Institutional balance and the negotiation of international agreements

Andrés Delgado Casteleiro, Lecturer at Durham Law School

Introduction

In last Thursday’s judgment on the Case C-425/13, Commission v Council, the CJEU was asked to determine the scope of the Council’s powers to issue negotiating directives to the Commission and the role of the special committee overseeing the Commission during the negotiations with Australia concerning the linking of its emissions trading system with the EU.  The case concerns the division of powers between the Council and the Commission and the extent to which the former can exercise some kind of control over how the latter is conducting international negotiations.

Background

Between 2012 and 2013, the Commission negotiated an agreement with Switzerland to link their emissions trading scheme to the EU’s. To be better informed of the how the negotiations were being conducted, the Council set up a special committee pursuant to Article 218 (4) TFEU (the Treaty clause setting out rules on how the EU negotiates and concludes international treaties). However, the Council was not completely satisfied on how the Commission consulted this committee during the negotiations of the agreement. Certain Member States argued that the information provided by the Commission was scant. In fact, the Commission referred the Council to a website of the Swiss Federal Office for the Environment when asked to provide an update on how negotiations were going.

In light of what the Council regarded as the Commission’s failure to effectively consult the special committee, when the Council adopted the negotiating directives for the conclusion of a similar agreement with Australia, it envisaged a greater involvement of the Council during the negotiations through the special committee. The Decision of the Council of the European Union of 13 May 2013 authorizing the opening of negotiations on linking the EU emissions trading scheme with an emissions trading system in Australia (Council Decision) establishes in the second sentence of Article 2 that “the Commission shall report in writing to the Council on the outcome of the negotiations after each negotiating session and, in any event, at least quarterly.” Moreover, Article 1(2) of the Decision states that the Commission shall conduct the negotiations in accordance with the very detailed negotiating directives and procedures set out in the Annex to the Council Decision. The annex provides, among other things, that detailed negotiating positions of the Union shall be established within the special committee.

Inasmuch as the Council Decision restricted the Commission’s scope of maneuver when negotiating with Australia, the Commission brought an action against it. The Commission’s plea boils down to two claims. First, the obligation to report in writing after each negotiation session or at least quarterly constitutes a breach of Article 13(2) TEU (role of the institutions), Article 218(2) to (4) TFEU (Treaty negotiation process), Article 295 TFEU (possibility to conclude interinstitutional arrangements) and the principle of institutional balance. Secondly, in so far as it provides that ‘detailed negotiating positions of the Union shall be established’ by the special committee or the Council, the Commission alleges a breach of Article 13(2) TEU, Article 218 TFEU and the principle of institutional balance.

The Judgment of the CJEU

In relation to the Commission’s first claim, the Court began by recalling the constitutional significance of Article 218 TFEU insofar as it confers specific powers on the EU institutions with a view to establishing a balance between those institutions during the treaty-making procedure. In practice, Article 218 TFEU gives different roles to each institution. Even though the Treaties have decided that the Commission is to act as the negotiator and to ensure the EU’s external representation (in all those areas not covered by the CFSP, see article 17 (1) TEU), the Council is nonetheless entrusted with the power to sign and conclude the agreement. According to the Court, in the context of those functions, the Council and the Commission are required to comply with the second sentence of Article 13(2) TEU, which states, “the institutions shall practice mutual sincere cooperation.” Moreover, that cooperation becomes of crucial importance for EU action at international level, as such action triggers a closely circumscribed process of concerted action and consultation between the EU institutions (para 64).

It is in this context of concerted action and consultation that article 13 (2) TEU triggers that article 218 (4) TFEU comes in, as the consultation and cooperation between the Council and the Commission will be channeled through the special committee. Consequently, what do the obligations of cooperation and consultation amount to? For the Court, those obligations mean that the Commission must provide the special committee with all the information necessary for it to monitor the progress of the negotiations, such as, in particular, the general aims announced and the positions taken by the other parties throughout the negotiations. It is only in this way that the special committee is in a position to formulate opinions and advice relating to the negotiations (para 66).

In any event, the Court also reminds the Commission that regardless of whether there is a special committee in place, it can be required to provide that information to the Council as well. Given the role of the Council in the treaty-making procedure, it should possess all the necessary information to have clear knowledge of the ongoing negotiations concerning the preparation of an agreement that will be submitted for its approval. Consequently, the Court concludes that an obligation such as the one enshrined in Article 2 of the Council decision which sets out the Commission’s obligation to report in writing to the Council on the outcome of the negotiations after each negotiating session and, in any event, at least quarterly’, is in conformity with Article 218(2) and (4) TFEU (para 68).

Furthermore, the Court considers that an obligation of information as the one recognized in Article 2 of the Council decision does not violate Article 13 (2) TFEU, insofar as the Council’s powers to lay down such an obligation of information have been exercised with due regard to the Commission’s power to negotiate international agreements (para 70).

Finally, in relation to Article 295 TFEU concerning the obligation to consult each other and by common agreement make arrangements for their cooperation, the Court understands that this obligation to conclude interinstitutional arrangements does not prevent the Council from being able to set out, in a decision authorizing negotiation, arrangements relating to the information that the Commission must provide to it periodically throughout the negotiating process (para 72). Hence, the Court dismissed the Commission’s first claim.

In relation to the second claim, concerning the powers of the special committee to establish detailed negotiating positions of the Union; the Court conducts its analysis in two stages. First, it examines whether the Council has the power to set up procedures pursuant to the first part of Article 218 (4) TFEU, like the one enshrined in the annex of the Council decision. Secondly, it focuses on the specific procedure set out in the annex to the Council decision and more specifically the powers that were conferred upon the special committee.

In the analysis of whether the Council has the power to set up a procedure like the one drawn up in the annex of the Council Decision, the Court examines the mandate of the special committee. In this regard, it considers that the special committee designated by the Council has the mandate to follow the conduct of the negotiations and guide the negotiator (para 76). In addition, the Court argues that since the Council is empowered to designate a special committee and the Commission is required to conduct the negotiations “in consultation with” that committee, the Commission must inform the committee of all aspects of the negotiations in order that it may be properly consulted (para 77). Therefore, Article 218(4) TFEU generally allows the Council to set out procedural arrangements governing the process for the provision of information, for communication and for consultation between the special committee and the Commission, as such rules meet the objective of ensuring proper cooperation at the internal level (para 78).

