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.

EU gives US six months to come clean on visa policy

Published on EurActiv (http://www.euractiv.com)
Source URL: http://www.euractiv.com/justice/eu-gives-usa-deadline-reciprocat-news-533275
Published: 05 February 2014

EXCLUSIVE / The European Commission has told the United States to lift visa requirements on Poland, Romania, Bulgaria, Cyprus and Croatia, whose citizens still need an entry permit to travel to the country.

Background

Back in 2008, when the nationals of twelve EU countries were subject to the visa requirement to travel to the US, the Commission warned that it may force American diplomats to apply for visas to travel to the European Union.

At that time, nationals of Bulgaria, the Czech Republic, Estonia, Greece, Cyprus, Latvia, Lithuania, Hungary, Malta, Poland, Romania and Slovakia were excluded from the US Visa Waiver Programme, which allows visa-free travel. Washington has been refusing to grant visa-free access to US territory on a bloc-wide basis, saying it had to first ensure that each individual country fulfils its stringent security requirements.

At that time, EU officials have accused the US of attempting to undermine the Union’s common visa policy and force individual countries to agree to additional security measures that are in violation with Union rules on aviation security and data protection. [more]

The citizens of most EU countries travel without visas to a list of foreign countries, listed in annex II of Council Regulation No 539/2001.  But the nationals of some new EU member states still need a visa to travel to countries such as the United States, Canada or Australia. A regulation which entered into force on 20 December requires EU countries to “react in common” on visa matters, especially in cases where foreign countries “subjects [EU] citizens to differing treatment”.

If within six months the problem is not solved, the EU could introduce visas for US diplomats, the Commission warned. But diplomats of the countries concerned told EurActiv they would continue to negotiate bilaterally to solve the problem.

New EU regulation on visa matters

According to the new regulation, the Commission can temporarily suspend the EU’s own visa exemptions on foreign countries if they have not lifted their visa requirements within six month. The Commission has warned in the past that such rules may force American diplomats to apply for visas to travel to the European Union, if Washington doesn’t lift the visa requirement for individual EU countries (see background).

The new legislation is an initiative of the European Parliament, which in a 2012 report drew a list of third countries maintaining visa requirements on some EU countries. Canada requires visas for nationals of Bulgaria and Romania, while Australia in theory applies a unified system of treatment of visa requests to all EU countries, but its visa grant to nationals of Bulgaria and Romania is by far the lowest. According to MEPs, the Lisbon Treaty gives new powers to the Union to request that its member countries are treated as a whole and that the USA reciprocates on visa policy.

US pressure on data exchange

The four EU countries were reportedly asked by Washington to sign certain bilateral agreements as a precondition for benefitting from the US Visa Waiver Program. One of them is a 2003 provision for the exchange of terrorism screening information (HSPD-6), which called for the establishment of a single consolidated watchlist to improve the identification, screening, and tracking of known or suspected terrorists and their supporters [more].

Another is the agreement on Preventing and Combating Serious Crime (PSCS), requiring signatory countries to share biometric and other data of individuals, for the purpose of preventing, detecting and investigating serious criminal activity and terrorism, on a query basis. The US has signed such agreements with a number of EU countries already.

But the European Commission is reportedly not happy that individual countries sign data exchange agreements with the USA in the absence of a so-called EU-US Umbrella Agreement on data protection, which ensures EU citizens keep their rights when their data is processed in the US.

Diplomats from the countries lacking reciprocity in their visa affairs told EurActiv that their capitals would notify the Commission of their situation with third countries before the deadline of 9 February. According to the new regulation, if the US still applies visas for those countries 90 days following notification, the Commission may decide to suspend EU visa exemption for “certain categories of US nationals”, a jargon term referring to holders of diplomatic passports.

However, diplomats said they would pursue bilateral negotiations as well, suggesting they did not put too much hope in the EU common effort. Indeed, when the new regulation was adopted in December, it was accompanied by a statement by several member states who said that while raising the issue, the EU countries would also “take into account potential adverse political consequences that might arise from such proposals or decisions for the external relations, both of the Union and its Member States”.  “This applies in particular to external relations with strategic partners,” says the statement, signed by Belgium, Germany, Estonia, Greece, Spain, France, Italy, Cyprus, Latvia, Lithuania, Luxembourg, Hungary, Malta, the Netherlands, Austria, Portugal, Slovenia, Slovakia, Finland, Sweden, but also Poland, a country under US visa requirement.

Next Steps

  • 9 Feb.: Deadline for the EU countries who are still under visa requirement to notify the Commission on their situation;
  • March: EU countries can ask the Commission that the EU suspends the visa exemption for certain categories of US nationals;
  • June: At the latest six months after publication of the regulation, the Commission may decide that the suspension of the visa obligation should take effect.

Steve PEERS : Amending the EU’s visa list legislation (Analysis – February 2014 )

ORIGINAL PUBSLISHED ON STATEWATCH

Steve Peers: Professor of Law, University of Essex

Background

The EU’s legislation defining the countries and territories whose nationals are (and are not) subject to a visa requirement to enter the EU is a crucial part of the EU’s immigration policy, and has a further significant impact on the EU’s external relations. In its current form, this legislation was originally adopted in 2001 (Regulation 539/2001), and was amended seven times up until 2010 (in 2001, 2003, 2005, 2006, 2009 and twice in 2010), as well as by the last three accession agreements, without ever being codified.

A new amendment to the visa list rules was adopted in December 2013, and the European Parliament and the Council have also agreed on two further amendments to the rules, which will be officially adopted early in 2014. This analysis examines all of these recent changes, and presents an informally codified version of the text of what the Regulation will look like after they all take effect. Furthermore, the visa list Regulation was also amended back in summer 2013, as part of a set of amendments to the Schengen borders code and other EU visa legislation.

The amendment (which is also highlighted in the codified Regulation below) changed Articles 1(2) and 2 of the visa list Regulation in order to provide for a revised definition of ‘visa’. This was intended to overturn a ruling of the EU’s Court of Justice on the calculation of the time period during which a third-country national non-resident in the EU can visit (Case C­241/05 Bot [2006] ECR I-9627).

The EU’s visa list rules are applicable to all the Member States (including Denmark) except the UK and Ireland, plus the four Schengen associates: Norway, Iceland, Switzerland and Liechtenstein. This includes those newer Member States which do not yet apply all of the Schengen rules (Romania, Bulgaria, Cyprus and Croatia)

The three new amendments

(a) the December 2013 amendments

This first amendment, which came into force on 9 January 2014, did not make any amendment to the lists of countries and territories whose nationals do (or do not) need a visa to enter the EU. Instead, it set out three other changes to the rules: a new ‘safeguard clause’, a revised ‘reciprocity clause’ and revised rules on exemptions for categories of persons. These three issues will be considered in turn.

First of all, the ‘safeguard clause’ (new Article 1a; see also new Article 4a) provides for a possible fast-track reintroduction of visa requirements for the nationals of any country on the visa ‘white-list’ (ie whose nationals are not subject to a visa requirement) in cases where Member States believed that visa liberalisation has resulted in a sharp increase in irregular (‘illegal’) immigration. This change is mainly a response to concerns about the impact of the waiver of visa requirements for nationals of Western Balkan countries in 2009 and 2010, although the new safeguard clause could in theory apply to any country on the visa white-list. The Council (ie, Member States’ interior ministers) amended the Commission’s proposal so that the relevant rules leave more discretion. Both this new clause and the amended reciprocity clause must be reviewed in 2018 (new Article 1b).

