Tag: politics

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

By Emilio De Capitani

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

4. Conclusions

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

AI liability rules: a blocked horizon?

By Michèle Dubrocard[1]

February 2025

Today, no one challenges the potential benefits offered by AI for individuals and society in general, but also the existence of serious risks, some of them already identified, others likely to emerge. Let’s have in mind the conclusions of the first International AI Safety Report[2] which, focusing on general-purpose AI, recognizes that ‘there is a wide range of possible outcomes even in the near future, including both very positive and very negative ones, as well as anything in between’. 

So, when the European Commission issued on 28 September 2022 its Proposal for a Directive on adapting non-contractual civil liability rules to artificial intelligence (AI Liability Directive- AILD), it raised a lot of hope among all those concerned about the potentially harmful consequences of the use of AI systems. These hopes were confirmed by the objective expressed in the explanatory memorandum of the Proposal, namely ‘ensuring victims of damage caused by AI obtain equivalent protection to victims of damage caused by products in general’[3].

More specifically, the Commission seemed determined to take into due consideration the imbalance between the providers and deployers on the one hand, and the affected persons on the other. Indeed, referring to Member States’ general fault-based liability rules, Recital 3 of the Proposal recognizes that ‘when AI is interposed between the act or omission of a person and the damage, the specific characteristics of certain AI systems, such as opacity, autonomous behaviour and complexity, may make it excessively difficult, if not impossible, for the injured person to meet this burden of proof’.

Alas, the rules proposed by the Commission did not meet the expectations raised by the announced objective (I). Even worse, the Commission seems to have definitively shelved its project (II), leaving the door open to what it itself had criticized: the co-existence within the EU of ‘27 different liability regimes, leading to different levels of protection and distorted competition among businesses from different Member States’[4].

I- A disappointing Proposal

The Proposal of the Commission did not challenge the choice of a fault-based regime, but instead mainly focused on two rules, aiming at alleviating the burden of proof, which remains on the victim. What are these two rules?

– The disclosure of evidence:

According to Article 3(1) of the Proposal, a court may order the disclosure of relevant evidence about specific high-risk AI systems that are suspected of having caused damage. However, the requests should be supported by ‘facts and evidence sufficient to establish the plausibility of the contemplated claim for damages’ and the requested evidence should be at the addressees’ disposal. Article 3(3) provides that the preservation of such evidence may also be ordered by the court.

However, the disclosure may be ordered by a court only to ‘that which is necessary and proportionate to support a potential claim or a claim for damages and the preservation to that which is necessary and proportionate to support such a claim for damages’. Article 3(4) specifies that ‘the legitimate interests of all parties’ must be considered by the court, when   determining whether an order for the disclosure or preservation of evidence is proportionate. Moreover, the person who has been ordered to disclose or to preserve the evidence must benefit appropriate procedural remedies in response to such orders.

Article 3(5) introduces a presumption of non-compliance with a duty of care: when, in a claim for damages, the defendant fails to comply with an order by a national court to disclose or to preserve evidence at its disposal, the national court shall presume the defendant’s non-compliance with a relevant duty of care. That presumption remains rebuttable.

– The presumption of causal link in the case of fault:

Article 4 of the Proposal provides, under certain conditions, a presumption of a causal link between the fault of the defendant and the output produced by the AI system or the failure of the AI system to produce an output, that gave rise to the relevant damage.

However, the claimant has to prove the fault of the defendant, consisting in the non-compliance with a duty of care laid down in Union or national law directly intended to protect against the damage that occurred. He/she also has to prove that the AI system gave rise to the damage. There is another condition, related to the likelihood, based on the circumstances of the case, of the fault’s influence on the output produced by the AI system or the failure of the AI system to produce an output.

Moreover, the presumption shall not be applied if the defendant demonstrates that sufficient evidence and expertise is reasonably accessible for the claimant to prove the causal link. At last, in the case of a claim for damages concerning an AI system that is not a high-risk AI system, the presumption shall only apply where the national court considers it excessively difficult for the claimant to prove the causal link. Here also, the presumption is rebuttable.

– The limitations of the rules:

It follows from these provisions that the impact of the two rules laid down in the Proposal is limited by numerous conditions. In particular, the new mechanism of disclosure of evidence would be limited only to high-risk AI systems. Similarly, the presumption of causal link would mainly apply to high-risk AI systems, except where, according to the national judges, it would be excessively difficult for the claimant to prove the causal link.

In any case, the Proposal is based on a fault-based liability regime, which means that victims would still have to prove the fault or negligence of the AI system provider, or deployer. As noted by the EDPS in its own-initiative opinion[5] of 11 October 2023, ‘meeting such a requirement may be particularly difficult in the context of AI systems, where risks of manipulation, discrimination, and arbitrary decisions will be certainly occurring’, even when the providers and deployers have prima facie complied with their duty of care as defined by the AI Act. 

In order to overcome these proof-related difficulties, several solutions have been proposed. BEUC, the European Consumer Organisation, has recommended introducing a reversal of the burden of proof[6], in order to allow the consumers to only have to prove the damage they suffered and the involvement of an AI system. A more nuanced approach has been suggested by an expert, aiming at differentiating between AI systems, whether they are high-risk or not, and general-purpose AI systems: providers and deployers of high-risk AI systems would be subjected to ‘truly strict liability’, while SMEs and non-high-risk AI systems should only be subjected to rebuttable presumptions of fault and causality[7]. In the same vein, the European Parliament considered in 2020 that it seemed ‘reasonable to set up a common strict liability regime for (…) high-risk autonomous AI-systems’. As regards other AI systems, the European Parliament also considered that ‘affected persons should nevertheless benefit from a presumption of fault on the part of the operator who should be able to exculpate itself by proving it has abided by its duty of care’[8].

The Commission itself has acknowledged, in its impact assessment report, that ‘the specific characteristics of the AI-system could make the victim’s burden of proof prohibitively difficult or even impossible to meet’, and has evoked different approaches, among which the reversal of the burden of proof. As a sign of its hesitation, the Commission has introduced in the Proposal the possibility to review the directive five years after the end of the transposition period, in particular in order to ‘evaluate the appropriateness of no-fault liability rules for claims against the operators of certain AI systems, as long as not already covered by other Union liability rules, and the need for insurance coverage, while taking into account the effect and impact on the roll-out and uptake of AI systems, especially for SMEs’[9].

II- The withdrawal of the Proposal

On 11 February 2025, the Commission decided to withdraw the Proposal, on the grounds that there was ‘no foreseeable agreement’, and that the Commission would ‘assess whether another proposal should be tabled or another type of approach should be chosen’[10].

This decision caught the European Parliament’s rapporteur on the Proposal, Axel Voss (PPE), by surprise, who stated that the scrapping of the rules would mean ‘legal uncertainty, corporate power imbalances, and a Wild West approach to AI liability that benefits only Big Tech’[11].

On the other hand, the decision of the Commission is reported to have satisfied both the Council and the private sector. In particular, France’s Permanent Representation would have indicated that it saw no reason to impose additional liability requirements on AI providers[12].

How can such a situation be explained?

It is true that the AI liability initiative launched by the Commission on 28 September 2022 was also composed of another Proposal, aiming at updating the Directive on liability for defective products (PLD). The new directive, which now includes software and digital manufacturing files within the definition of product, and expands the notion of compensable damage to include the destruction or corruption of data, came into force on 8 December 2024.

However, the scope of the revised PLD is limited: it only provides compensation for material losses resulting from death, personal injury, damages to property and loss or corruption of data (Article 6 PLD). In particular, damage stemming from a violation of a fundamental right without any material loss is not covered by this directive, but should have been covered by the AI liability directive. The draft AILD aimed at covering ‘national liability claims mainly based on the fault of any person with a view of compensating any type of damage and any type of victim’[13].

The loopholes of the PLD have also been underlined by the complementary impact assessment required by the JURI Committee, to which the file had been attributed in the European Parliament. The study[14], published on 19 September 2024, underlines: ‘However, the PLD presents notable gaps, especially in areas such as protection against discrimination, personality rights, and coverage for professionally used property. It also lacks measures for addressing pure economic loss and sustainability harms, as well as damage caused by consumers, which are contingent on Member State laws. These limitations underscore the necessity for adopting the AILD (…)’.

Thus, in the light of the complementary impact assessment, it appears that the recent adoption of the revised PLD cannot compensate the withdrawal of the proposed AILD. Moreover, as stressed by the first International AI Safety Report, the specific characteristics of general-purpose AI systems make legal liability hard to determine:

‘The fact that general-purpose AI systems can act in ways that were not explicitly programmed or intended by their developers or users raises questions about who should be held liable for resulting harm’[15] .

Conclusion:

Against this background, today the European citizens are left with a ‘fragmented patchwork of 27 different national legal systems’[16], most of them relying on a fault-based regime, which is not able to respond to all the challenges posed by AI systems, and in particular to general-purpose AI systems.

