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

LIBE Committee resume the works on the future SWIFT long term agreement

The LIBE Committee discussed on 7 April 2010 the re-launch of negotiations on a SWIFT long term agreement.

It has to be recalled that following the European Parliament refusal to provide its consent on the US-EU SWIFT Interim Agreement last February a new draft-negotiating mandate has been indeed submitted by the College of Commissioners on 24 March 2010 to the Council, which in turn is expected to approve it on 22/23 April. According to the Commission the new agreement might be concluded at the beginning of June of this year.

Will the new agreement be founded on Judicial cooperation in penal matters or ….?

According to the Commission statement and the legal basis chosen for the new mandate (art. 82 of the TFUE) the future agreement will comply with the EP request  expressed already in September 2009 to build the EU US cooperation in this domain in a framework which could be consistent with the new EU Treaty the art. 8 of the European Charter of Fundamental rights and the request of some Constitutional Courts such as the German Court. To do so the draft mandate has foreseen the creation of  an European “Authority of  judicial nature” which could check the necessity and proportionality of the US request of SWIFT data .

Therefore during the debate Rapporteur Ms Jeanine Hennis Plasschaert (ALDE) enquired the European Commission on whether it would be possible to explore alternative legal frameworks from judicial cooperation in penal matters .

Mr Faull underlined that the Commission could not see any feasible short term alternative system to the mutual legal assistance framework, however this will not prevent the Commission to explore also other possibilities, following the requests from the Spanish Presidency and by taking in account the question posed by the Rapporteur. On the same logic to find alternative solution to judicial cooperation Ms Carmen Romero López (S&D) suggested to work within the framework of an anti-money laundering directive revised to include banking messaging companies.

Therefore according to Jan Philipp Albrecht (Greens/EFA) these “alternative” approaches would go against the European Charter on Fundamental Rights, the European Convention on Human Rights as well as the German Court (see recent judgment on data retention) with the risk, as pointed out “that Germany will feel impelled to reject this mandate on constitutional grounds”. To avoid possible “clashes” with European or national constitutional courts Mr Albrecht has then suggested then to request for the opinion of the EU Court of Justice on the compatibility of the draft agreement with the EU legislation, as foreseen by Article 218 §11 of the Treaty on the Functioning of the European Union.

The new draft negotiating mandate

The new draft negotiating mandate as agreed upon by the College of Commissioners on 24 March 2010 and upon approval of the Council foresees  -among others- the following elements:

  • Safeguards to ensure the respect of the fundamental right to the protection of personal data;
  • Transfer to third countries of only information derived from terrorism investigations (“lead information”);
  • A judicial public authority in the EU with the responsibility to receive requests from the United States Department of the Treasury, verify if  the substantiated  request meets the requirements of the Agreement and if appropriate require the provider to transfer the data on the basis of a “push” system;
  • Retention of personal data extracted from the TFTP database for no longer than necessary for the specific investigation or prosecution and non-extracted data retained for five years;
  • Onward transfer of information obtained through the TFTP under the Agreement shall be limited to law enforcement, public security, or counter terrorism authorities of US government agencies or of EU Member States and third countries or Europol or Eurojust as well as Interpol.
  • The Agreement shall provide for:

1) the right of individuals to information relating to the processing of personal data;

2) the right to access his/her personal data;

3) to the rectification, and

4) as appropriate erasure thereof.

Hence, it appears that the College of Commissioners has tried to address some of the past concerns addressed by the MEPs.

However, while demonstrating the willingness to explore grounds for a new agreement on the SWIFT data-sharing, some of the Members of the LIBE Committee, expressed a variety of concerns, most of which were already raised in the previous report of the European Parliament and that can be summarised as follows:

Proportionality

Members of Parliament still have concerns that the transfer of bulk data will not be addressed properly. According to Ms Sophie In’t Veld (ALDE) filtering should be done in the EU for financial data, PNR and telecommunications. Also Ms  Birgit Sippel (S&D) stressed that SWIFT should be able to individualise data ahead of a transfer.

In this regard it remains to be seen whether SWIFT has the technical ability but not the willingness to bare the costs derived from selecting and transferring  individual data instead of ‘data in bulk’.

According to Mr Faull it will not be possible to reduce the quantity of data transferred however he will work to reduce their size by removing the presumably non-useful data.

Data storage period

MEPs expressed concerned over the five years data storage as foreseen by the new text despite the attempts of Mr Faull to reassure the Committee stating that five years was not “unreasonable” given data’s useful lifespan in counter-terrorism.

