CHEERLEADING OR JUDGING? THE CJEU UPHOLDS THE EU’S UNITARY PATENT SYSTEM

ORIGINAL PUBLISHED IN EU LAW ANALYSIS

by Steve Peers

Two new CJEU judgments (here and here) have today upheld the legality of the EU rules on the unitary patent. To what extent are the Court’s reasons convincing and coherent?

Background

The background to today’s rulings was summarised in my previous blog post, on the Advocate-General’s opinion. Suffice it to say that: the EU has tried for decades to agree on patent rules, and the Treaty of Lisbon created a specific legal base for the adoption of EU intellectual property rules (Article 118 TFEU). The main rules are to be adopted by the ordinary legislative procedure (qualified majority voting in Council, joint power for the European Parliament), but the languages rules, which apply in this case to translations of the patent (or patent claims), must still be agreed by unanimity.

Since Member States could not reach the required unanimity on the patent translation rules, most Member States agreed to apply the process of ‘enhanced cooperation’, ie adopting EU legislation that applied to some Member States, but not others. This entailed a two-step procedure: authorisation of enhanced cooperation by the Council (by a qualified majority vote of all Member States), and then the adoption of the legislation to implement enhanced cooperation, with only the participating Member States voting. Spain and Italy challenged the initial authorisation (adopted in 2011) regarding patents, but the CJEU ruled against them in 2013. The two Regulations implementing enhanced cooperation in this area were adopted, in the meantime, at the end of 2012, concerning the substantive rules governing a ‘unitary patent’ and thelanguage rules.  Spain (this time without Italy) challenged these measures in turn; those two challenges are the subject of today’s judgment.

The EU legislation on this issue is closely linked to two international treaties. First of all, the European Patent Convention, agreed in 1973, which binds all EU Member States and a number of non-Member States, and which sets up a legal framework for registering a patent in a number of European countries, by means of an application to the European Patent Office which it established. This results in a ‘European patent’, but the legal title concerned is not genuinely uniform, but depends on the national law of each of the countries where the patent is registered. The point of the EU legislation is to create a form of European patent that will have uniform existence in all of the participating Member States, also reducing the costs of translation that would otherwise apply.

The second treaty concerned is a treaty among Member States creating a Unified Patent Court, in order to reduce the costs of litigation concerning European patents and the planned unitary patent. (Although the CJEU had objected to aspects of these plans in its Opinion 1/09, Member States believe that they have addressed the Court’s concerns). That treaty will come into force once thirteen Member States, including France, Germany and the UK, have ratified it. So far six Member States have, including France. The application of the EU’s unitary patent law is dependent upon this treaty coming into force, and the unitary patents will only be valid in Member States which have ratified the treaty (all Member States except Spain, Poland and Croatia have signed it; all Member States except Spain, Italy and Croatia participate in the Regulations).

The judgments

Spain’s legal arguments against the two EU Regulations differed somewhat. As regards the main Regulation, Spain argued that it was invalid because it created a unitary patent dependent upon the acts of the European Patent Office, whose acts are not subject to judicial review. Secondly, the Regulation did not create ‘uniform protection’ within the meaning of Article 118 TFEU. Thirdly, there is a ‘misuse of power’, ie enhanced cooperation was used for a purpose other than the Treaties allow for. Next, the Regulation breached the rules concerning the conferral of implementing power upon the Commission, because it gives power to the Member States to decide on issues such as renewal fees.

As regards the languages Regulation, Spain argued that the special status of the French, English and German languages set out in that Regulation was discriminatory. Also, it argues that there is no legal power for the EU to regulate language issues in the event of a dispute, as the Regulation does, and that the Regulation violates the principle of legal certainty.

In both cases, Spain argued that the rules on adopting implementing measures were invalid, since powers to implement EU law were granted to a non-EU body, the European Patent Office. Also, it argued that making the application of the Regulations dependent upon the ratification of the treaty creating the unified patent court breached the principle of the autonomy of EU law.

The CJEU has rejected all of these arguments. In its view, the main Regulation doesn’t violate the rule of law, since it simply takes the form of a ‘special agreement’ as provided for in the EPC. Secondly, the Court said that Article 118 TFEU was the correct legal base for the legislation, since it established a system of uniform protection for unitary patents. It did not matter that it referred to national law as regards some issues, since Article 118 does not require the EU to fully harmonise the particular intellectual property right at issue, and at least this provided for more harmonisation than the EPC, which is in effect a bundle of national patents. Thirdly, there was no ‘misuse of power’, since the Regulation did not secretly aim at a purpose other than its purported end. Next, it was acceptable for the Regulation to confer upon Member States the power (acting via their participation in the EPO) to implement its rules, since the EU Treaties only require implementing powers to be conferred upon the conditions where ‘uniform’ implementing measures were required. Nor did the Regulation violate the ‘Meroni principle’ of an impermissible delegation of discretionary powers. Finally, the Spanish government’s challenges relating to the unified patent court treaty were inadmissible, and its challenge to the rules on the timing of the application of the Regulation were rejected on the merits. The Court ruled that the EU is free to defer application of EU legislation until preparatory steps have been taken, and that limiting the application of the Regulation to those Member States which have ratified the unified patent court treaty was acceptable, since it only affected a few provisions of the Regulation.

As for the languages Regulation, the CJEU ruled that while it was discriminatory in principle to confine translations to three languages only, there was no rule of EU law that all EU languages have to be equally valid as regards all issues linked to EU law. The discrimination as regards languages could be justified by the need for reducing costs and therefore encouraging innovation. It was appropriate to use the three languages already used by the EPO, in light of the link between the EPO and the EU system, and the EU law was not disproportionate, in light of the rules in the Regulation designed to address the concerns of patent holders using other languages. The Court also ruled that the entire Regulation fell within the scope of the ‘legal base’ relating to languages issues, and that there was no breach of the principle of legal certainty.

Comments

The CJEU did not really rule on any of the many interesting questions about thesubstantive grounds governing the implementation of enhanced cooperation, simply because Spain did not raise them. However, the argument relating to discrimination touches indirectly upon those issues.