The withdrawal of the proposed AILD is only one element of the Commission’s plan aiming at ‘simplifying rules and effective implementation’[17], which enlists 37 withdrawn proposals in total.

The fact that the final 2025 work programme of the Commission -with the addition of the withdrawal of the AILD- was published just after the AI Act Summit, held in Paris on 10-11 February, may be a simple coincidence. However, it should be noted that the Statement[18] issued after the AI Summit does not refer to the issue of liability nor to the risks of AI systems, except in the context of information.

As observed by Anupriya Datta and Théophane Hartmann in Euractiv, ‘In this context, withdrawing the AI liability directive can be understood as a strategic manoeuvre by the EU to present an image of openness to capital and innovation, to show it prioritises competitiveness and show goodwill to the new US administration’[19].

The final word may not have been spoken, yet. On 18 February, the Members of the European Parliament’s Internal Market and Consumer Protection Committee (IMCO) voted to keep working on liability rules for artificial intelligence products, despite the European Commission’s intention to withdraw the proposal[20].

[1] The opinions expressed in this article are the author’s own and do not necessarily represent the views of the EDPS

[2] International Scientific Report on the Safety of Advanced AI January 2025

[3] COM(2022) 496 final, page 2

[4] COM(2022) 496 final, page 6

[5] EDPS Opinion 42/2023 on the Proposals for two Directives on AI liability rules, 11 October 2023, par. 33

[6] Proposal for an AI liability Directive, BEUC position paper, page 12.

[7] The European AI liability directives – Critique of a half-hearted approach and lessons for the future-Philipp Hacker, page 49.

[8] European Parliament resolution of 20 October 2020 with recommendations to the Commission on a civil liability regime for artificial intelligence (2020/2014(INL)), par. 14 and 20.

[9] Article 5 of the Proposal.

[10] Annexes to the Communication from the Commission to the European Parliament, the Council, the European, Economic and Social Committee and the Committee of the Regions- Commission work programme 2025, page 26.

[11] Euractiv ‘Commission plans to withdraw AI Liability Directive draw mixed reactions’, 12 February 2025.

[12] Ibidem.

[13] COM(2022) 496 final, page 3.

[14] Proposal for a directive on adapting non-contractual civil liability rules to artificial intelligence-Complementary impact assessment.

[15] International Scientific Report on the Safety of Advanced AI, page 179.

[16] Euractiv, ‘Commission plans to withdraw AI Liability Directive draw mixed reactions’, Anupriya Datta, 12 February 2025

[17] Commission work programme 2025, page 11

[18] Statement on Inclusive and Sustainable Artificial Intelligence for People and the Planet: ‘We will keep addressing the risks of AI to information integrity and continue the work on AI transparency.’

[19] Euractiv ‘Commission withdraws AI liability directive after Vance attack on regulation’, 11 February 2025

[20] Euronews ‘Lawmakers reject Commission decision to scrap planned AI liability rules’, Cynthia Kroet, 18/02/2025

“Re-arming” Europe without real democratic control?

by Emilio DE CAPITANI

The European Council Conclusions of March 6th extraordinary meeting mark an unexpected change of course towards an European Union defence policy. If confirmed at the next meeting on March 20th/21st, this would see the European ship leave a safe port – even if essentially intergovernmental – to set sail for a destination that, at least from these first steps, seems to be clearly drifting away from the main course that the Union’s institutions have always followed until now. The course is one that, over the last 70 years, has allowed an entire Continent to live in peace, without any need for rearmament, through the use of the “community method” and economic and civil integration. A continent that had previously been the scene of two world wars, both triggered by imperialistic ambitions and, in the second, also by the ethical baseness of a violence never before reached in the history of human civilization.

Returning to the theme of the drift of the Conclusions of March 6, it is worth saying that what caused the shift was not so much Putin’s aggression against Ukraine (already underway since 2014 following the invasion of Crimea) but rather US President Trump’s position making clear to the other NATO allies that, in the event of military aggression of a member state, the protection of the American umbrella will be no longer automatic nor the financial contribution to this North Atlantic defense pact by the United States. Following these messages  Ursula Von Der Leyen (VDL), President of the Commission, after, most probably having received the green light from the chancelleries of most EU member states, presented on March 5th a first plan, inappropriately called the “Re-arm Europe”, and whose objectives, as expected, have been, at least for the time being, unanimously approved by all the members of the European Council.

European public opinion has thus, suddenly, realized, that within the European Council, the highest political body of the European Union bringing together the Heads of State and Government, there is a great desire to take up arms, without any of them having consulted, beforehand, not even their parliaments in public session or, at least, the European Parliament. It looks that, once again, these leaders consider that it’s better to give this news to their citizens only after the fact, even though the same citizens, in the case of “rearmament” will not only put in their money but also the people necessary to ensure the increased defense measures. Moreover it will be easy, for these Heads of State and Government returning home from Brussels, to explain to the their national press that all the other colleagues pushed for it and “Brussel” has decided it. All for one (the Member States), and one for all (the Union), as usual….

Why is it “improperly” called a “Rearm Plan”?  First of all, because the word “rearmament” has been banned from the European political lexicon since the Schuman Declaration of 1950. Secondly, because the term “rearmament” – that is, a return to the use of weapons – does not evoke a defensive intention, and even less of peace, as it could be, for example: “the new EU Military Defense Plan”. If until now the Union, in order to achieve peace, has welcomed millions of displaced Ukrainians, deployed money and adopted restrictive measures against Russia, the time has come, after President Trump’s announcements, of launching an European Union diplomatic initiative,  according to the most authentic ” community method” and re-launch the role of the United Nations, rediscover the spirit of the Helsinki Accords that in 1975 contributed to overcoming the East-West divide on the European continent and try to bring the countries directly and indirectly involved around a table.

In any case, the plan proposed by President VDL, consisting of two distinct financial packages, raises serious reservations, not only political, but also parliamentary and legal.

The first package is the loosening of budgetary constraints up to 1.5% for defense spending by member states. Overall, this initiative should free up to 650 billion euros of national resources, to be spent not so much on the development of the defense industries already present in some Member States, but following a new European defense strategy. And this should happen through a mechanism of indebtedness that had not even been granted to the Member States for the achievement of fundamental objectives such as social protection or the fight against pollution….  From a European perspective, the choice may be questionable also due to the fact that, in March 2024, the Commission itself has already submitted to the European legislator an “EDIP” draft regulation (1) see below).

From a national perspective, however, it will be up to the parliaments of the Member States to decide whether or not to support the choices of their governments

Well, it’s clear that since this is a financial plan combined with the second basket of the VDL proposal engaging 150 billion euro on the EU Budget, all the national and European parliaments will wait until the next European Council on March 21st to find out if the Council, on the proposal of the Commission, will indeed adopt a new financial instrument in favor of Member States on art. 122 TFEU (2) as announced by the Commission President Von Der Leyen’s proposal to establish “a new EU instrument under Article 122 TFEU to provide Member States with loans backed by the EU budget.” According to the letter “ With up to EUR 150 billion, this instrument would strongly support EU efforts to achieve a rapid and significant increase in investments in Europe’s defence capabilities – now and over this decade. Such funding could be used for priority capabilities domains for which action is necessary at European level, in alignment with NATO:

  • air and missile defence;
  • artillery systems;
  • missiles and ammunition;
  • drones and anti-drone systems;
  • strategic enablers and critical infrastructure protection, including in relation to space;
  • military mobility;
  • cyber, artificial intelligence and electronic warfare.

Further increasing the impact of this new instrument would be achieved by buying together, which would ensure interoperability and predictability, reduce costs, and create the scale needed to strengthen our European defence industrial base.” (emphasis added)

The “new instrument” proposed by the President of the Commission is therefore much more ambitious than the initiatives undertaken until now by the EU in this field. Moreover, it presupposes the definition, at a European level, of “priority capability areas where action is needed at the European level, in line with NATO”. Therefore prior consultation with NATO (where the US ambassador sits) is foreseen, while the European Parliament itself is not involved, even if not only European taxpayer/citizen money is at stake, but also the content of policies that affect its rights and vital interests.

But, with the current Treaty, who is authorized to make this kind of decision?

The answer is not simple because the Treaties, even after Lisbon, have provided a framework that is ambiguous to say the least, if not incomplete and contradictory. This is because, at least until recently, the majority of Member States relied on the NATO Treaty for the defense of the Union’s territory, in a sort of division of labor with the EU Treaties (see art. 42 TEU). However,following the recent positions taken on the other side of the Atlantic, this division of labor is now being questioned and various solutions are being studied, first and foremost that of the construction of a “European pillar” within NATO. However, the impression is that this too is a temporary solution and that, sooner or later, the European Union must finally assume responsibility for its own defense.
If this is the medium to long term perspective, it should be self evident that the European Union, even before a future formal amendment of the Treaties, must apply to this “European” rearmament plan the same fundamental democratic principles, as it does to the rest of European policies. It would indeed be paradoxical that in fields that are sensitive and essential for the security of citizens in the face of increasing external threats the EU will not abide to the principles  according to which “the functioning of the Union is founded on representative democracy” (art.10.1 TEU) or that according to which “Every citizen shall have the right to participate in the democratic life of the Union. Decisions are taken as openly as possible and as closely as possible to the citizen. (art.10.3 TEU).

