DATA RETENTION: A LANDMARK COURT OF JUSTICE’s RULING (4) .. will this saga continue and how ?..

FROM EUANALYSYSBLOG
by Professor Steve PEERS Tuesday, 8 April 2014

The data retention judgment: The CJEU prohibits mass surveillance

On July 7, 2005 a relative of mine started her journey to work on a London tube train. Within half an hour, bombs on that train left by terrorists exploded, in conjunction with three other bombs across London. Dozens of people died (although my relative was not injured).
Understandably, public concern about terrorist incidents, following on from the earlier outrages of 9/11 and the Madrid bombings, led to further EU anti-terrorist legislation.
In particular, the British Presidency of the EU Council made it a top priority to adopt legislation providing for retention of a large amount of communications data. But according to the Court of Justice of the European Union (CJEU), in a crucial judgment today, that legislation was essentially an over-reaction to these terrorist atrocities. The Court has effectively prohibited mass surveillance in the EU, and thus taken significant steps to entrench itself as the EU’s constitutional court.

Summary of the judgment

As discussed in detail by Chris Jones’ post on this blog (EUANALYSYSBLOG), the Directive requires Member States to require telecommunications service providers to retain significant amounts of data on the use of all forms of telecommunications by all individuals within the EU, for a period of between 6 months and 2 years. This data is collected for the use of law enforcement agencies as regards investigations into serious crime or terrorism, but there are no detailed rules in the Directive governing the access to and use of the data by those authorities.
The CJEU only found it necessary to address the question of the validity on the Directive in light of the Charter rights to privacy and data protection (Articles 7 and 8 of the Charter).

First of all, the Court unsurprisingly had no difficulty finding that the Directive interfered with the protection of those two rights. Its analysis focussed instead on whether such an interference could be justified.

The rules on justifying interferences with Charter rights are set out in Article 52 of the Charter. Any limitation upon Charter rights must be laid down by law, respect the essence of the right, and subject to the principle of proportionality, limit rights and freedoms only if it is necessary and genuinely meets public interest objectives and the rights and freedoms of others.
The Court easily found that there was a public interest justification (public safety) for the restriction of the Charter rights at issue.
It also found that the ‘essence’ of the rights was not affected, because (as regards the right to privacy) the content of communications was not recorded, and (as regards the right to data protection) certain data processing and data security rules had to be respected.

Therefore the key issues in the Court’s ruling were the proportionality of the interference with Charter rights.
The Court indicated that judicial review of the EU legislature’s discretion should be ‘strict’ in this case, applying factors such as the area of law concerned, the nature of the right, the nature and seriousness of the infringement and the objective pursued. Here, it followed from the nature of the right and the nature and seriousness of the infringement that the EU legislature’s discretion was reduced; the CJEU took no account expressly of the objective being pursued.

The first aspect of proportionality (the appropriateness of the interference with the right for obtaining the objective) was fulfilled, because the data concerned might be useful to investigations. However, the CJEU found that the Directive was problematic as regards the second facet: the necessity of the measure in question.
Crucially the Court ruled that the important objective of investigating serious crime and terrorism did ‘not, in itself’ justify data retention. So for the CJEU, the safety of the people is not the supreme law.
Its analysis proceeded by setting out the general importance of safeguards as regards the protection of privacy and data protection rights (building upon the case law of the European Court of Human Rights). These safeguards are even more necessary when data is processed automatically, with a risk of unlawful access.

Applying this test, the Court gave three reasons why the rules on data retention in the Directive were not strictly necessary.

First of all, the Directive had an extremely broad scope, given that it applied to all means of electronic communication, which have ‘widespread and growing importance’ in everyday life, without being sufficiently targeted.
Indeed, it ‘entails an interference with the fundamental rights of practically the entire European population’. In other words (the Court does not use the term), it amounts to mass surveillance.

Secondly, besides the ‘general absence of limits’ in the Directive, it failed to limit access to the data concerned by law enforcement authorities, and the subsequent use of that data, sufficiently precisely. In particular: it referred generally to ‘serious crime’ as defined in national law; it did not restrict the purpose of subsequent access to that data; it did not limit the number of persons who could access the data; and it did not control access to the data by means of a court or other independent administrative authority.

Thirdly, the Directive did not set out sufficient safeguards, as regards: the data retention period, for instance as regards the categories of data to be retained for the whole period; the protection of the data from unlawful access and use (here the CJEU criticises the possible limits on protection measures due to reasons of cost); the absence of an obligation to destroy the data; and the omission of a requirement to retain the data within the EU only.

Comments

The CJEU reached the same conclusion as the Advocate-General’s opinion, but for different reasons.
In the Advocate-General’s view, the Directive was invalid because it breached the ‘quality of law’ requirement applicable to interferences with Charter rights, having failed to establish sufficient safeguards relating to access to and use of the data. It also was disproportionate for failing to explain why storage periods of up to two years were necessary.
The Court’s ruling appears to go further, by ruling out mass surveillance in principle.

The opinion discussed some interesting and important issues that the Court does not directly address, in particular: the existence of a ‘quality of law’ requirement as regards breaches of the Charter; whether the EU or the Member States have responsibility for ensuring the satisfaction of that requirement in this case; and the complications of the ‘legal base’ issue, ie the awkward point that inserting safeguards relating to law enforcement authorities might go beyond the ‘internal market’ legal base of the legislation.
It might be deduced that the CJEU has a view on these issues: there is a ‘quality of law’ rule; the EU is responsible for upholding that requirement in this case; and the ‘legal base’ point is not a barrier to the EU adoption of rules regulating law enforcement authorities. But unfortunately, the Court did not expressly spell out its reasoning on these issues.
It is certainly peculiar that, having ruled previously that the Directive was validly based on EU internal market powers, the CJEU rules here that its interference with Charter rights is justified by the objective of public safety.

As for the reasoning which the Court did provide, as usual it was easy to find public interest objectives for the interference with rights.
The most important part of the reasoning is therefore the analysis of the interference with the ‘essence’ of the right, and of proportionality.
It is very significant that the Court makes clear that these are two different issues: even if the essence of a right is respected, legislation can be disproportionate. Earlier case law on restriction of rights often seemed to suggest that respecting the essence of rights was sufficient.

Another important aspect of the judgment is the development of a doctrine indicating when strict scrutiny of the EU legislature’s interference with fundamental rights should apply.
This is based upon Strasbourg case law, not the standards of national constitutional courts, which have of course addressed this issue in their own way.
Obvious questions arise as to whether the same standards should apply to national implementation of EU law, or to Charter rights not based upon the ECHR.

While many data protection specialists argue that there is a fundamental distinction between the right to privacy and the right to data protection, the Court’s judgment only reflects that distinction to a limited degree. It assesses separately whether there is an interference with Articles 7 and 8 of the Charter, and whether the essence of each right has been affected. However, it made no distinction between the rights when assessing the required intensity of judicial review, and linked the two rights together when assessing the proportionality of the interference with them.

Consequences of the judgment

First and foremost, the data retention Directive is entirely invalid.
The Court did not in any way rule that it could continue in force. So the immediate consequence is that we return to the status quo before 2005.
This means that Member States have an option, not an obligation, to retain data pursuant to the e-privacy Directive (see further Chris Jones’ post on the background to the data retention Directive). However, Member States’ exercise of this option will still be subject to the requirements set out in this judgment, since their actions will fall within the scope of the Charter, given that the e-privacy Directive regulates the issue of interference with telecommunications.

Would it be possible for the EU to adopt a new Directive on mandatory data retention? In other words, can the Directive in some way be ‘fixed’?

First of all, since the 2006 Directive is entirely invalid, the EU legislature has to start from scratch, rather than amend it.
Secondly, it is clear from the Court’s judgment that some form of mandatory data retention in order to combat serious crime and terrorism is acceptable from the perspective of the EU Charter.
How would such a new Directive differ from the measure the Court has just struck down?
The Court sets out unusually detailed guidelines for the legislature (and, in the meantime, for national legislature) in its judgment.

First of all, any new Directive would have to be in some sense targeted upon communication which has a particular link with serious crime and terrorism. Very simply, mass surveillance is an unjustifiable infringement of Charter rights.

Secondly, a new Directive would have to contain rules on: the definition of ‘serious crime’; the purpose of subsequent access to the data; limits on the number of persons who could access the data; and control of access to the data by means of a court or other independent administrative authority.

Thirdly, the new Directive would have to include stronger rules on the data retention period, for instance as regards the categories of data to be retained for the whole period, as well as the protection of the data from unlawful access and use. It would also have to contain rules on the absence of an obligation to destroy the data, and require that data be retained within the EU only. The Court did not rule on whether subsequent processing of the data in third States would be acceptable, but logically there must be some rules on this issue too.
Probably it would be simplest to extend the external processing rules in the main EU data protection legislation to this issue.

Depending on the timing of a proposal for a new Directive (assuming that there is one), it might possibly get mixed up with the conclusion of negotiations over main the main data protection package being negotiated by the EU institutions. Alternatively, if those negotiations have concluded, they will establish a template that the negotiation of the new Directive can take account of.

Final comments

The Court’s judgment can be seen in the broader context of continued revelations about mass surveillance.
Its reference to the retention of data by third States is a thinly-disguised allusion to the spying scandals emanating from the United States.
It also responds, sotto voce, to the very great concerns of national constitutional courts about this Directive, discussed in detail in Chris Jones’ post on this issue.

More broadly, the CJEU has seized the chance to give an ‘iconic’ judgment on the protection of human rights in the EU legal order. Time will deal whether the Digital Rights judgment is seen as the EU’s equivalent of classic civil rights judgments of the US Supreme Court, on the desegregation of schools (Brown) or criminal suspects’ rights (Miranda). If the Charter ultimately contributes to the development of a ‘constitutional patriotism’ in the European Union, this judgment will be one of its foundations.

DATA RETENTION: A LANDMARK COURT OF JUSTICE’s RULING (3) ..a contentious saga…

National legal challenges to the Data Retention Directive
by Chris Jones, Researcher for Statewatch

This post, which examines the numerous legal challenges against the EU’s Data Retention Directive at both national and EU level (not including today’s judgment), is the third post in a series examining the EU’s mandatory data retention legislation, which was struck down today by the Court of Justice of the European Union (CJEU). It is based on work undertaken by Statewatch as part of the SECILE project (Securing Europe through Counter-terrorism: Impact, Legitimacy and Effectiveness).

EU Court of Justice legal basis challenge

The first legal challenge to the Data Retention Directive came when Ireland, supported by Slovakia, asked the EU Court of Justice to annul the Directive on the grounds that it had the wrong legal basis. They argued that the correct legal basis for data retention resided “in the provisions of the EU Treaty concerning police and judicial cooperation in criminal matters,” rather than those on the internal market. The ECJ dismissed the case in February 2009, stating that:“Directive 2006/24… regulates operations which are independent of the implementation of any police and judicial cooperation in criminal matters. It harmonises neither the issue of access to data by the competent national law-enforcement authorities nor that relating to the use and exchange of those data between those authorities… “It follows that the substantive content of Directive 2006/24 is directed essentially at the activities of the service provides in the relevant sector of the internal market, to the exclusion of State activities coming under Title VI of the EU Treaty”.