Access, rectification, compensation and redress outside the EU

Mr Stavros Lambrinidis (S&D) enquired whether there was no other way for the bulk transfer of data and if it was not possible to impose some prior European check when the US wants to transfer the data to third countries.

Furthermore MEPs expressed the need to ensure the right to appeal to European citizens in front of American authorities in case of personal data abuse/misuse.

In this respect Mr Busutill asked to ensure equal rights between US and EU citizens and Mr Faull replied that the Privacy Act is indeed discriminatory and therefore does not guarantee the same rights to EU and US citizens.  However the Privacy Act does not apply to the TFTP , hence asking to apply the same right of US citizens to the European ones means not having any rights at all.

No evidence on the effectiveness

There still is no evidence that cases of terrorism have been prevented or prosecuted based exclusively on the financial data.

Procedural concerns

The fact that the EU is planning to conclude an executive agreement on exchanges of data before negotiating the general agreements on rules governing the data protection raise additional concerns. Indeed, the acceleration of the envisaged SWIFT II agreement will limit the margin of maneuver for negotiators on the overarching transatlantic agreement on data sharing and data protection. In other words, it will force the latter to simply accept praxis established before the development of the general principles governing data protection.

Also the Commission -using the words of the Director General of DG JLS Mr Jonathan Faull- is of the opinion that “in an ideal world” general norms should be established before specific ones. However, no sufficient reasons have been provided to explain why the European Union is accelerating the negotiations on the SWIFT agreement instead of giving precedence to the establishment of overarching general framework on EU-US data protection and exchange.

In conclusion, the European Union is engaging in a delicate exercise trying to define at the same time internal, external, specific and general data protection norms. This would have been possible -in theory- if the European Union had clear objectives and points of reference. However, following the LIBE Committee debate on 7 April this seems far from being the case.

L.B.

Schengen Border Code: the European Parliament reject the guidelines but does not reach the necessary absolute majority

Parliament voted to reject the guidelines by 336 votes to 253 with 30 abstentions, but this was not enough as, under the rules, an absolute majority of all Members (369) was needed for rejection.

The LIBE Committee opposes the adoption of the European Commission Draft Council decision on supplementing the Schengen Borders Code in operations coordinated by Frontex

The Committee on Civil liberties, Justice and Home Affairs (LIBE) opposed (12 in favour and 25 against) the Proposal for a Council Decision supplementing the Schengen Border Code and then approved the consequent Motion for a resolution on the draft Council decision supplementing the Schengen Borders Code as regards the surveillance of the sea external borders in the context of the operational cooperation coordinated by the European Agency for the Management of Operational Cooperation at the External Borders.

Continue reading “The LIBE Committee opposes the adoption of the European Commission Draft Council decision on supplementing the Schengen Borders Code in operations coordinated by Frontex”

Rights to interpretation and translation in criminal proceedings: LIBE amendments and new Commission proposal

As anticipated in a previous post in this blog the Committee on Civil Liberties, Justice and Home affairs (LIBE) discussed the draft report on the directive of the European Parliament and of the Council on the rights to interpretation and to translation in criminal proceedings presented by rapporteur Sarah Ludford on 17 March 2010, based on the initiative put forward by 13 Member states.

But this was not the only initiative discussed on this matter, also that of the European Commission presented on 9 March 2010 was discussed.

Therefore, after a brief introduction of the aim of the directive, the amendments of the LIBE on the MSs’ initiative will be analysed and then, few observations on the Commission proposal will be made on the basis of the debate that took place in the LIBE committee.

Continue reading “Rights to interpretation and translation in criminal proceedings: LIBE amendments and new Commission proposal”

On the BVG ruling on Data Retention: “So lange” – here it goes again…

As mentioned a couple of weeks ago in the blog (10 January 2010 – Directive on data retention: now the floor goes to the German Constitutional Court) the German Constitutional Court was preparing to make a decision about the German internal application of the controversial Data Retention Directive (2006/24/EC), demanding telecommunication data retention from 6 months till 2 years. Some historical background is provided in the above mentioned blog. On March 2 the decision has arrived (1 BvR 256/08 , 1 BvR 263/08 , 1 BvR 586/08). And what a decision it is. It is of the same work as the famous decision in Marbury v. Madison presided over by John Marshall. The German Federal Constitutional Court (Bundesverfassungsgericht) avoided a direct conflict with the ECJ but showed once again that it will take its prerogatives very seriously regarding the protection of human rights and annulled the German provisions applying the Directive.

Continue reading “On the BVG ruling on Data Retention: “So lange” – here it goes again…”

The first EU steps towards the accession to the European Convention of Human rights

The European Parliament Committee on Civil Liberties, Justice and Home Affairs (LIBE) debated on February 23rd the state of the play of the EU accession to the European Convention of Human Rights (ECHR).

