Category: 4. European Union citizenship

Why the European Parliament should reject (or substantially amend)  the  Commission’s proposal on EU Information Security (“INFOSEC”). (1) The issue of “classified information”

By Emilio De Capitani

1.Setting the scene of EU legal framework on access to documents and to confidential information before the Lisbon Treaty

To better understand why the Commission “INFOSEC” draft legislative proposal (2022/0084(COD) on information security shall be substantially amended, let’s recall what was before the Lisbon Treaty and of the Charter, the EU legal framework on access to documents, and notably of EU classified information. With the entry into force of the Amsterdam Treaty on May 1999 the EP and the Council have been under the obligation (art.255 TCE) of adopting in two years time new EU rules framing the individual  right of access to documents by establishing at the same time “the general principles and limits of public interests” which may limit such right of access.(emphasis added).

Notwithstanding a rather prudent Commission’s legislative proposal the EP strongly advocated a stronger legal framework for access to documents, for legislative transparency and even for the treatment at EU level of information which, because of their content, should be treated confidentially (so called ,“sensitive” or “classified information”). 

Needless to say  “Sensitive” or “classified information” at Member States level, are deemed to protect “essential interests”  of the State and, by law, are subject to a special parliamentary and judicial oversight regime.[1] As a consequence, at EU level, even after Lisbon, national classified information are considered an essential aspect of national security which “.. remains the sole responsibility of each Member State” (art. 4.2 TEU) and “..no Member State shall be obliged to supply information the disclosure of which it considers contrary to the essential interests of its security;”(art 346.1(a)TFEU.

However, if national classified information is shared at EU level as it is the case for EU internal or external security policies it shall be treated as for any other EU policy by complying with EU rules. Point is on what legal basis these rules should be founded. This issue came to the fore already in 2000 when the newly appointed Council Secretary General Xavier SOLANA negotiated with NATO a first interim agreement on the exchange of classified information. The agreement which mirrored at EU level the NATO Classification standards (“Confidential”, “Secret” and “Top Secret”) was founded  on the Council internal organizational power  but this “administrative” approach was immediately challenged before the Court of Justice by the a Member State (NL) [2]and by the European Parliament itself [3] which considered that the correct legal basis should had been the new legislation on access to documents foreseen by art 255 of TEC which was at the time under negotiation.  The Council, at last, acknowledged that art.255 TEC on access to documents was right legal basis and a specific article (art.9[4]) was inserted in in Regulation 1049/01 implementing art.255 TEC and the EP and NL withdrew their applications before the CJEU[5].

Point is that Art.9 of Regulation 1049/01 still covers only the possible access by EU citizens and such access may be vetoed by the “originator” of the classified information. Unlike national legislation on classified information art.9 didn’t solved, unfortunately, for the lack of time, the issue of the democratic and judicial control by the European Parliament and by the Court of Justice to the EUCI. Art.9(7) of Regulation 1049/01 makes only a generic reference to the fact that “The Commission and the Council shall inform the European Parliament regarding sensitive documents in accordance with arrangements agreed between the institutions.” A transitional and partial solution has then been founded by negotiating Interinstitutional Agreements between the Council and the EP in 2002 [6]and in 2014 [7]and between the European Commission[8] in 2010.

Point is that interinstitutional agreements even if they may be binding (art.295 TFEU) they can only “facilitate” the implementation of EU law which, as described above,  in the case of democratic and judicial control of classified information still does not exists. Not surprisingly, both the Council and the Commission Interinstitutional agreements consider that the “originator” principle should also be binding for the other EU institutions such as the European Parliament  and the Court of Justice.

This situation is clearly unacceptable in an EU deemed to be democratic and bound by the rule of law as it create zones where not only the EU Citizens but also their Representatives may have no access because of “originator’s” veto. As result, in these situations the EU is no more governed by the rule of law but only by the “goodwill” of the former.

To make things even worse the Council established practice is to negotiate with third Countries and international organizations agreements [9]covering the exchange of confidential information by declaring that the other EU Institutions (such as the EP and the Court of Justice)  should be considered “third parties” subject then to the “originator” principle.

Such situation has become kafkianesque with the entry into force of the Lisbon treaty which recognize now at primary law level the EP right to be “fully and timely” informed also on classified information exchanged during the negotiation of an international agreement[10]. Inexplicabily , fourtheen years since the entry into force of the Traty the European Parliament has not yet challenged before the Court of Justice these clearly unlawful agreements.

That Institutional problem kept apart, fact remains that until the presentation of the draft INFOSEC proposal none challenged the idea that in the EU the correct legal basis supporting the treatment also of classified information should be the same of access to documents which after the entry into force of the Lisbon treaty is now art.15.3 of the TFEU[11].

2 Why the Commission choice of art 298 TFEU as the legal basis for the INFOSEC proposal is highly questionable [12]

After the entry into force of the Lisbon Treaty and of the Charter the relation between the fundamental right of access to documents and the corresponding obligation of the EU administration of granting administrative transparency and disclose or not its information/documents has now been strengthened also because of art.52 of the EU Charter.

In an EU bound by the rule of law and by democratic principles,  openness and the fundamental right of access should be the general rule and  “limits” to such rights should be an exception  framed only “by law”. As described above the correct legal basis for such “law” is art.15 of the TFEU which, as the former art.255 TEC, states that  “General principles and limits on grounds of public or private interest..” may limit the right of access and the obligation of disclosing EU internal information / documents. Also from a systemic point of view  “limits” to disclosure and to access are now covered by the same Treaty article which frames (in much stronger words than art 255 before Lisbon) the principles of “good governance”(par 1), of legislative transparency  (par 2) and of administrative transparency (par 3).

Such general “Transparency” rule is worded as following:    “1. In order to promote good governance and ensure the participation of civil society, the Union institutions, bodies, offices and agencies shall conduct their work as openly as possible.(..) Each institution, body, office or agency shall ensure that its proceedings are transparent and shall elaborate in its own Rules of Procedure specific provisions regarding access to its documents, in accordance with the regulations referred to in the second subparagraph.”

Bizarrely, the European Commission has chosen for the INFOSEC regulation art.298 TFEU on an open, independent and efficient EU administration by simply ignoring art.15 TFEU and by making an ambiguous reference to the fact that INFOSEC should be implemented “without prejudice” of the pre-Lisbon Regulation 1049/01 dealing with access to documents and administrative transparency.  How a “prejudice” may not exist when both Regulations are overlapping and INFOSEC Regulation is upgrading the Council Internal Security rules at legislative level is a challenging question.

It is indeed  self evident that both the INFOSEC Regulation and Regulation 1049/01 deal with the authorized/unauthorised “disclosure” of EU internal information/documents.

Such overlapping of the two Regulations is even more striking for the treatment  EU Classified information (EUCI) as these information are covered both by art. 9 of Regulation 1049/01 and now  by articles 18 to 58 and annexes II to VI of the INFOSEC Regulation.

As described above, Art 255 TCE has since Lisbon been replaced and strengthened by art 15 TFEU so that the Commission proposal of replacing it with art.298 TFEU looks like a “detournement de procedure” which may be challenged before the Court for almost the same reasons already raised in 2000 by the EP and by NL.  It would then been sensible to relaunch the negotiations on the revision of Regulation 1049 in the new post-Lisbon perspective but the Commission has decided this year to withdraw the relevant legislative procedure. Submitting a legislative proposal such INFOSEC promoting overall confidentiality and withdrawing at the same time a legislative proposal promoting transparency seems a rather Commission’s strong message to the public.

3 Does the INFOSEC proposal grant a true security for EU internal information?

Point is that European administrative transparency is now a fundamental right of the individual enshrined in the Charter (Article 42).The protection of administrative data is one of the aspects of the “duty” of good administration enshrined in Article 41 of the Charter which stipulates that every person has the right of access to their file, “with due regard for the legitimate interests of confidentiality and professional and business secrecy.”  

However Art.298 TFEU is not the legal basis framing professional secrecy. It is only a provision on the functioning of the institutions and bodies which, “in carrying out their tasks … [must be based] on an “open” European administration”[13] and is not an article intended to ensure the protection of administrative documents.

This objective is better served by other legal basis of the Treaties.

First of all, protecting the archives of EU institutions and bodies from outside interference is, even before being a legitimate interest, an imperative condition laid down by the Treatiesand the related 1965 Protocol on the Privileges and Immunities of the Union adopted on the basis of the current Article 343 TFEU. Articles 1 and 2 of that Protocol stipulate that the premises and buildings of the Union, as well as its archives, “shall be inviolable.”

Furthermore, in order to ensure that, in the performance of their duties, officials are obliged to protect the documents of their institutions, Article 17 of the Staff Regulations stipulates that

1. Officials shall refrain from any unauthorized disclosure of information coming to their knowledge in the course of their duties, unless such information has already been made public or is accessible to the public.

Again, (as for Regulation 1049/01), the INFOSEC regulation  reinstate that it should be applied “without prejudice” of the Staff Regulation by so mirroring the second paragraph of art.298 TFEU which states that itself states that it should be implemented  “in accordance with the Staff Regulations and the rules adopted on the basis of Article 336.” So, also from this second perspective, the correct legal basis for INFOSEC could be the Article 339 (on professional secrecy) and 336 TFEU, with the consequent amendment of the Staff Regulations by means of a legislative regulation of the Parliament and the Council.

By proposing a legislative regulation on the basis of Article 298, the Commission therefore circumvents both the obligation imposed by Article  336, art 339 (on professional secrecy)  and, more importantly  of Article 15(3) TFEU, according to which each institution or body “..shall ensure (i.e., must ensure) the transparency of its proceedings [and therefore also their protection from external interference] and shall lay down in its rules of procedure specific provisions concerning access to its documents [and therefore also concerning their protection], in accordance with the regulations referred to in the second subparagraph.”(NDR currently Regulation 1049/01)

The objectives set out in Article 298 cannot therefore override the requirements of protecting the fundamental right of access to documents, nor those of Article 15 TFEU which could be considered the “center of gravity”when several legal basis are competing [14].

The same applies to compliance with the regulation establishing the Statute and, in particular, compliance with Article 17 thereof, cited above.

Ultimately, the provisions on the legislative procedure for Union legislative acts are not at the disposal of the Commission, given that administrative transparency is a fundamental right and the protection of documents is a corollary thereof and not a means of functioning of the institutions. Administrative transparency is a fundamental right of every person; the protection of administrative data is a legitimate interest of every administration.

A ”public” interest that can certainly limit the right of access, but only under the conditions established by the legislator of art 15 TFEU and only by the latter.

4. Conclusions

If a recommendation may be made now to the co-legislators is to avoid illusionary shortcuts such as the current Commission proposal whose real impact on the EU administrative “bubble” is far to be clear[15] . The EU Legislator, since the entry into force of the Lisbon Treaty more than fourteen years ago is faced to much more pressing problems.

What is mostly needed is not inventing several layers of illusionary “protection” of the EU information but framing the administrative procedures by law as suggested several times by the European Parliament and by the multiannual endeavor of brilliant scholars focusing on the EU Administrative law[16].

What matters is that the management and the access to EU information should be framed by law and not depend from the goodwill of the administrative author or the receiver as proposed by the INFOSEC Regulation. Nor information security is strengthened transforming each one of the 64 EU “entities” covered by the INFOSEC Regulation [17] in sand-boxes where the information is shared only with the people who, according to the “originator” has a “need to know” and not a “right to know”.

Moreover the EU should limit and not generalize the power for each one of the 64 EU entities of create “classified” information (EUCI). In this perspective art.9 of Regulation 1049/01 needs indeed a true revision but in view of the new EU Constitutional framework and of the new institutional balance arising from the Lisbon treaty and of the Charter.

Fourtheen years after Lisbon the democratic oversight of the European Parliament and the judicial control of the Court of Justice on classified documents , shall be granted by EU law as it is the case in most of the EU Countriesand not by interinstitutional agreements which maintain the “Originator” against these institutions in violation of the rule of law principle as well as of the EU institutional balance.

Could still be acceptable fourteen years after the entry into force of the Lisbon Treaty that the European Parliament and the Court of justice are not taken in account in the dozens of international agreements by which the Council frame the exchange of EUCI with third countries and international organizations?

Instead of dealing with these fundamental issues the European Commission in its 67 pages proposal makes no reference to 24 years of experience in the treatment of classified information and prefer dragging the co-legislators in Kafkian debates dealing with “sensitive but not classified information”  or on the strange idea by which documents should marked “public” by purpose and not by their nature (by so crossing the line separating public transparency from public propaganda).

But all that been said, it is not the Commission which will be responsible before the Citizens (and the European Court) for badly drafted legislation. It will be the European Parliament and the Council which shall now take their responsibility. They can’t hide behind the Commission unwillingness to deal with substantive issues (as well as with other aspects of legislative and administrative transparency) ; if the Council also prefer maintain the things as they were before Lisbon it is up to the European Parliament to take the lead and establish a frank discussion with the other co-legislator and verify if there is the will of fixing the real growing shortcomings in the EU administrative “Bubble”.

Continuing with the negotiations on the current version of the INFOSEC proposal notably on the complex issue of classified information paves the way to even bigger problems which (better soon than later) risk to  be brought as in 2000 on the CJEU table.

[1] According to the Venice Commission “.. at International and national level access to classified documents is restricted by law to a particular group of persons. A formal security clearance is required to handle classified documents or access classified data. Such restrictions on the fundamental right of access to information are permissible only when disclosure will result in substantial harm to a protected interest and the resulting harm is greater than the public interest in disclosure.  Danger is that if authorities engage in human rights violations and declare those activities state secrets and thus avoid any judicial oversight and accountability. Giving bureaucrats new powers to classify even more information will have a chilling effect on freedom of information – the touchstone freedom for all other rights and democracy – and it may also hinder the strive towards transparent and democratic governance as foreseen since Lisbon by art.15.1 of TFEU (emphasis added) The basic fear is that secrecy bills will be abused by authorities and that they lead to wide classification of information which ought to be publicly accessible for the sake of democratic accountability.  Unreasonable secrecy is thus seen as acting against national security as “it shields incompetence and inaction, at a time that competence and action are both badly needed”. (…) Authorities must provide reasons for any refusal to provide access to information.  The ways the laws are crafted and applied must be in a manner that conforms to the strict requirements provided for in the restriction clauses of the freedom of information provisions in the ECHR and the ICCPR.” 