However, when analyzing the minutiae of the annex to the Council Decision, the CJEU considered that certain parts of that annex were not designed to enhance the transfer of information and the consultation between the special committee and the Commission. Instead, it argued that the possibility for the special committee to establish detailed negotiating positions as envisaged in the second sentence of the first paragraph of the Annex seek to bind the Commission in contravention of article 218 (4) TFEU, Article 13 (2) TEU and the principle of institutional balance. For the Court, the power to establish detailed negotiating procedures goes beyond the consultative function assigned to the special committee. The annex has the effect of imposing negotiating positions on the negotiator, i.e. the Commission (para 90). Therefore, the Court accepted the Commission’ second claim and partially annulled the Council Decision.

Comment

To a certain extent, the EU’s treaty-making procedure constitutes an example of the Principal – Agent problem. The Council (Principal) authorizes the Commission (Agent) to negotiate on its behalf, yet it does not completely trust the Commission. The Court understands that it is the information asymmetry that fuels the Council’s lack of trust on the Commission’s role as a negotiator. Consequently, anything in the Council decision that might exceed the obligation to inform and consult would be a breach of the principle of institutional balance, regardless of how badly the Commission had previously complied with that obligation.

In this regard, a parallelism with Case C-658/12 European Parliament v Council (Mauritius, AKA Somali Pirates) (discussed here) could be drawn. In that case the Court understood that by not informing the European Parliament (EP) immediately and fully informed concerning the conclusion of an extradition agreement with Mauritius, the Council had breached Article 218 (10) TFEU. Inasmuch as that provision aimed as ensuring that the EP could effectively exercise its powers in relation to the conclusion of international agreements, the Council had breached the principle of institutional balance. In the present case, the Court understands that an obligation to inform the Council on on-going negotiations is an expression of that principle. The Council also needs to be immediately and fully informed throughout the negotiations of an agreement it will end up concluding.

Finally, in the last couple of years we have witnessed an increase in the litigation between the different EU institutions concerning the exercise of their powers and the delicate balance between them in the field of EU External Relations. It appears that the EU institutions are still learning how to live with each other after the Lisbon Reform. Yet within this learning process, it appears, that the EU institutions seem to be moving away from cooperation arrangements and are pushing for a rigid interpretation of their respective powers. This is clearly seen in how the principle of institutional balance figures prominently in the present case or in other cases such as Mauritius Island, Case C-409/13 (Council v Commission) concerning the Commission’s right to withdraw proposals (discussed here), or Case C-28/12, Commission v Council, (US Air Transport Agreement). While in principle this is not per se a problem, it could signal that an increasing institutional divide on the way the to conduct the EU’s external representation after the Lisbon Treaty is emerging.

Barnard & Peers: chapter 24

Photo credit: carbonsolutionsglobal.com

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EU visa policy: A dash for growth?

Steve Peers

Historically, EU visa policy has principally concerned itself with controlling the risk of irregular migration and possible threats to security, balanced against EU foreign policy objectives. But in the last few years that policy has increasingly come to take account of economic growth (most notably as regards the EU tourism industry). This reorientation was launched in a Commission communication of 2012, and is already reflected in the last set of changes to the EU’s visa ‘whitelist’, which now includes trade and investment among the criteria for liberalising visas. Indeed those most recent amendments applied this policy by moving Peru and Colombia onto the visa waiver whitelist in return for signing a trade deal with the EU.

Will this policy also impact upon the EU’s visa code, which sets out the detailed rules for visa applications? Last year, the Commission proposed an overhaul of the code, alongside a parallel proposal for a ‘touring visa’ for those who wanted to stay for more than three months in the Schengen area (but for no more than three months in any one Schengen State). I have previously examined two specific issues relating to the visa code proposal: the position of EU citizens’ family members, and the possibility of developing the (implied) rules on humanitarian visas. The following analysis completes my comments (for now). It’s based on my ongoing work on the fourth edition of EU Justice and Home Affairs Law.

Visa code proposal

The proposal to overhaul the visa code keeps the basic structure of the code intact, but suggests a number of significant amendments. It doesn’t affect the issue of who does or doesn’t need a visa to visit the EU in the first place. The code only applies to States fully applying the Schengen system: 22 EU Member States (excluding the UK, Ireland, Croatia, Cyprus, Romania and Bulgaria, although the latter four States must apply it someday when they join Schengen), and four Schengen associates (Norway, Iceland, Switzerland and Liechtenstein).

It should be recalled that the CJEU has already ruled, in its judgment in Koushkaki(discussed here) that anyone who meets the criteria to obtain a Schengen visa set out in the visa code is entitled to one. The proposal wouldn’t change that case law either.

There’s a long list of proposed amendments, but the main aim of the proposal is to simplify the process of applying for a Schengen visa. So the obligation to appear in person to apply in a consulate would be dropped, except for when the applicant has to be fingerprinted for registration in the Visa Information System database (once every five years). Already only 30% of applicants appear in person, since most countries have outsourced the collection of visa application information to private companies. There would be revised rules determining which Member State consulate is responsible for each application, to make sure that each applicant will be able to apply for a visa without having to travel to a consulate in another country. Applicants could apply for a visa up to six months in advance (at present, the rules only allow them to apply up to three months in advance).

Checks on whether applicants have accommodation, means of subsistence and an intention to return would be relaxed if they were regular travellers with a ‘clean’ immigration record (this could be checked in the Visa Information System). Applicants would no longer have to obtain travel medical insurance, and Member States would have to make decisions more quickly. The rules on waiving the €60 visa application fee would become uniform, so that (for instance) there would be no fee for children under 18, researchers or diplomats. Regular travellers with a clean record would have a right to a multiple-entry visa, with a three year validity rising to five years (currently such visas might be valid for as short as six months). There would also be more possibilities to apply for visas at borders; at the moment this is a highly exceptional rule which mainly applies only to seafarers.

The European Parliament has not yet issued a draft report on either proposal, but the Council was initially unenthusiastic. A report earlier this year indicated that many Member States questioned the liberal proposed rules on multiple-entry visas, as well as the abolition of the medical insurance requirement, because of ‘large numbers of medical bills left unpaid’. Many also objected to shorter time periods for the application, and for any facilitation for EU citizens’ family members. A few opposed the proposed additional mandatory fee waivers. More recently, a redraft of part of the text shows that Member States were willing to accept the multiple-entry visa rules if the criteria were stricter, as well as some (but not all) of the fee waivers, while retaining the medical insurance requirement.

