4. European Union citizenship – Page 4 – European Area of Freedom Security & Justice

NEW!! : subscribe to the first summer school on the EAFSJ…

Roma, 8-11 July
Sala conferenze Fondazione Basso – via della Dogana Vecchia, 5 – Roma

The European Area of Freedom Security and Justice (EAFSJ): scope, objectives, actors and dynamics.

Aim: to take stock of the current state of EAFSJ and of its foreseeable evolution within the next multiannual program 2015-2019 (to be adopted under Italian Presidency at the beginning of the next legislature).
Lenght: 4 one day modules
Subscriptions: on line on the Fondazione Basso internet site : http://www.fondazionebasso.it
Participation fees:
Euro 480,00 (ORDINARY FEE).
Euro 200,00 (FOR STUDENTS / RESEARCHERS) .
(Bank Account of Fondazione Lelio e Lisli Basso – Banca Nazionale del Lavoro Ag. Senato Palazzo Madama: IBAN IT18I0100503373000000002777 ).
Subscriptions should be submitted before June 15th.The Summer School will take place only if a minimum number of subscribers is reached !For further information : tel. 0039.06.6879953 – basso@fondazionebasso.it
Languages: lessons will be mainly in Italian (some lessons will be in English and French), teaching material will be in Italian and/or English, French.
English/Italian translation will be available.
The programme is on the web-site of Fondazione Basso (www.fondazionebasso.it -Tel. 06.6879953 – email: basso@fondazionebasso.it)

July 8th
A Constitutional and Institutional perspective
09h00 am – 06h30 pm

Opening speeches:
Valerio Onida: Freedom, Security and Justice related policies from a constitutional perspective and in relation with international and supranational dimensions
Stefano Manservisi: After the Stockholm Programme : how to preserve the specificity of the European Area of freedom security and Justice related policies by integrating them in the general EU governance and legal framework?

Debate

Freedom Security and Justice as the core of the common constitutional european heritage
Protecting fundamental rights: the impact of the accession of the EU to the ECHR. A common European Constitutional Heritage arising from the Council of Europe and European Union European Courts. What can be expected from the Strasbourg Human Rights Court in areas related to the FSJ?.
Speaker: Giuseppe Cataldi

Freedom Security and Justice as the core of the common constitutional european heritage
Promoting fundamental rights: the European Charter and its impact on EU policies. Even if the Charter does not extend the EU competencies it is now a constitutional parameter to be taken in account not only by the European judges but also by the EU legislature, even for policies designed with a more limited scope.
Speaker:Ezio Perillo

Debate

Evolution and transformation of the principle of Primacy of EU law. Dialogue and mutual influence of European and national Constitutional Courts.
Fifty years after the landmark case of Van Gend en Loos and four years after the Lissabon-Urteil (Bundesverfassungsgericht judgment of 30.6.2009), the tensions between EU “limits” and national “counter-limits” could arise again notably in the EAFSJ area.
Speaker: Oreste Pollicino

The EAFSJ a cross road of European and national founding values (art. 2), as well as for fundamental and European citizenship rights. How manage the indivisibility of rights and a Member States differentiated integration ?
(Opt-in Opt-out Countries). How far can the EU impact on Member States internal legislation (Towards a “reverse Solange” mechanism)? How the EU and Council of Europe can influence national fundamental rights related policies
Speaker: Nicoletta Parisi

The EAFSJ as supranational constitutional area of democracy. From National State to the European Union: what kind of relation between national and european legal orders ?
Sixty years of EU integration have changed the concept of democracy and sovereignty. There is a metamorphosis in National State’ s traditional role and its constitutional elements such as territory, citizenship and sovereign power. The Kantian vision of a peaceful cosmopolitan project mirrors the category of EU citizenship arising in the EAFSJ. Today Habermas developed the concept of “Constitutional patriottism”, underlying a “constitutionalisation” of the European supranational area. What are the pro and cons of this EU perspective ? The post-Lisbon Treaty stressed that the EAFSJ is becoming the embryo of a European public sphere as well as of a first example of supranational democracy.
Speaker: Francesca Ferraro

Debate

July 9th
Institutional dynamics and EU practices
09h30 am – 06h30 pm

The EAFSJ before Lisbon. The intergovernmental cooperation. From “TREVI” via “Schengen” to Amsterdam. The first phase.
How formerly excluded EAFSJ related policies have been integrated into the EU framework. TREVI cooperation, the Schengen agreement (1985) and its 1990 Implementing Convention as well as the Dublin Convention on Asylum.
The emerging notion of supranational space in the Single European Act (1986). The mutual recognition principle in the Internal Market and in EAFSJ-related policies. The Schengen Acquis in the EU legal framework from Amsterdam to Lisbon. Opt-in and Opt-out Countries: the impact of differentiated integration. Schengen relevance and ECJ jurisprudence on the preservation of the Schengen system consistency. From cooperation to integration.
Speaker: Dino Rinoldi

Debate

The EAFSJ after Lisbon (1). How the EAFSJ specificity has been preserved by progressively integrating it in the ordinary EU (communitarized) legal institutional framework. The impact on the EU institutions and on the MS.
Dynamics and the role of the Institutions in promoting, negotiating and implementing the EAFSJ-related policies. European Council, European Parliament, Council of the European Union, Commission and Court of Justice interplaying in the EAFSJ. The preparatory work conducted behind the scene by the Commission Directorates General, the Council working bodies – COREPER, CATS, COSI – and the EP parliamentary committees
Speaker: Antonio Caiola

The EAFSJ after Lisbon (2) How democratic principles are fulfilled in the EAFSJ. The impact of the EP on legislative procedures.
The interparliamentary dialogue and the way how the EP and national parliaments play their role when verifying the subsidiarity and proportionality principles in the EAFSJ policies. The emerging role at EU level of “political families” represented at national European and international level (European political parties, EP political groups, national parties).
Speaker: Emilio De Capitani

