(EPPO) European Public Prosecutor : are the EU member States slowly stifling an European project…?

By Maria Giovanna VEROUX (FREE-Group Trainee)

1. Foreword

According to the European Commission every year several hundred million euros are lost due to fraud. Data collected and analysed during the period 2007-2013 identify “suspected fraud” averaging about €500 million every year, but, it is more than likely that the real amount of fraud is significantly higher [I] .
These data clearly demonstrate that the Union’s financial interests are still not adequately protected and that a low level of protection corresponds, on the other hand, to a high level of fraud.

Currently, only national authorities can investigate and prosecute EU fraud. While the role of the existing EU bodies involved in actions to fight offences against the EU’s financial interests, even if this has increased over the years, still mainly focuses on coordination, cooperation, exchange of information and administrative investigations.
OLAF – the European Anti-Fraud Office established in 1999 – can only conduct administrative anti-fraud investigations and refer the results of its to the competent national authorities which then decide independently whether or not to initiate criminal proceedings (statistics shows that only 1 in 5 cases transferred by OLAF to the national prosecution authorities leads to a conviction).
Eurojust – the European Agency for criminal justice cooperation, established in 2001 – plays an important role in cross-border cases involving the financial interests of the EU, stimulating and improving the coordination of investigations and cooperation between the competent authorities in the Member States. However, like OLAF, does not have yet the power to start criminal investigations or prosecutions in the Member States.

2. The EPPO Commission proposal [II].

In order to:
– contribute to the strengthening of the protection of the Union’s financial interests and further development of an area of justice, and to enhance the trust of EU businesses and citizens in the Union’s institutions, while respecting all fundamental rights enshrined in the Charter.
– establish a coherent European system for investigation and prosecution of offences affecting the EU’s financial interests.
– ensure a more efficient and effective investigation and prosecution of offences affecting the EU’s financial interests.
– enhance deterrence of committing offences affecting the EU’s financial interests.
– increase the number of prosecutions, leading to more convictions and recovery of fraudulently obtained Union funds.
– ensure close cooperation and effective information exchange between the European and national competent authorities[III];

In July 2013 the Commission adopted its Proposal for a Regulation on the establishment of the European Public Prosecutor’s Office (EPPO) in order to create a single strong and independent Office that is able to investigate, prosecute and bring to court the perpetrators of criminal offences affecting the Union’s financial interest.
The proposal is the result of a long consultation process that started with the Corpus Juris [IV] elaborated and presented by an expert group in 1997 and 2000 (subsequent follow-up study), followed by the Green Paper on criminal-law protection of the financial interests of the Community [V] presented by the Commission in 2001 and the unratified Treaty establishing the Constitution for Europe in 2004 [VI].
Finally Article 86 of the Treaty on the Functioning of the European Union (TFEU) [VII] contains the legal basis for the establishment of the EPPO providing for a special legislative procedure requiring unanimity in the Council and European Parliament approbation.
With unanimity being a difficult condition to meet it is worth recalling that an enhanced cooperation would also be possible if supported by at least nine Member States.
It also foresees – with the unanimity of the Council, the consent of the European Parliament and the consultation of the Commission – the possible extension of competences and powers of the EPPO to serious crime having a cross-border dimension.

Two months after the Commission’s proposal, fourteen national parliamentary chambers[VIII] in 11 member states asked the commission to review its proposal and achieved enough votes to launch the so-called “yellow card” procedure.
This possibility is foreseen in Protocol 2 (art. 6 and 7) [IX] annexed to the Treaties on the application of the principles of subsidiarity and proportionality.
From the date of transmission of a draft legislative act, national Parliaments have eight weeks to consider whether it is compatible or not with the principle of subsidiarity.
In the case where reasoned opinions represent at least one third of all the votes allocated to the National Parliaments, the draft must be reviewed.
On the basis of that review, the Commission decides whether to maintain, amend or withdraw the proposal, and it must give reasons for its decision.
The Commission, after having re-examined the text, decided to maintain it concluding that it complies with the principle of subsidiarity enshrined in Article 5 TUE and that a withdrawal or an amendment of the proposal was not opportune[X].

On the basis of the proposal submitted by the European Commission, the EPPO Regulation has since been discussed in the Council of the European Union.

3. The redrafted text of the Council Greek Presidency – From a simple and original vertical structure to a complex and traditional horizontal one Continue reading “(EPPO) European Public Prosecutor : are the EU member States slowly stifling an European project…?”

(EPPO) FUNDAMENTAL RIGHTS AND THE EUROPEAN PUBLIC PROSECUTOR’S OFFICE: AN UNCOMFORTABLE SILENCE

ORIGINAL PUBLISHED ON EU LAW ANALYSIS BLOG

Michiel Luchtman, Jannemieke Ouwerkerk, Marloes van Noorloos, Pim Geelhoed, Jorrit Rijpma and Louis Middelkoop are members of the Meijers Committee (www.commissie-meijers.nl/en).