Touring visa proposal

Currently a number of Member States have separate deals with third states such as the USA or New Zealand, allowing the nationals of those States to add together a series of short stays in individual Schengen States. But this only applies to a fairly limited number of third countries. The Commission proposal would simplify this system, replacing it with a common Schengen-wide approach. It estimates that while only about 120,000 people would benefit from this proposal, they are relatively ‘big spenders’, and so the net benefit to the EU economy would be €1 billion.

A touring visa could be issued for up to one year, with a possible further extension to two years. It would also apply to the citizens of countries like the USA who did not normally need short-term visas, since their planned total stay in the Schengen area with a touring visa would exceed the normal limit which would usually apply (90 days in a 180-day period). The EU’s Visa Information System database would apply, except that non-visa nationals like Americans would not have to give fingerprints. Also, the normal visa code rules (as amended by the separate proposals) would apply, with derogations. For instance, there would be no applications at borders; the first Member State the touring visa applicant would enter would be competent for the whole application; and sickness insurance would be required.

Again, the Council shows limited enthusiasm for this proposal, with some Member States preferring to maintain their bilateral deals and some concerned about security risks.

Comments

Overall, the Commission’s proposals have much to recommend them. They would ease the hassle that many would-be visitors face when they apply to come to the EU: cutting the costs for families and researchers, ensuring that an application could be made more easily, and streamlining the process considerably for frequent visitors who have shown that they can be trusted.

The proposals would benefit the EU economy, too, if the Commission’s estimates are correct. On top of the estimated €1 billion boost to the economy from the touring visa proposal, the accompanying Commission paper on visa policy suggests that the economic boost from the changes to the main visa code may be between €4 to €12 billion, with 80,000 jobs created.

So it is striking that these proposals have not impressed Member States much, with some suggesting that costs would increase from the visa code proposal. It is hard to see how the costs to consulates would increase overall, since there would be fewer visa applications to process in light of the longer validity of multiple-entry visas. However, it is possible that the cost would increase for some Member States individually, if those Member States become responsible (under the revised rules) for a greater share of visa applications. If any Member State has to incur considerable extra costs processing applications for applicants who won’t spend much time on its territory, it would be reasonable to consider compensating that Member State for those costs out of the EU budget, or arranging for bilateral compensation from the Member States which the applicants mainly go on to visit. As for unpaid medical bills, the Commission argues that such bills aren’t run up entirely by visitors with Schengen visas.

While that particular point about cost (to a different part of national budgets) may possibly have some merit, the objections against facilitating travel for EU citizens’ family members have none. Such facilitation is anyway an obligation under the EU citizens’Directive; all that the Commission’s proposals do is spell out what that entails, for the sake of legal certainty. And there can be no valid objection about irregular migration risks as regards core family members, given that EU citizens have the right to move to another Member State with those members of their family.

Time will tell, when the European Parliament develops its response to these proposals and begins to negotiate with the Council, whether the personal and economic benefits of the Commission’s proposal can survive the objections of national interior ministries. Much may depend on whether other ministries (foreign and economics) intervene to ensure that there is a broader perspective on what modern visa legislation should seek to do.

Barnard & Peers: chapter 26

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Accountability and Defenestration: The Dalli Saga

 

Dr Marios Costa, Lecturer in Law, City University

The en bloc resignation of the Santer Commission in 1999, against a background of allegations of fraud, maladministration and chronic mismanagement, is still topical, almost two decades afterwards. The European Commission has long been criticised for its administrative inadequacies and for the structural deficiencies in the Union’s system of accountability. There have been a number of reports depicting the Commission as an institution suffering from structural and political irregularities. 

On 11 May 2015 the General Court gave a significant judgment on a legal challenge brought by the former EU health Commissioner, Mr John Dalli, against the Commission. Dalli argued that he was forced to resign, by the then President of the Commission, Jose Manuel Barroso, without given enough time to consider his legal rights. Rather paradoxically, the General Court ruled that Mr Dalli resigned voluntarily and dismissed the action as inadmissible.  

This judgment raises broader constitutional implications. With all due respect, the ruling comes as a surprise and fails to clarify issues in relation to the powers that can be lawfully exercised by the President of the Commission when he loses confidence in any of the members of his Commission. This commentary examines the appropriateness of the recent ruling and concludes that the General Court lost a rather rare opportunity to rule on significant aspects of the Treaty powers granted upon the President of the Commission to sack the individual Commissioners and as a result also fails to remedy the accountability deficits of the Commission.

Facts of the Case

Dalli, the former Maltese Commissioner, was accused of soliciting bribery for the amount of 60 million euro in exchange of seeking to influence future legislative proposals in favour of the tobacco maker Swedish Match. Following a complaint to the Commission from the latter, the EU’s Anti-Fraud Office (OLAF) initiated investigations into the serious bribery allegations. On 15 October 2012, OLAF sent its final report to the Commission highlighting that there was no conclusive evidence that the Commissioner was involved in requesting money from the tobacco manufacturer. Yet, there was some evidence confirming that Mr Dalli was at least aware of the fact that a Maltese entrepreneur was using his name for the purposes of getting financial benefits from the tobacco maker.

On 16 October 2012, Mr Dalli had a meeting with the President of the Commission where he was presented with two already drafted press releases by the Commission: one stating that Mr Dalli decided to resign ‘voluntarily’, whilst the other stated that Barroso requested him to resign by exercising his prerogative powers under Article 17(6) TEU. During their meeting, the President showed the covering letter of the OLAF’s report to Mr Dalli. Nevertheless, access to the full report was refused on the grounds that it was confidential. Towards the end of their meeting, the President made it clear that he was going to force the applicant to resign if he was not going to do so voluntarily. The applicant asked for at least 24 hours to consult a lawyer and to find out what his legal rights were. Barroso said that he could give him no more than 30 minutes. Mr Dalli chose to resign.  

Mr Dalli challenged the legality of the oral decision taken by Barroso to terminate his term of office as the EU Health Commissioner. The Court declared the action as inadmissible since there was no clarity in relation to the act whose annulment was sought. The Court could not distinguish whether Mr Dalli was seeking the annulment of the decision of the President to remove him from office pursuant to Articles 245 and 247 TFEU or the allegedly oral decision taken by Barroso to request Mr Dalli’s resignation under Article 17(6) TEU. In consequence, the action was dismissed as inadmissible.

