Category: 2. Values & principles of the European Union

J.P.Jacqué : Le droit pour la Commission de retirer une proposition législative. A’ propos de l’arrêt du 14 avril 2015 (C‑409/13)

ORIGINAL PUBLISHED ON LE DROIT DE L’UNION EUROPEENNE

par Jean Paul Jacqué

L’existence d’un droit pour la Commission de retirer une de ses propositions a, de tout temps, constitué une pomme de discorde entre le Conseil et la Commission. Pour la Commission, le droit de retrait devait être considéré comme un corollaire du droit d’initiative que lui reconnaît le traité. Il s’appuie sur l’article TFUE qui indique que la Commission peut à tout moment modifier sa proposition avant que le Conseil n’ait statué. Le retrait serait l’une des variantes du pouvoir de modification. Dans la mesure où le Conseil peut amender une proposition de la Commission sans l’accord de celle-ci dès lors qu’il statue à l’unanimité, le retrait viendrait tempérer ce pouvoir du Conseil. Pour le Conseil, il ne saurait être question de reconnaître à la Commission ce qui s’apparenterait à un veto législatif. Dès lors que le Conseil réunissait l’unanimité pour amender une proposition de la Commission, cette dernière ne devait pas avoir le pouvoir de faire obstacle à la volonté du Conseil. L’argumentation de la Commission méconnait la philosophie initiale du système.  Si la Commission s’est vue reconnaître le droit de modifier sa proposition, c’est pour lui permettre de rejoindre, si elle de désirait, la position d’une majorité d’Etats membres afin de permettre l’adoption d’une proposition qui n’aurait pas recueilli l’unanimité. Cette situation n’avait rien avec un droit de retrait qui n’avait pas été envisagé par les pères fondateurs[2]

Jusqu’à présent, cette divergence de vues entre institutions n’avait pas provoqué de difficultés insurmontables. Le retrait unilatéral par la Commission a été pratiqué cinq fois, essentiellement lors de la Commission Delors. Les autres cas de retrait étaient plus consensuels. Il s’agissait essentiellement du retrait de propositions devenues caduques ou affectées par un changement de circonstances et il était généralement précédé par des consultations avec le Parlement et le Conseil. La Commission avait également pris l’habitude de procèder à des retraits « administratifs » lors de son entrée en fonction Ceux-ci concernaient des propositions anciennes qui n’avaient pas uscité l’intérêt du législateur. Elle pouvait s’appuyer sur un prétendu principe de discontinuité législative que connaissent de nombreux parlements nationaux et qui est soutenu par le Parlement européen lequel est favorable à la caducité des propositions non adoptées pendant la précédente législature avec des exceptions pour celles adoptées en première lecture ou celles dont il veut poursuivre l’examen. En raison de l’opposition du Conseil, ces retraits étaient généralement précédés des négociations interinstitutionnelles.

La Commission Juncker semble s’être affranchie de ces contraintes en procédant à des retraits systématiques concernant des propositions dont le Parlement souhaitait poursuivre l’examen ce qui a donné lieu à controverses[3]. Continue reading “J.P.Jacqué : Le droit pour la Commission de retirer une proposition législative. A’ propos de l’arrêt du 14 avril 2015 (C‑409/13)”

EU Zombie Law: the CJEU re-animates the old ‘third pillar’

ORIGINAL PUBLISHED ON EU LAW ANALYSIS

by Steve Peers

Back in 1993, when the Maastricht Treaty entered into force, the EU began adopting measures on criminal law and policing under a peculiar institutional system, known in practice as the ‘third pillar’ of EU law. This system was amended by the Treaty of Amsterdam in 1999, and then survived several attempts to kill it over the next decade; indeed I once compared it to Rasputin. The Treaty of Lisbon nominally finished it off it as from that Treaty’s entry into force (1 December 2009); but this was subject to a five-year transitional period.

That makes it sound as though the third pillar finally came to an end on 1 December 2014 – but it did not. Indeed two judgments of the CJEU yesterday (here and here) not only maintain old third pillar measures in force, but allow new measures based on them to be adopted. Third pillar measures aren’t exactly dead yet – rather they are undead. Let’s take a look at these zombies of EU law.

