EU Zombie Law: the CJEU re-animates the old 'third pillar'

 

Steve Peers

Back in 1993, when the Maastricht Treaty entered into force, the EU began adopting measures on criminal law and policing under a peculiar institutional system, known in practice as the ‘third pillar’ of EU law. This system was amended by the Treaty of Amsterdam in 1999, and then survived several attempts to kill it over the next decade; indeed I once compared it to Rasputin. The Treaty of Lisbon nominally finished it off it as from that Treaty’s entry into force (1 December 2009); but this was subject to a five-year transitional period.

That makes it sound as though the third pillar finally came to an end on 1 December 2014 – but it did not. Indeed two judgments of the CJEU yesterday (here and here) not only maintain old third pillar measures in force, but allow new measures based on them to be adopted. Third pillar measures aren’t exactly dead yet – rather they are undead. Let’s take a look at these zombies of EU law.

Background

The Treaty of Lisbon has a transitional Protocol, which contains two rules relating to the third pillar. First of all, Article 10 sets out the five-year transitional period, after which the normal jurisdiction of the CJEU would apply to the measures concerned. At the same time, the UK could choose to opt out of all of these measures, and then opt back in to some of them, as it indeed did last year (see discussion here).

Secondly, Article 9 of that Protocol, which is not subject to a time limit, states that third pillar measures adopted before the entry into force of the Treaty of Lisbon stay in force until they are amended or repealed. Some of them have been amended or repealed, or will be soon (the law establishing Europol, for instance). But the majority remain in force, including the controversial law establishing the European Arrest Warrant (EAW).

Why does this still matter? First of all, the pre-Lisbon measures don’t confer direct effect on individuals, so can’t be invoked to create rights in national courts. Secondly, this means that the European Parliament (EP) has not had any real say in the adoption of these measures. In particular, the EP has a lot of excellent suggestions for the reform of the EAW. Thirdly, a legal question arises as to whether the pre-Lisbon measures can serve as a legal basis for the adoption of new measures even after the entry into force of the Lisbon Treaty. This question was answered by yesterday’s judgments.

Judgments

The EP challenged the validity of post-Lisbon Council measures which had implemented pre-Lisbon EU criminal law acts, in particular giving police forces access to the EU’s Visa Information System and prohibiting some new designer drugs. There are parallel actions still pending, against measures implementing pre-Lisbon laws establishing Europol and the ‘Prum’ system of exchanging data between national police forces.

The reason for the EP’s objection to these measures was that the Council exercises these powers by means of a qualified majority vote, and argues that it does not have to consult the EP at all, since the legal requirement to consult the EP was set out in the old third pillar rules in the Treaty, which were repealed by the Treaty of Lisbon. In the EP’s view, the Council should use the post-Lisbon rules for the adoption of implementing measures, ie giving the Commission the power to adopt delegated acts over which the EP has control. Alternatively, fresh EU legislative acts have to be adopted; these would be subject to the ordinary legislative procedure.

The CJEU ruled that, in accordance with Article 9 of the transitional protocol, the pre-Lisbon measures remain in force. In the Court’s view, that also means that the Council is entitled to adopt implementing measures following the pre-Lisbon process. However, the Court, unlike the Advocate-General, said that the Council at least has to consult the European Parliament on these measures. It reasoned in effect that the cross-reference to the repealed Treaty rules in the pre-Lisbon legislation retained those rules in force.

Comments

The Court’s ruling in effect allows the Council to create new third pillar acts long after the third pillar has nominally died. It’s as if zombies could procreate, and give birth to baby zombies (I’m going for a ‘grossest legal analogy’ award here).  Furthermore, the Court’s reasoning as regards the EP’s partial victory means that to some extent, even aspects of the long-dead Treaty rules on the third pillar have now been zombified by the Court.

How much damage could these zombies do? There’s no risk of the famous ‘zombie apocalypse’ affecting EU law. Apart from these implementing measures, all other EU criminal law acts adopted since the Treaty of Lisbon have taken the normal EU form of Directives and Regulations, and have been subject to the post-Lisbon procedures (usually the ordinary legislative procedure). Many pre-Lisbon EU measures (such as the EAW law) don’t provide for implementing measures, and some of those which do (such as the Europol law, as mentioned already) will be replaced soon.