Bulgaria

The first ruling on national laws transposing the Directive came from Bulgaria in proceedings launched by the NGO Access to Information Program. In December 2008 the country’s Supreme Administrative Court annulled an article of the transposing legislation permitting the Ministry of Interior “passive access through a computer terminal” to retained data, as well as providing access without judicial permission to “security services and other law enforcement bodies”. The court found that:“[T]he provision did not set any limitations with regard to the data access by a computer terminal and did not provide for any guarantees for the protection of the right to privacy stipulated by Art. 32, Para. 1 of the Bulgarian Constitution. No mechanism was established for the respect of the constitutionally granted right of protection against unlawful interference in one’s private or family affairs and against encroachments on one’s honour, dignity and reputation.”The court also found the legislation failed to make reference to other relevant laws – the Penal Procedure Code, the Special Surveillance Means Act and the Personal Data Protection Act – “which specify conditions under which access to personal data shall be granted.”

Hungary

In June 2008 the Hungarian Civil Liberties Union (HCLU or TASZ, Társaság a Szabadságjogkért) requested “the ex-post examination” by the Hungarian Constitutional Court of the amendment of Act C of 2003 on electronic communications, “for unconstitutionality and the annulment of the data retention provisions.”According to the HCLU, Act C “already comprised numerous restrictive data retention provisions prior to the directive. The only changes brought in by the amendments were the retention of Internet communications data and the elimination of the lax – but at least pre-defined – legal purposes of the data processing”. The HCLU argued that “the amendments completely disregarded the provisions of the directive [stating] that data should be ‘available for the purpose of investigation, detection and prosecution of serious crimes’.” Despite being filed in 2008, the case is yet to be heard. According to Fanny Hidvégi of the HCLU, this is because as of 1 January 2012 new restrictions were placed on submitting cases to the Constitutional Court, and “every pending case submitted by a person or institution which no longer has the right to do so were automatically terminated”. The HCLU has begun a new and lengthy procedure that requires the exhaustion of all other remedies before the Constitutional Court can examine the Hungarian data retention measures.

Romania

In October 2009, the Romanian Constitutional Court found that proposed national legislation implementing the Data Retention Directive violated Romanian constitutional provisions protecting freedom of movement; the right to intimate, private and family life; secrecy of correspondence; and freedom of expression. The court found that the government’s attempt to justify the mandatory retention of telecommunications data by invoking undefined “threats to national security” was unlawful. The Court also referred to the 1978 ECHR ruling in Klass v Germany, which stated that “taking surveillance measures without adequate and sufficient safeguards can lead to ‘destroying democracy on the ground of defending it’.”

In October 2011 the European Commission asked the Romanian government to bring forward new laws transposing the Directive, issuing a “reasoned opinion” under Article 258 of the TFEU, which carries the threat of full infringement proceedings at the European Court of Justice if the request is not met. A new law was duly drafted, but was rejected by the Romanian Senate. The law was heavily criticised in the media prior to the vote and the country’s Data Protection Authority had refused to endorse it, claiming that articles relating to the security services were “still vague”. Civil society organisations also opposed it and even the government refused to sponsor it, leaving the Minister of Communications and Information Society to propose it in his role as MP rather than minister. Strong support from the Minister of European Affairs fuelled criticism that it was motivated solely by the need to escape sanction by the European Court of Justice.

Ultimately the Senate vote was not decisive and the law continued its journey to the Chamber of Deputies, where at the end of May 2012 it was adopted with 197 votes for and 18 against, with many abstentions amongst the 332 deputies. There was no substantive discussion of fundamental rights issues in the Chamber of Deputies or the main two committees that debated the law and critics have argued that the provisions on access to retained data are even more problematic than the original statute. On 21 February 2013 the European Commission withdrew the infringement procedure that it had opened in 2011.

Cyprus

In February 2011 the Supreme Court of Cyprus ruled that aspects of the national transposing legislation breached the Cypriot constitution and case law on surveillance. The case was brought by individuals whose telecommunications data had been disclosed to the police in accordance with District Court orders. They argued that the laws underlying the orders were based (Articles 4 and 5 of Law 183(I) 2007, that sought to harmonise Cypriot law with the Directive), and therefore the District Court orders themselves violated their rights to privacy and confidentiality of communications. The Supreme Court found that petitioners had indeed been subject to a violation of their rights and annulled provisions it said went beyond the requirements of the Data Retention Directive. However, the legality of the Directive itself was not called into question.

Germany

Legislation transposing the Data Retention Directive into the Telecommunication Act and Code of Criminal Procedure was passed by the Bundestag on 9 November 2007 and entered into force on 1 January 2008. The day before, 31 December 2007, 35,000 German citizens (represented by the NGO AK Vorrat) filed a complaint against the legislation at the Federal Constitutional Court. On 2 March 2010 the Court ruled that the transposing provisions were a disproportionate interference with Article 10 (confidentiality of communications) of the Basic Law (Grundgesetz), and contravened legal standards on purpose limitation, data security, transparency and legal remedies.

However, the Court made no ruling on the actual Directive, stating that data retention is in principle proportionate to the aim of investigating serious crime and preventing imminent threats against life, body, freedom of persons, and the existence and security of the Federal Republic or one of its states. The Court found that the new domestic law failed to comply with legal standards on purpose limitation (restrictions on use of the retained data), data security, transparency and legal remedies.

In January 2011 the Ministry of Justice (MoJ) presented a paper proposing an alternative to data retention – a “quick freeze” system of limited data preservation for criminal investigations. The police and/or public prosecutors would issue a “quick freeze” order seeking access to metadata already held by telecommunications providers, for example for billing purposes. To actually access the “frozen”’ data would require the approval of a judge. In addition, the MoJ proposed an obligation for ISPs to store internet traffic data for seven days, allowing criminal investigators to identify persons behind (already known) IP addresses in particular in cases of child pornography. Criminal investigators would request the traffic and communications data via service providers without having direct access to these traffic data. This paper reflected proposals made in June 2010 by the Federal Commissioner for Data Protection, as well as the suggestions of more pragmatic privacy advocates.

More radical activists claim that any mandatory storage of communications data should be prohibited. The Interior Ministry rejected these proposals and insisted on full implementation of the Directive, arguing that the Constitutional Court had already shown that it is possible to implement the Directive and ensure individual privacy through high data security standards, including encryption and the “four eyes principle” (approval by at least two people) as prerequisite for accessing data and log files; strict purpose limitation; and the protection of professions whose confidentiality must be ensured.

The MoJ produced a “quick freeze” bill in April 2012 but continued opposition from the Interior Ministry meant that it was never tabled in Parliament. The Interior Ministry was unhappy with the length of the proposed freezing periods, demanding three months instead of the one month suggested by the Ministry of Justice. Moreover, the Interior Ministry wanted to include crimes such as fraud and hacking. The controversy continues and no new legislation has yet been introduced.

By this time the European Commission had initiated infringement proceedings and took its case to the European Court of Justice in July 2012. The Commission is seeking to impose a daily fine of €315,000.

Czech Republic

On 13 March 2011 the Czech Republic’s Constitutional Court declared national legislation implementing the Directive unconstitutional. It found that the retention period exceeded the requirements of the Directive, and that use of the data was not restricted to cases of serious crime and terrorism. “The national legislation lacked, according to the constitutional court, clear and detailed rules for the protection of personal data as well as the obligation to inform the person whose data has been requested.” As in Germany, the Court stated that it could not review the Directive itself, but noted there was nothing in principle preventing implementation in conformity with constitutional law.

A second Constitutional Court decision in December 2011 examined the procedures put in place for obtaining access to retained data and found the “procedure in question to be too vague, in breach of [the] proportionality rule (its second step) and thus unconstitutional due to interference with right to privacy and informational self-determination.” In the meantime the Czech government revised the implementing legislation with modifications that took account of the judgment.The NGO Iuridicum Remedium has lodged fresh proceedings against the revised legislation on the grounds that regulation remains inadequate and that the new decree could provide for the “monitoring of contents of Internet communications”.

Slovakia

In August 2012 a group of Slovakian MPs, supported by the European Information Society Institute, lodged a legal complaint against the legislation implementing the Data Directive. The complaint asks the Slovak Constitutional Court to examine whether the laws implementing the Directive and dealing with access by the authorities to retained data are compatible with constitutional provisions on proportionality, the rights to privacy and data protection, and the provision granting freedom of speech. It also argues that the measures infringe provisions guaranteeing privacy, data protection and freedom of expression in Slovakian human rights law, the European Convention on Human Rights and the Charter of Fundamental Rights of the European Union. The complaint has not yet been resolved.

Sweden

The European Commission has engaged in a lengthy battle to try to bring Sweden’s domestic legislation into line with the Directive. After the country missed the initial September 2007 deadline, the Commission brought infringement proceedings, with the European Court of Justice finding Sweden guilty of failing to fulfil its obligations in February 2010. A proposal for transposing legislation was put forward in December 2010 and adopted in March 2012. The new law should have taken effect in May 2012 but despite an overwhelming vote in favour of the new measures in the Swedish parliament (233 MPs voted in favour with 41 against and 19 abstaining), the Left Party and the Greens invoked a constitutional provision allowing the entry into force of new measures to be delayed by a motion of one sixth of the parliament’s members.

In May 2013, the European Court of Justice ordered Sweden to pay a €3 million fine for its delay in implementing the legislation. The Court rejected Swedish pleas regarding the domestic controversy over the implementation of the law:“As the Court has repeatedly emphasised, a Member State cannot plead provisions, practices or situations prevailing in its domestic legal order to justify failure to observe obligations arising under European Union law… The same is true of a decision, such as the one made by the Swedish Parliament, to which paragraph 8 of this judgment makes reference, to postpone for a year the adoption of the draft bill intended to transpose that directive.”

The Court of Justice of the European Union (CJEU)

The most serious challenge to the implementation of the Data Retention Directive has come from joined cases brought by the NGO Digital Rights and the plaintiffs in a case referred from the Austrian Constitutional Court. The Advocate General’s opinion on the case, published in December 2013 following a hearing in July, proposed that the Court declare the Directive as a whole incompatible with EU Charter articles 52(1) (limitations on rights “must be provided for by law and respect the essence of those rights and freedoms”) and 7 (right to privacy). The case focuses on the compatibility of the Directive with Articles 7 (respect for private and family life) and 8 (protection of personal data) of the European Union Charter of Fundamental Rights. At the hearing the representatives of those who brought the cases argued that the Directive is fundamentally incompatible with the Charter and that there is still no evidence to demonstrate that its necessity or proportionality.

