In Vino Veritas: the CJEU again strengthens the EU’s external role

Steve Peers

Only a few Member States produce good wine; but it is quaffed enthusiastically in all of them. That simple fact lies at the heart of today’s judgment in Germany v Council, in which the CJEU, consistently with a string of recent judgments, significantly strengthened the EU’s role in external relations.

Background

In particular, this case concerned the situation where Member States are ‘trustees’ of the EU’s external competence. This occurs where (as is often the case), the EU is not able to sign up to a treaty or participate in an international organisation, even though it has external competence as regards the subject-matter of that organisation or treaty. In that case, as established in prior case law, Member States must act on the EU’s behalf.

However, the Treaties don’t regulate this situation directly, and before today, there was little case law regulating the details of such ‘trusteeship’. So the exercise of the EU’s powers in such scenarios can be awkward. For instance, earlier this year the Council could not agree on a Commission proposal to coordinate Member States’ positions on behalf of the EU as regards possible new ILO measures regarding forced labour (see further my blog post on this issue).

Today’s judgment concerned the International Organisation of Vine and Wine (OIV), an international organisation which was originally set up back in 1924, but which was reconstituted with a new name in 2001. Its membership includes 21 Member States, including some (such as Finland) which are not known for their quality of wine production, although the scope of the OIV also extends to grapes and (unfortunately for small children) raisins.

In practice, the main focus of the OIV is drafting technical resolutions on wine production and quality. These resolutions don’t bind the members as such, so essentially constitute ‘soft law’. The OIV adopts these measures at a lengthy annual conference held each summer in a rather pleasant location. There are probably many opportunities for delegates to sample all the latest fine wines. In short, OIV membership appears to be a little-known – but doubtless much-loved – perk for agriculture ministers and their officials.

But after 90 years of such genteel wine-tasting, this classy organisation was dragged into the mud of an arcane EU inter-institutional dispute. This began when the EU legislation establishing a common market organisation for wine was amended in 2008, in order to make the organisation’s resolutions binding as regards EU law. The Commission promptly proposed that the EU become a member of the organisation, alongside its Member States.

There was not enough support among Member States for the Council to adopt this proposal. Instead, the individual Member States coordinated their voting in the OIV’s annual meeting. The Commission then threatened those Member States with infringement actions if they continued to vote in the OIV to adopt measures which affected the EU acquis. So as a compromise, the Council agreed to adopt a Decision which would coordinate their position on behalf of the EU as a whole.

The Council acted on the basis of Article 218(9) TFEU, which provides as follows:

The Council, on a proposal from the Commission or the High Representative of the Union for Foreign Affairs and Security Policy, shall adopt a decision suspending application of an agreement and establishing the positions to be adopted on the Union’s behalf in a body set up by an agreement, when that body is called upon to adopt acts having legal effects, with the exception of acts supplementing or amending the institutional framework of the agreement

Germany, supported by several other Member States, then challenged this Decision on two grounds. First, it argued that Article 218(9) TFEU only permits the Council to establish the position of the EU as such, as distinct from the action of its Member States. Secondly, it argued that Article 218(9) TFEU only applies where the measures in question are binding as a matter of international law, rather than as a matter of EU law.

The judgment

The Advocate-General’s opinion agreed with Germany on both points, but the Court’s judgment rejected them both. First of all, as regards the scope of Article 218(9), the Court pointed out that the words ‘on the Union’s behalf’ did not specifically limit themselves to cases where the Union was party to the agreement in question. The Court did agree that the previous provisions of the external relations Title of the Treaty only referred to treaties signed by the EU. So did the reference to suspending a treaty, set out in Article 218(9) itself.

However, when it came to a decision adopted by a body established by an agreement, the word ‘agreement’ had a different, wider meaning, applying not only to treaties which the EU was a party to, but also to treaties which only the Member States (or some of them) were party to. The Court justified this distinction on the grounds that the Treaty rules on the negotiation, conclusion or suspension of agreements only applied to the EU itself, whereas the EU does not have to be a party to an agreement in order to control Member States’ actions as regards implementing measures.

On the second point, the Court described the soft-law decision-making process of the OIV, and then noted that due to the link with OIV measures made by EU law, those measures ‘were capable of decisively influencing the content’ of EU legislation. Therefore those measures had ‘legal effect’, and the Council could rightly adopt a Decision establishing the EU’s position on what they should be.  

