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

ORIGINAL PUBLISHED ON EU LAW BLOG

MARCH 31, 2015

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

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

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

Short historical overview

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

The autonomy of EU law

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Max Schrems

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

Irish Data Protection Commissioner

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

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

ORIGINAL PUBLISHED IN THE EP THINK TANK SITE

by Eva-Maria Alexandrova POPTCHEVA

SUMMARY

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

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

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

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

A Union of values

EU values and national identity

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

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

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

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

Within the Sound of Silence. Dangerous Liaisons between Detention and Citizenship under European Union Law

by Leandro Mancano (*)

Many scholars have recently pointed out the need to revise those European Union (EU) instruments adopted under the former ‘third pillar’. This urgency has only grown after the expiring of the transitional period, occurred 1st December 2014, which resulted in issues of legal uncertainty as to which kind of legal regime is to be applied to such instruments (whether the pre-Lisbon framework, the post Lisbon rules or a ‘middle-way’ solution). In this context, three EU law instruments on detention deserve particular attention: Council Framework Decision (FD) 2009/829/JHA on supervision measures; Council FD 2008/947/JHA on probation measures and alternative sanctions; Council FD 2008/909/JHA on mutual recognition of custodial sentences (also known as FD on the transfer of prisoners).

Firstly, the Commission has rebuked Member States at the outset of 2014, in light of the weak state of implementation of these instruments (1). After one year, such report has been followed by updated information about the state of play of the implementation of these FDs, which testify that many Member States have not fulfilled their obligation of transposition so far (2). This raises concerns especially if one considers that detention has been increasingly playing a major role throughout EU law, establishing a potentially dangerous liaison with EU citizenship.

As shown below, the risky factor lies in the circumstance that many cross references have made between EU criminal law and EU citizenship. However, such connections are surrounded with a sound of silence, as their meaning and outline have not been sufficiently clarified hitherto.

The basic assumption which EU citizenship brings with it is that every Union citizen is entitled to move and reside freely within the Union regardless of their nationality, and without requiring a link to the performance of an economic activity.This can be inferred from primary legislation (in particular Articles 18, 19 and 21 of the Treaty on the Functioning of the EU), as well as Directive 2004/38/EC (also known as ‘Citizenship Directive’). On the one hand, under Article 16 of the Directive Union citizens are granted the right of permanent residence in the host Member State after legally residing therein for a continuous period of five years. On the other, Article 28 states that: those Union citizens (or their family members) who have the right of permanent residence in the host Member State, may be subject to an expulsion measure so long as there are serious grounds of public policy or public security; Union citizens who have resided in the host Member State for ten years may not be expelled from the host Member State, unless imperative grounds of public security, as defined by Member States, justify the measure. The provision also applies to family members who are not nationals of a Member State and have legally resided with the Union citizen in the host Member State for the same timeframe.

The intersections between EU citizenship and detention may be traced back to a threefold track. Continue reading “Within the Sound of Silence. Dangerous Liaisons between Detention and Citizenship under European Union Law”

Another episode of the EU PNR saga: remarks of the national data protection authorities

LETTER SENT BY THE PRESIDENT OF THE ART 29 WORKING PARTY (*) TO THE CHAIRMAN OF THE PARLIAMENTARY COMMITTEE IN CHARGE OF THE EU PNR DRAFT DIRECTIVE (emphasized by me)