Friday, 10 April 2015

The EU’s proposal for the establishment of a European Public Prosecutor’s Office (EPPO) has created quite a stir in the Member States. The EPPO would be competent to investigate and prosecute fraud with EU money (e.g. the misuse of EU funds), although there is already talk about extending its competence to terrorism and other serious crime. So far, political negotiations over the draft regulation have focused on the question why the EU is in in need of this new supranational body in the first place, and on the extent of the EU’s influence on national affairs, particularly in such a sensitive area as criminal justice.

Supposing that in the near future the European Public Prosecutor’s Office will indeed be established, more attention to the substance of the current proposal needs to be paid without delay, particularly to the protection of fundamental rights. The current proposal raises serious concerns on this matter, as it is unclear who will supervise the actions of the EPPO and how this may be done effectively.

Procedural Rights in EU criminal law

In the EU context, the question of who is responsible for the guaranteeing of procedural rights in transnational criminal law enforcement has already frequently been addressed by legislation. After all, Member States of the EU do cooperate intensively on a daily basis: think of the European arrest warrant mechanism, which enables the rapid surrender of suspects from one Member State to another. All such cooperation mechanisms contain provisions on legal protection.

The proposal to establish an EPPO takes criminal justice integration significantly further than any other instrument created thus far. The EPPO will be authorized to take intrusive coercive measures, such as ordering arrests, interceptions of telecommunication, or house searches, just as national prosecutors can. Yet – and unlike national prosecuting authorities – the EPPO would be competent to apply these measures in all the territories of the participating Member States, without the restriction of national borders. It might therefore be expected that the ministers of justice, the European Parliament, and the European Commission would hold extensive debates on the precise conditions for searches, telephone interceptions, arrests, and pre-trial detention in supranational investigations. Surprisingly, they have not.

On the contrary, in their efforts to prevent a further transfer of power to ‘Brussels’, most Member States oppose any further approximation of criminal procedure. And those who do support the establishment of an EPPO hold that citizens’ rights are already sufficiently protected, referring to the fundamental rights acquis laid down in treaties and the EU Charter. They also point out that the EPPO must respect the additional procedural guarantees provided in the domestic legal order of the Member State where it is conducting its operations.

From national to transnational criminal procedure Continue reading “(EPPO) FUNDAMENTAL RIGHTS AND THE EUROPEAN PUBLIC PROSECUTOR’S OFFICE: AN UNCOMFORTABLE SILENCE”

Meijers Committee : Legal Protection in EU Criminal Law: Gaps and Inconsistencies

The current body of EU criminal law offers inconsistent and incomplete legal protection to European citizens. The Meijers Committee has researched and found several shortcomings in the procedural safeguards in instruments of mutual recognition, the proposal on a European Public Prosecutor’s Office and the criteria used to decide on criminalization of conduct at the EU level. In light of an expert meeting held at the European Parliament in January 2015 on these inconsistencies, the Meijers Committee has issued three short notes discussing the issues further.

The first note concerns the need to reform current mutual recognition instruments that overlap but contradict each other in their content and to strengthen judicial review in criminal proceedings.

The second note concerns the need ensure that citizens can foresee under which legal regime the EPPO will conduct an investigation against them and the effectiveness of national judicial review in a transnational context.

The third note concerns the use of criteria to determine whether material prohibitions are appropriate at the EU level and the role of the European Parliament therein.

1. Inconsistent legal protection in mutual recognition instruments

Continue reading “Meijers Committee : Legal Protection in EU Criminal Law: Gaps and Inconsistencies”

Dublin III Regulation on asylum and unaccompanied minors

by Federica VIGNALE (Free Group Trainee)

Unaccompanied minors are “third-country nationals or stateless persons below the age of 18, who arrive on the territory of the Member States unaccompanied by an adult responsible for them whether by law or custom, and for as long as they are not effectively taken into the care of such a person […][i]. In the last years Europe has been facing massive flows of this particular category of migrants; in the whole 2014, on the basis of data provided to Eurostat[ii] by the Ministries of Interior and official agencies, a total of 16,265 unaccompanied children has been registered as asylum applicants in the countries applying the EU Regulation No 604/2013^[iii] – the 28 EU Member States, as well as the four third-countries participating in Schengen (Iceland, Norway, Switzerland and Denmark). These figures, however, could be not representative of the real situation because many of unaccompanied minors “do not register with the authorities either because they are unable or afraid to do so or because they have been advised by family members, peers or smugglers to keep on the move to another destination”[iv]. Furthermore, “others are not able to contact the authorities because they are being controlled by their traffickers and are destined for sexual, labour or other exploitation in Europe”[v].