Comments

The Court’s judgment means that the EU is in a strong position to coordinate its Member States’ action in international organisations, where the Member States are trustees of the Union’s external competence. In fact, as the Advocate-General’s opinion pointed out, there is now no real difference between the EU being a party to the OIV and not being a party to it.

First of all, there can now be no doubt that the EU has such a coordination power, on the basis of Article 218(9) TFEU. Secondly, since the scope of that power is linked to the existence and nature of the EU’s external competences, the Court’s recent judgment in the broadcasting rights case, giving a generous interpretation of the EU’s exclusive external powers after the Treaty of Lisbon, is relevant here.

That recent judgment is arguably also relevant by analogy to the interpretation of the condition that the planned acts must have ‘legal effects’. This condition applies, as today’s judgment makes clear, whenever EU legislation has made an express link to the measures which an international organisation might adopt. But the Court did not limit the notion of ‘legal effects’ to such cases. The concept might therefore also apply where there is merely an indirect potential impact upon EU legislation (cf the broadcasting rights case), or where the measure in question has effect only upon third parties, or within the international organisation itself.

What does this mean in practice? Where the EU has exclusive external powers, Member States can’t act to affect EU law, even if the EU is not a member of the international organisation (see the Commission v Greecejudgment, as regards the IMO). The Council Decisions coordinating Member State positions have to include a substantive legal base, so the nature of the EU’s competence is clear (CITES judgment). Even where the EU and the Member States share competence, and the EU has not regulated the issue in question, the existence of an EU strategy might prevent Member States from acting alone (see by analogy Commission v Sweden, although that case concerned a treaty which both the EU and its Member States were parties to).

Of course, the obligation of Member States to act as trustees in the EU’s interest does not mean that they will necessarily agree on a proposed Council Decision to coordinate their action (for instance, see the example of the ILO forced labour measures, referred to above).

The Court’s judgment necessarily does not directly touch upon the question of the process by which the EU authorises its Member States to sign or conclude treaties (as distinct from acting within an international organisation) as trustees of EU competence. But if the judgment is read literally, it will have a significant impact on that process. For although the judgment states that Article 218(1) to (8) TFEU only applies to the negotiation and conclusion of agreements by the EU, the EU practice until now is to use these provisions also to approve the negotiation and conclusion of treaties by the Member States, acting as trustees of the EU’s interest. (See for instance, the Council Decision concerning the domestic workers convention, based on Article 218(6) and (8)).

Oddly, there was no real discussion in this litigation of the possible alternative route of using the EU’s internal legislative powers to regulate Member States’ behaviour within international organisations. The Advocate-General briefly (and bizarrely) mentioned the possible use of Article 352 TFEU, the ‘residual powers’ clause in the Treaties, but why not simply use Article 43 TFEU, the power relating to the common agricultural policy?

This would entail the adoption of a legislative act. While it might be argued that this is too cumbersome a process to use every time the OIV holds an annual meeting, it might instead be possible to adopt only one legislative measure, which sets out a general framework for coordinating Member States’ action as regards all future OIV meetings.

Adopting a legislative act in relation to an international treaty might seem odd at first sight, but it isn’t really. It was, of course, a legislative act that first gave legal effect to OIV soft law in the EU legal order in the first place. More broadly, the EU often adopts legislative acts to coordinate Member States’ treaty-making competence, in areas subject either to EU exclusive competence (cf investment agreements) or to shared competence, where there is a large EU role (cf air transport treaties).

And if the Court really meant to say that Article 218(1) to (8) can no longer be used to allow Member States to sign and ratify international treaties as trustees of EU competence, then legislative acts will have to be used in this context too. So it would have made more sense for the Court to rule that EU internal legislative powers must be used to regulate all aspects of Member States’ trusteeship.

Some final thoughts on the role of the other EU institutions, and the position of non-participating Member States, following this judgment. First, the European Parliament (EP). It didn’t participate in the proceedings, but perhaps it should have done. As the Advocate-General pointed out, the judgment is the worst-case outcome for the EP, since it did not have the opportunity to approve EU membership in the OIV, and nor can it control the Council’s adoption of measures which impact ultimately upon the interpretation of EU legislation. In future, the EP would have the opportunity to address such issues when the EU legislation making such a link to international measures is adopted. But in this case, the legislation was adopted before the Treaty of Lisbon, when the EP was only consulted upon agricultural legislation. At least, as the Advocate-General pointed out, the EP must be ‘immediately and fully informed’ of the Council Decisions relating to Member States’ trusteeship pursuant to Article 218(10) TFEU, which the CJEU has recently interpreted broadly.