Secondly, the Commission had proposed only a minor amendment to the rules governing ‘visa reciprocity’, ie the procedure for encouraging third States on the EU white-list to exempt citizens of all Member States from a visa requirement. These rules had been amended in 2005 to make them more diplomatic (the original version of 2001 had been too threatening to be credible). However, Member States had become disappointed with their application in recent years since Canada reintroduced visa requirements for Czech nationals and the Commission neither persuaded Canada to change its policy nor took any move towards retaliation. So during negotiations, the Council amended the reciprocity rules to make them tougher again, and the European Parliament insisted that they be tougher still. The revised Article 1(4) of the visa list Regulation (Article 1(5) was deleted; see also the new Article 4b); has therefore strengthened the rules to provide for a fast-track process of reimposing visa requirements upon countries like Canada. In fact, immediately after the new rules entered into force, Canada waived its visa requirement for Czech nationals again.

The negotiation of these provisions took some time because the European Parliament, the Council and Commission argued over the precise legal process that would govern the Commission’s use of the revised reciprocity clause. Ultimately, the Commission was dissatisfied with the final results and so threatened to bring a legal challenge to the final Regulation before the EU courts. It has until the beginning of March to do so.

Finally, the amendments to the rules on exemptions (Article 4) drop a cross-reference to repealed legislation, add an exemption from the rules for the crew of ships who visit the shore, and provide for an optional waiver of the visa requirement for refugees and stateless persons residing in the UK and Ireland. The Commission had proposed bigger changes to these rules, including a specific clause relating to the visa waiver which some Member States must extend to Turkish service providers due to the EU’s association agreement with Turkey, but these proposals were not accepted by the Council.

(b) the 2012 proposal

The 2012 proposal to amend the visa list, now agreed by the European Parliament and the Council, will amend the lists of States whose nationals require visas to enter most of the EU (see the Annexes to the Regulation). It will also insert into the Regulation a revised list of criteria to take into account when deciding which States will enjoy a visa waiver from the EU.

First of all, the new Regulation will waive the visa requirement for four categories of quasi-British citizens. This is in line with the Commission’s proposal, and was not contested by either the European Parliament or the Council.

Next, it will waive the visa requirement for nineteen countries, subject to the negotiation of a visa waiver agreement between the EU and each of those countries. The Commission had proposed sixteen of the countries concerned – all of them small tropical islands. But the Council had insisted that the United Arab Emirates be added, and then the European Parliament had insisted that Peru and Colombia be added too. The UAE will be the first Muslim (or Arab) country to be on the EU’s whitelist (countries whose nationals do not require visas). As for Peru and Colombia, this will be the first time that countries which the EU had previously moved to its ‘blacklist’ (countries whose nationals require visas) have returned to the whitelist (those States were moved to the blacklist back in 1995 and 2001 respectively). It seems that the European Parliament was particularly keen to reward these countries for signing a free trade agreement with the EU recently.

This brings us to the third change – the new clause in the main text of the Regulation spelling out the criteria for deciding which States’ nationals must be subject to a visa requirement. This clause was already in the preamble to the Regulation (see recital 5), and has been added to the main text because the European Parliament insisted upon it. Also, the Parliament insisted upon changing the criteria, to add references to ‘economic benefits’ such as ‘tourism and foreign trade’, as well as ‘respect of human rights and fundamental freedoms

(c) the 2013 proposal

The 2013 proposal has one purpose only – to exempt Moldova from the visa requirement. Along with most other States to the east of the EU (as well as Kosovo, and now also Turkey), Moldova has been participating in a ‘visa dialogue’ with the EU, in which the EU set a number of benchmarks and judged whether Moldova had met them before considering waiving the visa requirement. The Commission judged that Moldova had met all the requirements set out in this dialogue, although its proposal (just before the high-profile Eastern Partnership summit last November) was presumably timed for maximum political effect. Moldova is the first Eastern Partnership state to qualify for visa exemption – although the Western Balkans States had also qualified in 2009-10, following their own visa dialogue. Of course, the visa waiver for Moldova must be seen in light of the new rules, discussed above, which allow for a fast-track reimposition of visa requirements.

Assessment

Following the upcoming amendments, the visa Regulation will have been amended fourteen times: eleven times by legislation and three times by accession agreements. In the interest of public transparency, an official codification of these rules is therefore obviously urgent.

As for the substance of the amendments, the decision to apply or waive a visa obligation is an important part of the external relations policy of both the EU and its Member States. So this explains Member States’ desire to retain their remaining discretion as regards visa policy for various categories of persons. It also explains their collective desire, bolstered by the European Parliament, to assert the EU’s authority more forcefully as regards visa policy by the creation of two new fast-track powers to impose visa obligations (as regards reciprocity and safeguards), while retaining a lot of political discretion when using such powers.

In particular, the possible use of the safeguard power will likely entail many contacts between the Commission and the affected third States, perhaps entailing setting benchmarks for staying on the white list which might be compared to those benchmarks which are already set for getting on to that list.

Since the Member States wanted to ensure some control over the Commission in this area, it is not surprising that the European Parliament wanted to do so as well, via means of the use of ‘delegated acts’ which the EP could possibly block the Commission from adopting. The new amendments also demonstrate, for the first time in practice, the EP’s important role as regards the substance of the EU’s visa policy, given its successful demand to extend a visa waiver to Peru and Colombia and to change the grounds determining whether a visa requirement is waived or not.

Member States also asserted their control over the Court of Justice, overturning a judgment that irritated interior ministries, and refusing to make express reference to other case law that irritated them even more, by preventing them from imposing visa requirements on at least some Turkish visitors (Case C-228/06 Soysal; but see the later judgment in Case C-221/11 Demirkan, in which the Court of Justice deferred to Member States’ desire to retain a visa requirement for Turkish tourists). However, as noted already, Turkey has now started a visa dialogue with the EU, in return for signing a readmission agreement.

In general, Member States are clearly unwilling to consider the possibility of a system of decision-making on visa requirements which relies more on objective evidence about trends in irregular migration (as the Commission had proposed, to a limited degree, as regards the new safeguard clause) and less upon discretion, power politics and gestures synchronised with certain Member States’ election cycles.

Sources Continue reading “Steve PEERS : Amending the EU’s visa list legislation (Analysis – February 2014 )”

The EP and the Council agree on the new EU legal framework for seasonal workers

by Emilio De Capitani

After more than three years of negotiations the European Parliament has finally approuved (with 498 votes in favour 56 aginst and 68 abstentions) on February 5th the agreement with the Council on the new legal framework for seasonal workers in the European Union. The text will be finalised and linguistically revised in the coming weeks published in the Official Journal and should be transposed in national law after 30 months since its entry into force (end of 2016 or beginning of 2017)

It will replace a non binding EU Council Resolution which dates back to 1994 and which included some elements defining the notion of “seasonal” worker. According to the new Directive ’seasonal worker’ “means a third-country national who retains his or her principal place of residence in a third country and stays legally and temporarily in the territory of a Member State to carry out an activity dependent on the passing of the seasons”.  In more plain terms seasonal workers are people generally engaged in non- or low-skilled economy sectors of the receiving country’s in particular in agriculture during the planting or harvesting period, or in tourism in hotels and catering in particular during the holiday period.(1) Regrettably for this kind of activities the risk of exploitation and sub-standard working conditions threatening the workers’ health and safety is very high also due to the fact that they are very often linguistically or geographically isolated. Around 100.000 people in the EU could fall currently in this category of workers (2).