Legal Framework on the Commissioners’ Accountability

The Treaty is not silent on the issue of Commission accountability.. Article 245(1) TFEU provides that ‘[t]he Members of the Commission shall refrain from any action incompatible with their duties’. Additionally, Article 245(2) TFEU covers the case of compulsory retirement of an individual Commissioner. It reads as follows:

The Members of the Commission may not, during their term of office, engage in any other occupation, whether gainful or not. […] they shall give a solemn undertaking that, both during and after their term of office, they will respect the[ir] obligations […] in particular their duty to behave with integrity and discretion as regards the acceptance […] of certain appointments or benefits.  In the event of any breach of these obligations, the Court of Justice may, […], rule that the Member concerned be, according to the circumstances, either compulsory retired in accordance with Article 247 or deprived of his right to a pension or other benefits in its stead.

Moreover, Article 247 TFEU, which contains the only reference to the personal liability of Commissioners, reads as follows:

If any Member of the Commission no longer fulfils the conditions required for the performance of his duties or if he has been guilty of serious misconduct, the Court of Justice may, on application by the Council acting by a simple majority or the Commission, compulsorily retire him.

Furthermore, Article 234 TFEU provides for another kind of responsibility which the Commission owes to the European Parliament (EP), the ‘censure’ motion, as follows:

If a motion of censure on the activities of the Commission is tabled before it, the EP [and] … is carried by a two-thirds majority of votes cast, representing a majority of the component Members of the EP, the Members of the Commission shall resign as a body.

Finally, pursuant to Article 17(6) TEU, ‘[a] member of the Commission shall resign if the President so requests’.    

Comment and Analysis 

The Dalli judgment is a lost opportunity by the Court to clarify the abovementioned provisions as regards accountability of the EU Commissioners. Surely, any failure by an individual Commissioner to meet the standards described in in Article 245 TFEU, as set out above, can lead to a significant damage of the public image of the Commission.  This is not a hypothetical observation if one looks at the events leading to the collective resignation of the Santer Commission and to the closely related Cresson judgment (Case C-432/04, Commission v Cresson, ECLI identifier: EU:C:2006:455). Consequently, one can understand the concerns of President Barroso to avoid repetition of the discredited Santer Commission in 1999. Barroso’s commitment to high standards of administration is perfectly legitimate. What is not legitimate, however, is the process that led to the resignation of Mr Dalli. Notably, the Commission can only succeed if individual Commissioners operate impartially and independently, without influence from external sources, whether national governments or private individuals and without engaging privately with stakeholders to achieve financial benefits. This is the only way for the Commission to gain confidence from other institutions as well as Member States and citizens.

The Commissioners must meet the highest standards not just on external matters, but on their conduct inside the Commission.  They should perform their duties without division or external influence due to their high ranking and experience in the political arena.  In particular, as already explained above, Article 245(1) TFEU requires Commissioners to be free from any external influence. This point is vital if the Commission is to stay independent of Member States or individuals. But let’s assume for a while that there was enough evidence that Mr Dalli obtained pecuniary advantages from the Swedish tobacco maker. Assume further that the OLAF report concluded that the Commissioner needs to be held accountable for infringing his duty to behave with integrity pursuant to Article 245 TFEU. Is the procedure that forced him to resign acceptable and does it respect the rule of law? Or does it confirm an exercise of abusive behaviour by the President? Forcing an individual Commissioner to resign without allowing him to consult a lawyer and without given the opportunity to see the OLAF report constitutes a manifest violation of his basic right to respond to the evidence against him. Any employment lawyer will agree that this behaviour is a classic case of constructive dismissal. Surely this is not something that can be justified, particularly if this comes from the President of the Commission, an institution supposedly entrusted with the duty to guard and ensure that the rule of law is duly respected.  

Conclusion

Unfortunately, the General Court did not clarify the system of accountability for the Commissioners’ actions. The Court rather simply decided to dismiss the action as inadmissible. Taking into account the OLAF report and also the factual background of the previously decided Cresson case one can realise that a lot of irregularities can take place within the Commission and there is a deficit of any meaningful notion of accountability of the Commission. The General Court has made a wrong decision in refraining to clarify what obligations are mandatory for EU Commissioners as set within the Treaty framework. Additionally, and most importantly, the judgment fails to set the boundaries of the prerogative powers of the Commission’s President to sack the members of his cabinet. Whether or not Commissioners can be held accountable for their decisions has been completely ignored in Dalli.

 

Barnard & Peers: chapter 3

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The Commission’s new EU Migration Strategy: Waiting for the Great Leap Forward

 

Steve Peers

Today this Commission releases its EU immigration strategy. The final text is not available yet, but here are my thoughts on the earlier version, leaked on Monday. I will update them if the final strategy differs significantly from the leaked draft.

Content

The migration strategy is divided into three parts. First of all, it sets out ‘immediate action’ to address the migrant death crisis. Secondly, it describes an agenda for immigration management in four areas: irregular immigration, border management, asylum and legal migration. Finally, it briefly sets out some long-term objectives.

Immediate action

The ‘immediate action’ section largely elaborates upon the strategy already defined by EU leaders in response to the deaths in the Mediterranean. As I discussed already, this is a modest response to the crisis, focussed mainly upon enlarging EU interception operations in the Mediterranean and destroying smugglers’ boats.   

However, the Commission paper suggests more ambition in two areas. First, it wants to go further on the ‘relocation’ of asylum-seekers between Member States. This would mean that frontline states like Italy and Malta do not have to deal with so many asylum-seekers, which would normally be their responsibility under the EU’s Dublin rules on this issue. So on this issue, the Commission will propose by the end of May ‘emergency response’ legislation on the basis of Article 78(3) of the TFEU, which will allocate asylum-seekers coming as part of a mass influx between Member States. These laws will be subject to a qualified majority vote in the Council, but the European Parliament (EP) will only be consulted. The Commission will then follow that up with a proposal by the end of 2015 for a permanent system of relocation, on the basis of the ‘ordinary legislative procedure’, ie the usual powers of the EP. I have already discussed separately the question of whether they would apply to the UK.

Secondly, the Commission wants to go further on resettlement, ie the entry of recognised refugees now in third States into the EU. On this issue, the Commission will make a Recommendation on resettlement, to be followed by a binding proposal for legislation if this proves insufficient. Extra EU funds will be made available to assist resettlement.

Irregular immigration

First of all, the Commission wants to address root causes of irregular migration, by focussing the money the EU already spends on these issues. There is no clear commitment to more spending. Next, the Commission wants to address smuggling of migrants, with an ‘Action Plan’ to be produced by the end of May. The Commission doesn’t mention this, but a review of the current EU legislation on smuggling of migrants is now underway. Also, the Commission wants to take further action to enforce the EU’s Directive on employment of irregular migrants (on the implementation of this Directive, see discussion here).