In such constitutional context, the Commission’s proposal to base the financing of 150 billion on the basis of art.122 TFEU, without the direct involvement of the European Parliament, is highly questionable, not to say contrary to Union law. It is worth noting that Article 122, has been already used in the past to try to stem the Greek Euro crisis, the COVID crisis and the energy crisis following the Russian invasion of Ukraine, but it is a legal basis suitable only for emergency measures in the economic domain, and therefore unusable in situations dealing with defence and that can last for years. Suffice it to remember that during the Euro crisis art.122 TFEU was abandoned by the same Member States who proposed it because they recognized that it was necessary, for a medium long perspective, to adopt a real Treaty, even though “complementing” the TEU (the European Stability Mechanism – ESM).

So a first reason why art.122 TFEU, should be excluded as a legal basis justifying a Council measure aimed at defending the citizens of the Union, in the years to come is that it is a temporary measure, even though is intended, as President VDL herself admits in her letter, to be valid for at least the next decade. But, most importantly, art. 122 does not foresee the involvement of the European Parliament which, as it happened for the European Council conclusion on the Rearm Europe project, will be “informed” only after the fact. Democratic control, which in military matters and the recruitment of people to be entrusted with the use of arms, are the basis of the Constitution of every democratic state, must also be respected within the EU by involving the EP in these extremely important political decisions, and this through the identification of an appropriate legal basis that involves it. In this perspective President VDL proposal is in itself not only clearly anti-parliamentary, anti-democratic but it contradicts the assessment according to which we are facing historic times. So, why not take this occasion to set the basis for a true EU defence policy in the Treaty instead of prolonging the current anti-democratic regime set fifteen years ago for the EU Defense policy?

Let’s hope that the European Parliament will take this occasion to re-establish the EU institutional balance also in this domain and will formally reserve the right, starting with its next resolutions on defense, to challenge before the Court of Justice any type of measure or act taken without its prior and effective involvement. Moreover, since this matter also directly involves the national parliaments, the European Parliament should also call them together in the spirit and letter of Article 12 TEU, according to which they contribute to the European construction (thereby also strenghtening parliamentary democracy within the EU).

As for the merits, it is only necessary to remember that, according to articles 3 to 6 TFEU, the Union has no direct powers regarding rearmament, and it may be  questionable whether it has any regarding support for member states [i];

In this context and, as the Treaty currently stands, the only possible legal basis for such involvement of the Union and the association of the EP in the construction of a defense policy is that of art. 352.1 TFEU according to which ” If action by the Union should prove necessary, within the framework of the policies defined in the Treaties, to attain one of the objectives set out in the Treaties, and the Treaties have not provided the necessary powers, the Council, acting unanimously on a proposal from the Commission and after obtaining the consent of the European Parliament, shall adopt the appropriate measures. (emphasis added) It is worth recalling that previous amendments of the Treaties were anticipated by legislative measures adopted with this “implicit” powers legal basis.

That having been said it is quite likely that for different political and institutional reasons the EU will not be ready to use art.352 TFEU ( notably because it requires unanimity in the Council and we all know how slippery the situation is in the Council when Unanimity is at stake…) However, another alternative, even if less clean and straight, is to integrate the VDL Objectives and the 150 billion financing in the draft “EDIP” Regulation(3) currently under discussion at the EP and the Council which already foresee the adoption of an EU Defense Strategy.  It is worth mentioning that, despite all the limitations of this proposal already denounced by the European Court of Auditors , EDIP would follow an ordinary legislative procedure, thus guaranteeing the full co-responsibility of the European Parliament without requiring unanimity in the Council as provided for in Article 352 TFEU. Negotiations are proceeding swiftly in both the Council and the European Parliament and this should allow the inter-institutional negotiations (trilogue) to start as soon as possible.

As explained above there are therefore serious alternatives to recourse to Article 122 that the European Parliament may raise to protect its constitutional prerogatives in the face of an initiative by which the European Council, the Council and the Commission exclude it from the decision-making process. By appealing to the Court, against the choice of that legal basis (NDR : moreover emergency measures in the defence sector require art.222 TFUE and not 122 TFUE) the Parliament would not only defend its constitutional prerogatives, but also the fundamental need of respect democratic principles, the Rule of Law and, above all, the rights of the citizens who elected it, even in matters of defense. Then, who knows, the Council and the Commission could accept the fall back position of dealing with these matters in codecision with the EP through the EDIP legislative proposal…

NOTES
1  REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL establishing the European Defence Industrial Program and a framework for measures to ensure the timely availability and supply of defence products (“EDIP”) (2024/0061(COD) Link https://eur-lex.europa. eu/legal-content/IT/TXT/HTML/?uri=CELEX:52024PC0150

2 Article 122 (ex Article 100 of the TEC) 1.Without prejudice to any other procedures provided for in the Treaties, the Council, on a proposal from the Commission, may decide, in a spirit of solidarity between Member States, upon the measures appropriate to the economic situation, in particular if severe difficulties arise in the supply of certain products, notably in the area of energy. 2.   Where a Member State is in difficulties or is seriously threatened with severe difficulties caused by natural disasters or exceptional occurrences beyond its control, the Council, on a proposal from the Commission, may grant, under certain conditions, Union financial assistance to the Member State concerned. The President of the Council shall inform the European Parliament of the decision taken.

(3) The legal bases for the draft EDIP Regulation aimed at ensuring the timely availability and supply of defense products are (1) Article 173 TFEU in relation to the competitiveness of the EDTIB; (2) Article 114 TFEU in relation to the European Defense Equipment Market (EDEM); (3) Article 212 TFEU in relation to strengthening Ukraine’s DTIB and (4) Article 322 TFEU in relation to financial provisions.

When the tail wags the dog : the Commission proposal of withdrawing 37  EU pending legislative proposals

By Emilio De Capitani

On February 12th only few hours after the adoption by the Commission of the Work Programme for 2025 Vice President Sefcovich, presented it to the EP Plenary its . Even if most of the MEPs interventions covered several points the Commission’s work programme the debate was rather general and generic. A similar exercise took place on February 25th at the Council of General Affairs when, following the usual practice of individual members reading written texts, Ministers debated the same texts together with a more general draft conclusion text on the priorities for the new legislature.

According to the 2016 Interinstitutional agreement on Better Law Making after the presentation of the Commission Work Programme “…and drawing on it, the three Institutions will exchange views on initiatives for the coming year and agree on a joint declaration on annual interinstitutional programming (“joint declaration”), to be signed by the Presidents of the three Institutions. The joint declaration will set out broad objectives and priorities for the following year and will identify items of major political importance which, without prejudice to the powers conferred by the Treaties on the co-legislators, should receive priority treatment in the legislative process”. (emphasis added).

So, even though, looking from outside the two debates in Parliament and in the Council where not particularly exciting the Agreement of a Joint Declaration may have an impact also for the EU Citizens notably if the outcome will be that the Parliament and the Council will agree with the Commission proposal of ending negotiations on 37 legislative proposals on which the co-legislators have already worked (and in some cases even reached partial agreements) (see the list below).

On this issue par. 9 of the 2016 Interinstitutional Agreement on better law making foresees that : “
In accordance with the principles of sincere cooperation and of institutional balance, when the Commission intends to withdraw a legislative proposal, whether or not such withdrawal is to be followed by a revised proposal, it will provide the reasons for such withdrawal, and, if applicable, an indication of the intended subsequent steps along with a precise timetable, and will conduct proper interinstitutional consultations on that basis. The Commission will take due account of, and respond to, the co-legislators’ positions.”

As it is currently formulated the text of the agreement cover two very different situation the first one when the Commission has the power of withdrawing a legislative pending proposal and the second one when the Commission is just proposing to the Co-legislator to abandon some legislative negotiations for political reasons or even for making some housekeeping if the pending proposals have become obsolete.

The first case of direct withdrawal the Commission’s faculty of withdrawing a legislative proposal when legislative negotiations are still pending, has been recognized but in rather strict terms by the Court of Justice only  ‘where an amendment planned by the Parliament and the Council distorts the proposal for a legislative act in a manner which prevents achievement of the objectives pursued by the proposal and which, therefore, deprives it of its raison d’être, the Commission is entitled to withdraw it’. It may however do so only after having had due regard to Parliament’s and Council’s concerns behind their wish to amend the proposal.” (C- C‑409/13, p.83). Framed in this way the Commission rights of withdrawing pending legislative procedures may be acceptable from an institutional balance perspective (at least until the Treaty will not recognize a full right of legislative initiative to the EP and to the Council and not the current “quasi petitionary” power foreseen by art 225 for the EP and 241 TFEU for the Council).