Given the specific vulnerability of children and their great exposure to risks – trafficking, sexual exploitation, slavery or servitude – stronger efforts shall be made to assure adequate protection of unaccompanied minors, especially in the early stages of the asylum procedure. In this respect, UNHCR highlighted that the serious problems encountered in the past were attributable to transfers between Member States: children became homeless or destitute because of the lack of accommodations following transfers, accommodation of children in facilities for adults or in detention due to the lack of mutual recognition of age assessment outcomes, delays in accessing the asylum procedure following the delays in the appointment of a guardian in the receiving MS^[vi]. These transfers are linked to the determination of the Member State responsible for examining the application for international protection. In the case of unaccompanied minors, such rule is contained in article 8(4)^[vii] of Dublin III Regulation – mentioned before – which provides that “[i]n the absence of a family member, a sibling or a relative as referred to in paragraphs 1 and 2, the Member State responsible shall be that where the unaccompanied minor has lodged his or her application for international protection, provided that it is in the best interest of the minor“. This disposition has, however, some gaps and ambiguities because there is no legal certainty in respect of responsibility for examining an unaccompanied minor´s application, and currently it is object of an amending proposal that could lead to meet the need of fewer transfers.

Background

When, in June 2013, Dublin III Regulation was adopted, there was already at European level the awareness of the ambiguity of the disposition related to minors. The co-legislators, however, expressed in that occasion their intention to clarify that ambiguity once the CJEU had ruled on case C-648/11[viii], which concerned the interpretation of Article 6(2) of Regulation 343/2003[ix] – Dublin II – that corresponds to the current article 8(4) of Dublin III. On 6 June 2013 the Court of Justice ruled that:

“The second paragraph of Article 6 of Council Regulation (EC) N° 343/2003 of 18 February 2003 establishing the criteria and mechanisms for determining the Member State responsible for examining an asylum application lodged in one of the Member States by a third-country national must be interpreted as meaning that, in circumstances such as those of the main proceedings, where an unaccompanied minor with no member of his family legally present in the territory of a Member State has lodged asylum applications in more than one Member State, the Member State in which that minor is present after having lodged an asylum application there is to be designated the “Member State responsible”.”

Therefore and in compliance with the Declaration of the European Parliament and of the Council attached to the Regulation[x], on the 26^th June 2014 the European Commission presented an amending proposal[xi] “aimed at addressing the current ambiguity of the provision on unaccompanied minors who have no family, siblings or relatives on the territory of the Member States, by providing legal certainty in respect of responsibility for examining the application for international protection in such cases”.

The Commission proposal Continue reading “Dublin III Regulation on asylum and unaccompanied minors”

“Foreign Fighters” and EU implementation of the UNSC resolution 2178. Another case of “Legislate in haste, repent at leisure…” ? (1)

by Emilio DE CAPITANI

Foreword

Last week the European Parliament Civil liberties Committee (LIBE) debated for the first time how to legally frame the problem of “foreign fighters” operating in Syria and Iraq under the flag of the so called Islamic State and of Al Nusra or other insurgent movements at the EU level. The issue has been put on the LIBE agenda because the European Commission and the Council informed the EP of their intention to negotiate a protocol to the European Convention against terrorism within the framework of the Council of Europe, to implement the United Nations Security Council resolution 2178 on foreign “terrorist” fighters.

As happens very often when international, supranational and national law are intertwined, the issue is very complex. To make things even harder, the boundaries in international law between armed conflicts and international terrorism have been progressively blurring since 9/11 and, since the entry into force of the Lisbon Treaty competences in criminal matters and terrorism, they are increasingly being dealt with at the EU level.

In the following pages I will try to highlight the main aspects of the issue of Foreign Fighters starting from its International law dimension by taking as basic references:
– the excellent briefing “Foreign Fighters under International Law”of the Geneva Academy of International Humanitarian Law and Human Rights; and
– the very timely and focused remarks of the former United Nations Special Rapporteur on human rights and counter-terrorism Martin Scheinin on UNSC Resolution 2178. See:
“Back to post-9/11 panic? Security Council resolution on foreign terrorist fighters” and “A Comment on Security Council Res 2178 (Foreign Terrorist Fighters) as a “Form” of Global Governance”

In a second post, I will focus on the specific relation between the Council of Europe, the European Union and EU Member States on this issue.

1 Foreign fighters before 9/11

The phenomenon of “foreign” fighters taking part in an armed conflict, or in an insurgency movement, in a different country than their own is not new. Examples in the last century have included the Spanish civil war in 1936 or the 1948 Arab-Israeli War, the war in Afghanistan following the 1989 Soviet invasion, the Bosnian conflicts in the 1990s, and the violence in Chechnya and Dagestan, in Iraq, Mali, Nigeria, Somalia, Syria, and Yemen, not to speak of the recent Russian-Ukrainian crisis.