The accession is imposed by Article 6 TEU and its main impact will be the creation of an additional layer of protection of fundamental rights in the EU legal order. This entails the possibility to challenge before the European Court of Human Rights (ECtHR) also EU acts if they breach the fundamental rights of an individual (see my previous post here).

Continue reading “The first EU steps towards the accession to the European Convention of Human rights”

Basic Reference : EU and Fundamental rights

With the entry into force of the Lisbon Treaty the protection of fundamental rights has become one of the vital aspects of European Union activity and we are now witnessing the fundamental change of the nature of the European construction which was born in 1957 mainly as an economy oriented organisation.

Notwithstanding the recent critics of the German Constitutional Court, the EU system of protection is now much more articulated than before and the possibility for an individual to challenge the EU acts has been improved.

According to art. 6 TUE (*) Fundamental rights are now protected in the European Union under three diverse and complementary perspectives: as general principles of the EU, as defined by the European Charter and as protected by the European Convention of human rights.

Fundamental rights protected as part of the “general principles of the EU law”
It is worth recalling that the founding Treaties did’nt make any reference to fundamental rights and that even in ’59 the Court itself denied itself the competence to judge on the legality of some CECA decisions from the perspective of protection of fundamental rights as granted by the German Constitutional Court (Judg. February 4th, 1959, Judg. 1/58, Stork V.High Authority, February 1960, Judg. 16-18/59, Geitling v. Hig Authority). By so doing, the Luxembourg judges avoided a confrontation with the European Court for Human rights in Strasbourg and with the national Constitutional Courts.

Therefore, only a few years later in ’63 and ’64 by proudly declaring the autonomy of the Community legal order with the landmark “Van Gend en Loos” and “Costa contro Enel” Judgements, and by empowering the European citizens to invoke the primacy of Community law before the national Judges, the Luxembourg Court faced the opposition of the Constitutional Courts of Italy (Judgement “Frontini e Pozzani” of March 7, 1974, n. 14) and Germany (“Solange I” Judgment of May 19th, 1976 in BverGE, 37, p. 271) which did not accept such a primacy of Community law when fundamental rights as protected by the national Consitution could have been at stake.
To counter this national opposition and the lack of an explicit reference to fundamental rights in the founding Treaties, the Court of Justice developed a very cleaver and original doctrine by declaring that Member States should protect fundamentalr rights (“Stauder”, C- 29/69, ” “Handelsgesellschaft” C-228/69) as an “integral part of the general principles of [European Community] law” when implementing EU law (“Wachauf” C-5/88, July 13th, 1989) because the “…Respect for human rights is therefore a condition of the lawfulness of Community acts..” (ECJ Opinion 2/94)
It is worth noting that with the doctrine of the EU “general principles” stemming from the constitutional traditions common to the Member States, the EU judges have not only created a strong common ground both for the national and european legal orders but also an evolving mechanism mirroring the evolution of the national Constitutional orders and of the Member States international relations (“Nold”, C-4/73 of May 14th, 1974).
The interaction beteween the national and european level makes it possible to match the evolution of the EU society notably when fundamental rights are at stake. It is therefore not surprising that in sixty years several “generations” of fundamental rights came to the attention of the european Judges and legislators.
Therefore, it took some time before the doctrine of “general principles” (as a legal cross-fertilisation mechanism between the national and european level) had been mirrored in the Treaties but it happened in ’93 with the Maastricht Treaty, confirmed by the Amsterdam Treaty and now clearly stated in the Lisbon treaty.

Fundamental rights as protected by the European Charter of Fundamental rights

The main weakness of the “general principles” doctrine is that it depends on the interpretation of the judges who can act only on a case by case basis. At the end of the eighties it became necessary to link the enlargment process to new Member States and the extension of the EU missions to the codification of ECJ jurisprudence of the previous decades by making fundamental rights more visible to the european citizen and to the EU legislator itself.
This codification of fundamental rights as stemming from the ECHR, the common constitutional traditions of the Member States and from the jurisprudence of the ECJ has been decided by the European Council in Cologne on the 3/4 June ’99 in parallel with the entry into force of the Amsterdam Treaty: “There appears to be a need, at the present stage of the Union’s development, to establish a Charter of fundamental rights in order to make their overriding importance and relevance more visible to the Union’s citizens. The European Council believes that this Charter should contain the fundamental rights and freedoms as well as basic procedural rights guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms and derived from the constitutional traditions common to the Member States, as general principles of Community law. The Charter should also include the fundamental rights that pertain only to the Union’s citizens. In drawing up such a Charter account should furthermore be taken of economic and social rights as contained in the European Social Charter and the Community Charter of the Fundamental Social Rights of Workers (Article 136 TEC), insofar as they do not merely establish objectives for action by the Union.”

