Category: 1. EU and MS legal Order and Institutional framework

The EU’s new (internal) security agenda

ORIGINAL PUBLISHED ON STATEWATCH

by Chris Jones, May 2015

For anyone interested in an overview of the substantial law and order bureaucracy that the European Union and its Member States have constructed over the last four decades, and the direction in which it is heading, the European Commission’s recently-published ‘European Agenda for Security’ is worth a read. This article provides an overview of the key points.

The Agenda [1] opens by stating:
“The European Union aims to ensure that people live in an area of freedom, security and justice, without internal frontiers. Europeans need to feel confident that, wherever they move within Europe, their freedom and their security are well protected, in full compliance with the Union’s values, including the rule of law and fundamental rights.”
It follows on from the EU’s 2010 Internal Security Strategy and the ‘action plan’ that sought to implement it.
The Agenda was formally requested by the Justice and Home Affairs Council in December 2014, [2] through a set of conclusions that call for many of the same proposals put forward by the Commission.
It sets out a five-year “shared agenda between the Union and the Member States” that is supposed to lead to “an EU area of internal security where individuals are protected in full compliance with fundamental rights.”

On the basis of the Commission’s communication and ongoing political and legal developments, it is doubtful – to say the least – whether the proposed “full compliance with fundamental rights” will be achieved.
Instead, the Agenda looks likely to legitimise more repressive laws and policies at EU and national level.
What’s the Agenda? The Agenda will improve:

  • “information exchange”, including of personal data;
  • “increased operational cooperation” between policing, security, border guard and customs agencies, prosecutors, companies, etc.; and
  • “mutual trust [between different national authorities], drawing on the full range of EU policies and tools.”

The three main priorities are “terrorism, organised crime and cybercrime”, although the Commission is “remaining vigilant to other emerging threats [to security] that might also require a coordinated EU response.” The Commission’s broad concerns are that:
“In recent years new and complex threats [to security] have emerged highlighting the need for further synergies and closer cooperation at all levels [of state and industry]. Many of today’s security concerns originate from instability in the EU’s immediate neighbourhood and changing forms of radicalisation, violence and terrorism. Threats are becoming more varied and more international, as well as increasingly cross-border and cross-sectorial in nature.”
There are undoubtedly a number of serious ongoing crises within the EU’s “immediate neighbourhood”. Nevertheless, this rather vague statement also to some extent encourages fear of the unknown. In any case, it provides significant leeway for developing new laws, policies and activities.

The key principles The Agenda has five: Continue reading “The EU’s new (internal) security agenda”

IS BREXIT INEVITABLE? THE UK’S EU MEMBERSHIP AFTER THE GENERAL ELECTION

ORIGINAL PUBLISHED ON EU LAW ANALYSIS

Friday, 8 May 2015

by Steve PEERS

The unexpected election of a Conservative majority government in the UK raises some fundamental questions about the UK’s continued membership of the European Union. As a first response to the election results, I’ll discuss here in turn the issues relating to the referendum and the renegotiation.

The Brexit referendum

What are the key issues of principle concerning the upcoming referendum?

First of all, let’s start with the obvious point: the new government will implement the Conservative party’s policy of attempting to renegotiate the UK’s membership of the European Union, followed by an in-out (‘Brexit’) referendum on the results of the referendum by the end of 2017. A government bill to this effect will likely be swiftly introduced; it will probably be similar to the Private Member’s Bill tabled on this issue in the last parliament, which was supported by the Conservative party.

Secondly, as I blogged last year, the opposition of many pro-Europeans to a referendum was both a mistake in principle, and a tactical error too. There’s clearly no point in expending any political energy on resisting a referendum any further.  The issue for the pro-EU side is now how to win the referendum.

Thirdly, the idea of trying to expand the voting franchise to cover all EU citizens living in the UK is a moot point in light of the outcome of the election. That’s simply because the Conservatives have the votes to push through (as they proposed in the prior Bill) a referendum based on the usual UK general election franchise (UK, Irish and Commonwealth citizens living in the UK, and UK citizens who have lived abroad for less than 15 years). Indeed, as I blogged earlier this year, while I sympathise with EU citizens living in the UK who would like to vote in a Brexit referendum, it would again be both wrong in principle and a tactical error to expand the franchise for that referendum.

Thirdly, there’s no particular reason to assume, as some inside and outside the EU do, that the anti-EU side will win the referendum. Rather the contrary: according to polling, support for staying in has risen in recent years, and clearly exceeds the support for leaving. That’s before any renegotiation takes place. Of course, we might not want to rely on polling so much in light of the election result – although the lead for the pro-EU side in this poll is much larger than the error in opinion polls during the general election. There’s also no good reason to consider the election result as a de facto vote for Brexit: the Conservative party was arguing for a renegotiation and referendum, not Brexit as such, and did not even get near 40% of the vote in any case. In a referendum, there is no ‘first past the post’ to distort the outcome of the public choice between multiple parties – only a straight ‘yes or no’ decision.

Renegotiation

There are three important political dynamics that will shape the debate over renegotiation of EU membership – and therefore affect the ensuring referendum – in the two and a half years to come.

First of all, a key issue will be the relationship between David Cameron and the rest of his party, most notably the large Eurosceptic chunk of it. Cameron’s decision to promise a renegotiation and a referendum, and then to make immigration from the EU such a key feature of the renegotiation, was prompted by demands from his backbenchers and concerns about losing Tory votes to UKIP. The latter concern will surely now go on the back burner issue as a result of the general election; but could the former issue become more important? With a small majority, is Cameron now even more at the beck and call of his back-benchers?

The key issue here is whether Cameron will continue to respond to Eurosceptic demands to harden his negotiation position (or not to give any ground on the position he has already set out), or whether he will (on this issue at least) feel less pressure than before. After all, he has answered his internal party critics by winning a majority in the House of Commons – and he has less pressure on him as a result of his intention to retire by the end of this parliament. A crucial question here is whether he could count on other parties’ support, if necessary, in the event of a rebellion by his own Eurosceptic backbenchers.