On behalf of Austrian privacy group AK Vorrat, Edward Scheucher argued that:“[T]he cumulative effect of fundamental rights restrictions need to be taken into consideration when judging the legitimacy of a single measure. Given the revelations regarding PRISM, this cumulative effect now clearly provides a different result [than] at the time when the German [Constitutional] Court took its decision [to annul certain provisions of German transposing legislation]. Furthermore, he stated that the Austrian implementation of the directive clearly showed that a Charter-compatible national implementation of the Data Retention Directive is not possible. This argument is bolstered by the fact that the main author of the Austrian implementation is among the 11,139 Austrian plaintiffs who challenged data retention before the Austrian Constitutional Court.”

In response to requests for evidence demonstrating the necessity of the Directive, the Austrian and Irish governments presented new statistics on the use of retained data at the hearing. Also arguing in favour of the Directive were representatives of Italy, Spain and the UK, as well as the Commission, the Council and the Parliament. However, the Directive’s advocates still “had to acknowledge a lack of statistical evidence”, with the UK admitting that “there was no ‘scientific data’ to underpin the need” for data retention. Judge Thomas von Danwitz, the Court’s main rapporteur for the hearing, asked for information that had led to the adoption of the Directive in 2006, given that “the Commission in 2008 claimed not to have enough information for a sound review”. The Council’s lawyers, meanwhile, “implored the Court not to take away instruments from law enforcement”.

Ultimately, Advocate-General Cruz Villalón concluded that the Court answer the cases in the following way:“(1) Directive 2006/24/EC of the European Parliament and of the Council of 15 March 2006 on the retention of data generated or processed in connection with the provision of publicly available electronic communications services or of public communications networks and amending Directive 2002/58/EC is as a whole incompatible with Article 52(1) of the Charter of Fundamental Rights of the European Union, since the limitations on the exercise of fundamental rights which that directivecontains because of the obligation to retain data which it imposes are not accompanied by the necessary principles for governing the guarantees needed to regulate access to the data and their use.“(2) Article 6 of Directive 2006/24 is incompatible with Articles 7 and 52(1) of the Charter of Fundamental Rights of the European Union in that it requires Member States to ensure that the data specified in Article 5 of that directive are retained for a period whose upper limit is set at two years.”

Today’s Grand Chamber judgment, which is analysed in Steve Peers’ separate post, ultimately agreed with this recommendation. The EU has finally been forced to redraft its mandatory data retention rules.

DATA RETENTION: A LANDMARK COURT OF JUSTICE’s RULING (2) ..a bit of history…

Monday, 7 April 2014
Background to the EU Data Retention Directive
By Chris Jones, Researcher for Statewatch

As the fallout from the Snowden leaks rumbles on, the Court of Justice of the European Union (CJEU) will today decide a case (Digital Rights Ireland, Seitlinger and Others that could spell the end for the EU’s Data Retention Directive in its current form. The Directive mandates the mass storage by private companies of individuals’ telecommunications data, in case it is required by law enforcement authorities to investigate cases of serious crime or terrorism.

The judgment follows the handing down of a critical opinion by Advocate General Cruz Villalón in December 2013, which proposed that the Court declare the Directive as a whole incompatible with EU Charter articles 52(1) (limitations on rights “must be provided for by law and respect the essence of those rights and freedoms”) and 7 (right to privacy). This post, based on work undertaken by Statewatch as part of the SECILE project (Securing Europe through Counter-terrorism: Impact, Legitimacy and Effectiveness), outlines the history of the 2006 Data Retention Directive; the key points of the legislation; and its problematic national implementation, which has been the subject of legal challenges across Europe. Two further posts will examine the implementation of the Directive and the challenges to it.

The Data Retention Directive: a brief overview

The 2006 Data Retention Directive obliges Member States to ensure that telecommunications and Internet Service Providers (ISPs) retain various types of data generated by individuals through the use of landline phones, fax machines, mobile phones, and the internet, “in order to ensure that the data are available for the purpose of the investigation, detection and prosecution of serious crime”.The data that must be retained are:

The source of a communication;
The destination of a communication;
The date, time and duration of a communication;
The type of a communication;
Users’ communication equipment or what purports to be their equipment; and
The location of mobile communication equipment.

The retention period is a minimum of six months and a maximum of two years.
Member States decide exact duration as well as the conditions under which it may be accessed.

The European Data Protection Supervisor has called the Directive “without doubt the most privacy-invasive instrument ever adopted by the EU in terms of scale and the number of people it affects,” and it ranks among the most controversial pieces of counter-terrorism legislation the EU has ever adopted. Fierce debate as to its legitimacy and effectiveness has raged since the earliest stages of its drafting to the present day.

The policy-making process

According to the preamble of the Data Retention Directive, the terrorist attacks in Madrid in March 2004 and in London in July 2005 “reaffirmed… the need to adopt common measures on the retention of telecommunications data as soon as possible.” However, law enforcement agencies had been seeking data retention legislation long before the destruction of the World Trade Centre on 11 September 2001, and the Directive does not limit data retention to combating terrorism.

Demands for data retention can be traced back to the “International Law Enforcement and Telecommunications Seminars” (ILETS) held at the FBI academy in Quantico, Virginia, which commenced in 1993 with the aim of developing global “interception requirements” – standards for telephone-tapping by police and security agencies to be provided in all telephone networks.
Following the first ILETS meeting, the very first EU Council of Justice and Home Affairs (JHA) Ministers adopted a Resolution in November 1993 – which was not published – calling on experts to compare the needs of the EU vis-à-vis the interception of telecommunications “with those of the FBI”.

A second EU Resolution based on ILETS’ work was adopted in January 1995 and introduced obligations on telecommunications companies to cooperate with law enforcement agencies in the “real-time” surveillance of their customers. This was never actually discussed by the Council of Ministers. It was adopted instead by “written procedure” (where legislative texts are circulated among ministries and adopted if there are no objections). The Resolution, which was not published in any form until November 1996, formed the basis of the provisions on the interception of telecommunications in the EU Convention on Mutual Legal Assistance of 2000.
ILETS continued every year and in 1999 identified a new problem. Valuable “traffic data” – particularly mobile phone and internet usage records – were being erased by service providers after customers had been billed, a particularly acute issue in the EU because of the recently enacted EC Directive on privacy in telecommunications, which obliged service providers to delete traffic data after its use for billing purposes (usually within three months).
ILETS thus introduced the principle of mandatory data retention regimes that would oblige service providers to keep data for much longer periods. This demand then surfaced in other intergovernmental fora concerned with police and judicial cooperation, such as the G8. The American Civil Liberties Union, Privacy International and Statewatch would later dub this process “policy laundering”: “the use by governments of foreign and international forums as an indirect means of pushing policies unlikely to win direct approval through the regular domestic political process.”

In 2000 the EU decided to update the aforementioned 1997 Directive on privacy in telecommunications to take into account “new technologies” and proposed what would become known as the “e-Privacy” Directive. The draft Directive proposed scrapping the clause obliging service providers to delete traffic data after billing use. As a First Pillar matter (dealing with the functioning of the internal market), the European Parliament had what was then a rare vote on what was effectively a Justice and Home Affairs or Third Pillar issue (police surveillance). Following an extensive campaign by privacy advocates the proposal was rejected. However in 2002, with the events of 11 September 2001 providing a fresh justification, a left-right alliance of the European Socialist Party (PSE) and the European People’s Party (PPE) agreed the e-Privacy Directive and the “data retention amendment”, with the liberals, greens and left parties opposed. This paved the way for Member States to introduce their own optional national data retention regimes.
Yet no sooner was the ink dry on the e-Privacy Directive than a confidential draft Framework Decision on the compulsory retention of subscriber and traffic data for 12-24 months across the EU was circulated among Member States and leaked by Statewatch.
Following widespread criticism of the proposal in European media, the then-Danish presidency of the EU was moved to issue a statement saying that the proposal was “not on the table”.
If not ‘on the table’, the proposal appears to have remained close at hand – following the Madrid train bombings in March 2004, the ‘EU Declaration on combating terrorism’ endorsed the principle of mandatory data retention across the EU.
One month later the UK, France, Sweden and Ireland submitted a revised draft Framework Decision on data retention to the Council. By now, a majority of EU Member States had also introduced national data retention regimes. The EU proposal suffered another major setback when Statewatch published the confidential legal advice of the EU Council and Commission Legal Services, both of which had been withheld from MEPs and the public despite stating that the Framework Decision was unlawful because it had the wrong legal basis. Data retention, said the EU’s lawyers, was a First Pillar issue because it regulated the activities of service providers in the single market.

The European Commission, despite previously opposing data retention, redrafted the proposal as a Directive. This complicated things further. Whereas the European Parliament was only consulted on the draft Framework Decision, with the EU Council free to ignore its opinion, it would now enjoy full powers of “co-decision”. Moreover, during the consultation process on the Framework Decision, the Parliament had voted to reject mandatory data retention because it was “incompatible with Article 8” of the ECHR (protection of personal data).

However, between the defeat of the proposal for a Framework Decision and the publication of the proposal for a Directive, the July 2005 London tube bombings happened. These were used as a fresh justification for an EU data retention law, although the UK prime minister suggested at the time that “all the surveillance in the world” could not have prevented the attacks.

The UK then used its presidency of the EU Council to impose a deadline of the end of 2005 for the European Parliament to agree the measure, with Charles Clarke, UK Secretary of State, lecturing the EP on the need to adopt the proposal. Home Office officials were reported to have told MEPs in private that if parliament failed to do this they “would make sure the European Parliament would no longer have a say on any justice and home affairs matter.”
Led by Privacy International and the European Digital Rights Initiative, 90 NGOs and 80 telecommunications service providers wrote to MEPs, imploring them to reject the measure.
Despite their efforts, the EP finally agreed the measure on 14 December 2005, with another PSE-PPE alliance reversing the position on the draft Framework Decision that the parliament had taken just eight months earlier. The Directive completed its passage through parliament following a single reading, meeting the UK’s demands on the timeframe.
The Council of the EU adopted the legislation by qualified majority, with Ireland and the Slovakia voting against, and the Directive passed into law in March 2006.

Two further observations are relevant to any substantive consideration of the policy-making process.
The first concerns the role of the UK government, which took its attempts to enforce data retention to EU institutions after it had been prevented from a domestic mandatory data retention regime by the houses of parliament. In what appears to be a clear case of “policy laundering”, the subsequent EU Directive, championed by the UK government, was binding on the UK and implemented by statutory instrument, in the form of the Data Retention (EC Directive) Regulations 2007 and 2009.

The second observation concerns the role played by the US government in pushing for mandatory data retention in Europe, bilaterally in its discussions with the European Commission and EU Presidency, and in multilateral fora like the G8. This is noteworthy because at that time there were no corresponding powers in the USA, nor any intention to introduce them.
In place of blanket “data retention”, US law enforcement and security agencies are obliged to seek “preservation orders” from special surveillance courts.
However, recent leaks such as that of the FISA court order imposed on Verizon, demonstrate that US agencies and their special “surveillance court” have interpreted these principles so widely as to cover entire telephone networks and all of their users.