In all the other cases it is up to the Co-legislator (EP and Council) to decide if a legislative negotiation should be abandoned and the Commission may withdraw the relevant legislative proposal. Indeed, according to the Luxembourg Judges the Commission’s faculty of withdrawing a legislative text“..cannot, however, confer upon that institution a right of veto in the conduct of the legislative process, a right which would be contrary to the principles of conferral of powers and institutional balance.”(C- C‑409/13, p.75).

Let’s be clear notwithstanding the Commission’s ambition to be considered at the same level of the co-legislators, after Lisbon the “legislative triangle” is no more “equilateral” and the “Institutional balance” is not the same than in the pre-Lisbon era. Even though the Commission maintains a quasi-monopoly of legislative initiative, it is up only to the co-legislator to negotiate and finalize the EU legislative measures (art.289 and 294 of the TFEU) or to abandon them if they so wish. The proof ? Think about the case of legal challenges of an EU legislative text: only the EP and the Council will be responsible before the Court and not the Commission even when the co-legislators adopted the Commission Proposal without amending it.

Bearing in mind all these elements the Commission announcement in the 2025 work program of withdrawing not less than 37 legislative proposals seems in some cases highly questionable. As it has been presented in the Commission’s Work program the Citizen may consider that the Commission is only asking for an opinion from the co-legislators but this should not be the case and turn the respective Institutional roles upside down.

In a way, this is a tail which wags the dog.

But this procedure will also blurs the role of the co-legislator and threaten the principle of legislative transparency as required by the treaty (art. 15.2 TFEU). Ignoring why the EP and the Council want to abandon legislative negotiations does not fit very well with the principle according to which “The functioning of the Union shall be founded on representative democracy” (art. 10.1 TEU). In this perspective none may contest that legislative activity is at the core of the EU “functioning” and should happen in full transparency (art. 15.2 TFEU) a condition which should be granted by the co-legislators and notably by the EP itself.  As a consequence the co-legislators should not abdicate to their political and Institutional responsibilities when they negotiate or even more when decide to abandon legislative negotiations on given legislative proposals by explaining why they intend to do so. Hiding behind few lines of justification and a pretended Commission right to withdraw legislative pending proposals is not the best you may expect from directly elected Members and by the Council.

Looking on the Council side some elements may arise from the Institution’s contribution to the Joint declaration which will debated (and adopted ?) on March 18th with a view to sign it on the margins of the March 2025 European Council.

But on the European Parliament side, in the absence of a Plenary resolution is not clear who will take the responsibility to express the position of the Institution on the proposed legislative withdrawals.

Maybe the position will be taken by the Conference of Presidents of Political Groups according to art 27.2 of the EP Rules of Procedures making reference to “legislative planning”. However, withdrawing 37 pending legislative proposals is not an organizational measure which may fall under the Conference of Presidents remit. Closing the possibility of further debating a legislative proposal is a decision on the content of a legislative procedure which can be taken only by the Plenary as it is the case for all the EU legislative votes. Moreover, in the absence of a specific provision in the Treaty (as foreseen by art 294 TFEU) closing a legislative negotiation require the agreement between the co-legislator and the case may well exist where only one of them agree for the withdrawal (see the case of the revision of the Transparency Regulation 1049/01 which is still valid for the EP but not for the Council..).  

Not surprisingly some Civil society organizations have already complained for some of these announced withdrawals (notably of anti-Discrimination Directive – point 26 of the list). In the Council  several member States have declared their interest in continuing the legislative work (SW, PT, IRL, NL, EST, FR, BE, SLO, IT and Malta) but what is the EP position ?

But other cases raise a similar questions. Why proposing to withdraw:

These are just few questions but other may be raised and it is up to the co-legislator to explain if they agree with the Commission proposals and why.

The List of legislative proposals deemed to be withdrawn

1 COM(2011)714 final 2011/0314 (CNS) Proposal for a COUNCIL DIRECTIVE on a common system of taxation applicable to interest and royalty payments made between associated companies of different Member States Obsolete – the scope of the proposal has been partly taken over by the Directive implementing the OECD Pillar 2 on minimum corporate taxation. The remaining issues the proposal intended to tackle will be addressed via an upcoming Omnibus act as a part of the simplification process.

2 COM(2011)827 final 2011/0391 (COD) Proposal for a REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL on common rules for the allocation of slots at European Union airports Obsolete – the proposal is by now obsolete. The Commission has launched a fitness-check and will decide on the basis of its findings on the way forward.

3 COM(2012)336 final 2012/0164 (APP) Proposal for a COUNCIL REGULATION establishing a facility for providing financial assistance for Member States whose currency is not the euro Obsolete – the proposal needs to be updated as regards i.a. the funding modalities of the Balance of Payments Facility and to integrate the lessons to be drawn from the recent crises, as well as the institutional, economic and financial sector developments since 2009, and their possible implication for the design and implementation of the facility, in line with the Council Conclusions of 27 March 2024.

4 COM(2015)603 final 2015/0250 (NLE) Proposal for a COUNCIL DECISION laying down measures in view of progressively establishing unified representation of the euro area in the International Monetary Fund No foreseeable agreement – in the context of the discussions on Europe’s economic and financial sovereignty, the Commission will assess whether another proposal should be tabled or another type of approach should be chosen.

5 COM(2017)276 final 2017/0115 (CNS) Proposal for a COUNCIL DIRECTIVE amending Directive 1999/62/EC on the charging of heavy goods vehicles for the use of certain infrastructures, as regards certain provisions on vehicle taxation No foreseeable agreement – the proposal is blocked with no perspective of agreement.

6 COM(2017)647 final 2017/0288 (COD) Proposal for a REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL amending Regulation (EC) No 1073/2009 on common rules for access to the international market for coach and bus services No foreseeable agreement – the proposal has not been taken up for discussion in the Council and is by now outdated.

7 COM(2017)827 final 2017/0333 (APP) Proposal for a COUNCIL REGULATION on the establishment of the European Monetary Fund No foreseeable agreement – many of the changes proposed under this initiative have been incorporated into a separate revision of the European Stability Mechanism Treaty. 

8 COM(2018)135 final 2018/0063B (COD) Proposal for a DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL on credit servicers, credit purchasers and the recovery of collateral No foreseeable agreement – the proposal is blocked and further progress is unlikely.

9 COM(2018)329 final  2018/0164(CNS) Proposal for a COUNCIL DIRECTIVE amending Directive 2006/112/EC as regards the introduction of the detailed technical measures for the operation of the definitive VAT system for the taxation of trade between Member States No foreseeable agreement – discussions are suspended since 2019 and further progress is unlikely.

10 COM(2018)339 final  2018/0171 (COD) Proposal for a REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL on sovereign bond-backed securities No foreseeable agreement – the proposal is blocked and further progress is unlikely.

11 COM(2018)387 final 2018/0212 (COD) Proposal for a REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL on the establishment of a European Investment Stabilisation Function No foreseeable agreement – The proposal is outdated with the entry into force of NGEU and the Recovery and Resilience Facility (RRF) and the withdrawal of the socalled Budgetary Instrument for Convergence and Competitiveness (BICC) in February 2021. 

12 COM(2019)38 final 2019/0017 (COD) Proposal for a REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL amending Regulation (EU) 2015/757 in order to take appropriate account of the global data collection system for ship fuel oil consumption data Obsolete – changes contained in this proposal have been incorporated into the most recent EU ETS revision, adopted in 2023.

13 COM(2020)49 final  2020/0022 (CNS) Proposal for a COUNCIL DIRECTIVE on administrative cooperation in the field of taxation (codification) Obsolete – since the adoption of this proposal in 2020, a number of significant amendments have been adopted, making this codification proposal obsolete. The Commission will propose a new codified proposal.

14 COM(2020)577 final 2020/0264 (COD) Proposal for a REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL amending Regulation (EU) 2018/1139 as regards the capacity of the European Union Aviation Safety Agency to act as Performance Review Body of the Single European Sky Obsolete – changes contained in this proposal have been incorporated into the Single European Sky (“SES II +”) Regulation.

15 COM(2021)769 final 2021/0400 (COD) Proposal for a DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL laying down for certain road vehicles circulating within the Union the maximum authorised dimensions in national and international traffic and the maximum authorised weights in international traffic (codification) Obsolete – since the adoption of this proposal in 2021, a recent amendment has been proposed by the Commission, that will make this codification proposal obsolete. The Commission will propose a new codified proposal as soon as the new amendment will have been adopted.

16 COM(2022)222 final 2022/0160 (COD) Proposal for a DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL amending Directive (EU) 2018/2001 on the promotion of the use of energy from renewable sources, Directive 2010/31/EU on the energy performance of buildings and Directive 2012/27/EU on energy efficiency Obsolete – the changes suggested by this proposal were incorporated during the discussions on the revision of the Energy Performance of Buildings Directive, the Energy Efficiency Directive and the Renewable Energy Directive.

