treatment comparable to the one reserved for national parliaments with regard to their governments.

The solutions may be different, and special procedures and perhaps even special parliamentary bodies may be needed, but a stronger EP role is more than necessary because this lack of oversight will not be covered at national level – governments will declare that they are barred from revealing the information because it is classified at “European” level! Moreover, the instrument of an “interinstitutional agreement/arrangement” as currently foreseen by Article 295 of the Lisbon Treaty has strong constitutional limitations. As the Council Legal Service itself recognized in 2018: “The wording of the provision (NDR art.295 TFEU), and notably the use of the term ‘arrangements’, points to the fact that IIAs are instruments for regulating the modalities of cooperation and not for the regulation of substantive policy areas.”

It is thus quite surprising that, since the first Interinstitutional Agreement in 2002, the European Parliament has not asked for a sturdier legal basis for its oversight power.

With the adoption of the INFOSEC Regulation the situation will become even worse, because the EP will be obliged to negotiate interinstitutional agreements with all the other EU institutions, agencies and bodies if access to classified information is necessary for fulfilling its own constitutional role. From the outside, 21 years after the first interinstitutional agreement, the fact that the EP is still negotiating the revision of the 2002 interinstitutional agreement on access to classified information in the Common Security and Defence Policy (CSDP) area instead of creating a true legislative legal basis for its oversight may look to some like a form of Stockholm syndrome. To exit from such an impasse would not be wise for the European Parliament to study the more suitable model by looking at the experience of the major EU Member States and, even of the USA ?

c) Article 9 recognises, albeit only in the domain of “sensitive” documents and information, the so-called “originator privilege” or “author rule.” This is an exception to the general philosophy of Regulation 1049/2001, as made clear in Article 4(5):

“A Member State may request the institution not to disclose a document originating from that Member State without its prior agreement.” The point was, and still is, that the EU institutions may only by bound by law and not by the will of an “author”, even if it were an EU member state, a point confirmed in the jurisprudence of the Court of Justice of the EU.

What the INFOSEC proposal does is to transform the exception of the “originator principle” in a rule. But, by recognizing to each EU Institution, Agency and Body the power of classify information in the interest of the EU it does not establish a mechanism which may verify that the EU interest is adequately by the classification or if it has been abusively established. For instance, an oversight power may be recognized to the European Commission or to the Ombudsman to decide if a document/information created by the EU Agencies should be declassified.

Clear rules on this point at INFOSEC level, may prevent from happening, other “incidents”, such as the one which occurred between Europol, the Ombudsman and the Commission, in 2015 when the Ombudsman asked to inspect the report of Europol’s Joint Supervisory Body (JSB) on the implementation of the EU-US Terrorist Finance Tracking Programme Agreement ( see https://www.ombudsman.europa.eu/fr/case/en/42114 )

d) It does not foresee a judicial oversight of classified information. Today it is still up to the originator to decide whether or not to give the Court of Justice access to classified information. This is not a rhetorical question: it has already happened that the Council did’nt answer positively to a Court of Justice request of having access to classified informations. As Deirdre Curtin remind us in her essay Top Secret Europe: “…in the OMPI case (*) on the blacklisting of terrorists by the UN and within the EU context, the Court said clearly that the Council could not base its decision on information that is not revealed to the Court.” ( Case T-248/08, People’s Mojahedin Organization of Iran v Council (OMPI III) para 73). It is worth recalling that in some Countries such as the USA

e) It does not solve the problem of sharing of “sensitive information” between entities which have a legitimate “need to know.” Instead, as Article 9 is focused on the security of each author of “sensitive information” and does not refer to common legislative standards, this has been done until now by the Council. This institution remains the main creator and exchanger of classified information, and has imposed via bilateral agreements with all the other EU institutions, agencies and bodies its internal security rules which, in turn, mirror the NATO standards. It is because of the legal fragility of this “de facto harmonisation” that the Commission has decided to launch a legislative initiative establishing at secondary law level the principles which should be respected in this domain inside the EU.

However, the solution envisaged in the INFOSEC proposal still does not address the main weaknesses of Article9 of Regulation 1049/2001 nor the weaknesses of the Council Internal Security Rules which are proposed to become the common EU standard. . In fact, in some cases it makes the situation even worse.

A useful example can be seen in the EU security agreements with third countries and international organizations on the exchange of classified information foreseen by articles 55-68 of the INFOSEC proposal.

The proposal requires, as a rule, that these agreements be negotiated and concluded according to Article 218 of the Lisbon Treaty, which will finally give the possibility for the EP to give its consent and to be fully and timely informed of the agreements’ content. But INFOSEC foresees also the possibility of continuing with “executive” arrangements which can be negotiated not only by the Council but also by other EU Institutions, agencies and bodies without associating the EP. That exclusion of the EP has been , unfortunately, until now the case and dozens of international agreements have been negotiated by the Council using Article 13 of its internal security rules as a legal basis.

Now, if the INFOSEC proposal is adopted not only the Council but also all the other EU Institutions Agencies and bodies will have a legal basis for negotiating and concluding these executive “arrangements”. It would be wise to make clear in the INFOSEC proposal that the arrangements shall foresee that, because of the EU’s constitutional framework, no veto can be exercised over the transmission of classified information to the EP and to the CJEU.

4. Summing up: by endorsing the INFOSEC legislative proposal is the EP shooting on its Foot ?

(EP Research Service) The Commission’s Rule of Law Report and the EU Monitoring and Enforcement of art. 2 TEU Values.

by Prof. Laurent PECH; Senior Research Fellow, Petra BÁRD, Associate professor, Eötvös Loránd University, Faculty of Law; Researcher, CEU Department of Legal Studies and CEU Democracy Institute; Fernand Braudel Fellow, European University Institute

EXECUTIVE SUMMARY (LINK TO THE FULL REPORT)

Background

Rule of law backsliding represents a major, existential challenge for the EU as it structurally endangers the foundations of the EU as a Union based on the rule of law and fundamentally threatens the functioning of the EU’s interconnected legal order. To address the EU’s worsening rule of law crisis and more broadly, the unprecedented and spreading attempts by some national authorities to organise the systemic undermining of EU’s shared foundational values, the European Parliament proposed a new EU mechanism in 2016 to better monitor and enforce the values of democracy, the rule of law and fundamental rights (DRF mechanism).

Instead of embracing the European Parliament’s proposal, the Commission designed its own new annual European Rule of Law Mechanism. The European Rule of Law Mechanism provides an annual process for dialogue on the back of an Annual Rule of Law Report (ARoLR) which the Commission has presented as a new preventive tool. Launched for the first time in 2020, the ARoLR takes the form of twenty-seven country chapters and an umbrella report presenting an overview of the situation of the rule of law situation across the EU. To date, the ARoLR has focused on four “pillars”: (i) national justice systems; (ii) national anti-corruption frameworks; (iii) media pluralism; and (iv) other institutional checks and balances.

The Commission’s ARoLR differs in many respects from the European Parliament’s DRF proposal. Most importantly, the ARoLR foresees lesser involvement for other EU institutions and does not provide for any formal involvement of external experts. It is also narrower in the sense that its scope is more limited as it does not directly cover democracy and fundamental rights; does not (yet) include country specific recommendations and does not automatically lead to the adoption of specific Council conclusions and a Parliament resolution.

This study offers a critical assessment of the Commission’s ARoLR within the broader context of the EU’s DRF architecture, and formulates recommendations in order to address the ARoLR’s negative features identified by the present authors: the creation of false expectations; the use of euphemistic language; the lack of context and connected failure to see the wood for the trees; the denial of (autocratic) reality and resulting category errors; the emphasis on “dialogue no matter what”; and finally, the opportunity costs and possible displacement effect the ARoLR has had on enforcement. This is not to say that a number of positive features cannot be identified. The ARoLR can indeed be commended for offering a compelling definition of the rule of law; a clear outline of why the rule of law matters; a broadly suitable selection of relevant “pillars” and main sources of information; and increasing the political saliency of the rule of law.

Recommendations

This study’s main recommendations summarised below aim to remedy the ARoLR’s identified gaps and shortcomings in the short to medium term. On the long term, it is recommended that renewed consideration is given to

(i) the extension of the ARoLR’s scope so that all Article 2 TEU values are subject to annual monitoring given that these values must be viewed as interconnected, interdependent and mutually reinforcing;

(ii) the extensive involvement of an expert panel and

(iii) the adoption of automatic legal and/or financial actions when country specific recommendations (which the third edition of the ARoLR is expected to contain for the first time) are not fully and promptly addressed.

Considering the Commission’s continuing opposition to the adoption of a mechanism akin to the Parliament’s proposed DRF mechanism, this study has prioritised the elaboration of recommendations which can be actioned in the short to medium term with the view of improving the effectiveness of the ARoLR without fundamentally changing its current scope and structure.

Recommendations on methodology:

• A better preparation and publication cycle should be organised and in particular, the same time window should be used each year so that planning can be done ahead of the timeline’s official publication in respect of the next edition of the ARoLR;

• The Commission should promptly publish the input documents they receive from national governments so as to enable experts and civil society groups to fact check them as soon as possible;

• The Commission should be mindful of deliberate attempts to deceive it by those engaged in the systemic dismantlement of checks and balances and their proxies, such as government-organised non-governmental organisations (GONGOs). In this respect, it is recommended that the Commission provides clearer details than currently regarding country visits and interviews; selection of stakeholders, information selection, as well as greater protection for government critiques, especially those based in countries subject to an ongoing Article 7 procedure;

• The Commission should elaborate on the indicators taken into account for assessing the rule of law situation in each of the Member States and should aim to undertake a comprehensive assessment of the same elements based on the same indicators in all country chapters;

• The Commission should seek to take better account of the data and findings from relevant indices such as the Worldwide Governance Indicators (WGI) project, the World Justice Project Rule of Law Index, or the Varieties of Democracy (V-DEM) project;

• The involvement of an expert panel/network of external experts and/or the EU Fundamental Rights Agency should be considered if only at first to merely provide feedback to the Commission and help inter alia with methodological issues.

Recommendations on scope and structure:

• As long as the ARoLR is not extended to cover other foundational values enshrined in Article 2 TEU, the Commission should at a minimum better link the ARoLR with the values of democracy and fundamental rights and connected EU action plans and other strategies, considering the interconnected and mutual reinforcing nature of Article 2 TEU values. Scrutiny over judicial independence for example could extend to the evaluation of fair trial rights, access to justice, equality before the law in national case law;

• New civic space pillar: As long as the ARoLR does not fully encompass all the Article 2 TEU values, the Commission should also consider adopting a fifth pillar dedicated to monitoring national developments relating to civic space considering the crucial importance of civil society when it comes to maintaining and protecting a democratic and pluralist society as well as a proper functioning of public life;

• New Article 7 section: The insertion of a new Article 7 TEU state of play section in the umbrella report is recommended so as to better highlight in a transversal way the evolution of the situation in the countries which have already been identified as being on an autocratisation pattern following the activation of one of the procedures laid down in Article 7 TEU;

• New EU chapter: In addition to the country chapters, the publication of a new EU chapter is recommended with the drafting of this report to be done either by the EU Fundamental Rights Agency and/or a new panel or network of academic experts.

