EU migration policy: comments on the results of the latest European Council

Steve Peers

Alongside ‘Grexit’ and ‘Brexit’, the upsurge in immigration to the European Union is a further crisis which the EU has to juggle simultaneously. The first round of EU reactions to the crisis culminated in the emergency EU summit (‘European Council’) in April. I discussed the results of that summit here. Subsequently, the Commission released its ‘Agenda’ on EU migration in mid-May (see discussion here), and its detailed proposals later that month (see discussion here). Last week the European Council discussed immigration issues again, and came to a number of conclusions. This blog post sets out those conclusions, with my comments annotated. (I have left out the third part of the conclusions, which vaguely promise more cooperation with third countries.)

It’s interesting to compare the final text with the last draft of the summit conclusions (see full text here). To make that comparison easy, I have indicated below what changed between the penultimate and final versions of the text. (Underlined words were added to the final version; words in strikeout were deleted from it).

I. MIGRATION

1. Europe needs a balanced and geographically comprehensive approach to migration, based on solidarity and responsibility. Following the decisions taken by the European Council last April, concrete measures have been taken to prevent further loss of life at sea, to find new ways of confronting smugglers and to intensify cooperation with countries of origin and transit, while respecting the right to seek asylum. The launch of the EUNAVFOR MED mission, decided on 22 June by the Council, is an important contribution in this respect. Operational action to tackle the traffickers and smugglers in accordance with international law is an essential part of our comprehensive approach.

The EU's smuggling mission has officially got underway already, but its second and third phases (where the boats are destroyed) cannot get started until the Libyan government or the Security Council endorse the operation. For details and criticism see here.

2. Further to the Commission's European Agenda on Migration, work should be taken forward on all dimensions of a comprehensive and systemic approach.

The summit conclusions in fact address much of the detail of the Agenda.

3. Wider efforts, including the reinforcement of the management of the Union’s external borders, are required to better contain the growing flows of illegal migration. Today, the European Council focused on three key dimensions which must be advanced in parallel: relocation/resettlement, return/readmission/reintegration and cooperation with countries of origin and transit. The Council will regularly assess progress in all three strands and report back later in the year.

As noted above, I have omitted the third dimension (cooperation with countries of origin and transit) from this blog post.

Relocation/resettlement

4. In the light of the current emergency situation and of our commitment to reinforce solidarity and responsibility, and in line with its April decision in all its regards, including paragraph 3, the European Council agreed on the following interlinked measures to help 60.000 people:

Paragraph 3 of the April conclusions refers to the EU interception and search and rescue missions in the Mediterranean. Odd that such missions dare not speak their name in these latest conclusions.

a) the temporary and exceptional relocation over two years from the frontline Member StatesItaly and Greece to other Member States of 40.000 persons in clear need of international protection, in which all Member States will participate;

The final version of the conclusions adds a footnote stating that the UK will not participate. The number of 40,000 matches the number in the Commission’s proposal. So does the two-year time-frame, and the focus on Italy and Greece. The reference to ‘persons in clear need of international protection’ suggests that the focus will remain on Syrians and Eritreans (as the Commission proposed), as refugee claims from these two nationalities have a very high success rate.

b) the rapid adoption by the Council of a Decision setting up a temporary and exceptional mechanism to this effect; to that end, all Member States will agree by consensus by the end of July on the distribution of such persons, reflecting the specific situations of Member States;

There is a commitment to adopt a legally binding text, although presumably its content will differ greatly from the Commission proposal, in particular because many Member States dislike the idea (or the detail) of the Commission’s proposals on distribution. The added agreement that the distribution will be agreed by ‘consensus’ means effectively that the numbers accepted in each Member State will be voluntary, although the Treaty calls for qualified majority voting on this issue. The added reference to ‘specific situations’ is (according to press briefings) intended to exempt Hungary and Bulgaria from obligations, in light of the large number of asylum-seekers they currently receive. Obviously it is hard to see how the legally binding target of 40,000 asylum-seekers can actually be met if Member States only have to volunteer to take the relevant numbers. If a Decision with such an obligation is adopted but the offers of admission fall short of 40,000, there could be an interesting legal question as to whether and how the numbers could still be enforced.

c) the setting up of reception and first reception structured border zones and facilities in the frontline Member States, with the active support of Member States' experts and of EASO, Frontex and Europol to ensure the swift identification, registration and fingerprinting of migrants ("hotspots"). This will allow to determine those who need international protection and those who do not. The Commission will draw up, in close cooperation with the hosting Member States, a roadmap by July 2015 on the legal, financial and operational aspects of these facilities;

The reference to ‘structured border zones’ in the earlier draft has been altered, perhaps because some perceived it as a form of quarantine. Frontex is the EU borders agency, and the EASO is the EU asylum support agency. They don’t have powers to fingerprint migrants etc as such, but they can help coordinate Member States’ actions. On the other hand, it’s not clear why Europol, the EU police agency, needs to be involved, and indeed the conclusions seem to call for it to exceed its legal powers. It has a potential role in investigating smugglers, but the conclusions refer only to its involvement in an immigration law process.

Fingerprinting of irregular migrants who cross the external borders, as well as asylum-seekers, is a long standing EU law obligation in the Eurodac Regulation, but frontline Member States have often been accused of not applying it. If more such people are fingerprinted, then it will be easier to guarantee their return from other Member States like the UK under the EU’s Dublin rules on asylum responsibility, if those migrants travel to another Member State and apply for asylum there. The Commission recently released a paper on coercive methods to fingerprint migrants, discussed here.  

d) the immediate provision of enhanced financial assistance to the frontline Member States to help alleviate the costs of receiving and processing applications for international protection;

An emergency EU budget increase has already been approved.

e) the agreement that all Member States will participate including through multilateral and national schemesin the resettling of 20.000 displaced persons in clear need of international protection, reflecting the specific situations of Member States.

This matches a non-binding Commission Recommendation on this issue, which has already been adopted. Resettlement means that the persons concerned are moved straight from refugee camps in countries like Lebanon or Turkey. In fact the wording (‘displaced persons’) also covers Syrians who have fled to camps elsewhere within Syria. Legally speaking this group of people aren’t ‘refugees’ since they haven’t left their home country; international law refers to people who have fled within their own countries but who still have great protection needs as ‘displaced persons’ instead. They could qualify as ‘refugees’ once reaching the EU, however, since they would necessarily then have left Syria. The UK has pledged a very small increase in the small numbers of refugees that it currently resettles.

Return/readmission/reintegration

5. Effective return, readmission and reintegration policies for those not qualifying for protection are an essential part of combating irregular illegal migration and will help discourage people from risking their lives. All tools shall be mobilised to promote readmission of irregular illegal migrants to countries of origin and transit, building on the ideas presented by the Commission at the Council on 16 June.

