Category: 1.1 Decision Making Process – Planning

Commission recent withdrawal of legislative proposals : Easter’s  “house cleaning” or a growing threat to the EU institutional balance ?

by Emilio De Capitani

On March 7 the Commission published on the official journal a list of legislative proposals which it has decided to withdraw. (1) The immediate consequence is that legislative negotiations between the European Parliament and the Council on some of these texts can go no further (even if the co-legislators are still interested in finalizing their work). (2) As it would happen if a referee  snatches the ball during a match of football , several parliamentary committees have loudly protested.(3)

The problem was not only that the game abruptly interrupted but also that no one could predict when it would start again (even after the Lisbon Treaty the European Parliament and the Council still lack the power to initiate new legislation and can play their legislative role only by amending, (as a general rule), a Commission legislative proposal.

This bizarre situation dates back to the first phase of the European Communities when the Commission was the only institution which could limit the risk that the members states through the Council could re-nationalise the powers conferred by the Treaties to the Community. Since then the rule has been that “…Union legislative acts may only be adopted on the basis of a Commission proposal, except where the Treaties provide otherwise” ( current art 17 p 2, first phrase TEU) and such a Commission’s monopoly of initiative has been further strengthened by two other elements:  Member States can change the Commission proposal only by an unanimous vote and conversely the Commission can amend its own proposals all along the procedure “… As long as the Council has not acted(..)”(art. 294 TFEU). In the real world this means that the Commission has to modify its proposal when it shares a majoritarian position emerges in the Council ( so that unanimity is no more needed). To strengthen even more its power to influence the Council position the Commission has developed (in the silence of the treaties) a legal theory according to which the right of initiative not only cover the right to amend a text but also the rights to withdraw it when the Commission consider that its “power” of legislative initiative risks to be abused by the Council in a way which according to the Brussels’s executive is contrary to the EU interest.

 In 2013 the beginning of an interinstitutional “Game of thrones” .. Continue reading “Commission recent withdrawal of legislative proposals : Easter’s  “house cleaning” or a growing threat to the EU institutional balance ?”

A Constitutional Defense of CJEU Opinion 2/13 on EU Accession to the ECHR (and the way forward)

Original published on VERFASSUNGSblog

by Daniel Halberstam

The Court of Justice of the European Union has arrived! Gone are the days of hagiography, when in the eyes of the academy the Court could do no wrong. The judicial darling, if there is one today, is Strasbourg not Luxembourg. Only hours after Opinion 2/13 struck down the Draft Agreement (“DA”) on EU Accession to the European Convention on Human Rights (“ECHR”), scholars condemned the opinion as “exceptionally poor.” Critical voices mounted ever since, leading to nothing short of widespread “outrage.”

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I disagree with the critics. In an article, “‘It’s the Autonomy, Stupid!’ A Modest Defense of Opinion 2/13 on EU Accession to the ECHR, and a Way Forward” forthcoming in the German Law Journal, I provide the first comprehensive legal analysis and constitutional reconstruction explaining why the Court’s concerns are mostly warranted. I also identify the changes that must be – and reasonably can be – made to move accession forward. Finally, and in a twist of irony, I show that one of the Court’s greatest concerns – mutual trust – goes to the very survival of the Union and demands not an exemption, but full accession.

My defense is not a nostalgic plea for a return to gentler days. To the contrary, as a critic on record of both the CJEU[1] and the Bundesverfassungsgericht,[2] I have little patience for judicial hagiography. No court is an entirely innocent actor. Opinion 2/13’s abrasive and uncompromising style, to which the title of my article alludes, suggests Strasbourg is not welcome in Luxembourg. Wary of its younger overburdened sibling, the CJEU seems intent on guarding its privileged judicial position in Europe.

And yet, dismissing the Court as selfish would be throwing out the baby with the bathwater. The bracing exchange of pluralism, which I support, lacks value (and values) if constitutionalism is not part of the mix. The internal constitutional perspective of actors considering external legal claims does not undermine pluralism. To the contrary, constitutionalism provides legitimacy to the exercise of public power. As a result, constitutionalism supplies the terms on which the pluralist contestation takes place. As I have argued repeatedly elsewhere, constitutionalism supplies the grammar of legitimacy that governs the pluralist contest by insisting that power always vindicate a combination of voice, rights, and expertise. We must, therefore, never forget the role that constitutionalism plays in a pluralist constellation.

But the current critics did just that: they rushed to embrace Strasbourg while forgetting about the constitutional dimension of EU governance along the way. A singular focus on international human rights regimes, however, can be misleading. On the Verfassungsblog, for instance, the President of the CJEU has been quoted as saying: “The Court is not a human rights court. It is the Supreme Court of the European Union.” Critics interpret this to indicate the CJEU is not taking rights seriously. The argument echoes a rather old debate,[3] recently renewed by suspicions about the Court’s bona fides regarding labor rights after Viking andLaval[4] and asylum rights after M.S.S. and Abdullahi.

Rights lapses at the Court must be condemned, but there is nevertheless a good deal of respectable truth to the President’s internal perspective. The CJEU has come around (even if only after a prolonged pluralist struggle with Member State high courts) to protect rights as an essential feature of the legality and legitimacy of EU law. Today, the EU is firmly committed to protecting fundamental rights, which may include participation in international human rights regimes – as well it should. But such participation should not undermine the constitutional nature of the EU’s legal order, which is geared to vindicating all three constitutional values. The EU may sign on to the ECHR as an extension, but not substitution, of its own project of constitutional governance.

The EU’s constitutional engagement with the world, then, leaves ample space for hard pluralist contestation. But we must first understand the “constitutional” element of the EU’s side of the contest. It is in this spirit that I reconstruct the Court’s objections to the Draft Agreement.

My main concern, then, is not for the reputation of the Court, but for a sensible project of accession that gives due consideration to the constitutional quality of the Union. In the remaining space, I cannot summarize the Opinion, the issues, let alone my article. I can give only a quick sense of some conclusions that follow from my plural constitutionalist approach. Continue reading “A Constitutional Defense of CJEU Opinion 2/13 on EU Accession to the ECHR (and the way forward)”

European and national parliamentarians divided on the EU “Smart Borders Package” ?