Nevertheless, a more principled implementation of such a regime would be more privacy-friendly than the EU’s current blanket approach.
Opposition to the Data Retention Directive in Europe included advocacy from civil society organisations for the development of this model as an alternative, with judicial supervision to try and ensure that access to private data is necessary and legitimate. This is still the preferred option of the Ministry of Justice in Germany, where implementation of the Directive has been highly controversial and the subject of a Constitutional Court ruling that demanded its redrafting.

DATA RETENTION: A LANDMARK COURT OF JUSTICE’s RULING (1)

SOURCE : EUROPEANLAWBLOG
Written by Orla Lynskey

JOINED CASES C-293/12 AND 594/12 DIGITAL RIGHTS IRELAND AND OTHERS: THE GOOD, THE BAD AND THE UGLY

In its eagerly anticipated judgment in the Digital Rights Ireland case, the European Court of Justice held that the EU legislature had exceeded the limits of the principle of proportionality in relation to certain provisions of the EU Charter (Articles 7, 8 and 52(1)) by adopting the Data Retention Directive. In this regard, the reasoning of the Court resembled that of its Advocate General (the facts of these proceedings and an analysis of the Advocate General’s Opinion have been the subject of a previous blog post). However, unlike the Advocate General, the Court deemed the Directive to be invalid without limiting the temporal effects of its finding. This post will consider the Court’s main findings before commenting on the good, the bad and the ugly in the judgment.

 The Court’s Findings

 In reaching this conclusion, the Court reasoned as follows. It first narrowed the multiple questions referred by the Irish and Austrian courts down to one over-arching issue, whether the Data Retention Directive is valid in light of Articles 7, 8 and 11 of the Charter (setting out the rights to privacy, data protection and freedom of expression respectively). It then conducted its assessment in three parts.

 First, it examined the relevance of these Charter provisions with regard to the validity of the Data Retention Directive. Although the Court recognised the potential impact of data retention on freedom of expression, it chose not to examine the validity of the Directive in light of Article 11 of the Charter. It noted that the Directive must be examined in light of Article 7 as it ‘directly and specifically affects private life’ and in light of Article 8 as it ‘constitutes the processing of personal data within the meaning of that article and, therefore necessarily has to satisfy the data protection requirements arising from that article’[29].

 Second, it considered whether there was an interference with the rights laid down in Articles 7 and 8 of the Charter. It noted that the Data Retention Directive derogates from the system of protection set out in the Data Protection Directive and the E-Privacy Directive [32]. It cited Rundfunk  as authority for the proposition that an interference with the right to privacy can be established irrespective of whether the information concerned is sensitive or whether the persons concerned have been inconvenienced in any way [33]. The Court therefore held that the obligations imposed by the Directive to retain data constitutes an interference with the right to privacy [34] as does the access of competent authorities to that data [35]. The Court also held that the Directive interferes with the right to data protection on the mystifyingly simplistic grounds that ‘it provides for processing of personal data’ [36]. It observed that these interferences were both wide-ranging and particularly serious [37].    

 The Court then, thirdly, assessed whether these interferences with the Charter rights to privacy and data protection were justified. According to Article 52(1) of the Charter, in order to be justified limitations on rights must fulfil three conditions: they must be provided for by law, respect the essence of the rights and, subject to the principle of proportionality, limitations must be genuinely necessary to meet objectives of general interest.
The Court held that the essence of the right to privacy was respected as the Directive does not permit the acquisition of content data [39] and the essence of the right to data protection was respected as the Directive requires Member States to ensure that ‘appropriate technical and organisational measures are adopted against accidental or unlawful destruction, accidental loss or alteration of data’ [40].
With regard to whether the interference satisfies an objective of general interest, the Court distinguished between the Directive’s ‘aim’ and ‘material objective’: it noted that the aim of the Directive is to harmonise Member States’ provisions regarding data retention obligations while the ‘material objective’ of the Directive is to contribute to the fight against serious crime [41].
The Court observed that security is a right protected by the EU Charter and an objective promoted by EU jurisprudence [42]. It therefore held that the Data Retention Directive ‘genuinely satisfies an objective of general interest’ [44] and proceeded to analyse the proportionality of the Directive.

 The Court effectively adopted a two-pronged proportionality test, considering whether the measure was appropriate to achieve its objectives and did not go beyond what was necessary to achieve them [46].
Applying the ECtHR’s Marper judgment by analogy, it noted that factors such as the importance of personal data protection for privacy and the extent and seriousness of the interference meant the legislature’s discretion to interfere with fundamental rights was limited [47-48]. It held that the data retained pursuant to the Directive allow national authorities ‘to have additional opportunities to shed light on serious crime’ and are ‘a valuable tool for criminal investigations’ [49]. Therefore, it found that the Directive was suitable to achieve its purpose.

With regard to necessity, it noted that limitations to fundamental rights should only apply in so far as is strictly necessary [52] and that EU law must lay down clear and precise rules governing the scope of limitations and the safeguards for individuals [54]. It held that the Directive did not set out clear and precise rules regarding the extent of the interference [65]. It highlighted several elements of the Directive which fell short in this regard.
By applying to all traffic data of all users of all means of electronic communications the Directive entailed ‘an interference with the fundamental rights of practically the entire European population’ [56] and did not require a relationship between the data retained and serious crime or public security [58-59].
Moreover, no substantive conditions (such as objective criterion by which the number of persons authorised to access data can be limited) or procedural conditions (such as review by an administrative authority or a court prior to access) determined the limits of access and use to the data retained by competent national authorities [60-62]. Nor did the Directive determine the time period for which data are retained on the basis of objective criteria [64-65].

 The Court also held that the Directive did not set out clear safeguards for the protection of the retained data. This finding was supported by the Court’s observation that the rules in the Directive were not tailored to the vast quantity of sensitive data retained and to the risk of unlawful access to these data [66]. Rather, the Directive allowed providers to have regard to economic considerations when determining the technical and organisational means to secure these data [67]. Moreover, the Directive did not specify that the data must be retained within the EU and thus within the control of national Data Protection Authorities [68]. For these reasons, the Directive was declared invalid by the Court [69].

 The Good, the Bad and the Ugly

 The Good The judgment is to be welcomed for its end result – the invalidity of the Directive – as well as for many other reasons. It is a victory for grassroots civil liberties organisations and citizen movements: the preliminary references stemmed from actions taken by Digital Rights Ireland – an NGO – and just under 12,000 Austrian residents. More of these types of initiatives are needed in order to assure effective privacy and data protection. From a more substantive perspective, the judgment also recognises the dangers posed by aggregated meta-data – that it may ‘allow very precise conclusions to be drawn concerning the private lives’ of individuals [27] – and by data retention more generally – that it ‘is likely to generate in minds of the persons concerned the feeling that their private lives are the subject of constant surveillance’[37]. It also acknowledges that such data retention may have a chilling effect on individual freedom of expression [28].

 The Bad Nevertheless, some aspects of the judgment are less welcome. Most notably here, the Court glosses over the fact that it assesses the proportionality of the Directive in light of its ‘material objective’ – crime prevention – rather than its stated objective – market harmonisation. This sits uncomfortably with the Court’s finding in Ireland v Council that the Directive was enacted on the correct legal basis as its predominant purpose was to ensure the smooth functioning of the EU internal market. The Court also incorrectly applies Article 8 of the EU Charter. Not only does it consider that there is an interference with this right every time data are processed [36], it also fails to consider how the application of this right can be applied to a piece of legislation which pursues law enforcement objectives. The Data Protection Directive excludes data processing for law enforcement purposes from its scope (Article 3(2)) and the right to Data Protection should, pursuant to Articles 51(2) and 52(2) of the Charter, be interpreted in light of and reflect the scope of the Directive. This conundrum is conveniently overlooked by the Court.

 And the Ugly However, the most disappointing element of the judgment, like the Opinion of the Advocate General, is that it does not query the appropriateness of data retention as a tool to fight serious crime [49]. Given the prominence of this issue in both the EU and the US in the post-PRISM period, empirical evidence is needed to justify this claim.

Written by Orla Lynskey Posted in EU constitutional law, Fundamental rights, General, Internal Market, Proportionality and Subsidiarity Tagged with article 7 Charter, article 8 Charter, data retention directive, Directive 2002/58/EC, directive 2006/24/EC, Joined Cases C-293/12 and 594/12 Digital Rights Ireland ltd and Seitlinger and others, personal data, Privacy, proportionality, right to data protection
– See more at: http://europeanlawblog.eu/?p=2289#more-2289

The new EU directive on Confiscation : a good (even if still prudent) starting point for the post-Lisbon EU strategy on tracking and confiscating illicit money

(Original version : italian)

by Gabriella Arcifa

Foreword

According to UN estimates the total amount of criminal proceeds generated in 2009 is around $2.1 trillion; however less than 1% of it are frozen and confiscated, proving that dirty money remains in the criminals’ pockets. In a globalized financial world, money laundering is an essential element of facilitate corruption, organized crime, and terrorism, and affect competition with law abiding economy. Tracking and recovering illicit money has then become since the ’90 a political priority at international level. Since then the international acquis is growing steadily. Suffice to remember :

a) the 1990 Council of Europe Convention on laundering, search, seizure and confiscation of the proceeds from crime, of 1990,

b) the 2000 UN Convention against Transnational Organised Crime ;

c) the 2003 United Nations Convention against Corruption (Articles 52-59, which to date has been ratified by the European Union and 23 Member States),

d) the 2008 Council of Europe Convention on laundering, search, seizure and confiscation of the proceeds of crime and on the financing of terrorism (CETS 198), (to date signed by 19 EU Member States and the European Union, and ratified by 11 Member States)

d) the 2010 OECD Financial Action Task Force (FATF) recommendations on Confiscation and Asset recovery (Recommendations 3, 4 and 38)

At European Union level, after the adoption in 1999 of the Tampere European Council Conclusions, a first legislative text on confiscation has been adopted on July 2001: the Framework Decision 2001/500/JHA However it soon appeared soon ineffective because of the MS too wide marge of discretion. It was then soon replaced by the Framework Decision 2005/212/JHAof 24 February 2005 on Confiscation of Crime-Related Proceeds, Instrumentalities and Property and by the Framework Decision 2006/783/JHA on mutual recognition of the confiscation orders. Again, even these texts didn’t reach their objective because of the persisting substantial differences among the MS’ legislation so that there was an high number of decisions opposing the confiscation orders issued by another EU MS[i]. To overcome these problems in 2008 the Commission proposed a more ambitious strategy with its Communication “Proceeds of organised crime – Ensuring that ‘crime does no pay’ (COM(2008) 766 final).