1.1 Foreign fighters as “combatants” in an armed conflict

Until recent times, from an international law perspective, the legal regime to be applied to foreign fighters depended on the nature of the armed conflict in which they were taking part. In case of armed conflict between States (International Armed Conflict) the legal regime was set by the four 1949 Geneva Conventions (1) which recognise the legitimate use of force, the role of “combatant” as well as the status of “Prisoner of War” (2). In case of “non international” armed conflicts which arise within a State and which could be defined as a situation of armed violence between regular armed forces and one or more organized armed non-state groups, the legal regime applicable is the less stringent regime of Common Article 3 of the 1949 Geneva Conventions .

1.2 Terrorist acts during armed conflicts

It is worth recalling that while international law recognises that the use of force is inevitable during an armed conflict, it also prohibits acts which aim primarily to spread terror among civilian populations. These acts can be considered “war crimes” when they consist of ‘acts of violence directed against the civilian population or individual civilians not taking direct part in hostilities causing death or serious injury to body or health within the civilian population’ (“actus reus”) where the perpetrator ‘wilfully made the civilian population or individual civilians not taking direct part in hostilities the object of those acts of violence’. International Courts have therefore considered that the “mens rea” is a further element of the international criminal offence (i.e. the requisite intent), namely, the specific intent to spread terror.

The tricky point is that even if they could partially overlap when terrorist activities can be framed as “war crimes”, the legal frameworks at the international level on armed conflicts and against international terrorism have different scopes (3). The proof is that the use of force during an armed conflict (if it complies with International Humanitarian law) is legitimate and is not an act of terrorism (especially when fighting for self-determination). (4)

1.3 Preventing the movement of Foreign fighters Continue reading ““Foreign Fighters” and EU implementation of the UNSC resolution 2178. Another case of “Legislate in haste, repent at leisure…” ? (1)”

Fundamental Rights in the European Union: The role of the Charter after the Lisbon Treaty

ORIGINAL PUBLISHED ON THE EUROPEAN PARLIAMENT RESEARCH SITE (EPRS) 27-03-2015 (*)

Author Francesca FERRARO

ABSTRACT: The European Union, like its Member States, has to comply with the principle of the rule of law and respect for fundamental rights when fulfilling the tasks set out in the Treaties. These legal obligations have been framed progressively by the case law of the European Court of Justice. The Court filled the gaps in the original Treaties, thus simultaneously ensuring the autonomy and consistency of the EU legal order and its relation with national constitutional orders. Since the entry into force of the Lisbon Treaty, these principles have also been expressly laid down in the Treaties and in the Charter of Fundamental Rights. Being part of the body of EU constitutional rules and principles, the Charter is binding upon the EU institutions when adopting new measures, as well as for Member States during implementation. The Charter is the point of reference, not only for the Court of Justice, but also for the EU legislature, especially when EU legislation gives specific expression to fundamental rights. Moreover, fundamental rights are also of relevance for EU legislation covering all the other areas of Union competence.
(…)

1. Introduction

The protection of fundamental rights was not explicitly included in the founding Treaties of the European Communities, which contained only a small number of articles that could have had a direct bearing on the protection of the rights of individuals. For example, in the EEC Treaty, the rules on the general prohibition on discrimination on grounds of nationality (Article 7), on the freedom of movement for workers (Article 48), on the freedom to provide services (Article 52), on improved working conditions and an improved standard of living for workers (Article 117), on equal pay for men and women (Article 119), and on the protection of persons and protection of rights (Article 220), may be considered to have had a such bearing.

An explicit reference to fundamental rights at Treaty level appeared only over 30 years later, with the entry into force of the Maastricht Treaty (1993). Indeed, according to Article F of the Treaty on European Union, the EU was obliged to: respect fundamental rights, as guaranteed by the European Convention on Human Rights and as they result from the constitutional traditions common to the Member States as general principles of Community law.

Since the entry into force of the Amsterdam Treaty (1999), and notably of the Lisbon Treaty (2009), protecting fundamental rights is a founding element of the European Union and an essential component of the development of the supranational European Area of Freedom, Security and Justice.