Recommendations regarding effectiveness and follow up:

• The ARoLR should better outline countries’ rule of law adherence over a sufficient long period of time and highlight cross-cutting trends at EU level. This could be done inter alia by taking into account and summarise key data and findings from relevant indices such as the Worldwide Governance Indicators (WGI) project, the World Justice Project Rule of Law Index, or the Varieties of Democracy (V-DEM) project;

• In order to better identify threats and violations of the rule of law and make non-compliance with court judgments a recurrent, more salient and costly issue for relevant national authorities, in addition to the forthcoming new country specific recommendations, the ARoLR ought to include data and information regarding non-compliance (or bad faith implementation) with CJEU orders and judgments but also national and ECtHR orders and rulings which concern any issue relating to any of the ARoLR’s pillars;

• To guarantee better follow up, the ARoLR (including the country-specific recommendations) should be more directly aligned with other rule of law tools and procedures, such as infringement procedures and the Rule of Law Conditionality Regulation 2020/2092, so that remedial action could be more swiftly, consistently and effectively organised in situations where national authorities ignore or violate relevant recommendations;

• The adoption of urgent reports ought to be considered so as to allow for a prompt and formalised answer from the Commission in a situation where national rule of law related developments are indicative of a serious danger; if state action results in the violation of individual rights on a mass scale or if state action amounts to irreversible or systemic threat to or violation of the rule of law;

In addition to or alternatively to the suggested adoption of urgent reports, the Parliament should consider requesting the Commission to present a mid-year assessment of the state of compliance (or non-compliance) with the ARoLR’s country-specific recommendations, with the Commission to be also requested to specify how non-compliance will be dealt with.

(LINK TO THE FULL REPORT)

IS THERE A FUTURE FOR THE EU’S AREA OF FREEDOM, SECURITY AND JUSTICE? A PLAN TO BUILD BACK TRUST

by CAMINO MORTERA-MARTINEZ

REBLOGGED FROM THE INTERNET SITE OF THE CENTRE FOR EUROPEAN REFORM / LINK : https://www.cer.eu/publications/archive/policy-brief/2022/there-future-eus-area-freedom-security-and-justice

SUMMARY

The past 15 years have not been kind to two great icons of European integration: the common currency with its accompanying passport-free Schengen area and area of freedom, security and justice (AFSJ).
Much like the eurozone between 2008 and 2015, the EU’s area of freedom, security and justice has gone through a series of shocks over the past seven years, whether they relate to migration, asylum policies, security concerns or the rule of law. But, unlike the EU’s single currency area, there have been limited efforts to fix the AFSJ’s multiple shortcomings.
To date, the EU has dealt with each crisis separately. This was reasonable while each problem was manageable on its own and had little or no spill-over to other parts of the EU project. But this is no longer a sustainable strategy. All the AFSJ crises are related and they all need fixing quickly. The EU should find inspiration in how it dealt with the twin financial and eurozone crises.
So far, Schengen and the AFSJ have weathered a migration crisis, several terrorist attacks, and a pandemic because EU countries have mostly been happy to co-operate with each other and trusted each other’s systems.
But it is becoming clear that countries have very different ideas about who should be allowed in and how; what an independent judiciary is; and what should be the relationship between EU law and national constitutions.
The EU does not need to come up with flashy new plans to reform Schengen every two or three years. Instead, EU leaders should focus on the underlying problem: the waning trust between member-states and the impact that this lack of trust on co-operation.
The most important consequence of the bloc’s gradual loss of mutual trust may be the gradual exclusion of some EU countries from the Union’s common legal space. That space includes not only police and judicial co-operation, but also the single market.
The EU will not solve its trust problem through new laws or court rulings, because the problem stems from political, rather than legal, differences. Instead, the EU should focus on rethinking the way the AFSJ works and clarifying the compromises it involves. One way forward could be to draw inspiration from the European Semester and the EU’s post-pandemic recovery fund.
The EU should come up with a ‘European Justice Semester’, which would help to rebuild trust in three ways. First, it would establish a permanent and clearer link between policies related to Schengen, like the free movement of people, and policies related to the wider area of AFSJ like the independence of the judiciary. Second, it would make it harder for countries to backslide. And third, it would allow the EU to anticipate, prepare and deal with issues of mutual trust faster and better.
The European Council could hold a special summit on the future of Schengen and the AFSJ. The result could be a baseline plan which includes a monitoring mechanism based on the eurozone’s European Semester and the post-pandemic recovery fund.
Such plan would include a set of pre-agreed standards that all member-states should abide by. These standards should be drawn up by the Council of Ministers and the European Commission, approved by the European Parliament and endorsed by the European Council.
The Commission could use these standards to monitor trends, for example of judicial reforms, and issue clear guidelines. Member-states would need to present national plans roughly every two years explaining how they would comply with those guidelines.
National AFSJ plans should be approved by the Council of Ministers. The Commission would then review those plans and come up with country recommendations, which should be approved by the Council of Ministers. Member-states should commit to follow those recommendations.
EU governments and the European Commission could set up dedicated teams to ensure regular communication between Brussels and EU capitals; and an early warning mechanism to spot problems before they become unmanageable, similar to the six-month review devised for the disbursement of the recovery fund.
EU member-states should agree on a warning procedure that would apply to countries which have been found to repeatedly deviate from the standards. Such a procedure could end with a suspension of EU funds or with a temporary ‘freezing’ of the recalcitrant country’s participation in certain EU laws, like the European Arrest Warrant.
To work, a European Justice Semester cannot be a purely procedural plan, driven solely by the EU institutions. Such a plan would need the highest-level political backing and broad public support every step of the way. A European Justice Semester should focus on performance, solidarity and accountability.

BRIEFING

During the first decade of the 21st century, the prospects for European integration looked bright. This was particularly true for two of the icons of integration: the common currency, and the passport-free Schengen area. The 2010s were not kind to either; so far, the 2020s have not been kind to anything at all. As a result of the COVID-19 pandemic, countries have put borders back up. The politics of migration remain toxic and EU countries have not been able to agree on common policies. Despite a number of shocking terrorist attacks, the likelihood of falling victim to terrorism in Europe is extremely small. Even so, terrorism and crime are amongst the top ten concerns of European citizens, according to the European Commission, and feature regularly in electoral campaigns across the EU.1 Meanwhile, the EU’s reliance on a common legal space, in which shared rules are interpreted predictably by independent courts, has been challenged by assaults on the independence of the judiciary in several member-states. Furthermore, the Union’s post-pandemic recovery fund may be susceptible to corruption and, if the money is misspent, anti-EU forces will profit.

Much like the eurozone between 2008 and 2015, the EU’s area of freedom, security and justice has gone through a series of shocks over the past seven years, whether they relate to migration, asylum policies, security concerns or the rule of law. But, unlike the EU’s single currency area, there have been limited efforts to fix the AFSJ’s multiple shortcomings. Instead, both EU governments and the EU institutions have chosen to follow a piecemeal strategy, treating each blow to the Union’s AFSJ as an isolated incident. This has made sense until now, as it is an easier sell to voters to separate migration issues from, say, the rule of law. But it is not a sustainable strategy anymore.

EU leaders can no longer pretend that the EU’s common borderless legal area is doing well.

All of the AFSJ’s crises are related. The reason why EU countries have close police and judicial co-operation links and, at least on paper, a common set of rules governing asylum and migration, is that they need to reduce the risks that would otherwise arise in a Union without internal border checks. Schengen and the AFSJ form the bloc’s common borderless legal area. A shock to Schengen has an immediate ripple effect on the AFSJ.

EU leaders and the EU institutions can no longer pretend that the EU’s common borderless legal area is doing well. The EU needs a new plan to make it more resilient. This plan must include regular performance checks and a set of rights and obligations that finally simplifies the link between Schengen and the AFSJ. Such a plan would need a serious commitment from both EU governments and the Brussels institutions, but would not require changing the treaties.

This policy brief looks back at the AFSJ’s difficult decade. It argues that the EU needs to clarify the relationship between Schengen and the bloc’s common legal space, and draws lessons from the eurozone crisis, calling for the EU to set up a ‘European Justice Semester’ to protect the AFSJ.

This is the last paper of a series on the future of EU justice and home affairs. It examines some ideas that have been discussed at meetings of the Amato group, a reflection group of experts on justice and home affairs policies, run by the Centre for European Reform, chaired by former Italian Prime Minister Giuliano Amato and supported by the Open Society European Policy Institute (OSEPI). It has been meeting since 2014. This paper tries to capture the main take-aways of the group’s work over the past seven years.

THE EU’S DECADE OF UNREST AND RELAXATION

EU justice and home affairs (JHA) comprises a set of policies intended to help EU countries manage the side-effects of closer economic integration and the abolition of border controls. As member-states gradually lifted checks on people, goods, capital and services, both law-abiding Europeans and criminals became more mobile. The free movement of capital made laundering money easier. The development of the internal market also meant that more people from different nationalities were getting married, divorced, having children, signing or ending contracts, buying and selling property and, in general, entering into legal transactions in other countries. Meanwhile, both asylum-seekers and other sorts of migrants were arriving in Europe in growing numbers, and looking to settle.2

The 1999 Amsterdam treaty responded to these developments by saying that one of the EU’s main objectives should be “to maintain and develop the Union as an area of freedom, security and justice, in which the free movement of persons is assured in conjunction with appropriate measures with respect to external border controls, asylum, immigration and the prevention and combating of crime.”3

Spurred by a general optimism about European integration and the pressing need to improve police and judicial co-operation in Europe following terrorist attacks in Madrid and London in 2004 and 2005, the Lisbon treaty, which entered into force in December 2009, gave new powers to the EU institutions. The Commission was given the power to propose laws on a wide range of topics such as migration, asylum, criminal law and police co-operation. The Council of Ministers and the European Parliament could each amend, reject or approve those proposals, which, once accepted, would become EU laws and fall under the supervision of the European Court of Justice (ECJ).

From 1999 to the mid-2010s, JHA remained a relatively obscure part of EU policy which accordingly attracted very little public interest. In hindsight, it all began to turn sour in 2014.

Faced with increasing arrivals of leaky boats overcrowded with people fleeing bloody conflicts in Syria and Libya, the Italian government of then-prime minister Enrico Letta launched ‘Mare Nostrum’, a search and rescue operation, in 2013. Other EU countries then accused Italy of encouraging people to risk their lives crossing to Europe by sea in unsafe ships operated by people smugglers, and the EU convinced Letta to replace ‘Mare Nostrum’ with the much smaller ‘Operation Triton’ in 2014. Triton had no mandate to search for and rescue distressed boats proactively. In April 2015, around 700 people died in a shipwreck off the coast of the Italian island of Lampedusa. In September of that year, the image of three-year-old Syrian boy Alan Kurdi lying lifeless on a Turkish beach made headlines around the world. Public attention turned to Europe’s perceived inability to deal with migrants and asylum-seekers, who were often conflated.