There’s an important point of principle here. Not only does the Conservative party have a democratic mandate to hold a renegotiation and a referendum: it also has a mandate to hold that renegotiation on the terms that Cameron has already set out. Some Eurosceptics believe that the UK could demand any renegotiation terms it liked from the rest of the EU, and automatically get them. But the lack of enthusiasm from other Member States for Cameron’s demands so far suggests that the Conservative party’s demands are already at (if not beyond) the limits of what other Member States could be willing to accept. Those Eurosceptics who feel that his current renegotiation demands are not enough should join the pro-Brexit camp openly and honestly, instead of trying to trick Cameron into making unrealistic demands in the hope that other Member States’ rejection of them would compel Cameron to give up on renegotiation and campaign for Brexit himself.

Secondly, a key issue is what other Member States now do following the general election result. There seemed to be little interest in discussing the renegotiation requests before, but that was understandable for two obvious reasons. First of all, because of the pending general election: why start to renegotiate with someone who might soon lose office? Secondly, because (and this was widely misunderstood) the British government never requested a renegotiation; it was Conservative party policy only. In the absence of agreement on Cameron’s strategy from the Liberal Democrats, the UK government as such never requested a renegotiation.

Both those obstacles to talks have now been removed. The question is whether other Member States are now inclined to respond to the requests for renegotiation or not. The response of key Member States like Germany, and traditional friends of the UK like the Netherlands and Ireland, will be crucial. While some Member States may think ‘this is too politically difficult for us’ or ‘if you don’t like the EU, just go away’, this would be a mistake. As a net contributor to the EU budget and a net importer of goods from the EU, it would be foolish for other Member States to refuse to negotiate at all – although as I said already, that does not mean that the UK can expect the rest of the EU to accept any and all renegotiation demands it might wish to make.

The renegotiation process will raise some important legal questions about the form and substance that renegotiation will take. I have blogged about some of these points earlier, and will be coming back to them over the months ahead.

Thirdly, the role of other political parties in the UK will be crucial. As I already mentioned, Cameron might need their support in the event of a rebellion by Eurosceptic backbenchers. Tempting as it might be to cause trouble for Cameron, it’s not in the interests of pro-EU parties to jeopardise the UK’s EU membership, which they support. Because the Conservative party has a majority, other parties will have no direct influence on the renegotiation as such. But they have an indirect importance, because of their key role in ensuring a Yes vote in the Brexit referendum. This can hardly be secured by Tory votes alone, given that the party attracts under 40% of the vote, including many anti-EU voters.

This has implications for the content of the renegotiation. Many Tories would love to see a renewed opt-out from the social chapter; but many voters on the left might reject staying in the EU on that basis (even if it could be negotiated with other Member States). Anything beyond a modest curtailment of the EU’s working time Directive (for instance, overturning the wacky CJEU case law counting doctors’ sleep as ‘working time’) could risk an anti-EU vote.

Furthermore, this means that pro-EU opposition parties will have to share a platform with (some) Tories – even though we can be certain that after two years of Tory government there will be utter loathing of that idea. But a ‘no’ to the EU will not force the Tory government out, or even cause Cameron to resign (it’s widely assumed that he would resign as Tory leader shortly after the Brexit vote anyway). And the most fervent supporters of the free movement of EU citizens will have to accept that some curtailment of free movement rights is an inevitable consequence of the renegotiation. Without it, there will soon be no free movement between the UK and EU at all.

As for the anti-EU parties (mainly UKIP and a big chunk of the Tories, with a smattering of politicians from other parties), the key issue will be whether they can sell a coherent and plausible alternative to the UK’s EU membership. This is another issue which I will come back to, since it raises many legal issues. But suffice it to say that the simplest alternative to EU membership (the European Economic Area) is unattractive to Eurosceptics because it still provides for free movement of people. Any other alternative will entail a negotiation of a new agreement with the other Member States. But the anti-EU side will not only have to agree a common view on what this would entail, but also convince the public that other Member States will necessarily accept it. Compare to the Scottish independence referendum last year, where the SNP government was able put forward a single detailed plan on what independence would look like (I doubt that the various Eurosceptics could easily agree on the equivalent) but could not then (as I blogged at the time) convince enough Scottish voters that the remaining UK would agree to it. This may prove to be the Achilles heel of the anti-EU side.

Finally, a more general point. The result of the general election is undoubtedly a great shock and disappointment to non-Tories like myself. But the prospect of a Brexit referendum offers us a chance to fight (alongside pro-EU Tories) for important things we believe in, well before the next general election: employment rights, environmental and consumer protection, human rights, animal welfare, openness to the outside world and economic prosperity through trade in goods and services and free movement of people.  Let’s try to light this candle, not simply curse the darkness.

*This post is linked to research for my forthcoming book from Hart Publishing – Brexit: The Legal Framework for Withdrawal from the EU or Renegotiation of EU Membership

Victor Orban, la peine de mort et l’engagement européen de la Hongrie : noces d’étain ou mariage blanc ?

Original published HERE

By Simon LABAYLE

8 MAI 2015 CERIC

Mariage d’amour, mariage d’argent… L’Union européenne a vu se marier toutes sortes de partenaires. Des noces enthousiastes, lorsque la Grèce, le Portugal ou l’Espagne rejoignaient les démocraties déjà membres des Communautés au nom de démocraties au nom de la promotion de l’Etat de droit. Des mariages de raison, lorsque la Suède ou le Danemark la rejoignaient sans ferveur, en cédant à des impératifs essentiellement économiques. Les différentes vagues d’élargissement qui ont façonné le visage de l’Union contemporaine n’ont donc pas provoqué une liesse comparable. Chacune d’entre elle révélait pourtant la volonté de s’unir à ses voisins européens.

L’histoire politique et juridique de l’Union européenne appelle cependant aujourd’hui à réfléchir au sens comme à la force de cet engagement. Un nouvel épisode tiré de la relation tourmentée qu’entretiennent la Hongrie et l’Union sert ici de toile de fond à une réflexion plus globale. On sait en effet les crises qui troublent régulièrement leurs rapports depuis l’investiture de Viktor Orban en tant que Premier ministre suite aux élections législatives d’avril 2010. La dernière en date relance un débat que l’on pensait clos sur la peine de mort.