Following this mandate an extraordinary “Convention”, composed of representatives of the Heads of State and Government, the President of the Commission as well as members of the European Parliament and national parliaments, prepared a text which even if without a binding status was proclamed by the EU institutions in Nice in December 2000.
With the entry into force of the Lisbon Treaty the Charter (slightly updated in 2007) is now part of the EU Constitutional order even if UK and Poland enjoy a specific regime as defined in two protocols.

Fundamental rights as protected by the ECHR

As outlined above the ECHR is the main reference and the founding block of fundamental rights protection in Europe even if it focuses mainly on political and civil rights (the so called “first generation”) which were considered the main priority after the second World War. Already in April 1979 the European Commission proposed that the European Community could become member of the ECHR but the procedure was only launched after another Commission Communication of November 19th, 1990. The proposal was followed by a Council request for an opinion from the ECJ. The Opinion (2/94 was adopted on March 28th, 1996 and stated quite surprisingly that “..No Treaty provision confers on the Community institutions any general power to enact rules on human rights or to conclude international conventions in this field. Accession to the Convention would, however, entail a substantial change in the present Community system for the protection of human rights in that it would entail the entry of the Community into a distinct international institutional system as well as integration of all the provisions of the Convention into the Community legal order. Such a modification of the system for the protection of human rights in the Community, with equally fundamental institutional implications for the Community and for
the Member States, would be of constitutional significance and would therefore be such as to go beyond the scope of Article 235. It could be brought about only by way of Treaty amendment.“
Therefore the fact that the EU, contrary to its Member States, was and still is not formally member of the ECHR. This has created some problems when Member States are brought before the Strasbourg Court for breaching fundamental rights with a national law that conflicts EU law.
In two landmark cases “Matthews” in ’99 and more clearly “Bosphorus ” in 2005, the Strasbourg Judges made it clear that even if the EU fundamental rights protection regime “…could have been considered to be, and to have been at the relevant time, “equivalent” to that of the Convention system….Such a presumption could be rebutted if, in a particular case, it was considered that the protection of Convention rights was manifestly deficient. In such cases, the interest of international co-operation would be outweighed by the Convention’s role as a “constitutional instrument of European public order” in the field of human rights”.

The consequence of this reasoning is that EU Member States when implementing European Union law would be summoned by the Strasbourg Court (if the EU legislation does not grant sufficient protection to fundamental rights) and at the same time summoned by the Luxembourg Court for not implementing the same rules.
To avoid being caught between a rock and a hard place or to be taken hostage between the two legal regimes of Luxembourg and Strasbourg, the Member States decided that with the Lisbon Treaty the European Union should also become party to the Convention so that its acts could be directly challenged before the Strasbourg Court in case of violation of the European Convention of Human rights.
By adopting Protocol 14 the accession is now legally possible on part of the Council of Europe even if the negotiation of this accession already seems far from being easy.

A wider right of access for Judges

It would had been meaningless to have so many ways to invoke the protection of fundamental rights against the EU acts, if this new legal construction would not have been accompanied by an easier access of the individual to the EU judge.
Here again the Lisbon Treaty brings some improvements.
In the previous situation (art. 230 p4 of the TEC) an individual was entitled to bring an action against an EU act only if he was directly and individually concerned by these acts.
The situation of legal and/or physical person “individually” concerned by an EU act was rather common at the beginning of the EU construction when many Decisions of the Institutions (such as the ones of the CECA High Authority or of the Commission acting in the competition policy) were addressed to specific enterprises, but has become less frequent the more the EC and the EU developed their “legislative” activity by adopting acts of regulatory nature. Indeed, nearly all actions brought by individuals against Community regulations have been declared inadmissible by the ECJ because the requirement of ‘individual concern’ was not fulfilled. The doctrine considered then that the approach of the Community courts was too restrictive to guarantee effective legal protection of individuals against acts of a general nature.
The Court of Justice considered therefore that “effective legal protection” was in any case guaranteed by the right of individuals to bring an action before national courts against national measures implementing an EC/EU regulation in individual cases (since these courts acting as “decentralized european judges” would have been able to refer to preliminary questions to the Court of Justice).
This indirect solution was therefore unavailable when Community measures didn’t require national implementation. In these cases, as denounced by the Advocate General Francis Jacobs in the “Jégo-Quéré,” case before the Court of First Instance, the only way for the individuals to obtain justice was to infringe the EU measure and challenge its validity during the penal or other proceedings brought against him.
The CFI in its Judgment of 3 May 2002, followed the AG Jacobs ruling by considering a person as “individually concerned” by a measure of general application when it affects his legal position in a manner which is both definite and immediate, by restricting his rights or imposing obligations on him. However, the Court of Justice rejected this interpretation (“UPA” Case of 25 June 2002) by considering that a reform of the system of judicial review would had been possible only through a Treaty amendment.