The migrant shipwreck tragedy in Lampedusa was a turning point for the future of the EU project.

The tragedy in Lampedusa was a turning point for the EU: the Union has been at the centre of a heated political debate about borders, human rights and Europe’s economy ever since. National politicians began to frame migration debates as a zero-sum choice between open borders for all and ‘fortress Europe’. EU governments and the Brussels institutions eventually fell into the trap of adopting this dichotomy, creating the most serious border crisis in the EU’s history.

In 2015 and early 2016, over a million people crossed into Europe as the conflict in Syria intensified and Libya’s failed state became a safe haven for smugglers. Quickly, it became apparent that member-states did not see eye-to-eye. Some felt they were bearing a disproportionate burden in protecting Schengen’s external borders; some felt they were taking in more than their fair share of asylum-seekers; and some did not want to accept would-be refugees at all. The bitter political debates that ensued deepened the fault lines between front-line and destination member-states. The disagreements about quotas, solidarity and shared responsibility also entrenched another dividing line that had been developing for a while, this time between Central and Western Europe over respect for the rule of law and fundamental rights.

While Hungary’s Viktor Orbán had been toying with the idea of “illiberal democracy” since 2014, the EU’s rule of law stand-off began in earnest four years ago.4 In December 2017, the Commission launched a disciplinary proceeding against Poland under Article 7 of the Lisbon treaty, for breaching EU values. Article 7 proceedings can end with the suspension of the offending state’s voting rights in the Council of Ministers. In October 2018, the European Parliament initiated proceedings against Hungary for the same reason.5 But neither of the two disciplinary actions has got very far: they require unanimous agreement in the Council, minus the offending state. Even if 25 states agreed to sanction Poland or Hungary, one of that pair would still be able to block action against the other. Meanwhile, both the European Commission and the European Parliament have become worried about democratic backsliding in other countries, too: in Slovenia, the government of Orbán’s ally, Janez Janša, has been clamping down on media freedom and NGOs. In Romania and Bulgaria, fears over corruption and respect for fundamental rights are piling up.

Twenty twenty-one may have been the bumpiest year yet for the rule of law in Europe. In December 2020, the EU passed a law (the ‘conditionality mechanism’, in EU jargon) that would stop payments from the EU’s budget and recovery fund to countries that do not respect the rule of law. The Commission has not yet triggered this mechanism because, to overcome Warsaw and Budapest’s threat to veto the bloc’s recovery fund, EU governments promised them that the law would not be used until the ECJ had had the time to review it. But, to put pressure on Poland and Hungary, the Commission has instead delayed the release of recovery fund money (which is separate from the general EU budget) to both countries, over concerns about widespread corruption and a captured judiciary. Over the past 12 months, the ECJ has ruled repeatedly that the Polish government has breached EU law with its judicial reforms – and Warsaw has, also repeatedly, refused to comply with the Luxembourg court’s rulings.6 The stand-off came to a head in October when the Polish Constitutional Tribunal ruled that parts of the EU treaties were incompatible with the Polish constitution, sparking fears of a ‘Polexit’.

The Polish Constitutional Tribunal tried to piggyback on a relatively new trend: the rise of the eurosceptic courts. The Romanian and German constitutional courts, the Danish Supreme Court and the French Conseil d’État have in recent years all questioned the validity of EU law or the legitimacy of ECJ rulings.7 Spain’s otherwise reliably pro-EU judiciary has been debating the usefulness of the European Arrest Warrant (EAW) since a judge in Germany refused the extradition of the fugitive Catalan independence movement leader Carles Puigdemont.8 And Slovenia only nominated its required two delegated prosecutors to the European Public Prosecutor’s Office (EPPO, a body with powers to prosecute crimes related to the EU budget) in November 2021, six months after the office started operations. Ljubljana’s two nominees are not even confirmed yet – with Janša clarifying that they are just “temporary appointments”.9

EU justice and home affairs, once the preserve of academics and officials, has become a political battleground.

COVID-19 has further complicated matters. While most headlines rightly focus on the human and economic costs of the pandemic, the spread of the virus has created much collateral damage – including to Schengen and the EU’s single market. At the beginning of the pandemic, member-states restored, or extended, passport checks;10 and the EU imposed an entry ban on non-EU citizens. Both were not entirely unreasonable measures but were decided and applied in a hurry and rather incoherently across the EU.11 As a result, member-states grew wary of each other – questioning the ability of other European governments to deal with the crisis. More worryingly, many EU countries introduced serious and unco-ordinated restrictions on the free movement of European citizens – or banned it altogether. While the EU has to some extent managed to harmonise member-states’ criteria for when EU citizens are allowed to travel (notably through the introduction of an EU-wide COVID-19 vaccination passport), many restrictions on movement remain in place. At the time of writing, in January 2022, several member-states have re-instated lockdowns and/or other restrictions on movement within and across their borders. Border controls persist in many EU countries.

EU justice and home affairs, once the preserve of a handful of lawyers, academics and officials, has become a political battleground. Migration, security (including health security) and EU values are amongst the most contentious issues of EU policy – and ones which can win or lose elections at home. Collectively, they have created new rifts within the EU or aggravated pre-existing fault lines. The EU and its member-states tolerated Orbán’s antics until the 2015-2016 migration crisis exposed a new and important rift between Eastern and Western member-states.12 The crisis also mirrored the divisions that became apparent during the eurozone crisis between 2010 and 2012: frugal, more economically conservative member-states like Germany, Sweden and the Netherlands are also the EU’s biggest recipients of both labour migrants and asylum-seekers, while their southern, more indebted and fiscally dovish counterparts like Italy, Greece and Spain are the countries where migrants and asylum-seekers first arrive.

The row over the rule of law has intensified the split between the original EU-15 and countries which joined the EU after 2004. While security remains less divisive, as most EU countries agree that they should co-operate to combat crime and terrorism, the topic has become entangled in broader discussions over the EU’s borders, Europe’s values and political posturing over the place of religion in Europe. The European Commission even has a dedicated Commissioner for ‘promoting our European way of life’ whose portfolio includes security.

To date, the EU has dealt with each of these crises separately. This was reasonable while each problem was manageable on its own and had little or no spill-over to other parts of the EU project. But there are clear links between the EU’s migration, security and rule of law woes.

ALL ROADS LEAD TO SCHENGEN

There is a reason why all of the AFSJ’s crises seem to be happening at the same time, or in very close succession: they are connected. It is naïve to think that sizeable migration flows will not affect the way that Europeans think about security; and it is plain wrong to believe that migration, border and security issues will not spill over into other parts of EU policy-making, such as the recovery fund and the rule of law. The only reason why the EU has an area of freedom, security and justice in the first place is because of Schengen. In the words of a senior EU official, “without Schengen, laws governing criminal and civil co-operation in Europe, as well as police and intelligence collaboration, would be nice-to-have, not a must-have.”

There is a reason why all AFSJ’s crises are happening at the same time: they are connected.

To date, Schengen has managed to weather a migration crisis, several terrorist attacks and a pandemic because of two things: it involves the sharing of benefits and burdens; and it presupposes a high degree of mutual trust between its members.13 But that trust has eroded in recent years. And both the EU institutions and the member-states seem to have forgotten, or outright ignored, the compromises that are required to make Schengen work.

To benefit from the abolition of border controls between member-states, governments had to introduce so-called compensatory measures, like boosting controls on the EU’s external borders, exchanging law enforcement information through common databases and improving police and judicial co-operation between themselves.14 All these measures are based on the assumption that, by following common rules and standards, EU countries’ border, police and judicial systems will eventually become so similar that further checks will become unnecessary. This is the starting point of the AFSJ, which is based on the same principles as the original Schengen treaty (an inter-governmental treaty signed in 1985 and later expanded and transformed into EU law), but goes beyond it by including mechanisms for judicial co-operation in several areas of law, like criminal, civil and commercial law. These mechanisms include the EAW, which makes it easier to extradite criminals across the EU, and the European Investigation Order (EIO), which allows one country to carry out criminal investigations on behalf of another. Mutual recognition (in this case of each other’s goods and services) is also the modus operandi of the EU’s single market. Not coincidentally, both Schengen and the single market grew in parallel in the 1990s.

Neither Schengen nor the EU’s single market can work without trust. While the single market seems unscathed for now (with the exception of Brexit and a continuing row over lower quality products making their way eastwards), things are not looking up for the AFSJ. It is becoming clear that – despite the AFSJ’s large body of common standards – countries have very different ideas about who should be allowed in and how; what an independent judiciary is; and what the relationship between EU law and national constitutions should be.

The EU does not need to come up with flashy new plans to reform Schengen every two or three years, as it has since the migration crisis. Instead, EU leaders should focus on the underlying problem: the waning trust between member-states and the impact this lack of trust has on the area of freedom, security and justice.

WHY WANING TRUST IS A PROBLEM

Every EU crisis over the past ten years has been to some degree the result of diminishing trust between its member-states. Each of those crises has in turn fed suspicions and made countries more wary of each other. Not all the crises originate in the EU’s deficient AFSJ arrangements. But all of them have had an impact on the bloc’s area of freedom, security and justice. Take the eurozone crisis. Greece’s near-exit from the euro in 2015 unexpectedly shaped Europe’s initial response to the refugee crisis.15 In 2016, with Athens seemingly unable to control the massive flows of people trying to cross to Europe by sea, talk of a mini-Schengen, which would not include Greece, grew louder in the corridors of Brussels. Having once been accused of almost pushing Greece out of the single currency, then German Chancellor Angela Merkel was “determined not to let Greece fall again” in the words of one of her senior aides. To end the crisis without having to push Greece out of Schengen, Merkel struck a surprise deal with Turkey to return rejected asylum-seekers from Greece.

Beyond the obvious blow to the European project, the most important consequence of the bloc’s gradual loss of mutual trust is that, eventually, it may lead to the exclusion of some EU countries from the Union’s common legal space. That space includes police and judicial co-operation but also the single market: goods, people and, to an extent, services and capital move freely in the EU because citizens and companies alike rely on EU-wide standards, including court rulings. If the judiciary gets captured in a member-state, both civil and criminal law co-operation will become more difficult; businesses will be wary of setting up shop in a country where they may be subject to arbitrary laws; and people’s personal decisions, on issues such as buying a house, having kids or changing jobs, will be affected too.

The EU will not restore trust by laws or court rulings alone, because this is a political problem.