However it is only after the entry into force of the Lisbon Treaty and the adoption of the Stockholm Program by the European Council on December 10 2009 that it has been possible to adopt at qualified majority this kind of measures by paving the way to more ambitious common standards.

The new strategy has been endorsed by the 2010 Council Conclusions on Confiscation and Asset Recovery which made reference also to not-conviction-based confiscation procedures[ii] and in the Commission 2010 Communication The EU Internal Security Strategy in Action[iii]” as well as in the 2011 “anti-corruption package” submitted to the European Parliament and the Council in 2011.

Since then tracking the illicit money has become the common objective of several EU legislative measures recently examined by the European Parliament and dealing with

– the protection of EU financial interests

-,the revision of the anti-money laundering directive and the exchange of information linked with the transfer of funds

– the freezing and confiscation of criminal assets.

The new Directive on Confiscation

On March 14 the EU Council of Ministers has adopted the new directive on the freezing and confiscation of the proceeds of crime in the EU (only Poland voted against and UK and DK did’nt take part to the vote. The text was agreed with the European Parliament which adopted its position on February 25 (only EFD group voted against – see here).The agreement has been welcomed by many but concerns have also been raised (for instance by the European Criminal Bar Association – ECBA) which has considered that the new legislation could have an impact on protection of fundamental rights and against the proportionality principle.

The legal basis of the new Directive are art. 82.2 and 83 p. 1 of the TFUE so that it defines the minimum rules to be applied in the EU MS when “..freezing property with a view of possible later confiscation and confiscation of property, recommending general principles for the management and disposal of the confiscation objects” [iv].

The new directive has at least the merit to establish a clearer legal framework which can strengthen the judicial cooperation between the EU MS. That having been said it is worth noting that the initial scope of the draft Directive as submitted by the Commission has been significantly reduced during the negotiations between the European Parliament and the Council.

To better understand the dynamics of the interinstitutional negotiation in the following paragraphs the initial negotiation mandate adopted by the Parliamentary Committee (draft report A7-0178/2013 ) is juxtaposed with the final text as adopted by the Plenary (and by the Council). The following aspects require a particular attention :

– the scope

– the definition of proceeds and instrumentalities related to the criminal offence;

– the regime of confiscation;

– the eligibility and the meaning of the “extended confiscation powers”

– the conditions to admit a confiscation from a third party;

Continue reading “The new EU directive on Confiscation : a good (even if still prudent) starting point for the post-Lisbon EU strategy on tracking and confiscating illicit money”

EP STUDY : NATIONAL CONSTITUTIONAL AVENUES FOR FURTHER EU INTEGRATION

This study was requested by the European Parliament’s Committees on Legal Affairs and on Constitutional Affairs. It investigates national constitutional limits to further EU integration and explores ways to overcome them. It includes an in-depth examination of the constitutional systems of 12 Member States (Croatia, the Czech Republic, Estonia, Finland, France, Germany, Hungary, Ireland, Italy, the Netherlands, Poland, and the United Kingdom) and a bird’s eye view of all Member States. EU integration can be advanced by avoiding substantive constitutional obstacles in various ways. Overcoming the substantive obstacles requires managing national procedural constitutional hurdles. This is possible to the extent that the required broad political consensus exists.

AUTHOR(S) : Mr Leonard F.M. BESSELINK, Mrs Monica CLAES, Mrs Šejla IMAMOVIû, Mr Jan Herman REESTMAN.
This document is available on the Internet

EXECUTIVE SUMMARY

1. The central research question of this study is whether, and to what extent, national constitutions provide guidance for further European integration and reversely how the latter can take place in full respect for national constitutional identities.

2. The research involved an in-depth analysis of a representative selection of Member States: Croatia, the Czech Republic, Estonia, Finland, France, Germany, Hungary, Ireland, Italy, the Netherlands, Poland, and the UK; and a bird’s eye view of all Member States. The study conducts a cross-national comparative analysis of the national constitutional approaches to EU integration, on the basis of which some final conclusions are offered.

3. This study deals with the relationship between the EU and national constitutions mainly from a national perspective. But there is also another side of the story, taking the EU perspective.
The EU Treaties (TEU and TFEU) acknowledge the central role of national constitutions, for instance when they require ratification by all the Member States ‘in accordance with their respective constitutional requirements’ for their entry into force, for their amendment and for the accession of new Member States. This presumably implies more than a mere procedural rule and acknowledges that the Treaties should also substantively be in accordance with national constitutions, or at least, it grants the Member States the opportunity, if their constitution so requires, to ensure that they do not enter into Treaties which would be unconstitutional.
On a more general level, the EU expects its Member States to comply with the common fundamental constitutional values that all Member States share, and which also apply to the European Union (Arts. 2 and 7 TEU). More specifically with respect to fundamental rights protection, the Treaty, the EU Charter of Fundamental Rights and the CJEU case law explicitly seek to connect EU human rights to the common constitutional traditions of the Member States. Yet, under the Treaties, the EU is not only bound to respect the common constitutional values of the Member States.
In addition, Article 4(2) TEU obliges the Union to respect ‘their national identities, inherent in their fundamental structures, political and constitutional, inclusive of regional and local self-government’.
Accordingly, if the Union should fail to respect these national identities as inherent in their fundamental constitutional and political structures, it would infringe not only those identities, but also the Treaty obligation to respect them. Whether this is indeed the case is, as a matter of EU law, to be decided ultimately by the Court of Justice of the Union, and not unilaterally by the Member States.
In addition, the Union must, under Article 4(2) TEU, respect the Member States’ essential State functions, including ensuring the territorial integrity of the State, maintaining law and order and safeguarding national security. In particular, national security remains the sole responsibility of each Member State.
The Treaty thus recognises that there are ‘essential State functions’ which remain with the Member States and which the EU must respect.
What exactly these functions are is not clear, beyond those mentioned in the provision.
On the other hand, and despite the central role of national constitutions in the EU constitutional edifice, Member States cannot invoke their national constitutions to escape compliance with EU law before the Court of Justice of the European Union. And even before national courts, national constitutional law should not, as a matter of EU law, take priority over conflicting provisions of national law.
Indeed, the principle of primacy of EU law,1 which is firmly settled in the case law of the CJEU, and has been confirmed in Declaration 17 annexed to the TEU, applies to national constitutional law as well. With respect to fundamental rights, more specifically, Article 53 of the Charter does not lead to a different conclusion.

4. Turning the perspective to national constitutions, it can be said that, in general, constitutions generally perform the four main functions of
* constituting the polity, which may be understood as expressing the basic social contract;
* organising and structuring the exercise of public authority and dividing powers between the various branches;
* limiting the exercise of public authority, which also includes fundamental rights protection of individuals and
* expressing common values of society and/or carrying its ‘national identity’.
As power-organizing tools, two of the main functions of constitutions go in different directions.
One is the enabling function of constitutions: constitutions constitute the institutions which are to exercise public authority and empower these institutions.
A second function is associated with ‘constitutionalism’ in a narrow sense and concerns the limiting function of constitutions: constitutions limit the exercise of public authority, for instance via human rights and a division of powers.
These different functions of a constitution are also reflected with regard to EU integration: national constitutions help to enable, and limit.

5. In the context of participation in the EU, the enabling function of constitutions is illustrated by those constitutional provisions which allow for a ‘limitation of sovereignty’ or a ‘transfer of sovereign powers’ to the EU.
However, national constitutions not only enable, but also set limits to further EU integration.
Membership of the European Union challenges the national constitutions in various ways: powers, which under the constitution have been attributed to national bodies, are transferred to the EU, and hence they are exercised differently from the way it was intended under the national constitution.
The EU is, as such, not bound by those national constitutions, but does indeed require the Member States to apply EU law even if it should infringe the national constitution.
Accordingly, the supremacy of the Constitution itself is challenged.
Seen in this light, it should come as no surprise that many Member States, while having adapted their constitutions to allow for membership and facilitate it, have at the same time retained constitutional limits and reservations, and impose conditions on EU law.
Moreover, constitutions are not only often considered to be expressions of the will of the people to form a polity (political autonomy) and to be governed under the constitution, but many constitutions also legally and judicially protect this foundational will.
This may take different forms, for instance by protecting the sovereignty of the state, statehood itself or the national nature of democracy, or a combination of these.

6. To put the constitutional obstacles to further EU integration in proper perspective, the report draws two main distinctions.
The first concerns a distinction between further integration under the current EU treaty framework and further integration by means of new (EU amendment) treaties.
The second distinction is that between substantive and procedural constitutional obstacles.
Generally, the substantive constitutional obstacles can be overcome by the adoption of a treaty (amendment), by the adoption of a constitutional amendment or by a combination of both.
For the adoption of such amendments, national procedural constitutional hurdles have to be taken.
Continue reading “EP STUDY : NATIONAL CONSTITUTIONAL AVENUES FOR FURTHER EU INTEGRATION”

Steve PEERS: The CJEU secures asylum seekers’ right to family housing

Published on EU LAW ANALYSIS Thursday, 27 February 2014

The CJEU secures asylum seekers’ right to family housing

 

What obligations do Member States have to ensure that asylum-seeking families are housed adequately? The Court of Justice of the European Union (CJEU) has today usefully clarified the minimum standards which Member States must observe on this issue, in Case C-79/13 Saciri. Its judgment is a welcome confirmation that whatever the practical difficulties facing Member States in managing their reception for asylum-seekers, families cannot simply be left homeless or forced to live in grossly inadequate conditions by means of the refusal of support for financial assistance to obtain housing.

Judgment

The case concerns a family of asylum-seekers (two parents and three children) who needed accommodation in Belgium while their asylum application was being considered. The Belgian agency responsible for reception of asylum-seekers replied that it could not provide reception, and referred them to the social assistance agency. Since the Saciri family could not pay the rent being charged for private properties, they asked the social assistance agency for financial support.

But there was a ‘Catch-22’: the agency refused to give them support, since the family was not living in accommodation provided for by the reception agency – even though the reception agency had told them that it could not help them. A lower court in Belgium ruled that the reception agency had to pay them financial support, and that agency appealed to the referring court, which asked the CJEU questions about the EU’s first-phase reception conditions Directive.

First of all, the CJEU pointed out that the Directive allows for support for asylum-seekers either in kind (ie providing housing directly) or by providing financial allowances. Then it confirmed its prior case law (Case C-179/11 Cimade and GISTI) to the effect that benefits must be provided as soon as the asylum application is made, in particular in light of the right to human dignity set out in the EU Charter of Fundamental Rights.

Next, as for the amount of the financial allowances, regardless of how the aid is provided, the Directive states that it must ensure a dignified standard of living for applicants’ health, as well as subsistence. Member States must also, according to the Directive, take account of those with special needs (including minors), entailing q requirement to preserve family unity as well as the best interests of the child. The CJEU confirmed that these principles meant that applicants must be able to obtain housing on the private market if necessary, although this did not mean that asylum-seekers could make their own choice of housing.