17. COM(2023)232 final 2023/0133(COD) Proposal for a REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL on standard essential patents and amending Regulation (EU)2017/1001 No foreseeable agreement – the Commission will assess whether another proposal should be tabled or another type of approach should be chosen.

18 COM(2018)634 final 2018/0329 (COD) Proposal for a DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL on common standards and procedures in Member States for returning illegally staying third-country nationals (recast) A contribution from the European Commission to the Leaders’ meeting in Salzburg on 19-20 September 2018 Obsolete – the Commission intends to present a new proposal in 2025 (referred to in annex 1 of this Commission Work Programme) in the context of which the current pending proposal will be effectively withdrawn.

19 COM(2021)890 final 2021/0427 (COD) Proposal for a REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL addressing situations of instrumentalisation in the field of migration and asylum Obsolete – the content of this proposal was merged into Regulation (EU) 2024/1359 addressing situations of crisis and force majeure in the field of migration and asylum and amending Regulation (EU) 2021/1147.

20 COM(2021)752 final 2021/0401 (CNS)  Proposal for a COUNCIL DECISION on provisional emergency measures for the benefit of Latvia, Lithuania and Poland Obsolete – the proposal was blocked during the interinstitutional discussions and is now obsolete.

21 COM(2024)174 final 2024/0094 (NLE) Proposal for a COUNCIL RECOMMENDATION for the 2024/2025 Schengen Cycle Obsolete – no agreement was foreseeable. The Schengen Council agreed on a number of priority areas for action that are dealt with via other means than this proposal.

22 COM(2012)403 final 2012/0196 (COD) Proposal for a REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL on the protection of species of wild fauna and flora by regulating trade therein (Recast) No foreseeable agreement – no agreement is expected. Furthermore, since 2012, developments took place that make this proposal obsolete. The Commission will assess whether another proposal should be tabled or another type of approach should be chosen to allow for a new start.

23 COM(2015)177 final 2015/0093 (COD) Proposal for a REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL amending Regulation (EC) No 1829/2003 as regards the possibility for the Member States to restrict or prohibit the use of genetically modified food and feed on their territory No foreseeable agreement – any potential further amendment of the GMO legislation will depend on the outcome of the negotiations on the proposal for new genomic techniques, or the identification of issues to be addressed in the context of the biotechnology and biomanufacturing initiative.

24 COM(2022)563 final 2022/0348 (COD) Proposal for a REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL laying down management, conservation and control measures applicable in the Area of the Southern Indian Ocean Fisheries Agreement (SIOFA) No foreseeable agreement – no agreement is expected between the European Parliament and the Council at first reading. The Commission intends to present a new proposal in 2025 in the context of which the current pending proposal will be effectively withdrawn. 

25 COM(2023)771 final 2023/0449 (COD) Proposal for a REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL amending Regulations (EU) 2016/1139, (EU) 2018/973 and (EU) 2019/472 as regards the targets for fixing fishing opportunities No foreseeable agreement – no agreement is expected from the colegislators.

26 COM(2008)426 final 2008/0140 (CNS) Proposal for a COUNCIL DIRECTIVE on implementing the principle of equal treatment between persons irrespective of religion or belief, disability, age or sexual orientation No foreseeable agreement – the proposal is blocked and further progress is unlikely.

27 COM(2011)137 final 2011/0073 (COD)   COM(2008)229 final 2008/0090 (COD) Proposal for a REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL amending Regulation (EC) No 1049/2001 regarding public access to European Parliament, Council and Commission documents  No foreseeable agreement – no progress has been made since 2011.

28 COM(2016)799 final 2016/0400B (COD) Proposal for a REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL adapting a number of legal acts providing for the use of the regulatory procedure with scrutiny to Articles 290 and 291 of the Treaty on the Functioning of the European Union No foreseeable agreement – the proposal is blocked and further progress is unlikely. There is a legal obligation to put legal acts adopted prior to the entry into force of the Treaty of Lisbon in conformity with Articles 290 and 291 TFEU. The Commission will therefore present to the colegislators a new proposal to that effect.

29  COM(2017)10 final 2017/0003 (COD) Proposal for a REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL concerning the respect for private life and the protection of personal data in electronic communications and repealing Directive 2002/58/EC (Regulation on Privacy and Electronic Communications No foreseeable agreement – no agreement is expected from the colegislators. Furthermore, the proposal is outdated in view of some recent legislation in both the technological and the legislative landscape.

30 COM(2017)85 final 2017/0035 (COD) Proposal for a REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL amending Regulation (EU) No 182/2011 laying down the rules and general principles concerning mechanisms for control by Member States of the Commission’s exercise of implementing powers No foreseeable agreement – the proposal is blocked and further progress is unlikely.

31 COM(2018)96 final 2018/0044 (COD) Proposal for a REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL on the law applicable to the third-party effects of assignments of claims No foreseeable agreement – the proposal is blocked and further progress is unlikely.

32. COM(2022)496 final 2022/0303 (COD) Proposal for a DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL on adapting non-contractual civil liability rules to artificial intelligence (AI Liability) No foreseeable agreement – the Commission will assess whether another proposal should be tabled or another type of approach should be chosen.

33. JOIN(2015)36 final 2015/0302 (NLE) Joint Proposal for a COUNCIL DECISION on the conclusion, on behalf of the European Union, of the Cooperation Agreement on Partnership and Development between the European Union and the Islamic Republic of Afghanistan Obsolete – the ratification process of this agreement has been interrupted with the establishment of a Taliban appointed caretaker government that, to date, remains unrecognized by the international community, making the original agreement obsolete.

34. COM(2022)63 final 2022/0043 (NLE) Proposal for a COUNCIL DECISION on the position to be taken on behalf of the European Union in the written procedure by the Participants to the Arrangement on Officially Supported Export Credits amending Annex IV Obsolete – the proposal was made in the negotiations on the modernisation of the Arrangement on Officially Supported Export Credits, which were finalised in 2023. The content of this proposal was included in another Council decision making this one redundant.

35 COM(2022)184 final 2022/0125 (COD) Proposal for a REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL amending Regulation (EU, Euratom) 2018/1046 on the financial rules applicable to the general budget of the Union Obsolete – the content of the proposal has been adopted end of September 2024 as part of the revision of the Financial Regulation (Recast).

36. COM(2024)301 final 2024/0059 (COD) Proposal for a REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL amending Regulation (EU) 2021/1148 as regards the financial envelope and the allocation for the thematic facility No foreseeable agreement – no agreement is expected. Furthermore, the MFF mid-term revision can be implemented without this legal proposal.

37. COM(2024)100 final 2024/0060 (COD) Proposal for a REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL amending Regulation (EU) No 2021/522, Regulation (EU) No 2021/1057, Regulation (EU) No 2021/1060, Regulation (EU) No 2021/1139, Regulation (EU) No 2021/1229 and Regulation (EU) No 2021/1775 as regards the changes to the amounts of funds for certain programmes and funds No foreseeable agreement – no agreement is expected. The MFF mid-term revision can be implemented without this legal proposal. An amendment to the Regulation 2021/1755 establishing the Brexit Adjustment Reserve (BAR) to establish the legal basis for redistribution of the outstanding amounts between the Member States will be proposed by the C

The Commission proposal of withdrawing the draft AI Liability Directive: a “strategic error” both from an institutional and content perspective? (1)

by Emilio DE CAPITANI

Maybe it is a pure coincidence, but the Commission proposal to withdraw the drat AI liability Directive seems to be the immediate answer to the US Vice-president, J.D. Vance request at the Artificial Intelligence Action Summit in Paris that the EU (and its Member States) should avoid any regulation deemed (by the US) too “aggressive” against the American technology giants. To confirm such suspicion are the Commission Vice President Sefcovic justifications according to which the Commission was withdrawing the text because of the “lack of progress” in the legislative process. This justification is simply unfounded because both the Council and the Parliament are currently actively working on the issue : the Council is debating the reactions of the Member States on the Commission’s proposal (see here and here) and the European Parliament held an hearing on this subject not later than two weeks ago, following which the EP Rapporteur has already announced a draft report in the coming months.

So, the Commission justification for withdrawing the AI Liability Directive proposal because of lack of progress is factually unfounded and, even, legally questionable. (see my other general post Here). Suffice to remember that according to the CJEU judgement withdrawing a legislative proposal may be justified only  ‘where an amendment planned by the Parliament and the Council distorts the proposal for a legislative act in a manner which prevents achievement of the objectives pursued by the proposal and which, therefore, deprives it of its raison d’être, the Commission is entitled to withdraw it’. It may however do so only after having had due regard to Parliament’s and Council’s concerns behind their wish to amend the proposal.” (C- C‑409/13, p.83). Again this seems to be of common sense interpretation. Until the Treaty will not recognize a full right of legislative initiative to the EP and to the Council these institutions may only ask the Commission to submit a legislative proposal (art.225 of the TFEU for the EP).