Currently, there is no formal mechanism in place to expel a country from the AFSJ. But there are two ways this can happen. The first is through a de facto exclusion of a member-state from EU judicial co-operation schemes. This is already happening when, for example, national courts stop the transfer of asylum-seekers from Germany and elsewhere back to Greece or Italy because of abysmal reception conditions. Another example is when courts in several EU countries refuse to extradite wanted people to a member-state where the courts are not perceived as independent, or where the government is distrusted by other member-states. After the UK triggered Article 50 of the Lisbon treaty to start its exit from the EU, several judges across the Union refused to extradite people there, as it was unclear whether EU law would apply to those suspected or convicted of crimes during and after Brexit. As the situation of the judiciary in Poland, Hungary and Romania has deteriorated, various European courts have refused extradition requests, as they considered that suspects’ fundamental rights might not be respected in those countries. While the ECJ has, for now, stopped blanket prohibitions on extradition (as opposed to decisions in individual cases) because of declining judicial standards, this may change in the future, especially if Poland continues openly to defy ECJ rulings.16 In any case, the Luxembourg court already allows member-states to suspend extradition if they have evidence that the rights of the suspect may not be respected – something which should not be too difficult to argue in view of the ECJ’s latest rulings on the independence of the Polish judiciary and the Commission’s own assessment of the situation in Poland, Hungary and Romania.

The second way to suspend an EU country’s membership of the bloc’s single legal area is more tricky, but not impossible. In a recent paper for the Centre for European Political Studies (CEPS), a think-tank, respected Hungarian EU law professor Petra Bárd and former Polish Ombudsman Adam Bodnar argue that the Polish Constitutional Tribunal’s October ruling should trigger a formal suspension of all AFSJ laws based on mutual recognition in Poland.17 The authors suggest that this could be done either by the EU institutions or by the ECJ. There is no article in the treaties allowing for such a suspension. But there is no article in the treaties which explicitly rules it out, either – in fact, the European Parliament has suggested that the three EU institutions (Commission, Parliament and Council) could take such a decision, if they found ‘systemic deficiencies’ in a given country after conducting regular joint reviews of the state of the rule of law in each EU member-state.18 The ECJ could, on paper, issue a ruling after concluding one of the many cases it is now examining, declaring the suspension of one or more of these laws in certain member-states. But recent case law on the suspension of European Arrest Warrants in Poland indicates that this is unlikely to happen.

The ECJ’s main problem is that, if it ruled that one or more EU laws were not applicable to an EU country because its courts lacked independence, this would make it very difficult for that country’s judges to seek the ECJ’s help when dealing with matters of EU law. All national courts are allowed to submit questions to the ECJ if they think there may be a contradiction between EU and national rules; or if they are looking to clarify obscure points of EU law. A ruling to exclude a country from mutual recognition laws would automatically imply that national judges would not be allowed to continue business as usual, including asking for preliminary rulings.19 This would have a ripple effect on the bloc: because the ECJ would not be able to interpret questions of EU law in one country, it would not be able to ensure the uniform application of EU law across all member-states.

Suspending parts of the EU acquis would be difficult and may have unintended effects. For example, suspending membership of Schengen if a country cannot guarantee that its judiciary is fully independent would be a more effective stick than the Article 7 procedure and would ensure that Schengen rights and obligations are clear to all members. But such a move, even if temporary, would be tricky: one of the benefits of Schengen is that it makes it easier for European citizens to move around the Union, in turn boosting support for the EU project.

The EU will not solve its trust problem by laws or court rulings alone, because this is a problem that stems from political, rather than legal, differences. Rebuilding trust will require a higher level of accountability over how AFSJ policies are enacted at a national level. The problem is not necessarily the result of bad faith. There is, more simply, a general lack of understanding of the provisions of the Union’s AFSJ and a lack of ambition to clarify them. Eventually, this could become a very big problem. If Europeans do not find a way to restore a shared understanding of the rules, trust that they will be enacted proportionately and that violations will be penalised, the EU’s fault lines will deepen and governments will further question the logic of open borders and security co-operation. Citizens may start to wonder what the point of the EU is, after all.

In the future, the EU should focus on rethinking the way the AFSJ works and clarifying the compromises it involves. This is no easy task. But EU leaders and the EU institutions could find inspiration in one of the ways the Union dealt with the twin financial and eurozone crises in the first part of the last decade.

FINDING HOPE IN A STRANGE PLACE: HOW THE EUROZONE CRISIS COULD HELP FIX THE EU’S AREA OF FREEDOM, SECURITY AND JUSTICE

In 2008, the world economy experienced a steep downturn when parts of the American and European financial sectors collapsed. In the EU, some member-states fared worse than others. In Greece, Portugal, Italy and Spain, the crisis exacerbated long-standing structural problems and added sky-rocketing public debt to create a perfect storm. Investors lost confidence in the creditworthiness of several of the EU’s member-states.20 As a result, many people lost trust in the eurozone altogether: the EU’s ambitious common currency came close to collapsing.

The EU institutions should to do ‘whatever it takes’ to keep the AFSJ afloat.

In an attempt to lower public debt and to regain the confidence of financial markets, member-states imposed large cuts in public spending, which took a heavy economic toll on Southern European countries. The crisis forced leaders to confront the trade-offs inherent in the single currency – between shared rules, costs and benefits – and eventually, with a lot of help from the European Central Bank, they managed to stabilise the currency.

There are parallels between Schengen, and its accompanying AFSJ, and the eurozone. Both are extremely ambitious projects in the absence of an overarching federal state. Both feature consistently amongst the most popular aspects of the EU (a single currency and passport-free travel). And both have proved to be unprepared to absorb shocks (be it a global economic crisis, a pandemic or a sudden surge in migration); and are plagued by repeated failures of member-states to abide by the rules (on deficit and debt limits, border controls, or judicial independence). But while the euro crisis instilled a sense of doom in Europe’s political elites and forced them into action, this sense of urgency has so far been missing from the EU’s AFSJ.

It is now time for the EU institutions to do ‘whatever it takes’ to keep the AFSJ afloat. A good starting point would be to set up a European Justice Semester for the EU’s area of freedom, security and justice.

The financial and sovereign debt crises exposed the failures of the EU’s monetary and macroeconomic policies. To fix them, the Union changed fiscal rules and passed new laws governing the co-ordination of fiscal and macroeconomic policies. The EU also set up more stringent oversight mechanisms, for example the common supervision of Europe’s largest banks. To streamline the regular co-ordination of Europe’s economic policy, the EU created the European Semester.

Starting in November each year, the European Commission, together with the Council of Ministers, scrutinise economic trends and individual member-states’ policies, and recommend areas for reform. EU countries then submit national plans to Brussels, explaining how they are going to follow the Commission’s recommendations. The recommendations cover a wide range of policies, from employment to childcare and civil justice. The Commission assesses the national plans, and issues specific recommendations to each of the EU-27 – and additional recommendations for eurozone members. The Council of Ministers then discusses the recommendations, which have to be endorsed by EU leaders before their adoption. In case of non-compliance, the EU can require additional monitoring, impose fines and even freeze EU funding to the offending country – though that has not yet happened. A decision to fine a country is deemed to be approved unless a qualified majority of member-states disagrees with it (a procedure known as reverse qualified majority voting). Countries which have signed the so-called Fiscal Compact, a treaty on fiscal stability, have also agreed that other decisions, such as deeming that one country has breached the rules, can also be taken by reverse qualified majority voting.

The European Semester also has a role in the disbursement of the post-pandemic recovery fund to EU countries. To qualify for recovery money, EU countries need to send their national spending plans to the European Commission, which scrutinises them and decides whether or not to grant funding. To perform this analysis, the Commission looks at many indicators, including the European Semester’s country recommendations. If the national plans do not comply with the rules of the recovery fund, European Semester recommendations, and the rule of law provisions of the conditionality mechanism, the Commission may delay the release of funds or stop it altogether – as is currently the case with Hungary and Poland.

A review mechanism called ‘European Justice Semester’ could combine elements of the European Semester and the recovery fund.

Of course, neither the EU’s economy nor the eurozone are perfect, nor have the new rules magically fixed all their problems. But, over time, EU leaders and the EU institutions realised that they could not rely on trust and outdated laws alone to keep the economy and the single currency going – they needed a renewed push to make all countries accountable for their actions. The European Semester is a small building block in the eurozone’s efforts to stabilise the currency. The EU’s post-pandemic recovery fund is taking accountability a step further by putting proper money behind a reform monitoring system. Countries are required to show how they are using the recovery money to reach the targets and milestones set by the Commission every six months. They are also required to prove that the money is properly audited and that they have made all the necessary reforms for the money to have a meaningful impact on society and the economy. In stark contrast with previous funds, if a country fails this test, the Commission and the Council of Ministers are allowed to stop payments until the errant member-state complies with the rules.

A review mechanism, combining elements of the European Semester and the recovery fund, – a ‘European Justice Semester’ – could serve as a useful tool for the EU’s area of freedom, security and justice, for three reasons.

First, it would help to establish a permanent and clearer link between policies related to Schengen – like the free movement of people or the sharing of police and intelligence information (which most countries like); and policies related to the wider area of freedom, security and justice – like the independence of the judiciary or common asylum and migration rules (which some countries do not like very much). Second, it would help solve what can be called the ‘Copenhagen paradox’, whereby democratic backsliding in some member-states means that, were they to apply to join the EU now, they would not meet the so-called Copenhagen criteria for accession on human rights and the rule of law. A regular overview of justice and home affairs policies would make it harder for countries to backslide. And third, it would allow the EU to anticipate, prepare and deal with issues of mutual trust better, before they become a Poland-sized problem and without having to resort to the ineffective Article 7 procedure for suspending voting rights in the Council.

The legal basis for a European Justice Semester for the EU’s area of freedom, security and justice would be Article 70 of the Lisbon treaty. Article 70 allows the Commission and member-states to conduct a review of policies related to the area of freedom, security and justice, “in particular in order to facilitate full application of the principle of mutual recognition.” The treaty also says that both the European and national parliaments should be kept abreast of the reviews.

A European Justice Semester for the EU’s AFSJ should follow at least seven steps:

1. The EU should begin by defining the key elements of the area of freedom, security and justice and, more crucially, the rights and obligations attached to it. Member-states would need to revise the 1999 concept of the AFSJ to bring it line with current realities. This could include, for example, making it clear that Schengen is an integral part of the AFSJ and cannot be detached from other elements, like compliance with ECJ rulings or agreements on migration policies. The hard reality is that countries cannot have the benefits of passport-free travel without recognising the authority of the ECJ or applying migration laws that they themselves have approved in Brussels.

EU leaders used to come up with multi-annual plans (‘programmes’) to set out the direction EU justice and home affairs should take. Over time, EU governments found these plans too onerous, so they quietly dropped them. Over the past seven years, there have been no policy guidelines on EU JHA beyond two Commission plans heavily focused on internal security matters (the 2015 European Security Agenda and the 2019 European Security Union). A renewed effort to make the AFSJ work, now and in the future, should come from EU leaders, not the European Commission. The European Council could hold a special summit on the future of JHA, as it did twice in the ten years after the birth of the AFSJ.