Notice the word ‘illegal’ was changed to ‘irregular’, to address objections that the word ‘illegal’ is the wrong term to use. There is a footnote referring to the letter and it can be found via Google, but it is hardly transparent not to attach it as an Annex to the Conclusions. It’s not hyperlinked to the conclusions either. But you can follow this link for the text of the Commission letter and discussion of it.

It must be noted that this section only applies to people who do not qualify as refugees or for some other form of protection. Some press stories had suggested, on the basis of leaked drafts of the conclusions, that the EU wants to ‘send all the migrants back’. This is patently false: this section is clearly limited in scope (‘those not qualifying for protection’) and the first section of the conclusions not only shows an intention to relocate people needing protection within the EU but also to bring more of them to the EU. Since a significant proportion of migrants come from Syria and Eritrea, and a huge proportion of their asylum claims are successful, anyone who claims that ‘the vast majority of people crossing the Mediterranean are economic migrants’ is quite simply lying.

In particular: a) high-level dialogues with the main countries of origin of irregular migrants should be launched by the High Representative as soon as possible, in close cooperation with the Member States. The Council, together with the Commission, will prepare a global package to support the negotiations with the third countries concerned;

Most of the issues here are not foreign policy issues as such, so the High Representative should only be discussing them in her role as the coordinator of her colleagues in the Commission, not as foreign policy representative. So this looks like an internal Commission power grab, although it’s probably also true that she will come with more political authority than the Home Affairs Commissioner. There may of course be a corresponding power struggle between national foreign and interior ministries here.

b) the Commission will ensure that readmission commitments are implemented effectively as soon as possible, notably those under the Cotonou Agreement, and that ongoing negotiations on readmission agreements are accelerated and concluded as soon as possible, while new negotiations will be launched with other third countries;

The ongoing negotiations are with Belarus (nearly complete), Morocco and Tunisia. Talks with Algeria and China were approved years ago, but never started. The ‘Cotonou’ countries are sub-Saharan African, Caribbean and small Pacific island States, although obviously the conclusions are referring only to African states. 

c) building on the "more-for-more" principle, EU assistance and policies will be used to create incentives for implementing existing readmission agreements and concluding new ones. Commitments set out in trade agreements regarding the temporary presence of persons for the provision of services should be used as an incentive to conclude readmission agreements; development policy tools should reinforce local capacity building, including for border control, asylum, counter-smuggling and reintegration;

The EU has concluded readmission treaties with most countries to the east and south-east by offering visa facilitation deals, and in some cases the long-term prospect of a visa waiver. It has also offered visa facilitation to Morocco and Tunisia. It’s clear from the other recent documents that the EU doesn’t want to offer visa facilitation to sub-Saharan African countries, hence the quite new idea of offering them admission of service providers instead. Interestingly, the market access aspects of service provision apply to all Member States (ie, including the UK), although the immigration law aspects (such as facilitated visas and permits just for this category of persons) arguably fall within the scope of immigration law, where the UK opt-out applies. The Commission’s migration agenda had referred to plans to propose rules on this issue, but it had not linked them to readmission.

As for development policy cash, this also applies to all Member States, unless some external money in the home affairs budgets can be used. This phrase could also refer to national development policy budgets. The important question is whether this is new money, or will be diverted from building schools or hospitals, or aiding human rights defenders.  

d) Member States will fully implement the Return Directive, making full use of all measures it provides to ensure the swift return of irregular migrants; return decisions issued by the Member States will be introduced in the Schengen Information System;

Fully implementing an existing law sounds uncontentious, but in fact the Commission paper referred to above urges Member States to lock up irregular migrants for as long as possible and to use derogations in that Directive, which could justify limiting judicial review, and holding irregular migrants (including families) in prisons, mixed in with the general prison population of convicted criminals. Further comments on this here.

Some or all entry bans are already introduced in the Schengen Information System (SIS), and the Commission plans to propose a legal obligation that all of them will be. But introducing all return decisionsin the SIS is quite new, since not all return decisions result in entry bans. In fact, this is the first new category of data to be added to the SIS since it was established. It will take some time and money (as well as new EU legislation) to set this up.

Note that the UK will not have access to this data, since it does not participate in the immigration-related aspects of the Schengen system. It does have access to the separate Eurodac database, of people who applied for asylum or crossed the borders irregularly in another Member State, although it can only access this is those people then apply for asylum in the UK.

e) the Commission will set out by July 2015 how Frontex will bring immediate support to frontline States on return. The Commission has announced its intention to propose to amend the Frontex Regulation to strengthen the role of Frontex, notably so that it can initiate return missions;

The Commission paper also wants to give Frontex a role in going to third countries and arranging return flights, and in expelling people from a single Member State. The last set of amendments to the Frontex Regulation in 2011 allow Frontex to have its own assets. Perhaps ‘Air Frontex’ – the one airline you never want to travel on – is coming?

f) in order to accelerate the treatment of asylum applications, the Commission will set out by July 2015 measures to be taken to use EASO to coordinate the implementation of the "safe country of origin" provisions in the Asylum Procedures Directive. The Commission has indicated its intention to strengthen the "safe country of origin" provisions in the Asylum Procedures Directive, including the possible establishment of a common EU list of safe countries of origin;

It’s not clear what EASO will be doing here. It can’t decide on asylum applications, but only give guidance. As for the legislative proposal, the Council tried to agree on a common list of safe countries of origin in 2005, but failed epically. It’s not so problematic to include countries where the failure rate is 99%, but becomes difficult to include countries where even 10% or 20% of applications are successful – since that is a lot of people whose claims won’t be adequately assessed.

g) adequate means will rapidly be made available in support of an effective EU return policy; furthermore, the Commission is invited to make proposals in this respect in the context of the 2016 EU budget, and to set up a dedicated European Return Programme.

This suggests more cash will soon be available for removals. It looks as if the ‘European Return programme’ is simply going to be an official name for this pot of cash, to give it greater visibility.

Final comments

Some analysis of the summit suggests that it was a failure on immigration issues, because Member States wouldn’t agree to binding quotas on relocation of refugees. This isn’t necessarily the case. The summit conclusions still refer to adopting a binding measure requiring the relocation of 40,000 people. If Member States do end up relocating 40,000 refugees, there’s not much point quibbling about exactly how they did it. However, the replacement of quotas by voluntary offers makes it less likely that this number will be achieved, and in that case the Council might decide not to adopt the Decision after all.  

Having said that, even if the number of people relocated ends up at 20,000 or 30,000, instead of 40,000, that will contribute to reducing the pressure on Greece and Italy. It will be significantly more than the piddling number of people relocated in the past. The very existence of this commitment is an implicit admission that the Dublin system is a failure. And the commitment to resettle 20,000 people is a bigger contribution than the EU has made before in that context too.