1. L’Union européenne et la peine de mort

Il convient, avant toute autre chose, de rappeler que la peine de mort est expressément proscrite par le droit de l’Union européenne. L’article 2 de la Charte des droits fondamentaux ne laisse planer aucune ambigüité : « 1. Toute personne a droit à la vie. 2. Nul ne peut être condamné à la peine de mort, ni exécuté ». L’article 19 de la Charte précise d’ailleurs même que « Nul ne peut être éloigné, expulsé ou extradé vers un État où il existe un risque sérieux qu’il soit soumis à la peine de mort, à la torture ou à d’autres peines ou traitements inhumains ou dégradants ». Ce rappel d’une jurisprudence connue de la CourEDH constitue donc un indicateur non négligeable du statut particulier dont jouit cette interdiction au sein de l’Union.

Parallèlement, et au-delà du droit primaire, l’Union européenne a également adopté des orientations contre la peine de mort en 1998, révisées en 2008 et 2013, selon lesquelles «  l’UE considère que l’abolition de la peine de mort contribue au renforcement de la dignité humaine et au développement progressif des droits de l’homme … », tandis que ses principales personnalités politiques multiplient les déclarations en ce sens avec une régularité métronomique. Les présidents Van Rompuy et Barroso l’ont par exemple rappelé à l’occasion du discours le plus symbolique qu’ils prononcèrent au cours de leurs mandats respectifs : celui de leur acceptation du prix Nobel de la paix prononcé le 11 décembre 2012. Plus récemment, en toute logique, l’actuel Président du Conseil européen Donald Tusk a également dénoncé la condamnation à mort médiatisée du ressortissant français Serge Atlaoui par l’Indonésie.

L’Union européenne ne se borne donc pas à proscrire la peine de mort sur son sol. Elle a engagé un véritable combat à son encontre et elle s’impose même comme le premier donateur mondial dans la lutte contre la peine capitale. Cette interdiction dessine donc l’un des marqueurs symboliques de l’identité de l’Union. Il est bon de rappeler aussi que la peine de mort est parallèlement proscrite dans les 47 Etats membres du Conseil de l’Europe, que les articles 2 et 3 de la Convention européenne des droits de l’homme ont été interprétés par la Cour européenne des droits de l’homme comme interdisant celle-ci en toutes circonstances (arrêt Al Saadoon et Mufdhi c. Royaume Uni du 2 mars 2010, § 120), tandis que deux protocoles de la Convention prévoient son abolition (Protocoles 6 et 13). Individuellement, les Etats membres de l’Union sont donc liés par cette obligation, la Hongrie y compris. Il n’est donc nul besoin de démontrer que cette lutte constitue un pivot essentiel de la singularité européenne sur la scène internationale. Ce que Viktor Orban ne pouvait évidemment ignorer.

2. Une nouvelle « affaire » hongroise ?

Continue reading “Victor Orban, la peine de mort et l’engagement européen de la Hongrie : noces d’étain ou mariage blanc ?”

The Surveillance society (2) by Jens-Henrik JEPPESEN

Controversial French Surveillance Regulation Should Re-Ignite EU Debate on Surveillance Reform

Original Published HERE

by 

As has been widely reported in the press, France is moving ahead with new legislation to enable expanded electronic surveillance. As expected, the surveillance bill, the Projet de Loi Relatif au Renseignement, was passed by Members of the French National Assembly by an overwhelming majority on May 5, sparking a fresh round of heated debate.  The legislation will now move to France’s other parliamentary house, the Senate.

The bill is so excessive that we believe it could, and should, lead to a renewed debate on surveillance reform across Europe..

A wide range of French civil society groups, lawyers, and technology industry groups have voiced strong opposition to the bill from its inception. Some have even dubbed the law a French Patriot Act, and the expanded powers found in the legislation would in fact pose a serious threat to human rights in France.  Indeed, the bill is so excessive that we believe it could, and should, lead to a renewed debate on surveillance reform across Europe.   We have long believed that action at the EU level is critical to protecting human rights in the surveillance context, and the French bill shows that this need is more urgent than ever.

According to an analysis by one of the main opponents of the bill, the French digital rights group La Quadrature du Net, the draft bill was introduced by Prime Minister Valls with the ostensible goal of providing a clear legal framework for intelligence gathering that respects fundamental rights. In reality, however, the law expands the scope of permissible electronic surveillance and legalizes a range of highly problematic monitoring techniques that can be extended for potentially indefinite periods and are subject only to relatively weak oversight.  This creates a range of serious civil liberties concerns.

One issue is the widespread use of privacy-invasive surveillance technology. The law would authorize government officials to compel telecommunications service providers to install so-called “black boxes” to monitor the metadata of users’ personal communications for suspicious patterns or behavior, based on automated analysis and algorithms. No judicial review, or judicial warrant, would be required for such surveillance.  Additionally, although the data would initially be analyzed on an anonymous basis (and would not include the content of messages), the authorities would have the power to lift this anonymity for at least some individual users if they believe the patterns show a terrorist threat.  Some experts have already begun to highlight the risk of false positives as well as the technical flaws in the idea of “anonymous” data that can be “de-anonymized”. These practices show that the French interior minister’s claim that the bill is “not aimed at installing generalized surveillance” in France is flat wrong.

Another problem is the broad objectives for which the surveillance techniques foreseen in the bill can be used. The bill uses wording such as “essential foreign policy interests,” “international commitments,” “essential economic or scientific interests,” and “collective violence that could cause serious harm to the public peace.” This is in addition to protecting national security and fighting terrorism and organized crime. With such a vaguely defined and broad scope of application, the surveillance measures authorized by the bill could be brought to bear in a very wide set of contexts and cover large sections of society.

Now would be an excellent time to open a proper European debate on what sort of surveillance may be justified, and what proper oversight of surveillance programs looks like…

Furthermore, the bill creates a set of separate rules on “communications sent or received abroad.” LQDN’s analysis shows that interception, collection, retention, and use of such communications by the intelligence services would not be covered by any of the usual privacy protections found in French law. The rules on this data would be set out in a classified decree to be adopted sometime in the future.