Background

The Treaty of Lisbon has a transitional Protocol, which contains two rules relating to the third pillar. First of all, Article 10 sets out the five-year transitional period, after which the normal jurisdiction of the CJEU would apply to the measures concerned. At the same time, the UK could choose to opt out of all of these measures, and then opt back in to some of them, as it indeed did last year (see discussion here).

Secondly, Article 9 of that Protocol, which is not subject to a time limit, states that third pillar measures adopted before the entry into force of the Treaty of Lisbon stay in force until they are amended or repealed. Some of them have been amended or repealed, or will be soon (the law establishing Europol, for instance). But the majority remain in force, including the controversial law establishing the European Arrest Warrant (EAW).

Why does this still matter? First of all, the pre-Lisbon measures don’t confer direct effect on individuals, so can’t be invoked to create rights in national courts. Secondly, this means that the European Parliament (EP) has not had any real say in the adoption of these measures. In particular, the EP has a lot of excellent suggestions for the reform of the EAW. Thirdly, a legal question arises as to whether the pre-Lisbon measures can serve as a legal basis for the adoption of new measures even after the entry into force of the Lisbon Treaty. This question was answered by yesterday’s judgments.

Judgments

The EP challenged the validity of post-Lisbon Council measures which had implemented pre-Lisbon EU criminal law acts, in particular giving police forces access to the EU’s Visa Information System and prohibiting some new designer drugs. There are parallel actions still pending, against measures implementing pre-Lisbon laws establishing Europol and the ‘Prum’ system of exchanging data between national police forces.

The reason for the EP’s objection to these measures was that the Council exercises these powers by means of a qualified majority vote, and argues that it does not have to consult the EP at all, since the legal requirement to consult the EP was set out in the old third pillar rules in the Treaty, which were repealed by the Treaty of Lisbon. In the EP’s view, the Council should use the post-Lisbon rules for the adoption of implementing measures, ie giving the Commission the power to adopt delegated acts over which the EP has control. Alternatively, fresh EU legislative acts have to be adopted; these would be subject to the ordinary legislative procedure.

The CJEU ruled that, in accordance with Article 9 of the transitional protocol, the pre-Lisbon measures remain in force. In the Court’s view, that also means that the Council is entitled to adopt implementing measures following the pre-Lisbon process. However, the Court, unlike the Advocate-General, said that the Council at least has to consult the European Parliament on these measures. It reasoned in effect that the cross-reference to the repealed Treaty rules in the pre-Lisbon legislation retained those rules in force.

Comments

The Court’s ruling in effect allows the Council to create new third pillar acts long after the third pillar has nominally died. It’s as if zombies could procreate, and give birth to baby zombies (I’m going for a ‘grossest legal analogy’ award here).  Furthermore, the Court’s reasoning as regards the EP’s partial victory means that to some extent, even aspects of the long-dead Treaty rules on the third pillar have now been zombified by the Court.

How much damage could these zombies do? There’s no risk of the famous ‘zombie apocalypse’ affecting EU law. Apart from these implementing measures, all other EU criminal law acts adopted since the Treaty of Lisbon have taken the normal EU form of Directives and Regulations, and have been subject to the post-Lisbon procedures (usually the ordinary legislative procedure). Many pre-Lisbon EU measures (such as the EAW law) don’t provide for implementing measures, and some of those which do (such as the Europol law, as mentioned already) will be replaced soon.

The Court’s rulings are a reasonable legal interpretation of the transitional rules. But the broader political problem remains: many controversial measures affecting civil liberties have had no real input from the EP. Since its resort to the courts has had only limited success, the EP should now consider alternative means (blocking legislation or budget disbursements) to achieve the goals of reviewing pre-Lisbon EU criminal laws – and in particular securing much-needed reforms to the EAW.

 

Europe behind bars: the use of the European Prison Rules in the French prison system. Awaiting the European Union?

by Charline QUILLÉROU (EU-LOGOS Athéna trainee)

NB The text below summarizes a French Master thesis.