[2] Action brought on 9 October 2000 by the Kingdom of the Netherlands against the Council of the European Union (Case C-369/00) (2000/C 316/37)

[3] Action brought on 23 October 2000 by the European Parliament against the Council of the European Union (Case C-387/00) (2000/C 355/31) LINK chrome-extension://efaidnbmnnnibpcajpcglclefindmkaj/https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:C2000/355/31

[4] Regulation 1049/01 Article 9”Treatment of sensitive documents

1. Sensitive documents are documents originating from the institutions or the agencies established by them, from Member States, third countries or International Organisations, classified as “TRÈS SECRET/TOP SECRET”, “SECRET” or “CONFIDENTIEL” in accordance with the rules of the institution concerned, which protect essential interests of the European Union or of one or more of its Member States in the areas covered by Article 4(1)(a), notably public security, defence and military matters.

2. Applications for access to sensitive documents under the procedures laid down in Articles 7 and 8 shall be handled only by those persons who have a right to acquaint themselves with those documents. These persons shall also, without prejudice to Article 11(2), assess which references to sensitive documents could be made in the public register.

3. Sensitive documents shall be recorded in the register or released only with the consent of the originator.

4. An institution which decides to refuse access to a sensitive document shall give the reasons for its decision in a manner which does not harm the interests protected in Article 4.

5. Member States shall take appropriate measures to ensure that when handling applications for sensitive documents the principles in this Article and Article 4 are respected.

6. The rules of the institutions concerning sensitive documents shall be made public.

7. The Commission and the Council shall inform the European Parliament regarding sensitive documents in accordance with arrangements agreed between the institutions.

[5] Notice for the OJ.Removal from the register of Case C-387/001By order of 22 March 2002 the President of the Court of Justice of the European Communities ordered the removal from the register of Case C-387/00: European Parliament v Council of the European Union. OJ C 355 of 09.12.2000.

[6] Interinstitutional Agreement of 20 November 2002 between the European Parliament and the Council concerning access by the European Parliament to sensitive information of the Council in the field of security and defence policy (OJ C 298, 30.11.2002, p. 1).

[7] According to the Interinstitutional Agreement of 12 March 2014 between the European Parliament and the Council concerning the forwarding to and handling by the European Parliament of classified information held by the Council on matters other than those in the area of the common foreign and security policy (OJ C 95, 1.4.2014, pp. 1–7) “4.   The Council may grant the European Parliament access to classified information which originates in other Union institutions, bodies, offices or agencies, or in Member States, third States or international organisations only with the prior written consent of the originator.”

[8] According to annex III point 5 of the Framework Agreement on relations between the European Parliament and the European Commission (OJ L 304, 20.11.2010, pp. 47–62) In the case of international agreements the conclusion of which requires Parliament’s consent, the Commission shall provide to Parliament during the negotiation process all relevant information that it also provides to the Council (or to the special committee appointed by the Council). This shall include draft amendments to adopted negotiating directives, draft negotiating texts, agreed articles, the agreed date for initialling the agreement and the text of the agreement to be initialled. The Commission shall also transmit to Parliament, as it does to the Council (or to the special committee appointed by the Council), any relevant documents received from third parties, subject to the originator’s consent. The Commission shall keep the responsible parliamentary committee informed about developments in the negotiations and, in particular, explain how Parliament’s views have been taken into account.”

[9] SEE : Agreements on the security of classified information Link : https://eur-lex.europa.eu/EN/legal-content/summary/agreements-on-the-security-of-classified-information.html

[10] Article 218.10 TFUE states clearly that “The European Parliament shall be immediately and fully informed at all stages of the procedure” when the EU is negotiating international agreements even when the agreements “relates exclusively or principally to the common foreign and security policy,” (art.218.3 TFUE).

[11] Interestingly reference to art.15 of the TFEU is also made in the EP-Council 2014 Interinstitutional Agreement on access to classified information (not dealing with External Defence) See point 15 :  This Agreement is without prejudice to existing and future rules on access to documents adopted in accordance with Article 15(3) TFEU; rules on the protection of personal data adopted in accordance with Article 16(2) TFEU; rules on the European Parliament’s right of inquiry adopted in accordance with third paragraph of Article 226 TFEU; and relevant provisions relating to the European Anti-Fraud Office (OLAF)

[12] However this legal basis was fit for another legislative proposal, of a more technical nature, which  has now become EU Regulation 2023/2841 layng  down measures for a high common level of cybersecurity for the institutions, bodies, offices and agencies of the Union. This Regulation apply at EU administrative level the principles established for the EU Member States by Directive (EU) 2022/2555 (2)  improving the cyber resilience and incident response capacities of public and private entities. It created an Interinstitutional Cybersecurity Board ( IICB) and a Computer Emergency Response Team (CERT) which operationalizes the standards defined by the IICB and interact with the other EU Agencies (such as the EU Agency dealing with informatic security, Enisa), the corresponding structures in the EU Member States and even the NATO structures. It may be too early to evaluate if the Regulation is fit for its purpose ([12]) but the general impression is that its new common and cooperative system of alert and mutual support between the EU Institutions, Agencies and bodies may comply with the letter and spirit of art.298 of the TFEU

[13] Quite bizarrely this “open” attribute is not cited in the INFOSEC proposal and, even more strangely, none of the EU institutions has until now consulted the EU Ombudsman and/or the Fundamental Rights Agency.

[14] See Case C-338/01 Commission of the European Communities v Council of the European Union(Directive 2001/44/EC – Choice of legal basis)“The choice of the legal basis for a Community measure must rest on objective factors amenable to judicial review, which include in particular the aim and the content of the measure. If examination of a Community measure reveals that it pursues a twofold purpose or that it has a twofold component and if one of these is identifiable as the main or predominant purpose or component whereas the other is merely incidental, the act must be based on a single legal basis, namely that required by the main or predominant purpose or component. By way of exception, if it is established that the measure simultaneously pursues several objectives which are inseparably linked without one being secondary and indirect in relation to the other, the measure must be founded on the corresponding legal bases…”

[15]  Suffice to cite the following legal disclaimer :”This Regulation is without prejudice to Regulation (Euratom) No 3/1958 17 , Regulation No 31 (EEC), 11 (EAEC), laying down the Staff Regulations of Officials and the Conditions of Employment of other servants of the European Economic Community and the European Atomic Energy Community 18 , Regulation (EC) 1049/2001 of the European Parliament and of the Council 19 , Regulation (EU) 2018/1725 of the European Parliament and of the Council 20 , Council Regulation (EEC, EURATOM) No 354/83 21 , Regulation (EU, Euratom) 2018/1046 of the European Parliament and of the Council 22 , Regulation (EU) 2021/697 of the European Parliament and of the Council 23 , Regulation (EU) [2023/2841] of the European Parliament and of the Council 24 laying down measures for a high common level of cybersecurity at the institutions, bodies, offices and agencies of the Union.

[16]  See ReNEUAL Model Rules on EU Administrative Procedure. ReNEUAL working groups have developed a set of model rules designed as a draft proposal for  binding legislation identifying – on the basis of comparative research – best practices in different specific policies of the EU, in order to reinforce general principles of EU law

https://www.reneual.eu/projects-and-publications/reneual-1-0

[17] The Council has listed not less than 64 EU entities (EU Institutions Agencies and Bodies – EUIBAs) in document WK8535/2023

EU Transparency and participative democracy in the EU institutions after Lisbon :“Everything must change for everything to remain the same”?

by Emilio DE CAPITANI *[1]

Foreword

In a famous Italian novel “The Leopard” which describes a key moment of regime change in Sicily a young protagonist, Tancredi, addresses the old Prince of Salina, suggesting as the best strategy in order to maintain the old privileges to adapt, at least apparently, to the new situation.

This seems to be also the strategy chosen by the European institutions after the entry into force of the Treaty of Lisbon when dealing with openness and  transparency of their decision-making process.

This Treaty marks a radical change from the previous situation, notably because it make visible and strengthens the interrelation between the principles of the Rule of law, democracy, mutual trust and transparency in the EU. This relation was already implicit before the Treaty but has become more evident at primary law level with the definition of the EU funding values (art 2 TEU), the binding nature of the EU Charter of fundamental rights and the establishment in the Treaties of clear legal basis transforming these principles in reality within the EU institutional framework and in relation with the EU Member States.

Under this perspective several articles of the EU Charter become relevant when dealing with principles of openness and transparency in the EU such the art.11 on Freedom of expression and information and articles 41 and 42 on the right to good administration and of access to EU documents. These rights should be granted and promoted not only by the EU Institutions Agencies and bodies but also by the Member states when implementing EU law. If a decision making process should be transparent at EU level the same transparency should be granted when EU measures are transposed at national level [2].

Openness and Transparency as corollaries of EU democracy

Furthermore the Lisbon Treaty has also endorsed several ambitious institutional innovations negotiated at the time of the draft Constitutional Treaty and which have now a direct or indirect impact on EU notions of rule of law, mutual trust, democracy and transparency. 

First of all, the Treaty makes clear the democratic nature of the EU not only by strengthening representative democracy (“The functioning of the Union shall be founded on representative democracy.” Art.10.1 TEU) but also by recognizing the principle of participative democracy [3] (“Every citizen shall have the right to participate in the democratic life of the Union. Decisions shall be taken as openly and as closely as possible to the citizen”  art.10.3 TEU).

Participative democracy is further strengthened by recognizing the role of Civil Society in art.11 TEU according to which “1. The institutions shall, by appropriate means, give citizens and representative associations the opportunity to make known and publicly exchange their views in all areas of Union action. 2. The institutions shall maintain an open, transparent and regular dialogue with representative associations and civil society.”. 

Moreover, the Lisbon treaty confirms the principle of openness when it states that “(EU) decisions are taken as openly as possible and as closely as possible to the citizen.”(art 1, 2nd  Alinea TEU). This provision was already present before Lisbon, but since then the notion of what could be considered “possible” has evolved both from a technical and political point of view. From a technical perspective, in the last twenty years the digital transformation has already triggered also at EU level the notion of e-government[4], of re-use of public data [5]. In a Google era  efficient communication techniques that involve and empower citizens make now possible involving citizens in public decision-making processes.[6]

From a political perspective the new Treaty emphasizes that “In all its activities, the Union shall observe the principle of the equality of its citizens, who shall receive equal attention from its institutions, bodies, offices and agencies.” (art.9 TEU). When translated in transparency policies this principle requires that, when in public domain, information should be accessible by means and procedures which should not be directly or indirectly discriminatory [7].

(EU) Preaching  “Transparency by design…

The Lisbon Treaty not only proclaimed the democratic principles on which the EU is founded and should be promoted (art 9-12 TEU) but confirmed the principle of openness and of participative democracy according to which ‘(EU) decisions are taken as openly as possible and as closely as possible to the citizens’ (art.1.2 TEU) and “[e]very citizen shall have the right to participate in the democratic life of the Union. Decisions shall be taken as openly and as closely as possible to the citizen.”(art.10.3 TEU).

Moreover, EU Legislative acts [8] are now defined at primary law level (art.289 TFEU) and the obligation of granting ‘Legislative transparency’ is now foreseen by Article 15(2) TFEU according to which “The European Parliament shall meet in public, as shall the Council when considering and voting on a draft legislative act.” As a consequence, granting legislative transparency has become a self-standing constitutional obligation which cannot be jeopardized by measures of EU secondary law or even more, by internal practices of the EU institutions. In other words, the mandatory principle of ‘legislative transparency’ established by Article 15(2) TFEU and 16.8 TEU should no more, be mixed with the ‘transparency on demand’ approach of the “pre-Lisbon” era when the scope of legislative transparency was often linked to the aleatory condition that a citizen may ask or not access to a legislative preparatory document.

…but framing  “confidentiality by design”.

Unfortunately, even today, fifteen years since the entry into force of the Lisbon Treaty legislative preparatory documents made proactively public by the EU legislators following art.15.2 TFEU are still a fraction of the documents prepared and debated by the Commission, the Council and, even by the European Parliament along a legislative procedure.

The Council is the most appalling case of hiding legislative preparatory documents.

Even today, the Council’ internal Rules of procedures [9]consider that confidentiality should be the rule and transparency the exception. According to Council Internal Guidelines transparency of Council meetings when debating legislative procedures (as required by Article 16(8) TEU) is required only for “formal” Meetings at ministerial level. By so doing, citizen’s access is excluded not only from the “informal” Ministerial meetings but also from all the Coreper and working parties meetings no matter if, in a more general perspective, the Council is a single legal entity and preparatory bodies should not be considered apart).[10] As a proof that the main Council inspiration is “confidentiality by design” instead of “transparency by design” is the Council reorganization operational since 2015 of its internal document management[11]. Its 130/150 internal working parties have been transformed into ‘virtual communities’, which are de facto also virtual ‘sandboxes’ where working (WK) documents covering also legislative preparatory works (also at ‘trilogue level’) are shared only between the Community members [12].

By doing so the Council of the European Union is, since years preventing, routinely, access and democratic participation of EU citizens and of civil society, and is making unduly difficult the work of journalists, preventing the National Parliaments from checking the respect of the principle of subsidiarity and, last but not least, hiding essential information to the other co-legislator, the European Parliament.

The EU “Catch 22” how promoting confidentiality to protect ..transparency

To justify this behavior the Council still today refer to the exceptions set in art.4 and 9 of the pre-Lisbon Regulation 1049/2001 , and notably to the need of ‘protecting its decision making process’ as foreseen by art.4.3 of that Regulation. According to this principle “Access to a document, drawn up by an institution for internal use or received by an institution, which relates to a matter where the decision has not been taken by the institution, shall be refused if disclosure of the document would seriously undermine the institution’s decision-making process, unless there is an overriding public interest in disclosure”. Suffice to note that, if transposed to legislative preparatory works this principle may justify, for instance, the confidentiality of the work of the Parliamentary committees but this will clash with the provisions of art. 15.2 TFEU imposing the publicity of meetings of the EP and of the Council when acting as legislators (and this voer also the preparatory bodies as the EP and the Council have a single institutional identity). Moreover such use of a generic exception by an institution in its own interest will clash with the interinstitutional nature of the EU legislative process as described by art 294 of the TFEU.