Parts of the Court’s ruling are convincing, particularly as regards the possibility of delaying the entry into force of EU laws to wait for other developments, the ‘legal certainty’ issues relating to the languages Regulation and the legal base issue regarding the same Regulation. However, with respect, some of its reasoning was only partially convincing. The Court’s case for using a limited number of languages is sensible only if one accepts its underlying premise that the unitary patent system will have the overall impact of enhancing innovation. Many critics of the patent system argue that it does the reverse, by giving an overly lengthy monopoly to the patent-holders. To be fair, though, it would be too much to expect the Court to enter into this argument, particularly since Spain did not raise it.

Similarly, the Court’s argument that the Meroni principle was not infringed is sensible enough – if one accepts its separate conclusion that the main Regulation validly conferred implementing powers upon Member States. But that conclusion brings us to the chain of contradictions in the Court’s reasoning. For the powers that Member States will exercise when implementing the unitary patent Regulations will not result in divergent approaches in each country’s individual national laws, as is normally the case when Member States are left with the powers to implement EU law in practice. Rather, they must exercise their powers collectively, to adopt uniform rules regarding the unitary patent, within the context of the EPO. Indeed, the Court’s other conclusionsinsist upon the uniform nature of that patent. This points us inexorably toward the conclusion that uniform rules to implement the Regulations were necessary – which means (according to the Treaties) that such powers ought to have been conferred upon the Commission.

For the same reasons, the Court’s dismissal of the argument against limiting the application of the main Regulation to those Member States which have ratified the unified patent court treaty is unconvincing. The Court is indeed right to say that this limitation affects only a few provisions of the Regulation – but these are the provisions relating to the uniform nature of the patent, which the Court relied on so heavily when it defended the legal base of this Regulation.

This stress on the uniform nature of the patent also contradicts the first part of the Court’s reasoning on the main Regulation, which deferred to the EPC system and argued rather that EU law did not alter that system at all. The Court did not adequately answer the argument that the EU lacked power to do this, and entirely side-stepped the important argument that the EPO should be subject to judicial review. This contrasts with the Court’s famous insistence in Kadi upon the need for adequate review of international bodies whose acts impact upon the EU legal order.

In the Court’s view, the unitary patent system is valid because it largely refers back to the EPO system, and also because it does not. With respect, the Court is trying to have its cake and eat it too. A better argument would have been to embrace the hybrid nature of the system rather than run away from it. After all, the drafters of the Treaty of Lisbon were well aware of the existence of the EPO. In light of the discussions on a possible EU patent which were underway when that Treaty’s predecessor (the Constitutional Treaty) was drawn up, a hybrid solution based on a combination of the EPO and EU law was presumably exactly what the Treaty drafters were aiming to facilitate when they added Article 118 TFEU to the Treaties.

Whether the Treaty drafters ought to have intended this is, of course, another question. But the best place for a debate about the fundamental merits of intellectual property protection is the political arena, not the courts. While today’s judgments confirm the legal validity of the EU’s unitary patent system, and enable it to go forward in the near future (after several more ratifications of the patent court treaty), their circular and contradictory reasoning suggests that the Court simply wanted to approve the patent system regardless of the legal arguments against. But this approach to judicial analysis could ultimately hinder, rather than bolster, the broader legitimacy of the unitary patent system.

THE UK IMPLEMENTS EU FREE MOVEMENT LAW – IN THE STYLE OF FRANZ KAFKA

ORIGINAL PUBLISHED ON EU LAW ANALYSIS 

Thursday, 19 March 2015

By Steve PEERS

Most laws are complicated enough to start with, but with EU Directives there is an extra complication – the obligation to transpose them into national law. A case study in poor transposition is the UK’s implementation of the EU’s citizens’ Directive, which regulates many aspects of the movement of EU citizens and their family members between EU Member States. Unfortunately, that defective implementation is exacerbated by a further gap between the wording of this national law and its apparent application in practice, and by the unwillingness of the EU Commission to sue the UK (or other Member States) even for the most obvious breaches of the law.

It’s left to private individuals, who usually have limited means, to spend considerable time and money challenging the UK government in the national courts. One such case was the recent victory in McCarthy (discussed here), concerning short-term visits to the UK by EU citizens (including UK citizens living elsewhere in the EU) with third-country (ie, non-EU) family members.  The UK government has just amended the national rules implementing the EU citizens’ Directive (the ‘EEA Regulations’) to give effect to that judgment – but it has neglected to amend the rules relating to another important free movement issue.

Implementing the McCarthy judgment

The citizens’ Directive provides that if EU citizens want to visit another Member State for a period of up to three months, they can do so with very few formalities. However, if those EU citizens are joined by a third-country family member, it’s possible that this family member will have to obtain a short-term visa for the purposes of the visit. The issue of who needs a short-term visa and who doesn’t is mostly left to national law in the case of people visiting the UK and Ireland, but it’s mostly fully harmonised as regards people visiting all the other Member States.

Although the EU’s citizens’ Directive does simplify the process of those family members obtaining a visa, it’s still a complication, and so the Directive goes further to facilitate free movement, by abolishing the visa requirement entirely in some cases. It provides that no visa can be demanded where the third-country family members have a ‘residence card’ issued by another EU Member State. According to the Directive, those residence cards have to be issued whenever an EU citizen with a third-country family member goes to live in another Member State – for instance, where a British man moves to Germany with his Indian wife. Conversely, though, they are not issued where an EU citizen has not left her own Member State – for instance, a British woman still living in the UK with her American wife.

How did the UK implement these rules? The main source of implementation is the EEA Regulations, which were first adopted in 2006, in order to give effect to the citizens’ Directive by the deadline of 30 April that year. Regulation 11 of these Regulation states that non-EU family members of EU citizens must be admitted to the UK if they have a passport, as well as an ‘EEA family permit, a residence card or a permanent residence card’. A residence card and permanent residence card are creations of the EU Directive, but an ‘EEA family permit’ is a creature of UK law.

While the wording of the Regulation appears to say that non-EU family members of EU citizens have a right of admission if they hold any of these three documents, the UK practice is more restrictive than the wording suggests. In practice, having a residence card was usually not enough to exempt those family members from a visa requirement to visit the UK, unless they also held an EEA family permit. Regulation 12 (in its current form) says that the family member is entitled to an EEA family permit if they are either travelling to the UK or will be joining or accompanying an EU citizen there. In practice, the family permit is issued by UK consulates upon application, for renewable periods of six months. In many ways, it works in the same way as a visa requirement.