The reform of the prison system is a sensitive issue in France. This debate takes place in a context of dilapidating prison buildings and chronic overcrowding, exacerbated by punitive criminal justice policies. Such a situation leads to sub-human conditions of detention that have been condemned many times, both nationally by MPs[1], associations involved in the defence of detainee’s rights[2] or various papers[3], and internationally by the Commissioner for Human Rights of the Council of Europe[4] and the European Court of Human Rights. The reforms undertaken have difficulties improving significantly these conditions of detention.

The Council of Europe (CoE) and the European Union (EU) have a role to play in protecting the rights of persons deprived of their liberty. Recommendations have been instrumental in changing national practices. Nevertheless, the EU has almost turned a deaf ear to it while the CoE has been very active. In its resolution of December 2011, the European Parliament recognised that “whereas detention conditions and prison management are primarily the responsibility of Member States […] shortcomings, such as prison overcrowding and allegations of poor treatment of detainees, may undermine the trust which must underpin judicial cooperation in criminal matters based on the principle of mutual recognition of judgments and judicial decisions by EU Member States”[5]. As a result in June 2011, the European Commission published a Green paper entitled “Strengthening mutual trust in the European judicial area – A Green Paper on the application of EU criminal justice legislation in the field of detention”.  Since then, nothing has happened at the level of the EU.

The CoE is an intergovernmental organisation created in 1949 by a group of European countries – Belgium, Denmark, France, the United-Kingdom, Iceland, Italy, Luxembourg, the Netherlands, Norway and Sweden – that today consists of 47 Member States. All the EU Member States take part in the CoE, together with Turkey and Russia, to name but a few. According to its statute, “the aim of the Council of Europe is to achieve a greater unity between its members for the purpose of safeguarding and realising the ideals and principles which are their common heritage and facilitating their economic and social progress.”[6] To achieve that purpose, especially in regards criminal matters, the CoE relies on the European Court of Human Rights (ECtHR) and the Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT).

The European Prison Rules (EPR) consist of a set of three recommendations made by the CoE which define the minimum rules applicable in prison facilities both for detainees and staff. They cover many aspects of prison life such as hygiene, nutrition, contact with the outside world, work, recreation, education, transfer of prisoners, health or training of prison staff. Therefore, the idea is to harmonise national practices across Europe. Initially adopted in 1973, the EPR were updated in 1987 and 2006. The latest update attempted to take into account the developments in the jurisprudence of the ECtHR, in the norms established by the CPT, in societal changes that arose due to security constraints in the aftermath of 9-11 and the resulted prison population inflation.

There are 108 EPR, detailed in 308 recommendations. It is of crucial importance to understand that a recommendation is not legally binding. The EPR are not entitled to be transposed into national law as such, but are meant to serve as a guide for Member States in formulating their policies and legislation. This is well exemplified in the Commentary to Recommendation Rec(2006)2 that indicates : “prison administrations should seek to apply all Rules in the letter and the spirit of the principles.”[7] The main objectives are the establishment of common standards and reinforcement of international cooperation through appropriate incentives. The incitement dimension of the EPR refers to the issue of the influence of the CoE within the territory of the Member States that has been theorized as “europeanisation”. The europeanisation process refers to the influence of the European institutions or organisations on national and sub-national politics, policies and polity. Prison matters are barely addressed by the European institutions and CoE recommendations are not legally binding. On such important policies, europeanisation is only about the Council of Europe, even though human rights lie at the heart of the EU.

If European activities have a substantial impact on national institutions and policies, heterogeneity is its main feature. The adoption of the revised EPR in 2006 is a case in point, revealing the complex mechanisms of europeanisation at work. This is all the more true given that it led to the adoption of the French prison law of 24 November 2009, which, according to the Ministry of Justice Web site, “validated and translated into domestic legislation the majority of the European Prison Rules”. All these elements raise the following question:

To what extent do the European Prison Rules participate in the europeanisation of the French prison system? Continue reading “Europe behind bars: the use of the European Prison Rules in the French prison system. Awaiting the European Union?”