To overcome the clash between the current provisions of the treaty and the exception described in  art.4.3 of the pre-Lisbon Regulation 1049/01 there are then only two possibilities: either you consider that this exception is not relevant for legislative procedures or you consider that when legislation is at stake the “overriding public interest” is directly foreseen by the treaty and no exception can be raised. Behaving like the Council does when acting as legislator, create a “Catch 22” situation  where confidential is invoked to “protect” a procedure which should be …transparent.

Needless to say this Council behavior has been denounced in several occasions, not only by the other co-legislator, the EP, but also by the EU Ombudsman not to speak of the Court of Justice. The latter with several rulings has framed in stricter terms the scope of Regulation 1049/01 exceptions even before the entry into force of the Lisbon treaty and of art.15.2 TFEU. It is then quite appalling that the impact on the Council practice of the EP pressure, of the Ombudsman recommendations of  the CJUE jurisprudence has been very limited and anecdotical. [14]

To overcome all these legal inconsistencies the European Parliament voted on December 15th , 2011[15] several ambitious amendments aligning Regulation 1049/2001 to the post-Lisbon new Constitutional framework.  The EP Plenary not only considered that legislative debates should not be covered by the pre-Lisbon exceptions listed in art. 4, but voted also a legislative framework for classified documents (art. 9) and paved the way for the implementation of the principle of good administration by EU institutions, agencies and bodies. In the same perspective it also adopted two legislative proposals on framing the principle of good administration by the EU institutions, Agencies and bodies [16]   

Unfortunately, the EP position on the alignment of Regulation 1049/01 with the Lisbon treaty, is , since thirteen years still formally pending, and has not been endorsed by the European Commission nor by the EU Council so that the EU and its citizens are still confronted with a secondary law (Regulation 1049/2001) and a wide practice of the EU institutions, agencies and bodies not complying with the new post-Lisbon constitutional framework.

In a quite opposite direction from the EP recommendation on the revision of Regulation 1049/01 and on the establishment of an EU code on good administration founded on art 298 TFUE (open, independent and efficient EU Public administration) the European Commission submitted in 2022 on the same legal basis (and without consulting the EU Ombudsman) a legislative proposal[17] dealing with information security in the institutions, bodies, offices and agencies of the Union.

The so called ‘INFOSEC’ Proposal, if adopted as it stands, may even pave the way for the transformation of the ‘EU Bubble’ into a sort of (administrative) fortress and substitute the principle of ‘transparency by design’ arising from art. 1.2 TEU with the principle of ‘confidentiality by design’[18] of all EU Institutions, Agencies and Bodies. It does so by redefining the conditions of treatment, access and sharing of all kinds of information/documents treated by the EU institutions, agencies and bodies by so overlapping and turning upside down Regulation 1049/2001 and the letter and spirit of the Treaty.

If the principle of Regulation 1049/2001 is to frame the right to know of EU citizens by granting that everything is public unless a specific exception is applicable, the logic of the new Commission proposal is that almost all internal documents should be protected and shared only with people with a recognised ‘need to know’ unless the document is marked as ‘public’. This will generalise to all the EU Institutions, Agencies and bodies the current Council practice of limiting the access internal documents in clear clash with art. 1 of the TEU which requires that the EU Institutions should act as openly as possible and the art.298 TFEU requiring that the EU administration should be not only indipendent and efficient but also “open”.

With the new proposed legal regime, the Commission, by endorsing and widening in a legislative measure the current Council internal security rules, is proposing to go back to the pre-Maastricht era when it was up to the EU institutions to decide whether or not to give access to their internal documents [19]. But since the Amsterdam Treaty (Article 255 TCE) and, even more, since the Lisbon Treaty, this practice is no longer compatible within an EU that is bound by the rule of law.

The core of the proposed INFOSEC Regulation is the creation and management of EU classified information (EUCI). By doing so, it substantially amends Article 9 of Regulation 1049/2001, which deals with so-called ‘sensitive documents’. It does not regulate how the information should be classified and declassified in the interests of the EU, as opposed to the interests of the originator (whether that be a member State, EU institution, agency or body). It is worth recalling that Article 9 of Regulation 1049/2001 recognises the so-called ‘originator privilege’ only in the domain of ‘sensitive’ documents and information mainly covered by the EU external defence policy (former Second “Pillar”). As such it is an exception to the general philosophy of Regulation 1049/2001 according to which the EU institutions may only be bound by law and not by the will of an ‘author’, even if it were an EU Member State. [20]

How the EP risks slowly turning to intergovernamental practices

The EP has been, since its first direct election, the most supportive institution of the transparency of the EU decision making process both in the interest of the EU citizens and its own constitutional role. For decades it has challenged the Council and Commission reluctance when sharing the relevant information on what was happening on the ground inside or outside the EU. The Court of Justice has recognised in several cases that the EP’s right to relevant information is explicitly recognised by the Treaty notably for international agreements (Article 218 (10) TFEU).

Unfortunately, instead of pushing the Council towards an open ‘parliamentary’ approach to legislation, the EP has followed the Council ‘diplomatic’ approach notably in the crucial phase of inter-institutional negotiations (‘trilogues’) even when, as is normally the case, these negotiations take place in the first parliamentary ‘reading’.

Although the CJEU considers the documents shared within the trilogues meetings as ‘legislative’[21], the European Parliament still publish these documents only since March 2023 but only after specific requests for access by EU citizens and after a consistent delay so that the information becomes available when the agreements have been reached.

This practice does not fit with Article 15(2) TFEU nor with the CJEU jurisprudence according to which ‘[i]n a system based on the principle of democratic legitimacy, co-legislators must be answerable for their actions to the public and if citizens are to be able to exercise their democratic rights they must be in a position to follow in detail the decision-making process within the institutions taking part in the legislative procedures and to have access to all relevant information.’[22]

[1] Affiliate to the Scuola Superiore S.Anna (Pisa)

[2] In this perspective it is quite bizarre that the Council evoke the notion of sincere cooperation by the Member States in order not to debate publicly at national level the EU legislative preparatory documents (coded as LIMITE) notably through the National Parliaments

[3] This emphasis for participative democracy is now also echoed at UN level by the 2030 Agenda for Sustainable Development whose Goal 16 foresees notably, to “Develop effective, accountable and transparent institutions at all levels”(16.6) Ensure responsive, inclusive, participatory and representative decision-making at all levels (16.7) 16.10 Ensure public access to information and protect fundamental freedoms, in accordance with national legislation and international agreements (16.10)

[4] See the European Commission communication  https://commission.europa.eu/business-economy-euro/egovernment_en

[5] See the Directive (EU) 2019/1024 of the European Parliament and of the Council of 20 June 2019 on open data and the re-use of public sector information which maybe a clear reference also for comparable initiatives of the EU Institutions, agencies and bodies.

[6] See the recent Council Conclusions on the EU’s ambition to play a leading role globally in the digital transformation and digital governance that respects, promotes and protects universal human rights, democracy and sustainable development, and puts people and their universal human rights at the centre, in line with the international law and the EU Declaration on Digital Rights and Principles. (Doc 9957/24 of 21st of May 2024)

[7] This issue is relevant not only in cases of proactive publication but also when an information is disclosed following a Citizen’s request. If the information/document deals with legislative procedures it should be accessible in the public domain to everyone without further request for access.

[8] It should be noted that the concept of draft legislative act and legislative acts referred to in Article 15(2) TFEU does not correspond to the concept of legislative documents and legislative procedures referred to in the Pre-Lisbon Regulation 1049/01. While Article 15(2) TFEU refers to the projects and legislative acts defined in Article 289 TFEU (i.e. the joint adoption of legislative acts by the Council and the European Parliament), the Regulation, which pre-dates the entry into force of Article 289 TFEU, refers to “documents drawn up or received in the course of procedures for the adoption of acts which are legally binding”.2 Now, according for instance to the new Article 290 TFEU, Commission delegated acts which were “legislative” before Lisbon are now “non-legislative acts” (see also Article 16.8 TEU as to the “non-legislative activities” of the Council

[9] Council Decision of 1 December 2009 adopting the Council’s Rules of Procedure Link : https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex:32009D0937

[10] Indeed, Article 5(1) of the Council Rules of Procedure (CRP) provides that, unless deliberating or voting on legislative acts, Council meetings must not be public, and Article 6(1) CRP stipulates that ‘Without prejudice to Articles 7, 8 and 9 and to provisions on public access to documents, the deliberations of the Council shall be covered by the obligation of professional secrecy …’, but on page 54 of its commentary on the CRP it is notably stated explicitly that : This rule also applies to the preparatory work for Council meetings, that is, all the Council’s preparatory bodies (Coreper, committees and working parties). However, legislative work in preparatory bodies is not public.”(emphasis added)

[11] See the Council public document 7385/16 of 2 May 2016, “Delegates Portal: a new Community Approach to document distribution”. The reorganization of the internal production/diffusion of Council internal documents has been endorsed by the Coreper in public document 6704/13 CIS 5 work on COCOON (Council Collaboration Online)”. The system has been generalised to all Working Parties in 2015. See https://data.consilium.europa.eu/doc/document/ST-7385-2016-INIT/en/pdf.

[12] Meijers Committee, ‘Working Documents’ in the Council of the EU cause a worrying increase in secrecy in the legislative process, CM2107 June 2021 https://www.commissie-meijers.nl/wp-content/uploads/2021/09/2107_en.pdf.

101See (2022/0084(COD) https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A52022PC0119.

[13] Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access

to European Parliament, Council and Commission documents.

[14] European Ombudsman openly stated for the first time in a recent decision of March 2024 that EU institutions are not giving effect to case law on public access to legislative documents. See European Ombudsman, Case OI/4/2023/MIK, ‘How the European Parliament, the Council of the EU and the European Commission deal with requests for public access to legislative documents’, https://www.ombudsman.europa.eu/en/case/en/64321.. Cited by the EP Study “Regulation 1049/2001 on the right of access to documents, including the digital context” https://www.europarl.europa.eu/RegData/etudes/STUD/2024/762890/IPOL_STU(2024)762890_EN.pdf

[15] See Legislative Procedure 2008/0090(COD).Link https://oeil.secure.europarl.europa.eu/oeil/popups/ficheprocedure.do?lang=en&reference=2008/0090(COD)

[16] With the aim of guaranteeing the right to good administration and ensuring an open, efficient and independent EU civil service, on 15 January 2013 the European Parliament adopted a first resolution (Rapporteur Luigi Berlinguer SD Italy) presenting detailed recommendations to the Commission on a Law of Administrative Procedure of the EU under the new legal basis of Article 298 of the Treaty on the Functioning of the European Union (TFEU). A second resolution for an open, efficient and independent European Union administration (rapporteur: Haidi Hautala, Greens/EFA, Finland) in June 2016 (2016/2610(RSP)).

[17] See Legislative Procedure 2022/0084(COD) Proposal for a Regulation of the European Parliament and of the Council on information security in the institutions, bodies, offices and agencies of the Union Link : https://oeil.secure.europarl.europa.eu/oeil/popups/ficheprocedure.do?reference=2022/0084(COD)&l=en

[18] In principle, the objective as announced in the title of the proposal is legitimate: granting a comparable level of protection in all the EU institutions, agencies and bodies, for information and documents, which, according to the law, should be protected. To do so a wide inter-institutional coordination group is proposed, as well as a network of security officials in all the EU entities and a securitised informatic network (TEMPEST) is foreseen.

[19] By replacing the ‘right to know’ foreseen at the Treaty with the a ‘need to know’ mechanism the proposed Regulation

turn upside down the EU openness and transparency principle.

[20] What the INFOSEC proposal does is transform the exception of the ‘originator principle’ in a rule against the provision of Regulation 1049/2001. It does not foresee judicial oversight of classified information. It does not solve the problem of the sharing of ‘sensitive information’ between entities that have a legitimate “need to know”. Last but not least, it threatens the EP oversight role of EU security agreements with third countries and international organisations on the exchange of classified information.

[21] See Case T-540/15 De Capitani v European Parliament

[22] Case T-163/21 De Capitani v Council EU:T:2023:15.

The EU and the Spanish Constitutional Crisis

ORIGINAL PUBLISHED ON EU LAW ANALYSIS 

by Cecilia Rizcallah, (Research Fellow at the Belgian National Fund for Scientific Research affiliated both to Université Saint-Louis Bruxelles and Université libre de Bruxelles)

Background

Spain is facing, since more than a month now, a constitutional crisis because of pro-independence claims in Catalonia. These claims resulted in the holding of an independence referendum on 1 October 2017, organized by the Spanish autonomous community of Catalonia’s authorities, led by its President Mr. Carles Puigdemont. According to Barcelona, 90% of the participants voted in favor of Catalonia’s independency on a turnout of 43%.

Several weeks before the holding of the referendum, the Spanish Constitutional Court held that such plebiscite was contrary to the Spanish Constitution, and it was therefore declared void by the same Court. The Spanish central Government moreover firmly condemned this act and suspended Catalonia’s autonomy, on the basis of Article 155 of the Spanish Constitution which allows the central Government to adopt “the necessary measures to compel regional authorities to obey the law” and, thereby, to intervene in the running of Catalonia.

EU’s Incompetency in Member States’ Internal Constitutional Affairs

During these events, a contributor to the New York Times wondered “Where is the European Union?”. The Guardian stated “As Catalonia crisis escalates, EU is nowhere to be seen”. EU authorities’ restraint can yet easily be explained, at least, from a legal point of view. Indeed, the European Union has in principle neither the competence, nor the legitimacy, to intervene in its Member States’ internal constitutional affairs. Article 4.2 TEU incidentally underlines that the EU shall respect Member States’ “national identities, inherent in their fundamental structures, political and constitutional, inclusive of regional and local self-government” and that it “shall respect their essential State functions, including ensuring the territorial integrity of the State, maintaining law and order and safeguarding national security. In particular, national security remains the sole responsibility of each Member State”. The President of the Commission, J.-C. Junker stated that it was “an internal matter for Spain that has to be dealt with in line with the constitutional order of Spain” but however noted that in case of separation of Catalonia from Spain, the region would consequently “find itself outside of the European Union”.

Puigdemont’s  Departure for Brussels

Theoretically, the EU has thus no legal standing to intervene in the Spanish constitutional crisis. Recent events have, however, brought the EU incidentally on stage.