An amendment to the Regulations in 2013 provided that a person with a ‘qualifying EEA State residence card’ did not need a visa to visit the UK. But only residence cards issued by Germany and Estonia met this definition. This distinction was made because the UK was worried that some residence cards were issued without sufficient checks or safeguards for forgery, but Germany and Estonia had developed biometric cards that were less likely to be forged.

In the McCarthy judgment, the CJEU ruled that the UK rules breached the EU Directive, which provides for no such thing as an EEA family permit as a condition for admission of non-EU family members of EU citizens with residence cards to the territory of a Member State. The UK waited nearly three months after the judgment to amend the EEA Regulations to give effect to it.

The new amendments cover many issues, but to implement McCarthy they simply redefine a ‘qualifying EEA State residence card’ to include a residence card issued by any EU Member State, as well as any residence card issued by the broader group of countries applying the EEA treaty; this extends the rule to cards issued by Norway, Iceland and Liechtenstein. Presumably this brings the rules into compliance with EU law on this point (the new rules apply from April 6th). That means that non-EU family members of EU citizens will not need a visa to visit the UK from this point, provided that they hold a residence card issued in accordance with EU law, because they are the non-EU family member of an EU citizen who has moved to another Member State. However, this depends also on the practice of interpretation of the rules, including the guidance given to airline staff.

Surinder Singh’ cases Continue reading “THE UK IMPLEMENTS EU FREE MOVEMENT LAW – IN THE STYLE OF FRANZ KAFKA”

DENMARK AND EU JUSTICE AND HOME AFFAIRS LAW: DETAILS OF THE PLANNED REFERENDUM

ORIGINAL PUBLISHED ON EU LAW ANALYSIS

Tuesday, 17 March 2015

by STEVE PEERS 

Danish participation in cross-border criminal law measures is symbolised by ‘The Bridge’, the ‘Nordic Noir’ series about cross-border cooperation in criminal matters between Denmark and Sweden. But due to the changes in EU law in this field, that cooperation might soon be jeopardised. As a result, in the near future, Denmark will in principle be voting on whether to replace the current nearly complete opt-out on EU Justice and Home Affairs (JHA) law with a partial, selective opt-out. I have previously blogged on the implications of this plan in general terms, but it’s now clear exactly what this vote will be about.

First of all, a short recap of the overall framework (for more detail, see that previous blog post). Back in 1992, Denmark obtained an opt-out from the single currency, defence and aspects of JHA law (it’s widely believed that it also obtained an opt-out from EU citizenship, but this is a ‘Euromyth’). These opt-outs were formalised in the form of a Protocol attached to the EU Treaties as part of the Treaty of Amsterdam. The JHA opt-out was then amended by the Treaty of Lisbon.

At present, Denmark participates in: the EU policing and criminal law measures adopted before the entry into force of the Treaty of Lisbon; measures relating to the Schengen border control system (as  matter of international law, not EU law); the EU rules on visa lists (as a matter of EU law); and the EU’s Dublin rules on allocation of asylum applications, ‘Brussels’ rules on civil jurisdiction and legislation on service of documents (in the form of treaties with the EU). In contrast, Denmark does not – and cannot – participate in other EU rules on immigration and asylum law or cross-border civil law, or policing and criminal law rules adopted since the entry into force of the Treaty of Lisbon.

The Protocol on Denmark’s legal position either allows it to repeal its JHA opt-out entirely, or selectively. If it chooses to repeal the opt-out selectively, it would then be able to opt in to JHA measures on a case-by-case basis, like the UK and Ireland, although (unlike those states) it would remain fully bound by the Schengen rules. Indeed, those rules will then apply as a matter of EU law in Denmark, not as a matter of international law. Continue reading “DENMARK AND EU JUSTICE AND HOME AFFAIRS LAW: DETAILS OF THE PLANNED REFERENDUM”

Future of EU migration, home and justice policies. Some questions to the new candidates commissioners..

by Steve PEERS, Henri LABAYLE and Emilio DE CAPITANI

The would-be Commissioners for immigration and home affairs and Justice will shortly be questioned by Members of the European Parliament (MEPs) in hearings, to determine whether the EP should vote to confirm them in office. MEPs have already asked some written questions and the would-be Commissioners have replied. Since most of the written questions were not very searching (except for a couple of questions on data protection issues), the Commissioners did not reply in much detail. However, the hearings are an opportunity for MEPs to ascertain the Commissioners’ plans, and to secure important political commitments, in these fields. To that end, we have therefore suggested a number of oral questions which MEPs should ask in the hearings.

Immigration and asylum

The Commission consider that migration policy should be framed by the (non binding) objectives of the global approach to migration (GAMM) and relations with third countries should be dealt with by “Mobility Partnership” which are more diplomatic declarations than binding acts. Would you propose a binding legal basis for treaties with the countries concerned, grounded on Articles 77, 78 and 79 of the TFEU?

What actions will the Commission take to ensure that EU legislation in this field is fully and correctly implemented by the Member States?

Will the Commission propose an immediate amendment to the EU visa code, to confirm that Member States are obliged to give humanitarian visas to those who need them and who apply at Member States’ consulates in third countries?

When will the Commission propose EU legislation to guarantee mutual recognition of Member States’ decisions regarding international protection, including the transfer of protection?

When will the Commission make proposals for a framework for sharing responsibility for asylum-seekers and persons who have been granted international protection, starting with those who have applied outside the territory of the Member States?

Will the Commission propose an immigration code, and what will its main contents be?

The Court of Justice has recognised that search and rescue obligations are interlinked with external borders surveillance (Case C-355/10). The EU adopted rules in this field which governing only border control coordinated by Frontex. Do you intend to propose that such rules should apply to all Member States’ border controls as a general rule, by formally amending the Schengen Borders Code ?

What immediate and longer-term steps will the Commission take to address the death toll of migrants crossing the Mediterranean?

Will the Commission propose to amend the EU legislation on facilitation of unauthorised entry to confirm that anyone who saves migrants from death or injury during a border crossing, or who otherwise acts from humanitarian motives, is exempt from prosecution?

Internal Security and Police cooperation Continue reading “Future of EU migration, home and justice policies. Some questions to the new candidates commissioners..”