Such a reform was finally adopted, albeit in a rather unclear way, during the negotiations of the Constitutional Treaty and thereafter mirrored in the Lisbon Treaty.
The former art. 230 TEC has now become Article 263 of the TFEU which reads as follows:
‘Any natural or legal person may, under the same conditions, institute proceedings against an act addressed to that person or which is of direct and individual concern to him or her, and against a regulatory act which is of direct concern to him or her and does not entail implementing measures.’”

Therefore the main question surrounds the Treaty’s lack of definition of the notion “regulatory acts”.
Does this formula cover all the acts of general application be it of legislative or non legislative nature or does it refers only to “non legislative” acts as considered by part of the doctrine (Bruno De Witte)?
This second interpretation will therefore allow the legislator to hide in legislative acts all the measures for which he does not want be challenged by the individuals. Moreover this interpretation will also counter ECJ jurisprudence according to which only the contents of the act are decisive and not its legal form.

(*) TUE Article 6(as modified by the Lisbon Treaty)
1. The Union recognises the rights, freedoms and principles set out in the Charter of Fundamental Rights of the European Union of 7 December 2000, as adapted at Strasbourg, on 12 December 2007, which shall have the same legal value as the Treaties.
The provisions of the Charter shall not extend in any way the competences of the Union as defined in the Treaties.
The rights, freedoms and principles in the Charter shall be interpreted in accordance with the general provisions in Title VII of the Charter governing its interpretation and application and with due regard to the explanations referred to in the Charter, that set out the sources of those provisions.
2. The Union shall accede to the European Convention for the Protection of Human Rights and Fundamental Freedoms. Such accession shall not affect the Union’s competences as defined in the Treaties.
3. Fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms and as they result from the constitutional traditions common to the Member States, shall constitute general principles of the Union’s law.

Interlaken declaration and Action plan to reform the European Court of Human Rights

The text below have been taken from the official Council of Europe Press release presenting the result of the Interlaken Conference (19.02.2010)
It is worth noting that on Thursday, just before the opening of the Ministerial Conference, the Russian Minister of Justice Alexander Konovalov deposited the ratification instrument of Protocol 14 which will therefore enter into force on 1 June 2010.

Interlaken Declaration
19. February 2010

The High Level Conference meeting at Interlaken on 18 and 19 February 2010 at the initiative of the Swiss Chairmanship of the Committee of Ministers of the Council of Europe (“the Conference”):
1 Expressing the strong commitment of the States Parties to the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) and the European Court of Human Rights (“the Court”);
2 Recognising the extraordinary contribution of the Court to the protection of human rights in Europe;
3 Recalling the interdependence between the supervisory mechanism of the Convention and the other activities of the Council of Europe in the field of human rights, the rule of law and democracy;
4 Welcoming the entry into force of Protocol No. 14 to the Convention on 1 June 2010;
5 Noting with satisfaction the entry into force of the Treaty of Lisbon, which provides for the accession of the European Union to the Convention;
6 Stressing the subsidiary nature of the supervisory mechanism established by the Convention and notably the fundamental role which national authorities, i.e. governments, courts and parliaments, must play in guaranteeing and protecting human rights at the national level;
7 Noting with deep concern that the number of applications brought before the Court and the deficit between applications introduced and applications disposed of continues to grow;
8 Considering that this situation causes damage to the effectiveness and credibility of the Convention and its supervisory mechanism and represents a threat to the quality and the consistency of the case-law and the authority of the Court;
9 Convinced that over and above the improvements already carried out or envisaged additional measures are indispensable and urgently required in order to:
i. achieve a balance between the number of judgments and decisions delivered by the Court and the number of incoming applications;
ii. enable the Court to reduce the backlog of cases and to adjudicate new cases within a reasonable time, particularly those concerning serious violations of human rights;
iii. ensure the full and rapid execution of judgments of the Court and the effectiveness of its supervision by the Committee of Ministers;
10 Considering that the present Declaration seeks to establish a roadmap for the reform process towards long-term effectiveness of the Convention system;