By FERN BOWLES (Free Group Trainee)

On February 23 the LIBE Committee has organized a interparliamentary meeting focused on the Smart Borders Package (see “EU Compass” factsheet here). The meeting served as a forum for the exchange of views between European and national parliamentarians, as well as the Commission and European agency representatives, in an aim to debate the possible future alternatives at technological and legal level of the “smart border package”. According to the Commissioner for Migration, Home Affairs and Citizenship, Dimitris Avramopoulos this “new start” is justified to overcome various “technical, political and cost related issues” raised  by the initial Commission proposal. In October 2014, the first stage of the new Commission analysis was completed with the delivery of the Technical Study (see the executive summary ) and Costs Study. The “Pilot” will be completed during 2015 and a  new legislative package  could then be submitted in 2016.

The context

At the moment, manual checks are performed by border force personnel at the external frontiers where they are required to check non-EU citizens’ travel documents. The Smart Borders project plans to create a pan-Schengen automated database to be able to store information of third country nationals (TCN) electronically. Thorough an entry-exit system (EES) TCNs would be required to undergo a biometric identification check upon arrival to the EU, while the registered travellers programme (RTP) will pre-vet non-EU citizens before their travel, in order to speed up border crossing.

The justification for increased checks on non-EU citizens with the Entry-Exit System (EES) was initially to fight terrorist’ travel but it is argued that the real reason is to prevent the phenomenon of ‘overstayers’ (TCN that stay in the EU longer than they are permitted), which according to the Commission is one of the biggest issues of irregular migration within the EU. The European Commission’s original proposal (2013) for a Regulation on the Smart Borders Package will however be revised and revealed at the beginning of 2016.

The main issues that were raised during the debate… Continue reading “European and national parliamentarians divided on the EU “Smart Borders Package” ?”

The European Area of Freedom Security and Justice : still.. lost in transition ?

by Emilio De Capitani

More than five years ago the Lisbon Treaty entered into force carrying along great expectations for the transformation of the EU into a Freedom Security and Justice area. However even if some progress has been made on Schengen,  asylum policies, procedural guarantees in criminal proceedings and judicial cooperation in civil matters the results are far lower than the initial expectations and of the ambitious objectives enshrined in the Stockholm Programme adopted by the European Council on December 10th 2009.

That Programme has been criticized by some member states as it was a sort of “Christmas tree”. However what the European Council adopted in June  last year is little more than a “dry bush” mainly focused on the need for …thorough reflections before adopting new EU legislation. Some commentators considered that this was a Machiavellian move of the European Council to pass the baton to the newly appointed President of the European Commission so that it could take the lead of this European policy as for any other “ordinary” policy.

A deceiving Commission..

In the following months this interpretation was confirmed by the appointment of the first Commission Vice President, in charge of the implementation of the rule of law, of the European Charter of fundamental rights and of better legislation. Moreover the creation of a specific portfolio for migration policy gave the impression of the Commission’s stronger political commitment “..to place the individual at the heart of its activities, by establishing the citizenship of the Union and by creating an area of freedom, security and justice” (European Charter Preamble)

However very soon these initial hopes had been deceived:

1 The rule of law mechanism which was suggested by the last “Barroso” Commission was soon forgotten

2 As far as the Charter is concerned the Commission has apparently been taken by surprise by the Court of Justice opinion 2/13 dealing with the EU accession to the ECHR and is still considering what to do. But the Juncker Commission also seems lost when the issue at stake is to transpose the EU Charter principles into new EU legislation. It will only take more than one year to evaluate what could be the impact of the CJEU ruling on data retention on the pending legislation such as the EU PNR, the entry-exit and the registered travel proposals (not to speak of its impact on EU legislation and agreements that are already in force..)

3 Migration and human mobility are still dealt with and financed by the same General Directorate which is in charge of internal security policy instead of being moved to social affairs policies which should have been a real holistic and individual-centred approach.

4 Last but not least the Commission’s legislative programme for 2015 is more than reticent and it appears more and more evident that for the time being most (if not all) of the Commission’s political energy will be focused on economic objectives so that the Freedom security and justice area related policies have to wait for a new season.

…but the situation between Member States is even worse..

The situation of FSJA policies is even more frustrating on the Member States side.

Not only some legislative procedures like the ones on consular protection, access to documents  or the fight against discrimination remain blocked and others including the data protection reform will require a caesarean section to come to life,  but day after day it appears clearer and clearer  that there is still a majority of member states which do not want  the modernisation of measures adopted before the Lisbon treaty (or even before the entry into force of the Amsterdam Treaty. This is notably the case of Germany which (as a rule)  oppose any new measure which can have a financial impact or will change the former “unbalance” of power between the Council and the European Parliament. Take the case of the recent three Commission proposals (1) repealing FSJA measures dating back to the intergovernamental period. According to German delegation even a 1998 Schengen decision on the adoption of measures to fight illegal immigration should be preserved because “None of the (current) legal instruments include a similarly comprehensive approach to fight illegal migration and immigrant smuggling.” This is appalling : would it not be wiser to urge the Commission to submit a new proposal which could better comply with the EU Treaties and with the Charter by also associating the European Parliament to this endeavour ?

This case apart it is worth noting that all the pre-Lisbon measures dealing with police cooperation and judicial cooperation in criminal matters (2) have been legally “embalmed” by art 9 of Prot.36 according to which “The legal effects of the acts of the institutions, bodies, offices and agencies of the Union adopted on the basis of the Treaty on European Union prior to the entry into force of the Treaty of Lisbon shall be preserved until those acts are repealed, annulled or amended in implementation of the Treaties. The same shall apply to agreements concluded between Member States on the basis of the Treaty on European Union.”

A “Transitional” period ….until when ? Continue reading “The European Area of Freedom Security and Justice : still.. lost in transition ?”