Dear Mr Moraes,
Since the terrorist attacks in Paris and Copenhagen, the discussion on the possible introduction of an EU Passenger Name Records system (hereafter: EU PNR) has moved significantly forward, both in the Council and in the European Parliament. In particular, Mr Kirkhope, rapporteur on this issue, has presented an updated report on the Commission’s 2011 draft directive establishing an EU PNR to your Committee.
As stated early last month, the Article 29 Working Party (hereafter: the WP 29) is not in principle either in favour of or opposed to PNR data collection schemes (See press release issued by the Article 29 Working Party on EU PNR on 5 February 2015), as long as they are compliant with the fundamental rights to respect for private life and to the protection of personal data.
However, considering the extent and indiscriminate nature of EU PNR data processing for the fight against terrorism and serious crime, the WP 29 believes that it is likely to seriously undermine the rights as set out in Articles 7 and 8 of the Charter of Fundamental Rights in the European Union.
In this regard, the Working Party acknowledges that there have been some improvements to the initial draft from a data protection perspective. Still, the Working Party wishes to urgently draw your attention to the following outstanding issues to ensure that the aforementioned fundamental rights are respected.
First, the necessity of an EU PNR scheme still has to be justified. Precise argumentation and evidence are still lacking in that respect. Further restrictions should also be made to ensure that the data processing is proportionate to the purpose pursued, in particular considering that the report now includes intra-EU flights in the data processing. Therefore, it is recommended that the data collection is limited with reference to specific criteria in order for the scheme to guarantee respect for individuals’ fundamental rights and to take the CJUE data retention judgment into account. Besides this, the scope of the offences concerned should be further reduced and the retention period shortened and clearly justified.
In addition, a major error in the new Articles 10a and 12(1b) stemming from an apparent misunderstanding of the data protection authority’s role must be rectified in order to set the responsibilities of governments and data controllers.
Finally, the WP29 insists on the necessity to present as soon as possible a detailed evaluation of the efficiency of the PNR scheme. A sunset clause should also be inserted into the directive to assist in ensuring periodic review of the necessity of the system.

All these points will be developed in an appendix of this letter, as well as concrete modifications and improvements proposed to the text by the Working Party. I would be grateful if you would be so kind as to forward this letter to the members of your committee in order for them to take account of these views before the deadline for further amendments to the proposal. Naturally, the Working Party remains at your disposal for any clarification you would require and further input during the discussion on EU PNR.

Yours sincerely,
On behalf of the Article 29 Working Party,
Isabelle FALQUE-PIERROTIN Chairwoman

Appendix :
Demonstrating the necessity and ensuring the proportionality of the EU PNR scheme
Continue reading “Another episode of the EU PNR saga: remarks of the national data protection authorities”

The Proposed Data Protection Regulation: What has the Council agreed so far?

ORIGINAL PUBLISHED ON STATEWATCH

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

13 March 2015

Introduction

Back in January 2012, the Commission proposed a new data protection Regulation that would replace the EU’s existing Directive on the subject. It also proposed a new Directive on data protection in the sphere of law enforcement, which would replace the current ‘Framework Decision’ on that subject.

Over three years later, there has been considerable progress on discussing these proposals. The European Parliament (which has joint decision-making power on both proposals) adopted its positions back in the spring of 2014. For its part, the EU Council (which consists of Member States’ justice ministers) has been adopting its position on the proposed Regulation in several pieces. It has not yet adopted even part of its position on the proposed Directive.

For the benefit of those interested in the details of these developments, the following analysis presents a consolidated text of the five pieces of the proposed Regulation which the Council has agreed to date, including the two parts just agreed in March 2015. This also includes the parts of the preamble which have already been agreed. I have left intact the footnotes appearing in the agreed texts, which set out Member States’ comments.

The underline, italics and bold text indicate changes from the Commission proposal. I have added a short summary of the subject-matter of the Chapters and Articles in the main text which have not yet been agreed by the Council.

For detailed analyses of some parts of the texts agreed so far, see the links to the blog posts. The Council might always change its current position at a later point, and of course the final text of the new legislation will also depend on negotiations between the Council and the European Parliament.

SEE THE CONSOLIDATED TEXT (156 PAGES)

Background documents

‘Public sector’ provisions, agreed by Dec. 2014 JHA Council:

Chapter IV, agreed by Oct. 2014 JHA Council:

Rules on territorial scope, agreed by June 2014 JHA Council:

Rules on ‘one-stop-shop’, agreed by March 2015 JHA Council:

Rules on basic principles, agreed by March 2015 JHA Council:

Proposal from Commission:

Position of European Parliament:

Analysis of agreed territorial scope rules:

Analysis of agreed ‘privacy seals’ rules

Analysis of data protection supervision (one-stop-shop) rules:

Analysis of rules on basic principles

House of Lords recommends to change the Governement’s strategy on the UK’s opt-in.

“The UK’s opt-in Protocol: implications of the Government’s approach”

NOTA BENE : the full report is accessible on the House of Lords website.

SUMMARY

This report focuses on the Government’s approach to the opt-in Protocol, introduced by the Lisbon Treaty, by virtue of which the UK has a right not to participate in EU justice and home affairs (JHA) measures. At issue is whether the opt-in Protocol can be interpreted to mean that it is the content of an EU measure which determines the application of the Protocol, rather than a legal base under the JHA title of the Treaty on the Functioning of the EU (Title V).