Mr. Puigdemont, the deposed leader of Catalan authorities, left Barcelona for Brussels several days ago, where he declared he was not intended to seek asylum and that he would return in Spain if judicial authorities so request, provided he was guaranteed conditions of a fair judicial process. In the meanwhile, the State prosecutor decided to start proceedings against Mr. Puigdemont and other officials of the ousted Catalan government for rebellion, sedition and embezzlement and demanded to the judge in charge of the processing charges to issue a European arrest warrant (hereafter EAW) for Mr. Puigdemont and four other members of his former cabinet, after they failed to appear at the High Court hearing last Thursday.  The EAW was issued by the Spanish judge last week. EU law has thus been relied upon by Spanish authorities to respond to its internal crisis, because of the departure of several Catalan officials to Brussels, which constituted, at the outset at least, nothing more than a lawful exercise of their free movement rights within the Schengen area.

Mr. Puidgemont and the other people subject to a EAW presented themselves to Belgian authorities, which decided to release them upon several conditions including the prohibition to leave the Belgian territory. A Belgian Criminal Chamber has as of now two weeks to decide if they should be surrendered to Spain or not.

The Quasi-automaticity of the European Arrest Warrant System

According to Puidgemont’s Belgian lawyer, the former Catalan leader will agree to return in Spain provided that he will be guaranteed respect of his fundamental rights, including the right to an impartial and independent trial. He moreover underlined that Puidgemont will submit itself to Belgian judicial authorities which will have to assess whether or not these conditions are met.

The system of the EAW, however, entails a quasi-automaticity of the execution by requested authorities of any Member State. Indeed, because it relies upon the principle of mutual trust between Member States, requested authorities may not, save in exceptional circumstances, control the respect by the requesting State of fundamental values of the EU, including democracy and human rights. The Council Framework Decision 2002/584 of 13 June 2002, which establishes the EAW includes a limitative list of mandatory and optional grounds for refusal which does not include a general ground for refusal based on human rights protection (Articles 3 and 4). Indeed, only specific violations or risk of violations of fundamental freedoms justify the refusal to surrender, according to the Framework Decision. As far as the right to a fair trial is concerned, the Framework Decision does not include possibilities to rebut the presumption of the existence of fair proceedings in other Member States except when the EAW results from an in abstentia decision and only under certain conditions (Article 4a).

A strong presumption of respect of EU values underlies EU criminal cooperation and the ECJ has, as of now, accepted its rebuttal on grounds of human right not included in the main text of the Framework Decision only where a serious and genuine risk of inhuman and degrading treatment existed for the convicted person in case of surrender (see the Aranyosi case, discussed here). In that respect, the lawyer of the other Catalan ministers who are already in jail has lodged a complaint for mistreatment of them, but more elements will be required to refuse the execution on the EAW on this basis.

Indeed, according to the Court of Justice, “the executing judicial authority must, initially, rely on information that is objective, reliable, specific and properly updated on the detention conditions prevailing in the issuing Member State and that demonstrates that there are deficiencies, which may be systemic or generalised, or which may affect certain groups of people, or which may affect certain places of detention”. Moreover, the domestic judge must also “make a further assessment, specific and precise, of whether there are substantial grounds to believe that the individual concerned will be exposed to that risk because of the conditions for his detention envisaged in the issuing Member State” before refusing the execution of the EAW (Aranyosi, paras 89 and 92).

Furthermore, the possibility to refuse to surrender persons convicted for political offences – which is traditionally seen as being part of the international system of protection of refugees – has been removed from the Convention on Extradition between Member States of the European Union concluded in 1996 – which is the ancestor of the current EAW system – precisely because of Member States’ duty to trust their peers’ judicial system. Interestingly, the removal of this ground for refusal had been required by Spain when it faced difficulties to obtain the extradition of Basque independentists who were seeking for protection in Belgium. The Spanish government pleaded that the ground for refusal for political infractions constituted a hurdle to criminal cooperation within the EU which was at odds with the trust that Member States should express to each other (see E. Bribosia and A. Weyembergh, “Extradition et asile: vers un espace judiciaire européen?”, R.B.D.I., 1997, pp. 69 to 98).

In the current state of EU law, no option for refusal of execution of the EAW concerning Mr. Puidgemont seems thus to exist. It is noteworthy, however, that the EAW system may, as a whole, be suspended, when the procedure provided for by Article 7 TEU is initiated if there is a (clear risk of) violation of the values referred to in Article 2 TEU on which the Union is founded, including human rights, democracy and the rule of law. Although some people have called for the initiation of this mechanism, the reliance on Article 7 is very unlikely to happen politically: it needs at least a majority of four fifths at the Council just to issue a warning, and the substantive conditions of EU values’ violations are very high.

Nonetheless, Belgium has included in its transposing legislation (Federal Law of 19 December 2003 related to the EAW) an obligatory ground of refusal – whose validity regarding EU law can seriously be put into question –  if there are valid grounds for believing that its execution would have the effect of infringing the funda­mental rights of the person concerned, as enshrined by Article 6(2) of the TEU (Art. 4, 5°). Triggering this exception will however result, in my view, in a violation of EU law by the Belgian judge since the ECJ has several times ruled that the grounds for refusal included in the Framework Decision were exhaustive and that a Member State could not rely upon its national human rights protection to refuse the execution of a EAW which respects the conditions laid down in the Framework Decision (Melloni).  Another option for the Belgian judge will be to make a reference to the ECJ for a preliminary ruling in order to ask whether, in the case at hand, the presumption of conformity with EU fundamental rights in Spain may be put aside because of the specific situation of Mr. Puidgemont.

The Quasi-Exclusion of the Asylum Right for EU Citizens

Besides asking for the refusal of his surrender to Spanish authorities, Mr. Puidgmont could – at least theoretically – seek asylum in Belgium on the basis of the Refugee Convention of 1951, which defines as refugees people with a well-founded fear of persecution for (among other things) their political opinion (Article 1.A.2).

However, Spain also requested – besides the removal of the ground for refusal to surrender a person based on the political nature of the alleged crime in the European Extradition Convention of 1996 – the enactment of Protocol No 24, on asylum for nationals of Member States of the European Union, annexed to the Treaty of Amsterdam signed in 1997. This Protocol practically removes the right of EU citizens to seek asylum in other countries of the Union.

Founding itself on the purported trustful character of Member States’ political and judicial systems and the (presumed) high level of protection of fundamental rights in the EU, the Protocol states that all Member States “shall be regarded as constituting safe countries of origin in respect of each other for all legal and practical purposes in relation to asylum matters” (Art. 1). Any application for asylum made by an EU citizen in another Member State shall therefore be declared inadmissible, except if the Member State of which the applicant is a national has decided to suspend temporarily the application of the European Convention on Human Rights in time of emergency (Article 15 of the ECHR; note that it’s not possible to suspend all provisions of the ECHR on this basis) or if this Member State has been subject to a decision based on Art. 7.1. or 7.2. TEU establishing the risk or the existence of a serious and persistent breach by the Member State of EU values referred to in Art. 2 TEU.

A Member State may also decide, unilaterally, to take an asylum demand into consideration at the double condition that it immediately informs the Council and that that the application shall be dealt with on the basis of the presumption that it is manifestly unfounded.  This last derogation has been invoked by Belgium which has adopted a declaration stating that it would proceed to an individual examination of each asylum demand of a EU citizen lodged with it. To comply with EU law, it must however consider each application manifestly unfounded rendering the burden of the proof very heavy for the EU citizen asylum seeker.  Belgian alien’s law provides for an accelerated procedure for asylum when the individual comes from an EU country (Article 57/6 2 of the Belgian Aliens Act) but statistics nevertheless show that about twenty asylum demands from EU citizens where declared founded in 2013 and 2014 by Belgian authorities.

The EU Brought on Stage…  

In both cases, the refusal to execute the EAW or the granting of an asylum right to Mr. Puidgemont would result from the consideration that the Spanish judiciary does not present the basic and essential qualities of independence and impartiality to adjudicate the case related to Catalan independence activists. This observation would likely result in a major diplomatic dispute between the two countries and, more widely, in the EU. Indeed, the consideration made by Belgium and/or the ECJ that Spain would not respect fundamental values of the EU in treating the case of Catalonia would jeopardize the essential principle of mutual trust between Member States, which is relied upon in criminal, asylum but also in civil judicial cooperation. The Spanish constitutional crisis could thereby potentially call into question the whole system of cooperation in the European Area of Freedom Security and Justice.

Refuge ou asile ? La situation de Carles Pbyuigdemont en Belgique au regard du droit de l’Union européenne

ORIGINAL PUBLISHED ON THE CDRE SITE

by Henri Labayle, CDRE et Bruno Nascimbene, Université de Milan

Quoique largement circonscrite à la Belgique, l’agitation médiatique provoquée par l’arrivée à Bruxelles de Carles Puigdemont et de certains de ses proches soulève d’intéressants points de droit quant à leur situation sur le territoire d’un autre Etat membre de l’Union. Attisée par les déclarations imprudentes d’un secrétaire d’Etat belge à l’Asile et à la Migration, Theo Francken, cette présence a réveillé d’anciennes querelles entre les deux royaumes concernés tenant tout à la fois à la possibilité pour la Belgique d’accorder l’asile à l’intéressé (1) et, à défaut, de constituer un refuge face aux éventuelles poursuites intentées à son égard par les juridictions espagnoles (2).

1. La recherche d’une terre d’asile

Le suspense n’a guère duré. Après avoir géré son départ de Catalogne dans le plus grand des secrets, dans une posture digne de l’homme du 18 juin 1940 dont il porte le prénom, le président déchu du gouvernement catalan y a mis fin en déclarant qu’il n’était « pas venu ici pour demander l’asile politique ». Pourtant, son entourage comme les déclarations du secrétaire d’Etat Theo Francken, nationaliste flamand, membre du parti indépendantiste ultra-conservateur N-VA, avaient donné corps à la polémique.

a. Le choix de son avocat, d’abord, n’a rien eu d’innocent. Tout en déclarant que son client n’était pas en Belgique pour demander l’asile, ce dernier n’en a pas moins jugé utile de préciser soigneusement avoir « une expérience de plus de 30 ans avec l’extradition et l’asile politique de basques espagnols et c’est probablement sur la base de cette expérience qu’il a fait appel à moi ». Les agences de presse se sont du reste empressées de souligner qu’il avait en son temps assuré la défense du couple Luis Moreno et Raquel Garcia, réclamés en vain à la Belgique par l’Espagne en raison de leur soutien à l’organisation terroriste ETA.

Source de vives tensions entre l’Espagne et la Belgique en raison du refus de cette dernière de les extrader puis de les remettre à Madrid autant qu’à propos du débat sur leur éventuel statut de réfugié politique, le cas de ces derniers éclaire l’insistance espagnole à inscrire en 1997 un protocole à ce sujet, le fameux protocole « Aznar » joint au traité d’Amsterdam. A tout le moins donc, la symbolique du recours à un avocat ainsi spécialisé n’est pas neutre, même s’il est permis de douter de l’adresse d’un tel amalgame pour une cause se présentant comme victime de la violence de l’Etat et d’un déni de démocratie.

Dans le même temps, exprimant sans détours sa sympathie à la cause nationaliste, le secrétaire d’Etat Theo Francken n’a pas manié la langue de bois. D’abord, à travers un constat sur la situation espagnole quelque peu téméraire : « la situation en Catalogne est en train de dégénérer. On peut supposer, de manière réaliste qu’un certain nombre de Catalans vont demander l’asile en Belgique. Et ils le peuvent. La loi est là. Il pourront demander une protection et introduire une demande d’asile et on y répondra convenablement ». Ensuite en fournissant une explication à son attitude au demeurant tout aussi douteuse : « en regardant la répression de Madrid et les peines de prison envisagées, la question peut se poser de savoir s’il a encore une chance d’un jugement équitable».

La volée de critiques faisant suite à cette provocation, y compris le désaveu a minima d’un premier ministre belge passablement gêné, oblige alors à rappeler les termes du débat juridique.

b. Sur l’insistance du premier ministre espagnol de l’époque, Jose Maria Aznar, le protocole n° 24 additionnel au traité d’Amsterdam s’efforce de réduire le droit d’asile à un droit seulement offert aux ressortissants tiers. En effet, « vu le niveau de protection des droits fondamentaux et des libertés fondamentales dans les États membres de l’Union européenne, ceux-ci sont considérés comme constituant des pays d’origine sûrs les uns vis-à-vis des autres pour toutes les questions juridiques et pratiques liées aux affaires d’asile». Le protocole n° 24 fut accompagné à l’époque de la déclaration n° 48 de la Conférence, ne préjugeant pas du droit de chaque Etat membre de prendre les mesures d’organisation nécessaires au respect de la Convention de Genève. Pour sa part, la Belgique déclara alors que, tout en approuvant le protocole n° 24, « conformément à ses obligations au titre de la convention de Genève de 1951 et du protocole de New York de 1967, elle effectuera, conformément à la disposition énoncée à l’article unique, point d), de ce protocole, un examen individuel de toute demande d’asile présentée par un ressortissant d’un autre Etat membre» (déclaration n° 5).

Le HCR n’avait pas manqué alors d’émettre des critiques fermes et fondées sur la conventionnalité d’une telle option, hostile à l’idée simpliste selon laquelle l’appartenance à l’UE constituerait par principe un critère objectif et légitime de distinction du point de vue de la protection entre Etats membres de l’Union et Etats tiers (UNHCR, « Position on the proposal of the European Council concerning the treatment of asylum applications from citizens of European Union Member States », annexe à la lettre du Directeur de la Division de la protection of internationale à M. Patijn, Ministre des Affaires étrangères des Pays Bas, 3 février 1997 ; voir également UNHCR Press release 20 juin 1997). Vingt ans après, la situation des droits fondamentaux dans certains Etats membres de l’Union conforte cette critique.

Conscients de ces difficultés, les Etats membres ont alors opté pour une solution de contournement, se gardant de toute interdiction frontale du droit d’asile à propos de leurs ressortissants et préférant en retenir une approche extrêmement restrictive. Il s’agit, comme l’indique le protocole, « d’empêcher que l’asile en tant qu’institution soit utilisé à des fins autres que celles auxquelles il est destiné ».