As for the CJEU, it has special jurisdiction relating to envisaged international treaties pursuant to Article 218(11) TFEU. If Article 218(9) applies to Member States’ trusteeship, then surely so does Article 218(11). Indeed, as the Advocate-General pointed out, the Court has already ruled as much. In fact, it will imminently be ruling again on such a case (Opinion 1/13, on the Hague Convention on child abduction). So we will be able in a week’s time to see how the two judgments fit together.

Finally, what about the position of Member States which are not members of the OIV? Actually, the operative part of the Court’s ruling makes no reference to this issue, and the judgment is logically equally applicable whether some or all Member States are party to the international agreement in question.

But in the particular context of the OIV, the Court’s confirmation that the Council has the power to coordinate Member States’ positions in the EU’s interests makes obvious sense. Due to the link between OIV resolutions and EU law, those resolutions impact all Member States, because they affect the quality and price of wine drunk in every Member State. Furthermore, they affect the operation of the common market in wine, which is paid for by all EU taxpayers, whether they are teetotallers or exclusively drink beer or even (inexplicably) whisky.  In this light, the decision of the UK (not a member of the OIV) to intervene, with other Member States, in support of Germany, rather than the EU institutions, is simply Pavlovian.

Barnard & Peers: chapter 24

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EU foreign policy, human rights and institutional reform: questions for two Commission Vice-Presidents

By Emilio DE CAPITANI, Henri LABAYLE and Steve PEERS

This week, Members of the European Parliament (MEPs) will continue their questioning of the would-be members of the next European Commission, to determine whether to confirm the Commission in office. MEPs have already asked some written questions and the would-be Commissioners have replied. However, the oral hearings which will shortly take place are an opportunity for MEPs to ascertain the Commissioners’ plans, and to secure important political commitments.

The following blog post suggests some questions for MEPs to ask two of the proposed Commission Vice-Presidents, namely the would-be High Representative for the Common Foreign and Security Policy and Commission Vice President for external relations (Mogherini), and the would-be Commissioner for Better Regulation, Fundamental Rights and the Rule of Law (Timmermans). The questions for Ms. Mogherini focus on institutional issues, since we assume that MEPs will not overlook the possibility to ask about substantive foreign policy issues.

QUESTIONS TO HIGH REPRESENTATIVE CANDIDATE MOGHERINI

1. External vs Internal Security Policy

In your written answer you claim the need of a consistent and global approach to external and internal security. However, legally these two dimensions have been artificially separated in the Treaties by a disconnection clause (art.40 of TEU; see the Annex to this blog post) according to which the external security will remain intergovernmental. This means that consensus between the 28 Member States will remain the main rule, there are no legislative powers and the Court of Justice has no full judicial oversight.

Bearing in mind these flaws of the EU external security policy (also from the point of view of the democracy principle and of the rule of law) would not be better to achieve some of your goals by building them on the external dimension of “internal” policies (such as protection of borders, migration, judicial and police cooperation)? If so qualified majority voting will be the rule and external agreements will be approved by the EP (as already happened with some EU-US agreements) and EU acts will be under the control of the Court of Justice…

2. Solidarity clause in case of terrorist attack or natural or man made disaster (art. 222 TFEU)

On a joint proposal of your predecessor and of the Commission on 24 June 2014 the Council adopted the arrangements for the implementation by the Union of the solidarity clause (art 222 TFEU)  to be activated  if a Member State is the object of a terrorist attack or the victim of a natural or man-made disaster. The text has been adopted without associating the EP and moreover it does not foresee any structured information of the European Parliament on the way in which threats are defined and monitored, not even in the case that such an event occurs. However even if the Treaty does not impose a requirement to provide this information nothing would had prevented the Council from  foreseeing it on its own initiative also because it would be bizarre that the members of the EP discover a terrorist attack from the press rather than from institutional channels. 

Will you propose an amendment to that Decision by recognising an adequate space for the EP?

3. Global Approach to Migration and mobility partnership as a binding act

As you rightly say in your written answer, EU development policy and international agreements could be the answer to address the root causes of displacement. However the Global Approach of Migration and the mobility partnership are only diplomatic instruments and are meaningless if not framed as full international agreements.

Should they be transformed into legal binding acts (both for third countries and the EU and its Member States) and be accompanied by formal EU agreements with the relevant UN Agencies (UNHCR, IOM) tasking (and financing) them for the interventions in third countries?