Now would be an excellent time to open a proper European debate on what sort of surveillance may be justified, and what proper oversight of surveillance programs looks like. We are conscious of the limits on the authority of the EU institutions in matters of national security. However, the EU Member States have clear and inescapable obligations under EU law as well as the European Convention on Human Rights to conduct their surveillance activities in strict accordance with privacy and other fundamental rights.   Neither France nor any other Member State can ignore those obligations, including by passing laws as excessive as the one the French Parliament is currently considering.  These pressing issues need to be debated, and any country that overreaches must be held to account.

Thus far, the European Member States have been reluctant to engage in such a debate on their own initiative. Therefore, it would be appropriate for both the European Parliament and the European Commission to take the lead in getting that debate going.

The Surveillance Society (1) by Emilio Mordini

Original published HERE

By Emilio MORDINI

Today (May 7) a US federal appeals court has ruled the phone metadata program of the National Security Agency’s (NSA) is illegal. Metadata is ancillary details generated by a piece of information.  Telephone metadata includes details  such as the length of a call, the phone number from which the call was made, the phone number called,  the telephone devices used, the location of the call, and so. Telephone metadata do not include voice recording and call contents. In 2014 Stanford computer scientist and lawyer, Jonathan Mayer, demonstrated that from phone metadata it is possible to draw very sensitive inferences, such as details about an individual’s familial, political, professional, religious, and sexual life.  Mayer demonstrated that metadata are highly meaningful even in a small population and over a short time period.

The NSA’s telephone metadata program, which started seven months before the September 11, 2001, collected metadata of hundreds of billions of telephone calls made along several years through the largest telephone carriers in the United States. In 2006, the existence of the NSA program was brought to the light by USA TODAY. However, it was only on June 5, 2013 that The Guardian published a top-secret document, which provided the conclusive evidence that the NSA collected phone metadata from hundreds of millions of phone subscribers.  Such a document was included in NSA classified files leaked by Edward Snowden.

On June 11, 2013, the American Civil Liberties Union (ACLU) filed a lawsuit against the NSA, challenging the legality and constitutionality of the phone metadata program. On Dec 16, 2013 the District Court for Southern District of New York ruled the phone metadata program was legal and does not violate the Fourth Amendment (on August 29, 2013, the Foreign Intelligence Surveillance Court had already stated that phone metadata: “is not protected by the Fourth Amendment, since the content of the calls is not accessed”). The ACLU appealed against this decision. Now the court of appeals has definitely ruled that phone metadata program is illegal, because it “exceeds the scope of what Congress has authorized and therefore violates § 215” of the Patriot Act.  Ruling the illegality of the program, the court avoided taking a stance about its constitutionality.  However, what is interesting is the court’s main argument, say, the Patriot Act § 215 provides the legal framework for investigation, but not for a generic threat assessment. Investigation – argues the court – is an activity that entails “both a reason to conduct the inquiry and an articulable connection between the particular inquiry being made and the information being sought. The telephone metadata program, by contrast, seeks to compile data in advance of the need to conduct any inquiry (or even to examine the data), and is based on no evidence of any current connection between the data being sought and any existing inquiry”. Why is this argument intriguing? Because it implies a counter-intuitive explanation of surveillance policies.

Why so many governments and rulers are passionate of surveillance technologies? Because they want to know everything about us, the standard account goes. No, the court tells us; they spy because they do not have any inquiry to do, any explanation to test, any investigation to carry out. Briefly, because they do not know,  are not able to know, and do not want to know. They do not understand the world and its conflicts, they do not have interpretation grids, they cannot figure out  the future. They are just “walking shadows, poor players that strut and fret their hour upon the stage”. They spy just for spying, because of their political emptiness, because of their intellectual laziness. Surveillance is for them the obscene surrogate for knowledge. Understanding is precluded by their shortsighted view; modern, sophisticated, technologies become a surrogate for intelligence.

Today, privacy advocates are celebrating, yet this sentence makes justice also of some of their paranoid fantasies. The surveillance society is not ruled by the big brother, rather by an idiot Peeping Tom.

CHEERLEADING OR JUDGING? THE CJEU UPHOLDS THE EU’S UNITARY PATENT SYSTEM

ORIGINAL PUBLISHED IN EU LAW ANALYSIS

by Steve Peers

Two new CJEU judgments (here and here) have today upheld the legality of the EU rules on the unitary patent. To what extent are the Court’s reasons convincing and coherent?

Background

The background to today’s rulings was summarised in my previous blog post, on the Advocate-General’s opinion. Suffice it to say that: the EU has tried for decades to agree on patent rules, and the Treaty of Lisbon created a specific legal base for the adoption of EU intellectual property rules (Article 118 TFEU). The main rules are to be adopted by the ordinary legislative procedure (qualified majority voting in Council, joint power for the European Parliament), but the languages rules, which apply in this case to translations of the patent (or patent claims), must still be agreed by unanimity.

Since Member States could not reach the required unanimity on the patent translation rules, most Member States agreed to apply the process of ‘enhanced cooperation’, ie adopting EU legislation that applied to some Member States, but not others. This entailed a two-step procedure: authorisation of enhanced cooperation by the Council (by a qualified majority vote of all Member States), and then the adoption of the legislation to implement enhanced cooperation, with only the participating Member States voting. Spain and Italy challenged the initial authorisation (adopted in 2011) regarding patents, but the CJEU ruled against them in 2013. The two Regulations implementing enhanced cooperation in this area were adopted, in the meantime, at the end of 2012, concerning the substantive rules governing a ‘unitary patent’ and thelanguage rules.  Spain (this time without Italy) challenged these measures in turn; those two challenges are the subject of today’s judgment.