Le traité de Lisbonne n’a modifié ce dispositif qu’à la marge, à deux précisions près. La première tient dans la disparition des déclarations formulées à Amsterdam et la seconde voit l’invocation des « valeurs » de l’Union justifier désormais l’existence du protocole puisque, par hypothèse, les Etats membres les respectent pour pénétrer et demeurer dans l’Union. Ils ne peuvent donc être sources de persécutions, sauf preuve du contraire.

c. La pratique de l’asile entre Etats membres de l’Union est donc régie aujourd’hui par le Protocole n° 24 révisé à Lisbonne, lequel constitue la lex specialis du « droit d’asile pour les ressortissants des Etats membres de l’Union européenne ». Il n’est pas indifférent de rappeler que l’ensemble du droit primaire et dérivé de l’Union de l’asile se conforme à cette logique. Le champ d’application personnel du droit d’asile selon la directive « Qualification » ne concerne que les ressortissants de pays tiers, en application de l’article 78 TFUE qui en fait un droit de ces ressortissants et s’impose à l’article 18 de la Charte dont les « explications » mentionnent spécifiquement le Protocole.

Ce dernier, outre les hypothèses qui visent une violation établie des valeurs de l’Union ou une dérogation en vertu de l’article 15 de la Convention EDH, régit l’éventuel octroi d’une protection à un citoyen de l’Union dans son article unique point d) : « si un État membre devait en décider ainsi unilatéralement en ce qui concerne la demande d’un ressortissant d’un autre État membre; dans ce cas, le Conseil est immédiatement informé; la demande est traitée sur la base de la présomption qu’elle est manifestement non fondée sans que, quel que soit le cas, le pouvoir de décision de l’État membre ne soit affecté d’aucune manière ».

Le plus grand flou règne ensuite en la matière quant à la pratique dégagée par les Etats à ce propos. On sait, par exemple qu’en France le Conseil d’Etat a dégagé une interprétation littérale du protocole Aznar à propos de citoyens roumains tout en n’écartant pas l’hypothèse d’un examen (CE, 30 décembre 2009, OFPRA c/ Cosmin, req. 305226, note Aubin, AJDA 2010). De même, l’administration française s’est-elle empressée de souligner par voie de circulaire, à l’occasion de l’adhésion de la Croatie en 2013, que le retrait de ce nouvel Etat membre de la liste des pays tiers d’origine sûrs n’entraînait aucun changement sur le plan de l’admission provisoire au titre de l’asile et du jeu de la procédure d’examen prioritaire, dans la logique du protocole Aznar.

Les choses sont beaucoup plus incertaines concernant l’Union elle-même et les doutes que l’on peut légitimement éprouver quant à la situation des droits fondamentaux dans l’Union en général comme en particulier invitent à la réserve.

En 2015, la Commission canadienne de l’immigration et du statut de réfugié fait ainsi état de la grande diversité des pratiques nationales au sein de l’Union à l’égard de ce protocole, principalement en raison des divergences portant sur la présence des Etats membres de l’Union sur les listes nationales de pays d’origine « sûrs ». Seuls la Belgique et les Pays Bas auraient, à ce jour, rendu des décisions positives de protection.

Pour ce qui est plus précisément de la Belgique, susceptible d’accueillir M. Puigdemont, si elle semble ne pas avoir renouvelé à Lisbonne sa déclaration d’Amsterdam, elle conserve néanmoins la possibilité de procéder à une évaluation des situations individuelles. Quasiment exclusivement saisie par des nouveaux Etats membres, le plus souvent à propos de la question des Roms, elle fait un usage très parcimonieux de cette possibilité puisque près d’un millier de demandes auraient été déposées depuis 2011 pour moins de quinze reconnaissances au total.

La déclaration de la Belgique, qui a certainement une valeur politique, conserve sa valeur juridique, même si elle n’a pas été répétée, comme elle aurait dû être révoquée. En tout état de cause, les Etats membres conservent le droit souverain d’accorder l’asile sur la base de leur droit interne. Ainsi, dans la Constitution d’un État membre comme l’Italie, il existe une disposition fondamentale, à l’instar du troisième paragraphe de l’article 10, qui prévoit qu’un étranger qui est effectivement empêché d’exercer ses libertés démocratiques garanties de la Constitution italienne, a le droit à l’asile sur le territoire de la République, dans les conditions prévues par la loi. Bien que l’Italie n’ait fait aucune déclaration, il n’y a aucun doute que l’Etat garde sa souveraineté quant à la concession de l’asile, aussi appelé asile constitutionnel et qui fait abstraction des obligations internationales ou de l’Union. De même, en droit français, le préambule de la Constitution de 1946 prévoit-il que« tout homme persécuté en raison de son action en faveur de la liberté a droit d’asile sur les territoires de la République ». Ces formes d’asile particulier n’ont pas été prises en considération par M. Puigdemont , la Belgique lui paraissant un Etat plus sûr ou protecteur.

En Italie, d’un autre côté, dans la jurisprudence administrative, il s’est posé également la question de ne pas expulser vers la Grèce mais aussi vers la Bulgarie, considérés comme des pays non sûrs, malgré leur statut d’Etats membres de l’Union. Les juges administratifs ont ainsi démontré, s’il y en avait besoin, que la confiance mutuelle entre pays membres, dans la réalité et pratique courante, est souvent théorique…

C’est dans ce contexte peu encourageant que l’accueil de l’ex-président catalan peut être évalué.

2. La recherche d’une terre de refuge    

Deux hypothèses se présentent alors : celle d’un accueil en bonne et due forme au plan de l’asile et celle d’une réponse à un éventuel mandat d’arrêt européen. Les dénégations de M. Puigdemont quant à son éventuelle demande de protection ne sont pas aussi catégoriques qu’il y paraît au premier abord. Il a, en effet, ouvertement évoqué des « menaces » et un « besoin de sécurité » que les autorités espagnoles ne seraient plus à même de lui assurer soit en raison de la nature des poursuites exercées à son encontre soit en ne le protégeant pas efficacement des menaces pesant sur sa personne. On retrouve là derrière ces arguments des questions très classiques du droit de l’asile dont les réponses ne sont pas sans intérêt du point de vue de la recherche d’un refuge devant le risque pénal.

a. Même s’il s’avère que la Belgique n’a pas renouvelé sa déclaration d’Amsterdam, elle se trouve placée comme tout Etat membre de l’Union devant à une double contrainte posée par le Protocole n° 24. La première est de nature procédurale et elle consiste à « informer le Conseil » de sa volonté. Nul doute qu’ici surgiront des tensions diplomatiques avec d’autres Etats membres, au premier rang desquels l’Espagne se situera, et qu’elles mettront également à rude épreuve la coalition gouvernementale gouvernant la Belgique. A en rester sur le terrain politique, les déclarations des partis nationalistes flamands sur la nécessité de soutenir « ses amis » le laissent présager. A venir sur le terrain juridique, le soulagement politique pourrait alors naître de l’impossibilité de répondre favorablement à une quelconque demande, au vu de la réalité du droit de l’Union.

La seconde contrainte est matérielle et elle consiste à renverser la présomption posée par le protocole Aznar. Le point d) de son article unique spécifie bien que « la demande est traitée sur la base de la présomption qu’elle est manifestement non fondée ». Il convient donc pour les autorités nationales saisies de renverser cette présomption pour se placer en conformité avec le droit de l’Union.

On se trouve ici dans un schéma tout à fait comparable à celui que la Cour a dégagé avec force dans l’avis 2/13relatif à l’adhésion à la Convention EDH lorsqu’elle met en relief cette « prémisse fondamentale selon laquelle chaque État membre partage avec tous les autres Etats membres, et reconnaît que ceux-ci partagent avec lui, une série de valeurs communes sur lesquelles l’Union est fondée, comme il est précisé à l’article 2 TUE. Cette prémisse implique et justifie l’existence de la confiance mutuelle entre les Etats membres dans la reconnaissance de ces valeurs et, donc, dans le respect du droit de l’Union qui les met en œuvre » (point 168). « Fondamentale » car elle « permet la création et le maintien d’un espace sans frontières intérieures. Or, ce principe impose, notamment en ce qui concerne l’espace de liberté, de sécurité et de justice, à chacun de ces Etats de considérer … que tous les autres Etats membres respectent le droit de l’Union et, tout particulièrement, les droits fondamentaux reconnus par ce droit » (point 191).

S’atteler au défi de prouver que le Royaume d’Espagne ne respecte pas les valeurs de l’Union, au point de justifier d’accorder protection à l’un de ses citoyens au prétexte que son pays lui demande des comptes de sa violation d’une légalité établie par la juridiction constitutionnelle de ce pays, ne sera donc pas aisé. Une chose est en effet de se réclamer de la démocratie et de l’exercice des droits qui y sont attachés et une autre est de faire la preuve que cet exercice est légal. Dénoncer une éventuelle « politisation de la justice espagnole et son absence d’impartialité » comme « l’injustice du gouvernement espagnol » et son « désir de vengeance » ne se paie pas seulement de mots.

Or, rien dans l’état du droit positif n’accrédite une accusation d’une telle gravité, laquelle n’a été portée ni devant les juridictions suprêmes européennes ni au sein de leurs organes internes. Il sera donc difficile aux autorités d’un autre Etat membre de la reprendre à leur compte en allant jusqu’au point de renverser la présomption établie par le protocole et de la confiance mutuelle entre Etats membres. Bien au contraire, l’unanimité des déclarations des représentants des autres Etats membres comme des institutions de l’Union s’est attachée depuis le début de la crise à souligner la nécessité de respecter le cadre légal national ainsi contesté.

b. C’est donc sur le terrain pénal que la suite de la partie se jouera. Avec la convocation à Madrid de l’ex-président et de treize de ses ministres par une juge d’instruction de l’Audience nationale, saisie par le parquet espagnol qui a requis des poursuites notamment pour « rébellion et sédition », chefs passibles respectivement d’un maximum de 30 et 15 ans de prison. Mettre en cause la partialité de la juridiction espagnole et son mode de fonctionnement nécessitera des arguments forts qu’aucune juridiction européenne n’a jusqu’alors établi, même en des cas autrement dramatiques.

Car pour le reste, et sous couvert de l’intitulé exact de l’émission inévitable du mandat d’arrêt européen qui suivra le refus annoncé de déférer à cette convocation judiciaire, le scénario est écrit. La décision-cadre 2002/584 établissant le mandat d’arrêt européen est inflexible : « rien dans la présente décision-cadre ne peut être interprété comme une interdiction de refuser la remise d’une personne qui fait l’objet d’un mandat d’arrêt européen s’il y a des raisons de croire, sur la base d’éléments objectifs, que ledit mandat a été émis dans le but de poursuivre ou de punir une personne en raison de son sexe, de sa race, de sa religion, de son origine ethnique, de sa nationalité, de sa langue, de ses opinions politiques ou de son orientation sexuelle, ou qu’il peut être porté atteinte à la situation de cette personne pour l’une de ces raisons ». Malgré le libellé peu clair du considérant n° 12 de la décision-cadre 2002/584, celui-ci invoque l’hypothèse d’un refus d’exécution d’un mandat d’arrêt européen s’il y a des raisons de présumer que la personne est persécutée pour ses opinions politiques. On remarquera d’une part qu’il s’agit d’une disposition non contraignante et d’autre part que la partie contraignante de la décision-cadre ne formule aucun motif de cette nature empêchant la coopération et donc l’exécution du mandat dans ces cas, hors les hypothèses des articles 3 et 4. Son article premier se borne à rappeler que « la présente décision-cadre ne saurait avoir pour effet de modifier l’obligation de respecter les droits fondamentaux et les principes juridiques fondamentaux tels qu’ils sont consacrés par l’article 6 du traité sur l’Union européenne ».

Et il est vrai à cet égard que la jurisprudence de la Cour de justice, évoquée à plusieurs reprises dans ces colonnes, confirme la rigueur de la force obligatoire de l’exécution d’un mandat. Ceci vaut sans exception, dans le sens où la Cour a considéré les raisons/motifs de refus prévues par la décision-cadre comme exhaustives (voir spécialement affaire C‑192/12 PPU West, pt. 55; affaire C‑399/11 Melloni, pt. 38). A la lumière de la jurisprudence dans les affaires Aranyosi et Caldararu, une certaine atténuation du principe établi apparait admissible si l’exécution implique une violation grave d’un droit fondamental bénéficiant d’une protection absolue, tel que la dignité de la personne humaine. Il semble difficile d’imaginer, au cas où la question serait adressée à la Cour de justice, que celle-ci puisse parvenir à intégrer la législation de l’UE en identifiant une raison supplémentaire pour cette hypothèse, la logique de l’avis 2/13 devrait alors être renversée et, en fait, la présomption même de non-octroi de l’asile.

En revanche, et pour ce que l’on en sait à travers la presse, les infractions pour lesquelles un mandat d’arrêt européen pourrait être émis (rébellion et sédition ?) contre M. Puigdemont ne semblent pas figurer sur la liste positive visée à l’art. 2, par. 2 de la décision cadre qui permet de procéder à une remise même en l’absence de double incrimination. Par conséquent, l’État d’exécution que serait la Belgique pourrait soumettre la remise à la vérification que les infractions couvertes par le mandat d’arrêt européen émis par l’Espagne soient également des infractions pénales en droit belge (art. 2, par. 4, et art. 4, par. 1, de la décision cadre).

Le scénario judiciaire risque donc, par l’automaticité de sa réponse, d’écarter toute hypothèse de refuge, de négociation ou autres compromis que le droit de l’extradition, hier, permettait encore. Là encore, prendre la décision de déférer à la demande de remise impliquera de procéder sous le feu des caméras à une arrestation pour y parvenir … Lourde responsabilité à prendre dans une coalition gouvernementale belge fragilisée sur la question nationaliste…

Sauf à croire qu’il n’y a finalement là que faux semblant, épisode nouveau d’une guerre de communication accréditée par la proximité de la consultation électorale en Catalogne. Jouer la carte de « l’exil » comme aux heures les plus noires, victimiser l’acteur principal de la crise, dénoncer la poursuite étatique en la discréditant dessinent les ressorts à peine dissimulés d’une stratégie dont nul ne sait si elle sera payante, pariant qu’elle parviendra à convaincre les hésitants. Donner en spectacle l’arrestation et l’emprisonnement ou même leurs simples éventualités permettra de prendre ainsi chacun à témoin de la justesse de la cause défendue. La brièveté des délais d’exécution du mandat d’arrêt européen, deux mois en vertu de l’article 17, pourrait alors pousser les uns ou les autres à une véritable course de lenteur pour l’éviter avant des élections cruciales …

Un seul enseignement mérite alors d’en être tiré, à ce stade de la crise. Son théâtre n’est plus national mais il est européen, faisant émerger un paradoxe imprévu mais dont il faudra tirer les leçons. S’il est banal chez les souverainistes de prétendre que l’Union a pu affaiblir ses Etats membres, la crise catalane et son déroulement révèlent très exactement l’inverse. D’abord car l’attrait européen et le risque de devoir s’en priver, comme nous l’avons démontré, constitue une puissante barrière défensive pour le maintien au sein de l’Etat que l’on est tenté de quitter. Ensuite car l’Union, ses dirigeants et son droit, ainsi pris à témoin par le choix des nationalistes d’européaniser la crise pour espérer la dénouer, s’avèrent être les premiers défenseurs de l’intégrité territoriale d’Etats membres. Ceux-ci se découvrent là une alliée inattendue. Ont-ils aussi compris qu’ils partagent désormais avec elle le choix de la décision finale sans en demeurer les seuls maîtres ?