The Court’s rulings are a reasonable legal interpretation of the transitional rules. But the broader political problem remains: many controversial measures affecting civil liberties have had no real input from the EP. Since its resort to the courts has had only limited success, the EP should now consider alternative means (blocking legislation or budget disbursements) to achieve the goals of reviewing pre-Lisbon EU criminal laws – and in particular securing much-needed reforms to the EAW.

 

Photo credit: renewablenow.biz

Barnard & Peers: chapter 25

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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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Is the EU coming to save legal aid, or to bury it? An assessment of negotiations on the proposed Directive

 

by Claire Perinaud (FREE Group Trainee)

For many people facing criminal charges, legal aid is essential if they wish to defend themselves effectively. The EU is planning to adopt legislation on this issue in the near future. But will it actually make a significant contribution to ensuring suspects’ rights in this area?

State of implementation of the Procedural rights roadmap.

After years of unsuccessful attempts, starting in 2004 with a general Commission proposal on procedural rights, it was only from the end of 2009 that the EU legislation on procedural rights for suspects and accused persons in criminal proceedings has progressively taken shape. This was due to the entry into force of the Treaty of Lisbon (TFEU art. 82(2) now confer the power to adopt legislation on this issue), to article 47 of the Charter of Fundamental Rights (providing for the right to a fair trial) and to a political “roadmap” by which, in November 2009 the Council relaunched the Commission original proposals following a step-by-step approach instead of trying to adopt comprehensive legislation as initially foreseen in 2004.

However it is more than likely that this pragmatic approach and the transition from unanimity to qualified majority voting of the EU Member States in the Council (as from the entry into force of the Treaty of Lisbon) has made possible the adoption in co-decision with the European Parliament of the three first legislative measures on suspects’ rights: Directive 2010/64/EU on the right to interpretation and translation in criminal proceedings; Directive 2012/13/EU on the right to information in criminal proceedings; and Directive 2013/48/EU on the right of access to a lawyer in criminal proceedings.

Building on this success, at the end of November 2013 the Commission proposed a second “package” of suspects’ rights measures, comprising: a directive on procedural safeguards for children who are suspected or accused in criminal proceedings; a recommendation on procedural safeguards for vulnerable people suspected or accused in criminal proceedings; a directive strengthening of certain aspects of the presumption of innocence and of the right to be present at trial in criminal proceedings; a directive on the right to provisional legal aid for citizens suspected or accused of a crime; and a recommendation on the right to legal aid for suspects or accused persons in criminal proceedings.

In 2014 the Council already reached a general approach on the proposal for a directive on procedural safeguards for children and on the directive on the presumption of innocence. On this basis the dialogue between the Council and the European Parliament (EP) is about to start and it is possible that in the coming months an agreement could be reached so that these texts could be adopted already at the EP’s “first reading”.

Last week the Council reached (after eight months of internal negotiations!) a general approach also on the draft Directive on provisional legal aid for persons deprived of liberty in criminal proceedings and will start in the coming weeks the dialogue with the Parliament also on this text.  

The coming months will then be extremely important for EU procedural rights in criminal matters even if it will not be easy to achieve the high results that the European Parliament and some Member States were expecting. In the absence of the energetic push of the former Commission Vice President Reding there is a risk that the negotiations may achieve the lowest common denominator between the Member States also due to the unwillingness of some of them to adopt any EU legislation which can create further financial and internal institutional tensions.

Legal aid : why make it simple when you can make it tricky ?

The draft Directive on legal aid is probably the text which is currently facing the most adverse winds. Already the initial Commission’s political choice not to deal with legal aid in the Directive on the access to lawyer has created an artificial disconnection from the right to legal aid and the more general “right to legal advice”which is required by the ECHR jurisprudence as well as by the EU Charter (Articles 47 and 48). (On the human rights aspects of the right to legal aid, see the annex).

Instead of tabling a proposal that would cover these two interconnected rights, the Commission chose to come forward with a proposal on the right to access to a lawyer (now Directive 2013/48/EU) and, separately, with this proposal, which is intended however only as a partial complement to the 2013 Directive. In the words of the Commission, “the … proposal is closely linked to Directive 2013/48/EU on the right of access to a lawyer and it aims to contributing to rendering effective the right on access to a lawyer provided for in that Directive at the early stages of the proceedings for suspects or accused persons deprived of liberty”. Thus, no general rules on legal aid, but a mere stop-gap to ensure that in the very early phase of the proceedings some form of legal aid is provided.