La nouvelle Commission Juncker et la JAI : que tout change pour que rien ne change ?

by Henri LABAYLE (CDRE)

Original published HERE

La composition de la nouvelle Commission a suscité nombre de commentaires dans les médias, souvent bienveillants sinon flatteurs. L’a priori favorable dont bénéficie son Président, Jean Claude Juncker, n’empêche pas de douter de leur bien-fondé en matière de Justice et d’affaires intérieures, à supposer d’ailleurs que ces commentaires se vérifient dans les autres domaines d’action de l’Union.

Après des discours encourageants semblant indiquer que les thèmes des valeurs de l’Union et de l’urgence migratoire avaient été pris en considération par le programme du candidat à la Présidence, le retour à la réalité est moins enthousiasmant. Sans procès d’intention, il faut se résoudre à penser que, non seulement le changement ici aussi n’est pas pour maintenant, mais qu’il n’est pas davantage dans l’esprit des dirigeants de l’Union.

On fera litière d’abord des éléments de communication habilement distillés dans les rédactions des grands médias européens, notamment via un document de presse intelligemment construit. En résumé, la nouvelle Commission serait aujourd’hui un animal « politique », par opposition à sa composition technocratique précédente. Cette option est résumée ainsi par son président : « les commissaires ne sont pas des fonctionnaires ». Est-on bien certain que l’inverse n’est plus vrai ?

Soit, même si à l’examen il est aisé de se rendre compte que nombre de ces politiciens ont plutôt leur avenir politique derrière eux (5 anciens premiers ministres, 4 vice-premiers ministres, 19 anciens ministres, 7 commissaires sortants, nous dit-on), à supposer parfois qu’ils en aient eu un. Reste alors l’habileté manœuvrière qui, si l’on se penche plus précisément sur la JAI, réclamera vraisemblablement davantage de solliciter celle de Jean Claude Juncker que de compter sur le dispositif proposé.

Quelle délimitation des composantes de l’Espace de liberté ?

Continue reading “La nouvelle Commission Juncker et la JAI : que tout change pour que rien ne change ?”

The new Juncker  Commission: an “Echternach procession” for the freedom security and justice agenda ?

by Emilio DE CAPITANI

Text Updated on September 11, 2014 

1. Jean-Claude Juncker, President-elect of the European Commission which should start working from November 1st has unveiled today its team, its main priorities and its new method. As far as the Freedom security and justice area related policies are concerned there are some interesting and some worrying messages arising notably from the “mission” letters sent to the vice-president and to the two Commissioneers which will be in charge of this sensitive domain.

Vice President Timmermans :the “right hand” of the King ?

2. The most interesting (and promising?) is the fact that the respect for the rule of law and of the Charter will be the main mission of the first vice President (M. Timmermans) who will be the “right hand”  of the Commission President and who will have a veto power on the legislative initiatives presented by anyone of the members of the College.

3. The future will tell us if the Vice Presidents coordinating role will be a serious one (as the Juncker formula seems to suggest) or will only be a cosmetic formula as it was when under the Prodi Commission, for the first time this organisational model was launched. For the VP it will not be an easy task as it will not be served by a General Directorate. Within an institution where more than 80% of the decisions are taken by written procedure and where the real coordination/negotiation is done at head of Cabinet’s level the lack of administrative troops could be a serious handicap. That having been said it is more than likely that VP Timmermans will be supported by the Commission Secretary General and by the Legal Service (even if both are directly linked to Mr Juncker). Again who between them will be the real leader is still to be verified.

Three steps forward…

4. Unlike his predecessor Sefcovic in the Barroso Commission who was also in charge of the “Better Regulation” policy Vice President Timmermans should ensure that every Commission proposal or initiative will comply with the Charter of Fundamental Rights. Moreover the mission letter fix a six months deadline to revise the consistency of the current legislation and states that  the new Vice President should “ensure that every Commission proposal or initiative complies with the Charter of Fundamental Rights”. Maybe this is a positive consequence of the fact that the Court of Justice does no more hesitate from striking down EU legislation when in contrast with the Charter (as it has been the case for the recent Data Retention Ruling). However some hot potatoes are already on the table such as the EU-PNR or the Smart Border package (Entry-Exit and registered traveller program) which will be hard to consider compliant with the principles of non discrimination and of data protection as outlined by the CJEU.

5. Moreover the mission letter establish a six months term to revise the legislation to be “RE-FITTED” in compliance with the new criteria set by President Juncker. Again, it will not be easy as already one month after the envisaged entry into force of the new Commission will end the transitional period for hundred measures in police and judicial cooperation adopted before the entry into force of the Lisbon Treaty (European Arrest Warrant, Prum Decisions and several framework decisions…) without any serious impact evaluation on fundamental rights.

6. VP Timmermans will also be in charge the accession of the EU to the ECHR and of the coordination of the Commission’s work related to the Rule of Law as well as on the Cooperation and Verification Mechanism for Bulgaria and Romania. These tasks in the previous Barroso Commissions were very often treated only at the legal service level and raise at political level only in very exceptional cases (as it has been the case with Hungary). The fact that the Juncker  Commission does not intend to hide under the carpet the tensions which could arise with some Member States when the rule of law is at stake (even if  this “..is also an area where we need to be sensitive to the diversity of constitutional and cultural traditions in the 28 Member States”) should then be welcome.

7. Again, unlike his predecessor Sefcovich, the new first vice president  Timmermans will also “.. guide the work of the Commissioner for Justice, Consumers and Gender Equality and the Commissioner for Migration and Home Affairs” and will “manage and coordinate the participation of the Commission in the Justice and Home Affairs Council“ which means that coordination will not be avoid formula. Let’s hope that thanks  to this coordinating role the tensions which have arisen between the two commissioners on Home and Justice in the previous legislature will remain a thing of the past.

..and two steps back..

8. That having been said the message arising from the missions of the two candidate Commissioners in charge of Justice, Home affairs and migration is more ambiguous.

9. First and foremost the mission of the Justice minister  which was in the previous mandates focused on the core of judicial cooperation in criminal matters (as it is the case in the Member states) is now much more oriented to civil justice, consumer protection and ..the digital market. These are all important issues but not exactly the core of the Justice policy which, in the Juncker vision looks ancillary  even to “…our jobs and growth agenda, including through an assessment of the performance of judicial systems in the context of the European Semester of economic policy coordination.” Is the new Commission afraid (as the European Council in its recent guidelines) of the judicial area of criminal law ?  In theory this should not be the case because the Justice Commissioner will also be in charge of “all the Commission’s work in criminal matters and reinforcing judicial cooperation in this field. Putting an independent European Public Prosecutor’s Office in place by 2016 will be a significant step forward to protect the EU budget from fraud.”