State Surveillance: the Venice Commission updates its 2007 Report

By Emilio DE CAPITANI

The Council of Europe’s, European Commission for Democracy Through Law (VENICE COMMISSION) during its 102nd Plenary Session (Venice, 20-21 March 2015) has updated its 2007 Report on the democratic Oversight of the security services and report on the democratic oversight of Signals Intelligence Agencies.
In a time where EU founding States such as France are discussing some very cotroversial rules on potential mass interception and the European Union is more and more attracted by the so called “intelligence led policing” the Venice Commission recommendations are particulary timely and worth reading.

Below the Executive Summary of the updated Venice Commission’s Report.

1. The scope of the study.
As a result of processes of globalization and of the creation of internet, internal and external security threats may not be easily distinguished anymore. Significant threats may come from non-state actors. Consequently, one of the most important developments in intelligence oversight in recent years has been that Signals Intelligence or SIGINT does not relate exclusively to military and external intelligence anymore, but also falls to some extent into the domain of internal security. Thus, signals intelligence now can involve monitoring “ordinary telecommunications” (it is “surveillance”) and it has a much greater potential of affecting individual human rights. Different states organize their signals intelligence function in different ways. The summary which follows discusses issues generally, and should not be seen as asserting that all states follow a particular model of signals intelligence, or regulate it in a particular way.

2. Is there a need for improved democratic control?
Strategic surveillance involves access both to internet and telecommunications content and to metadata (all data not part of the content of the communication). It begins with a task being given to the signals intelligence agency to gather intelligence on a phenomenon or a particular person or group. Very large quantities of content data, and metadata, are then collected in a variety of different ways. The bulk content is subjected to computer analysis with the help of “selectors”. These can relate to persons, language, key words concerning content (e.g. industrial products) and communication paths and other technical data.

3. Unlike “targeted” surveillance (covert collection of conversations by technical means (bugging), covert collection of the content of telecommunications and covert collection of metadata), strategic surveillance does not necessarily start with a suspicion against a particular person or persons. Signals intelligence aims to inform foreign policy generally and/or military/strategic security, not necessarily at investigating internal security threats. It has a proactive element, aiming at find or identify a danger rather than merely investigating a known threat. Herein lies both the value it can have for security operations, and the risks it can pose for individual rights.

4. Agencies engaged in signals intelligence tend to have the bulk of the intelligence budget, and produce most intelligence, but the systems of oversight over them have tended to be weaker. There are a variety of explanations for this.
First, it is argued that access to mere metadata does not seriously affect privacy, and nor does access to content data because this is done by computerized search programmes (“selectors”). However, metadata now can reveal much about private life, and the content selectors can be designed to collect information on specific human beings and groups.
Second, telecommunications used to be mainly by radio, with an ensuing lower level of privacy expectations; however, the vast bulk of telecommunications is now by fiber-optic cable.
Third, strategic surveillance being aimed at external communications, it was argued that it is the privacy of non-citizens or non-residents which is affected; however, leaving aside the issue of whether such a distinction is acceptable under the ECHR, for technical reasons there is an inevitable mixing of the internal and external communications, and an ensuing risk of circumvention of tougher domestic controls and oversight which might exist over “ordinary” surveillance. Fourthly, controls have been weaker on account of the technical complexity and rapid technological growth of the area. It should be borne in mind, however, that if this sector is left unregulated, it will be the intelligence agency itself instead of the legislature which carries out the necessary balancing of rights, with the risk of erring on the side of over-collecting intelligence. The fifth reason is that various factors – too rapid growth in the size of a signals intelligence agency, rapid growth in technology, loss in institutional memory, political pressure to secure quick results – may adversely impact the integrity and professionalism of the staff. Finally, signals intelligence is an international cooperative network, which creates specific oversight problems.

5. Strategic surveillance is not necessarily “mass” surveillance but can be when bulk data is collected and the thresholds for accessing that data are set low. Signals intelligence agencies tend to possess much more powerful computing facilities and thus have a greater potential to affect privacy and other human rights. They thus need proper regulation in a Rechtsstaat.