Also, the Commission wants to address the issue of return, by prioritising countries of origin for readmission treaties with the EU, providing guidelines on the application of the EU Return Directive (see here on implementation of that Directive), and giving the EU Border Agency, Frontex, the power to initiate expulsion missions. The Commission will propose legislation on the latter issue on the basis of an evaluation to be completed by the end of the year.

Border management

Commission proposals here largely urge more implementation of existing EU rules. The only concrete initiative is a commitment to relaunch the EU’s ‘Smart Borders’ proposals, for an entry-exit system of non-EU nationals, by the start of 2016. But the Commission was planning to do this anyway.

Asylum

The second phase of EU legislation on asylum is partly applicable already: the ‘qualification Directive’ on the definition and content of refugee and subsidiary protection status should have applied from the end of 2013, and the ‘Dublin III’ rules on asylum-seeker responsibility applied from the start of 2014. The other revised rules, on the ‘Eurodac’ system, asylum-seekers’ reception and asylum procedures, apply from July 2015 already.

The Commission promises to focus on implementation of these laws, by issuing guidance documents and prioritising infringement procedures against Member States which do not apply the law properly. It will also review the Dublin system in 2016, and may suggest proposals to speed up processing in cases involving safe countries of origin.

Legal migration

The Commission supports a legal migration policy based on demographic needs to increase the working-age population in the EU. It will conduct a ‘fitness check’ of existing legislation, and encourages swift agreement on its proposal on students and researchers, which has nearly been agreed by the Council and EP (for analysis of this proposal, see here). Also, by the end of May, it will review the ‘Blue Card’ legislation on admission of highly-skilled migrants, referring particularly to attracting investors and increasing mobility between Member States (on implementation of the current law and the issues for reform, see here).

The Commission also suggests a new initiative, to adopt rules on the provision of services by non-EU citizens. There are already provisions on this issue in EU free-trade agreements, but the Commission wants standard rules for all non-EU citizens. An important point here is that these rules should at least in part apply to all Member States, since they concern international trade, an exclusive EU competence which is not subject to any opt-outs.  Arguably that exclusive competence applies to market access issues as distinct from the related immigration rules, where opt-outs should still apply, but this may need to be clarified.

Finally, the Commission refers to visa policy, namely its existing proposal to amend the EU visa code and its pre-existing plan to review the list of countries whose nationals require a visa.  It also suggests giving a modest amount of extra cash to third countries as regards migration management.

Long-term objectives

Without offering a data, the Commission outlines longer-term objectives in three areas. As regards asylum, it suggests that there could be a common code of EU asylum law, mutual recognition of asylum decisions, and a common decision-making process. It is not clear if the latter would involve the Commission or another EU body making asylum decisions, and/or a common court reviewing asylum appeals (following the model of the EU’s planned patent court).

Secondly, as regards border control, the Commission reiterates long-held goals of a common EU border guard, or at least a common coastguard.

Finally, as regards legal migration, the Commission suggests an EU-wide expression of interest system, so that people are applying to all Member States for a job, not just individual States.  

Comments

The Treaties refer to a ‘common’ EU policy on immigration, asylum and border control. But the Commission’s proposed agenda does not start from that final objective and ask itself what is necessary for the EU to achieve it. Rather it starts from the status quo and asks what incremental changes need to be made to it to address specific issues.

On the immediate question of addressing the migrant crisis, the strategy paper essentially implements what EU countries already agreed, apart from the relocation and resettlement proposals. The relocation proposals in particular are probably politically unrealistic, given that Member States over the years have repeatedly refused to adopt binding rules on this issue.

The resettlement proposals are less unreal, since the Commission plans to start with a non-binding measure backed up by extra EU money, which should attract Member States to offer resettlement opportunities. Only if that does not work would the Commission take the unrealistic step of proposing binding rules. This part of the plan is particularly welcome, since it would reduce the number of migrants in need of protection who undertake the unsafe journey to the EU in the first place. However, the numbers involved compared to the totals undertaking that journey are likely to be tiny: the Commission proposal of 20,000 a year by 2020 is modest enough (there were over half a million asylum applications in the EU last year) but is unlikely to be agreed by Member States.

On smuggling legislation, more could be done to exempt humanitarian activities clearly from the rules, but changing the law alone will not stop smugglers. On the other hand there are many legal, political and practical problems facing the EU’s plan to destroy migrant boats. The plan is opposed by the de facto authorities in Libya – the very people whom the EU has to work with to solve the conflict in Libya in the first place.

The plan as regards returns legislation is to make the current rules work more effectively, by agreeing more readmission treaties and carrying out more removal operations. But coupled with the plan to amend asylum law to fast-track assessment of applications from supposed ‘safe countries of origin’, there is a risk that people will be removed to unsafe countries before their need for protection has been properly assessed.

Also as regards asylum, there is a focus on applying existing rules. In principle, this could lead to a significant increase in the degree of harmonisation between Member States, since the second-phase asylum rules have eliminated a lot of the legal divergences that the earlier phase of EU asylum law provided for. However, it depends on the political will of the Commission, which has promised to enforce EU asylum law many times before – and failed to do so every time. There’s no detail of how the enhanced focus on infringement proceedings will work, and until there is, this looks like a promise the Commission is making with its fingers crossed behind its back.

As regards legal migration, more admission of highly-skilled migrants and service providers in areas of economic need would be useful, and admission of tourists, researchers and students could boost the EU economy. Some of the measures to this end are already under discussion. But the Commission makes a fairly weak commitment as regards the enforcement of other EU legislation on legal migration, given that (for instance) many non-EU citizens face barriers to family reunion, and the Commission reported in 2011 that EU laws on long-term residents are not properly applied by Member States.

Finally, the Commission’s long-term plans are interesting but plans along these lines (particularly as regards border guards) have been rejected before by Member States. A particular disappointment here is the failure to suggest early adoption of rules on the transfer of protection of refugees who move between Member States, given that some refugees already have the right to move between EU countries and there is an existing Council of Europe treaty setting out rules on this issue that the EU could use as a template (see the ECRE report on this issue).