10. However this declaration is contradicted by the mission of the Commissioner in charge of  “Migration and Home Affairs” who should “robustly address the challenge of irregular migration”,  “step up the fight against cross-border crime and terrorism” and focus “… on the fight against crime with a clear link to EU policies, such as human trafficking, smuggling and cybercrime and helping to tackle corruption, also by strengthening police cooperation”.

11. Do all these objectives fall outside judicial cooperation in criminal matters ? Will the Home Commissioner be in charge of the future legislation on euro crimes as it has been the case already in the previous Barroso Commission when the legislative proposal on trafficking of human beings, confiscation , and sexual abuse have been proposed by the Home Commissioner instead of the Criminal Justice commissioner ?

11. Instead of a patchwork of partially overlapping competencies in criminal law would had not been much wiser to link more clearly the competencies of the two “operational” commissioners to the relevant legal basis in the Treaty (where judicial cooperation in civil and criminal matters are dealt by articles 81-86 and  police cooperation is dealt with by articles 87-89) ?

12. But the worst suprise is the confirmation of the link between  police cooperation and migration policies. Why migration is still considered a threat for the European Union so that it has to be dealt by the Ministry of interior ? Would not had been better to link the announced “new” portfolio of migration policy within the neighbouring policy or with the social policy or even to a new objective of “human mobility” where as it happens within the Schengen cooperation the right to freedom of movement of EU citizens and third country nationals are de facto coming closer  ?

13. The real outcome of the current configuration is a the growing role of the EU homeland security policy which will not only drive most of the future  legislation in criminal matters but will also drive (or be driven by?) the EU external security policy which still remain the main intergovernamental policy area after the Treaty of Lisbon. Last but ,ot least DG Home will now  manage some hundreds of millions of euros of research in the security domain.

14. Would had not been more logic (and compliant with the EU Charter) bringing together police and judicial cooperation under a rule of law perspective (as it is the case in the European Parliament with the LIBE committee) instead of creating spurious links between consumers policy with criminal justice and police cooperation with migration.

15. Moreover is the latter still considered a threat for the European Union to continue to be dealt by the Ministry of interior ? Would not had been better to link the announced “new” portfolio of migration policy with the neighbouring policy or with the social policy ?

16. Even the best of the Vice president will not be able to right up something which has been so badly designed and which mirror a typical Luxembourg procession in Echternach where people advance by making three step forward and …two step back.

———————-

ANNEX (text emphasized by me)

First Vice-President Frans Timmermans(150 kB)

10 September 2014

Jean-Claude Juncker, President-elect of the European Commission

Mission letter for  Frans Timmermans: First Vice-President, in charge of Better Regulation, Inter-Institutional Relations, the Rule of Law and the Charter of Fundamental Rights

Dear Frans,

You are becoming a Member of the new European Commission at a particularly challenging time for the European Union. With the start of the new Commission, we have an exceptional opportunity, but also an obligation, to make a fresh start, to address the difficult geo-political situation, to strengthen economic recovery and to build a Europe that delivers jobs and growth for its citizens.

I want the new Commission to be a strong and political team. And I want you, with your political skills and experience, to fully play your part in this team.

We will have a lot to do in the years to come and we will have to show a united and clear sense of purpose from our very first day in office. In the Political Guidelines for the new European Commission that I presented to the European Parliament on 15 July, I set out a new Agenda for Jobs, Growth, Fairness and Democratic Change, focused on ten priorities.

I had discussed and developed this Agenda in detail in meetings with all the political groups in the European Parliament. The Political Guidelines are, therefore, somewhat akin to a political contract that I concluded with the European Parliament to mark the beginning of a new mandate and to prioritise the work of the new Commission.

I will be looking for your support, creativity and action to help deliver concrete results.

Following our recent discussions, I would like you to be my first Vice-President, in charge of Better Regulation, Inter-Institutional Relations, the Rule of Law and the Charter of Fundamental Rights.

In this mission letter, I set out what I expect from you as a Member of the Commission as well as specific goals for which you will be responsible for reaching during our mandate.

A new way of working

Delivering the priorities of the Political Guidelines will require a reform of the way the Commission has operated up until now. Reform means change. I want us all to show that we are open to change and ready to adapt to it.

I want the Commission as a whole to be more than the sum of its parts.

I therefore want us to work together as a strong team, cooperating across portfolios to produce integrated, well-grounded and well-explained initiatives that lead to clear results.

I want us to overcome silo mentalities by working jointly on those areas where we can really make a difference. We cannot and should not do everything: I want the European Commission to be bigger and more ambitious on big things, and smaller and more modest on small things.

I also want us to focus our energy and efforts on ensuring effective implementation and follow-up on the ground. I count on you to play your part in this new collaborative way of working.

To facilitate this, I have decided to organise the new Commission differently from its predecessors.

I will entrust a number of well-defined priority projects to the Vice-Presidents and ask them to steer and coordinate work across the Commission in the key areas of the Political Guidelines.

This will allow for a better focus and a much stronger cooperation amongst Members of the College, with several Commissioners working closely together as a team, led by the Vice-Presidents, in compositions that may change according to need and as new projects develop over time.

To empower them to deliver on their priority projects, the Vice-Presidents will act on my behalf and will help exercise my rights and prerogatives in their area of responsibility.

In particular, the Vice-Presidents will be in charge of:

  • Steering and coordinating work in their area of responsibility. This will involve bringing together several Commissioners and different parts of the Commission to shape coherent policies and deliver results.
  • Assessing how and whether proposed new initiatives fit with the focus of the Political Guidelines. As a general rule, I will not include a new initiative in the Commission Work Programme or place it on the agenda of the College unless this is recommended to me by one of the Vice-Presidents on the basis of sound arguments and a clear narrative that is coherent with the priority projects of the Political Guidelines.
  • Managing and organising the representation of the Commission in their area of responsibility in the European Parliament, the Council, national Parliaments and other institutional settings as well as at international level.
  • Promoting a proactive and coordinated approach to the follow-up, implementation, and communication of our priority policies across the Union and internationally.