All this is counterbalanced by the decisions on return and readmission. It seems that there is a quid-pro-quo between a more generous policy on asylum and a more restrictive policy on irregular migration. Certainly this part of the conclusions shows the importance of implementation of EU law by the Member States. The Commission has committed itself to encouraging Member States to apply the Directive as restrictively as possible, so it will fall to NGOs and migrants’ legal advisers to monitor what goes in practice, and challenge it if necessary.

‘The Commissioner suggested that we do it’ is not in any way a sufficient legal reason to lock up families together with convicted prisoners, while limiting judicial review. Rather, any Member State wanting to apply exceptions from detention standards in the Returns Directive has to show that an ‘exceptionally large number of third-country nationals to be returned places an unforeseen heavy burden on the capacity of the detention facilities of a Member State or on its administrative or judicial staff’, presumably separately (ie it’s possible that the facilities are overburdened but the judges aren’t, or vice versa). It must also end the derogation as soon as conditions have changed, and also inform the Commission. CJEU case law (Kamberaj) suggests, by analogy, that the decision to lower detention standards is invalid unless that latter procedural requirement is fulfilled.  There’s a good argument that derogation clause is itself invalid, as a breach of the Charter rights to family life, access to court and the rights of the child. At the very least it must be interpreted in light of those Charter rights, and the similar protections set out in Article 5 of that Directive.

Barnard & Peers: chapter 26

Photo: Zaatari refugee camp in Jordan, by US Department of State

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The new guidelines for the Area of Freedom, Security and Justice: some critical comments

Emilio De Capitani

In the coming days the European Council will debate and adopt the long awaited Guidelines which will shape the future of the EU's Area of Freedom, Security and Justice for forthcoming years. These guidelines follow the end of the current Stockholm Programme (2009-2014) and come near the end of the last transitional period for the measures adopted before the entry into force of the Lisbon Treaty on police and judicial cooperation in criminal matters (what remains of the former intergovernmental  'third pillar' cooperation).

Regrettably the draft European Council Conclusions which have been circulated (see the Annex below) and the programme of the incoming “trio” Presidencies (Italian, Latvian and Luxembourg) which will implement them in the next 18 months confirm the worst provisions detailed in our previous post on this issue.

If anyone was searching for proof that European Strategies lack political vision and are a collection of bureaucratic and diplomatic choices, he or she will find in these documents the confirmation of this thesis.  

The emphasis of the European Council on the external dimension of the justice and home affairs polices by privileging soft law instruments such as the Global Approach on Migration or instruments such as mobility partnerships confirm two emerging trends since the entry into force of the Lisbon Treaty : 

- to transfer to the European Council the main EU political choices in the last area where the treaties still do not grant and effective parliamentary and judicial control. 

- to continue to avoid legally binding measures on which solidarity mechanisms can be established (Schengen, Frontex, and Eurosur being the exceptions which confirm the rule). 

Rhetorical declarations aside, the draft European Council guidelines confirm the choice for general (and generic) strategies such as the Internal security strategy or the anti-drugs strategy which are adopted without any debate between the European Council members nor with the European Parliament.

These Strategies should then be implemented by the so called “Policy Cycle” where EU agencies and the Member States representatives - instead of verifying their consistency with national internal security strategies deciding which areas the EU's intervention could add value in - pick and choose (on voluntary basis) some priorities which are approved without debate (as point A) by their ministers without (again) any European or national parliamentary debate.

Where choices and priorities are instead very clearly stated is on the role of the EU Agencies (Europol, Eurojust, EASO..) and bodies (the Anti Terrorism Coordinator) or where it is decided to go on with the establishment of an ambitious technocratic project such as the "smart borders" system (the feasibility of which is still to be proved even in the United States) or by creating an entry-exit system for third country nationals to control better the problems of the "over stayers" (those who remain after their initial permitted period of stay runs out) which apparently is one of the most dangerous threats to the EU. Needless to say that this idea is not new as it was raised by the US Congress years ago and  was considered “silly” in the US also by the former Homeland Security Secretary Chertoff under the BUSH administration.

Even worse, both the European Council draft Conclusions and the trio Presidency programme insist as one of their big priorities is the establishment of a "bona fide traveller" system which will discriminate between one traveller and another on the basis of de facto arbitrary criteria. They also reinstate their commitment to the creation of a European passenger name record (PNR) system.

These projects have in common the rather paranoic idea that any traveller is a potential danger. This is appalling in an European Union where there is still no permanent connection between the criminal records of the Member States, so that information on real criminals can be shared and where a terrorist (like the author of the attack to Jewish Museum in Brussels) can freely circulate even after been checked twice as a dangerous person on the Schengen information System.  

Selling out, for a false sense of security, the real fundamental rights of EU citizens, cannot be the real answer to the threats the EU will face in the coming years.

These inconsistencies can be solved by overcoming the 'silo' approach inside and between the MS and by better framing with a legislative measure the policy cooperation between the Member States (which still do not trust each other). True efficiency should then be measured if the threats are really supranational.

Even a project like  PNR could have its (crazy) logic if somewhere in Europe there were a central intelligence system which could filter these data against a massive intelligence analysis and profile, as happens in the USA. But as it has been designed, PNR will be only a policy laundering exercise where the European Union legislation is adopted to justify the collection of massive personal data at national level. Should we remember  that only on April 8th the Data retention directive, which followed the same logic, was annulled by the CJEU as a clear violation of the proportionality principle and of Articles 7 and 8 of the EU Charter?

The point is that selling out the personal data of EU citizens appears to the European Council less costly than building a real binding framework for police cooperation on the basis of Article 87 of the TFEU. The proof is given by the new Europol whose proposed legal basis (after amendments during negotiations) makes no more reference to Article 87 TFEU and which does not compel the Member States to share their security related informations.

These being the worrying projects on the European Council and Council side one can only hope that the newly elected European Parliament, in its July session, will challenge them and take the lead for a new alternative and legally sound policy which can shape in the next legislature an European area of Freedom, Security and Justice where the citizens' needs and not the administrations will be the real compass.

Barnard & Peers: chapter 25, chapter 26

Annex - draft Guidelines 

             

1.             One of the key objectives of the Union is to build an area of freedom, security and justice without internal borders, with full respect for fundamental rights. To this end, coherent policy measures need to be taken with respect to asylum, immigration, borders, police and judicial cooperation.