On the whole then, the Commission strategy paper is largely a repackaging of things which the EU is already committed to doing or already negotiating, or which are already in place. It shouldn’t be necessary to adopt plans to enforce rules which are already the law, and the intention to do so simply exposes the previous failings of the Commission on this score. It remains to be seen if issuing ‘guidance documents’ has any useful effect in practice (the Commission should commit itself to an independent review of this), and the promises relating to infringement proceedings mean nothing until the Commission tells us what this means, and regularly and openly reports on its practice to this end. The plans for further legislation in the near future are essentially modest, but in places (fast-track asylum assessment and expulsions, directly to more countries of origin) raise serious potential human rights concerns. And the strategy paper concludes with the legal equivalent of a flock of flying pigs.

All this will ultimately lead to another series of modest steps forward toward a common EU policy on borders, immigration and asylum. But it falls short of the significant changes that could be made if there were enough political will in the Commission and the Member States.

 

Barnard & Peers: chapter 26

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The Commission’s power of initiative: the CJEU sets important constraints

 

Steve Peers

As every EU politics or law student learns, a key feature of the Commission’s role as the ‘motor’ of EU integration is its near-monopoly on making proposals for EU action. But does that near-monopoly – which the Commission likes to call its ‘right of initiative’ – imply a corresponding power to withdraw proposals? And if so, are there any constraints on such a power? The CJEU answered these questions in an important judgment today.

Background

The case concerned a proposal for framework legislation on ‘macro-financial assistance’ for non-EU countries. This type of assistance helps out non-EU countries which are in severe economic difficulties, for instance helping them to make an imminent loan payment. It obviously helps the economies of the countries concerned, thus indirectly helping EU companies that export to them; and it undoubtedly cements the political relationship between the EU and those countries.

Before the Treaty of Lisbon, such aid was granted on the basis of the EU’s ‘residual powers’, which are now provided for in Article 352 TFEU. However, that Treaty created a specific ‘legal base’ for the EU to adopt rules on macro-economic support for third states: Article 212 TFEU, which provides for the use of the ‘ordinary legislative procedure’ to adopt legislation on this. The Treaty of Lisbon also created an Article 213 TFEU, which allows assistance to be granted in urgent cases without going through a full legislative process.

In 2011, the Commission proposed ‘framework legislation’ on macro-financial assistance, which would have given it the power to decide on the crucial question of whichthird countries receive this money. The Commission’s decisions on this issue would be controlled by means of the variant of the ‘comitology’ rules known as the ‘examination procedure’, which gives Member States’ experts’ the power to block draft Commission decisions. There’s no significant role for the European Parliament (EP) in that process.

The Commission’s suggestions did not satisfy the EP or the Council. The EP suggested instead that Commission Decisions on which countries receive macro-financial help be subject to ‘delegated acts’: Commission decisions which can be blocked by either the Council or the EP. For its part, the Council position was that each decision to grant aid to a third country had to be subject to the ordinary legislative procedure. The two institutions began negotiations, and eventually agreed to use the ordinary legislative procedure to this end.

Since the Commission objected to this aspect of the EP/Council deal in principle, it withdrew its proposal before the institutions could adopt the legislation concerned. The Council responded by taking the rare step of suing the Commission. While the Council was supported by ten Member States, the EP did not intervene on either side – despite the huge stakes for that institution.

The judgment

The Court’s judgment started out by accepting that the Commission’s power to make proposals gives it a corollary power to withdraw them. However, that power did not constitute a ‘right of veto’ in the legislative process, since that would upset the principle of institutional balance and conferral of powers. In short, the Commission has the power to withdraw proposals – but that power is constrained.

So how exactly is that power constrained?  The Court ruled that the Commission had to give the EP and the Council its reasons for such withdrawals, which must include ‘cogent evidence or arguments’. Such withdrawal decisions must be subject to judicial review, in the form of actions for annulment. However, it was sufficient to give those reasons to a Council working party and an EP/Council negotiation meeting.

As for the substantive grounds for withdrawing its proposal, the CJEU ruled that the amendment which the EP and Council wanted would have changed an ‘essential element’ of the proposal, and would have been irreconcilable with the ‘objective’ of improving the efficiency of EU policy in this area. Next, the CJEU ruled that there was no infringement of the principle of democracy, since it was inherent in the Commission’s right of initiative that it could withdraw proposals as long as the Council had not yet acted. So the Commission did not infringe the principles of conferral of powers and institutional balance.

Finally, the Court considered a separate issue: whether the manner of the Commission withdrawing its proposal breached the principle of ‘sincere cooperation’ between the EU institutions. On this point, the Court ruled that the Commission could not be criticized for withdrawing its proposal at a very late stage in the Council/EP negotiations, since only then had it become clear that the co-legislators would insist that the ordinary legislative procedure had to be used for the approval of each new macro-financial assistance decision. Moreover, the Commission had attempted to reconcile the position of the other institutions, and had proposed compromises. It seems implicit from the Court’s analysis here that the EP’s position (delegated acts instead of a comitology process) would not have altered the essential elements of the proposal.

Comments

First of all, what are the immediate consequences of this judgment? The failure of the legislative process in this case didn’t stop the EU granting macro-financial assistance to third States. In practice, in the absence of framework legislation on this subject, the EU has been adopting individual legislative measures to assist each country – which is exactly what the Commission objected to in the first place.

What procedure should govern such decisions, as a matter of principle? The CJEU seems to adopt the Commission’s view that efficiency is the main criterion. There is indeed a good argument for efficiency in the specific context of macro-economic assistance – since the bills usually have to be paid imminently, and the third country concerned is often in desperate straits. But the Commission and Court don’t refer to this specific context, and don’t balance the need for efficiency against the contrary case for full democratic control.

For example, one recent major beneficiary of EU macro-financial assistance has been Ukraine, and the EU’s relations with that country have been highly controversial. Ideally, there should be a full democratic debate on whether the EU should support that country’s economy, allowing those who sympathise with Putin’s Russia or who have other reasons to criticize the Ukrainian government to debate the merits of that assistance with those who support that government. Perhaps a good compromise would have been an agreement by the Commission to make a full legislative proposal whenever a significant minority (say a quarter of the Member States and/or a quarter of the Members of the European Parliament) indicate a wish to debate the merits of giving macro-financial assistance to a particular third State.

Secondly, the broader consequences of today’s judgment concern the relations between the EU’s three political institutions. The judgment has both procedural and substantive dimensions. Procedurally, it seems very easy to justify a Commission withdrawal: it need only inform EP/Council ‘trialogue’ (negotiation) meetings, or a Council working party of its intentions. Here the Court is legitimising these informal elements of EU governance (thanks to Ron Patz for raising this point). However, with respect, its approach is not convincing. Since a legislative proposal affects the EP as well as the Council, informing a Council working party cannot be sufficient. In fact, informing a trialogue committee shouldn’t be sufficient either, since there are many MEPs and Member States not represented there (the Council Presidency negotiates on behalf of all Member States as represented in the Council).