The EU legislation on this issue is closely linked to two international treaties. First of all, the European Patent Convention, agreed in 1973, which binds all EU Member States and a number of non-Member States, and which sets up a legal framework for registering a patent in a number of European countries, by means of an application to the European Patent Office which it established. This results in a ‘European patent’, but the legal title concerned is not genuinely uniform, but depends on the national law of each of the countries where the patent is registered. The point of the EU legislation is to create a form of European patent that will have uniform existence in all of the participating Member States, also reducing the costs of translation that would otherwise apply.

The second treaty concerned is a treaty among Member States creating a Unified Patent Court, in order to reduce the costs of litigation concerning European patents and the planned unitary patent. (Although the CJEU had objected to aspects of these plans in its Opinion 1/09, Member States believe that they have addressed the Court’s concerns). That treaty will come into force once thirteen Member States, including France, Germany and the UK, have ratified it. So far six Member States have, including France. The application of the EU’s unitary patent law is dependent upon this treaty coming into force, and the unitary patents will only be valid in Member States which have ratified the treaty (all Member States except Spain, Poland and Croatia have signed it; all Member States except Spain, Italy and Croatia participate in the Regulations).

The judgments

Spain’s legal arguments against the two EU Regulations differed somewhat. As regards the main Regulation, Spain argued that it was invalid because it created a unitary patent dependent upon the acts of the European Patent Office, whose acts are not subject to judicial review. Secondly, the Regulation did not create ‘uniform protection’ within the meaning of Article 118 TFEU. Thirdly, there is a ‘misuse of power’, ie enhanced cooperation was used for a purpose other than the Treaties allow for. Next, the Regulation breached the rules concerning the conferral of implementing power upon the Commission, because it gives power to the Member States to decide on issues such as renewal fees.

As regards the languages Regulation, Spain argued that the special status of the French, English and German languages set out in that Regulation was discriminatory. Also, it argues that there is no legal power for the EU to regulate language issues in the event of a dispute, as the Regulation does, and that the Regulation violates the principle of legal certainty.

In both cases, Spain argued that the rules on adopting implementing measures were invalid, since powers to implement EU law were granted to a non-EU body, the European Patent Office. Also, it argued that making the application of the Regulations dependent upon the ratification of the treaty creating the unified patent court breached the principle of the autonomy of EU law.

The CJEU has rejected all of these arguments. In its view, the main Regulation doesn’t violate the rule of law, since it simply takes the form of a ‘special agreement’ as provided for in the EPC. Secondly, the Court said that Article 118 TFEU was the correct legal base for the legislation, since it established a system of uniform protection for unitary patents. It did not matter that it referred to national law as regards some issues, since Article 118 does not require the EU to fully harmonise the particular intellectual property right at issue, and at least this provided for more harmonisation than the EPC, which is in effect a bundle of national patents. Thirdly, there was no ‘misuse of power’, since the Regulation did not secretly aim at a purpose other than its purported end. Next, it was acceptable for the Regulation to confer upon Member States the power (acting via their participation in the EPO) to implement its rules, since the EU Treaties only require implementing powers to be conferred upon the conditions where ‘uniform’ implementing measures were required. Nor did the Regulation violate the ‘Meroni principle’ of an impermissible delegation of discretionary powers. Finally, the Spanish government’s challenges relating to the unified patent court treaty were inadmissible, and its challenge to the rules on the timing of the application of the Regulation were rejected on the merits. The Court ruled that the EU is free to defer application of EU legislation until preparatory steps have been taken, and that limiting the application of the Regulation to those Member States which have ratified the unified patent court treaty was acceptable, since it only affected a few provisions of the Regulation.

As for the languages Regulation, the CJEU ruled that while it was discriminatory in principle to confine translations to three languages only, there was no rule of EU law that all EU languages have to be equally valid as regards all issues linked to EU law. The discrimination as regards languages could be justified by the need for reducing costs and therefore encouraging innovation. It was appropriate to use the three languages already used by the EPO, in light of the link between the EPO and the EU system, and the EU law was not disproportionate, in light of the rules in the Regulation designed to address the concerns of patent holders using other languages. The Court also ruled that the entire Regulation fell within the scope of the ‘legal base’ relating to languages issues, and that there was no breach of the principle of legal certainty.

Comments

The CJEU did not really rule on any of the many interesting questions about thesubstantive grounds governing the implementation of enhanced cooperation, simply because Spain did not raise them. However, the argument relating to discrimination touches indirectly upon those issues.

Parts of the Court’s ruling are convincing, particularly as regards the possibility of delaying the entry into force of EU laws to wait for other developments, the ‘legal certainty’ issues relating to the languages Regulation and the legal base issue regarding the same Regulation. However, with respect, some of its reasoning was only partially convincing. The Court’s case for using a limited number of languages is sensible only if one accepts its underlying premise that the unitary patent system will have the overall impact of enhancing innovation. Many critics of the patent system argue that it does the reverse, by giving an overly lengthy monopoly to the patent-holders. To be fair, though, it would be too much to expect the Court to enter into this argument, particularly since Spain did not raise it.

Similarly, the Court’s argument that the Meroni principle was not infringed is sensible enough – if one accepts its separate conclusion that the main Regulation validly conferred implementing powers upon Member States. But that conclusion brings us to the chain of contradictions in the Court’s reasoning. For the powers that Member States will exercise when implementing the unitary patent Regulations will not result in divergent approaches in each country’s individual national laws, as is normally the case when Member States are left with the powers to implement EU law in practice. Rather, they must exercise their powers collectively, to adopt uniform rules regarding the unitary patent, within the context of the EPO. Indeed, the Court’s other conclusionsinsist upon the uniform nature of that patent. This points us inexorably toward the conclusion that uniform rules to implement the Regulations were necessary – which means (according to the Treaties) that such powers ought to have been conferred upon the Commission.

For the same reasons, the Court’s dismissal of the argument against limiting the application of the main Regulation to those Member States which have ratified the unified patent court treaty is unconvincing. The Court is indeed right to say that this limitation affects only a few provisions of the Regulation – but these are the provisions relating to the uniform nature of the patent, which the Court relied on so heavily when it defended the legal base of this Regulation.