“Lisbonisation” of Europol and Eurojust : an in depth analysis for the European Parliament

The inter-agency cooperation and future architecture of the EU criminal justice and law enforcement area

Upon request by the LIBE Committee, the study aims at analysing the current relationship and foreseeable cooperation between several EU agencies and bodies: Europol, Eurojust, the European Anti-Fraud Office, the European Judicial Network and the future European Public Prosecutor’s Office. The study reflects on their cooperation regarding the fight against serious transnational crime and the protection of the European Union’s financial interests. It also identifies good practices and difficulties and suggests possible ways of improvements. AUTHORS Prof. Anne Weyemberg, Université Libre de Bruxelles and Coordinator of the European Criminal Law Academic Network (ECLAN) Mrs Inés Armada, PhD researcher, VUB-ULB, FWO Fellow Mrs Chloé Brière, GEM PhD researcher, ULB – UNIGE

BELOW THE TEXT OF PAGES 8-26. THE FULL STUDY  IS AVAILABLE HERE 

  1. INTRODUCTION

1.1. Context of the study

For the time being, there are 9 JHA decentralised agencies: 6 depending from DG Home, namely EUROPOL, CEPOL, FRONTEX, the European Asylum Support Office (EASO), the European Monitoring Centre for Drugs and Drug Addiction (EMCDDA) and the EU Agency for large-scale IT systems (Eu-LISA) and 3 depending from DG Justice, namely Eurojust, the European Union Agency for Fundamental Rights (FRA) and the European Institute for Gender Equality (EIGE).

Besides the agencies, some other EU bodies/networks, which do not have the agency status, are to be mentioned, such as the EU Anti-Fraud Office (OLAF), the European judicial network (EJN) or the European judicial training network (EJTN). Others are yet to be established, the main one on its way being the European Public Prosecutor’s Office (EPPO).

Complementarity, consistency and a good articulation between all these bodies is crucial if the purpose is to establish a consistent Area of Freedom, Security and Justice (AFSJ) and effectively implement its three components. A good articulation between the EU bodies is also crucial to develop a multidisciplinary approach in the fight against serious cross-border crime.

This need has been repeatedly underlined, particularly by EU institutions1. A better delineation or a clearer definition of each EU agency/body’s competences and functions has been requested. Overlaps are however inevitable (i.e., grey zones) and may even present advantages. The key issue lies in learning how to manage them in good will and good faith. The key word here must be complementarity, which implies working hand in hand for the realisation of common goals, respect of respective mandates and expertise and good communication and coordination in case of overlap. Establishing such complementarity might prove a difficult task, and this for different reasons:

– The different agencies and bodies have been established at different times, in different contexts and in various decisional frameworks. The current agencies/bodies belong to different generations and are more or less mature, the three oldest being OLAF (ex-UCLAF), Europol and the EJN. Some of them are still under the pressure of figures, still fighting/struggling or feeling they have to fight/struggle to justify their existence and prove their added-value.

– The different agencies and bodies are driven/marked by different philosophies/natures/logics: for instance, OLAF has an EC nature, with real « autonomous »/supranational administrative powers, whereas Europol and Eurojust are still marked by the « intergovernmental third pillar spirit » and constitute « service providers » depending on the final decision taken by national authorities;

– They are also marked by differences in professional cultures, be it administrative, police, or judicial;

– Their structure differs (e.g. very different organisation/structure within Europol and Eurojust);

– The resources/means available to each of them are different. Some agencies/bodies are more powerful than others, including in the field of policy orientation. For instance, the major role played by Europol in the design of the EU Internal Security Strategy (ISS) and in the EU policy cycle must be mentioned.

– The articulation between the EU agencies/bodies must accommodate the differences between the different national criminal justice systems. These include the different distribution of competences/tasks between the administrative/criminal, police/justice and police/intelligence services. The treaty imposes respect to such differences, with the result that the EU agencies/bodies must be able to adapt to all the concerned systems. Thus, there is a need to remain vague in the definition of mandates/tasks and to safeguard flexibility. Such vagueness might however make more difficult a good articulation and relationship between the bodies concerned.

– The abovementioned difficulties result in a lack of a consistent vision of the EU area of criminal justice, which is somehow to be built/organised a posteriori. The fact that the different EU agencies/bodies are dealt with by different DGs within the Commission (that do not always entertain the best relations) and the silo approach taken by the General Secretariat of the Council2 clearly do not improve the situation.

– Against this background, the legislative instruments governing each EU agency/body remain quite vague with regard to cooperation with counterparts. Interagency relations are thus mostly left to the EU agencies/bodies themselves.

– Last but not least, the importance of personal relations must be stressed. Sometimes people understand each other and sometimes they do not…

Generally speaking, an improvement in the relations between the EU agencies/bodies has been witnessed, due to the conclusion/revision of bilateral agreements/memorandum of understandings and to the passage of time and the consequent gain of experience.

Such improvement is also due to other reasons such as the creation of coordination/monitoring mechanisms and the encouragement of inter-agency cooperation in the JHA field.

It has especially taken the form of the JHA contact group and the JHA Heads of Agencies meetings. They annually report to the Standing Committee on operational cooperation on internal security (COSI)3, notably through a scorecard on cooperation, which is annexed to the annual report.

However, and in spite of a lot of quite positive official declarations, difficulties remain. Identifying them is the main purpose of this study, in order to suggest, where possible, ways of improvement. Continue reading ““Lisbonisation” of Europol and Eurojust : an in depth analysis for the European Parliament”

THE MISSING LINK: DIRECT EFFECT, CETA/TTIP AND INVESTOR-STATE DISPUTE SETTLEMENT

This blogpost has been published previously on ‚Verfassungsblog – On Matters Constitutional‘ on Wednesday, 7 January 2015

By Daniel Thym, Chair of Public, European and International Law, University of Konstanz

International treaties have rarely received more attention than the proposed free trade deals between the EU and the US and Canada. This entails that many law students and practitioners are confronted with a theme that does not feature prominently in legal education. In debates with students, I realise that preconceptions about the functioning of domestic legal systems are regularly projected upon the international sphere. One example is a demand that companies should challenge state action before domestic courts instead of dispute settlement bodies under the planned EU/US agreement (TTIP) and the proposed EU/Canada trade agreement (CETA). These claims often assume that national courts hold the competence to enforce corresponding rules. For lawyers working on domestic issues it seems self-evident that courts can apply the law.