Debate

The EAFSJ after Lisbon (3). How EU policies are framed and implemented at national level. How cooperation, mutual recognition and harmonisation are implemented
How EAFSJ policies are implemented at national level. Problems and opportunities arising notably when implementing the mutual recognition of other EU countries’ measures. How intertwined are the EU and national administration in the EAFSJ related policies. Is there complementarity between EU and National strategies? The EU financial levy as a facilitator of mutual EU-national coordination. The emerging role of EU Authorities and Agencies as a support and meeting space also for national administrations (Ombudsman, FRA, EDPS, FRONTEX, EASO, EMCDDA, EUROPOL, OLAF, CEPOL, EUROJUST, …).
Speaker: Lorenzo Salazar

Debate

July 10th
An European space of freedom and rights
09h30 am- 06h30 pm

The EAFSJ after Lisbon (4) Placing the individuale at the heart of EU activities
How EU legislation implements the principles of equality and non-discrimination. The ECJ jurisprudence and the phenomenon of reverse discrimination. EU citizenship-related jurisprudence. Judicial action at national and European level founded on the EU Charter. Infringement of EU founding values and fundamental rights as possible exceptions to the mutual recognition obligations? Fundamental Rights Agency.
Speaker: Valentina Bazzocchi

The EU evolving framework of Transparency, access to documents, principle of good administration, and of classified information
After Lisbon a more transparent independent and efficient EU administration can be founded on Arts 15 and 298 of the TFEU as well as Arts 41 and 42 of the European Charter. However the close intertwining of the EU and the Member States has created a hybrid system of European Classified Information (EUCI), which is particularly relevant in the EAFSJ policies. How do European and national institutions implement the EU principles? How is the principle of good administration secured? What role should the EU Ombudsman play?
Speaker: Deirdre Curtin

Protection of Personal Data. The EU reform.
After the Lisbon Treaty and the merger of the so-called first and third pillars, protection of personal data can be framed in a globally consistent manner. Informational self determination, protection against possible abuses by the private sector as well as by public sector (law enforcement authorities) can now be framed at European level by taking stock of the lessons learned at national and international level (Council of Europe, OECD). How to preserve the role of national authorities and of the new coordinating body.
Speaker: Vanna Palumbo

Freedom of movement border integrated management
Freedom of movement of European citizens as well as of third country nationals in the EU remains a central and controversial issue. The integrated external border management is progressively framed at legislative level (borders, visas..) and implemented at operational level also thanks to the emerging role of Frontex and of the new European networks (SIS II – VIS). New opportunities as well as risks emerge in the definition of the EU-Member State management of internal and external borders
Speaker: Luisa Marin

Debate

European Migratory policies
Objectives, legal framework and operational setting of the EU-Member State policies. Five years after the European Pact on Asylum and Migration (2008), what lessons can be drawn for the next (2015-2019) multiannual programme? What improvements can be foreseen for the EU migration governance at central and national level? How are the Member States implementing the EU legislation? What are the main external aspects of the EU migration policy?
Speaker: Henry Labayle

The European common asylum system (and of EASO and EURODAC)
After the first generation of EU “minimum” rules the EU has now established the Common European Asylum System foreseen by Art. 18 of the Charter and Art 78 of the TFEU by taking account of the jurisprudence of the Luxembourg and Strasbourg Courts. At national level high standards should be granted to avoid the problems found for instance with Greece when implementing the Dublin system. The principle of solidarity still seems to be underexploited. Attention should be paid to the new role of EASO (Reg. (EU) No 439/2010) as well as to the implementation of the EURODAC system.
Speaker: Patricia Van de Peer

Debate

July 11
An European space of security and justice
09h30 am -06h30 pm

Judicial cooperation in civil matters; complement of the freedom of movement?
Judicial cooperation in civil matters has been one of the most dynamic domains after the entry into force of the Lisbon Treaty. Enhanced cooperation took place in matrimonial matters and intellectual property. Special attention will be reserved for the recently revised Brussels I Regulation (which abolished the “exequatur” procedure) as well as for the new Regulations on succession and wills and on mutual recognition of protection measures in civil matters.
Speaker: Filomena Albano

Internal security strategy: crisis prevention and management.
Special attention will be paid to the implementation of the 2010 European Internal Security Strategy and its impact on the cooperation between the EU institutions and agencies as framed by the “Policy Cycle” for the 2013-2017 period. There will also be a presentation of the implementation of PRUM cooperation and of the “availability principle” as well as the way how security- and intelligence-related information is exchanged notably within the framework of the so-called “Swedish Initiative”. The role played by COSI, Europol and of the internal security fund will be presented and debated together with the impact of the up-coming “Lisbonisation” of EU measures adopted before the entry into force of the Lisbon Treaty
Speaker: Sandro Menichelli

Debate

Judicial Cooperation in criminal matters
How judicial cooperation in criminal matters has been developed between countries of different legal traditions (civil and common law). Problems and opportunities arising at each level of cross-border cooperation (open coordination, mutual recognition, legislative harmonisation). The European jurisprudence (Strasbourg and Luxembourg Courts) as well as the impact of the EU Charter. The implementation of the first post-Lisbon measures and impact of the Lisbonisation of former third pillar measures in this domain. Preserving the independence of the judiciary: towards European-wide judiciary quality evaluation systems.
Speaker: Luca De Matteis

The European Public Prosecutor: a pattern also for Member States?
The OLAF Reform and the Eurojust “Lisbonisation” are intermediate phases towards the creation of the European Public Prosecutor’s office (EPPO) (Art. 86 TFEU). The latter will be empowered to bring action also before national courts. The European legislation will determine the general rules applicable to the European Public Prosecutor’s Office, the conditions governing the performance of its functions, the rules of procedure applicable to its activities, as well as those governing the admissibility of evidence, and the rules applicable to the judicial review of procedural measures taken by it in the performance of its functions. What will be the impact, the risks and opportunities arising from the creation of this new European Institution?
Speaker: Claudia Gualtieri