Under the Lisbon Treaty, the EU Charter of Fundamental Rights, originally solemnly proclaimed in Nice in 2000, has the same legal value as the Treaties. Even if it does not extend the competences of the Union, it gives them a new ‘soul’ by focusing on the rights of the individual with regard to all EU policies. The Charter draws on the European Convention on Human Rights (ECHR), the European Social Charter and other human-rights conventions, as well as the constitutional traditions common to the EU Member States, as stated in case law of the European Court of Justice. However, it also updates them by recognising new kinds of rights protecting individuals from new forms of abuses by public or private entities (such as the right to the protection of personal data and to good administration). The Charter is binding upon the EU institutions when enacting new measures, as well as for the Member States whenever they act within the scope of EU law.¹

The Charter is the reference not only for the Court of Justice but also for EU law-making institutions, in particular the Commission, when launching new proposals which give ‘specific expression to fundamental rights’.² This is the case with EU policies dealing with anti-discrimination, asylum, data protection, transparency, good administration, and procedural rights in civil and criminal proceedings. Nevertheless, fundamental rights (and the Charter) come into play in EU legislation in any other domain of EU competence, such as transport, competition, customs and border control. As these policies can also have an impact on the rights of citizens and other individuals, such as human dignity, privacy, the right to be heard and freedom of movement, EU and Member-State law should take the Charter into account when regulating these spheres.

An essential aspect of the EU’s fundamental rights policy will be the Union’s accession to the European Convention on Human Rights, which became obligatory under the Lisbon Treaty (Article 6(2) TEU).³ This would complement the system of protection of fundamental rights by conferring competence on the European Court of Human Rights to review EU measures while taking account of the Union’s specific legal order.

2. EU Fundamental rights prior to the Lisbon Treaty Continue reading “Fundamental Rights in the European Union: The role of the Charter after the Lisbon Treaty”

The EU’s Maternity Leave Directive: The Council secretly rejects the EP’s olive branch

30.3.15 The Council’s refusal to accept the EP’s olive branch and even start negotiations on a possible compromise (however unlikely that might be) is petty and vindictive

by Steve Peers, Professor of Law, University of Essex (Twitter: @StevePeers)

Back in 2008, the Commission proposed a modest amendment to the EU’s existing maternity leave Directive. The European Parliament amended the proposal so that there would be a significant extension in the duration and cost of maternity leave – namely 20 weeks on full pay. This attracted very little interest in the Council, and negotiations were deadlocked for years.

The incoming Commission in 2014 indicated that the EP and the Council had a few months to reopen negotiations on the proposal, or it would withdraw it. It appears that the EP then made some overtures to the Council to open negotiations to this end, although the documents setting out this willingness to negotiate (referred to in the Council document) do not seem to be publicly available.

According to the attached LIMITE document (obtained by Statewatch) large number of Member States in the Council have clearly rejected this willingness to negotiate, raising not only procedural objections against the creation of an ad hoc form of committee (although the Council endlessly creates new ad hoc negotiating bodies for its own purposes) but also substantive objections to holding any discussions at all with the EP on this issue. Presumably the proposal is now doomed – unless there is some last-minute new political initiative.

Frankly, no one comes out of this saga well.

Whether the EP’s far-reaching amendments were a good idea or not, it was obvious for years that the Council would never adopt them, and the EP waited until the eleventh hour before showing any sign of flexibility. Its principled rigidity will lead to less generous maternity for many women, who might have benefited from more modest amendments that could possibly have been agreed years ago.

For the Council, the refusal to accept the EP’s olive branch and even start negotiations on a possible compromise (however unlikely that might be) is petty and vindictive.

For the Commission, the offer to wait for the Council and the EP appears like a cynical passing of the buck, letting the co-legislators take the blame for the failure of the talks.

Why not take an active stance, suggesting possible compromise positions and expending some political effort in trying to bring the other institutions together?

And more broadly, the EU legislative process has failed here. Not just in the obvious sense that there is a failure to do a deal, or that the EP overplayed its hand to an almost cartoonish degree. It failed because of the skulking secrecy that infected the dying months of these (non-)negotiations.

As far I can see from its website, the EP’s women’s committee did not hold any public hearing on this proposal since the Commission issued its ultimatum. Its chair’s letter to the Council is not public (or at any event, it cannot be easily found). Surely this an important enough issue to engage the public? And the Council’s rejection of the EP’s apparent offer to negotiate is only ‘public’ because this document has been leaked.

The basic principles of democratic accountability mean that the Member States should account in public for their refusal to negotiate, and the EP should have disclosed its position and debated it in public. Perhaps the proposed changes to the maternity leave directive were doomed whatever happened – but they should have died with a public bang, not a squalid backroom whimper.

OPINION 2/13 OF THE COURT OF JUSTICE ON ACCESS OF THE EU TO THE ECHR – ONE STEP AHEAD AND TWO STEPS BACK

ORIGINAL PUBLISHED ON EU LAW BLOG

MARCH 31, 2015

The present contribution is a translated and somewhat simplified version of an article that appeared in German on 23 March 2015 in the Swiss legal online-journal Jusletter. The authors thank the Jusletter for their kind permission to republish the article and Markus Kern and the European Law Blog’s editorial team for valuable comments on earlier versions.