The CJEU then ruled that, although the specific rules in the Directive relating to housing only apply where the housing is provided in kind by Member States, it still followed that any allowances provided to assist with housing had to ensure the unity of the family.

Finally, the Court ruled that where accommodation facilities are overloaded, it was open to Member States to refer asylum-seekers to the authorities responsible for public assistance, provided that the latter authorities ensure that the minimum standards in the Directive are met.

The Court concluded by noting that ‘saturation of the reception networks [is not] a justification for any derogation from meeting’ the standards in the Directive.

Comments

The CJEU’s judgment neatly addresses the ‘Catch-22’ created by national law, which to some extent reflects the structure of the Directive. On the one hand, the Directive lays out general rules on reception support, but then on the other hand, it only lays out detailed rules as regards housing where the State provides such housing in kind. What if the State does not, or cannot, provide for housing in kind?

The Court’s answer to this question takes account of the definition of ‘material reception conditions’ in the Directive, which expressly includes ‘housing’. So it logically follows that such material support must include assistance to obtain housing, where no housing is provided for in kind.

Moreover, it is expressly clear from the Court’s judgment that a family of asylum-seekers is entitled to support to obtain family housing on the private market, although the Court does recognise that the asylum-seekers do not have a fully free choice of where they may be housed. This necessarily means that, if there is no publicly-provided accommodation available, the authorities must ensure that a family of asylum-seekers has enough support to afford to rent a property at market rates, which is big enough to house their family in dignity. But the house need not be palatial. Probably this means that a family of five cannot demand enough financial support to rent a four-bedroom house; but neither can they all be expected to sleep on the same sofa.

The Court’s answer to these questions was not affected by the overloading of the Member State’s reception system. This had practical consequences, in that asylum-seekers can be referred to the social assistance agency instead of the reception agency, and be provided with a financial allowance instead of housing in kind. But the basic obligation to provide enough assistance to ensure a minimum dignified level of accommodation, including family unity, cannot be derogated from.

Finally, it should be noted that the judgment takes a stronger approach to family unity than the wording of the Directive, which states only that family unity shall be ensured ‘as far as possible’, and only where Member States provide for accommodation in kind. The Court’s judgment means instead that families of asylum-seekers must be able to live together in all cases, if necessary in private accommodation, even if this means some additional cost or administrative inconvenience for Member States. This can only be welcomed, as it is an essential step to ensure the protection of the family life of some of the most vulnerable people in the European Union.

Steve PEERS:New EU rules on maritime surveillance: will they stop the deaths and push-backs in the Mediterranean?

by Steve Peers Professor of Law, Law School, University of Essex  

Introduction

When the EU Charter of Fundamental Rights was first adopted, in its initial non binding form, in 2000, many asked what certain of the rights contained in the Charter had to do with the EU at all.

Most notably, why mention the right to life, when the EU did not carry out its own death penalty, or have coercive forces which killed anyone? Of course, it would seem odd to have a human rights charter without including the right to life, and the EU had already developed a detailed foreign policy strategy opposing the death penalty worldwide.

Subsequently the right to life also became relevant to the development of the Common European Asylum System. But more strikingly, the significant death toll of migrants in the Mediterranean has widely been blamed on EU policies – whether those policies are carried out by the Member States’ authorities alone, or by those authorities as coordinated by the EU’s borders agency, Frontex, which began operations in 2005. Moreover, the national authorities and Frontex have often been blamed for ‘push-backs’: the forced return of migrants’ vessels to unsafe countries, which were condemned by the European Court of Human Rights in its 2012 judgment in Hirsi v Italy.

The response to these criticisms was the adoption of rules governing maritime surveillance operations coordinated by Frontex, first of all in the form of a Council measure implementing the Schengen Borders Code. A majority in the European Parliament (EP) voted against this measure, but they did not constitute a majority of the Members of the EP (MEPs), some MEPs being absent. So the EP instead sued to annul the Council’s measure before the Court of Justice of the European Union (CJEU), and won its case, on the grounds that a measure concerning human rights and coercive measures had to be adopted by means of the EU’s legislative process.

That meant that the European Commission had to propose a legislative measure, which it did in April 2013. At first, a hard-line group of Member States opposed most of the provisions in this proposal concerning search and rescue and disembarkation (ie the rules on the destination of migrants who were intercepted and rescued), even after the particularly tragic loss of 300 migrants’ lives in autumn 2013.

However, these Member States relented, and the European Parliament also pressed to retain and improve upon the Commission’s proposal. The result was that the EP and the Council (made up of Member States’ ministers) both agreed on their respective positions on the proposal in December 2013, and then both agreed on a joint deal on the legislation by February 2014.

The legislation will therefore be formally adopted in April this year, before the EP elections in May. The crucial question is therefore whether the EU will then be doing enough to address the loss of life and push-backs in the Mediterranean.

The new Regulation

The previous Decision contained binding rules on interception, and non-binding rules on search and rescue and disembarkation. However, the CJEU said that even the latter category of rules was binding.

As noted above, a group of Member States wanted to water down (as it were) most of these rules in the new Regulation, but was ultimately unsuccessful.

There are new rules on search and rescue, which retain (at the EP’s behest) the Commission’s detailed proposal on this issue, including particularly the definition of whether vessels can be considered in a state of alert, uncertainty or distress.

Provided that sinking vessels are detected in time and that these rules are properly applied, the Regulation should therefore ensure that migrants are rescued from drowning wherever possible.

 On the other hand, the situation is more complex as regards the rules on protection of those migrants who are potentially at risk of persecution, torture or other forms of ill-treatment in their country of origin (or another country).

The focus of this analysis is therefore upon those rules – followed by an assessment of the issue of the accountability of Frontex.

Protection and disembarkation rules

Continue reading “Steve PEERS:New EU rules on maritime surveillance: will they stop the deaths and push-backs in the Mediterranean?”

Transparency in the EU : the distance between principles and Institution’s practices is widening up..

By Emilio De Capitani

As clearly explained in the previous post (Henri Labayle study on Access to documents) Transparency and good administration have become a core element of the post-Lisbon Constitutional Framework (1) However, notwithstanding the recurrent rhetoric declarations and promises in these pre-electoral days by several political figures at European and national level, four years after the entry into force of the Treaty and of the Charter the situation is even worse than before.
It is then more than likely that the the best supporters of the Eurosceptic movements are in these days the EU institutions and the Member States which are still blocking the reform of the EU rules on access to documents and whose daily practices are often contrary to the Treaties, the legislation into force, the ECJ jurisprudence and probably their own internal rules

A dead end for the rules on access to documents (Regulation 1049/01) ?

The EU legislative framework on access to documents dates back to 2001 when Regulation 1049/01 was adopted. It was against the unwillingness of the Commission and of several Members States but it was a success because of a (temporary) strong political majority in the European Parliament, a skilled Swedish Council Presidency and clear support by the civil society.

However in the following years notwithstanding a growing support by the European Court of Justice Jurisprudence the Council and Commission practice has tried to rebuild the previous opaque practices. Paradoxically the turning point has been after the groundbreaking “Turco” Case (C-39/05 P and C-52/05 P Sweden and Turco v Council and Commission, judgment of 1 July 2008) by which the Court considered that openness “contributes to strengthening democracy by enabling citizens to scrutinise all the information which has formed the basis for a legislative act. The possibility for citizens to find out the considerations underpinning legislative action is a precondition for the effective exercise of their democratic rights”(Sweden and Turco v Council, paragraph 46). In this perspective the Court of justice considered that it was also admissible to have access even to the Institution’s legal service opinions notably when dealing with the soundness of legislative works (2).
Continue reading “Transparency in the EU : the distance between principles and Institution’s practices is widening up..”

Henri LABAYLE : Openness, transparency and access to documents and information in the EU

Source : European Parliament Policy Department: Citizens’ Rights and Constitutional Affairs
Full text of the Study
Author: Henri Labayle, professor at University de Pau et des pays de l’Adour (FR)

INTRODUCTION

1. LEGAL FRAMEWORK OF RIGHT OF ACCESS TO DOCUMENTS

1.1 Constitutional framework
1.1.1 Principle of openness
1.1.2 Principle of transparency
1.1.3 Right of access to documents
1.2 Regulatory framework of the right of access to documents
1.2.1 System for the right of access
1.2.2 Exercise of the right of access
1.3 Case-law framework of the right of access to documents
1.3.1 Principle of right of access
1.3.2 Content of right of access

EXERCISING THE RIGHT OF ACCESS TO DOCUMENTS

2.1 Details of comparison
2.1.1 The Council of Europe
2.1.2 National comparisons
2.2 Institutional practices relating to access to documents
2.2.1 Practice of the Commission
2.2.2 Practice of the Council
2.2.3 Practice of the European Parliament
2.2.4 Details of comparison

3. CONCLUSIONS AND RECOMMENDATIONS

EXECUTIVE SUMMARY

This study is an update to a previous study about case law in relation to the right of (1) access to documents. It puts into perspective the Union’s institutional practice in relation to the entry into force of the Treaty of Lisbon. The right of access to documents in the Union is part of a legal context updated by the Treaty of Lisbon. The principles of transparency and good governance have constitutional implications for the Union’s institutions, and the Charter of Fundamental Rights of the European Union establishes them as a fundamental right. While the implementation of Regulation (EC) No 1049/2001 has been a success during the last 10 years, it now needs to be revised to bring it up to date.
In fact, the constitutional progress represented by the Treaty of Lisbon has been boosted by advances in case law.
The challenge of the revision process, requested by the European Parliament since 2006 and initiated in 2008, involves giving consideration to the following two elements: the declaration of a fundamental right and the important lessons learnt from case law.
This body of case law and observation of the Union’s institutional practice have given rise to the following significant remarks.

I – The first remark concerns the very nature of the right of access.

The combination of the Treaty of Lisbon with the case law relating to Regulation (EC) No 1049/2001 now creates a different perception of the right of access. Before being an institutional challenge within the Union, requiring institutions to have the same amount of information when performing their duties, access to documents has now become a right of the individual. This is a general trend. It is noted in comparative law and in European law in particular, with this being confirmed by the Convention of the Council of Europe on Access to Official Documents. The nature of the obstacles it describes preventing the right of access is largely the same as that under EU law. On the other hand, the Union does not give a specific independent authority the guarantee of access to documents, unlike many of its Member States.

II – A second series of remarks derives from the Court of Justice’s interpretation of Regulation (EC) No 1049/2001.