At the summit, EU countries could debate, and decide, what they want to do with police and judicial co-operation, the Schengen area and the Union’s migration policies. This should be a frank and open conversation that could be informed by the conclusions of the Conference on the Future of Europe – an EU-wide public consultation process that is due to conclude in the spring of 2022. The result should be a baseline plan for the Union’s area of freedom, security and justice which should include a monitoring mechanism based on the eurozone’s European Semester and the post-pandemic recovery fund. This plan would need to be agreed by all EU member-states by consensus. If a broad agreement cannot be found, and some countries decide not to take part, the European Council may want to resort to an inter-governmental agreement, as it has done in the past on eurozone issues. This would be unideal, though – EU governments and the EU institutions, in particular the European Council, should try to get all member-states on board. Once the plan is in place, decisions should be taken either by qualified majority voting or by reverse qualified majority voting.

JHA policies should reflect the experience of the economic side, where setting down too-specific targets became a headache.

2. Building on the European Council guidelines, the Council of Ministers, together with the European Commission, could set up a broad system of standards that all members of the club should abide by, with a clear warning that these standards are linked, and that failure to abide by some could lead to a range of penalties. Both the new concept and the list of standards should be approved by the European Parliament and endorsed by the European Council, to ensure broad political support and citizen engagement and to diminish the risk of non-compliance.

3. On the basis of the list of standards, the European Commission could propose a review process similar to the European Semester. The Commission could monitor trends, for example on judicial reforms, and set clear guidelines every, say, 18 or 24 months. The Commission could use these guidelines to flag issues that it considers to be in violation of EU rules (for example, the Polish reform of the judiciary that discriminates between male and female judges) and to suggest ways to fix them. Once the Commission issues its guidelines, member-states would need to present their plans on a range of JHA policies (civil justice, criminal justice, the state of the judiciary, intelligence gathering, police practices and the status of asylum reception facilities, for example), which would then be discussed by the Council of Ministers and approved by the Commission. This is the type of peer review that Article 70 refers to.

4. The Commission would then review the national plans and come up with country recommendations, broken up by chapters (civil justice, criminal justice, border controls, fundamental rights and so on). The recommendations would need to be approved by the Council of Ministers by qualified majority voting (without the vote of the country in question).

5. Member-states would commit to implementing the recommendations during the rest of the policy cycle. This step would be different from the European Semester in two ways: first, unlike with the Semester, EU countries would have to explicitly say that they would follow the recommendations each time; second, JHA policies are not budgets requiring annual approval, so a European Justice Semester experiment could run for longer periods, of, say, 18-24 months.

6. National governments and the European Commission could set up dedicated teams to ensure regular communication between the EU institutions and EU capitals. An early warning mechanism to spot problems before they become unmanageable could also be part of the plan. The mechanism could be similar to the six-month review devised for the disbursement of the recovery fund.

7. The most difficult part of the exercise would be to agree on, and enforce, sanctions. JHA policies should reflect the experience of the economic side, where setting down too-specific targets has become a major headache for policy-makers. The current debate over the suspended Stability and Growth Pact (SGP) is a case in point: the SGP fixes targets for government deficits and debt. But the rules have proven to be unhelpful in recessions. EU countries froze the Pact when the COVID-19 pandemic hit and are starting to consider reforms to the fiscal rules and when to reactivate them. JHA policy-makers should avoid such hard targets, which would do little to mend wounds or make the AFSJ more resilient to crises.

As a first step, EU member-states should agree on a warning procedure that would apply to countries which have been found to deviate from the standards repeatedly. The Commission and the Council of Ministers, acting by reverse qualified majority voting, could, for example, decide to apply the procedure to a country which had failed to address recommendations twice in a row (that would be two cycles of 18-24 months). The country could respond by amending its actions or face the suspension of EU funds, also agreed by the Council by reverse qualified majority voting.

Ultimately, EU countries will have to decide whether they want to impose more serious consequences on countries which repeatedly fail to abide by the rules. Radical solutions, like suspending parts of EU law for recalcitrant members, may be tempting but will be difficult to apply in practice and might backfire.

A more workable idea would be to ‘freeze’ the application of specific laws, like the EAW or EIO. To be effective in discouraging governments from behaving badly, such a freeze should be swiftly agreed upon by reverse qualified majority voting if a country persists in breaching EU rules for a long time; or if the behaviour is serious enough to put the whole AFSJ at risk. To target unruly governments without punishing citizens, any suspension of certain parts of the acquis should never amount to a total exclusion of one member-state from the EU’s common legal area: all national courts should be able to resort to the ECJ when they need to; and no EU citizen should lose the right of effective judicial protection at the EU level as a result of their government’s actions.

This roadmap would build on existing EU initiatives like the rule of law mechanism (a dialogue between the EU institutions, national governments and civil society about the state of the rule of law in the member-states) and the Schengen evaluation process (a peer review of the way countries apply Schengen laws in their territory, which the Commission has recently proposed to expand). It could scrap existing but inefficient initiatives like the justice scoreboard, by streamlining the oversight of the judiciary across member-states while still taking into account different legal traditions.21 It would also include more recent developments like rule of law conditionality.

If countries do not accept that membership of Schengen brings both rights and obligations, the project may fail.

To work, a European Justice Semester cannot be a purely procedural plan, driven solely by the EU institutions. Such a plan would need the highest political backing every step of the way, and this will not be easy. The one lesson Europe has learnt from the SGP problems is that no-one can resolve an ambitious political challenge, like the euro, with a non-political solution. Any plan to build back trust in the EU’s area of freedom, security and justice should ideally include all member-states. It would only be a distant second best if it was restricted to a handful of member-states. Although once up and running a European Justice Semester could bypass blocking minorities, its basis would need a general consensus on the direction that the EU wants to take when it comes to its area of freedom, security and justice.

A European Justice Semester would need broad public support. The EU’s response to the eurozone crisis may have ultimately helped to avert the demise of the single currency, but it was deeply unpopular in many member-states on account of the pain caused by austerity and economic dogmatism. While some EU leaders remain stubbornly fond of fiscal measures, the pandemic has made their case weaker: the recovery fund has opened the door for a new way to help troubled countries while making them accountable for their actions – by making the fund performance-based. As a result, both Southern and Northern governments (and their voters) have been – touch wood – fairly cheerful about it, as it has something for every-one. A European Justice Semester would need to focus on performance, solidarity and accountability if it is to enjoy broad support across the EU.

CONCLUSION

Some EU governments complain that the EU they joined was about passport-free travel, a budding common currency and the world’s largest single market. The contract they signed said nothing about same-sex marriages, judicial reform or women’s rights. This argument may be illiberal but is not entirely untrue: Europe has changed drastically over the past 20 years. The problem with this line of thought is that it fails to grasp that governments and institutions must and will adapt to a changing society.

So far, the EU’s area of freedom, security and justice has failed to keep pace with a changing world: for the most part, the AFSJ remains stuck at the beginning of the century, when all EU countries seemed to be happy to increase police and judicial co-operation and did not contemplate border closures or democratic backsliding. This, in turn, has increasingly made the AFSJ unable to deal with a succession of crises, each of which has made EU countries less trusting of each other. EU leaders must understand that if countries do not accept that being part of Schengen brings both rights and obligations, the project may fail – or, at the very least, become smaller.

NOTES

1: European Commission, ‘Standard Eurobarometer 95 – Spring 2021’, September 2021.
2: Sophia Besch, Ian Bond and Camino Mortera-Martínez, ´Plugging in the British: Completing the circuit´, CER policy brief, June 22nd 2018.
3: Article 2 Treaty on European Union, 1997. The Amsterdam treaty was signed in 1997 but only entered into force in 1999.
4: Viktor Orbán, Speech at the 25th Bálványos Free Summer University, July 26th 2014.
5: Both the Commission and the European Parliament can trigger Article 7 when they consider that there is a clear risk that a member-state may breach one or more of the EU´s founding values. These are listed in Article 2 of the Lisbon Treaty and are: respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities among others. Once the proceeding is launched, it is up to the Council of Ministers to impose sanctions.
6: After coming to power in 2015, Law and Justice and its coalition partners launched a major overhaul of Poland’s judiciary. First, the government packed the Constitutional Court with friendly judges; second, the government revamped the judiciary’s governing body, the National Judiciary Council, and changed how both ordinary courts and the Supreme Court functioned. The reform also lowered the retirement age of judges, which allowed the government to force out magistrates seen as hostile to it and replace them with younger, pro-government judges. Further reforms introduced disciplinary procedures that could be used against judges who wanted to apply certain EU laws, or submit preliminary questions to the European Court of Justice – an important feature of the EU’s legal system.
7: In December 2016, the Danish Supreme Court ruled that EU principles deriving from ECJ rulings should not be applicable in Denmark, as they do not derive from the EU treaties. In May 2020, the German Constitutional Court ruled that the ECJ had overstepped its power when it ruled that the European Central Bank’s public sector purchase programme (PSPP) was legal. In April 2021, the French Conseil d’État (France’s highest administrative court) ruled that French intelligence services could breach EU laws protecting privacy because the EU does not have equivalent laws protecting citizens’ safety. In June 2021, the Romanian Constitutional Court said that the Romanian constitution should always have primacy over EU law; and that an ECJ ruling saying that Romania’s recent judicial reform was against EU law was not enforceable in Romania.
8: Camino Mortera-Martínez, ´Catch me if you can: The European Arrest Warrant and the end of mutual trust´, CER insight, April 1st 2019.
9: Wester van Gaal: ‘Slovenia finally appoints ‘temporary’ EPPO prosecutors’, EU Observer, November 19th 2021.
10: Some member-states, like Sweden, introduced border controls in 2015 following the EU’s migration crisis and have not lifted them since.
11: Camino Mortera-Martínez: ‘Will the coronavirus pandemic deliver a coup de grâce to Schengen?’, CER bulletin article, September 20th 2020.
12: Hugo Brady, ‘Openness versus helplessness: Europe’s 2015-2017 border crisis’, Groupe d’études géopolitiques, June 28th 2021.
13: Raoul Ueberecken, ‘Schengen reloaded’, CER policy brief, November 11th 2019.
14: Ueberecken, ‘Schengen reloaded’.
15: Agata Gostyńska-Jakubowska and Camino Mortera-Martínez: ‘Thomas Cromwell or the executioner’s axe? Options for a Grexit’, CER insight, July 10th 2015.
16: See, for example, the following ECJ cases: joined Cases C-404/15 and C-659/15, Aranyosi and Căldăraru; case C‑216/18, LM; and joined cases C‑354/20 and C‑412/20, L and P. The Dutch government is pushing for a blanket ban on extradition to Poland in an ongoing case before the ECJ – C-562/21 Openbaar Ministerie.
17: Petra Bárd and Adam Bodnar: ‘The end of an era: The Polish Constitutional Court’s judgment on the primacy of EU law and its effects on mutual trust’, CEPS, October 25th 2021.
18: Committee on civil liberties, justice and home affairs: ‘Report on the establishment of an EU mechanism on democracy, the rule of law and fundamental rights’, European Parliament, 2020/2072(INL), September 29th 2020.
19: Lukas Märtin: ‘Das Damoklesschwert über der europäischen Rechtsordnung: Vom europäischen Haftbefehl und der Gefahr der Verrechtlichung politischer Konflikte’, Verfassungsblog, December 1st 2021.
20: Marcin Szczepanski, ‘A decade on from the crisis: Main responses and remaining challenges’, European Parliamentary Research Service, October 17th 2019.
21: The justice scoreboard is a Commission-led review of the performance of national judiciaries. To do this, the Commission decides on a set of indicators, often not comparable, across member states and assesses them against a set of pre-decided criteria. Member-states are often reluctant to provide information to the Commission and regularly argue that the scoreboard does not take into account different legal traditions across the EU.