Even worse, on the same day that the Commission transmitted its proposal to the European Parliament and to the Council, the Commission adopted a non-binding Recommendation on the right to legal aid for suspects or accused persons in criminal proceedings . The aim of this Recommendation is “to foster certain convergence as regards the assessment of eligibility of legal aid in the Member States, as well as encouraging the Member States to take action to improve the quality and effectiveness of legal aid services and administration“.

The legal basis of the Recommendation aside, its understanding of the implementation of the right to legal aid in criminal proceedings is broader than that of the draft Directive.
According to the Recommendation the right of legal aid has to be guaranteed to any suspect or accused person “from the time they are made aware, by official notification or otherwise, by the competent authorities, that they are suspected or accused of having committed a criminal offence, and irrespective of whether they are deprived of liberty”, by putting forward the purpose of the right to legal aid, namely to complement and render effective the right of access to a lawyer as set out in Directive 2013/48/EU of the European Parliament and of the Council.

The work in the Council

The Council started examination of this proposal only in July 2014 under the Italian Presidency. However, no agreement was found and at the December 2014 Justice and Home Affairs Council only a “state of play” was presented to Ministers. At the JHA Council on 12-13 March the Council agreed its general approach. Its position shows some significant differences compared to the initial Commission proposal which, as outlined above, was already unambitious:

o a wide possibility for Member States to introduce exceptions to the application of the right to provisional legal aid for minor offences (not further defined) (Article 2 (3));

o a further possibility for Member States to subject the admission to provisional legal aid to discretionary criteria if this refers to “less serious offences” (once again, undefined) (Article 4 (2bis));

o the elimination of the possibility to access provisional legal aid in European Arrest Warrant proceedings as far as legal assistance in the issuing Member State is concerned (Article 5 (2) of the Commission proposal).

In substance, Member States are left free to define the scope of application of the (limited) right to provisional legal aid, with all but the most serious offences as possible exceptions.

It is difficult, in light of this result, to find any real added value in the text provisionally agreed by the Council. This view is shared by a number of delegations (such as France, Spain, Italy, Portugal, Belgium), which, in the course of the Council debate, have made reference to the intention of subscribing a declaration, to be added to the minutes of the Council, in which they express their disappointment. However, these delegations have not blocked the adoption of the general approach, preferring instead to proceed with the legislative procedure and with the negotiations with the European Parliament.

These will be anything but easy: a rapid overview of the amendments tabled by the EP Rapporteur Dennis De Jong (LIBE Committee) and by the other MEPs of the Committee show two widely diverging views of what this Directive should be about. LIBE will vote its “orientation” on April 14 and dialogue can then start. So it is too early to say now if the EP will succeed in enhancing this right (maybe by taking inspiration from the Commission’s Recommendation and translating its content into a binding text).

Reblogged from: http://free-group.eu/2015/03/16/legal-aid-in-criminal-proceedings-will-the-european-parliament-improve-the-councils-general-approach/

 

NOTES

 

Annex

FURTHER READING : Sources of the right to legal aid

The importance of the right to legal aid is linked with the right to an effective remedy and to a fair trial. Indeed as an ancillary right, it enshrines the principle of effective judicial protection and the right to access to justice, which is of primary importance in line with Human Rights declarations applicable in Europe.

Because of its ancillary dimension, the respect for the right to legal aid is provided for in a number of international instruments of utmost importance. It is guaranteed by Article 14 (3) of the International Covenant on Civil and Political Rights (ICCPR), and the fundamental principles on which it should be based are outlined in the United Nations Principles and Guidelines on Access to Legal Aid in Criminal Justice Systems adopted on 20 December 2012 by the General Assembly.

Article 6 (3)(c) of the European Convention on Human Rights (ECHR) sets out a “right to legal assistance where the defendant has insufficient means to pay for legal assistance, and to get free legal aid when the interest of justice so requires”.

Concerning the European Union as such, since the entry into force of the Treaty of Lisbon, the EU Charter has bound the EU institutions. Yet, Article 47(3) of the European Union Charter of Fundamental rights provides that “legal aid shall be made available to those who lack sufficient resources in so far as such aid is necessary to ensure effective access to justice”. Even implicitly, the need to provide for legal aid can be drawn from some other dispositions of the Charter such as Art. 48 (2), which states that “Respect for the rights of the defence of anyone who has been charged shall be guaranteed”.