Counter-terrorism and the inflation of EU databases

Original published on Statewatch (*) on May 2017

By Heiner Busch (@Busch_Heiner) and Matthias Monroy (@matthimon)  (Translation from DE by Viktoria Langer)

The topic of counter-terrorism in Europe remains closely linked to the development and expansion of police (and secret service) databases. This was the case in the 1970s, after 11 September 2001 and has also been the case since 2014, when the EU Member States started working on their action plans against ‘foreign terrorist fighters’.

The first effect of this debate has been a quantitative one: the amount of data in the relevant databases has increased explosively since 2015. This can be seen by looking in particular at available data on the Europol databases, like ‘Focal Points’ (formerly: Analytical Work Files) of the Europol analysis system. Since 2015 they have become one of the central instruments of the European Counter Terrorism Centre (ECTC) which was established in January 2016. ‘Hydra’, the ‘Focal Point’ concerning Islamist terrorism was installed shortly after 9/11. In December 2003 9,888 individuals had been registered, a figure that seemed quite high at the time – but not compared with today’s figures. [1] In September 2016 ‘Hydra’ contained 686,000 data sets (2015: 620,000) of which 67,760 were about individuals (2015: 64,000) and 11,600 about organisations (2015: 11,000).

In April 2014 an additional ‘Focal Point’, named ‘Travellers’, was introduced, which is exclusively dealing with “foreign terrorist fighters” (FTF). One year later ‘Travellers’ included 3,600 individuals, including contact details and accompanying persons. In April 2016 the total number increased by a factor of six. Of the 21,700 individuals registered at the time, 5,353 were “verified” FTFs. In September 2016, of 33,911 registered individuals, 5,877 had been verified as FTFs.

Since 2010 Europol and the USA have operated the Terrorist Finance Tracking Programme (TFTP), which evaluates transfers made via the Belgian financial service provider SWIFT. Until mid-April 2016 more than 22,000 intelligence leads had been arisen out of that programme, of which 15,572 since the start of 2015. 5,416 (25%) were related to FTFs.

In contrast to Europol’s analytical system, the Europol Information System (EIS, the registration system of the police agency) can be fed and queried directly from the police headquarters and other authorities of EU Member States. Here, more than 384,804 ‘objects’ (106,493 individuals) were registered at the start of October 2016, 50% more than the year before. The increase is partly due to the growing number of parties participating in the EIS. In 2015 13 Member States were connected; in 2016 19 Member States. Some of the EU States, like the UK, also let their national secret services participate in the system. 16 Member States currently use automatic data uploaders for input. The number of third parties involved has also increased (in 2015 there were four, in 2016 there were eight). Interpol, the FBI and the US Department of Homeland Security are some of them.

Europol has reported further growth in the number of “objects” linked to terrorism in the EIS. According to the Slovak Presidency of the Council of the EU’s schedule for the improvement of information exchange and information management, in the third quarter of 2016 alone these grew another 20% to 13,645. [2] The EIS includes 7,166 data sets about individuals linked to terrorism, of which 6,506 are marked as FTFs or their supporters, or are assumed to be so. For May 2016 the CTC stated a figure of 4,129. [3] The increase in terrorism linked data can also be seen in the Schengen Information System (SIS) – in the alerts for “discreet checks or specific checks” following Article 36 of the SIS Decision. According to this, suspect persons are not supposed to be arrested. However, information about accompanying persons, vehicles etc. are recorded to provide insight into movements and to keep tabs on the contacts of the observed person. At the end of September 2016 the number of such checks by the police authorities (following Article 36(2)) was 78,015 (2015: 61,575, 2014: 44,669). The number of alerts of the national secret services based on Article 36(3) was 9,516 (2015: 7,945, 2014: 1,859). “Hits” on such alerts and additional information are supposed to be sent directly to the alerting authorities and not as usual to national SIRENE offices (which deal with the exchange of supplementary information regarding alerts in the SIS). This option was only introduced in February 2015.

The Schengen states used the instrument for discreet surveillance or specific checks very differently. On 1 December 2015 44.34% of all Article 36 alerts came from authorities in France, 14.6% from the UK, 12.01% from Spain, 10.09% from Italy and 4.63% from Germany. [4] How many of these alerts actually had a link to terrorism remains unclear; a common definition has not yet been found. However, the Council Working Party on Schengen Matters agreed on the introduction of a new reference (“activity linked to terrorism”) for security agencies’ alerts. According to Federal Ministry for the Interior, German alerts are marked with this reference when concrete evidence for the preparation of a serious act of violent subversion (§§129a, 129b Penal Code) can be presented. [5]

‘Unnoticed in the Schengen area’ Continue reading “Counter-terrorism and the inflation of EU databases”

Think of the children: the ECJ clarifies the status of non-EU parents of EU citizen children living in their own Member State

ORIGINAL PUBLISHED ON EU LAW ANALYSIS

Professor Steve Peers

What immigration rights do non-EU citizens have under EU law? There are three main areas of EU law that address this issue: EU immigration and asylum law; EU treaties with non-EU countries; and EU free movement law. The latter area of law is focussed on EU citizens’ right to move between Member States, and so only covers non-EU citizens if they are family members of EU citizens who have moved to another Member State. Those rules also apply by analogy where an EU citizen with a non-EU family member has moved to another Member State, then moved back to that citizen’s home Member State. (These are known as Surinder Singh cases: see this discussion of the ECJ’s most recent ruling on such cases, from 2014).

But what if an EU citizen has a non-EU family member, but has never moved to another Member State? Such cases fall outside the scope of EU free movement law. They will therefore in principle fall solely within the scope of national law, unless either EU immigration and asylum law or EU treaties with non-EU countries apply (they usually will not). But in a limited number of cases, there is a fourth category of EU law which might apply to them: EU citizenship law.

This principle was first set out in the 2011 judgment in Ruiz Zambrano, which concerned Belgian children living in Belgium with two non-EU parents. The ECJ ruled that expelling the non-EU parents would in effect would result in the departure of the children from the EU, thereby risking the ‘genuine enjoyment of the substance’ of those children’s EU citizenship rights.

Subsequent ECJ case law (discussed here) made clear that this principle is apparently restricted to the non-EU parents of EU citizen children living in their home State. Cases very similar to Zambrano – two non-EU parents of an EU child – are rare, because Member States now rarely, if ever, confer nationality upon children simply because they are born on the territory. However, there are rather more cases where: a) a home-State EU citizen marries a non-EU citizen, b) their child gets home-State citizenship because one of her parents is a home-State citizen; and c) the parents’ relationship ends.

In those cases, Ruiz Zambrano still potentially applies, as long as the non-EU parent is the ‘primary carer’ for the home-State EU citizen child. In that case, removing this parent to a non-EU country would in effect force the EU citizen child to leave the EU as well.  But when exactly does the ‘primary carer’ test apply? The ECJ clarified this issue in today’s important judgment in Chavez-Vilchez and others.

Judgment

Chavez-Vilchez and others concerned a number of non-EU parents of Dutch children in the Netherlands, who sought to argue that they were primary carers of those children, and so entitled to residence in accordance with the Ruiz Zambrano judgment. The Dutch government argued that they could not automatically be considered primary carers if it was possible for the other parent, ie the Dutch citizen, to take care of the children:

…the mere fact that a third-country national parent undertakes the day-to–day care of the child and is the person on whom that child is in fact dependent, legally, financially or emotionally, even in part, does not permit the automatic conclusion that a child who is a Union citizen would be compelled to leave the territory of the European Union if a right of residence were refused to that third-country national. The presence, in the territory of the Member State of which that child is a national or in the territory of the Union, as a whole, of the other parent, who is himself a Union citizen and is capable of caring for the child, is, according to the Netherlands Government, a significant factor in that assessment (para 66)

While the Court of Justice agreed that the non-EU parents could not automatically be considered as primary carers where the home state EU citizen child was dependent upon them, the Court’s approach was more open. It began by restating prior case law: the key issue was ‘who has custody of the child and whether that child is legally, financially or emotionally dependent on the third-country national parent’ (para 68). It then reiterated, following Zambrano, that dependency was particularly significant (para 69). Then it added new detail on how to assess dependency:

…it is important to determine, in each case at issue in the main proceedings, which parent is the primary carer of the child and whether there is in fact a relationship of dependency between the child and the third-country national parent. As part of that assessment, the competent authorities must take account of the right to respect for family life, as stated in Article 7 of the Charter of Fundamental Rights of the European Union, that article requiring to be read in conjunction with the obligation to take into consideration the best interests of the child, recognised in Article 24(2) of that charter (para 70).

For the purposes of such an assessment, the fact that the other parent, a Union citizen, is actually able and willing to assume sole responsibility for the primary day-to-day care of the child is a relevant factor, but it is not in itself a sufficient ground for a conclusion that there is not, between the third-country national parent and the child, such a relationship of dependency that the child would be compelled to leave the territory of the European Union if a right of residence were refused to that third-country national. In reaching such a conclusion, account must be taken, in the best interests of the child concerned, of all the specific circumstances, including the age of the child, the child’s physical and emotional development, the extent of his emotional ties both to the Union citizen parent and to the third-country national parent, and the risks which separation from the latter might entail for that child’s equilibrium. (para 71; emphases added)

The Court went on to answer questions from the national court about the burden of proof in Zambrano cases, which were connected with the substantive test to be applied. The Dutch government had argued:

…the burden of proof of the existence of a right of residence under Article 20 TFEU lies on the applicants in the main proceedings. It is for them to demonstrate that, because of objective impediments that prevent the Union citizen parent from actually caring for the child, the child is dependent on the third-country national parent to such an extent that the consequence of refusing to grant that third-country national a right of residence would be that the child would be obliged, in practice, to leave the territory of the European Union (para 74).

Although the ECJ accepted that the burden of proof lay upon the non-EU parent (para 75), it also ruled that national authorities ‘must ensure that the application of national legislation on the burden of proof’ in such cases ‘does not undermine the effectiveness’ of EU citizenship rights (para 76). This meant that the authorities had to make ‘the necessary inquiries’ to find out where the EU citizen parent lived, ‘whether that parent is, or is not, actually able and willing to assume sole responsibility for the primary day-to-day care of the child’ and whether the EU citizen child was dependent upon the non-EU parent (para 77).

In effect, the Court ruled that while the non-EU citizen must make a prima facie case, national authorities share some of the burden to investigate some aspects of the case. Again, the substantive test applicable is less stringent than urged by the Dutch government.

Comments

Today’s judgment clarified a number of issues relating to Zambrano cases, following on from last year’s judgments in CS and Rendón Marín (discussed here) which clarified when non-EU Zambrano parents could be expelled for public policy reasons. While the 2016 judgments referred to the child’s best interests, age, situation and dependency (referring to case law of the European Court of Human Rights), today’s judgment also refers to ‘physical and emotional development’, ‘emotional ties’ to both parents, and the effect of separation on the child. All of these are factors relating to the child, not to the non-EU parent; but all of them nevertheless concern the child’s links with that parent.

The Dutch government’s desired focus on the capability of the EU citizen parent takes a back seat to the child’s best interests, as further elaborated by the Court. This will protect more non-EU parents, but in a differential way. Oddly, the Court’s case law does not take express account of situations of joint custody, or the more general argument that the child’s best interest will usually be to maintain strong relationships with bothparents (assuming they are not negligent or abusive).

Could it also be argued that the requirement of always seeking to identify a ‘primary carer’ is problematic from the point of view of gender equality?  Due to the division of labour relating to child care in practice, the Court’s rulings would classify more non-EU mothers than non-EU fathers as ‘Zambrano carers’; but the expulsion of those fathers will only increase the childcare demands on the EU citizen mother who remains, as well as disrupt the child’s right to maintain a relationship with his father. Of course, the presence of the parent who looks after a child day-to-day is essential; but children love the parent who kicks the ball as well as the parent who cooks the meal.

The procedural aspects of the Court’s judgment are interesting, but raise further questions: is there a right to appeal, to a decision within a reasonable time, to a lawyer, to legal aid? In last year’s judgments, the Court of Justice referred to concepts from EU free movement law and its relevant case law when discussing the substantive test for expelling Zambrano carers; but it made no such cross-references today. The long-term immigration status of the parent is also an open question, although Zambrano noted that there should be access to employment to make the residence rights of the parent effective.

Finally, a Brexit point: the draft EU position for negotiating acquired rights does not appear to cover Zambrano carers. From a technical point of view, this is logical because the case law concerns (from the UK’s perspective) non-EU parents of UK citizens who have not moved within the EU. So no free movement rights have been acquired; we are rather talking of EU citizenship rights which will necessarily be lost when the UK ceases to be a Member State, since citizenship of the EU is defined as deriving from the nationality of a Member State. But from a human point of view, any deterioration in legal status could damage or even shatter the family lives of the children concerned. Zambrano carers should therefore be protected ideally in the Brexit talks, or failing that by the UK unilaterally.

See also further reading on UK Zambrano case law by Charlotte O’Brien and Desmond Rutledge

Headscarf bans at work: explaining the ECJ rulings

ORIGINAL PUBLISHED ON EU LAW ANALYSIS ON TUESDAY, 14 MARCH 2017

Professor Steve Peers

When can employers ban their staff from wearing headscarves? Today’s rulings of the ECJ have attracted a lot of attention, some of it confused. There have been previous posts on this blog about the background to the cases, and about the non-binding opinions of Advocates-General, and there will hopefully be further more analytical pieces about today’s judgments to come. But this post is a short explanation of the rulings to clear up any confusion.