2.             All the dimensions of a Europe that protects its citizens and offers effective rights to people inside and outside the Union are interlinked. The success or failure in one field depends on the performance in the other fields as well as on synergies with related policy areas.  The answer to many of the challenges in the area of freedom, security and justice lies in relations with third countries, which calls for improving the link between the EU’s internal and external policies. This has to be reflected in the internal organisation of the EU institutions and bodies. Coordination with and within the Member States should be stepped up.

3.             Building on the past programmes, the overall priority is now to consistently transpose, effectively implement and consolidate the legal instruments and policy measures in place. Intensifying operational cooperation, enhancing the role of the different EU agencies and ensuring the strategic use of EU funds will be key. In further developing the area of freedom, security and justice over the next years, it will be crucial to ensure the protection of fundamental rights, including data protection, whilst addressing security concerns, also in relations with third countries, and to adopt a strong EU General Data Protection framework by 2015.

4.             Faced with challenges such as instability in many parts of the world as well as global demographic trends, an ageing population and skills shortages in Europe, the Union needs an efficient and well-managed migration and asylum policy. A comprehensive approach is required, optimizing the benefits of legal migration and offering protection to those in need while tackling irregular migration resolutely.

5.             To remain an attractive destination for talents and skills, Europe must compete in the global race for talent. Strategies to maximise the opportunities of legal migration should be developed, including the streamlining of existing rules and a dialogue with the business community. The Union should also support Member States' efforts for active integration policies which foster social cohesion and economic dynamism.

6.             The Union's commitment to international protection requires a strong European asylum policy based on the Treaty's principles of solidarity and responsibility. The full transposition and effective implementation of the Common European Asylum System (CEAS) is an absolute priority. This should result in high common standards and stronger cooperation, creating a level playing field where asylum seekers are given the same procedural guarantees and protection throughout the Union. It should go hand in hand with a reinforced role of the European Asylum Support Office (EASO), particularly in promoting the uniform application of the acquis. Converging practices will enhance mutual trust and allow to move to future next steps, including mutual recognition of asylum decisions.

7.             Addressing the root causes of irregular migration flows is an essential part of the EU migration policy. It is imperative to avoid the loss of lives of migrants undertaking hazardous journeys as well as to prevent and reduce irregular migration. A sustainable solution can only be found by intensifying cooperation with countries of origin and transit. Migration policies must become a much stronger integral part of the Union's external and development policies, applying the more for more principle and building on the Global Approach to Migration and Mobility. The focus should be on the following elements:

- strengthening and expanding Regional Protection Programmes, in particular in the Horn of Africa, in close collaboration with UNHCR. In view of the protracted crisis in Syria, increase contributions to global resettlement efforts;

- addressing smuggling and trafficking in human beings more forcefully, with a focus on priority countries and routes. Particular attention should go at present to the situation in Eritrea and the Sinai;

- establishing an effective common return policy and enforcement of readmission agreements;

- fully implementing the actions identified by the Task Force Mediterranean.

8.             The establishment of the Schengen zone, allowing people to travel without internal border controls, and the increasing numbers of people travelling to the EU require efficient management of the EU's external borders to ensure strong protection. This is in the first place the role of the Member States, which must fully take their responsibilities. At the same time the Union must mobilize all the tools at its disposal to support them in this task. To this end:

- the integrated management of the external borders should be modernised to ensure smart border management with an entry-exit system and registered travellers programme and helped by the new Agency for Large Scale IT systems (EU-LISA);

- Frontex, spearheading European solidarity in the area of border control, should reinforce its activities in terms of operational assistance and increase its reactivity towards rapid evolutions in migration flows, making full use of the new European Border Surveillance System EUROSUR;

- the possibility of setting up a European System of Border Guards to enhance the control and surveillance capabilities at our external borders should be explored.

At the same time, the common visa policy needs to be modernised by facilitating legitimate travelling while maintaining a high level of security and implementing the new Schengen governance system.

9.             It is essential to guarantee a genuine area of security to European citizens by preventing and combatting organised crime, human trafficking and corruption. At the same time, an effective EU Counter terrorism policy is needed, whereby all relevant actors work closely together, integrating the internal and external aspects of the fight against terrorism. In this context, the European Council reaffirms the role of the EU Counter Terrorism Coordinator. In its fight against organised crime and terrorism, the Union should back the national authorities by mobilising all instruments of judicial and police cooperation, with a reinforced coordination role for Europol and Eurojust, including through:

- the review of the internal security strategy;

- the improvement of cross-border information exchanges, including on criminal records;

- the development of a comprehensive approach to cybersecurity and cybercrime;

- the prevention of radicalisation and extremism and addressing the phenomenon of foreign fighters, including through a legal instrument allowing for EU wide alerts.

10.         The smooth functioning of a true European area of justice with respect of the different legal systems and traditions of the Member States is vital for the EU. In this regard, mutual trust in each other's justice systems should be further enhanced. A sound European justice policy will contribute to economic growth by helping businesses and consumers to benefit from a reliable business environment within the internal market. Further action is required to:

- promote the consistency and clarity of EU legislation for citizens and businesses;

-simplify access to justice; promote effective remedies and use of technological innovations including the use of e-justice; 

- examine the reinforcement of the rights of persons, notably vulnerable persons, in civil procedures to facilitate enforcement of judgements in family law and in civil and commercial matters;

- enhance mutual recognition of decisions and judgments in civil and criminal matters;

- reinforce exchanges of information between the authorities of the Member States;

- fight fraudulent behaviour and damages to the EU budget by advancing negotiations on the European Public Prosecutor's Office;

- facilitate cross-border activities and operational cooperation;

- enhance training for practitioners;

- mobilise the expertise of relevant EU agencies such as Eurojust and the Fundamental Rights Agency (FRA).

11.         As one of the fundamental freedoms of the European Union, the right of EU citizens to move freely and reside and work in other Member States needs to be protected, including against possible abuse or fraudulent claims.

12.         The European Council calls on the EU institutions and the Member States to ensure the appropriate legislative and operational follow-up to these guidelines and will hold a mid-term review in 2017. 

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The Pro-European case for a renegotiation of and referendum on the UK’s membership of the EU

By Steve Peers

The Prime Minister, lacking a majority in the House of Commons, is harried by his Eurosceptic backbenchers. He promises a renegotiation of the UK’s membership of the EU, followed by a referendum on whether to stay in. It’s 2014 – but it’s also 1975.

That renegotiation and referendum ultimately resulted in a landslide vote in favour of staying in the EU. While the circumstances are different in some respects in 2014, there is a strong case for repeating this process.

The argument for a referendum on the EU has so far been made either by those who are opposed to the UK’s membership of it (UKIP), or as a concession to those backbenchers who are highly critical of it (the Conservative party). On the other hand, it has been resisted by those who are most in favour of the EU.