6. Jurisdiction.
The collection of signals intelligence may legitimately take place on the territory of another state with its consent, but might still fall under the jurisdiction of the collecting state from the view point of human rights obligations under the ECHR. At any rate, the processing, analysis and communication of this material clearly falls under the jurisdiction of the collecting State and is governed by both national law and the applicable human rights standards. There may be competition or even incompatibility between obligations imposed on telecommunications companies by the collecting state and data protection obligations in the territorial state; minimum international standards on privacy protection appear all the more necessary.

7. Accountability. Organization.
Signals intelligence is expensive and requires sophisticated technical competence. Hence, while all developed states nowadays require a defensive function – cyber security – only some have an offensive signals intelligence capacity, either in the form of a specialist signals intelligence agency or by allocating a signals intelligence task to the external intelligence agency.

8. Form of the mandate.
Most democratic states have placed at least part of the mandate of the signals intelligence function in primary legislation, as required by the ECHR. More detailed norms or guidelines are normally set out in subordinate legislation promulgated either by the executive (and made public) or by the Head of the relevant agency (and kept secret). There may be issues of quality of the law (foreseeability etc) in this respect.

9. Content of the mandate.
The mandate of a signals intelligence agency may be drafted in very broad terms to allow collection of data concerning “relevant” “foreign intelligence” or data of “relevance” to the investigation of terrorism. Such broad mandates increase the risk of over-collection of intelligence. If the supporting documentation is inadequate, oversight becomes very difficult.

10. Collection of intelligence for “the economic well-being of the nation” may result in economic espionage. Strategic surveillance however is useful in at least three areas of business activity: proliferation of weapons of mass destruction (and violation of export control conditions generally), circumvention of UN/EU sanctions and major money laundering. A clear prohibition of economic espionage buttressed by strong oversight and the prohibition for the intelligence agencies to be tasked by the government departments or administrative agencies involved in promoting trade would be useful prevention mechanisms.

11. Bulk transfers of data between states occur frequently.
In order to avoid circumvention of rules on domestic intelligence gathering, it would be useful to provide that the bulk material transferred can only be searched if all the material requirements of a national search are fulfilled, and this is duly authorized in the same way as searches of bulk material obtained through national searches.

12. Government control and tasking.
Taskers depend on the nature of the intelligence sought (diplomatic, economic, military and domestic). Taskers should not be regarded as external controls.

13. Network accountability.
Due to their different geographical location and to the nature of internet, states frequently collect data which is of interest to other states or have access to different parts of the same message. The links between allied states as regards signals intelligence may be very strong. The “third party” or “originator rule” may thus be a serious obstacle to oversight and should not be applied to oversight bodies.

14. Accountability and the case law of the European Court of Human Rights.
The ECHR consists of minimum standards, and it is only a point of departure for European States, which should aim to provide more extensive guarantees. The European Court of Human Rights has not defined national security but has gradually clarified the legitimate scope of this term. In its case-law on secret measures of surveillance, it has developed the following minimum safeguards to be set out in statute law in order to avoid abuses of power: the nature of the offences which may give rise to an interception order; definition of the categories of people liable to have their telephones tapped, a limit on the duration of telephone tapping; the procedure to be followed for examining, using and storing the data obtained; the precautions to be taken when communicating the data to other parties; and the circumstances in which recordings may or must be erased or the tapes destroyed.

15. The Court’s case law on strategic surveillance is so far very limited, although there is also national case law and oversight bodies practice based on the ECHR. Several of the standards related to ordinary surveillance have to be adapted to make them apply to strategic surveillance. The first safeguard (applicable only to states which allow the use of signals intelligence to investigate crimes) is that the offences which may be investigated through signals intelligence should be enumerated, and thus provision should be made for the destruction of data which might incidentally be gathered on other offences. The exception of transferring data to law enforcement should be narrowly defined and subject to oversight.

16. Another safeguard is a definition of the categories of people liable to have their communications intercepted. The power to contact chain (i.e. identify people in contact with each other) should be framed narrowly contact chaining of metadata should normally only be possible for people suspected of actual involvement in particularly seriously offences, such as terrorism. If the legislature nonetheless considers that such a widely framed contact-chaining power is necessary, then this must be subject to procedural controls and strong oversight.