However, until now no formal amendment depriving the AI Liability proposal of its raison d’être have been tabled by the EP or by the Council so that the co-legislator may well continue to work on the current legislative proposal. Needless to say that, in case of formal withdrawal of the text by the Commission the co-legislators or even only one of them may well bring that institution to the Court for infringement of the principle of conferral and of Institutional Balance.

(continue)

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

by Emilio DE CAPITANI *[1]

Foreword

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

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

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

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

Openness and Transparency as corollaries of EU democracy

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

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

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

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

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

(EU) Preaching  “Transparency by design…

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

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

…but framing  “confidentiality by design”.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

How the EP risks slowly turning to intergovernamental practices

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

to European Parliament, Council and Commission documents.

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

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

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

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

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

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

turn upside down the EU openness and transparency principle.

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

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

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

European Law Blog : The Complex Landscape of Asylum Border Procedures in the new Asylum Procedures Regulation

25 JUNE 2024/ BY VASILIKI APATZIDOU

Blogpost 31/2024

At the heart of the negotiations for the New Pact on Migration and Asylum lies one of its most contentious elements: the regulation of border procedures. During the Council negotiations, the Asylum Procedures Regulation (APR) underwent significant modifications, particularly in the provisions that regulate border procedures, to incorporate perspectives from all Member States. Despite expectations for improvements during trialogues with the Parliament, the final outcome in December 2023 witnessed a step back from many of the anticipated safeguards.

Border procedures are perceived in the agreed text as an important ‘migration management tool’ and as a responsibility mechanism, mandating the examination of asylum applications at the borders, while asylum seekers will be subject to the ‘non-entry’ fiction. This blogpost aims to examine the complex landscape of border procedures based on the final text of the APR.

The Arduous Negotiations on Border Procedures

The EU Pact placed a paramount emphasis on the EU’s external borders, introducing a  ‘seamless link’ between all stages of the pre-entry phase, from the screening procedure, to an expanded use of asylum border procedures and where applicable, return border procedures for rejected asylum seekers. 

Border procedures involve the swift processing of asylum claims at border locations, while third-country national are subject to the ‘non-entry’ fiction. The main reason for their implementation is to guarantee the first-entry states’ responsibility by keeping asylum seekers at the external borders and preventing secondary movements within the EU.

Despite being initially regulated in only two provisions within the amended proposal for an APR (Article 41 and 41a APR), the final text includes twelve provisions on  border procedures (Article 43-54 APR), highlighting their contentious nature during the negotiations and the difficulty of Member States in reaching an agreement.

The most difficult and divisive question during the negotiations was whether border procedures should be obligatory or voluntary.   On the one hand, central EU countries sought to make the use of border procedures obligatory to prevent  ‘secondary’ movements of asylum seekers and manage migration at the EU external borders.

On the other hand, southern EU states opposed this, given that their widespread implementation would place a further strain on their resources and overburden their capacities for processing asylum claims. In addition, they argued that whether or not to apply border procedures, as well as the categories of persons to whom these should apply, should remain a prerogative of Member States, that are best placed to decide if a procedure is feasible given their specific circumstances.

Despite years of negotiations, with the APR text being discussed since 2016, the outcome is an extended regulation of border procedures, rendering them mandatory in some cases.

This prolonged negotiation process has resulted in a complex framework with many provisions designed to accommodate the diverse interests of all involved Member States.

The scope of application of border procedures

Despite challenging negotiations on border procedures, the agreed text extends their scope of application (Articles 44-45 APR). Firstly, it renders their use mandatory when certain acceleration grounds are met.

The mandatory application of border procedures is stipulated for those that have a low probability of international protection (20%) according to Union-wide average Eurostat data (Article 45 APR), those who pose potential threats to national security or public order and cases involving applicants who mislead the authorities. Regarding the last category of applicants, the APR text foresees that ‘after having been provided with a full opportunity to show good cause‘, those considered to have intentionally misled the authorities are subject to mandatory border procedures. While this wording aims to guard against arbitrary practices, there still remains a risk of wide interpretation by authorities.

Regarding the first reason, and according to the Council, an effective and meaningful border procedure should ensure that the number of persons that would actually be channeled to the border procedure remains high, and despite proposals from the Parliament to reduce the threshold  to 10%, the recognition rate of 20% remained in the final text with a corrective mechanism introduced during the negotiations with the Parliament (Article 45 and Article 42j APR).

The corrective mechanism allows authorities to deviate from this threshold if there has been a significant change in the applicant’s country of origin since the publication of the relevant Eurostat data. It also allows states to take into account significant differences between first-instance decisions and final decisions (appeals).

For example, if there is a notable discrepancy indicating that many initial rejections are overturned on appeal, this could be a factor in deciding not to apply the border procedure to an applicant from that country. However, this practice introduces a nationality-based criterion for the application of border procedures which may lead to discrimination, and it also raises important issues as there are significant discrepancies in the recognition rates of asylum seekers across European countries.

In addition to these obligatory cases, border procedures may be used at the discretion of authorities to examine the merits or the inadmissibility of an application under certain conditions. Specifically, this discretion applies if any of the circumstances listed in Article 42(1), points (a) to (g) and (j), and Article 42(3), point (b), are met, as well as when there is an inadmissibility ground in accordance with Article 38. This discretionary use could impede harmonization across the EU due to varying interpretations and implementations by different Member States.

Moreover, the regulation broadens the personal scope of border procedures, allowing their application following the screening, and when an application is made a) at an external border crossing point or transit zone (this was also foreseen in the APD), but also b) following apprehension in connection with an unauthorized border crossing of the external border, which means that individuals who are already within the territory of a Member State could be subjected to border procedures, and finally c) following disembarkation after a search and rescue operation (Article 43 APR).

Another important aspect discussed during the negotiations was the application of border procedures to unaccompanied minors with an agreement on excluding them from border procedures always, except for national security grounds (Article 53 (1) APR). Families with minors will be included in border procedures with additional safeguards: de-prioritisation of their examination and always reside in facilities that comply with the Reception Conditions Directive (RCD). Specifically, Article 44 (3) APR foresees that where the number of applicants exceeds the number referred to in the provision that regulates the member State’s adequate capacity level, priority shall be given to applications of certain third-country nationals that are not minor applicants and their family members. To the contrary, following admission to a border procedure, priority shall be given to the examination of the applications of minor applicants and their family members.

Finally, vulnerable individuals will be exempted from border procedures only when it is assessed that the ‘necessary support’ cannot be provided to applicants with special reception or procedural needs (Article 53 (2) APR).

The concept of adequate capacity

In exchange for increased responsibility of frontline states through the wide implementation of border procedures, the APR introduces the concept of ‘adequate capacity’, with two distinct levels identified: the Union-level which is set at 30,000 (Article 46 APR), though the derivation of this figure remains unexplained, and the individual Member State level which is calculated based on numerical factors: by multiplying the number set out in Article 46 (Union-level adequate capacity) by the sum of irregular crossings of the external border, arrivals following search and rescue operations and refusals of entry at the external border in the Member State concerned during the previous three years and dividing the result thereby obtained by the sum of irregular crossings of the external border, arrivals following search and rescue operations and refusals of entry at the external border in the Union as a whole during the same period according to the latest available Frontex and Eurostat data (Article 47 APR).

Only applications subject to the border procedure should be calculated towards reaching the adequate capacity.

Once ‘adequate capacity’ is reached (Article 48), the Commission will be notified and it will have to examine if the state is identified as being under a migratory pressure according to the Asylum and Migration Management Regulation. In such case, states will be able to derogate from the provisions that mandate the use of border procedures, and e.g. choose to keep asylum seekers at the borders and refer them in regular asylum procedures or transfer them within the territory and once again implement regular asylum procedures.

However, such authorisation will not exempt the Member State from the obligation to examine in the border procedure applications made by applicants that are considered as a danger to national security or public order.

The introduction of the concept of ‘adequate capacity’ was designed to render the prescribed use of border procedures cognizant to the needs and migratory pressures on first-entry states and in this way to ensure their buy in. However, the final provisions demonstrate that the calculation of ‘adequate capacity’ is rather complex, while it relies solely on numerical data, overlooking the specific characteristics of arrivals or the actual capacity of first-entry countries.

It seems that, in essense, this concept was added to ensure ‘predictability‘ by making sure that southern states will fulfill their responsibilities by examining a minimum number of applications through border procedures. In addition, this will in practice incentivise Member States to use even more border procedures to reach their ‘adequate capacity’, in detention or other designated spaces created for these procedures, turning the process into a ‘lottery’ largely dependent on the timing of arrivals.

If a person arrives before the ‘adequate capacity’ is reached, they will most probably be subjected to border procedures. Conversely, if they are fortunate enough to arrive once the capacity is reached, their cases will be examined under a regular asylum procedure with more safeguards. Finally, this approach is also potentially hindering harmonisation by prioritising national-level exception measures over solidarity and relocation in times of pressure. 