How to empower the EU citizens when EAFSJ are shaped and implemented ?
Round Table with the Intervention of Paul Nemitz, Antonie Cahen, Robert Bray Tony Bunyan

Final Debate

PRESENTATION OF THE COURSE

The Treaty of Lisbon and the Charter of Fundamental Rights of the European Union, which entered into force on 1 December 2009, constituted an important step both at the legal level and at the political level in the evolution of the European Union. The aim of the EU now is not only “… to promote peace, its values and the well-being of its peoples”, having presided over, since the end of the Second World War, the longest ever period of peace between European States, but also to achieve “… an area of freedom, security and justice with respect for fundamental rights and the different legal systems and traditions of the Member States.”

After the Treaty of Lisbon, the policies already provided for in the Maastricht Treaty within the framework of the so-called “third pillar” and originally focused mainly on intergovernmental cooperation and cooperation between administrations, are now to evolve into European “common policies” directly towards the interests of the individual, who is placed “at the heart of European integration.”

It is a Copernican revolution in so far as the Union is called not only to offer “… its citizens an area of freedom, security and justice without internal frontiers, in which the free movement of persons is ensured in conjunction with appropriate measures with respect to external border controls, asylum, immigration and the prevention and combating of crime” (Art. 3 TEU and Title V TFEU) but also to promote (and not only protect) fundamental rights and prevent all forms of discrimination (Art. 10 TFEU) and strengthen EU citizenship (Arts 18-25 TFEU) and with it the democratic principles on which it is based (Title II TEU).

The fact that the competences related to the ASFJ are now “shared” with the Member States (Art. 4 TEU) and are to be focused on the rights of the person brings about a daily interaction between the national and the European level, bringing into play national and European values, rights and objectives.

The process of reciprocal hybridization between the nascent European model and traditional national models is anything but politically painless, as the experience of almost thirty years of Schengen cooperation shows.

The aim of this Summer School is to assess the progress and difficulties encountered by the European institutions and the Member States in implementing the Charter of Fundamental Rights and the objectives set by the European Council in the “Stockholm Programme” of 10 December 2009.

Based on this evaluation, we intend to shed light on the possible priority bearing in mind that:
– it will be necessary to adjust the secondary legislation of the European Union in the light of the values and principles which are now enshrined in the Lisbon Treaty and the Charter of Fundamental Rights (“Lisbonisation”);
– we shall be in the final phase of the accession of the EU to the European Convention on Human Rights;
– at the beginning of the next legislature, we will be entering into a new phase in the European judicial area with the negotiations on the establishment of the European Public Prosecutor and the transition to the ordinary legislative procedure with regard to measures of police and judicial cooperation in criminal matters adopted before the entry into force of the Treaty (the transitional arrangements end on 1 December 2014);
– Member States which have hitherto enjoyed special treatment (Ireland, Denmark and the United Kingdom in particular) should have clarified their position with respect to the new phase of the ASFJ and the Schengen cooperation.

In the course of the next legislature it will also be necessary to promote greater consistency between European and national strategies related to the European area of freedom, security and justice. Just as in the economic sphere, the divergence of national public policies has put at risk the credibility of the common currency, the diversity of standards for the protection of the rights in Member States is straining mutual trust, the application of the principle of mutual recognition and the very credibility of the nascent “European model”. The strengthening of the operational solidarity between Member States’ administrations – which is being developed for example within the framework of Schengen cooperation – must be accompanied by legislative, operational and financial measures that implement solidarity between European citizens and third-country nationals on the territory of the Union.

In this perspective, Italy may play an important role as the new multi-annual programme for 2015-2019 is to be adopted by the second half of 2014 under the Italian Presidency.

Speakers:

Academics:
Valerio Onida, Former President of the Italian Constitutional Court
Giuseppe Cataldi, Pro-rettore Università L’Orientale (Napoli)
Oreste Pollicino, Public comparative law Professor (Università Bocconi – Milano)
Nicoletta Parisi, EU Law Professor (Università Catania)
Francesca Ferraro, Visiting Professor (Università L’Orientale – Napoli)
Dino Rinoldi, International Law Professor (Università Cattolica – Piacenza)
Valentina Bazzocchi, PHD EU Law (Alma Mater Università Bologna)
Deirdre Curtin, Professor of European Law (University of Amsterdam – NL),
Luisa Marin, Assistant Professor of European Law (University of Twente – NL)
Henri Labayle, Professeur de Droit international et européen (Université de Pau et des
pays de l’Adour – France)

Representatives and officials of European and national administrations:
Ezio Perillo (European Civil Service Tribunal)
Stefano Manservisi DG of the Commission DG Home
Paul Nemitz Director at the Commission DG Justice
Antoine Cahen, Patricia Van Den Peer, Claudia Gualtieri (European Parliament)
Filomena Albano, Luca De Matteis, Lorenzo Salazar (Italian Justice Ministery)
Sandro Menichelli (UE Italian Permanent Representation )
Vanna Palumbo (Garante Privacy IT)

Representatives of Civil Society:
Tony Bunyan, Director of Statewatch,Emilio De Capitani, FREE Group Secretary and Visiting Professor (Università L’Orientale – Napoli)

An european area of freedom, security and justice ? Paving the way from Stockholm …to Rome in 2014

On November 7th the FREE Group submitted to the Chairman and other members of the Civil liberties Committee of the European Parliament its “Call for a true European Area of Freedom Security and Justice”. The main aim of the “Call” was to evaluate what has been done (or not done) since the entry into force of the Lisbon Treaty and the adoption of the Stockholm Programme.
Learning from failures and successes is a pre-condition for the new phase which will start from December 1st, 2014 (at the end of the five-years transitional period for the measures adopted before the Lisbon Treaty in judicial and police cooperation domain) (1).