Against this background, this blogpost focuses on a provision in the Draft CETA with Canada (Article 14.14: see the text below), whose relevance has not been acknowledged so far, including by the stimulating contributions to the Verfassungsblog Symposium on Investment Protection. On page 470 of the roughly 1600 pages of the consolidated CETA Draft Agreement, which the Commission regards as a template for free trade negotiations with the United States, we come across a final provision of seemingly minor relevance on ‘private rights’, which rejects the applicability of the agreement en passant. This reaffirms that the implications of the free trade deals would be less dramatic than some suggest.

Background: CETA and TTIP as International EU Agreements

In order to understand the relevance of Article 14.14 on private rights, we should apprehend that most segments of the free trade agreements would be binding upon Member States as an integral part of EU law. Axel Flessner may try to argue that the arrangements would constitute an ultra-vires-act (thereby initiating more tweets than any other contribution to the said symposium), but the plain Treaty text demonstrates that the legal picture is fairly evident.Article 207 TFEU declares that the EU’s Common Commercial Policy (CCP) allows for the conclusion of trade agreements on goods and services and embraces, among others, ‘foreign direct investment’, while Article 3 TFEU maintains that the conclusion of agreements in this area shall be an exclusive Union competence.

These provisions were a deliberate policy choice after decades of wrangles about the precise scope of the CCP. The Treaty of Lisbon was meant to replace earlier and ambiguous formulations with an overarching competence for the European Union. In its Lisbon Judgment, the German Federal Constitutional Court recognised the pertinence of this change: ‘With the exclusive competence as set out above, the Union acquires the sole power of disposition over international trade agreements which may result in an essential reorganisation of the internal order of the Member States.’ Judges in Karlsruhe gave the green light to the changes nonetheless, albeit with a minor caveat that ‘much argues in favour of assuming that the term “foreign direct investment” only encompasses investment which serves to obtain a controlling interest in an enterprise’ and excluded so-called portfolio investments (ie, non-controlling interests in companies) as a result.

This reference to the limits of the CCP is relevant, since it indicates, in general terms, that there remain uncertainties about the precise delimitation of competences for corollary aspects of international trade. For that reason, most national governments maintain that CETA and TTIP should be concluded as so-called ‘mixed agreements’, with the EU and all 28 EU Member States as signatories. If that view prevailed, national parliaments would have to give their consent as well. However, this would not modify the internal allocation of powers; the EU institutions are in the driving seat in the vast field of Union competence – both during the negotiations and with regard to legal effects. It is established case law that the legal effects of mixed agreements follow the rules of Union law for all matters that are covered by the Common Commercial Policy.

Domestic Application of Agreements concluded by the EU

The predominance of Union law in legal practice can obscure our awareness of the specificities of the international legal system. Law students across Europe learn in their undergraduate courses about the direct and supreme effect of supranational rules, but are not always familiar with public international law. Domestic courts have to apply Union law in pretty much the same was as national law, but this assumption cannot be extended to public international law without modification, including in situations in which the EU concludes international agreements with third states.

It is true that the ECJ maintains that international agreements can have direct effect as an integral part of the Union legal order – and an example demonstrates that this can have critical implications: for example, judges in Luxembourg decided in July that Member States cannot automatically require the spouses of Turkish nationals to acquire basic language skills of the host country. Legally, this conclusion rests upon an interpretation of the so-called standstill provision for the self-employed in the Additional Protocol of 1970 to the Association Agreement between Turkey and today’s European Union. In the terminology of international trade law, the case concerned a so-called non-tariff barrier to the freedom of establishment. It is these non-tariff barriers that take centre stage in both CETA and TTIP negotiations (neither of the latter treaties will affect migration, though).

If the underlying legal arguments about direct effect and court jurisdiction extended to free trade deals with Canada and the United States, the implications could be dramatic indeed. Both the ECJ and domestic courts would hold the power to correct domestic or supranational legislation, whenever it falls foul of CETA or TTIP. Yet, this outcome is no foregone conclusion, since the ECJ opts for a direct applicability of international agreements ‘only where the nature and the broad logic of the latter do not preclude this.’ In deciding whether this is the case, the Court considers, among other things, the purpose of the agreement, the will of the parties and the question of reciprocity, i.e. whether the Union would be alone in recognising direct effect. Luxembourg may have largely ignored the question of reciprocity with regard to Turkey and other neighbours of the EU, but it traditionally takes centre stage in the evaluation of trade liberalisation agreements.

Article 14.14 of the CETA Draft Treaty

Once we have understood the far-reaching implications of direct applicability, we may appreciate the bearing of the clause on private rights in the final provisions of the consolidatedDraft CETA Agreement, which states: ‘Nothing in this Agreement shall be construed as conferring rights or imposing obligations on persons other than those created between the Parties under public international law, nor as permitting this Agreement to be directly invoked in the domestic legal systems of the Parties.’

That is nothing less than the official denial of direct effect in the operative treaty text; neither the ECJ nor domestic courts would hold the power to apply CETA rules in domestic proceedings or to annul legislation which contradicts trade law. CETA and TTIP would get the same treatment that the ECJ accords to WTO law, which also does not have direct effect in the EU legal order and the domestic legal systems of the Member States – not even in situations, in which the appellate body of the WTO Dispute Settlement Mechanism confirmed that EU legislation falls foul of WTO standards.

Denial of direct effect is an important stumbling block for the long-term success of any free trade agreement, especially when it comes to the elimination of non-tariff barriers to trade, since corresponding rules are often formulated in an open manner. The real-life implications of such vaguely formulated provisions depends decisively upon the continued will of the parties and the availability of control and enforcement mechanisms – as the experience with non-tariff barriers to trade in the EU single market and the example of language requirements for spouses of Turkish nationals demonstrate. Without institutional control mechanism, vague treaty formulations are often ineffective.