More broadly, the Commission should have to justify its withdrawals openly to the general public. It usually does this when it withdraws proposals as part of its work programme, but the principle of openness (as set out in the Treaties) justifies it becoming a legal rule, applying to every case of withdrawal. The best practice would be to adopt a formal Commission Decision to withdraw each proposal published in the EU’s Official Journal, giving effect to the principle of active transparency.

Indeed, it’s disturbing that the Court conceives of the EU system purely in terms of the institutions’ accountability to each other, rather than to the public generally. The Court’s dismissal of the ‘democratic principles’ argument is far too brief, failing to place that principle on an equal footing (never mind a superior footing) with the institutional rules on the Treaty. The better approach would have been to interpret the lacuna in the Treaties regarding withdrawal of Commission proposals in light of this democratic principle, emphasising the key role which that principle gives to the EU institutions with a greater claim to electoral legitimacy.

On the other hand, the Court does confirm that there must be judicialcontrol of the withdrawal of Commission proposals. The application of the annulment procedure means that not only the Council, but also the EP and individual Member States can sue the Commission for withdrawing a proposal. Other parties are likely to lack standing to do so, except for a limited number of cases where Article 263 TFEU confers it to bring challenges to non-legislative acts. The alternative possibility of bringing proceedings via national courts to challenge withdrawals appears unworkable at first sight.

What are the substantive constraints to the Commission’s withdrawal of its proposals? The CJEU hints that there might be additional constraints after the Council has ‘acted’; presumably this refers to the Council adoption of its first reading position. Only a minority of EU legislative proposals go past this first reading – and half of those have in practice been agreed between the EP and Council already at that stage. It’s not clear what additional constraints might then exist, besides those set out in the Treaty (for instance, it’s easier to amend a Commission proposal in some cases after first reading). It’s also possible that the Court would take a different approach to non-legislative measures, or those subject to a special legislative procedure.

So let’s focus on the usual case – a withdrawal of a proposal for a legislative act pursuant to the ordinary legislative procedure, before the Council adopts its first reading position. The Court did not suggest that a change in the essential elements of a Commission proposal was the only ground to withdraw a proposal. Presumably it is still open to the Commission to withdraw proposals on other salient grounds, in particular the most common grounds for withdrawal: where the proposal is obsolete, or there is no chance of its adoption.

However, the existence of judicial review must mean that the Commission’s assessment in this regard could be open to challenge. The Court might also be called upon to clarify in another case what constitutes a change in the ‘essential elements’ of a proposal, where (for instance) the EP and Council want to widen or narrow that proposal’s scope significantly. There is no reason why the ‘essential elements’ rule is restricted to cases where the objective is improving the efficiency of EU actions, since there are many other possible objectives for EU action.

What other grounds for withdrawal exist? It seems implicit in the judgment that the Commission cannot simply argue that it has changed its mind, otherwise judicial review would have no purpose. There must be substantive reasons justifying that change of mind. Would it be sufficient that there is a new Commission? This is obviously a live issue, given that the Juncker Commission recently withdrew a number of proposals (for instance, the ‘circular economy’ proposals) on the grounds that it had changed its legislative priorities, and wished to start the process from scratch (see discussion here).  At first sight, since the proposals can always be redrafted during the legislative procedure, this is not a sound enough reason to withdraw a proposal, in light of today’s judgment – and there is still time to bring an annulment action against these withdrawals.  There might conceivably be an argument that a new Commission has more flexibility to withdraw proposals – but that begs questions as to whether it has a genuine democratic mandate, in particular if the Commission President did not campaign on the basis that the proposals in question should be withdrawn.

Finally, it might be arguable that today’s judgment has implications not only for the Commission, but for the ‘sincere cooperation’ during the legislative procedure between the EP and the Council. For instance, the EP and Council have been far apart for years as regards a proposal for maternity leave. As I recently pointed out (see here), the EP has shown recent signs of willingness to negotiate, which the Council has rejected.  For its part, the Commission has done little to try and broker a compromise, but has simply resorted to threatening to withdraw the proposal if there is no deal. Can the EP sue the Council for its intransigence? Can it sue the Commission if it follows through on its threat to withdraw the proposal, having played no constructive role in the talks? If the EU institutions and Member States make frequent use of the possibilities opened up by today’s judgment, this judicial intervention into the legislative process raises many such important questions.

 

Barnard & Peers:  chapter 3, chapter 5, chapter 8

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From bad to worse? On the Commission and the Council’s rule of law initiatives

 

 

 

Dimitry Kochenov* and Laurent Pech**

*Professor of EU Constitutional Law at the University of Groningen and Visiting Professor of Private Law at the Universita degli studi di Torino

**Jean Monnet Professor of EU Public Law, Head of the Law and Politics Department at Middlesex University London

 

The rule of law is one of the fundamental values on which the EU is founded according to Article 2 TEU. Faced with a rising number of ‘rule of law crises’ in a number of EU countries, the Commission adopted a new ‘pre-Article 7’ procedure last March in order to address any instance where there is a evidence of a systemicthreat to the rule of law. Having criticised the Commission’s initiative primarily on the (unconvincing) ground that it would breach the principle of conferral which governs the allocation of powers between the EU and its Member States, the Council proposed its own solution: a rule of law dialogue between national governments and to be held once a year in Brussels.

 

Both initiatives, and in particular, the Council’s, appear grossly inadequate to tackle the problem of ‘rule of law backsliding post EU accession’ to quote Frans Timmermans, the First Vice-President of the Commission in charge inter alia of the Rule of Law.

 

Let us begin with the Commission’s proposal. The rationale underlying its new mechanism is that the current EU legal framework is ill designed when it comes to addressing internal, systemic threats to this principle and more generally, to EU values. The former President of the European Commission himself called in 2013 for a ‘better developed set of instruments’ that would fill the space that exists at present between the Commission’s infringement powers laid down in Articles 258–260 TFEU, and the so-called ‘nuclear option’ (suspension of a Member State’s EU membership) laid down in Article 7 TEU. Both procedures suffer indeed from a number of procedural and substantive shortcomings, with the consequence that Article 7 TEU has never been triggered whereas the Commission’s infringement powers have proved ineffective to remedy systemic violations of EU values.