Apart from the far-reaching nature of this right, in less than five years, the Court has given its verdict accordingly on exercising the right of access in relation to administrative, legislative and judicial matters.
1. The right of access to documents is linked to the Union’s democratic nature. Transparency guarantees greater legitimacy and accountability of the administration in a democratic system because citizens need to have the opportunity to understand the considerations underpinning EU regulations in order to exercise their democratic rights (Turco, Access Info Europe cases).
2. Access must be as broad as possible, thereby reducing the internal `space to think’ or the `negotiation space’ which the institutions want. Therefore, protecting the decision-making process within the Union excludes any general confidentiality, especially in the field of legislation (Borax, Access Info and MyTravel cases).
3. The scope of the various exceptions is tightly controlled. Therefore, the major challenge posed by the exception concerning international relations does not automatically entail confidentiality (In’t Veld cases). Similarly, court proceedings are not excluded from transparency under the guise of respect for the proper administration of justice (API case). Legal opinions are not necessarily bound by confidentiality, especially on legislative matters (Turco and MyTravel cases), no more than the identity of Member States is protected by confidentiality during the legislative procedure (Access Info Europe case).
4. Combining data protection schemes may require ‘switching’ from a general regulation to a special regulation on data protection (Bavarian Lager case) and on monitoring activities. Legal protection for confidentiality (Bavarian Lager case) and a `general presumption’ of confidentiality (Technische Glaswerke Ilmenau case) may reduce the scope of transparency.
5. The documents supplied by Member States are not covered by general confidentiality (IFAW judgment).

III – There are also plenty of lessons which may be drawn from the practice of the three EU institutions, by reading the annual reports required by the regulation and looking at certain national practices.

1. The number of applications for access in the European Union is in decline. This is not in keeping with the practices in some Member States or even in states outside the EU such as the United States or Australia.
2. The volume of refusals to provide access remains proportionally large and is tending to rise.
3. The number of applications for access in the areas of Common and Foreign Security Policy (CFSP) and Justice and Home Affairs (JHA) confirms the sensitive nature of these matters.

The type of public interested in gaining access to documents should raise questions for the Union on two counts.
Firstly, professionals are the main group requesting access to documents (particularly Commission documents) and, secondly, university institutions are nowadays the most efficient channels for transmitting information and guaranteeing administrative transparency. The glaring lack of interest from ordinary citizens in transparency must provide some food for thought.

INTRODUCTION

There is an ever-growing demand for openness and transparency in modern societies. The European Union is also subject to this demand, although it is not necessarily successful in finding solutions which meet people’s expectations.2.
The Union has undergone a sea change, from a diplomatic approach to dealing with records, where secrecy is the rule, to an institutional system requiring a democratic basis.
Firstly, and mainly as a result of the accession of new Member States, which are sensitive to this issue, the European Union made some of its documents available for public access. Declaration 17 annexed to the Treaty of Maastricht referred to the link between the transparency of the decision-making process and the democratic nature of the institutions, but its scope remained limited. Two Commission communications on transparency and access to documents were then published, followed by a `Code of Conduct’3 adopting the principle of public access to Council and Commission documents.
Secondly, the Treaty of Amsterdam enshrined these principles in primary law. Firstly, Article 1 of the treaty stated that decisions are taken as openly as possible’, thereby recognising the principle of openness. Secondly, Article 255 TEC provided a legal basis for governing the right of public access to EU documents. This would be achieved with the adoption of Regulation (EC) No 1049/2001 regarding public access to European Parliament, Council and Commission documents . Finally, the White Paper on governance 2001 would highlight the need for involvement from and openness towards citizens to restore confidence in the Union.

Until then, the principles of `openness’ and `transparency’, which were used frequently in common parlance, had actually fulfilled more of a political than a legal function. Highlighted by the European Union with the aim of abating the crisis of confidence over the administration, these principles still had very little regulatory force, unlike the right of access to documents, which would be developed under Regulation (EC) No 1049/2001.

The scope of this study does not extend to a more in-depth examination of this historical period, but it does cover two of its main features. Firstly, openness and transparency basically boiled down to just one thing, access to information; and, secondly, the guarantee from the judicature was key to ensuring that this right had real meaning.
Case law was intended to make the judicature a prominent player in the exercise of the right of access to documents, on the instigation of the European Ombudsman, thereby conferring upon it the status of a real fundamental right.

The prospect of this development was upset by the entry into force of the Treaty of Lisbon. This treaty outlined a new legal framework both in terms of the functioning of the Union’s administration and of European citizens’ rights.

1. LEGAL FRAMEWORK OF RIGHT OF ACCESS TO DOCUMENTS

The Treaty of Lisbon changes not only the perception of the right of access to documents in the Union, but also the conditions under which the administration and the legislature perform their duties. Nowadays, the principles of openness and transparency feature in EU primary law, which should have consequences for the right of access to documents as one of the ways of applying that law.

1.1 Constitutional framework
The text of the treaty is clear: the principle of openness is set out in it. Hence its implementation via the principle of transparency and principle of access to documents6.

1.1.1 Principle of openness
This is a general, ‘umbrella’ term incorporating both the principle of transparency and the principle of participation.
Article 1 of the Treaty on European Union (TEU) therefore echoes the Treaty of Amsterdam by stating that it marks ‘a new stage in the process of creating an ever closer union among the peoples of Europe, in which decisions are taken as openly as possible and as closely as possible to the citizen’7.

The treaty conveys the specific meaning of this principle in two places. In Article 10(3) on the ‘functioning of the Union’, under Title II on ‘democratic principles’, the TEU confirms that ‘every citizen shall have the right to participate in the democratic life of the Union. Decisions shall be taken as openly and as closely as possible to the citizen’. The principle of openness is therefore linked for the first time to the ‘democratic life’ of the Union and to ‘representative democracy’. The Union is democratic because it is ‘open’ to its citizens, which is confirmed by the following article.

Article 11(2) TEU is aimed directly at the institutions, which must maintain ‘an open, transparent and regular dialogue’ with representative associations and civil society. It therefore adds an active dimension to the principle of openness.
The Treaty on the Functioning of the European Union (TFEU) reinforces the basis of the principle by setting out the terms for its implementation in Article 15(1) TFEU. The ‘Union’s institutions, bodies, offices and agencies’ have a duty to conduct their work ‘as openly as possible’ and this is ‘in order to promote good governance and ensure the participation of civil society’. This requirement requires several comments.

At this stage, the principle of openness in the Union was still regarded as a prerequisite for its functioning more than as a right of its citizens. This explains why it had a very wide scope of application, extending across the whole administrative machinery. Although it did not have an absolute remit and included no obligations in terms of results, the ‘promotion’ objective assigned to the Union still required the Union to adopt a dynamic approach.

Finally, Article 298(1) and (2) TFEU provided a vital addition to the regulatory transposition of the principle of openness. Stating that in carrying out their missions, the institutions, bodies, offices and agencies of the Union ‘shall have the support of an open, efficient and independent European administration’, it conferred on the Union’s legislature the power to ‘establish provisions to that end’.

1.1.2 Principle of transparency

As the Court of Justice confirmed in a leading case discussed below, ‘a lack of information and debate is capable of giving rise to doubts in the minds of citizens, not only as regards the lawfulness of an isolated act, but also as regards the legitimacy of the decision-making process as a whole’8. With those words, the Union judge put the debate on transparency9 squarely in the camp of legitimacy and democracy. From his perspective, ‘it is precisely openness in this regard that contributes to conferring greater legitimacy on the institutions in the eyes of European citizens and increasing their confidence in them by allowing divergences between various points of view to be openly debated’.

Previously and without yet mentioning the ‘requirement of transparency’10, the case law of the General Court and the Court of Justice had been based on Declaration 17 annexed to the Treaty of Maastricht11, in the absence of another more explicit text. Once this text became available with Regulation (EC) No 1049/2001, the judicature reinforced its argument. Transparency guarantees that ‘the administration enjoys greater legitimacy and is more effective and more accountable to the citizen in a democratic system’12. It enables them ‘to carry out genuine and efficient monitoring of the exercise of the powers vested in the Community institutions’13 . ‘Only where there is appropriate publicity of the activities of the legislature, the executive and the public administration in general, is it possible for there to be effective, efficient supervision, inter alia at the level of public opinion, of the operations of the governing organization and also for genuinely participatory organizational models to evolve as regards relations between the administration and the administered.’14

The procedural transparency and institutional transparency referred to in the TEU and TFEU merged in the Treaty of Lisbon to give some practical meaning to the Union’s action15.

The principle’s normative scope still remained limited,16 but the provisions of Article 11 TEU indicate that the battle lines had shifted. The Union’s institutions now had an obligation to apply the principle ‘by appropriate means’. Whether this involved the ‘open, transparent and regular dialogue’ with civil society stated in Article 11(2) TEU or the EU’s’actions being transparent’, which requires ‘broad consultations’ under paragraph 3, the respect for ‘democratic principles’ mentioned under Title II TEU exerted new pressure on the institutions, especially when it came to access to information, and by extension, documents. Therefore, this citizen’s right shifts from being a judgment call to being exercised in a regulatory context.

The consequences arising from this change of perspective were significant. The call for openness and transparency was no longer an abstract reference in this case, but represented a condition for the democratic legitimacy of the rule of the Union. The treaty ‘legalised’ principles that could, one day, be interpreted on the basis of case law, if, for example, a legislative act has been adopted outside this participatory dialogue required by the treaty.

1.1.3 Right of access to documents

The public’s right to access institutional documents17 was asserted in the Union by way of regulation before being enshrined in the founding treaties. The implementing regulation came before the constitutional declaration in this case, with the judge pointing out that ‘the domestic legislation of most Member States now enshrines in a general manner the public’s right of access to documents held by public authorities as a constitutional or legislative principle’18.
This right is based politically on the principle of transparency. This was confirmed by the Court of Justice in 2007: its ‘aim is to improve the transparency of the Community decision-making process, since such openness inter alia guarantees that the administration enjoys greater legitimacy and is more effective and more accountable to the citizen in a democratic system’19 . As the Court points out, ‘the possibility for citizens to find out the considerations underpinning legislative action is a precondition for the effective exercise of their democratic rights’20.

Legally speaking, this right was therefore established initially on the basis of Article 255 TEC, which gave citizens the right to access the documents of the three main institutions. It subsequently gave rise to a substantial body of case law without the Court of Justice going as far as to establish a general principle. Its general wording in the TEC explained its lack of direct effect21, with the treaty instructing derived law to provide content for it. Nevertheless, at this point the right of access changed from a simple option granted on a discretionary basis to the administered by the institutions to a true ‘subjective, fundamental right’22 granted to those targeted by Article 255 TEC.
The Treaty of Lisbon amends this law as it stands significantly in two respects.