Implications for the Debate about Investor-State-Dispute Settlement

In the light of Article 14.14 of the CETA Draft Agreement, we may have to re-consider our perspective on the proposed investor-state-dispute settlement rules in both CETA and TTIP. Critics will use the absence of direct application as an argument to decry the special treatment for investors; supporters, by contrast, will argue with the Commission that the dispute settlement bodies are a compensation for domestic legal remedies, which would not be available for the substantive rules of CETA and TTIP. I personally share the opinion of Christian Tams that the debate should focus on the desirability of special rules for investors (and not the question of procedure). The latter may be superfluous in relations with the US and Canada, but to abandon them would render it difficult to insist upon similar provisions in negotiations with China, Russia or other states we trust less.

In any case, the absence of direct effect in domestic proceedings shows that the legal implications of CETA and TIIP would be less dramatic than some commentators in the public debate suggest. Courts in Europe would not hold the power to annul domestic or supranational legislation, which violates the agreements – a power that also the dispute settlement bodies would be denied explicitly, together with the option for the state parties to force their reading of the agreements upon the arbiters by means of an authoritative interpretation. This would orientate the dispute settlement rules in CETA and TTIP towards inter-state bargaining, pretty much like in the WTO context.

The denial of direct application demonstrates that both the CETA Draft Agreement and the TTIP negotiation position are far removed from resembling anything like EU-style integration through law – and I consider this to be a good thing given that any dynamic interpretation would lack much of the democratic legitimacy and procedural constraints, which we have, notwithstanding all the deficits, in the European context. It seems to me that it is the biggest benefit of the debate about CETA and TTIP to this date that the broader public has started discussing the governance of economic globalisation. That debate will stay with us, even if an seemingly unimpressive provision on page 470 of the CETA Draft Agreement excludes the domestic enforcement of the transatlantic trade rules.

 

Is “synchronized swimming” the right approach for the EP (and for the Council) ?

by Emilio DE CAPITANI

Yesterday there was no political majority in the European Parliament to vote on the Juncker Commission 2015 Programme. Quite shocked Votewatch describe this “non event” as follows: “As this vote has just shown, the European Commission President, Jean Claude Juncker, will have a hard time building majorities in the European Parliament: the EU legislative was unable to reach a common position with regard to the plans put forward by the Executive for 2015. In a dramatic display of power play, the political groups voted down each other’s proposals one by one. The first text put to vote was the one proposed by the largest political group, the EPP. This was giving full backing to the Commission’s proposed legislative agenda for this year. The EPP, which is also the group of Jean Claude Juncker, supported Commission’s plans to reduce the bureaucratic burdens and the introduction of mandatory impact assessments of all new legislation on SMEs. EPP also positioned itself strongly in favour of a comprehensive TTIP agreement (between the EU and the US). EPP’s document was, however, voted down by a combination of left and radical right opposition. The text proposed by the ALDE group didn’t stand a chance either. Then, the much more critical resolutions proposed by the Greens/EFA and the S&D groups seemed to gain momentum, as some of their amendments mustered a majority, particularly calls against the allegedly proposed plans of watering down the social and environmental agenda, through cancelling certain EU laws or the TTIP. However, at the final vote these documents were rejected too by the other groups, which cancelled the victories on separate amendments. The same happened with the resolutions proposed by the remaining political families. This is a clear signal that, after the EU elections in May 2014 and the spitzenkandidaten process, the European Commission has become more political and that it will have a harder life in the Parliament.”.

However it think that this EP apparent “failure” should be seen also under a different perspective.

It is more than likely that the Juncker  Commission feels to be more “political” compared to the Barroso’s previous teams but it is also true that it has overestimated its new position in the legislator’s triangle. On the European Parliament side she should had been aware  that until now the support that it has received from the “grosse coalition” (EPP, SD and ALDE) was only on very generic (when not contradictory) objectives.

I think that the main error with the 2015 Programme has been to come before the European co-legislator by claiming that there would had been less new…legislation when the Treaty of Lisbon objectives have yet to be implemented. Less EU legislation could be a music for UK or NL but sounds very inappropriate in Strasbourg where there are several MEPS who still consider to have been elected to change the EU and not to preserve the existing one.  Moreover if limits have to be established it would be more appropropriate to do it on the Commission side as 9/10 of the EU binding acts adopted every year come out  from hundreds committees driven by the Commission in perfect (and very often opaque) complicity with the representatives of the Member States.

Coming back to the Commission’s  political programme for 2015 it still mirrors the general objectives already repeated since the electoral campaign without fleshing them out on concrete proposals. It would then have been illusory to expect from a new elected Parliament a support for an annual agenda which many MEPs during the plenary debate have considered in several aspects generic if not misleading.

A further Commission’s error has been to list between the legislative measures which should be withdrawn because obsolete also measures on which the negotiations between the European Parliament and the Council are still under way. By so doing the Commission was probably trying to show that its right of legislative initiative remain in full also during the legislative negotiations. However after more than 1.400 legislative codecisions it would had been naïve to think that the co-legislator (and notably the EP) would had accepted to be taken away by the Commission the chair on which he was sitting .

Furthermore this would be an over “generous” interpretation of the Commission right to “…alter its proposal at any time during the procedures leading to the adoption of a Union act” (art. 293.2 TFEU) The Treaty does not make reference to a Commission power of withdrawal but only to a power of amendment and only “As.long as the Council as not acted…”. By modifying its proposal can already heavily influence the balance of power in the Council which will require unanimity to overcome the Commission text. This Commission power to influence the majority in the Council may be justified to counterbalance the pressure of national governments in the Council but has no ground towards the European Parliament which derives is legitimacy from the vote of the EU citizens. The Juncker Commission to become again a sort of “Deus ex machina” as it was before the European direct elections is then quite misplaced.

So, the main error of the Commission move with the 2015 Programme has been to consider itself as if it were  already a  true European Government and only because of the success of the “spitzenkandidaten” procedure and of the support of the high ranks of  the political groups.