Rights at Risk

Although border procedures were initially implemented exceptionally in some Member States to address the 2015-2016 refugee ‘crisis,’ this practice has become the ‘norm’ in certain Member States, such as Greece and Italy, where they are routinely applied, even in situations with no notable increase in arrivals. It is expected that their use will rise as border procedures become mandatory for certain categories of asylum seekers.

Border procedures have been described as sub-standard procedures, due to the fast processing of asylum claims, the locations where these procedures are implemented, and the legal fiction of ‘non-entry’, a concept which means that asylum seekers will be considered as not entered into the territory while their claim will be examined in a border procedure. This provision is also maintained in the final text (Article 43 (2) APR).

The legislation creates therefore avenues for disentangling the relation between physical presence of an asylum seeker on the territory and the legal presence.

As scholars have pointed out, this legal fiction, justifies the creation of  ‘liminal’ space or ‘anomalous’ zones where common legal rules do not fully apply. Notably, Article 54 APR, allows their implementation within the territory, justifying the application of the ‘non-entry’ fiction even in locations far away from the actual territorial border. By shifting the border inwards, entire areas are treated as ‘borders’, and asylum seekers in these locations are subjected to a different, often more restrictive, set of rights compared to those who apply for asylum through regular in-country procedures. This practice can imperil several key rights of asylum seekers as it will be described below.

Towards more detention

During border procedures, asylum seekers should be kept at or close to the borders, leading to increased and systematic detention or other area-based restrictions. Within the APR, detention is not prescribed clearly, but it is not precluded either (Article 54 APR). The legal basis for imposing detention during border procedures can be found however in the agreed Reception Conditions Directive, where it is envisaged that detention may be imposed ‘in order to decide, in the context of a procedure, on the applicant’s right to enter the territory’ (Article 8c RCD).

To what extent policies of non-entry undermine the right to liberty and freedom of movement is a matter raised many times in the case law of the CJEU, and in some cases of the ECtHR where the case-law on detention to prevent unauthorized entry (Article 5 (1) (f)) seems to be rather controversial. What is important to note though is that the ‘non-entry’ fiction in conjunction with the absence of clarifying the reception conditions (Article 54 APR) applicable in border procedures may lead to increased and routinised detention practices in EU external states.

The issue of legal aid

The question of free legal assistance in border procedures has been another area of contention during the negotiations. While the European Parliament stressed its importance, the Member States were against expanding it to the first instance procedure due to financial and administrative constraints. A compromise solution was agreed offering free legal counseling for the administrative procedure (interview), excluding representation and allowing flexibility for Member States (Article 16 APR).

As outlined in the new APR (Article 16), legal counseling includes guidance and explanations of the administrative procedure, including information on rights and obligations during the process. Additionally, the legal counsellor will offer assistance with lodging the application as well as guidance on the different examination procedures and the reasons for their application e.g. admissibility rules or when someone is referred to accelerated or border procedures.

However, this form of assistance does not extend to escorting individuals during the asylum interview, preparing them for the interview, or submitting legal memos at the first instance procedure. In contrast, legal assistance and representation which is applicable in the appeal procedure (Article 17 APR) goes further, including the preparation of procedural documents and active participation in the hearing.

Despite the supposed extension of legal aid, highlighted in a dedicated section (Section III), its provision remains in the form of counseling, marking a notable step back from the Parliament’s initial proposal. Furthermore, in practice, limited access both to counselling and legal assistance may occur due to the locations that border procedures take place such as detention or remote locations near the borders. This situation underscores potential challenges in ensuring effective legal support within the border procedures.

The right to asylum and protection from refoulement

Other rights that may be undermined in the context of border procedures are the right to asylum and the protection from refoulement.  These rights may be compromised primarily due to the limited procedural safeguards applicable in border procedures, such as the very short time-limits (as stipulated in Article 51 APR, border procedure shall be as short as possible and a maximum of 12 weeks) combined with the limited access to legal assistance due to the locations where border procedures are taking place (detention or de facto detention) which may significantly impact the overall quality of the asylum procedure.

In addition, implementing border procedures to vulnerable applicants raises concerns that their special procedural needs may not be appropriately addressed. These individuals shall be provided with the necessary support to enable them to benefit from their rights. However, the notion of ‘necessary support’ yet remains undefined in the agreed text. It seems that it is mainly related to the special reception needs and the locations where the border procedures are implemented, assuming that border procedures are appropriate for applicants with special procedural needs unless ‘the necessary support cannot be provided in the locations referred to in Article 54’.

Failure to provide special procedural guarantees to asylum seekers who require them directly impacts the quality and effectiveness of the asylum procedure.

Finally, the right to appeal is modified in the APR. According to Article 68 APR, the appeal will not have suspensive effect when the case is examined under border procedures. Some guarantees should nevertheless be preserved in this case, such as the possibility for the applicant to request a right to remain within a time-limit of at least 5 days and the provision of interpretation, information and free legal assistance (Article 68 (3) a (ii) in conjunction with Article 68 (5) APR). Even though it is positive to at least ensure that these guarantees are applicable in border procedures, the time-limit of 5 days to prepare and lodge an appeal and an application to request the right to remain may not be enough to ensure an effective remedy in practice.

Concluding Observations

The extensive regulation of border procedures in the final APR underscores their role as a crucial ‘migration management tool’. The persistence, during negotiations, to uphold border procedures at any cost resulted in intricate and complex provisions, emphasising their importance in ensuring responsibility of first-entry states. However, by containing asylum seekers at external borders, the EU risks exacerbating existing deficiencies, leading to overcrowd reception and detention centres and consequently violation of human rights. This directly impacts both asylum seekers, that will have to navigate asylum procedures with limited safeguards, and states grappling with overburdened capacities.

As these rules take shape, a focus on rights-based interpretations and increased judicial oversight and monitoring are essential to safeguard the principles of fairness and respect for human rights at the borders.

Verfassungsblog : Why an EU Country under the Surveillance Procedure (Article 7.1 TEU) Should not Chair the Council Presidency

by Virgilio DASTOLI and Emilio DE CAPITANI

In accordance with the Council Decision on the exercise of the Presidency of the Council of the European Union,1) from July 1 of this year the office is to be held by Hungary. This occasion will mark the first time that the Presidency will have been held by a Member State that has been subject to the “surveillance” procedure in Article 7(1) of the Treaty on European Union, having been launched by the European Parliament in September 2018.

As the Court of Justice has recognised,2) by adopting its Resolution, the EP has already triggered the legal consequences foreseen by Protocol 24.

‘[A]s long as the Council or the European Council has not taken a decision in respect of the Member State concerned, a Member State may, by way of derogation from the general rule laid down in that single article, take into consideration or declare admissible to be examined any asylum application lodged by a national of the Member State that is the subject of that procedure.’

Simply put, it means that Hungary is no longer to be considered a “safe country”, and if it should occur, a Hungarian may request asylum in another EU Country. In other words, the general presumption that fundamental rights and values are respected in that Member State is no longer absolute, and precaution should be taken when fundamental rights of individuals are concerned (as is the case in relation to the European Arrest Warrant). In a more general sense, and in the relations with other Member States or EU Institutions, the principle of mutual trust that is the bedrock of intra-EU cooperation is not “blind trust” and cannot be taken for granted.

Within this perspective, it would be sensible to assume that a Member State that does not enjoy the full confidence of the other Member States should not be responsible for a key coordinating role, as is the case when holding the Council Presidency.  As a matter of fact, holding the Council Presidency is anything but a protocolar task. It plans, coordinates and chairs meetings of the Council and most of the Council’s preparatory bodies, i.e. working parties and committees. It suggests compromise solutions with a view to reaching an agreement between the Members of the Council (‘honest broker’). The Presidency should be, by definition, neutral and impartial. It is the moderator for discussions and cannot, therefore, favour either its own preferences or those of a particular Member State.

But holding the Council Presidency also has an essential interinstitutional dimension, because it is the Presidency that represents the Council in its relations with the European Parliament (EP) and negotiates on behalf of the Council to reach agreements on legislative files by protecting and promoting together the EU values that Hungary is openly challenging.

It is not surprising that the European Parliament (which originally triggered the Article 7(1) TEU procedure against Hungary) already one year ago3) sent a Resolution to the Council and the Commission underlining

‘the important role of the presidency of the Council in driving forward the Council’s work on EU legislation, ensuring the continuity of the EU agenda and representing the Council in relations with the other EU institutions” but also questioning “…how Hungary will be able to credibly fulfil this task in 2024, in view of its non-compliance with EU law and the values enshrined in Article 2 TEU, as well as the principle of sincere cooperation’.