The main objective of the new legislation is to overcome the existing patchwork of national legislation and of bilateral agreements by establishing the first EU scheme on circular migration where workers while keeping their residence outside the EU could have the chance to come in the EU every year for the same season (re-entry would be facilitated for third-country nationals who were admitted to the Member State as seasonal workers at least once within the previous five years).

Due to the very different economies in the MS (think to the situation which could exist in Finland or in Greece) it will be up to the MS when transposing the Directive to define in consultation with social partners, those sectors of employment which include activities which can be considered of “seasonal” nature.

The maximum period of stay will be between five and nine months in any 12‐month period and non EU seasonal workers may work for more than one employer during that period. For stays not exceeding three months, the provisions of the Directive shall apply without prejudice to the Schengen acquis. The Seasonal worker candidate should have a valid work contract or, a binding job offer which specifies the place and type of the work, duration of employment, the remuneration and the working hours per week. He should give evidence of having applied for sickness insurance and will have adequate accommodation. For admission for stays exceeding three months Member States shall issue a long-stay visa, indicating that it is issued for the purpose of seasonal work or a seasonal worker permit or a seasonal worker permit and a long-stay visa, (if the long-stay visa is required under national law for entering the territory). Most importantly the applicants must also also have sufficient resources without having recourse to Member States’ social assistance systems.

The main improvement arising from the new Directive will be that seasonal workers will be granted equal treatment with EU nationals at least with regard to (inter alia) terms of employment, including the minimum working age, and working conditions, including pay and dismissal, working hours, leave and holidays, the right to strike, education and vocational training, recognition of diplomas, etc. Member States may restrict equal treatment, particular with regard to access to certain social assistance.

Member States may determine whether the application is to be made by a third country national or by the employer (or both). Member States shall also designate the authorities competent to receive and decide on the application for and to issue a seasonal worker permit following a single application procedure.

Effective mechanisms through which seasonal workers may lodge complaints against their employers directly or through third parties, and measures protecting against dismissal or other adverse treatment by the employer as a reaction to a complaint must also be foressen. The employer shall be liable to pay compensation to the seasonal worker as it will be the case when the employer is a subcontractor, the main contractor and any intermediate subcontractor who have not undertaken due diligence obligations as defined by national law.

Sanctions against employers who have not fulfilled their obligations shall be “effective, proportionate and dissuasive” (following the classical “Greek Maize” formula).

The draft Directive list also the cases when an application may be rejected. This will be notably the case when the vacancy in question could be filled by nationals of the Member State concerned or by other Union citizens, or by third-country nationals lawfully residing in the Member State (principle of “Union preference”). It can also be rejected when the applicant might pose a threat to public policy, public security or public health.
Other grounds of rejection could arise from employer’s misgivings (when he has been sanctioned for undeclared work and/or illegal employment or where the employer’s business is being or has been wound up under national insolvency laws or where the employer has failed to meet its legal obligations regarding social security, taxation, labour rights, working conditions or terms of employment). The authorisation for the purpose of seasonal work granted may also be withdrawn if the third-country national applies for international protection.
Continue reading “The EP and the Council agree on the new EU legal framework for seasonal workers”

Henri LABAYLE : TOWARDS THE NEGOTIATION AND ADOPTION OF THE STOCKHOLM PROGRAMME’S SUCCESSOR FOR THE PERIOD 2015-2019

On 2013 the European Parliament’s Committee on Civil Liberties, Justice and Home Affairs (LIBE) asked for a Study on the implementation of the Stockholm Progamme.
Authors : Mr Henri Labayle, Professor at the University of Pau and Pays de l’Adour, Faculty of Law at the University of Bayonne, member of the Odysseus Academic Network for Legal Studies on Immigration and Asylum in Europe for France. In collaboration with Mr Philippe De Bruycker, Professor at the Institute for European Studies and Faculty of Law at the Université Libre de Bruxelles, Coordinator of the Odysseus Academic Network for Legal Studies on Immigration and Asylum in Europe.

The full study is downloadable here.

SUMMARY

The evaluation of the Stockholm Programme is a good opportunity to evaluate the initial outcomes of the Treaty of Lisbon, since it clearly highlights the imbalances which characterise the area of freedom, security and justice:

• an imbalance between freedom and security, due firstly to the discrepancy between the rules in place to protect individuals and their implementation in practice and secondly to the backlog in adopting personal data protection standards;
• an imbalance between justice and security due to the absence of a genuine European judicial area in spite of the adoption of the Internal Security Strategy;
• an imbalance between harmonisation and operationalisation due to a regulatory gap despite a proliferation of agencies and policy instruments;
• an imbalance between Member States within the AFSJ framework, which has been fragmented due to the failure on the part of the Mediterranean countries to prioritise geopolitical issues and the preferential use of ‘opt-outs’ by certain Member States;
• an imbalance between the management of legal immigration, which is stagnating despite the low targets set in this area, and the fight against illegal immigration, which is progressing well with plans for major investments in databases;
• an imbalance between the internal and external dimensions of European policies due to the failure of the Treaty of Lisbon to clarify an institutional landscape which remains complex and contentious.
The picture is not all bleak, of course, and there have been a number of concrete successes which deserve to be highlighted:
• the adoption of the asylum package in a difficult climate, which was a major step towards more harmonised legislation in the Member States;
• the increasingly operational nature of European policies as a result of agencies being strengthened (Frontex) or established (European Asylum Support Office, Agency for large-scale IT systems in the AFSJ) even though the ‘Lisbonisation’ of Europol and Eurojust is still overdue, and due to the emergence of practical e-justice models and the adaptation of tools to fight drugs and terrorism, although work remains to be done in the fields of data protection and information sharing in the fight against serious crime;
• progress has been made in building the mutual trust between Member States which is essential for mutual recognition, in some cases on the basis of national initiatives such as those concerning the protection of individuals;
• the backlog in the area of civil judicial cooperation has been cleared and progress in this area is likely to continue, with a large number of initiatives close to adoption;
• procedural rights in criminal proceedings are among the main achievements of the Stockholm Programme, despite the piecemeal approach adopted after the failure of the global approach;

Towards the negotiation and adoption of the Stockholm Programme’s successor

• the approximation of substantive criminal law has found its footing with the ‘Lisbonisation’ of previous framework decisions and the opening up of new fields of work, despite the extreme political sensitivity of this issue for the Member States.

Major concerns remain, however.

The first relates to guarantees for the rule of law, given that the controversy surrounding the constitutional reforms in Hungary proved that the EU does not have the necessary tools to force Member States to respect its fundamental values.
The EU’s capacity to handle crises is a second matter of concern: the collapse of the asylum system and external border checks in Greece has revealed the ineffectiveness of the existing evaluation mechanisms, while the European Asylum Support Office has failed to leverage the humanitarian tragedy of the Syrian refugees to assert its position. These two crises also testify to the lack of solidarity between Member States.