This stress on the uniform nature of the patent also contradicts the first part of the Court’s reasoning on the main Regulation, which deferred to the EPC system and argued rather that EU law did not alter that system at all. The Court did not adequately answer the argument that the EU lacked power to do this, and entirely side-stepped the important argument that the EPO should be subject to judicial review. This contrasts with the Court’s famous insistence in Kadi upon the need for adequate review of international bodies whose acts impact upon the EU legal order.

In the Court’s view, the unitary patent system is valid because it largely refers back to the EPO system, and also because it does not. With respect, the Court is trying to have its cake and eat it too. A better argument would have been to embrace the hybrid nature of the system rather than run away from it. After all, the drafters of the Treaty of Lisbon were well aware of the existence of the EPO. In light of the discussions on a possible EU patent which were underway when that Treaty’s predecessor (the Constitutional Treaty) was drawn up, a hybrid solution based on a combination of the EPO and EU law was presumably exactly what the Treaty drafters were aiming to facilitate when they added Article 118 TFEU to the Treaties.

Whether the Treaty drafters ought to have intended this is, of course, another question. But the best place for a debate about the fundamental merits of intellectual property protection is the political arena, not the courts. While today’s judgments confirm the legal validity of the EU’s unitary patent system, and enable it to go forward in the near future (after several more ratifications of the patent court treaty), their circular and contradictory reasoning suggests that the Court simply wanted to approve the patent system regardless of the legal arguments against. But this approach to judicial analysis could ultimately hinder, rather than bolster, the broader legitimacy of the unitary patent system.

THE CJEU WASHES ITS HANDS OF MEMBER STATES’ FINGERPRINT RETENTION (JOINED CASES C-446/12 – 449/12 WILLEMS)

ORIGINAL PUBLISHED ON EU LAW BLOG

by

When is the Charter of Fundamental Rights of the EU applicable to a Member State measure? In C-446/12 – 449/12 Willems the CJEU held that a Member State which stores and uses fingerprint data, originally collected in compliance with Regulation No 2252/2004, but which the Member State then uses for purposes other than those stipulated in the Regulation, is not acting within the scope of EU law, and therefore is not bound by the Charter. This case appears to indicate a retreat by the Court from the expansive interpretation of the scope of application of the Charter which it had previously laid down in C-617/10 Fransson.

Facts and judgment

Council Regulation No 2252/2004/EC requires Member States to collect and store biometric data, including fingerprints, in the storage medium of passports and other travel documents, and require that such data be used for verifying the authenticity of the document or the identity of the holder. Spain introduced measures requiring the collection and retention of the fingerprint data for use in connection with travel documents. However, those national measures also provide that such data can be kept in a central register, and used for other purposes (such as national security, prevention of crime and identification of disaster victims). The applicants made passport applications, but refused to provide the fingerprint data. They argued, inter alia, that the storage and further use of those data breached their fundamental rights under Article 7 and 8 of the Charter of Fundamental Rights of the EU. The national court referred two questions for preliminary ruling.

The first question concerned the applicability of the Regulation to national identity cards. The Court held that the Regulation did not apply to such cards. The second question is the one I want to focus on: Does Article 4(3) of the Regulation, read together with Articles 6 and 7 of Directive 95/46/EC  and Articles 7 and 8 of the Charter, require Member States to guarantee that the biometric data collected and stored pursuant to that Regulation will not be collected, processed and used for purposes other than the issue of passports or other travel documents?

The ECJ had already held (in C-291/12 Schwarz) that the collection of those data for the purposes stipulated in the regulation (to verify the authenticity of the passport or the identity of the holder) was compatible with the Charter. The question was whether further processing of those data by the Member State would similarly be compatible.

The Court noted that the Regulation did not provide a legal basis for such further processing – if a Member State were to retain those data for other purposes, it would need to do so in exercise of its own competence (para 47). On the other hand, the Regulation did not require a Member State not to use it for other purposes. From these two observations the Court concluded that the Regulation was not applicable. The Court then cited its famous passage in C-617/10 Franssonwhere it had held that the applicability of EU law entails the applicability of the Charter. As the Regulation was not applicable, the Charter was not applicable either.

The Court then turned to Directive 95/46/EC  (the Data Protection Directive). It merely observed that the referring court requested the interpretation of the Regulation “and only that Regulation”. As the Regulation was not applicable, there was no need to examine whether the Data Protection Directive may affect the national measures.

Comment

I will focus on the question of applicability of the Charter (See Steve Peers comment on the “appalling” reasoning of the Court in respect of the Data Protection Directive). This judgment appears to signal a retreat by the Court from the expansive understanding of the scope of application which was laid down inFransson. It is true that in that case the Court had held that when EU law is not applicable, the Charter is not applicable. But when applying that test to the facts, the Court observed that the national (Swedish) measure was connected (in part) to infringements of the VAT Directive, and therefore was designed to implement an obligation imposed on the Member States by EU law “to impose effective penalties for conduct prejudicial to the financial interests of the European Union”. So inFransson the Court held that national measures which were connected in part to a specific obligation imposed by EU law on the Member State fell within the scope of application of EU law, and therefore of the Charter.

In the present case, the national measures are designed (in part) to implement the obligation imposed on the Member States by the Regulation, to collect and retain fingerprint data. Applying the reasoning in Fransson it would seem to follow that such measures would fall within the scope of EU law – after all, the measures relate to the retention of fingerprints, and the reason the fingerprints need to be retained stems from a specific obligation imposed, by EU law, on Member States: the obligation to collect and store biometric data with a view to issuing passports and travel data, set out in Article 4(3) of the Regulation.

Of course, this case can be distinguished from Fransson. In Fransson the Member State’s measure could be seen as not only stemming from the specific obligation imposed by EU law, but also as furthering the EU purpose of preventing conduct prejudicial to its financial interests. In contrast, in the present case the Member State’s measure is in furtherance of a member state’s purposes, and not an EU purpose.