According to the FREE Group “CALL” from December 2014 onward, EU and its Member States have to close the current gap between the EU legislation and the principles and objectives now outlined in the Treaties and in the European Charter of fundamental rights. Needless to say, the “lisbonisation” of police and judicial cooperation in penal matters, (1) will be the first test of the real will of the member States and of the EU institutions. Unfortunately the current situation is not promising at all and the announced UK opt-out will not make things easier either.
However, a fundamental shift of responsabilty between the EU institutions is also needed to make the EAFSJ more legitimate and credible.

The European Council which has acted until now practically alone when it has adopted the multiannual programmes of Tampere (1999), Den Haag (2004) and even Stockholm (2009). It should now accept the fact that after Lisbon, even if it will maintain its strategic role in this area (art.68 TFEU) it has to play it by taking in account the new EU institutional balance arising from the Treaties and the Charter. The new role of the European Parliament, of the Commission and of the Court of Justice in the EAFSJ policies requires a different relation with the European Council which is no more the “Deus ex machina” but an institution which like all the others should respect the principle of loyal cooperation, abide to the obligations of transparency (art. 15 TFEU), respect of democratic principles, dialog with civil society (art.11 TEU) and, last but not least, be accountable to the EU citizens.
In this perspective a strong interaction with the other Institutions directly elected by the european citizens such the European Parliament and of the national parliaments become unavoidable.
Moreover a stronger integration of the European Council within the “ordinary” EU institutional dialogue will not only re-establish the checks and balances within the EU (required since 1958 by the ECJ “Meroni” ruling) but could also trigger as a substantial effect, a real political debate also betweeen the european political “families” which still prefers hiding themselves behind the EU institutional machinery.
If such an open political debate arises it will be extremely beneficial for the all EU construction and could prove that the EAFSJ policies are no more an area restricted to skilled diplomats and burocrats “elites” shaping the Council and Commission’s Strategies, Conclusions, Guidelines, Roadmaps… .

The future Italian Presidency of the EU Council which will take place in the second semester of 2014, could play a decisive role for a more transparent and democratic phase of the EAFSJ.

However to make this change possible hard preparatory work is needed and should start already now because the EU is a sort of “super carrier” which requires time and skillfulness to change its direction. Moreover as soon as this change of strategy will become apparent it will inevitably create the opposition inside the Council, the Commission and even in the European Parliament as it happened for the “access to documents” file. It is well known that soon after the “Turco” ruling of the Court of Justice which has required more transparency in the Council and Commission these institutions have developped a clear opposite strategy to “protect” their old decision making procedures.

This kind of turf wars between the EU institutions could be extremely dangerous from an european citizen’s perspective because the EAFSJ policies should now be negotiated and implemented in full compliance with the EU Charter. They have become the core of a new European Public order which can be considered democratic only if the EU citizens and their representatives could influence both the national and European level. This objective was crystal clear when the Charter has been negotiated, and it has been reiterated also by seminal ruling of national Constitutional Courts, but since then it looks fading away from the EU legislative works and debates.

However this sort of resilience of the “Maastricht style” even after the Lisbon Treaty and EU Charter risks to be a slippery slope for the EAFSJ policies.

For thirty years the EU has underestimated the close relation between the EURO and a true EU Economic policy; let’s hope that the same mistake will not be repeated for the relation which has now to established between the EU Charter and the relevant EAFSJ policies. They should no more evolve, as it is still now the case, in a parallel world separated from the other EU policies notably in the economic and social sphere. In politics (as in nature) everything is linked. Again, the role that the future Italian Presidency could play will be extremely important because it will be at the beginning of a new EU legislature as well as of the new 18^th months Trio Presidency cycle which will cover from 1^st of July 2014 to December 31^st 2015.

By framing the new global EU roadmap bringing together the EAFSJ policies with the new EU 2020 agenda the Italian Presidency can make the difference by setting a new bridge on (still) troubled waters.

EDC

1. See artt 9 and 10 of Protocol 36 on “TRANSITIONAL PROVISIONS CONCERNING ACTS ADOPTED ON THE BASIS OF TITLES V AND VI OF THE TREATY ON EUROPEAN UNION PRIOR TO THE ENTRY INTO FORCE OF THE TREATY OF LISBON

Article 9
The legal effects of the acts of the institutions, bodies, offices and agencies of the Union adopted on the basis of the Treaty on European Union prior to the entry into force of the Treaty of Lisbon shall be preserved until those acts are repealed, annulled or amended in implementation of the Treaties.
The same shall apply to agreements concluded between Member States on the basis of the Treaty on European Union.