We express no view on the desirability or otherwise of the opt-in mechanisms introduced by the Lisbon Treaty. The function of this report is to examine the way in which the Government has sought to interpret those mechanisms.

We examine the Government’s interpretation of the expression “pursuant to [Title V]” in the opt-in Protocol, and conclude that it has an accepted legal meaning, namely that a Title V legal base is required before the opt-in can be triggered. As a consequence, we recommend that the Government reconsider its broader interpretation.

We consider the Government’s approach to determining the legal base of an EU measure with JHA content. We conclude that the distinction it draws between whole, partial, and incidental JHA measures is misconceived. We again recommend it reconsider its approach.

We consider whether the Government’s overall approach to the opt-in Protocol gives rise to legal uncertainty. We draw a distinction between potential and actual legal uncertainty, concluding that the potential of the Government’s policy to create legal uncertainty is considerable. We further conclude that the Government’s approach risks breaching the EU legal duty of “sincere cooperation”.

We then look at how the opt-in Protocol has been interpreted by the EU institutions. The Government believes that the Commission has actively pursued a policy of “legal base shopping”, in order to undermine the UK’s opt-in rights. In one specific case it provides evidence that lends some support to this allegation, in respect of the former Commission. With this partial exception, however, we conclude that there is no persuasive evidence to suggest that the Commission has circumvented the UK’s opt-in rights.

We review the approach of the Court of Justice of the EU (CJEU) to determining the legal base of international agreements and, while recognising the Government’s concerns, conclude that there is no evidence to suggest that the CJEU has sought deliberately to undermine the safeguards in the opt-in Protocol. We conclude that it is highly unlikely that the CJEU will change its established approach to determining legal base, including for measures with JHA content. We recommend that the Government review its litigation strategy in the light of this conclusion.

Finally, we recommend that the Government consider the feasibility of an inter-institutional agreement on the scope of Title V. Continue reading “House of Lords recommends to change the Governement’s strategy on the UK’s opt-in.”

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

by Emilio De Capitani

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

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

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

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

EU Accession to the ECHR: What to Do Next

ORIGINAL PUBLISHED ON VERFASSUNGblog
Fri 13 Mar 2015

by Andrew Duff

Some weeks have passed since the European Court of Justice delivered its startling binding Opinion 2/13 against the accession of the European Union to the European Convention on Human Rights (ECHR). There has already been much academic commentary on the complex Opinion. The European Commission has declared the need for a period of reflection. Mindful of its legal duty under Article 6(2) TEU to achieve the EU’s accession to the Convention, the Commission considers itself still empowered by the Council decision of June 2010 to continue negotiations in due course with the Council of Europe. But the political reaction is muted: some EU member states would like to knock the matter into the long grass; and the European Parliament has not yet found its voice. In truth, nobody can relish the thought of re-opening negotiations at this juncture on the Draft Accession Agreement (DAA) with either Russia or Turkey, both of whose leaders appear to have abandoned the democratic rule of law and turned against Western values.

Yet the Court of Justice (CJEU) raises important issues which the other institutions cannot simply ignore. Its Opinion adds to the already fairly improbable conditions which the Treaties themselves attach to the EU’s accession to the ECHR: Protocol No 8 says that accession shall not affect the ‘specific characteristics of the Union and Union law’, that the competences of the EU and the powers of its institutions shall be preserved, that the situation of member states vis-à-vis the ECHR should not be changed, and further, that no intra-EU dispute should go to the European Court of Human Rights (ECtHR). Article 52 of the Charter says that where its provisions correspond to the ECHR their ‘meaning and scope … shall be the same’; while Article 53 denies that the Charter restricts or adversely affects rights ‘as recognised, in their respective fields of application, by Union law and international law’ – notably the ECHR. Whereas Articles 53 (coincidentally) of both the ECHR and the Charter allow their signatories to offer more extensive protection than the Convention, the CJEU has been anxious to insist that after accession the EU member states should not seek to outpace or undermine the ‘primacy, unity and effectiveness’ of Union law.

Read it again Continue reading “EU Accession to the ECHR: What to Do Next”

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

Original published on VERFASSUNGSblog

by Daniel Halberstam

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

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

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

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

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

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

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

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