Background

The EU has long had laws on sex discrimination, and discrimination regarding EU citizens on grounds of nationality. Since 2000, it has also had laws against race discrimination and also a ‘framework directive’ against discrimination at work on grounds of disability, age, sexual orientation or religion. The ECJ has often been called upon to rule on the first three of those grounds, but today’s two judgments (G4S v Achbita and Bougnaoui) are the first time it has been asked to rule on non-discrimination at work on religious grounds.

EU law does not generally apply to other aspects of religion, except that EU law on asylum applies to people who have been persecuted on religious grounds. So today’s judgments are not relevant as regards regulating religion in education, for instance.

It should also be noted that the European Convention on Human Rights (ECHR) protects the freedom of religion.  The European Court of Human Rights – a separate body – has previously ruled on how that freedom applies in the workplace, concluding that in some cases employers must allow employees who wish to wear religious symbols (see Eweida v UK, for example).

The rulings

The G4S ruling is the more significant of the two cases, in which the ECJ’s reasoning is most fully set out. First the Court rules that clothing worn for religious reasons is an aspect of religious belief. Then it concludes that there was no direct discrimination (ie discrimination purely on religious grounds) against Ms. Achbita, who was not allowed to wear a headscarf when dealing with customers, because her employer had a general ban on any employee display of religious or political belief.

Next, the ECJ ruled on whether there was any indirect discrimination (ie discrimination not on religious grounds, but which affected people of a particular religion more than others). Such discrimination can be ‘objectively justified by a legitimate aim…if the means of achieving that aim are appropriate and necessary.’ In the Court’s view, the national court which had asked the ECJ these questions should consider that an employer’s ‘neutrality’ policy regarding customers was ‘legitimate’, and was part of its ‘freedom to conduct a business’.

However, such as policy had to be ‘systematic’ and ‘undifferentiated’ as regards different beliefs. It also should be considered whether it was limited to those workers who ‘interact with customers’, and whether it would have been possible to reassign the employee to a different role without ‘visual contact’ with customers, without the employer taking on an extra burden.

In the second case, the Court ruled that employers could not discriminate due to a customer request that employees not wear a headscarf.  This was not ‘a genuine and determining occupational requirement’ that could justify reserving a job to those who did not wear headscarves.

Summary

The ECJ’s rulings must be applied by the two national courts that requested it to rule. They are also binding more generally on the courts of all 28 EU Member States.

In principle the rulings mean that employers may ban employees from wearing headscarves, but only in certain cases. First of all, the cases only concern customer-facing employees, on condition that the employer has a ‘neutrality’ policy. The ECJ was not asked to rule on other groups of employees, but its rulings indicate that it would be more difficult, if not impossible, to justify bans in those cases. Nor was it asked to clarify further what a ‘customer-facing’ employee is exactly.

A neutrality policy mean an employer also has to ban other religious or political symbols worn by customer-facing employees. So no kippas, no crucifixes, no turbans – and no icons of Richard Dawkins either. This could be rather awkward in light of the human rights case law referred to above, which says wearing crucifixes (for instance) is sometimes an aspect of an employee’s right to manifest her freedom of religion.

There is a thin line between saying that employee headscarves can’t be banned just because customers ask for it on the one hand, and allowing employers to ban such clothing in effect due to anticipation of customer reaction. In practice this might prove something of a legal fiction.

The bottom line is that today’s judgments do not constitute a ‘workplace headscarf ban’, but merely permit employers to establish such a ban – subject to limits which might prove difficult to comply with in practice.

 

Parliamentary Tracker: European and national parliaments debates on the (third) Reform of the Common European Asylum System (28-02-17)

3rdReformAsylum280217

NOTA BENE : THIS IS NOT AN OFFICIAL RECORDING  See the LIBE official page (with background documents – webstreaming) here                   

by Luigi LIMONE (FREE Group trainee)                                                                                                                                                                        

UP TO THE CHALLENGE

Opening remarks by Claude Moraes, Chair of the Committee on Civil Liberties, Justice and Home Affairs of the European Parliament :  According to Claude Moraes this meeting was taking place at very crucial moment of the reform which will  be needed to overcome the crisis which erupted at the EU external borders  in 2015 under the mass influx of migrants coming notably from the war zones in Syria and Iraq. Since the entry into force of the Lisbon Treaty it should be now a common parliamentary endeavor to succeed in reforming these sensitive policies.

FIRST SESSION: Challenges related to the Common European Asylum System – Chaired by Claude Moraes, LIBE Committee Chair

a) Intervention of Hon. Carmelo Abela, Minister for Home Affairs and National Security, Maltese Presidency Council.  According to Hon. Carmelo Abela, when it comes to asylum, the EU is facing significant challenges like the urgent need to define future approaches for the solution of the migration crisis. The current EU legislative framework does not address the problem as it should do. Several amendments have been proposed by the Commission in order to reform the package on asylum legislation. The December 2016 Council conclusions on solidarity within the Dublin system provided that the EU should create a system built on solidarity, equal responsibility and based on political legitimacy. Discussions on the proposals already started and the Maltese presidency has already done some important efforts, but the road is still long.  The Minister confirmed that the reform was a priority for the Maltese Presidency. For him, the EU and the Maltese Presidency itself are facing significant challenges which should be addressed decisively and conclusively. He stated that the Maltese presidency would make every effort to achieve its objectives. However, it is worth noting that the presidency cannot succeed alone, it needs the help of the national Parliaments in order to create a durable and successful system of asylum.

b) Intervention by Dimitris Avramopoulos, European Commissioner for Migration, Home Affairs and Citizenship. Avramopoulos said that the reform of the Common European Asylum System (CEAS) remained a key priority of the EU. For this reform to be successful the EU needs to build a constructive dialogue between the Union and the representatives of the national Parliaments. According to him, purely national measures do not bring positive results, since nationalist approaches simply undermine the common strategy the EU wishes to adopt. A true spirit of solidarity and shared responsibility is required in order to: define a functioning system for asylum seekers; protect the EU external borders; dismantle the trafficking system; regulate irregular migration; manage return and readmission; accelerate the relocation process. The EU should face the challenge of the large amount of unaccompanied minors as well, together with the fight against secondary movement and asylum shopping. The renovated CEAS would help strengthen mutual trust among Member States, which is necessary not only for the efficiency of the system but also to provide asylum applicants with dignified treatment. The reform is therefore necessary to obtain a higher degree of harmonisation and greater convergence of measures, as well as an equal repartition of responsibilities among Member States.  The success of this reform depends on the implementation of solidarity mechanisms. A clear, predictable and efficient Dublin system is fundamental for the realization of a Union without internal borders. In this respect, sanctions for non-compliance with the rules are necessary, especially to fight secondary movement. Furthermore, resettlement and relocation should become compulsory for all Member States, especially with regard to unaccompanied minors. Ultimately, Avramopoulos proposed to have a Union resettlement framework for persons in need of international protection, which would enable to eliminate differences among national practices. Member States have to show their political willingness to work together and the EU needs to achieve a common understanding on how the future CEAS should function. This should happen through the support of the Maltese Presidency. It is the time to move on with this proposal and look at the migration phenomenon in a more strategic, comprehensive and positive manner. The sooner migrants and refugees are integrated in the host societies and in the labor markets, the more the Union can take advantage of their inclusion. In order to accomplish these goals, the EU needs the involvement of all stakeholders and EU citizens.

c) Interventions of National Parliaments representatives and of MEPs. Continue reading “Parliamentary Tracker: European and national parliaments debates on the (third) Reform of the Common European Asylum System (28-02-17)”

Parliamentary Tracker : a new episode of the EU-US visa waiver saga…

by Emilio De Capitani

Yesterday March 2nd the European Parliament has adopted a resolution (see below ) by which it has set a deadline to the Commission to adopt a delegated act which will trigger the reciprocity mechanism with the US because it still  does not grant a visa waiver to all the EU citizens. The latest Plenary debate on this subject took place following an oral question on December 14, 2016 (see here  and below the intervention of the LIBE Chairman and of the Commissioner Avramopoulos)

It is worth recalling that Reciprocity  is a basic principle framing the relations between States in the international arena and that in the visa policy domain the EU Member States may no more trigger alone this mechanism since the transfer of visa policies to the  EU 25 years ago with the Treaty of Maastricht.

The main EU legislative text dealing with reciprocity in visa domain is the Council Regulation (EC) No 539/2001 of 15 March 2001  which has been amended dozen times also in codecision  since the entry into force of the Amsterdam treaty (1999) and the gradual transfer of these policies under the “ordinary” regime.  The problem is that this transfer of competence from the MS to the EU has been recognized by almost all the third States except Canada, and ..the US. However, as far as Canada is concerned Prime Minister Trudeau has just confirmed that  the visa requirement will be lifted for all EU citizens  in December this year.

As far as the US are concerned  the European Commission was notified on April 2014, that  the EU citizens of Bulgaria, Croatia, Cyprus, Poland and Romania still cannot enter US territory without a visa, while US citizens can travel to all EU countries visa-free.

On the US side the visa issue has still to be settled bilaterally with each EU member state concerned (see the US legal framework here) and to obtain the US visa waiver the Country concerned should give access to a vast amount of confidential information and respect some strict thresholds connected to the return of its nationals. The point is that if the same standards were applied to the EU as a whole the visa waiver would be granted to everyone but for the US the EU is still not yet a valid counterpart because national  passport remain …national (?!). Needless to say this situation make furious the EU member states whose citizens are not granted the visa waiver (see the Polish position here) because they are no more competent in this domain. Their only possibility is to notify the situation to the Commission (as they did on 12 April 2014) so that the Commission can do its best to find in a two years time a positive solution with the third State concerned. According to the EU regulation into force if the situation is not settled the Commission should adopt a delegated act ( to which both Parliament and the Council may object following art 290 of TFEU) suspending the visa waiver for the third Country national for 12 months.

By so doing not only the EU will preserve the equality between its member states (who can no more protect themselves) but will ensure that all the EU citizens enjoy the same protection. The point is that  the Commission should have acted before 12 April 2016 as far as the US and Canada were concerned but almost one year later it has yet to take any legal measure  (see the latest Commission communication here )

Will the Commission obtain from the Trump administration what has been unable to obtain from the previous Bush and Obama administration ? We may have some doubts but the road ahead looks rather bumpy ..

——————————–

European Parliament resolution of 2 March 2017 on obligations of the Commission in the field of visa reciprocity in accordance with Article 1(4) of Regulation (EC) No 539/2001 (2016/2986(RSP))

The European Parliament,

–      having regard to Council Regulation (EC) No 539/20011, in particular Article 1(4)

thereof (‘the reciprocity mechanism’),

–      having regard to the Commission communication of 12 April 2016 entitled ‘State of play and the possible ways forward as regards the situation of non-reciprocity with certain third countries in the area of visa policy’ (COM(2016)0221),

–      having regard to the Commission communication of 13 July 2016 entitled ‘State of play and the possible ways forward as regards the situation of non-reciprocity with certain third countries in the area of visa policy (Follow-up of the Communication of 12 April)’ (COM(2016)0481),

–      having regard to the Commission communication of 21 December 2016 entitled ‘State of play and the possible ways forward as regards the situation of non-reciprocity with certain third countries in the area of visa policy (Follow-up to the Communication of 12 April)’ (COM(2016)0816),

–      having regard to Article 17 of the Treaty on European Union (TEU) and Articles 80, 265 and 290 of the Treaty on the Functioning of the European Union (TFEU),

–      having regard to its debate on ‘Obligations in the field of visa reciprocity’ held on 14 December 2016 in Strasbourg,

–      having regard to the question to the Commission on obligations of the Commission in the field of visa reciprocity in accordance with Article 1(4) of Regulation (EC) No 539/2001 (O-000142/2016 – B8-1820/2016),

–      having regard to the motion for a resolution of the Committee on Civil Liberties, Justice and Home Affairs,

–      having regard to Rules 128(5) and 123(2) of its Rules of Procedure,

A. whereas the criterion of visa reciprocity as one of the criteria guiding the EU’s visa
policy is generally understood to imply that EU citizens should be subject to the same
conditions when travelling to a third country as the nationals of that third country are when travelling to the EU;

B. whereas the purpose of the visa reciprocity mechanism is to achieve such visa
reciprocity; whereas the EU’s visa policy prohibits individual Member States from
introducing a visa requirement for nationals of a third country if this country is listed in Annex II to Regulation (EC) No 539/2001 (countries whose nationals are exempt from the visa requirement for short stays);

C. whereas the reciprocity mechanism was revised in 2013, with Parliament acting as co-legislator, as it needed to be adapted in the light of the entry into force of the Treaty of Lisbon and of the case-law of the Court of Justice of the European Union on secondary legal bases and ‘to provide for a Union response as an act of solidarity, if a third country listed in Annex II to Regulation (EC) No 539/2001 applies a visa requirement for nationals of at least one Member State’ (Recital 1 of Regulation (EU) No 1289/2013);

D. whereas the reciprocity mechanism sets out a procedure starting with a situation of non-reciprocity with precise timeframes and actions to be taken with a view to ending a situation of non-reciprocity; whereas its inherent logic entails measures of increasing severity vis-à-vis the third country concerned, including ultimately the suspension of the exemption from the visa requirement for all nationals of the third country concerned (‘second phase of application of the reciprocity mechanism’);

E. whereas ‘in order to ensure the adequate involvement of the European Parliament and of the Council in the second phase of application of the reciprocity mechanism, given the particularly sensitive political nature of the suspension of the exemption from the visa requirement for all the nationals of a third country listed in Annex II to Regulation (EC) No 539/2001 and its horizontal implications for the Member States, the Schengen associated countries and the Union itself, in particular for their external relations and for the overall functioning of the Schengen area, the power to adopt acts in accordance with Article 290 of the Treaty of the Functioning of the European Union [was] delegated to the Commission in respect of certain elements of the reciprocity mechanism’ including the suspension of the exemption from the visa requirement for all nationals of the third country concerned;

F. whereas ‘the European Parliament or the Council may decide to revoke the delegation’ (Article 290(2)(a) TFEU);

G. whereas a delegated act ‘may enter into force only if no objection has been expressed by the European Parliament or the Council within a period set by the legislative act’
(Article 290(2)(b) TFEU);

H. whereas the Commission contested the choice of delegated acts in the second phase of application of the reciprocity mechanism before the Court of Justice of the European Union, and whereas the Court considered however the choice of the legislator to be correct (Case C-88/14);

I. whereas the mechanism thereby clearly assigns obligations and responsibilities to Parliament and the Council and to the Commission in the different phases of the reciprocity mechanism;

  1. Considers the Commission to be legally obliged to adopt a delegated act – temporarily suspending the exemption from the visa requirement for nationals of third countries which have not lifted the visa requirement for citizens of certain Member States – within a period of 24 months from the date of publication of the notifications in this regard, which ended on 12 April 2016;
  2. Calls on the Commission, on the basis of Article 265 TFEU, to adopt the required delegated act within two months from the date of adoption of this resolution at the latest;
  3. Instructs its President to forward this resolution to the Commission, the European Council, the Council and the national parliaments.