Article 10
1. As a transitional measure, and with respect to acts of the Union in the field of police cooperation and judicial cooperation in criminal matters which have been adopted before the entry into force of the Treaty of Lisbon, the powers of the institutions shall be the following at the date of entry into force of that Treaty: the powers of the Commission under Article 258 of the Treaty on the Functioning of the European Union shall not be applicable and the powers of the Court of Justice of the European Union under Title VI of the Treaty on European Union, in the version in force before the entry into force of the Treaty of Lisbon, shall remain the same, including where they have been accepted under Article 35(2) of the said Treaty on European Union.
2. The amendment of an act referred to in paragraph 1 shall entail the applicability of the powers of the institutions referred to in that paragraph as set out in the Treaties with respect to the amended act for those Member States to which that amended act shall apply.
3. In any case, the transitional measure mentioned in paragraph 1 shall cease to have effect five years after the date of entry into force of the Treaty of Lisbon.
4. At the latest six months before the expiry of the transitional period referred to in paragraph 3, the United Kingdom may notify to the Council that it does not accept, with respect to the acts referred to in paragraph 1, the powers of the institutions referred to in paragraph 1 as set out in the Treaties. In case the United Kingdom has made that notification, all acts referred to in paragraph 1 shall cease to apply to it as from the date of expiry of the transitional period referred to in paragraph 3. This subparagraph shall not apply with respect to the amended acts which are applicable to the United Kingdom as referred to in paragraph 2.
The Council, acting by a qualified majority on a proposal from the Commission, shall determine the necessary consequential and transitional arrangements. The United Kingdom shall not participate in the adoption of this decision. A qualified majority of the Council shall be defined in accordance with Article 238(3)(a) of the Treaty on the Functioning of the European Union.
The Council, acting by a qualified majority on a proposal from the Commission, may also adopt a decision determining that the United Kingdom shall bear the direct financial consequences, if any, necessarily and unavoidably incurred as a result of the cessation of its participation in those acts.
5. The United Kingdom may, at any time afterwards, notify the Council of its wish to participate in acts which have ceased to apply to it pursuant to paragraph 4, first subparagraph. In that case, the relevant provisions of the Protocol on the Schengen Acquis integrated into the framework of the European Union or of the Protocol on the position of the United Kingdom and Ireland in respect of the area of freedom, security and justice, as the case may be, shall apply. The powers of the institutions with regard to those acts shall be those set out in the Treaties. When acting under the relevant Protocols, the Union institutions and the United Kingdom shall seek to re-establish the widest possible measure of participation of the United Kingdom in the acquis of the Union in the area
of freedom, security and justice without seriously affecting the practical operability of the various parts thereof, while respecting their coherence.”

CALL FOR A TRUE EUROPEAN AREA OF FREEDOM SECURITY AND JUSTICE

By the “Fundamental Rights European Experts Group” (FREE Group) (see below)
“Let’s be driven by our values and not by our fears”

1. Three years after Lisbon the objective of an EAFSJ is still far away…

Three years after the entry into force of the Lisbon Treaty and of the European Charter of fundamental rights one can wonder if the European Union and its Member States are really committed to the objective of building the European Freedom Security and Justice Area. It is worth recalling that this objective dates back to 1997 when the Amsterdam Treaty was signed, but it has since then been substantially upgraded by the Lisbon Treaty.

After years of hard negotiations between the MS the EAFSJ has been tightly linked to a newly binding Charter of fundamental rights and some of the previous political, legal and democratic flaws have been solved. For three years the qualified majority voting has been the normal Council decision-making rule, the EP is a full co-legislator and the Commission and the European Court of Justice can fully play their role.

2. A deceiving outcome on quantitative and qualitative terms..

However notwithstanding these undeniable constitutional advances, the EU recent activity is quite deceptive both in quantitative as in qualitative terms. The EU and its MS seem still in a transitional and survival phase than in the long awaited building phase of true EAFSJ.

On quantitative aspects suffice it to note that since the beginning of the legislative term less than fifty legislative proposals have been submitted and only twenty have until now been adopted (1). If this trend continues one can wonder if the European Parliament and the Council will be able to adopt in the last 18 months of this legislature all the texts currently on the table not to speak of the proposals that the Commission has announced notably from the second half of 2013.

But much more concerning are the qualitative aspects of the institutional activity in a domain which is deemed to be now the core of the European public space.

To start with some positive aspects it is more than likely that the new Common European Asylum System foreseen by the art. 78 TFEU (and by the art.18 of the Charter) will be adopted before the end of this year (2). Progress has also been achieved with the adoption of the first measures dealing with the suspect’s rights in criminal proceedings (3) as well as in the judicial cooperation in civil matters (4) and on the establishment of new Agencies (5).

These decisions have often been taken after lengthy and painful negotiations and have been accompanied by the conclusion of international agreements as happened with the EU-US TFTP and PNR agreements. However a positive assessment on the latter is not obvious and the risks has been denounced that the final outcome could still not comply with the European Charter as well as of the European Convention of Human rights standards (6). The EP rejection of the ACTA agreement (7) has confirmed that the EU institutions often do not share the same vision of the balance to be struck between freedom and security.
Continue reading “CALL FOR A TRUE EUROPEAN AREA OF FREEDOM SECURITY AND JUSTICE”

European Union and Hungary: towards a new “Haider” case ?

(Original IT – translation still to be revised)

Hungary puts at risk the Union’s values?

”Such a change among the democratic frameworks that we did today was only done by revolutions before. […] Hungarians today have proved that there is a reason for democracy. […] Hungarians today overthrew a system of oligarchs who used to abuse their power.” The new government will be modest and humble. “ (1)

Two years later, these April 2010 Viktor Orban statements celebrating the Fidesz Party two thirds majority in Parliament following the Hungarian elections, sound now very different as it is the case for the economic forecasts following the 2010 Hungarian elections according to which such an electoral result would had made possible for the Hungarian Forint to recover from the crisis from which it had been barely saved in 2008 by the International Monetary Fund and the European Union.

Now, not only the relations between the EU and the IMF seem to have reached their lowest point (at least judging from the recent interruption of the negotiations with the Hungarian monetary authorities) but even bolder critics are emerging at European level as far as the compatibility of various initiatives of the Orban Government with fundamental rights and respect for democratic principles are concerned.

The situation is so worrying to push Guy Verohfstadt, President of the Liberal Group in the European Parliament to declare that Hungary seems not to fully respect anymore the “values” it subscribed when it joined the European Union, (“values” that the Lisbon Treaty has made even more explicit (2). Hence, according to Verohfstadt the European institutions should trigger the “alert” procedure foreseen by art. 7 par. 1 of the EU Treaty (3).

It is worth noting that such an “alert” procedure may be launched by the European Parliament itself and that it is designed to verify if “.. there is a clear risk of a serious breach“ by a Member State of the founding values of the European Union and, if such a risk exists the Council would be entitled to formally recommend the State who has lost its bearings to come back on the rights track.