First of all, the Charter of Fundamental Rights makes this access a fundamental right. Article 42 has the heading ‘Right of access to documents’, implying that ‘any citizen of the Union, and any natural or legal person residing or having its registered office in a Member State, has a right of access to European Parliament, Council and Commission documents’. The explanatory notes accompanying the Charter point out that this Article 42 ‘has been taken’23 from Article 255 TEC, which provided the basis on which Regulation (EC) 1049/2001 had been adopted, with the Convention wishing to extend its scope.
Advocate General Maduro emphasised this change in his conclusions on the case Sweden v Commission cited above with this ‘protection of the right of access under ever higher norms’: ‘Since the right of access to documents of the institutions has become a fundamental right of constitutional import linked to the principles of democracy and openness, any piece of secondary legislation regulating the exercise of that right must be interpreted by reference to it, and limits placed on it by that legislation must be interpreted even more restrictively.’24

When referring to the relationship between Article 42 of the Charter and the European Convention on Human Rights (ECHR), this EU judge therefore stated that ‘with respect to the right of access to documents of the Union’s institutions, bodies, offices and agencies, the Charter provides for a special fundamental right’25.

The TFEU itself has also changed the legal environment of the right of access. This has happened, first and foremost, because the protection desired by Member States regarding the confidentiality of the Council’s work disappeared in Article 207(3) TEC 26.
On the other hand, Article 15(1) TFEU confirmed the requirements for ‘good governance’ by providing specific content for the principles of openness and transparency. In paragraph 3 the ways of exercising the right of access to documents on a compulsory basis are expressed in far more precise terms than in Article 255 TEC. The removal of the inter-governmental pillars and the downgrading of the institutional treatment of the JHA and CFSP allow it to cover all the Union’s work, which must be carried out ‘as openly as possible’.

A literal analysis of Article 15 TFEU highlights that this statement is part of an overall initiative. While the Union’s governance requires its work to be conducted ‘openly’ in paragraph 1, paragraph 3(3) of the same article refers to the proceedings of each relevant EU administrative entity being ‘transparent’. Therefore, the systematic nature of the triangle of openness/transparency/document access is outlined in the treaty. Moreover, it clearly states the scope of the obligations incumbent upon the ‘institutions, bodies, offices and agencies’. While the call for the Union’s work to be conducted ‘as openly as possible’ is not necessarily an indication of a constraint, on the other hand, the conditions for the right of access to documents are pinned down in a more binding manner.

Article 15(3) (1) TFEU starts off by defining a right ‘subject to the principles and the conditions to be defined in accordance with this paragraph’. It does not grant the legislature the power of discretion to decide what these ‘principles and conditions’ are. It is the duty of the legislature to implement the right of access allowing EU citizens to enjoy this right. The definition of its general principles and conditions for exercising it is an absolute requirement, governed by ordinary legislative procedure.

The third subparagraph of the same article then reinforces the obligations imposed on the relevant entities: they must ensure that their ‘proceedings are transparent’ and they have to draw up in their own Rules of Procedure ‘specific provisions regarding access’ to documents. This presupposes therefore that the right of access has been regulated before.
Lastly – and this is an important observation – the authors of the treaty expand considerably the group of institutions that are bound by the obligations. The group is no longer just made up of the three main institutions, but in a very general manner incorporates the ‘Union’s institutions, bodies, offices and agencies’. The penultimate subparagraph of paragraph 3 emphasises in the case of the Court of Justice of the European Union (CJEU), the European Central Bank (ECB) and the European Investment Bank (EIB) that they ‘shall be subject to this paragraph only when exercising their administrative tasks’.
This generalisation, which is already taken into account by a number of internal agencies and institutions, therefore reinforces the need for a new text on the right of access, failing which a right based on the Treaties may not be applied.

The value added offered by the Treaty of Lisbon can therefore be summarised as follows: on the one hand, the treaty establishes a real fundamental right of access to documents and, on the other hand, it tightly controls the exceptions to a right whose scope has been generalised. The value added deriving from this for individuals then allows a hierarchy of challenges to be established: before being an institutional challenge within the Union, requiring institutions to have the same amount of information when performing their duties, the access to documents has now become a right of the individual. This shift completes the structural change initiated by the Union’s judicature 20 years ago.

In this legal context, the regulation of the right of access applied by Regulation (EC) No 1049/2001 13 years ago seems considerably out of touch nowadays. Both the ‘general principles’ and legitimate ‘limits’ governing the right of access, mentioned in Article 15(3) TFEU, need to be revamped by the legislator by means of the ordinary legislative procedure, a fact which should not be forgotten.

The need to update the regulation actually comes from the triangle described earlier, linking the duties of openness, transparency and access to documents 27. It extends beyond the framework of Article 15 TFEU alone, for instance, in light of Article 298 TFEU. Furthermore, the strictly minimalist approach of the Commission’s second regulatory proposal28 derives more from the amendment to the previous regulation than from the implementation of the Treaty of Lisbon.
Consequently, with regard to both the scope of the right of access and the particular issues relating to the sensitive nature of some classified documents or codifying the advances made in case law for some categories of documents, a new text needs to be adopted.

1.2 Regulatory framework of the right of access to documents

A quick recap of what this framework29 entails will make it possible to assess not only the challenges involved with its revision but also the significant impact of the case law from the Court of Justice and the General Court.

1.2.1 System for the right of access

As a result of the gap in the Treaties, Regulation (EC) No 1049/2001 has become the cornerstone of the right of access to administrative documents, which has led the Court of Justice to focus specific attention on the reason for this in order to clarify its use.
This reason provides some guiding principles:
• Access to documents is linked to the principles of transparency and openness referred to by the Treaties, with the regulation consolidating current practices.
• The purpose of the regulation is ‘to give the fullest possible effect’30 to the right of access in its definition of its principles and limits. Therefore, in principle, ‘all documents should be accessible to the public’, in other words, ‘any citizen of the Union, and any natural or legal person’ residing there.
• The right of access assumes a particular meaning ‘in cases where the institutions are acting in their legislative capacity’ and it is applicable to CFSP and JHA.

On this point, Regulation (EC) No 1049/2001 provides an extremely broad definition of a ‘document’ as Article 3(a) defines it as ‘any content whatever its medium (written on paper or stored in electronic form or as a sound, visual or audiovisual recording) concerning a matter relating to the policies, activities and decisions falling within the institution’s sphere of responsibility’. In specific terms, each institution has therefore been granted the procedural mechanisms required to obtain access and, by applying Regulation (EC) 1049/2001, they produce an annual report about its application.

In addition to this key text, other specific texts should be mentioned31 whose interaction with Regulation (EC) No 1049/2001 caused difficulties which led the Court of Justice to settle matters (see below)32. The following table33 can provide accordingly a summary of the current state of play….

Continue reading …

NOTES
1 Public access to the European Union documents, State of the law at the time of revision of Regulation 1049/2001′, PE 393.287, 2008 and `Classified information in light of the Lisbon Treaty’, PE 425.616, 2010.
2 Specific reference will be made to our studies Public access to the European Union documents, State of the law at the time of revision of Regulation 1049/2001′, PE 393.287, 2008 and Classified information in light of the Lisbon Treaty’, PE 425.616, 2010.
3 Code of Conduct concerning public access to Council and Commission documents, OJ L 340 31.12.1993, p. 37.
4 OJ L 145, 31.05.2001, p. 43.
5 COM(2001) 428.
6 A. Allemano, ‘Unpacking the principle of openness in EU Law, transparency, participation and democracy’, European Law Review 2014 (forthcoming).
7 J. Mendes, ‘Participation and the róle of law after Lisbon: a legal view on article 11 TEU’, CMLRev 2011.1849.
8 ECJ, 1 July 2008, Kingdom of Sweden and Turco v Council, C-39/05 P and 52/05P, paragraph 59.
9 M. Hillebrandt, D. Curtin, A. Meijer, ‘Transparency in the Council of ministers of the EU: institutional approach’, Amsterdam Centre for European law, Working paper 2012-04.
10 CFI, 25 April 2007, WWF European Policy Programme/Council, T-264/04, paragraph 61.
11 CFI, 17 June 1998, Svenska journalistfórbundet v Council, T-174/95, ECR II-2289 paragraph 66; CFI, 14 October 1999, Bavarian Lager/Commission, T-309/97, ECR II-3217, paragraph 36.
12 CFI, 7 February 2002, Kuijer/Council, T-2011/00, paragraph 52 and ECJ, 6 March 2003, Interporc/Commission C-41/00 P, ECR p. I-2125 paragraph 39.
13 ECJ, 7 December 1999, Interporc v Commission, paragraph 39.
14 Opinion of Tesauro under ECJ, 30 April 1996, Netherlands v Council, C-58/94, ECR I-2169 paragraph 14.
15 D. Curtin, ‘Judging EU secrecy’, Amsterdam Centre for European law, Working paper 2012-07.
16 See A. Meijers,’Understanding the Complex Dynamics of Transparency’, and S. Castellano et A. Ortiz, ‘Legal Framework for e-transparency and the right to public access in the EU’, Transatlantic Conference on Transparency Research, Utrecht, 2012.
17 The analysis will continue to focus on Regulation (EC) No 1049/2001, apart from provisions relating, for example, to environmental law.
18 ECJ, 30 April 1996, Netherlands v Council, C-58/94, ECR I-2169 paragraph 34.
19 ECJ, 18 December 2007, Kingdom of Sweden v Commission, C-64/05, ECR I-11389, paragraph 54.
20 id paragraph 46; see also CJEU, 17 October 2013, Council v Access Info Europe, C-280/11 P.
21 In spite of the calls of some of its Advocate Generals or the positions of the CFI: Advocate General Tesauro speaks of a ‘fundamental civil right’ in the case Netherlands v Council (paragraph 19) and the CFI talks about a ‘principle of the right to information’ (CFI, 19 July 1999, Hautala v Council, T-14/98, ECR. p. II- 2489, paragraph 87) or of the ‘principle of transparency’ (CFI, 7 February 2002, Kuijer v Council, T-211/00, ECR p. II-485, paragraph 52).
22 Opinion of Maduro under ECJ, 18 December 2007 cited above, ECR I-11389, paragraph 40.
23 By mentioning its extension to the ‘bodies and agencies’ of the EU.
24 Opinion of Maduro under ECJ, 18 December 2007 cited above, ECR I-11389, paragraphs 40-42.
25 GC, 29 November 2012, Gaby Thesing v ECB, T-590/10 paragraphs 72-73.
26 ‘For the purpose of this paragraph, the Council shall define the cases in which it is to be regarded as acting in its legislative capacity, with a view to allowing greater access to documents in those cases, while at the same time preserving the effectiveness of its decision-making process. In any event, when the Council acts in its legislative capacity, the results of votes and explanations of vote as well as statements in the minutes shall be made public.’
27 Acknowledged by the Council in its 2012 annual report on exercising the right of access, p.7.
28 COM(2011) 73.
29 For a more in-depth look at the regulatory framework and the associated case law up until 2008, refer to our study ‘Public access to the European Union documents, State of the law at the time of revision of Regulation 1049/2001’, PE 393.287, 2008.
30 CJEU, 21 July 2011, Sweden and MyTravel v Commission, C-506/08 P cited above, paragraph 73 and CJEU, 17 October 2013, Access Info Europe, C-280/11 P cited above, paragraph 28.