In that light, the purpose of this post is two-fold: (a) to make a pro-European case for a referendum and (b) to describe exactly how the UK should renegotiate its membership beforehand.

The pro-European case for a referendum

The case for a referendum on EU membership should stand on its own, and should not be seen as a defensive reaction to the results of the most recent European Parliament elections.

First and foremost, since 1975 there have been five major Treaty amendments, as well as substantial enlargement of the EU. The political and economic circumstances of the country, and the EU as a whole, have clearly changed. There is therefore a principled argument for allowing the voters to give their fresh consent (or not) for these developments.  

Secondly, the continued pro-European rejection of a referendum has made it possible for critics of the EU to characterise pro-Europeans as anti-democratic. Of course, it can be argued in response that representative democracy is also a valid form of democracy, one with longer and deeper roots in British political culture, and that the UK Independence Party has never (at least to date) won a single seat in the House of Commons. But in light of the growing tradition to decide important constitutional questions by popular referendum, that counter-argument has diminishing force. After all, voters cast their vote at general elections for many reasons besides their view on membership of the EU.

More broadly, pro-European opposition to a referendum makes it look as if pro-Europeans do not have the courage of their convictions. If the EU is, as they say, such a good thing for the UK, why fear a popular vote on it? In fact, on several occasions, pro-Europeans have promised a referendum on some aspect of the EU, and then apparently (if not technically) reneged on their promise. This gives the impression that pro-Europeans cannot be trusted, and so leads some voters to question the honesty of their arguments. The longer that pro-Europeans resist the case for a referendum, the more that these negative impressions will grow. Put simply, the pro-European resistance to an in/out referendum is surely damaging the pro-European cause.

While Labour and the Liberal Democrats have promised an in/out referendum, this would only take place in the event of a new Treaty transferring powers from the UK to the EU. While it is possible that there will be negotiations for Treaty amendments in the next few years, it is inconceivable that those parties would agree to the transfer of fresh powers from the UK to the EU in that context. So that referendum promise is meaningless. The Labour and Liberal Democrat position is like promising that if I had a sex change, I would stay married to my wife. But I’m not going to get a sex change.

In any event, the very offer of an in/out referendum, even  if the conditions for it to be held are unlikely ever to be satisfied, undermines the logic of the arguments against having such a referendum.

It must be emphasised that the case for a referendum is non-partisan: advocating a referendum does not necessarily mean supporting British withdrawal from the EU, or supporting any other policy espoused by the Conservative party.  

So the pro-European response to calls for a referendum should no longer be to find an excuse not have one, to promise one and renege on that promise, or to promise one that will never be held.  It should be, simply: Bring it on.

Renegotiation of UK membership

Before examining the details of renegotiation, one critical rule must be set down at the outset. Any renegotiation position must avoid insisting upon Treaty amendment, or upon a change in EU law which necessarily involves Treaty amendment (such as complete UK control over the free movement of persons). That’s because a Treaty amendment will be far more difficult to achieve, in particular if it becomes bound up with other possible amendments to the Treaties concerning other issues. Those who demand that such renegotiation positions (such as full control over the free movement of persons) should be a ‘red line’ are essentially dishonest. If that issue is crucially important to them, they should instead call for UK withdrawal of the EU, with all of the consequences which that entails.

In fact, back in 1975, other Member States agreed to a renegotiation consisting of amendments to EU secondary legislation, and the British public ultimately accepted that deal. Again, it would be possible today to address many of the issues arising from the UK’s membership of the EU by amending secondary legislation. Indeed, Jean-Claude Piris recently arguedthat the negotiation demands set out by David Cameron could all be addressed by amendment of secondary EU legislation.

As discussed in a previous post, this is correct. However, there is a risk that the critics of the EU would not be entirely satisfied by it. The better strategy is therefore to aim for an intermediate course: in conjunction with amendments to EU secondary legislation, there should be a decision of the EU Heads of State and Government, meeting within the European Council, which constitutes the EU’s response to the renegotiation request.

Such Decisions have been adopted in the past, as regards Denmark and Ireland, in order to address the former Member State’s difficulties ratifying the Maastricht Treaty and the latter Member State’s difficulties ratifying the Treaty of Lisbon. In the latter case, the European Council also agreed the broader legal and political context of this decision: the decision was ‘legally binding’, it did not constitute a Treaty amendment, and its content would be set out in a Protocol to be attached to the Treaties in future. Indeed, the latter protocol was subsequently signed as promised. The UK could be offered a similar commitment.

In order to indicate more clearly how the renegotiation would work, the annex to this post suggest a possible wording for such a decision, based upon the 2009 Decision concerning Ireland, adapted to the Conservative party’s negotiating demands.

The Heads of State or Government of the 28 Member States of the European Union, whose Governments are signatories of the Treaties,

Taking note of the concerns of the British people identified by the Prime Minister of the United Kingdom,

Desiring to address those concerns in conformity with the Treaties,

Having regard to the Conclusions of the European Council of [xx date] 2017,

Have agreed on the following Decision:

Section A

Enlargement and the movement of persons

In every forthcoming enlargement of the European Union, the current Member States agree that the free movement of persons from a new Member State will be dependent on a unanimous decision of the Council, which will be taken at the latest once the income of the new Member State concerned is 75% of that of the other Member States of the European Union.

Section B

Free movement of persons and social benefits

The Heads of State and Government confirm that, in accordance with the jurisprudence of the Court of Justice of the European Union, Member States may deny benefits to nationals of other Member States who are not workers or self-employed persons.

Note: see the recent Advocate-General’s opinion in the Dano case (press release here); see also the previous post discussing the current limits on expelling persons following unemployment and/or requests for social assistance.

Section C

Powers of national parliaments

The Heads of State and Government take note of the Commission’s firm commitment that, building upon the Protocols on national parliaments and on subsidiarity and proportionality attached to the Treaties, it will withdraw any proposal which is opposed by one-third of Member States’ parliaments.

Section D

Economic reform

The Heads of State and Government [make specific commitments as regards free trade agreements and amendments to EU legislation, or refer to such agreements and treaties which have already been agreed].  

Section E

Policing and criminal law

The Heads of State and Government reaffirm the United Kingdom’s sovereign power not to opt in to proposals for new legislation on criminal law or policing pursuant to the Protocols attached to the Treaties, and the provisions of the Treaties which require respect for the national identity and legal system of every Member State.

They confirm their strong support for the ongoing process of reform of the system established by the European Convention on Human Rights.

Note: if the process of ECHR reform is completed before the UK renegotiation of its EU membership, there could be a more specific commitment to give effect to the results of that process, for instance ratifying a new protocol to the ECHR.