Respect for the principles of subsidiarity, proportionality and better regulation will be at the core of the work of the new Commission. We will concentrate our efforts on those areas where only joint action at European level can deliver the desired results. When we act, we will always look for the most efficient and least burdensome approach. Beyond these areas, we should leave action to the Member States where they are more legitimate and better equipped to give effective policy responses at national, regional or local level.

I will therefore pay particular attention to your opinion as my first Vice-President, in charge of Better Regulation, Inter-Institutional Relations, the Rule of Law and the Charter of Fundamental Rights, before including any new initiative in the Commission Work Programme or putting it on the agenda of the College. You will also be entrusted with the regular monitoring of procedures linked to the preparation of delegated and implementing acts to ensure full political ownership.

I will also pay particular attention to the opinion of the Vice-President for Budget and Human Resources as regards the impact of our activities on the financial resources and staff of the European Commission. We will have the privilege of being supported by an excellent, highly motivated European civil service and a professionally well-run administration, but its resources are limited and have to be used to best effect. This is also why I will want resources to be allocated to our priorities and to make sure that every action we take delivers maximum performance and value added.

I also want all Commissioners to ensure sound financial management of the programmes under their responsibility, taking all necessary measures to protect the EU budget from fraud.

Under my supervision, Vice-Presidents will be supported by the Secretariat General in their tasks but will primarily rely on close cooperation with the relevant Commissioners and the services that report to them.

In addition, Vice-Presidents will be able to draw on any service in the Commission whose work is relevant for their area of responsibility, in consultation with the relevant Commissioner.

With regard to the Union’s external action, I have launched a pragmatic partnership with the new High Representative of the Union for Foreign Affairs and Security Policy, who, according to the Treaties, is one of the Vice-Presidents of the Commission.

The new High Representative and I have agreed that she will play her role as a Commission Vice-President to the full. She will notably steer and coordinate the work of all Commissioners with regard to external relations through a Commissioners’ Group on External Action to develop a joint approach.

This Group will meet at least once a month in varying thematic and/ or geographic formats, according to the needs identified by the High Representative/Vice-President or by me.

The High Representative/Vice-President will regularly report back to me and the whole College about geopolitical developments. To liaise more effectively with the other Members of the College, we agreed that she will have her Headquarters in the Berlaymont, and that the Commission will put a Cabinet of an appropriate size at her disposal, about half of which will be Commission officials.

We also agreed that, whenever she sees the necessity to do so, she will ask the Commissioner for European Neighbourhood Policy and Enlargement Negotiations and other Commissioners to deputise in areas related to Commission competence.

Working together in this new way across the Commission should help ensure that the final decisions we take as a College are well-prepared and focused on what is important and that we are all equipped to explain and defend them. We will have to show a team spirit to make the new system work. Our success will depend on each and every one of you: on the team leadership of the Vice-Presidents and on the readiness of Commissioners to be strong team players. I would ask you all to work together to ensure that this new system works well.

The portfolio of the first Vice-President, in charge of Better Regulation, Inter-Institutional Relations, the Rule of Law and the Charter of Fundamental Rights

As my first Vice-President, you will steer and coordinate the Commission’s work in the areas of Better Regulation, Inter-Institutional relations, the Rule of Law and the Charter of Fundamental Rights.

You will work closely with the other Vice-Presidents, and all Commissioners will liaise closely with you when it concerns the implementation of our better regulation agenda.

In addition, for initiatives requiring a decision by the Commission in their area of responsibility, you will guide the work of the Commissioner for Justice, Consumers and Gender Equality and the Commissioner for Migration and Home Affairs.

You will drive the Commission’s work on better regulation in order to maximise its contribution to our jobs and growth agenda, both by coordinating the Commission’s work and by promoting the principles of better regulation in the EU institutions and at national level.

You will also be responsible for strengthening and deepening the Commission’s relations with the other institutions and national Parliaments.

During our mandate, I would like you to focus on the following, in your role as Vice-President:

  • Coordinating the work on better regulation within the Commission, ensuring the compliance of EU proposals with the principles of subsidiarity and proportionality, and working with the European Parliament and the Council to remove unnecessary “red tape” at both European and national level. This includes steering the Commission’s work on the “Regulatory Fitness and Performance Programme” (REFIT) of EU legislation and ensuring the quality of impact assessments underpinning our activities. I will ask you to take stock of experience and report to the College within twelve months on how our approach to better regulation could be strengthened.
  • Ensuring that the special partnership with the European Parliament, as laid down in the Framework Agreement of 2010, is pursued with full commitment, and coordinating, on behalf of the Commission, the inter-institutional work on policy programming and better law-making.

I will ask you to discuss, within the first three months of the mandate, with the European Parliament and the Council, the list of pending legislative proposals and to determine whether to pursue them or not, in accordance with the principle of “political discontinuity”.

  • Coordinating and strengthening the interaction of all Commissioners with national Parliaments as a way of bringing the European Union closer to citizens and forging a new partnership with national Parliaments.
  • Ensuring that every Commission proposal or initiative complies with the Charter of Fundamental Rights.
  • Leading the dialogue between the European Commission and churches and religious associations or communities, as well as with philosophical and non-confessional organisations, in a transparent and regular manner.
  • Concluding the process of accession of the EU to the Convention for the Protection of Human Rights and Fundamental Freedoms of the Council of Europe.
  • Coordinating the Commission’s work related to the Rule of Law.
  • Coordinating the Commission’s work on the Cooperation and Verification Mechanism for Bulgaria and Romania.
  • Coordinating the work on transparency and preparing a proposal for an Inter-Institutional Agreement creating a mandatory lobby register covering the Commission, the European Parliament and the Council.

You will represent the Commission in the General Affairs Council and in negotiations on institutional issues. You will also manage and coordinate the participation of the Commission in the Justice and Home Affairs Council.

You will be responsible for the Commission’s relations with the European Economic and Social Committee and the Committee of the Regions, as well as with the European Ombudsman.

You will coordinate the work on audit and chair the Audit Progress Committee (APC). To help you fulfil these responsibilities, the Internal Audit Service (IAS) will report to you. The IAS should be gradually reinforced through the integration of the Internal Audit Capacities of individual Commission services.