Furthermore, the respect for the right to legal aid guaranteed by article 47(3) of the EU Charter has to be understood in light of the ECtHR case-law, which contributes to add to the strict procedural side of legal aid a more substantial element, through the requirement of enabling each suspect to present his or her case properly.

To assess the respect of this requirement, the ECtHR held in the case of Airey v. Ireland that the effectiveness of the right to access to justice throughout the right to free legal aid depends mostly on whether the individual in question would be able to present his/her case properly and satisfactorily without the assistance of a lawyer. Circumstances in which legal representation would be necessary for ensuring access to justice could be the complexity of the procedure before the court of first instance and complexity of the legal points involved. This assessment must also take into account personal circumstances of the applicant and the form of legal aid in question.
Therefore the right to legal aid can be limited as far as it is justified by a legitimate aim and that if there exists a reasonable relationship of proportionality between the limitation and the legitimate aim sought.

Barnard & Peers: chapter 26

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More research is needed: the EU’s attempt to attract more non-EU researchers and students

 

Steve Peers

The economies of the EU’s Member States, like other advanced developing countries, increasingly need highly-skilled workforces. But since the EU’s current laws have only had a modest impact on attracting more students and researchers to the EU, the Commission proposed an overhaul of the legislation concerned in 2013. The European Parliament (EP) and the Council have each now agreed  their position on the proposed new law (see here and here), and will soon start negotiations on a final text. This is a good time to examine what the new law should include, if the EU genuinely wants to increase the numbers of researchers and students coming from third States.

Background

The existing legislation on this issue is the researchers’ Directive, adopted in 2005, and the students’ Directive, adopted in 2004. The latter Directive also applies to the admission of school pupils on exchange programmes, unpaid trainees and volunteers, although Member States have an option to apply it to the latter three groups of migrants. The Commission issued reports (see here and here) on the two Directives in 2011, concluding that they had not done much to accomplish their objective (there were only 7000 researchers admitted in 2010) and probably needed to be reformed – hence the 2013 proposal. The CJEU has ruled twice on the interpretation of the students’ Directive, first of all ruling in Sommer that Member States could not apply a labour-market preference test for students, and secondly ruling in the Ben Alaya case (discussed here) that Member States must admit students who comply with the rules on admission in the students’ Directive. The same logically applies to the current researchers’ Directive. The UK and Denmark opted out of both Directives, while Ireland opted in to the researchers' Directive.

The proposed new law

The Commission proposal would merge the students’ and researchers’ Directives, making major changes to them both. In order to attract more researchers and students to EU territory, there would be stronger rules on their equal treatment and their movement (‘mobility’) between Member States for the purpose of their studies and research; those rules would also be extended to paid trainees. They would be able to stay after their research or study for a period of 12 months to look for work or self-employment, although after 3 months Member States could check on the genuineness of this search, and after 6 months they could ask the migrant to prove that they have real prospects. Students would be able to work for 20 hours a week (the current rules provide for 10 hours), and the option to ban students from working during their first year of studies would be dropped.

Also, the proposal would replace the weak rules on family reunion in the current researchers’ Directive with a fully-fledged right to family reunion, which would moreover waive some of the restrictions in the EU’s Directive on family reunion for third-country citizens. In particular, researchers could obtain family reunion without a minimum waiting period, and would not have to show that they have a reasonable prospect of permanent residence. Integration requirements for family members could only be applied after entry, and there would be a shorter deadline to process applications. Family members would have a longer period of authorised stay, and no wait before they could access the labour market.

The 2013 proposal would also introduce a 60-day deadline to decide on applications for admission, shortened to 30 days for those benefiting from EU mobility programmes. (The current laws have no deadlines to decide on applications at all).  

Finally, the proposal would require Member States to apply the rules relating to school pupils, unpaid trainees and volunteers, and would furthermore add rules on two new groups of migrants: au pairs and paid trainees. It would also limit Member States’ current power to apply more favourable rules for students and researchers, confining that power to only a few provisions relating to the rights of migrants, while fully harmonising the rules on admission.