 

Numerous proposalswere made like prior to the publication of the Commission’s Communication last March. These proposals would appear however to have been were found too ‘radical’ for the Commission which decided instead to put forward an eminently ‘light touch’ mechanism (previous analysis by Steve Peers is available here). This new rule of law mechanism builds on and complements an already existing – albeit never used – procedure, the ‘nuclear option’ referred above and on the basis of which the Council may theoretically suspend certain EU rights of the ‘guilty’ Member State such as voting rights.

 

In a nutshell, the Commission’s new mechanism takes the form of an early-warning tool to enable the Commission to enter into a structured dialogue with the Member State concerned to prevent the escalation of systemic threats to the rule of law preceding the eventual triggering of Article 7 TEU. This ‘pre-Article 7’ mechanism does not exclude a parallel recourse to the infringement procedure.

 

In practice, the Commission’s new rule of law mechanism rests on three main stages:

 

(1)    The Commission will first have to assess whether there are clear, preliminary indications of a systemic threat to the rule of law in a particular Member State and send a ‘rule of law opinion’ to the government of this Member State should it be of the opinion that there are;

(2)    Commission’s recommendation: In a situation where no appropriate actions are taken, a ‘rule of law recommendation’ may be addressed to the authorities of this country, with the option of including specific indications on ways and measures to resolve the situation within a prescribed deadline;

(3)    Finally, the Commission is supposed to monitor how the relevant Member State is implementing the recommendation mentioned above. Should there be no satisfactory implementation, the Commission would then have the possibility to trigger the application of Article 7 TEU.

 

The Commission’s new pre-Article 7 procedure is anything but revolutionary. In essence it merely requires any ‘suspected’ Member State to engage in a dialogue with no new automatic or direct legal consequences should the Member State fail to agree with any of the recommendations adopted by the Commission. Undoubtedly, Article 7(1) TEU already and necessarily implicitly empowers the Commission to investigate any potential risk of a serious breach of the EU’s values by giving it the competence to submit a reasoned proposal to the Council should the Commission be of the view that Article 7 TEU ought to be triggered on this basis. The criticism expressed by the Council’s Legal Service, which has criticised the Commission for overstepping its powers, would therefore appear particularly misplaced. The Commission’s framework is procedurally sound, no Treaty change is required and for the first time, a wide range of expert bodies is to be consulted: so far so good one may be tempted to say.

 

This bright picture however fades a great deal as soon as one focuses on the likely effectiveness of this new procedure, which is based on the presumption that a dialogue between the Commission and the Member State is bound to produce positive results. The validity of this presumption is highly questionable. Indeed, once we move towards really problematic cases, i.e. the countries where the ruling élite has made a conscious choice not to comply with EU values, engaging in a rule of law dialogue is unlikely to be fruitful. Worse still: the confidential nature of the whole discussion to be held between the Commission and the Member State under investigation will prevent a successful ‘name-and-shame’ environment from crystallising. The non-legally binding nature of the ‘rule of law recommendation’ to be addressed to the authorities of the country under scrutiny, and the non-automatic recourse to Article 7 TEU should the recalcitrant Member State fail to comply, further increase the likelihood of ineffective outcomes.

 

The Council’s negative response to the Commission’s proposal leaves one rather pessimistic about the chance of ever seeing the Commission activating its new rule of law framework. Indeed, rather then supporting the Commission’s rule of law framework, the Council decided instead to establish an annual rule of law dialogue to be based ‘on the principles of objectivity, non discrimination and equal treatment of all Member States’ and to be ‘conducted on a non partisan and evidence-based approach’. The Council’s response is as disappointing as it is unsurprising considering the reported unease of several national governments at the idea of letting any independent EU body looking into rule of law matters beyond the areas governed by EU law. The British government, for instance, has made clear its opposition to the Commission’s framework on three main grounds: It would be superfluous to the extent that the European Council and the Council of Europe would already monitor rule of law compliance within EU Member States; it would undermine the role of the Member States within the Council of the EU and finally, that the Commission and the Council would have already been successful through informal dialogue and lobbying in addressing in recent concerns on the rule of law in Member States.

 

Suffice it to refer to recent events in Hungary to understand that this last point is rather ludicrous. The point about the possible duplication of existing mechanisms is similarly unconvincing. To put it concisely, if multiple bodies gather data and monitor some specific aspects of EU Member States practice in relation to the rule of law, democracy and human rights, no European body currently subjects EU countries to a specific, country-based and permanent monitoring and assessment of their adherence to the rule of law broadly understood (for an overview of existing monitoring mechanisms within the Council of Europe, the EU and the UN, see this very useful report from the Bingham Centre for the Rule of Law). For instance, the Council of Europe’s Venice Commission, whose work is unanimously praised, is primarily a consultative body. In the end, the criticism directed at the Commission’s proposal essentially stems from the reluctance of some national governments, especially those whose rule of law records are highly questionable, to accept any potential effective form of supranational monitoring which could result in the adoption of legally binding recommendations and/or sanctions. 

 

Viewed in this light, it is hardly surprising that while the Commission’s proposal suffers from many a flaw, the Council’s response goes nowhere near enough what is required to address current challenges. The latest buzzwords are used to hide an unwillingness to meaningfully act. For instance, the Council calls for an evidence-based approach but what will this mean in practice and who will in charge of collecting this evidence and analysing it? Similarly, the dialogue is supposed to take place in the Council ‘following an inclusive approach’, the substance of which is nowhere explained. More fundamentally, the Council is seeking to use a soft instrument, which has regularly been criticised precisely for its ineffectiveness when used by the EU to promote its values abroad. To put it concisely, the EU has set up close to forty ‘human rights dialogues’ with third countries but evidence ofsubstantial and concrete achievements is thin on the ground. One would have hoped a different, stricter approach for any Member State whose authorities have made a conscious political choice of undermining EU values.

 

To conclude, the Commission and the Council’s initiatives may leave one deeply disappointed considering the serious nature of the internal challenges faced on the rule of law front. When comparing the two initiatives, one may however argue that the Commission’s is much less half-hearted and, thus, at least less counter-productive, than the Council’s, which does not simply represent the triumph of empty rhetoric over genuine action but also unfortunately undermines the future legitimacy of any Commission attempt to trigger its new pre-Article 7 procedure. For a more detailed analysis, we would refer interested readers to our forthcoming Schuman Foundation policy paper, which is due to be published this spring in both English and French.

 

Barnard & Peers: chapter 9

Photo credit: The Economist

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