The Conference

(1) Reaffirms the commitment of the States Parties to the Convention to the right of individual petition;

(2) Reiterates the obligation of the States Parties to ensure that the rights and freedoms set forth in the Convention are fully secured at the national level and calls for a strengthening of the principle of subsidiarity;

(3) Stresses that this principle implies a shared responsibility between the States Parties and the Court;

(4) Stresses the importance of ensuring the clarity and consistency of the Court’s case-law and calls, in particular, for a uniform and rigorous application of the criteria concerning admissibility and the Court’s jurisdiction;

(5) Invites the Court to make maximum use of the procedural tools and the resources at its disposal;

(6) Stresses the need for effective measures to reduce the number of clearly inadmissible applications, the need for effective filtering of these applications and the need to find solutions for dealing with repetitive applications;

(7) Stresses that full, effective and rapid execution of the final judgments of the Court is indispensable;

(8) Reaffirms the need for maintaining the independence of the judges and preserving the impartiality and quality of the Court;

(9) Calls for enhancing the efficiency of the system to supervise the execution of the Court’s judgments;

(10) Stresses the need to simplify the procedure for amending Convention provisions of an organisational nature;

(11) Adopts the following Action Plan as an instrument to provide political guidance for the process towards long-term effectiveness of the Convention system.

ACTION PLAN:

A. Right of individual petition
1. The Conference reaffirms the fundamental importance of the right of individual petition as a cornerstone of the Convention system which guarantees that alleged violations that have not been effectively dealt with by national authorities can be brought before the Court.
2. With regard to the high number of inadmissible applications, the Conference invites the Committee of Ministers to consider measures that would enable the Court to concentrate on its essential role of guarantor of human rights and to adjudicate well-founded cases with the necessary speed, in particular those alleging serious violations of human rights.
3. With regard to access to the Court, the Conference calls upon the Committee of Ministers to consider any additional measure which might contribute to a sound administration of justice and to examine in particular under what conditions new procedural rules or practices could be envisaged, without deterring well-founded applications.

B. Implementation of the Convention at the national level
4. The Conference recalls that it is first and foremost the responsibility of the States Parties to guarantee the application and implementation of the Convention and consequently calls upon the States Parties to commit themselves to:
a) continuing to increase, where appropriate in co-operation with national human rights institutions or other relevant bodies, the awareness of national authorities of the Convention standards and to ensure their application;
b) fully executing the Court’s judgments, ensuring that the necessary measures are taken to prevent further similar violations;
c) taking into account the Court’s developing case-law, also with a view to considering the conclusions to be drawn from a judgment finding a violation of the Convention by another State, where the same problem of principle exists within their own legal system;
d) ensuring, if necessary by introducing new legal remedies, whether they be of a specific nature or a general domestic remedy, that any person with an arguable claim that their rights and freedoms as set forth in the Convention have been violated has available to them an effective remedy before a national authority providing adequate redress where appropriate;
e) considering the possibility of seconding national judges and, where appropriate, other high-level independent lawyers, to the Registry of the Court;
f) ensuring review of the implementation of the recommendations adopted by the Committee of Ministers to help States Parties to fulfil their obligations.
5. The Conference stresses the need to enhance and improve the targeting and coordination of other existing mechanisms, activities and programmes of the Council of Europe, including recourse by the Secretary General to Article 52 of the Convention.

C. Filtering
6. The Conference:
a) calls upon States Parties and the Court to ensure that comprehensive and objective information is provided to potential applicants on the Convention and the Court’s case-law, in particular on the application procedures and admissibility criteria. To this end, the role of the Council of Europe information offices could be examined by the Committee of Ministers;
b) stresses the interest for a thorough analysis of the Court’s practice relating to applications declared inadmissible;
c) recommends, with regard to filtering mechanisms,
i. to the Court to put in place, in the short term, a mechanism within the existing bench likely to ensure effective filtering;
ii. to the Committee of Ministers to examine the setting up of a filtering mechanism within the Court going beyond the single judge procedure and the procedure provided for in i).

D. Repetitive applications
7. The Conference:
a) calls upon States Parties to:
i. facilitate, where appropriate, within the guarantees provided for by the Court and, as necessary, with the support of the Court, the adoption of friendly settlements and unilateral declarations;
ii. cooperate with the Committee of Ministers, after a final pilot judgment, in order to adopt and implement general measures capable of remedying effectively the structural problems at the origin of repetitive cases.
b) stresses the need for the Court to develop clear and predictable standards for the “pilot judgment” procedure as regards selection of applications, the procedure to be followed and the treatment of adjourned cases, and to evaluate the effects of applying such and similar procedures;
c) calls upon the Committee of Ministers to:
i. consider whether repetitive cases could be handled by judges responsible for filtering (see above Section C);
ii. bring about a cooperative approach including all relevant parts of the Council of Europe in order to present possible options to a State Party required to remedy a structural problem revealed by a judgment.