We are still very far from this situation and it has still to be proved that mirroring the nation state constitutional balance fits also with European “sui generis” legal order which has been proudly defended by the European Court of Justice. Clearly this will require some creativity from the EU political architects but the first signs are not very promising. Take the case of the recent inter institutional  negotiations to strengthen inter-institutional annual and multiannual programming . The main objective of this exercise should be “to set common objectives and ensure an even more rapid and efficient decision-making process, while preserving the quality of legislation”. This exercise takes as basis the art. 17(1) TEU according to which European Commission “shall initiate the Union’s annual and multiannual programming with a view to achieving interinstitutional agreements.”  However according to a draft joint declaration (hopefully not yet adopted) the institutions should endeavour to establish a political framework by including a commitment to fast-track priority proposals.  In a European Union where “First reading agreements” have already become the rule thanks to the goodwill of the European Parliament the creation of an informal “urgency procedure” (not foreseen by the treaties) looks suspect even if feasible on the basis of “binding” interinstitutional agreements (art. 295 TFEU).

The point is that to preserve the institutional balance these agreements should be equally binding for all the parties involved which regrettably is not currently the case in the informal draft which are informally circulating.

A balanced agreement could, for instance, foresee that the Commission SHOULD submit a legislative proposal if so required by one of the the Co-legislator (or by a citizen’s initiative). It could also foresee that the European Parliament could ask the Council to vote on a given legislative proposal (a faculty which is since decades recognized to the Commission) as it already granted to the Council and to the Commission to ask for a urgent vote of the EP.  These innovations could improve the current situation where the Commission does not give the opportunity to a majority of MEPs to challenge the Council on a legislative proposal which could implement an EU objective. The agreement could also oblige the Council to vote (even if it could be a rejection) on texts which are pending since years such as the anti-discrimination Directive or the revision of the access to documents Regulation.

Regrettably no one of these possible improvements is currently debated so that the only possible outcome risk to be a further unbalance of the EP  position (*)

But these procedural machineries taken apart the real question is if  an European Union “family photo” at the beginning of the year, without knowing what the future proposals could cover, is not a political and moral hazard. As the experience has showed since the entry into force of the codecision procedure in 1994, interinstitutional agreements are meaningful when done on a case by case basis as the representatives of the EU Governments and ones of the  EU Citizens could have a different perspective when confronted on specific legislative choices  (and quite rightly so).

Under this perspective I do believe that the new envisaged procedural machinery is not in the interest of the European Parliament nor probably of the EU Member States. For these reasons the lively debate of this week and the failure to vote on the Commission programme is probably more a sign of true democracy than the reverse.

——————————————–

(*) It remain a mistery why after the entry into force of a Treaty the EP management fight so hard to lose the powers he has obtained. In this specific case the latter is  already planning a new internal procedure which will empower a rather obscure internal body (the Conference of the Committee chairman) to  give priority to the legislative proposals agreed in the interinstitutional planning by inevitably slowing down the other proposals.

 

 

S.PEERS : 2014 in review . Free Movement, Immigration and Asylum Law

Original Published HERE

Introduction

The issue of the free movement of EU citizens, as well as immigration and asylum from non-EU countries, has in recent years become one of the most contested issues in EU law. This blog post reviews the large number of legal developments over the last year in these two fields, assessing firstly the controversies over EU citizens’ free movement rights and secondly the tensions in EU immigration and asylum law between immigration control and human rights and between national and EU powers. It’s the second in a series of blog posts reviewing aspects of EU law in the last year; the first in the series (on criminal law) can be found here.

Free Movement Law

The case law of the CJEU on EU citizens’ free movement in 2014 was dominated by the themes of the limits to economic migration and equal treatment, in conjunction with EU citizens’ right to family reunion. On the first point, the most prominent judgment of 2014 was the Dano ruling (discussed here), in which the CJEU took a more stringent approach than usual in ruling that an EU citizen who had not worked or looked for work had no right to insist upon a social assistance benefit in the Member State that she had moved to.

As for the basic rules on qualification for EU free movement rights, the CJEU was not asked to rule in 2014 on the definition of EU citizenship. However, a pending case in the UK Supreme Court (discussed here) raises important questions about the extent of EU rules on the loss of national (and therefore EU) citizenship. The acquisition of EU citizenship also proved controversial, in the context of Malta’s sale of national (and EU) citizenship (discussed here).

Furthermore, EU free movement rights usually only apply to those who have moved between Member States. In two linked judgments this spring (discussed here), the CJEU clarified some important exceptions to that rule, as regards EU citizens who have moved to another country to be with their family members and returned, or who are cross-border workers or service providers. Next year, the CJEU will further clarify another important exception to that rule: the Ruiz Zambrano scenario when the non-EU parent of an EU citizen child is expelled to a third country, and the EU child has to follow, resulting in a de facto loss of their EU citizenship. The CS and Rendon Marin cases both ask the Court whether that case law applies to cases where the non-EU parent has been expelled following a criminal conviction.

For those EU citizens who do move between Member States, the CJEU delivered an important judgment in the case of Saint-Prix (discussed here), extending the concept of ‘former workers’ beyond the categories listed in the EU’s citizens Directive, to include also (under certain conditions) cases of pregnant women who gave up their jobs before the baby’s birth.

This judgment concerned the continued access to equal treatment in welfare benefits which former workers enjoy. Indeed, a new Directive on workers’ equal treatment (discussed here) was adopted in 2014, aiming to ensure the effective implementation of such equal treatment rights in practice. Next year, the CJEU will be called upon in theAlimanovic case to clarify whether the limits on EU citizens’ access to benefits set out inDano also impact upon work-seekers, who have previously had limited access to benefits linked to labour market access. The Court will also soon rule on students’ access to benefits again in the case of Martens, where there has already been an Advocate-General’s opinion.

The issue of EU citizens’ right to family reunion was repeatedly addressed throughout the year, with the CJEU taking a consistently liberal view. It ruled for a generous interpretation of ‘dependent’ family members in Reyes (discussed here), and confirmed that separated spouses can still qualify for permanent resident status in Ogierakhi (discussed here). It also ruled in McCarthy (discussed here) that non-EU family members of EU citizens could not be subject to a ‘family permit’ requirement to visit the UK, but rather had to be exempt from the need to obtain a visa if they hold a residence card in the country which they live in. This judgment clarified that Member States could only claim that EU citizens were abusing free movement rights in individual cases. On this topic, the Commission produced a Handbook on the issue of ‘marriages of convenience’ (discussed here). Next year, the Court will be called upon to clarify the application of EU law to divorces (Singh), and for the first time, to same-sex relationships (Cocaj).