The evaluation suggests that the future programme will be faced with challenges in three areas:

• political challenges: although fundamental rights protection does not fall solely under the heading of justice and home affairs, it remains of vital importance in this area, particularly as regards the protection of personal data at a time when the PRISM scandal is testing the EU’s capacity to respond. Although the Treaty of Lisbon made solidarity one of the constitutional principles of the area of freedom, security and justice, this has meant little in practice; even though the operational dimension of solidarity is starting to take shape, its financial dimension will remain glaringly inadequate under the 2014-2020 financial perspective.
• institutional challenges: the Treaty of Lisbon conferred a central role on the European Council, which must agree to involve Parliament in AFSJ programming in line with the principle of cooperation in good faith between the institutions. As a minimum, this involves postponing the adoption of the next programme until after the June 2014 elections to allow the involvement of the newly elected institutions.
• technical challenges: there has been a decline in the ex-post evaluation of AFSJ policies following the failure of the Commission’s 2006 proposal; the scoreboard may only have been a descriptive tool, but it has now vanished entirely. The culture within DG Home Affairs needs to change in response to the problem of Member State monitoring by the Commission; a significant body of legislation has been adopted over the past decade and more, and DG Home Affairs now needs to ensure that it is applied effectively by initiating non-compliance proceedings.

The extreme reluctance of the Member States to engage in evaluation activities means that a genuine programme is needed if they are to be persuaded or indeed forced to provide the necessary accountability in this area, quite apart from the fact that whole swathes of the area of freedom, security and justice remain untouched. Despite general scepticism, the era of programmes is not yet over: even if it proves to be less detailed than the Hague and Stockholm Programmes and to have more in common with Tampere, the strategic guidelines of the next legislative and operational programme will be of decisive importance for future progress in the area of freedom, security and justice.

Steven PEERS : Pirates of the Indian Ocean: Legal Base and Democratic Debate

Source : http://eulawanalysis.blogspot.co.uk/2014/01/pirates-of-indian-ocean-legal-base-and.html#more

Thursday, 30 January 2014

Despite their central role in the world of EU law, legal base disputes often confound those outside the fairy-tale duchy of Luxembourg and the Brussels beltway, in particular when everyone agrees as to the substance of the issue concerned. And indeed, everyone agrees that the pirates in the Indian Ocean are a bad thing (except, presumably, the pirates themselves), and that the EU should establish (as it has done) a military action to combat them.

But what happens if the EU force catches the pirates? No-one wants the pirates coming to Europe to be tried, and it wouldn’t do to send them to Guantanamo. It would certainly be ironic if they could be forced to walk the plank, but that would violate their right to life. So they must be handed over to nearby countries in East Africa, for prosecution in those states, and everyone agrees that the EU must negotiate agreements to this end with the countries concerned.

One such treaty is between the EU and Mauritius, and the European Parliament (EP) has challenged the Council’s decision to conclude it on two separate grounds: the wrong legal base, and a failure to inform the EP sufficiently (Case C-658/11). The Advocate-General’s opinion, delivered today, is worthy of detailed analysis.


The legal base issue: foreign policy, or development and judicial cooperation?

The Council believes that the treaty with Mauritius concerns the EU’s Common Foreign and Security Policy (CFSP) alone, while the EP believes that the treaty concerns also judicial cooperation and development. In this case, the choice of legal base has far greater consequences than usual. Either way, the treaty had to be agreed unanimously by the Council, since both parties agree that it concerns foreign policy at least in part. But if the Council is right, and the treaty only concerns foreign policy, then: the EP did not even have to be consulted; the treaty had to be negotiated by the EU foreign policy High Representative; and the CJEU has no jurisdiction (except the jurisdiction to rule on whether the Council used the right Treaty base, as in this case: see Article 275 TFEU).
If the EP is right, then: the EP had the power of consent over the treaty; the treaty had to be negotiated by the Commission; and the CJEU has its full usual jurisdiction.

The Advocate-General first of all examines the EP’s arguments based on the precise wording of Article 218 TFEU, which specifies that the EP must consent to or be consulted about all treaties to which the EU will become a party, unless those treaties ‘relate exclusively’ to the CFSP. In his view, this rule simply echoes the legal distinction between the ‘legal bases’ of the CFSP and other EU policies, and so does not create a separate rule relating to the conclusion of external treaties.

Then the Advocate-General turns to the heart of the issue: which legal base applies? In his view, taking account of the overall legal context, including Security Council Resolutions addressing the threat to international security posed by the pirates and the EU’s military action to combat them, the treaty is a CFSP measure.
In particular, the CFSP measure providing for the military action contains rules on the possible transfer of the pirates to third States, including human rights protection. That EU measure would not be effective without treaties with third States regulating the transfer of those pirates.

Also, the treaty falls within the scope of the CFSP due to its objectives, which include (from the EU’s general external relations objectives) the requirements that the EU act in order to: ‘safeguard its values, fundamental interests, security, independence and integrity’; ‘consolidate and support democracy, the rule of law, human rights and the principles of international law’; ‘preserve peace, prevent conflicts and strengthen international security’; and ‘promote an international system based on stronger multilateral cooperation and good global governance’ (Article 21(2) TEU). In the Advocate-General’s view, these ‘are among those [objectives] that are traditionally assigned to the CFSP’ and ‘essentially correspond’ to the CFSP objectives as they were set out in the Treaties before the Treaty of Lisbon. The activity of transferring pirates also falls within the scope of the defence policy provisions of Articles 42 and 43 TEU, which refer to the use of ‘civilian and military’ assets.

The Advocate-General also rejected the use of the EU’s powers concerning criminal judicial cooperation.
In his view, the external use of the EU’s justice and home affairs powers must ‘have a close link with freedom, security and justice within the Union’, namely ‘a direct link between the aim of the internal security of the Union and the judicial and/or police cooperation which is developed outside the Union’.This was distinct from a CFSP measure which had the objective of, ‘first and foremost, peace, stability and democratic development in a region outside the Union’. In this case, transferring pirates to East African states was too far removed from the development of the EU’s justice and home affairs policies. Finally, the Advocate-General rejected the use of the EU’s development policy powers, since the assistance which the EU gives to Mauritius is linked only to the application of the rules on the transfer of pirates, which constitute (in his view) a CFSP measure.

Is this first part of the opinion convincing? Some parts are more convincing than others. Certainly, the treaty should not have a legal base relating to development policy, since the assistance being provided is purely ancillary to the transfer of pirates. But this begs the question of the legal base which should apply to the transfer of pirates.
It makes sense to apply the same legal base rules to the conclusion of international treaties as apply to the adoption of internal legislation, since the Treaty drafters have forged a strong link between those two facets of EU decision-making. On the other hand, while it is true to say that a treaty containing rules on the transfer of pirates is necessary to ensure the effectiveness of the military operation which catches them, it does not necessarily follow that it has the same legal base.
For example, for the EU’s patent legislation to be effective, there need to be rules on patent translation and the creation of a patent court. But the patent translation rules were adopted pursuant to a different decision-making rule, and the patent court will be established pursuant to a treaty between Member States. The legal base of the treaty with Mauritius should depend only on the content of the specific rules in the treaty with Mauritius.