Readers of this blog will nearly inevitably already have been confronted with this decision. The reactions to the Court’s Opinion have been vivid, to say the least. What did the Court say exactly on this draft agreement for accession to the ECHR? And is the current predominantly negative reaction (see for an exception here) justified? The main aim of the present post is to provide a concise summary of the Court’s findings, but also to provide some early assessment and criticism of the reactions on particular points. After a brief historical introduction to the context of the Opinion, we follow the sequence of analysis of the Court and thus examine in turn:

the arguments of the Court on the autonomy of the EU legal order;
the monopoly on dispute settlement established by Article 344 TFEU;
the co-respondent mechanism;
the procedure for the prior involvement of the CJEU and the specific characteristics of EU law concerning judicial review in matters of the Common Foreign and Security Policy (CFSP).

Short historical overview

The planned accession of the European Union to the European Convention on Human Rights and Fundamental Freedoms (ECHR) pursues the objective of increasing the effectiveness and homogeneity of fundamental rights protection in Europe. The very idea of accession goes back to 1974, when France as the then last EU Member State ratified the ECHR and the German Bundesverfassungsgericht criticized the inadequate protection of fundamental rights in the European Economic Community in its well-known Solange I decision. While the Commission already favoured accession in 1979 and tried to convince the Council of its idea again in 1990, the latter only in 1994 asked the Court of Justice of the EU (CJEU) for a legal opinion. In its Opinion 2/94, however, the Court insisted that the Treaties lacked an appropriate legal basis for accession. With the Treaty of Lisbon, accession is now provided for in Article 6 (2) TEU. Consequently, on 4 June 2010 the Council gave a mandate to the Commission to start negotiations with the Council of Europe on accession of the EU to the ECHR. After the conclusion of negotiations the Commission now asked the Court for an Opinion on the draft agreement reached in the negotiations. The Opinion handed down by the Court in December 2014 was adequately designated as a veritable “Christmas bombshell”. Not only did the Court find a number of elements to criticize, as could already have been expected after the view delivered by Advocate General Kokott in June 2014. It eventually decided that the draft agreement was incompatible with the Treaties and developed a highly demanding reasoning rendering future accession quite a difficult task, as is subsequently set out in more detail.

The autonomy of EU law

The autonomy of EU law has been of constant high importance for the Court ever since its seminal decision in Van Gend en Loos. Following up on this case law, the Court also emphasizes with particular vigour the notion of autonomy in its opinion. Put shortly, the Court understands autonomy to signify that the EU may be a construction of international law, but that in its internal order its own rules displace the principles and mechanisms of international law.

In the Opinion, the Court notes, however, also the principal possibility of the EU and its organs to submit themselves via an international agreement to a binding interpretation of the latter by an external judicial organ (para 182, if not indicated otherwise all paragraph numbers refer to the Opinion of the Court). This principle is nonetheless limited in that the competences of the EU must not be affected in their essential character. In particular, ECHR organs must not be able to bind the EU to a particular interpretation of rules of EU law (paras 183-4).

In the Opinion, the CJEU finds three situations in which an accession of the EU to the ECHR based on the draft agreement could endanger the autonomy of EU law:

1. The conflict between Art. 53 ECHR and Art. 53 Charter of Fundamental Rights

First, the Court holds that the draft agreement does not make Art. 53 ECHR compatible with Art. 53 Charter of Fundamental Rights. Both provisions foresee that the relevant instrument is not to be interpreted as to adversely affect fundamental rights standards already granted in other ways by the respective Member States. The Court sees therein the problem that EU Member States could be permitted by means of Art. 53 ECHR and in absence of a reconciling provision in the draft agreement to raise the level of protection of a fundamental right to the extent that the primacy, unity and effectiveness of EU law would be compromised (as already established in Melloni). The Court thus leaves room for renegotiation of the draft agreement in this respect so that its concerns can be met. It would thus have to be regulated that raising the level of protection of fundamental rights under the ECHR must neither affect the primacy of EU law for the EU Member States nor the unity and effectiveness of EU law (para 190).

However, this request will be hard to implement and appears to go beyond what is justified for two reasons, apart from the fact that the Court does not address to what extent the mentioned problems already exist with the current state of the law before an accession.

First, the Court requires that the European Court of Human Rights (ECtHR) effectively respects in its jurisprudence the CJEU’s findings in Melloni and thereby gives supremacy to the primacy, unity and effectiveness of EU law over fundamental rights protection under the ECHR. With this, the Court implies and requires that for the EU to accede to the ECHR for EU Member States within the scope of application of EU law only the Charter of Fundamental Rights is relevant, while the ECHR takes the backseat in terms of its substantive content. This would be comparable in effect to a reservation by a party state to the ECHR which requires that the interpretation of ECHR rights by the ECtHR must not go further than the national interpretation of fundamental rights. This appears to be extremely difficult to reconcile with the very object and purpose of the ECHR.