But such a distinction would seem to entail a very strict approach to what obligations are imposed by EU law. Because the obligation which the Regulation imposes is not just to collect and store date, but also (under Article 4(3) of the Regulation) to ensure that the data are only used to for the specified purposes set out in the Regulation. That obligation was subsequently modified by Recital 5 inRegulation 444/2009, which states that Regulation 2252/2004 is “without prejudice to any other use or storage of these data in accordance with national legislation of Member States.” But is such a Recital sufficient to place the measures concerning those data outside the scope of EU law, or does it merely confer a discretion on states to adopt such measures, provided that they are compatible with EU law? Unfortunately, the reasoning in this judgment does not provide much guidance.

Conclusion

The approach of the Court in Fransson did not meet universal approval, and the judgement of the German Federal Constitutional Court in the Counter-Terrorism Database case may be read as a warning shot across the CJEU’s bows to make sure that the Charter is not applied to Member States’ measures in a way that “question[s] the identity of the [national] constitutional order”.  And by emphasising the autonomy of EU fundamental rights in its recent Opinion 2/13 on the accession to the ECHR, the Court certainly raised the stakes involved in demanding Member State compliance with the Charter. So this case may indicate a desire to ensure that the EU fundamental rights standard is reserved for those Member State measures where it matters most that a EU standard is applied – those matters where the primacy, unity and effectiveness of EU law is at stake.

In effect, this case can be read as tacit acceptance of AG Cruz Villalón in hisOpinion in Fransson, who proposed that the oversight by the Court of the exercise of public authority by the Member States be limited to those cases where there was “a specific interest of the Union in ensuring that that exercise of public authority accords with the interpretation of the fundamental rights by the Union”. However, that Opinion was a well reasoned legal argument. This judgment leaves many questions unanswered, and makes it very difficult to predict when a national measure will fall within the scope of EU law.

Furthermore, this approach sits uneasily with the self-understanding of the EU as a Union based on the rule of law inasmuch as neither Member States nor its institutions can avoid review of the conformity of their acts with fundamental rights (C-402/05 P and C-415/05 P Kadi). Through this Regulation, the EU requires the Member States to collect and store sensitive personal data of all EU citizens who wish to travel; but where the Member States go on to use those data in ways that may breach the fundamental rights of those EU citizens, the Court washes its hands of the matter.

 

 

Terrorisme : La France n’est pas seule concernée mais la France doit aussi se sentir en cause ..

OPINION  (ORIGINAL PUBLISHED HERE)

par Simone GABORIAU 
Présidente de chambre honoraire de la cour d’appel de Paris (Membre du Conseil d’administration de M.ED.E.L).

Apres les attentats des 7, 8, 9 janvier, les plus meurtriers qu’ait connus la France depuis plus de 50 ans (1), après la stupeur, l’émotion et l’union, le temps de la réflexion rationnelle s’impose. Il faut le faire en France et au sein de l’Europe des droits de l’homme mais aussi dans le contexte de l’environnement humanitaire mondial.
Les actes terroristes ne sont pas nouveaux dans l’histoire du monde
Contrairement a bien des idées reçues, le terrorisme n’est pas le fruit du malheur de notre temps mais appartient a une histoire ancienne.
« L’histoire mondial du terrorisme concerne la totalité du monde et ne fait pas de distinction entre continents, aires culturelles et religieuses (2) ».
Du terrorisme interne au terrorisme international, les origines en ont été multiples ; y ont été représentées : toutes les religions, divers courants de pensée, des mouvements irrédentistes, ou de résistance à l’oppression ou de conquête d’indépendance face au colonisateur… Certains groupements ont été héroïses d’autres diabolisés. Certains ont été vaincus par la force ou la répression, d’autres se sont finalement assis a des tables de négociations. Sans oublier de citer le « terrorisme d’Etat » dont l’origine est notamment à « la terreur » de la Révolution française, reprise par la Révolution russe et qui peut s’appliquer à bien des situations de terreur d’Etat qui ont sévi ou sévissent encore dans le monde.

Un terrorisme devenu global

Les attentats du 11 septembre 2001, ont révélé que l’on doit, de plus en plus, faire face à un terrorisme global, en ce qu’il emprunte les moyens de la globalisation technologique et financière pour relier des individus, ou groupes, terroristes, indépendamment de leur base territoriale.
Cette nouvelle dimension a facilité la montée en puissance du terrorisme se revendiquant du radicalisme islamique lequel, actuellement, serait responsable de la majorité du nombre de victimes (3).
Mais il faut se garder, d’interpréter cette situation comme une manifestation du « choc guerrier des civilisations » car ce serait tomber dans le piège tendu par ce terrorisme.

La reconnaissance d’une communauté mondiale de valeurs (4) ?

Ce caractère global a plus que jamais motive la volonté de coopération internationale. Apres l’échec de la SDN, l’ONU peine a l’établir de façon compatible avec la sauvegarde des droits fondamentaux comme l’illustre le système des « listes noires » finalement annulé par la Cour de justice des communautés européennes (5).
Cette communauté de valeurs parait avoir été mieux sauvegardée au niveau européen, a tout le moins, par le rôle des juridictions Cour Européenne des droits de l’homme et Cour de justice des communautés européennes.

La montée en puissance de la reconnaissance des victimes

Dans cette communauté de valeurs, la personne de la victime a pris une place grandissante. L’acte terroriste qui trouvait jusque dans les années 1970-80, bien des gens pour l’excuser ou le légitimer est devenu d’autant plus insupportable qu’il visait des civils définis des lors comme des victimes par excellence (6).
Le discours public en France, et sans doute dans bien des pays, est particulièrement sensible a la prise en compte des victimes. C’est, au reste, un des progrès récent de nos sociétés démocratiques.

Brève, et non exhaustive, analyse de la situation Française Continue reading “Terrorisme : La France n’est pas seule concernée mais la France doit aussi se sentir en cause ..”

The revision of the EU Anti-Money Laundering legal framework is fast approaching..