Our principles: ethics and transparency

We must abide by the highest possible professional and ethical standards at all times. I want the European Commission to lead the way as a modern, efficient and transparent public administration, open to all input that helps us deliver work of a consistently high quality, in full independence and impartiality. Our conduct must be unimpeachable. You have received the Code of Conduct of the Members of the European Commission. I expect all of us to honour both the word and the spirit of the Code.

You will have seen that the Political Guidelines include a new commitment to transparency. Transparency should be a priority for the new Commission and I expect all of us to make public, on our respective web pages, all the contacts and meetings we hold with professional organisations or self-employed individuals on any matter relating to EU policy-making and implementation. It is very important to be transparent where specific interests related to the Commission’s work on legislative initiatives or financial matters are discussed with such organisations or individuals.

Working in partnership for Europe

The Commission’s partnership with the other EU institutions and the Member States, as defined in the Treaties, is fundamental. The Union only succeeds when everyone is pulling in the same direction: this is why we should work in the months to come to forge a common understanding between the institutions about what we want to achieve and how we will go about it.

The Commission’s relationship with the European Parliament is the source of our democratic legitimacy. This must, therefore, be a political and not a technocratic partnership. I expect all Commissioners to invest in this relationship and to make themselves available for and to take an active part in plenary sessions, committee meetings and trilogue negotiations.

The meetings with the parliamentary committees over the weeks to come will be an opportunity for you to lay the foundations for a productive working relationship, to explain how your work will contribute to joint political priorities, and to demonstrate your commitment and suitability for your broader role as a Member of the College.

Effective policy-making also requires a deep understanding of every one of the Member States, of their common challenges and of their diversity. While fulfilling your obligation to participate in Commission meetings and engage with the European institutions, I want you all to be politically active in the Member States and in dialogues with citizens, by presenting and communicating our common agenda, listening to ideas and engaging with stakeholders.

In this context, I want all Commissioners to commit to a new partnership with national Parliaments: they deserve particular attention and I want, under your coordination as my first Vice-President, in charge of Better Regulation, Inter-Institutional Relations, the Rule of Law and the Charter of Fundamental Rights, important proposals or initiatives to be presented and explained in national Parliaments by Members of the Commission. This should also allow us to deepen the country-specific knowledge within our institution and to build mutual understanding and effective channels of communication between the national and the European level.

***

The European Union has come through one of the most testing periods in its history.

The effects of the economic and financial crisis are still causing great hardship in many parts of Europe. We live in a Union with a 29th state of unemployed people, many of them young people who feel side-lined. Until this situation has changed, this 29th state must be our number one concern, and we have to be very determined and very responsible in carrying out our work as Members of this Commission.

I am looking forward to working with you on the new start that our European Union needs now.

Jean-Claude JUNCKER

Annex: Table of allocation of portfolios and supporting services 

As first Vice-President, in charge of Better Regulation, Inter-Institutional relations, the Rule of Law and the Charter of Fundamental Rights, Mr Timmermans will work closely with the other Vice-Presidents, and all Commissioners will liaise closely with him when it concerns the implementation of the better regulation agenda. In addition, for initiatives requiring a decision by the Commission in their area of responsibility, he will guide the work of the Commissioner for Justice, Consumers and Gender Equality and the Commissioner for Migration and Home Affairs.

Internal Audit Service (IAS)

————————————————

Jean-Claude Juncker, President-elect of the European Commission

Mission letter  for Vêra Jourová Commissioner for Justice, Consumers and Gender Equality

(EXCERPTS)

Dear Vêra,

You are becoming a Member of the new European Commission at a particularly challenging time for the European Union. …(see  general part of VP Timmermans letter)…

The Justice, Consumers and Gender Equality portfolio

You will be the Commissioner for Justice, Consumers and Gender Equality.

You will, in particular, contribute to projects steered and coordinated by the first Vice-President, in charge of Better Regulation, Inter-Institutional Relations, the Rule of Law and the Charter of Fundamental Rights, as well as the Vice-President for Jobs, Growth, Investment and Competitiveness and the Vice-President for the Euro and Social Dialogue.

For other initiatives requiring a decision from the Commission, you will, as a rule, liaise closely with the first Vice-President, in charge of Better Regulation, Inter-Institutional Relations, the Rule of Law and the Charter of Fundamental Rights.

In the Political Guidelines, I underlined that our shared values are the foundation of the EU.

These are spelled out in the Treaties and in the Charter of Fundamental Rights, which underpins all our work. The EU needs to consistently respect and uphold the rule of law and fundamental rights. This is also an area where we need to be sensitive to the diversity of constitutional and cultural traditions in the 28 Member States.

A strong EU justice and consumer policy can build bridges between national legal systems and be a key part of reaping the full benefits of the Single Market, cutting red tape and facilitating cross-border business.

A sound and predictable justice system is also a prerequisite for economic growth and a business friendly environment.

During our mandate, I would like you to focus on the following:

  • Supporting the first Vice-President, in charge of Better Regulation, Inter-institutional Relations, the Rule of Law and the Charter of Fundamental Rights, in concluding the process of accession of the EU to the Convention for the Protection of Human Rights and Fundamental Freedoms of the Council of Europe, in making sure that all Commission proposals respect the Charter of Fundamental Rights and in consolidating the Commission’s role in protecting the Rule of Law. You will also work with the High-Representative for the Union’s Foreign Policy and Security/Vice-President to promote our values in our external relations.
  • Ensuring that, within the scope of EU competences, discrimination is fought and gender equality promoted, including by exploring how to unblock negotiations on the Commission proposal for the Horizontal Anti-Discrimination Directive.
  • Contributing, as part of the project team steered and coordinated by the Vice-President for the Digital Single Market, to the realisation of a connected digital single market by ensuring the swift adoption of the EU data protection reform and by modernising and simplifying consumer rules for online and digital purchases.
  • Concluding negotiations on a comprehensive EU-U.S. data protection agreement which provides justiciable rights for all EU citizens, regardless of where they reside, as well as reviewing the Safe Harbour arrangement.
  • Reinforcing, as part of the project teams steered and coordinated by the Vice-President for Jobs, Growth, Investment and Competitiveness and the Vice-President for the Euro and Social Dialogue, the contribution of EU justice policies to our jobs and growth agenda, including through an assessment of the performance of judicial systems in the context of the European Semester of economic policy coordination.
  • Coordinating all the Commission’s work in criminal matters and reinforcing judicial cooperation in this field. Putting an independent European Public Prosecutor’s Office in place by 2016 will be a significant step forward to protect the EU budget from fraud.