The European Parliament and Council positions

On some key points, the EP and the Council are going in quite different directions. The EP wants to oblige Member States to consider in-country applications for researchers, while the Council (like the Commission) wants to retain the existing rules, which give Member States an option to allow this. In the EP’s view, the equal treatment rules should be strengthened, but the Council wants to weaken them. The EP wants to extend former students’ and researchers’ stay to look for work from 12 to 18 months, and to make Member States wait longer to check on the genuineness of the job search or likelihood of employment. On the other hand, the Council wants several restrictions: to reduce the stay to 6 months; to allow Member States to limit students’ possibility to stay to those who have at least a Master’s degree; to check on the likelihood of employment after 3 months; and to give Member States an option to limit the job search to the areas of the migrant’s expertise. The EP agrees with the extension of students’ employment rights, while the Council wants to revert to the current 10-hour a week limit, and introduce a possible labour-market preference test (overturning Sommer).

As regards family reunion, the EP wants to extend the Commission’s proposal to family members of students as well, while the Council wants to limit the rules to researchers, without requiring Member States to give researchers’ family members immediate access to employment. Similarly, the EP believes that the new mobility rules should be extended to cover unpaid trainees and volunteers as well, while the Council wants to limit them to researchers and students (as at present), and to add very complicated details to the proposal on this issue. The EP supports an even shorter period to decide on applications (30 days), while the Council wants to raise the time limit to 90 days.

Finally, the EP agrees with the Commission proposal to extend the Directive to further categories of migrants and to make all of the rules binding, while the Council rejects both suggestions.

On a few points, the EP and Council are going in the same direction. Both institutions want Member States to have a greater possibility to apply more favourable rules for the persons concerned. The Council wants to go further still, and provide expressly that Member States can have rules on admission of other categories of students or researchers. Also, both the EP and the Council agree  that the current rules on delegating decision-making to research institutions or universities should remain, and that many of the rules on whether to refuse entry or withdraw or refuse to renew the right to stay should be optional, not mandatory (as the Commission proposes).

Comments

The EP’s and Council’s positions should be examined in light of the Commission’s impact assessment reportfor the proposed Directive, which makes detailed arguments for the amendments which the Commission proposed. This report provides evidence that a job-search period after the end of research or studies is a factor in attracting students or researchers, although presumably the Council’s less generous version of the rules on this issue would be less attractive in practice than the EP’s version. There is also evidence that migrants are attracted by further employment rights for students and for researchers’ family members: here the EP and Commission are seeking to amend the rules to this effect, but the Council is not.

Would-be migrants are also deterred by the great variety of national rules and the rules on mobility between Member States.  On this point, the Commission and EP position would certainly address this concern, by significantly reducing Member States’ options to have divergent national laws and providing for a relatively simple extension of a stronger version of the current mobility rules. The Council, for its part, would leave more national divergence in place, and amend the mobility rules in a fiendishly complicated way. Normally, I’m a big fan of the fiddly details of EU immigration law, but this is far too much of a good thing.

What should the priorities be for the forthcoming negotiations? The evidence clearly shows that the EU’s ailing economy would benefit most from more students and researchers, and less so as regards the other categories of migrants. And given the huge resistance of Member States to extending binding rules to the other categories of migrants, this would be difficult to agree, if it’s possible at all. So the EP should trade off one set of amendments against the other.

In particular, it should drop its insistence that binding rules should govern all aspects of the admission and stay of school pupils, trainees, au pairs and volunteers. Instead, it could seek a reasonable compromise, aiming to harmonise only certain aspects where there is a stronger case for common rules. The impact assessment report makes such a stronger case on two issues: where EU programmes aim to facilitate admission, and as regards the exploitation of au pairs and trainees (which also amounts to unfair competition as regards the domestic workforce).

So the future Directive could have binding rules as regards migrants who enter on the basis of an EU programme, but leave Member States discretion as regards these groups of migrants otherwise. And it could apply binding rules as regards equal treatment and transparency to those at risk of exploitation, leaving Member States the option to apply the other rules in the Directive to such groups. The objective of harmonisation could be preserved for the longer term, by means of a standstill clause, obliging Member States which currently apply EU law to these groups to keep doing so, while giving other Member States a renewable derogation. But if it is not possible to agree any binding rules on any aspect of the immigration of these groups of migrants, it would be better to drop them from the text of the Directive altogether, since the EU should avoid pointless legislation.