Here, the arguments are finely balanced. The Advocate-General makes a persuasive case that EU military operations can use civilian assets, and that the EU’s justice and home affairs powers can be used externally only where there is a sufficient link to the EU’s internal rules in this area. Incidentally, this line of argument strangles at birth the idea (floated, as it were, by Italy) that an EU foreign policy measure could establish a military action in the Mediterranean to control immigration towards the EU. The link between such an action and the EU’s immigration, asylum and border control powers is blindingly obvious.

On the other hand, with great respect, the Advocate-General’s analysis of the EU’s general external relations objectives is not fully convincing. Continue reading “Steven PEERS : Pirates of the Indian Ocean: Legal Base and Democratic Debate”

Steven Peers : Jailing the bankers: the new EU Directive on criminal penalties for market abuse

Source: http://eulawanalysis.blogspot.co.uk/2014/02/jailing-bankers-new-eu-directive-on.html

Tuesday, 4 February 2014

It must come as a relief to EU politicians to find that there is still one group in society which is much less popular than they are: the bankers. Indeed, bankers’ unpopularity has only grown as the austerity caused by the global financial crisis has an ever-greater impact on ordinary people in many Member States. No politician ever lost an election because he or she demonised unpopular groups of persons, and so the EU institutions have duly agreed on legislation which would lead to jail terms for particular types of bad behaviour by bankers.

Context of the Directive

The new Directive (for the text, see the links below) was approved by the European Parliament today, and will likely be formally adopted by the Council in March. It will apply in parallel alongside a Regulation on market abuse, which requires administrative sanctions to be applied for certain behaviour by bankers. Member States will have to apply the Directive by two years after its adoption.

The ‘legal base’ for the Directive is Article 83(2) of the TFEU, which allows the EU to adopt legislation setting out ‘minimum rules’ for the ‘definition of criminal offences and sanctions’ if this ‘proves essential to ensure the effective implementation of a Union policy in an area which has been subject to harmonisation measures’. Clearly this area has been subject to harmonisation measures, and the preamble to the new Directive sets out the reasons why, in the EU legislature’s view, it was ‘essential’ to adopt an EU measure concerning criminal liability on this issue. Basically, the Council and European Parliament were convinced by information that Member States imposed weak and diverse sanctions to enforce the previous EU legislation on this subject (Directive 2003/6, on market abuse).
Article 83(2) requires the criminal law rules to be adopted by the same legislative method as was used to adopt the main legislation that the criminal law Directive is supplementing. In this case, the market abuse Regulation was adopted on the basis of the EU’s internal market powers, ie the ordinary legislative procedure. So the market abuse criminal law Directive was adopted by the same method. This meant that the European Parliament could have a significant influence on the text, as detailed below.

Substance of the Directive

The Directive requires Member States to criminalise three types of activity, as further defined in detail therein: insider dealing; unlawful disclosure of inside information; and market manipulation. The first of these offences also extends to recommending or inducing another person to engage in insider trading. Member States must also criminalise inciting, aiding and abetting and attempting most of these offences. In each case criminalisation is only required where the acts were committed intentionally and ‘in serious cases’. The European Parliament had also wanted to oblige Member States to criminalise reckless acts which entailed market manipulation, but the Council resisted this. Also, the Council insisted on limiting Member States’ obligations to ‘serious cases’. The preamble to the Directive lists certain factors which should indicate whether the case is ‘serious’, such as the impact on market integrity and the profit derived or loss avoided.

On the other hand, the European Parliament successfully insisted that specific rules for criminal penalties for natural persons appear in the Directive. Member States must ensure that bankers guilty of insider dealing or market manipulation could potentially be subject to a maximum penalty of at least four years, and those guilty of unlawful disclosure of inside information could potentially be subject to a maximum penalty of at least two years. The Directive also includes standard rules on liability for legal persons, but this need not be criminal liability, in deference to those Member States which do not impose criminal liability on legal persons.

The European Parliament also insisted that the Directive include rules on criminal jurisdiction. Member States must criminalise the relevant behaviour where an act was committed on a Member State’s territory, or where the act was committed by a Member State’s citizen outside its territory, at least if the act was criminal in the country where it was committed. Furthermore, the European Parliament convinced the Council to add a provision on training judges, prosecutors et al about the relevant crimes. However, the European Parliament did not convince the Council to add provisions on investigative techniques and media coverage of the relevant crimes.

Comments

This is the first time that the EU has used the legal powers conferred by Article 83(2) TFEU, which was added to the Treaties by the Treaty of Lisbon. Previously, it has used only Article 83(1) TFEU as regards substantive criminal law. Article 83(1), also added to the Treaties by the Treaty of Lisbon, lists ten crimes which are deemed to have such sufficient cross-border impact that the EU can legislate upon them. The EU has used this power to adopt legislation on cyber-crime, sexual offences against children and trafficking in persons, and negotiations on legislation concerning counterfeiting currency are underway. The Commission has also suggested criminal law rules on fraud against the EU budget on the basis of Article 325, a legal base dealing with that specific issue, but the Council (and probably the European Parliament, when it defines its position) believe that Article 83(2) will again have to be used in order to adopt that legislation.

Prior to the Treaty of Lisbon, the EU’s Court of Justice, in a controversial line of case law, ruled that European Community law (as it was then) could be used to adopt criminal law measures closely related to the environment (Cases C-176/03 and C-440/05). The EU then adopted Directives to that end (Directive 2008/99 and Directive 2009/123), as well as a Directive imposing criminal liability for employing illegal immigrants (Directive 2009/52). But the CJEU ruled that prior to the Treaty of Lisbon, such European Community measures could not specify criminal penalties. In practice, those measures did not contain jurisdiction rules either. So the market abuse Directive breaks new ground on these issues.

The Directive also breaks new ground by imposing criminal liability in a new area. All of the other post-Lisbon substantive criminal law Directives or proposals (referred to above) simply replace pre-Lisbon measures on the same subjects, but there was no pre-Lisbon measure imposing criminal liability for market abuse. The market abuse Directive is also particularly detailed when compared to the EU’s other substantive criminal law measures, no doubt because it is enmeshed within the broader EU legislative framework imposing highly detailed regulation on the financial sector.
Will the Directive be effective at curbing bad behaviour by bankers? First of all, as with any crime, perpetrators have to be caught and punished, and the behaviour concerned is technically complex.

Secondly, it must be borne in mind that the two-year and four-year sentences referred to in the Directive must merely be on the books; there is no obligation to impose them in any particular situation. So even if bankers commit the activities criminalised by the Directive, and are caught and convicted, their sentences might be lighter (or indeed heavier: Member States can set a higher potential maximum penalty if they wish). And it is hard to imagine that many bankers will spend much jail time inside the unpleasant institutions where (say) burglars and muggers are incarcerated – even if the bankers’ crimes were far more lucrative and had a much bigger impact upon the economy.

More profoundly, the United Kingdom, the home of the largest proportion of the EU’s financial industry, has opted out of this Directive – although the UK is subject to the parallel Regulation (Denmark is in the same situation). And even if a French national (for instance) commits the acts criminalised by the Directive while working in the City of London, it must be recalled that Member States are only obliged to criminalise the acts concerned if committed by their citizens in a State which also criminalises that activity. So it is up to the UK to decide whether to criminalise some or all of the acts referred to in the Directive, and only if it does so are other Member States obliged to criminalise the acts of their citizens when committed in the UK.