E. The Court
8. Stressing the importance of maintaining the independence of the judges and of preserving the impartiality and quality of the Court, the Conference calls upon States Parties and the Council of Europe to:
a) ensure, if necessary by improving the transparency and quality of the selection procedure at both national and European levels, full satisfaction of the Convention’s criteria for office as a judge of the Court, including knowledge of public international law and of the national legal systems as well as proficiency in at least one official language. In addition, the Court’s composition should comprise the necessary practical legal experience;
b) grant to the Court, in the interest of its efficient functioning, the necessary level of administrative autonomy within the Council of Europe.
9. The Conference, acknowledging the responsibility shared between the States Parties and the Court, invites the Court to:
a) avoid reconsidering questions of fact or national law that have been considered and decided by national authorities, in line with its case-law according to which it is not a fourth instance court;
b) apply uniformly and rigorously the criteria concerning admissibility and jurisdiction and take fully into account its subsidiary role in the interpretation and application of the Convention;
c) give full effect to the new admissibility criterion provided for in Protocol No. 14 and to consider other possibilities of applying the principle de minimis non curat praetor.
10. With a view to increasing its efficiency, the Conference invites the Court to continue improving its internal structure and working methods and making maximum use of the procedural tools and the resources at its disposal. In this context, it encourages the Court in particular to:
a) make use of the possibility to request the Committee of Ministers to reduce to five members the number of judges of the Chambers, as provided by Protocol No. 14;
b) pursue its policy of identifying priorities for dealing with cases and continue to identify in its judgments any structural problem capable of generating a significant number of repetitive applications.

F. Supervision of execution of judgments
11. The Conference stresses the urgent need for the Committee of Ministers to:
a) develop the means which will render its supervision of the execution of the Court’s judgments more effective and transparent. In this regard, it invites the Committee of Ministers to strengthen this supervision by giving increased priority and visibility not only to cases requiring urgent individual measures, but also to cases disclosing major structural problems, attaching particular importance to the need to establish effective domestic remedies;
b) review its working methods and its rules to ensure that they are better adapted to present-day realities and more effective for dealing with the variety of questions that arise.

G. Simplified Procedure for Amending the Convention
12. The Conference calls upon the Committee of Ministers to examine the possibility of introducing by means of an amending Protocol a simplified procedure for any future amendment of certain provisions of the Convention relating to organisational issues. This simplified procedure may be introduced through, for example:
a) a Statute for the Court;
b) a new provision in the Convention similar to that found in Article 41(d) of the Statute of the Council of Europe.

Implementation

In order to implement the Action Plan, the Conference:
(1) calls upon the States Parties, the Committee of Ministers, the Court and the Secretary General to give full effect to the Action Plan;
(2) calls in particular upon the Committee of Ministers and the States Parties to consult with civil society on effective means to implement the Action Plan;
(3) calls upon the States Parties to inform the Committee of Ministers, before the end of 2011, of the measures taken to implement the relevant parts of this Declaration;
(4) invites the Committee of Ministers to follow-up and implement by June 2011, where appropriate in co-operation with the Court and giving the necessary terms of reference to the competent bodies, the measures set out in this Declaration that do not require amendment of the Convention;
(5) invites the Committee of Ministers to issue terms of reference to the competent bodies with a view to preparing, by June 2012, specific proposals for measures requiring amendment of the Convention; these terms of reference should include proposals for a filtering mechanism within the Court and the study of measures making it possible to simplify the amendment of the Convention;
(6) invites the Committee of Ministers to evaluate, during the years 2012 to 2015, to what extent the implementation of Protocol No. 14 and of the Interlaken Action Plan has improved the situation of the Court. On the basis of this evaluation, the Committee of Ministers should decide, before the end of 2015, on whether there is a need for further action. Before the end of 2019, the Committee of Ministers should decide on whether the measures adopted have proven to be sufficient to assure sustainable functioning of the control mechanism of the Convention or whether more profound changes are necessary;
(7) asks the Swiss Chairmanship to transmit the present Declaration and the Proceedings of the Interlaken Conference to the Committee of Ministers;
(8) invites the future Chairmanships of the Committee of Ministers to follow-up on the implementation of the present Declaration.

European Parliament approves Barroso II

The European Parliament has approved by a very large majority, 488 votes in favour, 137 against and 72 abstentions, the Barroso II team on Tuesday 9 February, in Strasbourg.