Second, the CJEU does not address at all Art. 52 (3) of the Charter according to which the rights granted in the Charter of Fundamental Rights which correspond to rights granted under the ECHR have the same content and scope as the latter. The ECHR operates thus as a source of knowledge on the minimum standard of protection of such fundamental rights which form part of EU primary law. There is, as a consequence, already a mechanism in EU law which reconciles the scope and content of fundamental rights in the Charter and the ECHR to a considerable extent. For most EU fundamental rights, the jurisprudence of the ECtHR is thus already relevant and binding. Within the scope of application of EU law national courts can already now apply higher standards of fundamental rights protection based on the ECHR and are obliged in cases of doubt to submit a question to the CJEU in the framework of a preliminary reference procedure. This again ensures that the Court has the last word on the standard of protection applicable in EU law.

2. The requirement to check whether another Member State has observed fundamental rights under the ECHR

Continue reading “OPINION 2/13 OF THE COURT OF JUSTICE ON ACCESS OF THE EU TO THE ECHR – ONE STEP AHEAD AND TWO STEPS BACK”

Do Facebook and the USA violate EU data protection law? The CJEU hearing in Schrems

ORIGINAL PUBLISHED ON EU LAW ANALYSIS
Sunday, 29 March 2015
by Simon McGarr, solicitor at McGarr solicitors (*)

Last week, the CJEU held a hearing in the important case of Schrems v Data Protection Commissioner, which concerns a legal challenge brought by an Austrian law student to the transfers of his personal data to the USA by Facebook, on the grounds that his data would be subject to mass surveillance under US law, as revealed by Edward Snowden. His legal challenge was actually brought against the Irish data protection commissioner, who regulates such transfers pursuant to an agreement between the EU and the US known as the ‘Safe Harbour’ agreement. This agreement takes the form of a Decision of the European Commission made pursuant to the EU’s data protection Directive, which permits personal data to be transferred to the USA under certain conditions. He argued that the data protection authority has the obligation to suspend transfers due to breaches of data protection standards occurring in the USA. (For more detail on the background to the case, see the discussion of the original Irish judgment here).

The following summarises the arguments made at the hearing by the parties, including the intervening NGO Digital Rights Ireland, as well as several Member States, the European Parliament, the Commission and the European Data Protection Supervisor. It then sets out the question-and-answer session between the CJEU judges (and Advocate-General) and the parties. The next step in this important litigation will be the opinion of the Advocate-General, due June 24th.

Please note: these notes are presented for information purposes only. They are not an official record or a verbatim account of the hearing. They are based on rough contemporaneous notes and the arguments made at the hearing are paraphrased or compressed. Nothing here should be relied on for any legal or judicial purpose, and all the following is liable to transcription error.

Schrems v Data Protection Commissioner
Case C-362/14
Judges:
M.V Skouris (president); M.K. Lenaerts (Vice President); M.A. Tizzano; Mme R. Silva de Lapuerta; M. T. Von Danwitz (Judge Rapporteur); M. S. Rodin; Mme K. Jurimae; M. A Rosas; M. E. Juhász; M. A. Borg Barthet; M. J. Malenovsky; M. D. Svaby; Mme M. Berger; M. F. Biltgen; M. C. Lycourgos; M. F. Biltgen
M. Y. Bot (Advocat General)

Max Schrems

Noel Travers SC for Mr. Schrems told the court that personal data in the US is subject to mass and indiscriminate mass surveillance. The DRI v Ireland case struck down the EU data retention directive, establishing a principle which applies a fortiori to this case. However, the court held that Data Retention did not affect the essence of the right under Article 8, as it concerned only metadata. The surveillance carried out in the US accesses the content of data as well as the metadata, and without judicial oversight. This interference is so serious that it does violate the essence of Article 8 rights, unlike the data retention directive. Mr. Travers held that the Safe Harbour decision is contrary to the Data Protection directive’s own stated purpose, and that it was accordingly invalid.
Answering the Court’s question as to whether the decision precludes an investigation by a Data Protection Authority (DPA) such as the Irish Data Protection Commissioner, he submitted that compliance with fundamental rights must be part of the implementation of any Directive. Accordingly, national authorities, when called upon in a complaint to investigate breaches must have the power to do so.
Article 25.6 of the data protection Directive allows for findings on adequacy regarding a third country “by reason of its domestic law or of the international commitments it has entered into”. The Safe Harbour Principles (SHPs) and FAQs are not a law or an international agreement under the meaning of the Vienna Convention. And the SHPs do not apply to US public bodies. The Safe Harbour Principles are set out in an annex to a Commission Decision, but that annex is subject to US courts for interpretation and for compliance. Where there is a requirement for compliance with law, it is with US law, not EU law.