Surprisingly, neither the Commission nor the Council have to date furnished any response. Perhaps the reason was that these two institutions were expecting a positive development prior to the end of the legislative term, such as apparently occurred with Poland, (the only other European Country subjected to the Article 7(1) TEU procedure). Yet, unfortunately, in the case of Hungary, the situation has in the meantime rather worsened, to the extent that the European Parliament adopted two new Resolutions, the first on January 18 of this year4) and the second on April 24.5)

These highly detailed texts summarise and update the already formidable list of all Hungarian infringements of the rule of law and of the Budgetary Conditionality Mechanism. The most recent text declares in even stronger words the same concerns as to the suitability of Hungary as President of the Council and declares the EP ‘readiness to take measures to defend the credibility of the Union with respect to the values enshrined in Article 2 TEU as regards cooperation with the Council’.

It remains to be seen if the two most recent EP texts will once again fall on deaf ears on the Council side. However, from a constitutional point of view, the assessment of the EP appears well founded and should have received much greater attention from the Council, notably because by maintaining the Hungarian Presidency the Council is threatening the smooth functioning of the EU in its essential legislative and budgetary functions as envisaged in the post-Lisbon Treaty framework: these functions now fall within the joint responsibility of the European Parliament and of the Council (Article 14(1) and 16(1) TEU), and this co-responsibility requires a great deal more than loyal cooperation between the two institutions (Article 13 TEU).

It would now be both prudent and sensible for the Council to modify its 2016 Decision, by qualified majority, as already provided for in legal doctrine,6)  by foreseeing explicitly that Council Presidency should not be held by a Country under art. 7 Procedure. As a consequence the Hungarian Presidency will be delayed until the Article 7(1) TEU surveillance procedure will have been successfully concluded. It has to be noted that a postponement should not be considered as a sanction against Hungary, but rather a simple precautionary measure to preserve the smooth functioning of the European Union and to avoid a period of interinstitutional bickering between the EU co-legislators, particularly at such a decisive moment for the EU legislature both from an internal and international point of view. Moreover, it wouldn’t be the first time that the Council Presidency has been postponed, and then for much less serious reasons.  As rightly noted by the Meijers Committee,

‘changes in the previously agreed order of Presidencies have not been uncommon.  They occurred on six occasions, for different reasons: three times after the accession of new Member States, in 1995, in 2005 and in 2007; in 2002 at the request of Germany because general elections were scheduled during its upcoming Presidency; in 2009 because of the Treaty of Lisbon; and in 2016 after accession of Croatia and the Brexit Referendum with regard to the UK Presidency, which was scheduled to start in 11 months’ time, as of July 2017. Therefore, it is established legal and political practice to reconsider the order of the Presidency in case of relevant circumstances, even if relatively close to the date that the rotation is scheduled to start’.

It is finally also worth noting that an urgent appeal to postpone the Hungarian Presidency has very recently been submitted to the EU Institutions by the European Movement (IT, ES, FR branches).7) The European Commission President, Ursula Von Der Leyen, has shared it with the competent Members of the College, notably with Vice-President Maroš Šefčovič, who is responsible for interinstitutional relations. The time period until July 1 is rapidly diminishing, and on June 18 the General Affairs Council will decide on a reasoned proposal from the Commission on closing the Article 7(1) TEU procedure against Poland.8) Will it also be the occasion to discuss the issue of the incoming Hungarian Presidency? If so the point could also be submitted for final decision at the European Council Meeting on June 27/28 under the chapter on institutional issues (as the general responsibility on the issue of Council Presidencies falls under the COEUR competence – Article 236 TFEU).

We, the undersigned scholars, experts and citizens, support this call for the postponement of the Hungarian Presidency.

Those who wish to support this initiative can send their contact details here.

Prof. Gábor Halmai, European University Institute, Florence

Prof. Sergio Fabbrini, Luiss University, Rome

Prof. Petra Bard, Radboud University

Prof. Tomacz Tadeus Koncewicz, University of Gdańsk, Department of European and Comparative Law

Prof. Laurent Pech, University College Dublin

Prof. Paul Craig, University of Oxford

Prof. Kim Lane Scheppele, Princeton University

Prof. Catherine Dupré, University of Exeter Law School

Prof. Maria Bergström, Uppsala University, Faculty of Law

Prof. Marie-Laure Basilien-Gainche University Jean Moulin Lyon 3, Institut Universitaire de France

Prof. Henri de Waele, Radboud University Nijmegen and University of Antwerp

Prof. Elspeth Guild, Queen Mary University of London

Prof. Olivier Costa, CNRS, CEVIPOF, Sciences Po, Paris

Dr. Marta Lasek-Markey, Trinity College Dublin

Prof. Stephen Skinner, University of Exeter

Dr. Christine Bicknell, Human Rights and Democracy Forum, University of Exeter Law School

Dr. Carlotta Garofalo, University of Graz

Ounia N. Doukoure, Paris 1 University, Institut Convergences Migrations ; Lille Catholic University

Prof. Marc Valéri, University of Exeter

Prof. Federico Fabbrini, Dublin City University

Prof. Dominique Custos, Caen Normandie University

Prof. Dino G. Rinoldi, Catholic University of the Sacred Heart of Milan

Prof. Nicoletta Parisi, Catholic University of the Sacred Heart of Milan

Prof. Douwe Korff, University of Oxford

Prof. Susanna Cafaro, University of Salento

Prof. Laurence Burgorgue-Larsen, Paris 1 University

Prof. Fred Constant, University of the Antilles

Prof. Jean-Manuel Larralde, Caen Normandie University

Prof. Maria Castillo, University Caen Normandie University

Prof. Maciej Bernatt, University of Warsaw

Prof. Yves Poullet, University of Namur

Prof. Antonio Da Re, University of Padova

Prof. Luciano Corradini, Roma Tre University

Prof. Massimiliano Guderzo, University of Siena

Prof. Massimo Fragola, Università della Calabria

This is a pre-peer reviewed version of an article submitted for publication in the European Law Journal.

References

↑1Council Decision (EU) 2016/1316 of 26 July 2016 amending Decision 2009/908/EU (OJ L 208, 2.8.2016, p. 42) : https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A32016D1316.
↑2See paras. 39 and 40 of Case C-650/18, Ungary v. European Parliament, June 3 2021, EU:C:2021:426:‘39      In the present case, it should be noted that the adoption of the contested resolution initiates the procedure laid down in Article 7(1) TEU. Under point (b) of the sole article of Protocol (No 24), once that procedure is initiated and as long as the Council or the European Council has not taken a decision in respect of the Member State concerned, a Member State may, by way of derogation from the general rule laid down in that single article, take into consideration or declare admissible to be examined any asylum application lodged by a national of the Member State that is the subject of that procedure.40      It follows that the adoption of the contested resolution has the immediate effect of lifting the prohibition, which is in principle imposed on the Member States, on taking into consideration or declaring admissible to be examined an asylum application made by a Hungarian national. That resolution thus changes, in relations between Member States, the position of Hungary in the field of asylum.’
↑3European Parliament resolution of 1 June 2023 on the breaches of the Rule of Law and fundamental rights in Hungary and frozen EU funds (2023/2691 RSP)OJ C, C/2023/1223, 21.12.2023, ELI: http://data.europa.eu/eli/C/2023/1223/oj
↑4See point 8 of the Resolution “Situation in Hungary and frozen EU funds”  questioning again “..if the Hungarian Government will be able to credibly fulfil this task in 2024, in view of its non-compliance with EU law and the values enshrined in Article 2 TEU, as well as the principle of sincere cooperation;” and  “asking the Council to find proper solutions to mitigate these risks as soon as possible”,  https://www.europarl.europa.eu/doceo/document/TA-9-2024-0053_EN.html.
↑5See Resolution Ongoing hearings under Article 7(1) TEU regarding Hungary to strengthen Rule of Law and its budgetary implications where it regretted ‘that the Council has not yet found a solution to this problem, and that representatives of the Hungarian Government would chair the Council’s meetings concerning democracy, the rule of law and fundamental rights, including meetings related to protecting the EU’s financial interests and budget; underscores that this challenge comes at the crucial moment of the European elections and the formation of the Commission; deplores the failure to find a solution and reiterates its readiness to take measures to defend the credibility of the Union with respect to the values enshrined in Article 2 TEU as regards cooperation with the Council;’  https://www.europarl.europa.eu/doceo/document/TA-9-2024-0367_EN.html.
↑6See the Mejiers Committee “Comment on the exercise and order of the Presidency of the Council of the EU”, published on 19 May 2023, https://www.commissie-meijers.nl/comment/comment-on-the-exercise-and-order-of-the-presidency-of-the-council-of-the-eu/.
↑7Available at:  https://www.movimentoeuropeo.it/images/documenti/VIKTOR_ORB%C3%81N_MUST_NOT_CHAIR_THE_COUNCIL_OF_THE_EUROPEAN_UNION_MEIT-FR-ES.pdf.
↑8Available at: https://data.consilium.europa.eu/doc/document/ST-10716-2024-INIT/en/pdf.