Links Continue reading “Steven Peers : Jailing the bankers: the new EU Directive on criminal penalties for market abuse”

Data protection: the European Parliament still fighting on two fronts

by Luca Boniolo

Data protection remains a hot issue in parliamentary works…

On November 11th the European Parliament Civil Liberties, Justice and Home Affairs Committee (LIBE) held its 9th hearing on Electronic Mass Surveillance of EU Citizens in the framework of its enquiry on the so-called “PRISM” case.[1] In a rather exceptional move even a Member of the US Congress was among the speakers; Microsoft, Google and Facebook representatives were also heard by the Brussels lawmakers during the same hearing.

Exceptional presence: US Congressman Rep. Jim Sensenbrenner

Representative Jim Sensenbrenner, Chair of the US Congress Subcommittee on Crime, Terrorism, Homeland Security, and Investigations, member of the Republican Party and co-author of the Patriot Act, stated: “I hope that we have learned our lesson and that oversight will be a lot more vigorous”, adding that abuses by the NSA could had been carried out outside congressional authority.

In a previous statement Rep. Jim Sensenbrenner said that the intelligence community could had also misused its powers by collecting telephone records also on Americans citizens, and claimed the time has come “to put their metadata program out of business”  (section 215 of the Patriot Act). Consistently with this position he worked on a bipartisan bill, the “Uniting and Strengthening America by Fulfilling Rights and Ending Eavesdropping, Dragnet-Collection and Online Monitoring Act” (named for its acronym: the “USA Freedom Act”), which should constrain NSA abuses. However this bipartisan initiative is still far from making unanimity; the democratic Senator Dianne Feinstein, Chair of Selected Committee on Intelligence in the US Senate, for instance, tabled a bill, the “FISA Improvements Act of 2013”, which is attracting plenty of critics because it is considered as a way to enshrine the current NSA data collection activities into law by granting formal Congressional approval to these widespread surveillance programs. “The Feinstein bill puts what the NSA has been doing into law and says it’s Ok… To me, that’s scary”, stated Sensenbrenner and added: “They’ve [senators] become cheerleaders for whatever the intelligence agencies want”.

Facebook, Google and Microsoft declared their innocence

Then executives from three of the world’s biggest IT firms – Facebook, Google and Microsoft – took centre stage at the hearing. The three companies, as well as Apple, AOL, PalTalk and Yahoo, have been accused by the press, on the basis of files leaked by whistleblower Edward Snowden,[2] to give direct access to personal data and/or to routinely hand over these data to the US’ National Security Agency (NSA). Even if this happens in compliance with US subpoenas ordered by the so-called Fisa (Foreign Intelligence Surveillance Act) Court, it has to be noted that the works and jurisprudence of this Court are not public and doubts can be raised on the efficiency of its oversight if, according to official figures, FISA Court approved 99.95% of warrants filed by security services between 2001 and 2012. Moreover, from other Snowden’s files it appears that NSA and GCHQ,[3] might have hacked Google servers and tapped undersea cables, (which carry 90% of internet and phone data between America and Europe).

Facebook Director Richard Allan and Microsoft VicePresident Ms Dorothee Belz, both in charge of of Europe, Middle East and Africa (EMEA) and Google Director Nicklas Lundblad, in charge of Public Policy and Government Relations, all denied in strong terms giving US intelligence services “unfettered” access to people’s private data. According to them only specific information on individual suspects have been subpoenaed by US intelligence and police services. Mr Allan noted that in the six months ending 31 December 2012, US agencies made between 11,000 and 12,000 queries, while EU countries made another 10.000, but they affected only “a tiny fraction of 1% of all Facebook accounts”. The three representatives also denied having any knowledge of the PRISM programme: “We do not know PRISM, we do not take part in it, and we do not give the government access to our data”, reiterated Ms Belz. Nevertheless all the three declared that they would reveal more on the content and scope of US intelligence requests, but the FISA Court banned them from diffusing this kind of information. The speakers also appeared worried about the new European draft Regulation on Data Protection (Rapporteur Mr Jan ALBRECHT, DE, Greens) notably   on the limits surrounding international transfers of personal data, which could lead to real conflict of law and to legal insecurity that “we will not be able to resolve”.

The EP is pushing for the suspension of the transatlantic “SWIFT” agreement…

The LIBE Committee Inquiry has in the meantime on Electronic Mass Surveillance is a response to the US National Security Agency’s alleged tapping of EU citizens’ bank data as shared in the framework of the EU-USA transatlantic agreement on the Terrorist Finance Tracking Program (TFTP).[4] On the basis of the elements already emerged during the Committee inquiry, the European Parliament plenary has already voted on October 23rd a request of suspension of that agreement.[5]

To grant the protection of EU citizens’ privacy, MEPs believe that it has to be clarified whether NSA has had direct access to financial messaging data managed by Swift beyond the allowed cases, in other words if there has been a violation of the agreement. The non-binding resolution, tabled by the S&D, ALDE and Greens/EFA groups, was approved by 280 votes to 254, with 30 abstentions, only a slightly majority. These groups believe that is impossible to maintain the agreement as it stands, while EPP group proposed a resolution demanding clarifications too, but without mentioning the suspension of the agreement.

The European Parliament does not legally have the power to suspend an international agreement such as SWIFT and this action remains simple symbolic, committing the Council and Commission to nothing. However paragraph 11 of the Resolution states: «Considers that, although Parliament has no formal powers under Article 218 TFEU to initiate the suspension or termination of an international agreement, the Commission will have to act if Parliament withdraws its support for a particular agreement; points out that, when considering whether or not to give its consent to future international agreements [such as the much bigger EU-US free trade agreement currently under negotiations], Parliament will take account of the responses of the Commission and the Council in relation to this Agreement», followed by article 12: «Asks the Commission, in the light of the above, to suspend the Agreement». Moreover EU Parliament asks the Council and the Member States to authorise an investigation by the Europol Cybercrime Centre into the allegations of unauthorised access to financial payment data governed by the Agreement.

…however the Commission is reluctant…

European Commissioner for Home Affairs Cecilia Malström stated already during a plenary in Strasbourg at the beginning of October, that in the framework of previous consultations the US side has provided detailed explanations and assurances: the agreement had not been violated. On Thursday 23 October the answer of the Commission was the same, i.e. negative; in a press release Commissioner Malström stated: “We will follow up our request for written assurance with the US without delay and keep the European Parliament fully informed. In the meantime, the provisions of the TFTP Agreement that clearly regulate the transfer of personal data, and that provide effective safeguards to protect the fundamental rights of Europeans, will remain in place”. The Commission appeared to be satisfied with the US assurances, deciding, for the time being, not to take in account the EP request. Considering that EP’s approval was necessary for the entry into force of the TFTP agreement, and that the Agreement do not require even a specific wrongdoing justifyng the suspension,  this position of the Brussels executive looks quite inappropriate.

In the meantime the EU Data Protection general reform.. Continue reading “Data protection: the European Parliament still fighting on two fronts”

Access to a Lawyer : a new EU-wide procedural right in criminal proceedings

by Gabriella Arcifa

With the publication (OJ L 294 on 6 November 8, 2013) of Directive 2013/48/EU of 22 October 2013another important achievement has been recently reached – not without controversy -along the road towards the implementation in the European Union of the principle of mutual recognition, in the field of procedural rights in criminal proceedings.