Needless to say that such an “alert procedure” is very different from the “nuclear option” laid down in the second paragraph of the article 7 where the Council could even suspend a Member State voting rights if “a serious and persistent breach” of European Values has been ascertained.

Yet the mere fact of evoking the “alert” procedure has already led the European Parliament’s political groups, to position themselves as in previous cases by mirroring the political position present at national level (situation which will make difficult to reach the third majority needed in the European Parliament to vote the request the Council to address formal recommendation to Hungary).(4)

The European Parliament debate on this issue will take place during the January Plenary session in Strasbourg then the competent parliamentary committee could start its work as far as the European Commission has shown that there is ground to proceed and the Conference of Presidents of political groups consider that a formal report should be prepared following the proposal of the ALDE President Verohfstadt.

All that having being said on procedural aspects, it is worth recalling which have been the main concerns raised by the recent Hungarian initiatives.
Continue reading “European Union and Hungary: towards a new “Haider” case ?”

Action Plan on the Stockholm Programme released by Statewatch

European Commission: Stockholm Programme: Statewatch Analysis: Action Plan on the Stockholm Programme: A bit more freedom and justice and a lot more security (pdf) by Tony Bunyan: “The “harnessing of the digital tsunami” as advocated by the EU Future Group and the surveillance society, spelt out in Statewatch’s “The Shape of Things to Come” is embedded in the Commission’s Action Plan as it is in the Stockholm Programme….There is no mention of the European Security Research Programme (ESRP). Much of the technological development is being funded under the 1.4 billion euro security research programme. See: Statewatch/TNI report: Neoconopticon: EU security-industrial complex.”

– Statewatch Briefing: European Commission: Action Plan on the Stockholm Programme (pdf) Comments by Professor Steve Peers, University of Essex – Full-text: Communication from the Commission: Delivering an area of freedom, security and justice for Europe’s citizens Action Plan Implementing the Stockholm Programme (COM 171/2010, pdf)

http://www.statewatch.org/

American authorities access to banks data: challenges…and perspectives

The EU parliamentary Committee on Civil Liberties provoked a certain sensation by deciding on the 4 February to suggest to the European Parliament plenary not to conclude the interim agreement which allows the Treasury Department of The United States of America to access financial data processed by SWIFT (already published in this blog).

What the press has not explained is that this negative vote does not end the transatlantic cooperation in this domain. In fact, the second paragraph of the Recommendation invites the Commission and the Council to submit proposals complying with the new legal framework established by the Treaty of Lisbon.

Indeed, a successful conclusion of the agreement signed by the Council seems to be too shy and too advanced at the same time.

Too shy since the data protection legislation applied will remain that of the Member State where the data are stored (the Netherlands) or that of the State controlling SWIFT (Belgium). Furthermore, the authority verifying the admissibility of the request will also belong to one of these two countries despite the participation of the European Union.

The transatlantic legal framework will be the Agreement on Mutual Legal Assistance between the European Union and the United States of America, or if the conclusions will not be ratified, the bilateral agreements EU-Netherlands and EU-Belgium.

As the European Parliament’s rapporteur points out the type of access to financial data as foreseen by the TFTP is not admissible on the basis of the ordinary procedures applied in case of judicial cooperation in criminal matters. In this respect there is a risk to exceed the scope of the agreement by giving for granted the existence of a clarity in the field of data protection as well as police and judicial cooperation which does not exist not even between the Member States of the European Union.

In this regard, suffice to say that the European Union does not have a comprehensive legal framework to adequately face internal security challenges related to data protection in the field of security and police and judicial cooperation despite the numerous requests made by the European Parliament. This kind of solidarity has started with Schengen although it does not involve all the Member States.

At this stage it is inevitable to recall the old saying “nemo plus juris transferre potest quam ipse habet”, i.e. the European Union cannot transfer more powers of what itself has.

Indeed, the European Union has given to the United States all it could on the basis of the current legislation on the Agreement on mutual legal assistance between the European Union and the United States of America concluded in Washington on 28 October 2009.

The Agreement foresees:

The possibility to access banks’ data of natural or legal persons provided the latter are identified (see article 4 of the Treaty on Mutual Legal Assistance) on the basis of the European legislation in this domain (Third Directive on Money Laundering and Financial Information Regulation)
The possibility to extradite individuals to the United States applying the same conditions of the European Arrest Warrant
the possibility to create common investigation teams (on the basis of European norms concerning Europol and the Convention on Criminal Assistance).

This said, it is still technically feasible to make the transatlantic cooperation even more ambitious and make sure that the jurisprudence produced by international agreements may be translated in internal legislative measures.

To reach this goal it will then be necessary to put forward a series of simultaneous political operations which have been impossible to develop before.

Now, the first question concerns whether the American pressure will convince Member States to finally set up the necessary legal framework.

Secondly and more significantly, it is necessary to understand whether the requests put forward by the United States are compatible with the Treaty of Lisbon and the Charter on Fundamental Rights.

Thirdly, it is necessary to identify which European authority will be responsible for the Member States. For instance, one possibility to assess will be whether it would be possible to extend Eurojust and/or Europol’s powers instead of that of Dutch and Belgian authorities, ensuring at the same time loyal cooperation between the Member States.

Moreover, challenges do not only arise on this part of the Atlantic. The American negotiator is facing other equally demanding questions. For example, in case the authority in charge of the conclusions of the Agreement remains the Administration it will not be possible to seal an “executive agreement” since -by definition- it cannot modify the legal status of the American and European citizens.

What is more, an executive agreement will hardly secure the respect of those guarantees which the Charter requires avoiding hazardous appeals in front of the European and National Courts (see Karlsruhe …).

To do that it would be necessary, as in the case of police and judicial cooperation in criminal matters to pass the Congress and obtain two-thirds of the votes in the Senate. Once again, as it is often the case during the challenging evolution of the European Union, with fantasy and mutual respect it will be maybe possible to build a Transatlantic area of freedom, security and justice to which the Stockholm Programme and the inter-ministerial declaration referred on 28 October.