To help you to fulfil these responsibilities, the Directorate-General for Justice (DG JUST) will report to you, with some adjustments, as indicated in the table annexed to this letter.

Our principles: ethics and transparency… (see correspondent chapter of Timmermans mission letter)…

———————–ANNEX

DG Justice (JUST)

The relevant parts of the Consumer, Health and Food Executive Agency (CHAFEA)

Responsible for relations with: The EU Agency for Fundamental Rights (FRA) The European Institute for Gender Equality (EIGE) The European Union Judicial Cooperation Unit (EUROJUST)

Changes for DG JUSTUnit MARKT F2 (Corporate Governance, Social Responsibility) moves from DG Internal Market and Services (MARKT) to DG JUST. – Directorate SANCO B (Consumer Affairs) moves from DG Health and Consumers (SANCO) to DG JUST, except for Unit SANCO B2 (Health Technology and Cosmetics), which moves from DG Health and Consumers (SANCO) to DG Enterprise and Industry (ENTR). – Unit JUST B3 (Anti-Drugs Policy) moves from DG JUST to DG Home Affairs (HOME). – Unit JUST D3 (Rights of Persons with Disabilities) and the part of Unit JUST D1 (Equal Treatment Legislation) dealing with the Directive establishing a general Framework for Equal Treatment in Employment and Occupation, move from DG JUST to DG Employment, Social Affairs and Inclusion (EMPL

—————————————–

Mission letter for Dimitris Avramopoulos Commissioner for Migration and Home Affairs

Dear Dimitris,

(see first part of  mission letter to Vice President Timmermans )

The Migration and Home Affairs portfolio

You will be the Commissioner for Migration and Home Affairs. You will, in particular, contribute to projects steered and coordinated, in particular, by the first Vice-President, in charge of Better Regulation, Inter-Institutional Relations, the Rule of Law and the Charter of Fundamental Rights, as well as to the work of the High Representative of the Union for Foreign Affairs and Security Policy/Vice-President. For other initiatives requiring a decision from the Commission, you will, as a rule, liaise closely with the first Vice-President, in charge of Better Regulation, Inter-Institutional Relations, the Rule of Law and the Charter of Fundamental Rights.

Migration is one of the pressing challenges I have highlighted in my Political Guidelines. Europe needs to manage migration better, in all its aspects. A successful migration policy is both a humanitarian and an economic imperative. We need to show that the EU can offer both a compelling case to attract global talent, and a vision of how to robustly address the challenge of irregular migration. We need a new policy on migration that will address skill shortages and the demographic challenges the EU faces and that will modernise the way the EU addresses these challenges.

The other priority of your portfolio will be to help the Member States to manage and secure Europe’s borders. The Common Asylum EU framework needs to be fully applied and operational.

We also need to step up the fight against cross-border crime and terrorism. The EU can make a key contribution to citizens’ security in an area with clear ramifications for freedom of movement and fundamental rights.

The focus should be on concrete operational measures where the action of the EU can have an impact – and where we can show that this does not compromise our commitment to fundamental rights and values.

During our mandate, I would like you to focus on the following:

  • Developing a new European policy on regular migration. Such a policy should help Europe address skills shortages and attract the talent that it needs. A first step will be to address the shortcomings of the “Blue Card” Directive: I would ask for a first review to be concluded within six months of the start of the mandate. Further steps will require reflection on the best ways to make the EU an attractive place for migration destination, on the basis of other existing models.
  • Boosting the effectiveness of the European border agency FRONTEX by developing a system to pool resources from Member States. We need to be able to put European Border Guard Teams into action quickly, with the participation of all Member States as a rule.
  • Working to ensure the full and consistent implementation of the Common European Asylum System. We should look at an extended role for the European Asylum Support Office, with a particular focus on working with and in third countries. We should also develop a strategy for improving our response to emergency situations.
  • Working with the High Representative of the Union for Foreign Affairs and Security Policy/VicePresident and the Commissioner for International Cooperation and Development on ways to improve cooperation with third countries on these aspects, including on readmission.
  • Focusing on the fight against crime with a clear link to EU policies, such as human trafficking, smuggling and cybercrime and helping to tackle corruption, also by strengthening police cooperation.
  • Identifying where the EU can make a real difference in fighting terrorism and countering radicalisation, ensuring the respect of fundamental rights. We should be able to define operational measures which can have a concrete impact on issues such as “foreign fighters”.
  • Working closely with the High-Representative of the Union for Foreign Affairs and Security Policy/Vice-President, the Commissioner for International Cooperation and Development and the Commissioner for Trade to strengthen the EU’s strategic partnership with Africa.

To help you fulfil these responsibilities, the Directorate-General for Home Affairs (DG HOME) will report to you, with some adjustments, as indicated in the table annexed to this letter.

Our principles: ethics and transparency …(see third part of the general letter)…

 ANNEX – (Administrative adjustments)

DG Home Affairs (HOME) The relevant parts of the Research Executive Agency (REA)

Responsible for relations with: The agency for the management of large IT systems (EU-LISA) The European Agency for the Management of Operational Cooperation at the External Borders (FRONTEX) The European Asylum Support Office (EASO) The European Monitoring Centre for Drugs and Drug Addiction (EMCDDA) The European Police Office (EUROPOL) The European Police College (CEPOL)

Changes for DG HOMEUnit ENTR G4 (Policy and Research in Security) moves from DG Enterprise and Industry (ENTR) to DG HOME. – Unit JUST B3 (Anti-Drugs Policy) moves from DG Justice (JUST) to DG HOME.

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

 

LogoSummerSchool2013Rome

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.

Night view of Europe

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)

BuonGoverno

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/


Practical Cooperation in judicial matters: the Council’s priorities for the next 18 months

Regarding the horizontal issues in the field of justice, the Spanish, Belgium, and Hungarian Presidencies will prioritise the protection and promotion of fundamental rights, the protection of personal data, E-Justice and the training of judges, prosecutors and judicial staff.

Continue reading “Practical Cooperation in judicial matters: the Council’s priorities for the next 18 months”

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.

Continue reading “The new powers of the Court of Justice after the entry into force of the Lisbon Treaty”