Section F

Reduction of EU competences

The Heads of State and Government reaffirm that In accordance with Article 48 TEU, the competences conferred upon the Union can be reduced. In accordance with Articles 2 and 4 TFEU, the European Union can choose to exercise its competences less intensively in those areas where it shares competence with its Member States.

Note: this could be accompanied by specific commitments to repeal or reduce the scope of some existing EU legislation.

Section G

‘Ever Closer Union’

The Heads of State and Government confirm that the commitment in the Treaties to ‘ever closer union’ has no specific legal effect. It does not require that further competences be conferred upon the Union, or that the Union must exercise its existing competences. Nor, in accordance with Section D, does it constrain the Member States from adopting Treaty amendments which reduce the Union’s competences, or constrain the Union from choosing to exercise its competences less intensively.

Barnard & Peers: chapter 2, chapter 5, chapter 13, chapter 25

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The next Justice and Home Affairs Programme: everything changed, so nothing can change?

By Henri Labayle and Emilio De Capitani 

The Council Presidency has started sailing toward the next phase of the EU's Area of Freedom, Security and Justice. However, "if a man does not know what port he is steering for, no wind is favourable to him" (Seneca) 

Soon to be debated by Coreper (the Member States’ representatives to the EU), the Greek Council Presidency proposals for the future European Council guidelines on the post-Stockholm Programme in the Area of Freedom, Security and Justice (AFSJ) are quite disappointing , if not disturbing.  Back in Tampere in 1999, the European Council (the heads of state and government of Member States) succeeded in the double challenge of framing  their internal security in a supranational dimension by preserving at the same time the smooth evolution of the EU machinery. That spirit now seems far away.

Quite the contrary, the perspective proposed by the Council Presidency looks quite surreal, if not disconnected from reality. Probably this is not a coincidence, so that  we have to consider that such blindness is a deliberate choice , leading us to wonder , as it happens in any good detective story , to whom the crime will be beneficial...  However what is already clear is that these draft guidelines will hardly be in the interest of the European Union citizens (totally ignored by the text), and not even in the interest of the European Union itself, whose effectiveness will hardly be strengthened.

I - The democratic imperative

The recurrent statement according to which the European citizen is "at the heart " of the security concerns of the actors of the AFSJ has become a hollow phrase - as is the attempt to bury this space in commercial considerations.

EU public opinion will not be mistaken as probably will be vividly confirmed by the incoming May European elections. For the first time, in fact, alongside the traditional criticism of the Union’s democratic deficit and its consequences,  European Union citizens will be critical of one of its main achievements: the free movement of persons.

From questioning Schengen cooperation, to the threats of restoring controls at the internal borders, to the increasing fears of the migration challenge, scathing public criticism is rising, focused more and more on the objectives, content and operation of the AFSJ.

Yet this dangerous trend is plainly ignored in the Council Presidency document. 

Written with a muffled style, the document describes the current state of things as if we were in an unchanging political and legal landscape, by closing its eyes to the new dynamics which are spreading at the core of the common space.  But these new dynamics and events should compel another look at the possible future of the AFSJ.

1. The institutional context

The first event which should have been taken into account is the end of the transitional period for the measures in criminal matters adopted before the entry into force of the Lisbon Treaty (see the current list here); it will trigger the full competence for the Court of Justice of the European Union (CJEU), as well the corresponding Commission duty to bring to justice Member States which have not correctly transposed the EU measures. The first signs are not encouraging and it is more than likely that on 1^st December 2014 we will discover that in most Member States dozens of EU measures adopted in the last fifteen years have never been transposed.

Moreover with the end of the transitional period we be faced also with the UK opt-out from those measures, along with the UK’s request to re-negotiate a possible opt-back-in to some of these acts (see the state-of-play on that issue here). Apart the legal complexity of such a political and institutional exercise, the question will arise whether, as a consequence of the UK opt-out, UK citizens will continue to benefit or not from the same degree of security and freedoms as  the EU citizens of other Member States.

Another controversial issue, from an EU citizens’ perspective, will be the persistent European Council determination to debate and adopt the new AFSJ guidelines even though the new Parliament and the new Commission are not yet in a position to give their contribution. This decision shows clearly how the European Council underestimates the importance of the democratization of  the Area of Freedom Security and Justice. The risk, however, is that this will be a short-sighted approach  because without a clear commitment of the EP and of the Commission, the “Lisbonisation” of the former Framework Decisions or the adoption of pending legislative proposals (Eurojust, European Public Prosecutor…) will be impossible. Also, this would damage the quality of the future dialogue with institutions which will act in a possibly different political context, less open than before to political compromises.

The lack in the Council Presidency document of any critical assessment of the EU institutions’ organizational choices is also appalling. Take, for instance, the persistent lack of dialogue between interior and justice ministers (as implicitly admitted by the document itself). 

Take for instance the Commission choice to split AFSJ policies between two Commission portfolios immediately after the long awaited consolidation of the first and third pillar, the lack of clear institutional  responsibility to face the new challenges arising from the new EU responsibilities on migration and fundamental rights, or, last but not least, even the way in which new EU agencies in these domains are created without a consistent strategy and a credible democratic accountability.

Similarly, how to judge the long passages devoted by the Council document to the "external dimension" of the AFSJ, which has not deserved anything except the politically correct discourse that had accompanied it since 1998? Everyone knows that this external dimension is far from a success story.  Someone should then explain why by a sort of miracle the EU foreign policy failure should lead to a better result when applied to migration or law enforcement.  Acting in a very different legal and institutional framework how can the Common Foreign and Security Policy actors be so closely intertwined within the AFSJ policies as envisaged by the Council Presidency document ? It will be quite a challenge to frame consistently EU agencies’ activity, enforcing (by unanimity) the external and internal security policy, to say nothing of the need to remove bureaucrats and diplomats from these policies. For instance, see the case of mobility partnerships with third countries, or the Global Approach to Mobility and Migration or the so-called "policy cycle", all instruments negotiated and implemented without any credible intervention at European or national level. 

Last but not least the absence of any reference to the possible outcome of the EU accession  to the ECHR shows how the Council (and the Governments) have not yet understood how after the Treaty of Lisbon the European Union’s judges can be decisive.  Has anyone understood how strong the CJEU’s message was in the Kadi ruling on freezing assets of alleged terrorists or in the Digital Rights ruling on data retention for security purposes ? Have they not understood that the European Union’s judges have become now full fundamental rights judges with growing responsibilities to answer the questions raised by the EP and EU citizens in the post Snowden phase ?           

2 . The AFSJ Material Context

It has been profoundly shaken, but the Council has not taken into account the impact of this evolution.

First:  transparency should be the keyword for a legitimate legislative and administrative action.

Second: Protection  of personal data can no longer be treated dealt as it was before Lisbon and the recent CJEU jurisprudence.