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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The Bratislava Declaration on migration: European irresponsibility instead of solidarity

ORIGINAL PUBLISHED ON OMNIA (Odysseus Network) SITE (27 Sep 2016)

By Phillippe De Bruycker (ULB/EUI) & Evangelia (Lilian) Tsourdi (Max Weber Fellow, EUI)

The Bratislava Declaration refers on two occasions to “the principles of responsibility and solidarity”. The basic idea is to “broaden EU consensus” by devising a “long term migration policy” on the basis of the two principles.

At first look, this seems logical and even advisable. Since 2015, the EU has been unable to respond effectively to the ‘refugee crisis’. It is only the fragile ‘deal’ with Turkey that brought the illusion of a solution by externalising asylum provision to a third country. The EU remains profoundly divided about possible internal solutions. A European East-West divide has appeared, in addition to the well-known North-South division about the principles evoked in the Bratislava Declaration. Member States in the South have been complaining for years about the lack of solidarity measures, while many Member States in the Northwest have castigated them about their inability to implement their responsibilities. More recently, Member States in the Central/Eastern part of the EU (more precisely the Visegrad group consisting of Hungary, the Czech Republic, Slovakia and Poland) are refusing, ostensibly in the name of responsibility, to engage in the type of solidarity requested by no longer only the Member States in the South, but also those in the Northwest.

The objective to heal the wounds and reunify EU Member States around the same principles of solidarity and responsibility appears reasonable and even attractive in this setting. If all Member States (including those in the South) are fully responsible, the others (in particular those in the East) will demonstrate greater solidarity, so that the problem may be solved in a balanced way. This presentation based on an opposition between responsibility and solidarity is, however, simplistic and even incorrect from a legal point of view. If there is indeed in EU law a precise legal provision that can be considered to embody responsibility, applicable in the same manner throughout EU law, the same does not hold true for solidarity (1). Moreover, effective solidarity and fair sharing are a prerequisite to responsibility in EU migration and asylum policies, rather than the other way round (2).

1. More responsibility than solidarity in EU law in general

When searching in the EU treaties for the word “responsibility”, Article 165(1) TFEU provides an excellent example of the kind of answer that appears: following this provision, “The Union shall contribute to the development of quality education by encouraging cooperation between Member States and, if necessary, by supporting and supplementing their action, while fully respecting theresponsibility of the Member States for the content of teaching and the organisation of education systems and their cultural and linguistic diversity”.Responsibility refers in this sense simply to competence.

Responsibility understood as competence can be envisaged as a power as well as a duty. It is not so surprising that this notion has been linked in the case law of the Court of Justice with the principle of loyalty, now referred to as the principle of sincere co-operation under Article 4(3) TEU. The principle embodies, respectively, a positive obligation (taking measures to ensure fulfilment of obligations), and a negative obligation (abstaining from measures that could jeopardize this fulfilment). It is this first part that is often evoked by Member State governments; with ‘responsibility’ they refer to Member States’ duty to fulfil their obligations and honour their commitments under EU law.

Loyalty has been made explicit under Article 4(3) of the TEU. The principles of loyalty and solidarity are sometimes used interchangeably in legal scholarship, with loyalty considered a facet of solidarity. Under this understanding, the responsibility of Member States to implement their obligations under EU law is a sign of solidarity to each other. This is, however, a narrow understanding of solidarity, which is a notion different from responsibility.

When searching in EU treaties for the word ‘solidarity’, one finds, in particular since the Lisbon Treaty, more results than a similar search for ‘responsibility’. In some instances, solidarity fulfils an aspirational role, providing political orientation, rather than forming the basis of legally binding duties. For example, following article 3(5) TEU, “In its relations with the wider world, the Union shall (…) contribute to peace, security, the sustainable development of the Earth, solidarity and mutual respect among peoples…”

However, in other areas solidarity forms the basis of concrete actions and legally binding duties as in article 222(1) TFEU, following which “The Union and its Member States shall act jointly in a spirit of solidarity if a Member State is the object of a terrorist attack or the victim of a natural or man-made disaster. The Union shall mobilise all the instruments at its disposal, including the military resources made available by the Member States, to:

(a) – prevent the terrorist threat in the territory of the Member States;

– protect democratic institutions and the civilian population from any terrorist attack;

– assist a Member State in its territory, at the request of its political authorities, in the event of a terrorist attack;

(b) assist a Member State in its territory, at the request of its political authorities, in the event of a natural or man-made disaster”.

These latter provision shows that solidarity is not linked with the fulfilment of responsibilities but rather with providing assistance to other Member States in order to allow them to implement their obligations.

Interestingly, solidarity understood in this sense does not have the same status as responsibility understood as loyalty. There is indeed no legal provision of solidarity applicable throughout different policies that would create a general duty to support, but rather different and more or less strong expressions of solidarity. As a consequence, one has to examine each particular policy and the provisions in the EU treaties pertaining to it in order to ascertain whether there are concrete solidarity duties and what the extent of these may be. This leads us to the meaning of solidarity in policies on border checks, asylum and immigration as governed by Articles 77 to 80 TFEU.

2. More solidarity than responsibility in EU migration and asylum policies

When searching for the word ‘responsibility’ or ‘responsible’ in those provisions, there are four hits. Firstly, Article 72 states that the EU competences regarding border checks, asylum and immigration do not affect the “responsibilitiesincumbent upon Member States with regard to the maintenance of law and order and the safeguard of internal security” and, secondly, in Article 73, following which “it shall be open to Member States to organise between themselves and under their responsibility forms of cooperation and coordination as they deem appropriate between the competent departments of their administrationsresponsible for safeguarding national security”. Responsibility in those provisions refers to the notion of competence, i.e. that the Member States remain competent for the maintenance of law and order and internal security, and even exclusively competent for national security.

Another ‘hit’ is found in Article 78(2), requesting the European Union to adopt measures for a common European asylum system comprising, under point (e), “criteria and mechanisms for determining which Member State is responsible for considering an application for asylum or subsidiary protection”. This is the legal basis of the famous “Dublin System”, based on Regulation 604/2013, determining the responsible Member State for examining an application lodged in the EU. As the flaws of this system have already been analysed in numerous publications,including in this blog, it is not necessary to explain them once more.

Let us just remind ourselves that the origin of this regulation goes back to aConvention signed in Dublin on 15 June 1990 (this explains why specialists of EU asylum continue to speak about ‘Dublin’ in relation to this system). The aim of this system is to indicate which Member State is competent when an asylum application is introduced in the EU on the basis of a certain number of criteria. In practice, the responsible Member State will more often than not be the one of the legal or illegal first entry of the third-country national to the EU.

Responsibility in this regulation refers to the idea of competence regarding the examination of asylum applications, so that all Member States have to deal with the asylum applications for which they are responsible. The problem is that the Dublin system was not devised on the basis of solidarity. On the contrary, apart from exceptions based on the right to family unity, or the rights of the child, it is premised on the idea that each Member State should deal with the applications of asylum seekers whose presence is attributable to actions of that Member State. This could be either because it let them enter the EU voluntarily by issuing a visa or residence permit, or involuntarily by not controlling its external borders effectively. It is not a coincidence that the Dublin system was conceived by the North-Western Member States who drafted the Schengen Convention (France, Germany, Belgium, the Netherlands and Luxembourg) which is at the origin of the Dublin Convention. Solidarity was not an issue at that time in such a small and coherent space. Moreover, Dublin was devised in a purely intergovernmental framework, a decade before the beginning of the implementation of the supranational method with regard to asylum policy, as introduced by the Treaty of Amsterdam, without any actor such as the European Commission looking out for the general interest rather than the national interest of each State. It is an excellent example of the kind of measure that Northern governments managed to impose on other Member States of the European Union, who can try to amend it subsequently, although only with the support of those governments, which explains why this has not been possible regarding the core of the system with the regulations Dublin II in 2003 and Dublin III in 2013.

This is crucial as this policy is, like the area of external borders, characterised by asymmetric burdens between the Member States due to the fate of geography. Following this logic, Greece should have examined all the asylum applications that could have been introduced by the hundreds of thousands of third-country nationals who entered the EU through its borders during the year 2015. It should also have intercepted the persons trying to enter the EU through the Greek borders without the requested documents (a passport with very often at least a short-term visa), as well as taken their fingerprints in order to store them inEurodac, a database helping to determine in practice the responsible Member State. In this particular case, it would mean that Greek authorities should have assumed responsibility of one million third-country nationals just because they entered the EU through the Greek territory.

Does it mean that the Southern Member States are legally wrong when they ask for solidarity from the other Member States, and that they should instead, or at least firstly, fulfil their responsibilities deriving from EU law? The answer is actually much more complicated due to Article 80 TFEU, which reads as follows:“The policies of the Union set out in this Chapter and their implementation shall be governed by the principle of solidarity and fair sharing of responsibility, including its financial implications, between the Member States. Whenever necessary, the Union acts adopted pursuant to this Chapter shall contain appropriate measures to give effect to this principle”.

This provision is one of those detailing the idea of solidarity in the policies for border checks, asylum and immigration. A quick reading may give the impression that this provision is precisely about two principles that have to be balanced, much like in the Bratislava Declaration. Under this reading, Member States should first fulfil their responsibilities by applying the Dublin Regulation and assuming responsibility for the asylum seekers arriving on their territory before they can expect solidarity. In the event of a failure to take up their responsibilities, they should not expect solidarity, or rather they should be found ‘undeserving’ of it.

However, this provision is about one and not two principles and, more importantly, about the principle of “solidarity and fair sharing of responsibility”.It is interesting to note that the words “fair sharing of” have simply been omitted from the Bratislava Declaration, while they completely change the meaning and content of what is at stake. Instead of an opposition between responsibility and solidarity that should be balanced against each other, the idea of fair sharing of responsibility actually reinforces that of solidarity. The policies of the Union on border checks, asylum and immigration are governed by the principle of solidarity, and responsibilities between the Member States in these areas must be shared in a fair way. If one will agree that fairness leaves some margin of discretion to the European Union, this notion refers to the ideas of equity and justice and thus provides an indication about how the EU policy on borders, immigration and asylum must be conceived and implemented.