17. As regards searches of content data, there are particular privacy implications when a decision is being considered to use a selector which is attributable to a natural person (e.g. his or her name, nickname, email address, physical address etc.). Strengthened justification requirements and procedural safeguards should apply, such as the involvement of a privacy advocate. The safeguard is also relevant as regards subsequent decisions to transfer intelligence obtained by strategic surveillance to internal security agencies, to law enforcement or to foreign services.

18. Interception of privileged communications by means of signals intelligence is particularly problematic as is use of signals intelligence against journalists in order to identify their sources. Methods must be devised to provide lawyers and other privileged communicants and journalists with some form of protection, such as requiring a high, or very high, threshold before approving signals intelligence operations against them, combined with procedural safeguards and strong external oversight.

19. The safeguard of setting out time limits is not as meaningful for strategic surveillance as it is for ordinary surveillance. Periods of surveillance tend to be long, and continually renewed. Retention periods also tend to be long: data originally thought to be irrelevant may, as a result of new data, come to be seen as relevant. Provision could be made for a requirement to make periodic internal reviews of the (continued) need to retain the data. To be meaningful, such a duty must be backed up by external oversight.

20. Two very significant stages in the signals intelligence process where safeguards must apply are the authorization and follow-up (oversight) processes. That the latter must be performed by an independent, external body is clear from the ECtHR’s case law. The question which arises here is whether even the authorization process should be independent.

21. Internal and governmental controls as part of overall accountability systems. For a number of reasons, It has been particularly tempting to rely primarily on internal controls in the area of strategic surveillance, but they are insufficient. Generally speaking, external oversight over signals intelligence needs to be strengthened considerably.

22. Parliamentary accountability.
There are a number of reasons why parliamentary supervision of strategic surveillance is problematic. First, the technical sophistication of signals intelligence makes it difficult for parliamentarians to supervise without the aid of technical experts. Second, the general problem of parliamentarians finding sufficient time for oversight along with all their other duties is particularly acute as regards strategic surveillance, where for controlling the dynamic process of refining the selectors (as opposed to a post-hoc scrutiny), some form of standing body is necessary. Thirdly, the high degree of network cooperation between certain signals intelligence agencies means an added reluctance to admit in parliamentary oversight, which can thus affect not simply one’s own agencies, but also those of one’s allies. In some states the doctrine of parliamentary privilege means that parliamentary committees cannot be security-screened, adding to an already-existing fear of leaks. The other, crucial, factor is that strategic surveillance involves an interference with individual rights. Supervision of such measures has traditionally been a matter for the judiciary. The constitutional principle of separation of powers can make it problematic for a parliamentary body to play such a quasi-judicial role.

23. A decision to use particular selectors, resembles, at least in some ways, a decision to authorize targeted surveillance. As such, it can be taken by a judicial body. As the decision involves considerable policy elements, knowledge of intelligence techniques and foreign policy are also desirable. Finding a group of people who combine all three types of competence is not easy, even for a large state. Thus, it is easier to create a hybrid body of judges and other experts. As regards follow-up (oversight) it is necessary to oversee decisions made by automated systems for deleting irrelevant data, as well as decisions by human analysts to keep the personal information collected, and to transfer it to other domestic and foreign agencies. This type of oversight is of a “data protection” character, most suitably assigned to an independent, expert administrative body. Neither of these types of decision is “political” in nature. What, by contrast, is more “political” is the prior decision taken, that somebody, or something, is of sufficient importance to national security to need intelligence about. This is the type of decision which would benefit from a (closed) discussion in a political body, where different spectrums of opinion are represented. Another type of policy-oriented issue is deciding the general rules regarding who, and under what circumstances, signals intelligence can be exchanged with other signals intelligence organisations. A third is making a general evaluation of the overall effectiveness and efficacy of signals intelligence measures. A fourth role for a political body is to engage in a continuous dialogue with whatever expert oversight body is established.

24. Judicial authorization.
A system of authorization needs to be complemented by some form of follow-up control that conditions are being complied with. This is necessary both because the process of refining selectors is dynamic and highly technical and because judges do not tend to see the results of the signals intelligence operations as these seldom lead to prosecutions. Thus the safeguards applying to a subsequent criminal trial do not become applicable.