(1) 1 OJ L 81, 21.3.2001, p. 1.

EXCERPT EP DEBATE (December 14) VISA RECIPROCITY

Claude MORAES (author of the Oral Question). – Mr President, (…) We now come to the important oral question, which many colleagues have been waiting for, on the very important, compelling and urgent issue of visa reciprocity. As colleagues will know, this is an ongoing issue of urgency, not just for those five countries and the citizens of those five countries – Poland, Romania, Bulgaria, Croatia and Cyprus – but indeed a matter of principle for the whole House on questions of symmetry and equality in our relationship with the United States.

In 2013, Parliament and the Council adopted a regulation modifying, amongst other elements, the so-called reciprocity mechanism. It entered into force in January 2014. Under EU law and according to this mechanism, if a third country does not lift visa requirements 24 months after notification of a situation of non—reciprocity, the Commission is obliged to suspend the visa waiver for citizens of that country for 12 months, via a delegated act to which Parliament and the Council could object.

Notifications of five Member States – and I have named them – were published by the Commission on 12 April 2014. There were at times cases of non—reciprocity also affecting Australia, Japan and Brunei and all of them have now been solved. After 24 months had elapsed, on 12 April 2016, the Commission, instead of presenting the delegated act as we required, decided to publish a communication asking the Council and Parliament for their views. This communication was followed by another communication on 13 July updating the situation and again failing to fulfil the Commission’s obligations.

As Chair of the Committee on Civil Liberties, Justice and Home Affairs, it is my view that the reciprocity mechanism sets out a procedure with precise time frames and actions not subject to discretionality by the Commission. Therefore, the Commission is under an obligation to adopt a delegated act pursuant to Article 1(4)(f) of Regulation 539/2001.

As the Commissioner knows, on 7 June 2016, I sent a letter reminding you, Commissioner, of the legal obligations of the Commission here. On 12 October, during the exchange we had with you in the Civil Liberties Committee, the Commission was again urged to act and all the Members who took the floor made it clear that the Commission does have some more room for manoeuvre. This was our view.

In this context, and with an overwhelming majority, we have in the Civil Liberties Committee adopted the following oral question for answer today: do you share the legal assessment according to which the Commission is obliged to adopt a delegated act – temporarily suspending the exemption from the visa requirement for nationals of third countries which have not lifted the visa requirement for citizens of certain EU Member States – within a period of 24 months from the date of publication of the notifications in this regard, which ended on 12 April 2016? In the event that the Commission agrees with the assessment that it is obliged to adopt a delegated act, by when will the Commission present this delegated act? And finally, if the Commission does not agree, what are the reasons for not agreeing with that assessment?

This issue, as I said at the beginning of my presentation of this oral question, is not just about the deep and very understandable concerns of our colleagues from Poland, Romania, Bulgaria, Croatia and Cyprus; it is about the idea that we in the EU have the right to expect symmetry and equality with the United States in our relationship. We are right to expect fairness. The right to expect fairness is something that we have transmitted directly to our United States partners and to the State Department in Washington, and we did so respectfully and forcefully

(…)

Commissioner AVRAMOPOULOS : Mr President, honourable Members of the Parliament, let me start by telling you that I welcome the opportunity to discuss this very important matter, being already fully aware of your expectations. In October I discussed this with the members of the Committee on Civil Liberties, Justice and Home Affairs (LIBE). You will remember that, Mr Moraes. It should be clear that we all share the same objective. Full visa reciprocity is the central principle of our visa policy framework. With the United States and Canada it is a challenging and sensitive issue, and we all hope for tangible progress.

Before responding to the questions, let me start with the good news concerning Canada. As I told you in the past, I used the window of opportunity offered to us, the EU-Canada summit. A series of meetings and discussions were held ahead in order to reach a mutually satisfactory agreement. I took the plane myself to meet in person the Canadian Immigration Minister John McCallum, in order to address the real situation at political and not at technocratic level. We had a very constructive discussion with the minister and we agreed to engage in a political process to address each other’s concerns and make the lifting of visa obligations for Romania and Bulgaria possible. Indeed, and as I had hinted in my meeting with LIBE, Canada took a positive decision in line with the commitment of McCallum in July. At the summit Canada announced its decision to lift in late 2017 the visa requirements for all Bulgarian and Romanian citizens. Moreover, certain categories of Bulgarian and Romanian travellers who visited Canada in the past 10 years, or who currently possess a valid visa issued by the United States, will already become visa-free from 1 May 2017.

We all welcome very much this outcome. It is a strong indication that diplomatic channels and engagement can achieve positive results. On this point, I would like to thank Members of Parliament for their constructive contribution too. We worked in close coordination with Bulgaria and Romania and they played a central role in addressing Canadian concerns. We have to continue this path to ensure that full visa waiver is achieved. The Commission will continue to do its part, in full cooperation with both Member States.

Now the situation with the United States is different. While I continue discussions with our US partners, most recently at the EU-US JHA Ministerial Meeting on 5 December in Washington, there is no progress to report. But I want to assure you that I will keep this issue high on the agenda with the new administration and Congress. I will personally immediately engage in conference with my new counterparts. I call on all of you to give a chance for the political discussion to take place and to explain the mutual obligations, reservations, goals and work to find a solution.

It is very important to understand that the role of Congress is crucial. The visa waiver programme cannot be expanded without Congress, particularly if Member States do not meet the thresholds of US legislation. It seems certain that temporarily suspending the visa waiver for US citizens would immediately lead to a visa requirement imposed on all EU citizens. We are aiming for the opposite, not a reciprocal visa requirement but a reciprocal visa waiver. Let me be very clear. The Commission would not hesitate to adopt the respective acts if that would improve the situation of EU citizens, and lead to the visa waiver for all. At the same time, the Commission has a responsibility to inform you, the co-legislators, about negative consequences on the EU and its citizens from the implementation of our rules.

And this leads me to your questions. There is a regulation that says ‘the Commission shall adopt a delegated act’. But there are also other requirements and obligations to be followed which are difficult to reconcile with this obligation, and which are equally important. The same regulation says that: ‘the Commission shall take into account the consequences of the suspension of the exemption from the visa requirements for the external relations of the Union and its Member States with the third country in question’.

The approach we put forward back in April outlined these adverse consequences. We still consider that the negative impacts we identified, which were not questioned by other institutions and stakeholders, should be taken fully into account. If a visa requirement is reintroduced, it will be difficult to explain to millions of EU citizens travelling to the United States every year that the EU serves their interests and that the EU action was appropriate in this case. Would legal arguments be convincing for thousands of EU citizens that would likely lose their jobs due to the expected decrease of US visitors? I very much doubt it.

A recent study for the World Travel and Tourism Council suggests that suspending the visa waiver would annually lead to a 22% drop in visitors to the European Union, or 5.5 million fewer visitors from the United States and Canada. This will be equal to a loss of EUR 6.8 billion annually, risking the loss of 140 000 jobs in the tourism industry. The most affected Member States will be Italy, Spain, France, Germany, the Netherlands and Poland. I am asking the question: can we really afford that loss?

Dear Members of Parliament, we are in a very unpleasant situation, but determined to work to achieve visa-free travel for all EU citizens to the United States, as we managed to do with Canada. Let us work together in this effort

 

 

Bargaining Chips No More: The Status of EU and UK citizens after Brexit

ORIGINAL PUBLISHED ON EU LAW ANALYSIS 

by Steve Peers

Introduction

Today, the results of an inquiry into the status of EU citizens in the UK after Brexit, set up by the NGO British Future, are released. I was a member of the panel of that inquiry, which sought to bring together supporters of both the Leave and the Remain side, from different political parties and from outside Parliament as well.

This blog post has three related objectives: a) to set out and defend the main recommendations of the inquiry regarding EU citizens in the UK after Brexit; b) to set out my own recommendations for what should happen to UK citizens in the EU after Brexit; and c) to discuss the idea (floated recently) of ‘associate citizenship’ of the EU for UK citizens after Brexit. Just to make clear, the second and third points were outside the remit of the British Future inquiry – but I think it makes sense to look at those issues in parallel today. Obviously, the comments here on the latter two points are mine alone, and my views on them are not necessarily shared by any of the other people on the panel.

Results of the Inquiry: Recommendations on EU citizens in the UK

The basic starting point of the inquiry is that EU citizens who were in the UK exercising rights on the basis of EU law before a cut-off date should retain their rights after Brexit. This was the explicit position of many senior people on the Leave side during the referendum campaign, and necessarily also reflects the views of those on the Remain side, who were advocating the continued application of EU free movement law to the UK.

It is also consistent with the international law principle of ‘acquired rights’ in international law. It’s unlikely that this principle could, by itself, ensure enforceable protection of specific individual rights in British law, for the reasons explained by Professor Douglas-Scott. However, the UK certainly ought to act to give practical effect to this principle. Equally, the proposal takes account of the barriers to expelling many EU citizens imposed by human rights law, discussed by Matthew White here.

Quite apart from legal considerations and political promises, it would give effect to basic ethical principles of humanity and fairness: it would be morally wrong to disrupt the lives of people who came to the UK legally and have contributed a great deal to it. Their anxiety and uncertainty about the future should be alleviated as soon as possible.

Our recommendation would in effect create a special ‘ex-EU’ status for EU citizens who were resident in the UK before the cut-off date. Those who were already entitled topermanent residence status as of the cut-off date would keep that status (or their entitlement to apply for it). Those who were resident in the UK as of the cut-off date, but who had not yet earned entitlement to permanent residence status could still obtain it over the next five years. Those who first arrive after the cut-off date would be entitled to invoke EU free movement law in the UK until Brexit Day, after which point they would switch to ‘ordinary’ UK immigration law status, whatever that might be. (It remains to be seen whether the EU and the UK negotiate some agreement on immigration issues, which might entail a preferential status falling short of free movement of people, after Brexit).

Ex-EU status for EU citizens in the UK would entail keeping all the same rights they would have had if the UK had stayed in the EU, in terms of access to employment and equal treatment. There are several advantages to this approach.

First of all, this approach would be easy to reciprocate on the EU side, for UK citizens living in the EU (more on that below). Secondly, it would be easier to administer: forcing all EU citizens in the UK to apply for a completely new distinctly British status would cost a fortune, and it would take years to process all the applications. Having said that, there will be some difficulties of implementation in practice, although some complications are unavoidable no matter what approach is taken to this issue. The report of the inquiry makes some detailed suggestions about how implementation could work.

Thirdly, the proposed approach would come with built-in legal clarity, since the rules governing EU free movement law are already the subject of EU legislation and many court judgments. Finally, it would be consistent with the government’s plans for a ‘Great Repeal Act’, which will keep EU law on the British statute book until Parliament (or, if given power, the executive) decides to amend or repeal it.

We chose a cut-off date of the official start of the process of leaving the EU. This is earlier than Brexit Day, on the basis that people that come after the notification date cannot expect to enjoy EU free movement rights in the UK indefinitely after Brexit Day. However, it is later than the referendum date, on the basis that EU citizens who arrived before the process of leaving the EU officially began should not be prejudiced.

Finally, why recommend that the UK act unilaterally, before the EU guarantees the status of UK citizens in the EU? Firstly, because of the principles of humanity and fairness discussed above: EU citizens in the UK should be regarded as ends and not means, and certainly not as bargaining chips. Secondly, because a principled position taken unilaterally by the UK could reduce the political tension on this issue, and make it easier to reach a bilateral agreement once talks start. If it adopts our recommendations as regards the position of EU citizens in UK law, the UK government could and should point out that it expects the EU side to agree to the same principles, particularly given that our recommendation would be easy for them to reciprocate.

UK citizens in the EU

So far, the EU has refused to negotiate on the status of EU and UK citizens post-Brexit, because the UK has not yet officially notified its intention to leave the EU. While it is unfortunate that negotiations have not already started, those who condemn the EU for its position but who also voted Leave should reflect that it was their vote that threatened the status of the people concerned in the first place.

Once Brexit negotiations begin, hopefully the negotiators will tackle this issue first and aim to reach early agreement on it, so that the people affected can make firm decisions about their future and administrations can prepare to implement the rules in practice. In principle, it should be easy to reach agreement, if both sides aim for a reciprocal ‘ex-EU’ status. Since the issue logically falls within the scope of Article 50 TEU, as an issue to be agreed as part of the Brexit process, it should not be necessary to get unanimous agreement of Member States or to subject the deal to national ratification by Member States (the Article 50 deal can be approved by a qualified majority of Member States in the EU Council).

As I suggested on the day after the referendum, it would be best to have rules in the withdrawal treaty on this issue which are legally binding, define the exact scope of the rule, can be supplemented by further joint measures if needed, and must be fully applied in further detail in national law. I suggested some wording for the Article 50 treaty (now amended to make clear that non-EU family members of UK and EU citizens are covered):

  1. Any citizens of the UK residing in the EU as of [Brexit Day] and their family members, and any EU citizens residing in the UK as of that date and their family members, shall retain any rights which they acquired pursuant to EU free movement law before that date. They shall also continue to acquire rights which were in the process of acquisition as of that date.
  1. The parties shall give full effect to this principle in EU or national law, as the case may be.
  1. The EU/UK Joint Committee may adopt further measures to implement this rule.

The British Future report describes how the UK could implement such a legal obligation in its law. The EU side could best implement its corresponding legal obligation in the form of a short Regulation or Directive setting out general rules on ex-EU status, making consequential amendments to other EU laws. Later EU laws can then cross-refer to this basic law and/or the Article 50 deal.

Associate EU citizenship  Continue reading “Bargaining Chips No More: The Status of EU and UK citizens after Brexit”