Finally, as regards the issue of derogations, the Court took a less generous view of cases involving criminal convictions, ruling in G and Onuekwere that time spent in prison in the host State did not count toward obtaining permanent residence status or the extra protection against expulsion that comes with ten years’ residence.

Of course, the benefits of EU free movement law are not uncontested. Throughout the year, the debate on the merits of these rules in the UK intensified, to the point where Prime Minister David Cameron insisted that there had to be a major renegotiation of these rules as a key feature in the renegotiation of the UK’s membership of the EU. As I pointed out at the time (see discussion here), many of his demands will be difficult to agree, as they would require Treaty amendment.

Immigration and Asylum law Continue reading “S.PEERS : 2014 in review . Free Movement, Immigration and Asylum Law”

S.PEERS Childhood’s End: EU criminal law in 2014

Original Published HERE Monday, 29 December 2014

With the elections to the European Parliament, the installation of a new European Commission, and a number of important legislative and case-law developments, 2014 was an important year for the European Union. This is the first in a series of blog posts reviewing the year in selected fields of EU law.

The most significant change to EU criminal law came on December 1, when the five-year transitional period relating to EU criminal law measures adopted before the entry into force of the Lisbon Treaty (‘pre-Lisbon EU criminal law measures’, also known in practice as the ‘third pillar’) came to an end. From this date on, pre-Lisbon EU criminal law measures are subject to the normal rules of EU law (except that they maintain their previous limited legal effect, in particular the lack of direct effect). More specifically, this change (discussed generally here) has three main impacts.

Firstly, the UK was entitled to opt out of all pre-Lisbon EU criminal law measures, and then apply to opt back in to some of them again. The UK indeed exercised these possibilities, opting back in to 35 such measures as of 1 December 2014 (see discussion of the details here), following an unnecessarily convoluted process in the House of Commons (discussed here). In a nutshell, since the UK has opted back into a large majority of the pre-Lisbon measures which have any significant importance, the whole process has had barely reduced the UK’s actual degree of participation in EU criminal law.

Secondly, the end of the transitional period means that the EU Commission can now bring infringement actions against Member States that failed to correctly implement pre-Lisbon EU criminal law measures – or that failed to implement such measures at all. The relevance of this is obvious in light of the Commission reports issued this year, regarding: legislation on the transfer of prisoners, probation and parole and supervision orders (discussed here); hate crime and Holocaust denial (discussed here); and conflicts of jurisdiction and the recognition of prior convictions (discussed here).

Thirdly, all courts in all Member States can now send references to the CJEU on the interpretation pre-Lisbon EU criminal law. For the EU as a whole, the impact of this change will probably be limited in practice, because (a) two-thirds of Member States allowed such references anyway, and (b) there were no such limits regarding EU criminal law adopted after the entry into force of the Lisbon Treaty. On the former point, the CJEU decided two cases this spring on the EU’s double jeopardy rules (discussed here), in which it finally developed the relationship between those rules and the double jeopardy provisions of the ECHR and the EU Charter of Fundamental Rights. A final reference to the CJEU on the basis of the old rules, sent just a month before the end of the transitional period (Kossowski), now asks the Court to clarify whether Member States’ derogations from the Schengen rules violate the EU Charter.

On the second point, the first reference from national courts on post-Lisbon EU criminal law was referred this year: the Covaci case, on the Directive on interpretation and translation in criminal law proceedings and the Directive on the ‘letter of rights’. So far, there is no sign of the predicted avalanche of cases on EU suspects’ rights legislation (the deadline to apply the letter of rights Directive passed in June). Of course, there could still be an increase of such cases in future, perhaps after the 2016 deadline to apply the third suspects’ rights Directive (on access to a lawyer). And in the meantime, Member States must apply the victims’ rights Directive towards the end of 2015. Hopefully the CJEU’s case law on that measure will be more convincing than its ruling earlier this year (criticised here) on the scope of the Directive on compensation for crime victims.

Another important CJEU judgment in the criminal law field this year (discussed here) ruled that policing information measure actually fell within the scope of EU transport law. The immediate impact of this judgment was a rush to adopt replacement legislation (the text of which is already agreed), which will apply to all Member States (the UK, Ireland and Denmark had opted out of the prior measure). More broadly, the judgment shows that the CJEU is not inclined to interpret the EU’s criminal law powers broadly – at least as compared to the EU’s other powers.

The end of the transitional period did not lead to a general review of pre-Lisbon EU criminal law measures, with the Commission proposing only a very limited repeal of some obsolete measures (I’ll blog on these proposals in the new year). In particular, the new Justice Commissioner appears to have no significant agenda to suggest criminal law proposals, whether to amend prior measures or to adopt new ones (for an argument as to what the Commission should do, see here).

However, some of the pre-Lisbon criminal law measures have been amended or replaced, or will be amended or replaced by proposed legislation now under discussion. In particular, during 2014, the EU adopted legislation concerning: the European Investigation Order (discussed here); the counterfeiting of the euro (discussed here); the confiscation of criminal assets; and the European Police College (moving its seat from the UK to Hungary). The EU also adopted legislation on criminal sanctions for market abuse (discussed here).

There are also proposals under discussion to replace pre-Lisbon EU criminal law measures concerning: fraud against the EU (see the state of play here); the police agency, Europol (see discussion of negotiations here); the prosecutors’ agency, Eurojust (there was a partial agreement on this proposal); and data protection in criminal law cases (see the state of play here). The latter issue is increasingly important, as indicated by the related CJEU judgment invalidating the data retention directive (discussed here), which gave rise to questions as to whether Member States could adopt or retain their own data retention laws (on this point, see generally here, and here as regards the UK in particular).

In fact, the CJEU will soon be ruling on data protection and criminal law issues as such, since the European Parliament has asked it to rule on the validity of the EU/Canada draft treaty on passenger name records (see discussion here). The pending Europe v Facebookcase (discussed here) raises questions about the impact of the Snowden revelations upon the EU and US arrangements on data protection. In the meantime, the proposed Directiveon passenger name records still remains on ice (having been put there by the European Parliament), with EU leaders’ attempt to set a deadline to adopt this proposal by the end of 2014 proving futile.