After Lisbon a reshuffle for the consular and diplomatic protection of the EU citizens ?

Will the Treaty of Lisbon, the new Stockholm Programme and the new figure of the European Union High Representative wake up the sleeping beauty of the consular and diplomatic protection of the European citizens ?

Even the Head of State and Government have recognised that “..This right, enshrined in the Treaties, is not well publicised, and more effort is needed to ensure its full application. Targeted communication campaigns could be conducted in connection with this right…” Moreover they have invited the Commission to “..consider appropriate measures establishing coordination and cooperation necessary to facilitate consular protection in accordance with Article 23 TFUE.”

As a matter of fact not many of the half billion European citizens know that since the entry into force of the Maastricht Treaty in 1994 …“[e]very citizen of the Union shall, in the territory of a third country in which the Member State of which he is a national is not represented, be entitled to protection by the diplomatic or consular authorities of any Member State, on the same conditions as the nationals of that State.” (art. 23 TFUE, formerly art 20 of TEC)

It is worth recalling that under international public law, both customary and treaty law (1) , Consular and diplomatic protection should be provided by the States to their nationals.

In particular Consular protection or assistance is the provision of help and immediate assistance by a State to its nationals, both individuals and bodies, or to nationals of another State (2) when in distress. The most frequent situations are the relief and repatriation of distressed citizens of the Union, the assistance of victims of serious accident or serious illness, or of violent crime or the assistance to people arrested and detained or even the repatriation of the bodies in cases of death or catastrophes such the tragic Haiti earthquake. In these case, the State supports, by career or honorary consuls, its nationals (or non-nationals) in asserting their rights under the legal system of a foreign State, provided that the individual concerned has given his consent.

Diplomatic protection consists of the invocation by a State of the responsibility of another State for an injury caused by an internationally wrongful act of that State to a natural or legal person that is a national of the former State with a view to the implementation of such responsibility (3) . In this case, the State acts on its own behalf, to protect its rights, on an international level and through diplomatic action or other means of peaceful settlement conducted by diplomatic officials or Government representatives (4) .

It is only very recently the EU has been associated to the exercise of these functions so deeply rooted in the States sovereign functions and this it happened only during the last twenty years with the developpement of the Schengen cooperation which brought progressively together the officials of the member states administrations in activities such as the visa delivering and by implementing the same common consular instructions.

Therefore Member States remain jealously attached to these functions and even after the Lisbon Treaty they avoided a legislative role of the EU institutions by stating that “Member States shall establish the necessary rules among themselves and start the international negotiations required to secure this protection.”

Even if the wording of art. 23 TFUE is adamant in conferring directly to EU citizens (5) this right (confirmed also in Article 46 of the now legally binding Charter of Fundamental Rights of the European Union) to transform it in a reality and to enforce it before a judge, Member States should have had agreed a sound and coherent legal implementing framework.
Therefore the true fact is that since the entry into force in ’94 of art. 20 TEC only few binding acts have so far been taken by the Member States (6) and art. 1 of the first ’95 general decision (which entered into force only in 2002), covers only the consular protection .
Even in this case the approach has been minimalistic as it appears from the one page Decision of ’95 (7) which looks more anxious to avoid financial assistance, and to guarantee full repayment in cases of extreme distress, than to establish a full fledged system of assistance and alleviate suffering for EU citizens.

In the last twelve years no other bindings acts have been adopted on Consular protection and only recently, after 2006, under the pressure of the European Council and of the Commission the member states have agreed on some complementary and non-binding Guidelines on consular protection of EU citizens in third countries as well as on non-binding measures to counter crisis outside the territory of the EU (such as the notion of the “Lead State Concept” according to which a member state will on voluntary basis coordinate the consular protection in a specific third country and prepare if needed evacuation plans in case of disasters or of terrorists attacks) (8).

Moreover there are not many signs that Member States have started ” … the international negotiations required to secure this protection. “ as required by art. 23 of the TFUE (former art. 20 of the EC Treaty)

It could then be considered an understatement the European Parliament declaration according to which the right to consular and diplomatic protection has remained ‘underdeveloped’(9). The Strasbourg Assembly should then be praised as it asked to the Member States and Commission to foster the current situation by improving the current :
a) – lack of legal certainty : The generic brochure published on the Council Site and the publication on the EU Citizens passports of the art.23 TFUE (former 20 TEC) are useful but, still , could not be considered sufficient for European Citizens who can challenge this situation before the national and european Courts;
b) – lack of common EU standards. For the time being Member States are obliged not to discriminate between their own nationals and citizens of the other EU countries. Given that the standards granted are different according to the countries concerned (for instance it seems that Danes authorities, due to their constitutional duties ensure a wider protection than the one the UK authorities give) also the treatment granted for the non nationals will be different from the one they can enjoy from their own country.
c) – lack of operational transparency. The situation is unsatisfactory also as far as the practical issues are concerned as there is no simple way to know which consular post of an EU Member State could be contacted in a specific third country . Even the notion of “lead state” remain very vague even between the Member States themselves (guess how could be for one of the 180 millions of EU citizens travelling abroad ..)
d) – lack of financial solidarity. The most frequent cases are the ones of people who lost everything and need financial help. Due to the absence of common system of compensation between the member States (such as the ones who exists on the territory of the EU for other purposes) the Consular Offices are very reluctant in assuming financial burdens.

Will this unsatisfactory situation be overcome ?

After the Lisbon Treaty the EU institutions even if without legislative powers will be entitled to financially and logistically support the MS actions in the framework of EU Directives to be adopted according to art. 23 of the TFUE as evoked in the Stockholm Programme.