25. Accountability to expert bodies.
The boundary line between parliamentary, judicial, and expert bodies is not hard and fast; in some states, oversight bodies are a mixture of the three. Expert bodies have a particular role to play in ensuring that signals intelligence agencies comply with high standards of data protection.

26. Complaints mechanisms.
Under the ECHR, a state must provide an individual with an effective remedy for an alleged violation of his or her rights. Notification that one has been subject to strategic surveillance is not an absolute requirement of Article 8 ECHR. If a state has a general complaints procedure to an independent oversight body, this can compensate for non-notification. There are certain requirements before a remedy can be seen as effective.

27. Concluding remarks.
States should not be content with the minimum standards of the ECHR. Signals intelligence has a very large potential for infringing the right to private life and other human rights. It can be regulated in a lax fashion, meaning that large numbers of people are caught up in a trawl and intelligence on them is retained, or relatively tightly, meaning that the actual infringement with private life and other human rights is kept down. The Swedish and German models have definite advantages over the other models studied from this perspective. In any event it is necessary to regulate the main elements in statute form and to provide for strong mechanisms of oversight. The national legislature must be given a proper opportunity to understand the area and draw the necessary balances.

The Commission’s power of initiative: the CJEU sets important constraints

ORIGINAL PUBLISHED ON EU LAW ANALYSIS 
(On this blog on the same subject see HERE)

by Steve PEERS

As every EU politics or law student learns, a key feature of the Commission’s role as the ‘motor’ of EU integration is its near-monopoly on making proposals for EU action. But does that near-monopoly – which the Commission likes to call its ‘right of initiative’ – imply a corresponding power to withdraw proposals? And if so, are there any constraints on such a power? The CJEU answered these questions in an important judgment today.

Background

The case concerned a proposal for framework legislation on ‘macro-financial assistance’ for non-EU countries. This type of assistance helps out non-EU countries which are in severe economic difficulties, for instance helping them to make an imminent loan payment. It obviously helps the economies of the countries concerned, thus indirectly helping EU companies that export to them; and it undoubtedly cements the political relationship between the EU and those countries.

Before the Treaty of Lisbon, such aid was granted on the basis of the EU’s ‘residual powers’, which are now provided for in Article 352 TFEU. However, that Treaty created a specific ‘legal base’ for the EU to adopt rules on macro-economic support for third states: Article 212 TFEU, which provides for the use of the ‘ordinary legislative procedure’ to adopt legislation on this. The Treaty of Lisbon also created an Article 213 TFEU, which allows assistance to be granted in urgent cases without going through a full legislative process.

In 2011, the Commission proposed ‘framework legislation’ on macro-financial assistance, which would have given it the power to decide on the crucial question of which third countries receive this money. The Commission’s decisions on this issue would be controlled by means of the variant of the ‘comitology’ rules known as the ‘examination procedure’, which gives Member States’ experts’ the power to block draft Commission decisions. There’s no significant role for the European Parliament (EP) in that process.

The Commission’s suggestions did not satisfy the EP or the Council. The EP suggested instead that Commission Decisions on which countries receive macro-financial help be subject to ‘delegated acts’: Commission decisions which can be blocked by either the Council or the EP. For its part, the Council position was that each decision to grant aid to a third country had to be subject to the ordinary legislative procedure. The two institutions began negotiations, and eventually agreed to use the ordinary legislative procedure to this end.

Since the Commission objected to this aspect of the EP/Council deal in principle, it withdrew its proposal before the institutions could adopt the legislation concerned. The Council responded by taking the rare step of suing the Commission. While the Council was supported by ten Member States, the EP did not intervene on either side – despite the huge stakes for that institution.

The judgment

The Court’s judgment started out by accepting that the Commission’s power to make proposals gives it a corollary power to withdraw them. However, that power did not constitute a ‘right of veto’ in the legislative process, since that would upset the principle of institutional balance and conferral of powers. In short, the Commission has the power to withdraw proposals – but that power is constrained.

So how exactly is that power constrained?  The Court ruled that the Commission had to give the EP and the Council its reasons for such withdrawals, which must include ‘cogent evidence or arguments’. Such withdrawal decisions must be subject to judicial review, in the form of actions for annulment. However, it was sufficient to give those reasons to a Council working party and an EP/Council negotiation meeting.