Third : new technologies can play an essential role in the security and migration domains. However how should we frame their role while respecting the criteria of proportionality and necessity highlighted in the recent EU jurisprudence ?

II - The challenge of efficiency

An efficient EU action in the AFSJ is important as its constitutional and political framework. However you can’t be effective without the active support of Member States and of EU citizens. Again, regrettably the Council Presidency document misses the target also on this perspective.

Surely everyone can support the principles outlined in the document in favour of quality and efficiency of EU action. However the implementation of these principles requires credible measures and evaluation procedures of the MS action.

1. The principle of solidarity and burden-sharing

As recently recalled in several occasions by the European Parliament, in the AFSJ solidarity and fair sharing of responsibility cannot be dissociated and are the basis of the EU “common” policies on borders, asylum and migration. Solidarity is not then an expression of goodwill but an aspect of the Member States’ collective responsibility before EU citizens when protecting the same EU borders. However in a sort of understatement the document recognises that “…there is no full consensus on the prospect of far-reaching burden-sharing mechanisms (the allocation of beneficiaries of international protection, asylum seekers, irregular migrants and non-removable returnees (3rd country nationals whose return is not possible) even though an important number of Member States claim that this is the logical consequence of the solidarity principle and of the huge current threat they are facing, which risks to disrupt their societies”.

Yet the Council Presidency, instead of proposing a possible strategy also for non-financial aspects of solidarity (such as joint permanent teams and structures), proposes as a priority for the coming years to …assess the costs of the EU and Member States. But this should have been done years ago (even before the ratification of the Lisbon Treaty) or at least during the negotiation of the last Multiannual financial programmes for the AFSJ for 2014-2020. To raise again such an idea five years after the entry into force of the Treaty of Lisbon and of the Charter looks more as a further excuse to avoid the burden of shared responsibility as written in the Treaties. 

2 . Evaluation

According to the Council Presidency document “…an overarching priority for the future should be the quality and effectiveness of the EU law….There is a need to evaluate consistency and effectiveness of the existing legislative framework in the JHA area ..(and) … to ensure a proper transposition and implementation of the already existing instruments.”

These ideas should be more than welcome in the AFSJ domain where until now information is rarely sent to the Council and/or the Commission,  many EU measures are still to be transposed by a majority of Member States, and when those data which are available are not comparable (so that it took years before sharing comparable data on migratory movements). Such lack of cooperation between the Member States and the EU institutions is not specific to the AFSJ (as it is widely present also as regards internal market legislation) but in the AFSJ the outcome of these shortcomings is a lower level of trust between the Member States and the risk of problems when applying mutual recognition measures (be it in the asylum domain or as regards  judicial cooperation in criminal matters).

The Council Presidency rightly refers to Article 70 of the TFEU, which provides for the adoption of measures concerning evaluation specific to the AFSJ. However, so far this legal basis has been employed (after a strong confrontation with the EP) only for the Schengen evaluation mechanism, so it remains to be seen if it could become a reference also for the other AFSJ policies.

But after the CJEU N.S. ruling (C-411/10) a new generalised form of mutual evaluation has been created (which is practically ignored by the Council document) according to which any national authority has the duty to verify “if there are substantial grounds for believing that there are systemic flaws” of fundamental rights policies in the other member states.

This concept has now been mirrored in the recent Directive on the European Investigation Order where the legislator acknowledges that “The creation of an area of freedom, security and justice within the Union is based on mutual confidence and a presumption of compliance by other Member States with Union law and, in particular, with fundamental rights. However, that presumption is rebuttable.(emphasis added) …Consequently, if there are substantial grounds for believing that the execution of an investigative measure indicated in the EIO would result in a breach of a fundamental right of the person concerned and that the executing State would disregard its obligations concerning the protection of fundamental rights recognised in the Charter, the execution of the EIO should be refused.”

Conclusions

It has still to be seen if and how the Council Presidency document will be taken into account by Coreper this week and by the Justice and Home Affairs Council early in June. So far it is just a hanger to hang hopefully new progressive ideas on.

However the risk exists that even after the inexplicable acceleration given by the European Council to adopt the AFSJ guidelines in the absence of the Parliament and of the Commission the EU citizens will discover that the emperor is… naked.

Barnard & Peers: chapter 3, chapter 25, chapter 26 

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Democracy and its discontents: Should the results of the European Parliament elections determine the next President of the European Commission?

Steve Peers

It is highly unlikely that the next President of the European Commission will be decided by the Court of Justice of the European Union (CJEU).  Law sets the framework in which elections take place, but usually does not directly impact upon the outcome - although there are important exceptional cases to the contrary, such as the American election of 2000.

The election of the Commission President in 2014 is also an exceptional case, at  least to the extent that the rules have changed and their interpretation is contested. Previously the President was appointed by the European Council, after approval of its preferred nominee by the European Parliament. The new rules, which were introduced by the Treaty of Lisbon and are now being applied for the first time, now specify that the President is 'elected' by the European Parliament, on the basis of a nomination by the European Council, 'taking account of' the results of the election to the European Parliament.

At first glance, the rules have not really changed, given that the European Council anyway has assumed since 1999 that the Commission President had to come from the same political background as the largest party in the European Parliament. However, the majority of European political parties take the view that the Treaty amendments mean that they should nominate their preferred candidate for the job of Commission President before the elections, and that the candidate preferred by the party winning the most seats should be the next Commission President.

They take this view not only because of the change in the rules, but also because of the more fundamental political consideration that enhancing the link between the election to the Parliament and the Commission President selection would enhance the democratic legitimacy of the EU. Voters would be selecting the EU executive in the same way that the votes in national parliamentary elections select the executive in Member States with parliamentary systems.

However, this interpretation is not uncontested. The ECR party (technically the AECR party, in the election), which includes the British Conservatives, will not name a candidate, since it objects in principle to the link between elections to the European Parliament and the selection of the Commission President, and is running wholly national campaigns instead. The EFD party, which includes the UK Independence Party, will not name a candidate either. Moreover, Angela Merkel, the German Chancellor, does not accept any automatic link between the. EP elections and the nomination of the Commission President. Finally, the UK Labour party doesn't support the candidate chosen by the Party of European Socialists as its nominee for Commission President, although it nevertheless agrees in principle to the idea of the parties nominating such candidates.

The ECR party objects to the idea of the European Parliament elections deciding the Commission President on grounds of democraticy legitimacy, because it believes that there is no public demand for the move and that the principal method of legitimacy of EU policies should be via the mans of national governments. A detailed critique of the idea, by Heather Grabbe and Stephan Lehne for the Centre for European Reform, also objects to the proposal on a number of grounds.