Irish Data Protection Commissioner

For the Data Protection Commissioner, Mr. Paul Anthony McDermott said that with power must come limitations. All national regulators are firstly bound by domestic law. The Data Protection Commissioner is also bound by the Irish Constitutional division of powers. She cannot strike down laws, Directives or a Decision.
Mr. Schrems wanted to debate Safe Harbour in a general way- it wasn’t alleged then that Facebook was in breach of safe harbour or that his data was in danger. The Irish High Court had a limited Judicial Review challenge in front of it. Mr. Schrems didn’t challenge Safe Harbour, or the State, or EU law directly, and the Irish High Court declined the application by Digital Right Ireland to refer the validity of the Safe Harbour Decision to Luxembourg. Mr. McDermott asked the court to respect the parameters of the case.
Europe has decided to deal with the transfer of data to the US at a European level. The purpose of the Safe Harbour agreement is to reach a negotiated compromise. The words “negotiate”, “adapt” and “review” appear in the Decision. It is clear therefore that a degree of compromise is envisaged. Such matters are not to be dealt with in a court but, as they involve both legal and political issues, by diplomacy and realpolitik.
The Data Protection Commissioner can have regard to the EU Charter of Fundamental Rights when she’s balancing matters but it doesn’t trump everything. It doesn’t allow her to ignore domestic law or European law, Mr. McDermott concluded. Continue reading “Do Facebook and the USA violate EU data protection law? The CJEU hearing in Schrems”

Member States and the rule of law. Dealing with a breach of EU values

ORIGINAL PUBLISHED IN THE EP THINK TANK SITE

by Eva-Maria Alexandrova POPTCHEVA

SUMMARY

The European Union is founded on values common to all Member States. These are supposed to ensure a level of homogeneity among Member States, while respecting their national identities, so facilitating the development of a European identity and their integration. Article 7 of the Treaty on European Union provides mechanisms to enforce EU values, based on a political decision by the Council with the participation of the Commission and Parliament. Such decisions are exempt from judicial review.

The current mechanism is said to be unusable due to the high thresholds needed to adopt a decision in the Council, as well as Member States’ political unwillingness to use it. Various new approaches have been proposed by academics and by political actors, from a new independent monitoring body — the ‘Copenhagen Commission’, through extending the mandate of the EU Fundamental Rights Agency (FRA), to introducing the possibility for the EU to suspend national measures suspected of infringing EU law.

The European Parliament launched the idea of a ‘European fundamental rights policy cycle’ with the cooperation of EU institutions, Member States and the FRA, as a ‘new Copenhagen mechanism’ to monitor the situation in Member States. This mechanism would incorporate an early-warning system, with ‘formal notices’ to Member States where a breach in the rule of law appears likely, before formal proceedings under Article 7, and a ‘freezing procedure’ for national measures infringing upon EU values.

In 2014, the Commission announced ‘A new EU framework to strengthen the Rule of Law’, with a structured dialogue between the Commission and the Member State concerned and Commission recommendations and follow-up. On an initiative of the Italian Presidency, the Council decided in December 2014 to hold an annual dialogue, in the General Affairs Council, on the ‘rule of law’ in Member States.

A Union of values

EU values and national identity

The EU ‘values’ were enshrined in the Treaties only with the Treaty of Lisbon, replacing the previous, less extensive ‘principles’. However, it has been clear from the very beginnings of the Communities that, to succeed, the European integration process needs a common basis of values to secure a degree of homogeneity amongst the Member States.¹The EU values are supposed to be the basis for a common European ‘way of life’, facilitating integration towards a political, not just a ‘market’, Union. They support the development of a European identity, while ensuring the legitimacy of the EU as founded on democratic values. However, when it comes to detailed definitions of each of the values, there are few accepted unreservedly.

The EU values enjoy two-fold protection. First, since the 1993 Copenhagen European Council, they form part of the accession criteria for candidates for EU membership (Article 49(1) TEU). Second, Member States must, following their accession, observe and promote the EU values. Article 7 of the Treaty on European Union (TEU) establishes a procedure to sanction a Member State which does not uphold the values, through the suspension of membership rights. Moreover, the Union exports its values outside its territory, with the EU values underlying the international relations of the EU (Articles 21, 3(5), and 8 TEU).

On the other side of the coin are the national constitutional identities of Member States. According to Article 4(2) TEU, the Union must respect Member States’ national identities. This provision sets out a vision of a Union founded on values common to all Member States but which preserves the diversity of Member States’ political and organisational systems. This so called ‘constitutional individuality’ of the Member States can be reflected inter alia in state-organisational, cultural, including language, and historical heritage aspects.² Hence, the common EU values represent limits to the diversity of Member States, reflected in their constitutional identities.

Some examples Continue reading “Member States and the rule of law. Dealing with a breach of EU values”