As for the substantive grounds for withdrawing its proposal, the CJEU ruled that the amendment which the EP and Council wanted would have changed an ‘essential element’ of the proposal, and would have been irreconcilable with the ‘objective’ of improving the efficiency of EU policy in this area. Next, the CJEU ruled that there was no infringement of the principle of democracy, since it was inherent in the Commission’s right of initiative that it could withdraw proposals as long as the Council had not yet acted. So the Commission did not infringe the principles of conferral of powers and institutional balance.

Finally, the Court considered a separate issue: whether the manner of the Commission withdrawing its proposal breached the principle of ‘sincere cooperation’ between the EU institutions. On this point, the Court ruled that the Commission could not be criticized for withdrawing its proposal at a very late stage in the Council/EP negotiations, since only then had it become clear that the co-legislators would insist that the ordinary legislative procedure had to be used for the approval of each new macro-financial assistance decision. Moreover, the Commission had attempted to reconcile the position of the other institutions, and had proposed compromises. It seems implicit from the Court’s analysis here that the EP’s position (delegated acts instead of a comitology process) would nothave altered the essential elements of the proposal.

Comments Continue reading “The Commission’s power of initiative: the CJEU sets important constraints”

La Convention européenne des droits de l’Homme à l’Assemblée nationale : quand le ridicule ne tue pas

ORIGINAL PUBLISHED HERE

9 AVRIL 2015
par Henri Labayle, CDRE

Une fois encore, une partie de la classe politique française a su se mettre à la hauteur des enjeux : dans sa participation à la défense des valeurs de la République, au lendemain des attentats terroristes de Paris, rien ne lui est apparu plus légitime qu’une violente charge contre la Convention européenne des droits de l’Homme.

Ainsi, une proposition de résolution de l’Assemblée nationale, déposée le 12 février 2015 (AN n° 2061), invite le Gouvernement rien moins qu’à « renégocier les conditions de saisine et les compétences de la Cour européenne des droits de l’Homme (CEDH) sur les questions touchant notamment à la sécurité nationale et à la lutte contre le terrorisme ».

Son rejet est anecdotique, si son inscription ne l’est pas tout à fait. On en sourirait même, si les signataires du texte ne comptaient pas parmi eux, entre autres, deux anciens secrétaires d’Etat en charge des affaires européennes, un professeur agrégé des facultés de droit et nombre d’avocats attestant finalement que les passerelles que les élus se sont ouvertes vers cette profession sont une bien mauvaise nouvelle pour la justice. Ailleurs, on s’étonnerait de voir des auxiliaires de justice se faire les chantres de l’exclusion du juge. Ici, au Palais Bourbon, pas vraiment … La lecture du compte-rendu de la séance du 2 avril 2015 est, à cet égard, atterrante quand bien même d’autres professionnels du droit, avocats eux aussi, ont su appeler à la raison avec talent et dans le même temps.

Ces manifestations urticantes ne sont pas nouvelles mais, dans le contexte ambiant, il peut être instructif d’aller au delà du jeu politicien en s’interrogeant sur la crédibilité de la mise en cause du juge de Strasbourg. Comment se réclamer des valeurs de la démocratie tout en proposant la mise à l’écart de l’une de ses principales expressions, le droit à la protection juridictionnelle ?

Inutile de prendre plaisir au jeu de l’arroseur arrosé. Celui-ci verra, en pleine séance, l’initiateur de la dite résolution être cité par ses contradicteurs pour ses propos louangeurs à l’égard de la Cour européenne … lorsqu’il était secrétaire d’Etat en charge des affaires européennes. On en restera à deux critiques principales portées par les signataires de la proposition : l’une relative à l’activisme de la Cour européenne, l’autre visant à interdire l’usage du recours individuel aux terroristes.

1. De l’activisme de la Cour européenne des droits de l’Homme

Continue reading “La Convention européenne des droits de l’Homme à l’Assemblée nationale : quand le ridicule ne tue pas”

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 26th 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”