In return for not insisting on binding rules governing all aspects of the migration of other categories, the EP should demand improvements in the Council’s position on students and researchers, focussing on the changes that are most likely to attract them to the EU: better job-search rules, more employment prospects for students and researchers’ family members, less complex rules on mobility, and speedier decision-making. Requiring all Member States to permit in-country applications for researchers would surely help too. And since the EU also needs to attract researchers who fall outside the scope of the planned rules (because they don’t have a formal agreement with a research institution), the institutions could agree a political commitment to address this issue as part of the forthcoming revision of the EU’s Blue Card Directive, which concerns the admission of highly-skilled workers (on the reform of that Directive, see here). That review could also address what happens at the end of the job-search process for former students and researchers.

Speaking of the Blue Card Directive, it may also be useful to consider whether researchers and students might be more attracted to the EU if there were a similarly emblematic form of residence permit for them: an ‘EU Student Card’ and an ‘EU Researcher Card’, for instance. (I wouldn’t suggest using other colours for this purpose, since the existence of an ‘EU Red Card’ and an ‘EU Yellow Card’ would confuse football fans no end). While this might focus greater attention on the EU as a possible destination for researchers, marketing should not, of course, come at the expense of the substance of the rules concerned.  The EU has an opportunity to develop its immigration regime in the near future to ensure that the people it wants to attract here actually decide to come. It would be foolish to miss this opportunity again.   

 

Barnard & Peers: chapter 26
Photo credit: Research-in-Germany.org

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Is it different this time? The Commission’s 2015 work programme

 

Steve Peers

Today the new European Commission announced its first annual work programme. Quite apart from the usual restructuring and renaming of policies, it promises to take a different approach to prior Commissions. In particular, this Commission apparently plans to propose fewer new EU measures and to withdraw many more pending proposals than usual.

But is the Juncker Commission’s approach actually different from the approach of previous Commissions? The best way to test that is to compare today’s work programme to the first work programme of previous Commissions.

The incoming Barroso Commission of 2005 suggested 32 pages of proposals, with no reference to withdrawal of pending measures. In 2010, the incoming ‘Barroso II’ Commission listed 25 pages of proposals, although only five pages concerned proposals that the Commission was definitely planning to make in 2010. The other 20 pages listed those proposals which were planned for the rest of the five-year mandate, although in the end some of those proposals – like two Directives on labour migration – were tabled in 2010 after all. And the 2010 work programme listed 58 proposed measures which were going to be withdrawn, although in all but one case the withdrawals were due to obsolescence.

How does that compare to the 2015 work programme? First of all, the list of planned proposals is similar to that in 2010: four pages, 23 proposals, compared to five pages and 34 proposals five years ago. Admittedly, the 2010 list comprised only the Commission’s biggest priorities, while the 2015 list is supposedly exhaustive, according to press reports. So is the Commission really planning to propose less than one new measure per Commissioner next year?

Of course not. A close look at the fine print reveals that some of the 23 items on the list will actually comprise more than one proposal. For instance, the review of immigration policy mentions both smuggling of migrants and the ‘Blue Card’ Directive on highly-skilled migrants. It would be technically possible to table one legislative proposal addressing both issues – indeed, that would be unremarkable compared to how immigration legislation is drafted in many countries. However, the EU’s tradition is to propose and adopt different legal acts in such cases. Similarly, the plans concerning labour mobility, the internal market, energy and the digital single market will necessarily entail proposing more than one item of legislation. This is particularly obvious as regards the digital single market, where the work programme refers to a ‘package’ of laws.

Secondly, the list of withdrawn proposals for 2015 – already nicknamed the ‘kill list’ – is somewhat longer, totalling 80 items. Two-thirds of these are obsolete, but around 25 of them are withdrawn for more political reasons: either there is no reasonable prospect of agreement, or the Commission wants to redraft them itself in light of changed priorities.

The first reason for withdrawal is hardly unheard of; in most years, the Commission withdraws a couple of proposals which have met with implacable opposition in the European Parliament or (more often) the Council. The second reason for removal is very rare indeed. The Commission justifies it in light of the principle of ‘discontinuity’ – the practice, quite common (perhaps even ubiquitous) in democratic systems, of retiring all legislative proposals when a new legislature is elected.

To be frank, the Commission has rather botched its application of this principle. It’s usually known simply as the principle of legislativediscontinuity, and entails the automaticwithdrawal of all legislative proposals on the table when a parliamentary chamber is dissolved before an election. The Commission is applying the rule only partially, withdrawing only certain proposals that it disagrees with. In any event, the principle is firmly rooted in the electoral process that leads to a change of (at least some) parliamentarians.