According to the European Commission there are over 8 million criminal proceedings in the European Union every year and even if the right of defense for anyone suspected of a crime is widely recognised as a basic element of a fair trial conditions under which suspects can consult a lawyer differ between Member States1.

The new Directive will guarantee these rights in practice, by:

· providing access to a lawyer from the first stage of police questioning and throughout criminal proceedings;

· allowing adequate, confidential meetings with the lawyer for the suspect to effectively exercise their defence rights;

· allowing the lawyer to play an active role during questioning;

· making sure that, where a suspect is arrested, somebody such as a family member is made aware of that arrest and that there is an opportunity for the suspect to communicate with their family;

· allowing suspects abroad to be in contact with their country’s consulate and receive visits;

· offering people subject to a European Arrest Warrant the possibility of legal advice in both the country where the arrest is carried out and the one where it was issued.

The general context of the new Directive

It is worth recalling that the right to a fair trial and defense are now set out in Articles 47 and 48 of the EU Charter of Fundamental Rights as well as in Article 6 of the European Convention on Human Rights (ECHR). The right to communicate with a third party is one of the important safeguards against ill treatment prohibited by Article 3 of the ECHR. However these principles are too generals to overcome the differences between the national legal systems notably when implementing an European Arrest Warrant.

The “Access to lawyer” Directive is the third step of a Roadmap2adopted by the Council of the European Union on 30th of November 2009 and mirrored in the Stockholm Programme3, by which the European Council immediately after the entry into force of the Lisbon Treaty and of the European Charter of Fundamental rights has defined the strategic legislative e operational objectives for the EU in the period 2010-2014.  Development of fundamental rights, as they are guaranteed by the Charter (articles 47-50) and by the European Convention on Human Rights (and the related case law), and – more in general – by the article 6 of the TEU is the keystone of the EU program.

Mutual recognition and harmonization of procedural rights

Indeed, the path towards harmonization of fundamental procedural rights has begun over 10 years ago, when in its Tampere Conclusions4, for the first time, the European Council endorsed the principle of mutual recognition, mentioned as “the cornerstone” of judicial co-operation2. Aware that mutual recognition could cause a lowering of the procedural safeguards of the individual the Heads of State and Government asked Council and the Commission to adopt, by December 2000, a programme of measures to implement the principle of mutual recognition, taking in account those aspects of procedural law on which common minimum standards are considered necessary.

The crux of the problem was how to accept that a decision taken by an authority in one state could be adopted as such in another state, “even though a comparable authority may not even exist in that state, or could not take such decisions, or would have taken an entirely different decision in a comparable case”5.

Aware of the differences among the national laws , a primary attention was paid to the protection of procedural rights that have to be granted to the suspects or accused persons in criminal proceedings.

Under the Amsterdam Treaty, the legal base for the mutual recognition was the article 31 TUE, that foresaw to ensure compatibility in rules applicable in the Member States, in a restrictive sense, only as may be necessary to improve such cooperation (lett. c).

The Framework Decision on the European Arrest Warrant n. 2002/584 has been the first case of implementation of this principle and one of the most controversial measures for its insufficient consideration for fundamental rights, (although just in the preamble the MS declare that the decision respects them). In fact, the EAW doesn’t mentioned among the grounds for mandatory or optional non-execution of the European arrest warrant the risk of fundamental rights violation, even if some MS have inserted this ground in their EAW implementing legislation.

However, in the absence of uniformity in the protection of procedural rights it was not surprising that mutual trust between MS could be lacking. To counter this trend, the European Commission after a few acts of address6, in 2004, the Commission draw up a proposal about “certain procedural rights”(COM(2004)328)7.

The proposal was ambitious, due to the fact that it included – at the same time – several procedural rights such as: a) access to legal advice, both before the trial and at trial, b) access to free interpretation and translation, c) ensuring that persons who are not capable of understanding or following the proceedings to receive appropriate attention, d) the right to communicate with family or persons assimilated, with consular authorities in the case of foreign suspects, and e) the obligation to notify persons suspected of their rights, by giving them a written “Letter of Rights “.

Regrettably, after three years of debates, the Council Presidency had to acknowledge that it was impossible to reach the unanimity required at that time by the EU Treaty. It was notably debated whether the Union was competent to legislate also for domestic proceedings (at least 21 Member States shared this view) or whether the legislation should be only devoted to cross-border cases. The Member States opposing the Commission proposal considered that the legal base (art 31 of the TEU before Lisbon) could not cover domestic situations without breaching the principle of attribution and of subsidiarity.

However this has been only a temporary stop.  As it often happens when a legislative objective is too ambitious the EU institutions pass to the piece-meal approach . The works on the procedural rights have been resumed in 2009, when the Council took the decision of starting a “step-by-step approach”, to be implemented by taking advantage of the new legal context for the European Union.

Thanks to the new Lisbon Treaty, the judicial cooperation and the consequent harmonization of the MS’ law can be better implemented thanks to the new ordinary legislative procedure: the previous system, based on the need of unanimity of the Council was abandoned in favor of qualified majority and the association of the European Parliament with the same weight of the Council (Codecision procedure).

Moreover the principle of mutual recognition of judgments and judicial decisions as well as the power to approximate national laws is now explicitly grounded at Treaty level also for the Area of freedom, security and justice (article 82 TFEU) by so strengthening the judicial cooperation in criminal matters. The power to harmonize national laws is now clearly defined and the legislative instrument of the directive will be useful to improve the mutual trust8 allowing to judicial acts to move “as such in a unique space, without borders between the national state”9.

After the first Directive on the right of interpretation and translation10 and the second one on the right of information11, that has to be granted to a suspected or accused person, involved in a criminal proceedings, the Council and the Parliament have recently found a compromise on the Proposal of the Commission on the access to lawyer and to communicate upon arrest COM2011(326)

The “access to lawyer” directive
Continue reading “Access to a Lawyer : a new EU-wide procedural right in criminal proceedings”

Analysis: EU rules on maritime rescue: Member States quibble while migrants drown…

by Steve Peers Professor of Law, University of Essex

PUBLISHED ON STATEWATCH

22 October 2013

Introduction

For many years now, the death toll of migrants who drown while attempting to reach the European Union in search of a better life has tragically been rising. Most recently, public opinion was particularly shocked when hundreds of migrants drowned when a single vessel sank off the coast of Italy. The Italian government has called for the EU to adopt an action plan to deal with the issue, and the Prime Minister of Malta, calling the Mediterranean a ‘graveyard’, has called on the EU to act.

Yet shockingly, these Member States, along with four others, are blocking an EU proposal on the table that contains concrete rules on the search and rescue of migrants – precisely and solely because it contains rules on search and rescue (along with disembarkation) of migrants. In fact, they describe their opposition to such rules as a ‘red line’, ie they refuse to negotiate on their opposition to any detailed EU rules which concern saving migrants’ lives.

The following analysis examines the background to this issue and assesses these Member States’ objections. It concludes that their legal objections to this proposal are clearly groundless. Furthermore, of course, from a political point of view, the hypocrisy and inhumanity of these Member States’ position speaks for itself.