Other proposals are also under discussion: a more general overhaul of the European Police College; the creation of a European Public Prosecutors’ Office (see the state of play here); and the adoption of three more suspects’ rights measures, concerning child suspects (agreed by the Council), presumption of innocence (also agreed by the Council) and legal aid (see the state of play here). However, the Commission’s proposal for new rules relating to the EU’s anti-fraud body, OLAF, soon melted in the heat of Council opposition.

Conclusion

Taken as a whole, the year 2014 showed how the European Parliament, the CJEU and the Commission are already playing a significant role in the development of EU criminal law. Following the final demise of the third pillar, the year 2015 is likely to see further important developments in this area, which will make the pre-Lisbon measures even less important: the adoption of new legislation on Europol, the European Police College and possibly Eurojust, as well as revised legislation on fraud against the EU budget.

There will likely be two or three further Directives on suspects’ rights and the victims’ rights Directive will begin to apply. The rules on the new European Public Prosecutors’ Office might also be agreed, and there could be significant developments in the area of data protection. Overall, the longer-term trends toward greater parliamentary and judicial control and greater focus on individual rights in this area accelerated significantly in 2014 and could well do so again next year.

La guerre des juges n’aura pas lieu. Tant mieux ? Libres propos sur l’avis 2/13 de la Cour de justice relatif à l’adhésion de l’Union à la CEDH

Original published HERE (emphasis added)
par Henri Labayle, CDRE
Il était attendu par beaucoup, craint par certains, espéré par d’autres. L’avis 2/13 de la Cour de justice rendu le 18 décembre 2014 à propos de l’adhésion de l’Union européenne à la Convention européenne des droits de l’Homme est, en définitive, un avis négatif. Le projet d’accord d’adhésion y est, en effet, jugé comme n’étant ni « compatible avec l’article 6 §2 TUE ni avec le protocole n° 8 relatif à l’article 6 §2 du TUE » relatif à l’adhésion de l’UE à la CEDH. En l’état donc, la cohabitation des deux Cours suprêmes européennes au sein d’un même système juridictionnel de garantie des droits fondamentaux est exclue, à l’inverse de ce que la lettre du traité sur l’Union européenne laissait envisager et que les amateurs de rapports de système escomptaient. Avant de s’interroger sur les conséquences de cet avis faisant obstacle à l’adhésion de l’UE à la CEDH, il est bon d’en rappeler le contexte.
1. Contexte
Les relations entre le droit de l’Union et le droit de la CEDH ne sont devenues problématiques que récemment. Longtemps en effet, le silence des traités constitutifs sur la question de la protection des droits fondamentaux a été comblé par des expédients connus de tous. Volontarisme de la Cour de justice et réserve de la Cour européenne des droits de l’Homme ont ainsi permis au juge de Strasbourg et de Luxembourg d’assurer tant bien que mal une cohérence minimale dans la garantie des droits fondamentaux en Europe.
La question n’était pas que de principe. Si, dans un premier temps, la primauté du droit communautaire en fut implicitement l’enjeu, puisque les Cours suprêmes allemandes et italiennes faisait de cette protection des droits fondamentaux dans l’univers communautaire une condition de leur ralliement, ce dernier fut rapidement dépassé, posant de ce fait et qu’on le veuille ou non des problèmes de préséance.
Car, et cela est rarement mis en relief, la position des Etats membres de l’Union, par ailleurs Etats parties à la Convention européenne des droits de l’Homme, est inconfortable par nature puisque la Communauté, hier, comme l’Union aujourd’hui ne sont pas parties à la CEDH. Elle est même devenue progressivement intenable.
La première explication de cette tension nouvelle tient tout simplement à l’élargissement inéluctable des compétences de l’Union. Non pas que les droits fondamentaux soient devenus en eux-mêmes une compétence de l’Union, comme Jean Paul Jacqué a eu maintes fois l’occasion d’en faire la démonstration, mais parce que les nouvelles compétences de l’Union l’ont conduite directement sur le terrain d’exercice de ces droits fondamentaux. A cet égard, la constitution d’un Espace de liberté, sécurité et justice a marqué une irruption directe de l’Union dans le champ des droits fondamentaux, posant ainsi aux Etats membres en charge de l’exécution des politiques migratoires ou sécuritaires des questions redoutables. Des formes et des limites de la lutte contre le terrorisme à l’obligation de secourir les migrants, les occasions de ne plus esquiver le débat se sont multipliées. Les raisons d’un raidissement aussi.
D’autant que la montée en puissance de la protection juridictionnelle des droits fondamentaux au plan européen a mis les Etats membres en situation de devoir, parfois et en cas de contradiction, choisir entre leurs obligations communautaires et leurs devoirs conventionnels.
La tolérance longtemps manifestée par la Cour européenne des droits de l’Homme, des arrêts Cantoni à l’affaire Matthews c. Royaume Uni a donc pris fin avec la jurisprudence fameuse Bosphorus et l’apparition de la doctrine dite de la « protection équivalente ».
En un mot, pour prix de son indifférence, la Cour de Strasbourg y a marqué les limites de sa compréhension dans un paragraphe 156 qui mérite la citation intégrale : pour « que l’organisation offre semblable protection équivalente, il y a lieu de présumer qu’un Etat respecte les exigences de la Convention lorsqu’il ne fait qu’exécuter des obligations juridiques résultant de son adhésion à l’organisation. Pareille présomption peut toutefois être renversée dans le cadre d’une affaire donnée si l’on estime que la protection des droits garantis par la Convention était entachée d’une insuffisance manifeste. Dans un tel cas, le rôle de la Convention en tant qu’« instrument constitutionnel de l’ordre public européen » dans le domaine des droits de l’homme l’emporterait sur l’intérêt de la coopération internationale (Loizidou c. Turquie (exceptions préliminaires), arrêt du 23 mars 1995, série A no 310, pp. 27-28, § 75) ».
Le reste n’est plus que conséquences.

Continue reading “La guerre des juges n’aura pas lieu. Tant mieux ? Libres propos sur l’avis 2/13 de la Cour de justice relatif à l’adhésion de l’Union à la CEDH”