This distinction isn’t simply pedantic, since it goes to the heart of the Commission’s legal and political legitimacy to withdraw these proposals. Legally speaking, the Treaties refer to the Commission’s powers to make and amend proposals, but say nothing about any power to withdraw them. Should that power not rest instead with the EU’s two legislative chambers, which have been respectively directly (the Parliament) and indirectly (the Council) elected? For many years, this has been a theoretical point, since the Commission’s assumption that it has untrammelled powers to withdraw its proposals has gone unchallenged. But this Thursday, a CJEU Advocate-General is due to give his view on whether the Commission indeed has an unlimited power to withdraw its proposals, in a case brought by the Council. (Remember that like any such opinion, it won’t be binding; it will be up to the judges of the CJEU to give a final ruling, sometime next year).

Politically speaking, the Commission could try to claim some legitimacy to withdraw these proposals if they had mentioned during Jean-Claude Juncker’s campaign for the Commission Presidency, either during the European Parliament elections or when he was asking for a majority of the Parliament (and a qualified majority in the European Council) to approve him. Alternatively, these withdrawals might be legitimate if the other Commissioners had stated their intention to withdraw them in their hearings before the European Parliament. But it can hardly be claimed that withdrawal of proposals on waste or air pollution were a central feature of Juncker’s, or the Commission’s, campaign to be appointed.

Some of today’s withdrawals are supposedly not permanent, because the Commission has announced its intention to propose replacement measures next year. But it’s not absolutely certain that the Commission will keep this promise. Others are contingent, because the Commission has given the legislators a deadline to discuss a possible deal, failing which it will withdraw its proposal. It’s an interesting strategy, which will empower the half of the legislature that is reluctant to consider these proposals (usually the Council), at the cost of the other half (usually the European Parliament).

In the case of the maternity leave Directive, it raises the interesting question of how many feminists are also pragmatists. It’s politically impossible to obtain the lengthened maternity leave on full pay that a majority in the European Parliament desire: so should they settle for anything, as long as it’s an improvement on the status quo? Unlike an actual baby (cf the judgment of Solomon), it is possible to obtain only half of one’s legislative objectives – or probably significantly less than that in this case. This particular legislative proposal has been gestating now for six years; it might yet be born next year, but there’ll probably be a lot of shouting first.

 

Barnard & Peers: chapter 3

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So long, and thanks for all the fish: the CJEU clarifies international law and institutional issues applying to fisheries

 

Steve Peers

The EU’s fisheries policy is controversial both within the EU and outside it, due to its impact on both fish stocks and the livelihoods of fishing communities. Until the Treaty of Lisbon, its application was essentially the sole preserve of the Council. The European Parliament (EP) tried to obtain joint control of some of the external aspects of the policy by claiming that its consent was needed for international fisheries treaties that impacted the EU budget significantly, but the CJEU rejected this challenge.

Following the Treaty of Lisbon, however, the EP has joint decision-making power internally over agriculture and fisheries policies, since Article 43(2) TFEU states that the ordinary legislative procedure now applies to the adoption of legislation in this field. However, certain aspects are still reserved to the Council, with the European Parliament only consulted, namely ‘measures on fixing prices, levies, aid and quantitative limitations and on the fixing and allocation of fishing opportunities’ (Article 43(3)).

As regards fishing, this provision is used each year just before Christmas, to determine the annual allocation of fish between Member States. It’s safe to say that the tone of these usually bitter negotiations never induces fisheries ministers to kiss each other under the mistletoe.  

What exactly is the dividing line between the areas where the EP shares power with the Council, and where fisheries ministers are left to hold acrimonious discussions among themselves? There are pending cases on the dividing line as regards internal EU measures. But today the CJEU ruled on the division of powers externally, in a case which also raised interesting issues of international law.

The judgment

Today’s judgment concerned a Council Decision which awarded Venezuelan fishermen the possibility to fish in the waters of French Guiana (which is a constituent part of French territory). This confirmed what those fishermen had been doing for some time before. The EU had felt it was necessary to put this practice on a more formal footing, but the rather left-wing Venezuelan government did not want to sign a treaty with such dastardly agents of global capitalism.