It therefore appears that the legal obligation of the EU is not to balance the two principles of solidarity and responsibility, but rather to realise solidarity through a fair sharing of responsibilities. This means also that the concerned Member States should not be expected to implement Dublin as pre-condition for solidarity, but should instead benefit from a system aiming at a fair sharing of responsibility between all EU Member States. Some will say that Dublin is as such not contrary to EU law and that the system could be accompanied by “appropriate measures to give effect to the principle of solidarity and fair sharing of responsibility”, following the wording of Article 80 TFEU. The problem is that Dublin is the source of the asymmetric burdens between Member States, so that it seems difficult to amend or revise it without reversing the basic principle on which it is based.

Conclusion: responsibility or irresponsibility?

Nothing about this constitutional requirement is mentioned in the Bratislava Declaration. On the contrary, the issue of the relocation of asylum seekers, as a concrete solidarity measure at the core of the debate since 2015, has simply disappeared from the agenda, despite the call of the first summit of the Mediterranean countries of the EU organized in Athens on 9 September. This is the case despite the fact that the relocation measures were based on mandatory EU rules, which most Member States do not apply, while some of them openly challenge them, for instance Hungary through the organisation of a referendumcalling the population to vote against them.

What remains is a kind of “flexible solidarity”, following the words of the joint statement of the Heads of Governments of the V4 Countries (the Visegrad group) defined as a concept that “should enable Member State to decide on specific forms of contribution talking into account their experience and potential”, knowing that “any distribution mechanism should be voluntary”. Some observers have already tried to imagine what this could entail. This will become clearer when the Council of Ministers takes a position on the Commission proposal reforming the Dublin system (Dublin IV), which contains a relocation mechanism that appears ambitious but that would in fact be dysfunctional, as underlined by Francesco Maiani in his report for the European Parliament. The European legislator should keep in mind that, despite the discretion left by this provision, Article 80 TFEU requires a strong solidarity mechanism aiming at “fair sharing of responsibility” between the Member States.

The retreat of the EU regarding the issue of solidarity had actually been announced by the President of the Commission himself in his State of the Union speech, where he stated that “Solidarity must be given voluntarily. It must come from the heart. It cannot be forced”. This clearly contradicts the mandatory character of the relocation decision, which was imposed on 22 September 2015 by a qualified majority in the Council against the opposition of Hungary, Slovakia, Romania and the Czech Republic.

The Bratislava Declaration announces a double evolution. First, a so-called principle of responsibility is prioritised over the principle of solidarity and fair sharing, the latter reduced to a “commitment by a number of Member States to offer immediate assistance to strengthen the protection of Bulgaria’s border with Turkey and continue support to other frontline States”. Secondly, “the objective to ensure full control of external borders” is prioritised over the asylum policy, which is not even mentioned in the text.

The so-called “responsibility to ensure full border controls” is nothing else than a rhetoric contrary to the Treaties, ignoring that the Schengen Borders Code is without prejudice to the rights of asylum seekers (see in particular Articles 3 and 4 of Regulation 2016/399 codifying the Schengen Borders Code). Trying to convince public opinion that asylum seekers can simply be rejected at the border without any further examination of their claim is not only illegal but also populistic. This has proven to be impossible, even in the case of a safe third-country, for example Turkey on the basis of the EU/Turkey agreement of 18 March 2016 (see in this blog Henri Labayle’s ‘The EU-Turkey Agreement on migration and asylum: False pretences or a fool’s bargain?‘).

The President of the European Council, Donald Tusk wrote in his letter of invitation to the Bratislava Summit that “Europeans all too often heard politically correct statements that Europe cannot become a fortress and that it must remain open”. This is indeed not the case of the Bratislava Declaration where the Heads of State and government want to improve the communication with citizens through the “use of clear and honest language (…) with strong courage to challenge simplistic solutions of extreme or populist political forces”. The problem is that they do exactly this by pretending to build a Fortress Europe, that is de jure impossible. They probably want to prove that this is possible de facto. This is nothing less than European irresponsibility instead of solidarity.

‘Inside’ the European Parliament’s Closed Reading Rooms: Transparency in the EU

ORIGINAL PUBLISHED ON EU LAW ANALYSIS

by Dr Vigjilenca Abazi (Assistant Professor of European Law Maastricht University)

What do documents about negotiations of the Transatlantic Trade and Investment Partnership (TTIP), oversight of the EU’s Food Safety Authority or Tax-Justice have in common? In order to access these documents, (selected) Members of the European Parliament are requested to attend closed reading rooms. This blog post discusses how an exception to open parliamentary oversight is increasingly becoming a regular institutional practice and questions its spillover effect on requests for public access to documents.

Background

As the wording suggests, ‘closed reading rooms’ are meetings that take place behind closed doors with the purpose of reading certain sensitive documents, particularly EU official secrets. Documents are distributed at the beginning of the meeting and collected again at the end; documents may not be copied by any means, such as photocopying or photographing; no notes may be taken; and the minutes of the meeting cannot make any mention of the discussion of the item containing official secrets (Art. 6, Interinstitutional Agreement between the European Parliament and the Council of 12 March 2014).

Closed reading rooms are an exception to generally open meetings and discussions of the European Parliament. This practice emerged with the introduction of rules on EU official secrets and specifically the Interinstitutional Agreement of 2002 between the European Parliament and the Council concerning European Parliament’s access to sensitive information in the field of security and defence policy (see Art. 3 and Annex, second paragraph). The rationale of what this Agreement called ‘secured room’ was to make sensitive documents available for purposes of parliamentary oversight without ‘risks’ of public disclosure or possible leaks, i.e. unauthorised disclosure of documents.

Initially, this practice was mostly confined to the area of security and defence for documents classified as official secrets. Yet, with the expansion of rules on EU official secrets to areas well beyond security and defence to ‘activities in all areas that require handling classified information’ via a Council Decision on official secrets in 2013, the use of closed reading rooms by MEPs to access sensitive documents became an increasing practice.

Closed Oversight

At first glance, closed reading rooms, or more generally ‘closed oversight’ (as I have elaborated in-depth in this recent article), might seem an inevitable institutional practice when dealing with official secrets and certainly this is not an issue confined to the EU, but a much wider world practice of oversight (e.g. see here for a recent report). Yet, the following salient questions arise:

Is it possible to keep account of closed oversight?

Accountability does not stop with executive institutions. It is equally important that oversight actors, such as the European Parliament, have appropriate institutionalised processes of keeping track of documents that have been reviewed, that meeting minutes reflect at least in some broad sense what has been discussed when official secrets are involved, or any other means that leave a traceable mark of institutional oversight having taken place. As the current procedure of getting access to official secrets stands (see above section on ‘background), it seems that keeping (some sort of public) track of the oversight process is deeply challenging.

To what extent intra/inter institutional rules alter primary law oversight architecture?

Another disconcerting aspect to closed oversight is the way it has been developed, i.e. mostly through rules of procedure and inter-institutional agreements. Indeed, EU institutions in line with primary law have clear prerogatives to make arrangements for their cooperation and to set out their rules of procedure (see respectively Art. 295 TFEU, Art. 240(3) TFEU). However, it remains to be more critically discussed whether this route of designing how oversight will take place in practice follows the constitutional principle of openness in the EU in full spirit and to what extent it alters the process of oversight in EU.

Does recent case law offer insights on closed oversight?

In a series of recent cases, the CJEU has clarified the relevance, scope and procedural aspects of institutional access to information by the European Parliament in the context of international negotiations (see previous EU Law Analysis blogs here and here). However, case law does not address the manner in which these documents should be read and importantly, primary law only refers that accessibility to information is ‘immediately and fully’ (see Art. 218(10) TFEU) with no further details as to how access ought to be organised.

What about public deliberation?

A crucial role for the European Parliament as the direct representative of citizens (Art. 10 TEU) is to provide a link between what takes place in Brussels and what citizens know. But actively creating space for public deliberation and prompting public debate on issues that are overseen behind closed doors remain yet to be delivered by the European Parliament.

Spillover Effect Even to Public Access to Information?

Recently four MEPs filed a public access request to the European Food Safety Authority to gain access to unpublished studies determining the carcinogenicity of glyphosate on basis of which EFSA made its assessments. EFSA was not immediately open to provide public access to these studies. Remarkably, in its response, EFSA offers a ‘physical reading room’ for the MEPs to read these studies and reasons that the owners of these studies seem open to sharing the studies in this manner.

In other words, the EFSA is offering the MEPs a closed room to read the studies as a response to a public access request that should result in making the documents public, not only for these four MEPs but also for the general public. It should be stressed that the EU public access to documents regime does not foresee ‘physical reading rooms’ and indeed that would be contrary even to its rationale of granting the widest possible public access to documents. It seems that in the eyes of EFSA, a closed reading room offers a ‘solution’ to the potential unwillingness of the authors of these studies to disclose the documents. Yet, this possibility is also completely outside the legal contours of public access to information. Legally, authors of these studies do not have a veto on whether the studies would be public and certainly do not have prerogatives to decide how public access to documents should be organised in practice.

The EFSA response is ongoing and the four MEPs have still not received access to all requested documents. Yet, beyond this case, is the practice of closed reading rooms expanding not only toinstitutional access but also to public access to documents? This is a issue that we should continue to examine more closely.

Leaving the EU: UK Parliament’s Role in the Process

Published Thursday, June 30, 2016

Following the result of the referendum held on 23 June 2016, this House of Lords Library briefing examines what Parliament’s role would be in the process of withdrawing from the European Union in several key areas: invoking Article 50; overseeing the negotiation process; ratifying agreements; repealing and reviewing domestic legislation.

Jump to full report >>

Following a vote in the referendum on 23 June 2016 in favour of the UK leaving the European Union, the Prime Minister said that this decision “must be accepted”, adding that “Parliament will clearly have a role in making sure that we find the best way forward”. Drawing on parliamentary material and recent legal and constitutional comment, this Library briefing examines what Parliament’s role would be in the process of withdrawing from the European Union in several key areas:

Invoking Article 50—The Prime Minister has said it would be for his successor and his or her Cabinet to decide whether the House of Commons should have a vote on the decision to trigger Article 50, the formal process set out in the Treaty on European Union for member states to follow should they decide to leave the EU. Some legal commentators agree that prerogative powers would enable a Prime Minister to take this decision; some have suggested that Parliament could have a role, and others have gone further, arguing that prior parliamentary approval would be required before Article 50 could be invoked.

Overseeing the Negotiation Process—Formal negotiations between the UK and the European Union would not begin until the UK made a notification under Article 50 of its decision to withdraw from the EU. Parliament’s involvement in overseeing or scrutinising such negotiations has not yet been set out in great detail. The chair of the House of Lords European Union Committee has called for Parliament to be “fully involved” in the process.

Ratifying Agreements—Parliament would have a statutory role in ratifying an eventual withdrawal agreement and any other international agreements arising from the negotiations if they were subject to the usual procedure for ratifying treaties. The House of Commons potentially has the power to block the ratification of a treaty indefinitely; the House of Lords does not. Under the terms of Article 50, the UK’s membership would cease two years after it gave formal notification of its intention to leave, if no withdrawal agreement had come into force by that point, although the two-year period could be extended on the unanimous agreement of all EU member states.