Background

Due to widespread concerns about the accountability and legality of the actions of the EU’s border agency, known as ‘Frontex’, when it coordinates Member States’ maritime surveillance operations, EU rules on this issue were first adopted in 2010.

These rules initially took the form of a Council Decision implementing the EU legislation on the control of external borders, which is known as the ‘Schengen Borders Code’. The 2010 Council Decision included binding rules on interception at sea, and apparently non-binding rules on search and rescue and disembarkation of migrants.

A majority of those members of the European Parliament (EP) who voted on this Council Decision opposed it, and so the EP decided to sue the Council before the Court of Justice to annul the decision. The EP won its case, when the Court ruled in September 2012 that the Council Decision had to be annulled.

According to the Court, this Decision should have been adopted as a legislative act, because it addressed issues that affected the human rights of the persons concerned, and regulated the coercive powers of border guards; the Court also clarified that the rules in the Decision on search and rescue and disembarkation were in fact binding. However, the Court maintained the 2010 Decision in force until its replacement by a legislative act.

In spring 2013, the Commission proposed such a replacement act, which has to be adopted by means of the ‘ordinary legislative procedure’, ie a qualified majority vote in the Council (Member States’ ministers) and joint decision-making powers of the European Parliament. This proposal took over much of the text of the Council decision, but also added some further details as regards search and rescue and disembarkation, confirming also that these rules were binding. Like the 2010 Council decision, the proposal is limited to cases where Frontex coordinates Member States’ maritime surveillance.

While the European Parliament is broadly supportive of this proposal, suggesting only modest amendments, a group of Mediterranean Member States opposes the idea of any EU measure containing any detailed binding rules on search and rescue and disembarkation – even though such provisions are the most important rules in the 2013 proposal as regards saving migrants’ lives and their subsequent welfare.

The proposed search and rescue and disembarkation rules

The relevant parts of the 2013 proposal are Article 9 (search and rescue) and Article 10 (disembarkation).
Article 9 contains first of all a general obligation to ‘render assistance to any ship or person under distress at sea’. It defines further what is meant by a condition of ‘uncertainty’, ‘alert’ or ‘distress’, and provides for general rules on coordination of operations in such cases.

As for disembarkation, Article 10 contains rules to determine where migrants should be disembarked if they are intercepted or rescued. If they are intercepted in the territorial water or nearby maritime zone of a Member State participating in Frontex operations, they must be disembarked in the territory of that State.

If they are intercepted in the high seas (ie waters which no State has a legal claim to, under the international law of the sea), then they should be disembarked in the State which they departed from – subject to the rules in Article 4 of the proposal, on the protection of fundamental rights. In the case of search and rescue operations, there are no specific rules on which State to disembark migrants in, but Article 4 implicitly applies here as well.

The rules in Article 4 prohibit sending a person to a State ‘where there is a serious risk that such person would be subjected to the death penalty, torture or other inhuman or degrading treatment or punishment or from which there is a serious risk of expulsion, removal or extradition to another country in contravention of the principle of nonrefoulement’.

This clause reflects the judgment of the European Court of Human Rights, in a case called Hirsi v. Italy, where Italy was condemned for ‘pushing back’ boats full of migrants to Colonel Khadafy’s Libya.

Member States’ objections

The group of Member States objecting to Articles 9 and 10 state that the EU has no competence over issues relating to search and rescue or disembarkation.

First of all, as regards disembarkation, this objection is clearly ridiculous.
The admission of a migrant onto a Member State’s territory, or removal to a third State’s territory, is obviously an inherent part and parcel of immigration policy, and the Treaties empower the EU to develop a ‘common immigration policy’. Equally, the Treaties give the power for the EU to adopt rules on border controls, and it would be absurd to adopt rules governing the interception of migrants without addressing the obvious corollary question of what to do with the migrants once the border guards catch them.

Secondly, at first sight, the objections to EU competence as regards search and rescue rules have more force. Certainly, there is nothing in the EU Treaties which gives the EU power to regulate searches and rescues generally. But the 2013 proposal would not do that: it would only regulate searches and rescues in the context of the EU’s border controls policy, and only where maritime surveillance was coordinated by Frontex.

Can the EU regulate searches and rescues in such cases?
The case law of the Court of Justice on public health issues should logically apply by analogy.
The Court has ruled that while the EU cannot regulate public health generally, it can take account of public health concerns when it adopts legislation (for instance, on tobacco advertising, cigarette content or the packaging of cigarettes) which is principally concerned with regulating the EU’s internal market. Similarly, the EU’s General Court has ruled that EU legislation can take account of the life and welfare of seals, if it adopts legislation on the sale of seal products that mainly concerns the internal market.

If EU internal market law can concern itself with the long-term effects of cigarette smoking for smokers, or the immediate effect of clubbing on seals, then surely EU law on border controls can concern itself with the effect of imminent drowning upon migrants, where there is a direct connection with maritime surveillance.
And there is bound to be such a connection: EU rules stepping up maritime surveillance, while they have (and legally must have) the principal purpose of controlling entry onto the territory of the Member States, will in some cases fall to be applied when the persons planning such entry are about to drown. It should be recalled, as explained above, that the proposal only sets out a general obligation to assist vessels in distress and to coordinate action in emergency situations.

Thirdly, it should not be forgotten that the proposed rules will apply only to operations coordinated by Frontex – an EU agency, funded entirely by money from the EU budget.

Why should the EU not have the power to set conditions before its agency (spending its money) assists Member States with maritime surveillance, in the same way that it has the power to set conditions on its financial assistance to its Member States, or third countries?

Another objection of the six Member States is the compatibility of the proposed Regulation with international law. The obvious way to address this problem (if it exists) is to amend the Regulation to ensure that it is consistent with international law. Anyway, the preamble to the legislation (recital 4) states that it must be applied consistently with international law: Member States did not object to such vague references to international law in readmission treaties, or in much of the EU’s legislation on irregular migration orborder controls.

The six objecting Member States seem to be concerned also about the proposal’s mere overlap (as distinct from conflict) with international law – but the EU adopts an enormous amount of legislation (on the environment, for instance) which overlaps with international law, and aims to provide for the detailed and effective implementation of the relevant international law obligations.

More fundamentally, eviscerating the proposed rules on disembarkation would empty the protection of Article 4 of the proposal (on ensuring the safety of persons sent to third countries) of much of its practical content – but, as explained above, this part of the proposal reflects important case law of the European Court of Human Rights. Similarly, removing or weakening the provisions on search and rescue would subtract from the proposal any added value as regards protection of the right to life – another key obligation of human rights law. One can only conclude that the six Member States in question come not to praise international law, but to bury it.

Conclusion

Member States rightly rejected specious and cynical legal arguments made throughout the last decade to justify torture, abduction and indefinite detention without trial in the name of the ‘war on terror’.
Of course, control of immigration is a different issue, but the legal arguments raised by these six Member States are equally specious and cynical – and should equally be rejected. The EU bears its share of responsibility (alongside its Member States) for the deaths of hundreds of migrants – but that must also mean that the Union should be able to make some concrete contribution towards reducing this death toll in future.

Sources

2010 Council Decision
Judgment of Court of Justice – Case C-355/10:
2013 Commission proposal –
European Parliament draft report–
Objections of six Member States –
Presidency proposal –
Positions of Member States on entire proposal

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