The new Commission begins to work today, Wednesday the 10 February and its mandate will expire on 31 October 2014.

The major political groups (the EPP, the Socialist Group (S&D) and the Liberal Group (ALDE)) supported the new Commission, the Greens/EFA, the GUE/NGL, the Europe Freedom and Democracy Group (EFD) and non-attached members voted against and the Conservative Group (ECR) abstained.

Barroso asserted in front of the plenary that the main priorities of the new Commission (already presented to the EP in September 2009) will be to tackle the current economic and social situation in the EU, the fight against climate change, developing social cohesion, the creation of the freedom and security area, and strengthening Europe’s place in the world.

As part of the new framework agreement between the EP and the Commission, in which the main elements were approved by MEPs on Tuesday Barroso committed to carry on social impact analysis when there is a new legislative proposal.

According to the resolution in order to place the Parliament on an equal footing with the Council where the ordinary legislative procedure applies the Commission should:

1) Provide to the EP similar access to information than that guaranteed to the Council on legislative and budgetary matters

2) Provide full documentation to the EP on the Council’s meetings with national experts on the preparation and implementation of EU legislation

3) React to the EP’s legislative initiative within three months and present a proposal within one year or in case of refusal by the executive explain to the plenary the reasons that led to such a decision

4) Recognise the EP’s enhanced role in international negotiations (following the entry into force of the Lisbon Treaty) by providing it with “immediate and full” information at “every stage of negotiations” and by giving it observer status at international conferences.

5) Defend the EP’s position during the negotiation of the European External Action Service and involve it in the revision of the better legislation’ interinstitutional agreement.

6) through its President hold regular dialogue with the EP president .

Despite, President Barroso promised to abide by it during the second phase of negotiations on procedural matters that will get under way, the Parliament did not obtain everything it wanted. First of all, the Commission did not accept to allow the European Parliament to hold hearings of future EU ambassadors. Secondly, although Barroso chose to set a deadline for Parliament’s power of initiative, he did not agree to systematically respond to EP requests, to keep from hindering the Commission’s right of initiative. Finally, It also remains to be seen how far the Commission will agree to go on delivering information upstream to Parliament on certain aspects of EU external policy.

Now that the Barroso II has been approved by the European Parliament it is interesting to look back at what the newly elected commissioners responsible for the area of freedom, security and justice presented during the auditions held in January in front of the legislative assembly.

The Commissioners related to the area of freedom, security and justice Ms Viviane Reding will be the Vice-President of the European Commission and the Commissioner for European Justice, Fundamental Rights, Citizenship and Equal Opportunities. During her hearing, held in January, Ms Reding stated that her main objective will be to create a single justice area and enhancing equal opportunities policies, ending any forms of discrimination and, above all strengthening the legal instruments against violence towards women. In specific the three priorities presented to the Parliament in the field of Justice are:

(1) guaranteeing accused persons and suspects clear rights in the EU

(2) ensuring strong fairness rules in trials and prisons, and

(3) enhancing victims’ rights.

Ms Reding also highlighted the importance of “free circulation of administrative documents and European authentic acts” and therefore announced the publication, at the start of the year, of a Green Paper on the free movement of civil and political rights, expected at the beginning of 2010. Always in this domain, the newly elected Commissioner aims to turn Eurojust, into “a European public prosecutor’s office”. Concerning the promotion and respect of fundamental rights the Commissioner explained back in January that there will be a very specific impact evaluation on our fundamental rights. Ms Reding specified that equal opportunities should be fully integrated into employment and this would be a priority of the Belgian presidency of the Union. Finally Ms Reding stated that together with the Commissioner for Internal Affairs, Cecilia Malmström they will bring forward 169 initiatives under the Stockholm Programme.

Concerning her part, Cecilia Malmström during her hearing held on 19 January, presented immigration and the review of security legislation as the main priorities for the Commission. In relation to immigration three directives will be presented in 2010, namely: seasonal work, internal changes within multilateral companies and payment to trainees. Always in January, the newly elected Commissioner indicated that she propose a strengthening of Frontex at the beginning of 2010. The other main objective is the implementation of an internal security strategy in the EU, although little legislation will be put forward in this domain. Ms Malmström announced a review of the data retention measure at the beginning of 2011 which together the setting up of the Second Generation Information System (SIS II) she will tackle as soon as possible. She also affirmed that she supported the creation of the post of European coordinator of fighting human trafficking. The Commissioner stated that she will also present a communication on the fight against corruption and that she is keen in cooperating with Ms Reding in this domain.

LB