By Dalila DELORENZI (Free Group trainee)

1.Foreword

Broadly speaking Money laundering means the conversion of the proceeds of criminal activity into apparently clean funds, usually via the financial system  by disguising the sources of the money, changing its form, or moving the funds to a place where they are less likely to attract attention. Terrorist financing is the provision or collection of funds, by any means, directly or indirectly, with the intention that they should be used or in the knowledge that they are to be used in order to carry out terrorist offences. At EU level since 1991 at EU level legislation has been introduced to limit these activities and to protect the integrity and stability of the financial sector and, more in general, of the Internal Market. The EU rules are to a large extent based on Recommendations  adopted by the Financial Action Task Force (FATF) which is an intergovernmental body with 36 members, and with the participation of over 180 countries in the world.

The directive currently into force is the Third Anti-Money Laundering (AML) Directive which applies to the financial sector (credit institutions, financial institutions) as well as to professionals such as lawyers, notaries, accountants, real estate agents, casinos and company service providers. Its scope also encompasses all providers of goods, when payments are made in cash in excess of EUR 15.000. All these addressees are considered “obliged entities”. The Directive requires these obliged entities to identify and verify the identity of customers (so-called customer due diligence, hereinafter ‘CDD’) and beneficial owners, and to monitor the financial transactions of the customers. It then includes obligations to report suspicions of money laundering or terrorist financing to the relevant Financial Intelligence Units (FIUs), as well as other accompanying obligations. The Directive also introduces additional requirements and safeguards (such as the requirement to conduct enhanced customer due diligence) for situations of higher risk.

In force since 2005 the third Money Laundering Directive required a revision against the backdrop of the constantly changing nature of money laundering and terrorist financing threats, facilitated by a constant evolution of technology and of the means at the disposal of criminals. In particular, the recent terrorist attacks in Paris have increased the necessity of decisive actions against terrorist financing and further efforts need to be made in adapting the current framework to a different reality. Therefore in accordance with this purpose, at the international level measures have been taken by the Financial Action Task Force (FATF): a fundamental review of the international standards has been undertaken and a new set of Recommendations have been adopted in February 2012.

In parallel to the international process, the European Commission with a view to complying with the international standards has undertaken its own review of the European Anti-Money Laundering framework. This revision consisted in an external study (the so called Deloitte study) on the application of the Third AMLD (Directive 2005/60/EC) and in extensive contacts and consultations with private stakeholders and civil society organisations, as well as with representatives of EU Member State regulatory and supervisory authorities and Financial Intelligence Units (FIUs).

The results of the Commission’s review were set out in a Report , addressed to EU Parliament and Council, where it was analysed how the different elements of the existing framework have been applied and how it may need to be changed, highlighting the necessity to introduce clarifications or refinements in a number of areas.

More specifically, the main problems in the current EU anti-money laundering/combating terrorist financing legislative framework are: (i) inconsistency with the recently revised international standards; (ii) different interpretation and application of rules across EU Member States; and (iii) inadequacies and loopholes with respect to the new money laundering and terrorist financing risks.

2. The EU Commission’s proposals Continue reading “The revision of the EU Anti-Money Laundering legal framework is fast approaching..”

(EPPO) European Public Prosecutor: also the European Parliament wants a say…

by Giuseppe RIZZO (Free Group Trainee)

How a simple “yes or no” could be complemented by a political dialogue

After almost two years since the European Commission’s Proposal for a Regulation on the establishment of a European Public Prosecutor’s Office (EPPO), the Council of the European Union is still negotiating the rules concerning the institution and the action of the EPPO (see preparatory documents here).

According to art. 86  of the TFEU, this new body could be established with unanimity within the Council of the EU or with an enhanced cooperation by at least nine Member States. It is worth noting that unlike  the ordinary legislative procedure in the EU, art. 86 of the TFEU establishes a special legislative procedure where the Council has to take the final decision even if  the European Parliament can approve  or reject the Council’s text.. This institutional model  which can be sensible when international agreements are at stake (as the EP like the national parliaments can only ratify or reject them) , when applied at legislative level is not consistent with the general rule according to which EU legislation should result from an agreement between the Council which represent the national governments and the European Parliament as direct representative of EU Citizens.

To overcome this political and institutional imbalance the EP in the cases of legislation to be adopted by simple consent ,has established a practice through which it try to influence the position of the Council by adopting interim reports with recommendations. The latter even if not legally binding could have a political weight and should be taken in account by the Council if it wants avoid the risk of rejection of its text and the need to re-start from scratch a new procedure  (as it already happened after the rejection of some international  agreements).

The EP Interim reports    

On the EPPO proposal the European Parliament already adopted on 12th March 2014  in the previous legislature an interim resolution  which was focused on issues such as the jurisdiction of the future Institution,  if and how decisions taken by the prosecution could be appealable, the relations between the EPPO and other already existing Agencies and bodies such as Eurojust and OLAF.  The 2014 EP LIBE resolution highlighted, the relation between the Member States notably  in case of adoption of the EPPO regulation following the  “enhanced cooperation” procedure  (by so trying to frame the relation between participating and non-participating Member States).

One year after the LIBE Committee has drawn up another Interim Report that will be discussed next week by  the plenary in Strasbourg.

In this new report the LIBE Committee takes stock of the current state of negotiations in the Council, and focus on the most important characteristics of the future EPPO. Notwithstanding the reservations of several national parliaments LIBE confirms the necessity and urgency of building up the new body also to overcome the Member States persistent unwillingness to follow the  recommendations for prosecution issued by OLAF (followed only in 31% of the cases from 2006 to 2013).

LIBE also agree that for the time being that the competence of the future EPPO should be limited to offences relating to fraud against the financial interests of the Union, even if the spreading of the terrorist threat in the EU could had suggested a wider EPPO competence taking stock of the limits of Europol and Eurojust in this sensitive domain. But even if limited to the protection of financial interests the new competence should be further defined as nowadays there is not yet a uniform definition of what constitutes illegal activities “affecting the EU’s financial interests”. In principle this legal gap will be soon overcome by another legislative text currently negotiated between the EP and the Council [1], the so-called “PIF” Directive (from the French acronym: protection des intérêts financiers) which will also define the scope of the material competence of the future EPPO which will be the subject of an incoming post of this blog.

Structure and competence of the EPPO Continue reading “(EPPO) European Public Prosecutor: also the European Parliament wants a say…”