Repealing and Reviewing Domestic Legislation—As part of the process of leaving the EU, decisions would need to be made about how to deal with existing domestic legislation passed to enable EU law to have effect in the UK, a process which the House of Lords European Union Committee has described as “domestic disentanglement from EU law”. Parliament would have an important role to play in reviewing, repealing, amending and replacing legislation, a process which is predicted by many to be complex and time-consuming. Once the UK had formally triggered Article 50, its timescales would apply independently of Parliament approving domestic legislative changes associated with leaving the EU.

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Openness, Transparency and the Right of Access to Documents in the EU

THIS IS AN “In-depth analysis” FOR THE PETITIONS COMMITTEE OF THE EUROPEAN PARLIAMENT. FULL TEXT ACCESSIBLE HERE

AUTHORS : Deirdre CURTIN, Päivi LEINO-SANDBERG.

Abstract . Upon request of the PETI Committee, the Policy Department on Citizens’ Rights and Constitutional Affairs commissioned the present analysis, which examines the situation in relation to openness, transparency, access to documents and information in the EU. Case law and developments in the jurisprudence of the CJEU are examined, notably for legislative documents, documents relating to administrative proceedings, to Court proceedings, infringement proceedings and EU Pilot cases, protection of privacy and international relations. Current and future challenges, as well as conclusions and policy recommendations are set out, in order to ensure compliance with the Treaties’ and Charter of Fundamental Rights’ requirements aimed at enhancing citizens’ participation in the EU decision-making process, and consequently stronger accountability and democracy in the EU.

OPENNESS, TRANSPARENCY AND THE RIGHT TO ACCESS DOCUMENTS IN THE EU

The Treaty of Lisbon, in force since December 2009, includes a number of reforms emphasising open-decision making, citizen participation and the role of transparency and good administration in building up the democratic credentials of the European Union (EU).

As regards democratic decision-making and transparency in particular, a specific Title in the Treaty on the European Union (TEU) now includes a number of core provisions on democratic principles, applicable in all areas of Union action.

They underline the principle of representative democracy through the European Parliament, representing the citizens directly at Union level, and through the governments forming the European Council and the Council and that are democratically accountable either to their national parliaments, or to their citizens.1

Even participatory democracy enjoys a pivotal role in the new Treaty framework; in order to guarantee the right of ’every citizen’ to ’participate in the democratic life of the Union’, the Treaty establishes that ’[d]ecisions shall be taken as openly and as closely as possible to the citizen’ and that both citizens and representatives should be given opportunities to ’make known and publicly exchange their views in all areas of Union action’.2

These provisions have a linkage both with the new citizens’ initiative3 and with Article 15 TFEU, which places the legislature under an obligation to act publicly, and establishes that citizens have the right to access documents held by all Union institutions, bodies and agencies.

The right of access to documents, and its nature as a fundamental right, is further emphasised by Article 42 of the EU Charter of Fundamental Rights, which now enjoys ‘the same legal value as the Treaties’.4

In practice, open decision-making is to a large extent realised through the right of the general public to access documents. Regulation No 1049/2001 on public access to documents held by the EU institutions (Access Regulation),5 builds on the principle of ‘widest possible access’, and has together with case law been instrumental in operationalising the right of citizen access by establishing procedures and standards for the exercise of their democratic rights.

All documents held by the European Parliament, Council and Commission are public, as the main principle, but certain public and private interests are protected through specific exceptions under Article 4. But as exceptions derogate from the principle of the widest possible public access to documents, they must, according to established case-law, be interpreted and applied narrowly.6

Article 15(3) TFEU extends the public right of access to documents of all the Union institutions, bodies, offices and agencies. The Court of Justice, the European Central Bank and the European Investment Bank are subject to this provision only when exercising their administrative tasks.

The original 2001 Regulation only directly applies to the European Parliament, the Council, and the Commission. However, its application has been extended to the agencies by virtue of a specific provision in their respective founding acts. Furthermore, a number of institutions and bodies have adopted voluntary acts laying down rules on access to their documents which are identical or similar to Regulation No 1049/2001.

It has been 15 years since the adoption of Regulation No 1049/2001. In the same time frame the Commission and the Council set about adopting internal rules based on their rules of procedure on security and other classifications for documents. Such rules continue to exist in amended form today and exist alongside the legislative rules on access to documents.

Discussions on the reform of Regulation No 1049/2001 have been pending since 2008.7

While one would think that the tendency was – in line with the recent Treaty reforms – to strengthen the rights of citizens further, in fact the opposite seems to be the case, with discussions on reform mainly circulating around new ways to limit citizen access,8 many of them in rather fundamental ways that seem to be at odds with the letter of the Treaties.

These discussions bear witness to what seems to be a change of paradigm and priorities.

The tendency since the Treaty of Maastricht has been to strengthen the rights of citizens,9 now this objective seems lees squarely at the forefront of either the policy agenda or actual institutional practice. Staffan Dahllöf, a journalist specialising in freedom of information, describes the situation as follows: The voices asking for openness and citizen’s involvement are today weaker and fewer than they were when the present rules were decided in 2001 – at least amongst the Member State governments, and definitely in the Commission. It’s more like the Empire strikes back.10

Since there is a complete impasse in the legislative procedure (already for a very long time) on amending the 2001 Regulation, the role of the CJEU is very much centre-stage with litigants attempting to challenge a range of embedded secretive practices across a range of institutions and tasks.11

From a democratic point of view this can be considered problematic as it shifts responsibility from the EU legislator to the courts who cannot re-design the system in the required manner but deal with issues on a case by case basis, as and when they are brought before it. The same applies to the European Ombudsman, although her work is increasingly significant in bringing specific secretive practices to light and tackling them both on a case by case basis and more structurally through a growing number of own initiative enquiries.

Keeping in mind Dahllöf’s accurate observation quoted above, opening negotiations on the reform of Regulation No 1049/2001 naturally brings with it a risk of discussions leading to a further tightening of the EU transparency regime. The current Commission is not necessarily positively disposed to increasing transparency (as evidenced in legal observations before the CJEU in particular), and it has the backup of the majority of Member States in the Council.

Despite this, we think that there should be an open discussion about the possibilities of increasing openness. If this proves to be impossible, the Parliament can always block any reform that could result in negative outcomes or a levelling down.

In this note we discuss recent developments in jurisprudence and the challenges that currently exist in the application of the Regulation No 1049/2001 with a focus on public access by citizens. We conclude with a number of policy recommendations for consideration.

CONTINUE READING...

NOTES (to the section above)

1 Article 10(1) and (2) TEU.
2 Article 10(3) TEU, Article 11 TEU.
3 See Regulation No 211/2011 on the citizens’ initiative, OJ L [2011] 65/1.
4 Article 6(1) TEU.
5 Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents, OJ L 145/43.
6 See e.g. C-280/11 P Council v Access Info Europe para 30 and the case law quoted in the paragraph.
7. See e.g. Ian Harden, ‘The Revision of Regulation 1049/2001 on Public Access to Documents’, 15(2) European Public Law (2009) 239-256.
8 See the open letter by Beatrice Ask, Minister for Justice, Sweden and Anna-Maja Henriksson, Minister of Justice, Finland, published at http://www.wobbing.eu/sites/default/files/Open%20letter.pdf.
9 For one account of the EU’s transparency development so far, see Deirdre Curtin, ’Judging EU Secrecy’, Cahiers de Droit Européen, 2012 (2) 459 – 490.
10 Staffan Dahllöf, ‘Guide to the battle of transparency – UPDATED’, 09/06/2012, available at the EU wobbing website http://www.wobbing.eu/news/guide-battle-transparency-%E2%80%93-updated. On the varying positions of the Member States to the reform process, see M.Z. Hillebrandt, D.M. Curtin and A.J. Meijer, ‘Transparency in the EU Council of Ministers: An Institutional Analysis’, 20(1) European Law Journal, 2014, 1-20.
11 For a discussion, see Päivi Leino, “Transparency, Participation and EU Institutional Practice: An Inquiry into the Limits of the ‘Widest Possible’”, EUI Working Paper (LAW 3/2014).

Referendum Briefing 3: Does the EU have a ‘democratic deficit’?

ORIGINAL PUBLISHED ON EU LAW ANALYSIS

by Professors Laurent Pech and Steve Peers

The EU is regularly accused from suffering a ‘democratic deficit’. In particular, it is often asserted that all EU decisions are made by the EU Commission – who are ‘unelected bureaucrats’.

As we demonstrate in this post, this criticism is clearly invalid. It fundamentally misunderstands (a) the powers that the Commission has – and more generally how decisions are made in the European Union; and (b) the way in which the European Commission gets into office. We will examine each of those issues in turn.

Who does what? Does the Commission adopt all EU laws?

The crucial thing about the EU system is that the Commission does not have anywhere near as much power as many people think it has. The standard EU’s decision-making process is: the Commission alone makes legislative proposals. Those proposals are thenconsidered by the Council (the intergovernmental body representing elected national governments), jointly with the elected Members of the European Parliament (representing EU citizens), whose powers have been gradually and significantly increased over the last three decades. Some people say that the Council and European Parliament simply rubber-stamp Commission proposals, but that is not true: they sometimes reject them and almost always amend them.

This graph illustrates the EU decision-making process: Continue reading “Referendum Briefing 3: Does the EU have a ‘democratic deficit’?”

EU Referendum Briefing 1: Can the UK control the EU’s future if it stays a member?

ORIGINAL PUBLISHED ON EU LAW ANALYSIS BLOG

by Steve Peers

During the EU referendum campaign, a number of arguments have been made that staying in the EU is risky, because of possible future developments of the EU itself. While there will always be someone somewhere who says they would like to see an EU army, or some development related to the single currency, such an expression of opinion is meaningless by itself. The fundamental issue is whether the UK could control such developments – either by vetoing them or opting out.

So what’s the worst that can happen? In this post, I’ll examine in turn the main alleged risks to staying in the EU. As we’ll see, in every single case the UK has control, either by an opt-out or a veto. In other words, none of these things can happen without the British government’s consent. Nearly all of them would also need our Parliament’s consent. And the large majority – all the fundamental possible changes to the EU that many are concerned about – would actually need the consent of the British public in another referendum. (Anyway, there’s nothing to stop the UK holding another referendum on EU membership in future, if it wanted to).

All of these safeguards for UK control of further developments of the EU exist in the current law of the EU – as I will show in detail. None of them are first created by the renegotiation of EU membership agreed this February.

I’ll look at seven issues where the UK has control over future EU developments:

a) defence;
b) transfers of power;
c) new Member States, including Turkey;
d) taxation;
e) non-EU immigration, asylum and criminal law;
f) the single currency; and
g) the EU budget, including the UK rebate.

There’s also an earlier blog post on the controversial issue of the planned EU/US trade deal (TTIP) and the NHS.

a) EU Defence and foreign policy Continue reading “EU Referendum Briefing 1: Can the UK control the EU’s future if it stays a member?”