It is more than likely that the first proposals will mainly try to overcome the weaknesses denounced by the EP resolution (clear definition of scope of the consular protection, financial compensation system between the Member States when anticipating money for another MS citizen, creation of an Internet global site which can give the links to the “Lead State” offices in each third Countries …etc etc) even if this institution will not be involved in codecision but will be only consulted…

Moreover a positive evolution could come out from the strengthened cooperation between the MS diplomatic missions with the new European Union External Action Service as defined by the Article 35 TEU (ex Article 20 TEU) which states that :
“The diplomatic and consular missions of the Member States and the Union delegations in third countries and international conferences, and their representations to international organisations, shall cooperate in ensuring that decisions defining Union positions and actions adopted pursuant to this Chapter are complied with and implemented.
They shall step up cooperation by exchanging information and carrying out joint assessments.
They shall contribute to the implementation of the right of citizens of the Union to protection in the territory of third countries as referred to in Article 20(2)(c) of the Treaty on the Functioning of the European Union and of the measures adopted pursuant to Article 23 of that Treaty.”

It is worth noting that some signals of this change of attitude and more positive approach from the MS diplomats could be taken in the latest Council report on the ways to respond to disasters in third countries.
In the same perspective it is also possbile that the European Parliament even if it would not play a direct legislative role will probably make full use of its budgetary powers to make more evident the european solidarity in these situations.
EDC

NOTES
(1) See also Vienna Convention on Diplomatic Relations of 1961, United Nations, Treaty Series, Vol. 500, p. 95. http://untreaty.un.org/ilc/texts/instruments/english/conventions/9_1_1961.pdf and Vienna Convention on Consular Relations http://untreaty.un.org/ilc/texts/instruments/english/conventions/9_2_1963.pdf
(2) Article 5 (e) and 8 Vienna Convention on Consular Relations. In particular, the latter states: ‘Upon appropriate notification to the receiving State, a consular post of the sending State may, unless the receiving State objects, exercise consular functions in the receiving State on behalf of a third State’.
(3) International Law Commission, Article 1 Draft articles on Diplomatic Protection.
(4) Provided that the requirements of diplomatic protection have been met, i.e. there has been a violation of international law for which the respondent State can be held responsible, local remedies have been exhausted and the individual concerned has the nationality of the acting State. According to Articles 46 and 45 (c) Vienna Convention on Diplomatic Relations, only temporary and at the request of a third State not represented in the receiving State or in case of breakdown in diplomatic relations between two States, a State may, with the prior consent of a receiving State, undertake the protection of the interests of the third State and of its nationals.
(5) In a consistent line of case law, the ECJ has elaborated different aspects and consequences inherent to these treaty provisions, emphasising that “citizenship of the Union is destined to be the fundamental status of nationals of the member states”. See inter alia ECJ, Case C-413/99, Baumbast [2002] ECR I-7091, para. 82; for a recent assessment see Attorney General Colomer, opinion in Cases C-11/06 and 12/06, Morgan and Bucher, 20.3.2007
(6) See: 95/553/EC: Decision of the Representatives of the Governments of the Member States meeting within the Council of 19 December 1995 regarding protection for citizens of the European Union by diplomatic and consular representations ; 96/409/CSFP: Decision of the Representatives of the Governments of the Member States, meeting within the Council of 25 June 1996 on the establishment of an emergency travel document (See the consolidated version from 1.1.2007)
(7) As example of a MS Ratification see FR: http://www.franceurope.org/pdf/adapt/decret2002701.pdf LUX: http://www.legilux.public.lu/leg/a/archives/1997/0049/a049.pdf#page=2
(8) See Council of the European Union, Guidelines on consular protection of EU citizens in third countries, Council Doc. 10109/06, 2.6.2006(a), as adopted by the General Affairs Council during its 2736th Council meeting in Luxembourg, 12.6.2006. See Council of the European Union, Reinforcing the European Union’s emergency and crisis response capacities, Council Doc. 10551/06, Brussels, 15.6.2006(b); see also M. Barnier, For a European civil protection force: Europe aid, European Commission, Brussels, May 2006
(9) European Parliament, Committee on Civil Liberties, Justice and Home Affairs, Working Document on diplomatic and consular protection for citizens of the Union in third countries, 13 June 2007, Rapporteur Ioannis Varvitsiotis http://www.europarl.europa.eu/oeil/file.jsp?id=5531372
(10) “CONSULAR ASSISTANCE : Besides further refining the Lead State Concept, two papers have been studied and adopted by the Consular Affairs working group, as part of the consular guidelines already approved by the Council: an “Internal Information Strategy”, aimed at ensuring proper training of consular staff on issues derived from obligations under the treaties; and a paper on “Consular Crisis Coordination”, aimed at strengthening cooperation during consular crises affecting several Member States. The Commission will assist in the development of a “training kit” on EU-related obligations, to be used by Member States in their national training of staff to be posted abroad. Work has also been initiated to develop the next generation of European emergency travel documents (ETDs) containing new security features. A Troika meeting has been held with the US to discuss issues of common concern and possibilities for strengthened cooperation in third countries. Training sessions for Member State’s consular staff have been organised, facilitating the exchange of information and best practise between actors in the field of consular protection.”

The new powers of the Court of Justice after the entry into force of the Lisbon Treaty

The press release published on November 30th by the Court of Justice is worth reading by everybody interested in the European Law as well by the every individual whishing to bthe protection of its rights.
The very essential and clear text is the following:

The Treaty of Lisbon and the Court of Justice of the European Union

The Treaty of Lisbon, which was signed on 13 December 2007 by the 27 Heads of State or Government of the Member States of the Union, comes into force on 1 December 2009. It amends the two fundamental treaties – the Treaty on European Union (TEU) and the Treaty establishing the European Community, with the latter to be known in future as the ‘Treaty on the Functioning of the European Union’ (TFEU). (1)
The Treaty of Lisbon makes changes to the organisation and jurisdiction of the Court of Justice of the European Union.

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