Post-election scenarios

It's always risky to guess the results of a political  process, but it's necessary in this case because the idea of a 'partisan' Commission President can't be judged without making certain assumptions about what will happen at the time of the next appointment. The Grabbe/Lehner paper suggests three scenarios: (a) the EP wins the argument and the largest party's candidate is proposed by the European Council without demur; (b) a deadlock between the European Parliament and European Council results over the appointment; and (c) a backroom deal is done. They were writing in October 2013, when (c) seemed more probable; in the meantime, the European People's Party looks less likely (as they had assumed) to win the largest number of seats, and is going ahead with its plan to nominate a candidate.

However, there could still be a messy deadlock. Whichever party wins the most seats in the European Parliament in the May elections will not hold a majority of the seats, due to the application of proportional representation voting as required by the EU Treaties. So for it to vote down the preferred nominee of the European Council, it will need the support of some other parties. Equally it will need the support of some other parties for its preferred candidate for President to be elected - assuming that the European Council puts that name forward in the first place. If the European Council fails to put that name forward, there could indeed be a deadlock.

Having said that, it should be recalled that the European Parliament has always sought to enhance its role in the appointment of the Commission. It began to hold hearings for nominees to the Commission even before it gained a decisive role in its appointment. And when the last two Commissions were appointed, it found a way to reject individual nominees, even though the Treaties don't provide for this. It might therefore be expected that if it comes to it, a majority of MEPs would veto any candidate for Commission President who is not the nominee of the largest party, and that the European Council will recognise reality accordingly. In effect, when it comes to appointment of the Commission President, the European Council would become the equivalent of a constitutional monarch like Queen Elizabeth II.

Is the 'election' of the Commission President via the European Parliament elections a good idea?

Just because it seems to be increasingly likely to happen, does not necessarily mean that it is a good idea. Let's look first of all at one set of arguments advanced by Grabbe/Lehne, concerning its potential effect on the effectiveness of the Commission. First of all, they argue that a 'partisan' Commission President could not do his or her job effectively, given the number of Commission tasks which require objective assessment, namely economic governance, state aids, competition, human rights and infringement actions. Secondly, they argue that a President elected via the EP elections might not be a leading political figure, and would be less able to work closely with national governments. Thirdly, he or she would be beholden to the EP, and therefore his or her initiatives would be blocked by the Council, resulting in the legislative gridlock familiar to Americans. Fourthly, given that the other Commissioners are chosen by the Member States, it is possible that the President comes from one party and the majority of Commissioners will come from the opposing political background.

The second set of arguments concern the legitimacy and democratic credentials of the notion. Here the Grabbe/Lehne argument overlaps with the ECR's explanation of its position. Both argue that the EP is remote from its constituents, and that enhancing the link with the selection of the Commission President will not change this, given that the candidates will not have wide recognition.

These are all valid arguments in principle, so let's examine them one by one. First of all, it should not be forgotten that many of the Commission's more technical tasks have been transferred to EU agencies, and that its main task remains the proposal of legislation. There are obviously political choices to be made about which legislation is proposed by the Commission, and about the content of Commission measures implementing it. State aid and competition decisions are anyway subject to objective rules and can be challenged in the courts, and the Commission's infringement actions have to be made out in court. It would be a good idea, if the Commission President were 'partisan', to establish mechanisms to ensure that the less political aspects of its decision-making are separate from its political choices. But this is not impossible: see, for instance, the separation of the European Central Bank's functions as regards (politically accountable) banking supervision from its role as an independent central bank. Anyway, the Grabbe/Lehner argument forgets that since 1999, the Commission President has already been chosen from the party which won the most seats in the EP - without any sign of contamination of the Commission's more technical tasks.

Secondly, while it seems likely that the next Commission President will not be a former Prime Minister (unlike the last three Presidents). However, this is not a guarantee of effectiveness: the most effective Presidents (Hallstein and Delors) had not been Prime Ministers, whle the least effective President (Santer) had been. This line of argument assumes that neither the Member States nor the Commission President will make any effort to work effectively with the other, but this seems unlikely. The history of the EU shows a continuing attempt to reach a broad consensus between institutions. Similarly, as regards the third argument, any Commission President is bound to know that his or her initiatives have to obtain the support of a least a qualified majority in the Council.

The fourth argument (the partisan mix of the Commission) is perhaps the strongest point. To draw an analogy, it is difficult enough for the British Conservative party to accept that it has to govern with a minority of Liberal Democrats in the cabinet. So how could a government work if David Cameron were Prime Minister, with a majority of cabinet members from the Labour party?

The answer is that the EU institutions also seek broad consensus within them. In fact, due to the different makeup of the different governments of the Member States, the Commissioners have always had a broad mix of political backgrounds. Also, the Grabbe/Lehner thesis overlooks the Treaty provisions which seek to reinforce the influence of the Commission President: the requirement of all Commissioners to work under his guidance and her ability to sack individual Commissioners. The added legitimacy of indirect election of the President would only reinforce this. Plus, as noted above, the Commission President will need the support of several political parties to be elected anyway. Finally, a more radical answer to this critique is that the EP should go further, expecting the political parties to nominate an entire team of Commissioners which would constitute the next Commission. So far, of course, this step has not been taken.

As for the argument about political legitimacy, the poll which the ECR commissioned to justify its decision not to run a candidate was very interesting. While large numbers of voters were critical of the EU's legitimacy, and were not familiar with the names of the candidates for Commission President, the bigger percentage of respondents agreed that they were 'happy' with the idea of the vote for the EP elections determining who would become Commission President, because this would make the EU more democratic. This was particularly pronounced in Poland, where the poll of Poles (I couldn't resist) indicated that 50% supported the idea, while only 19% were opposed. The idea was also supported in France, Italy and Spain, but opposed in Germany and the UK - which makes the British Conservative position (and perhaps also the UK Labour Party's contortions) understandable.  In any event, the poll suggests that many of those who think the EU lacks legitimacy would be 'happy' with the idea of enhancing that legitimacy by means of the indirect election of the Commission President. And how many people had heard of Barroso, in February 2004? Or Obama, in January 2008?

This is ultimately the decisive argument in favour of indirect election - the need to attempt to forge a greater democratic link between EU citizens and the Union. The idea certainly has its flaws, but for the reasons set out above, the existing EU institutional system can adjust to accommodate it. Those flaws are outweighed by the advantages of seizing the opportunity to take a significant step towards democratising the EU, and giving the voters an opportunity, however indirect, to (in Weiler's terms) 'throw the rascals out'. Nor does it mean that the EU necessarily becomes more centralised. In my view, the debate on the future of the EU could only have benefited from (for instance) John Major setting out the ECR's case across Europe for a less centralised, less regulated EU focussing on free trade.


Barnard & Peers: chapter 3

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