So the EU adopted an apparently unilateral Decision on this issue. The Council believed that it fell within the scope of Article 43(3), so the EP only had to be consulted, while the EP and the Commission argued that it fell within the scope of Article 43(2), so that the EP had the power of consent. The rules on the EP’s role in the approval of international treaties to which the EU becomes a party are set out in Article 218 TFEU. Basically the EP has the power of consent whenever a treaty concerns an issue regulated by the ordinary legislative procedure (ie fisheries law generally), but is only consulted when a treaty falls within the scope of other decision-making rules internally (ie the non-legislative procedure that applies when the EU fixes and allocates fishing opportunities). (In fact, the rules on the EP’s role in approving international treaties are slightly more complicated, but only this basic distinction is relevant to today’s judgment).

But was the Council Decision an international agreement in the first place? The Advocate-General’s opinion argued that it was not. Rather, it was a unilaterally binding declaration, an interesting form of international law. In fact such legal creatures are so rare that international law had not yet clarified whether international organisations like the EU could adopt them. In the Advocate-General’s view, they could. But that left the awkward question of how exactly the EU could adopt one as a matter of its internal law, since Article 218 clearly only refers to agreementsconcluded by the EU (or on behalf of the EU by its Member States). She considered various options, but ultimately argued that the relevant provisions of Article 218, including the powers of the EP to give its consent and receive information on negotiations, as well as the special jurisdiction of the CJEU, applied by analogy.

In the Court’s view, however, the Decision did constitute an international agreement. It based itself on the relevant rules of the UN Convention on the law of the sea, to which the EU and its Member States (but not Venezuela) are parties, and confirmed its position in the recent ruling on the Hague Convention on child abduction (discussed here), that treaties could be concluded in two steps. In this case, the EU had extended an offer, which Venezuela was free to accept, reject or suggest changes to. It had chosen to accept.  

As for the internal division of powers, both the Advocate-General and the Court reached the same conclusion: the Parliament’s argument was correct. In the Court’s view, the main powers relating to agriculture and fisheries set out in Article 43(2) concerned ‘policy decision[s] that must be reserved to the EU legislature’. In contrast, Article 43(3) provided for ‘measures of a primarily technical nature’ to implement the legislation adopted in the field. Applying that distinction to this case, the ‘treaty’ with Venezuela set out only a general framework, which had then been implemented by further measures based on Article 43(3). So that ‘treaty’ could not itself be based on Article 43(3); rather it was subject to the consent of the European Parliament, as it was based on Article 43(2).

Comments

On the international law issue, the Advocate-General’s analysis is more convincing than the Court’s, given the clear unwillingness of Venezuela to engage in any formal negotiations along its failure to ratify the UN Convention on the law of the sea, which the CJEU relied on so heavily. Nor is the Court’s use of the language of contract law very convincing. True, Venezuela’s application for fisheries authorisations might be described as the acceptance of an offer, but what is the consideration? Why should Venezuela’s actions be characterised in light of a treaty it had not ratified? Possibly the relevant rules reflect customary international law on the law of the sea which apply to Venezuela, but the Court does not make that argument.

Nor is its analysis of the text of the Law of the Sea Convention very convincing. The relevant clause refers to making ‘agreements or other arrangements’ regarding surplus fish. Could not a unilateral binding declaration constitute a form of ‘other arrangement’? Possibly that interpretation has been rejected by the Law of the Sea tribunal or by experts in that field of law (I confess that I’m not one), in accordance with the sources of international law as defined in the UN Charter. But if that is the case, the Court needs to bolster its interpretation by citing such evidence.

The distinction between the forms of international obligation matters mainly as regards the EU’s internal law. If the Decision was a unilateral binding declaration, the CJEU would have the awkward job of deciding whether the EU can adopt such measures, and if so how. Since the Court didn’t have to address these issues today, they must be considered open. But if it is every necessary to consider them in future, there is much to recommend the Advocate-General’s very thorough analysis of both of these points.

As for the internal decision-making rules, the judgment is more convincing, particularly in light of the Advocate-General’s arguments that Article 43(3) cannot apply to everything concerning fishing opportunities, since that would render the main legislative powers set out in Article 43(2) superfluous.

The broader implications of this judgment remain to be seen. But it’s an early indication that the Court is inclined to tilt in favour of a broad interpretation of the scope of the EP’s legislative and treaty approval powers over agriculture and fisheries following the entry into force of the Treaty of Lisbon.

 

Barnard & Peers: chapter 5

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