4. Agreements on the exchange of confidential information with third countries

Since 2000 the Council of the European Union has concluded dozens of international agreements dealing with the exchange of confidential information with third states and international organizations. However, notwithstanding the entry into force of the Lisbon Treaty and of art 218(10) of the TFEU which requires that the European Parliament should be “immediately and fully informed” during the negotiations this never happened.

Even worse these agreements follow the same model (originally defined for the EU-NATO agreement) according to which the Council concludes the agreement on behalf of the European Union by granting to the other contracting party the right of vetoing the transmission of the classified information to any other third party, including the European Parliament.

Do you think that in compliance with the democratic principle inside the EU and the principle of loyal cooperation after the Lisbon Treaty these agreements should be amended?

5. Art 9 of Regulation 1049/2001 and future revision of the Agreement on the exchange of classified information

Art.9 of Regulation 1049/2001 frames in a very concise way the treatment of classified information as “confidential”, “secret” and “top secret”. However there is not yet a definition of the criteria to be followed for the classification/declassification.

As limits to fundamental rights should be founded on law and not on internal organisational rules (the so called EUCI rules) will you propose a revision of article 9 of Regulation 1049/2001 ?

The revision of the agreement on exchange of confidential information with the Council in the domains formerly covered by the second pillar is underway.

Will you accept an EP request for declassification in case after examination a document appears to be overclassified ?

6. International negotiations and provisional application

In principle the mandate for negotiations for an international agreement should indicate the envisaged legal base (see the CITESjudgment of the CJEU) but this has not been the case for the ACTA agreement, for the TTIP and currently for the EU-USA umbrella agreement on data protection.

Do you agree that this is an essential element for the legality of the mandate even if the legal basis could be updated on the basis of the result of the negotiations?

The signature of an international agreement not covering exclusively the CFSP requires the consent of the European Parliament. In case of mixed agreements (such for external trade) the provisional application could be foreseen and the EP will not have the chance to delay the application without rejecting the agreement itself.

Do you not consider that it would be more wise to submit to the EP two different draft Decisions covering respectively the agreement and its provisional application?

7. Consular Protection

Foreseen by the Maastricht Treaty the right to consular protection is still the “cinderella” of EU citizens’ rights, because of Member States’ reluctance to adopt even the Commission proposal to establish a solidarity mechanism in this area.

Will you try to convince the MS that it is even in their interest to adopt the Commission proposal?

QUESTIONS TO FRANS TIMMERMANS

Rather strangely the hearing in this case will not follow the EP’s very detailed internal rules (art.118 and Annex XVI of the EP’s rules of procedure; see the annex to this blog post) which require that the hearing should take place before the Parliamentary committees. Candidate Vice President Timmermans will instead be heard by the Conference of Presidents of political Groups.

1.Rule of law / implementation of EU law

The confidence of all EU citizens and national authorities in the functioning of the rule of law in the Member States is vital to increase the mutual trust and to further develop the EU into "an area of freedom, security and justice without internal frontiers".

In your written reply you strongly support the recent Commission proposal for a “common rule of law framework (COM(2014)158 as repeatedly advocated by the European Parliament (but criticized by the Council legal Service). However such an exercise, which should cover all the EU member states, risk being meaningless if the Commission does not strengthen the mechanisms which implement the principle of sincere cooperation with and between the Member States. For instance there is no ground in the Treaties which justifies confidential meetings between the Commission and the Member States (even in the framework of the so called “EU Pilot mechanism”) when legal certainty on the exact scope of EU citizens rights and obligations are at stake.

As first steps to strengthen the rule of law would it not then be appropriate to:

- update the way that the Commission on a day-to-day basis debates with the Member States about the implementation of EU legislation?

- make public the Member States’ implementation plans as well as the table of correspondence between EU and national rules ?

- implement (five years after the Lisbon Treaty came into force!) Article 70 TFEU, providing for “objective and impartial evaluation of the implementation of the Union policies” as regards Justice and Home Affairs law, by keeping informed the European and national parliaments ?

- take stock every year of the rulings of the European Courts and of the measures taken at national level ?

2. Charter of Fundamental rights as a “roadmap” for the EU legislator ?

In a recent ruling  the Court of Justice struck down for the first time an EU Directive (the Data Retention Directive 2006/24) because “.., the EU legislature has exceeded the limits imposed by compliance with the principle of proportionality in the light of Articles 7, 8 and 52(1) of the Charter. " According to the CJEU the Directive “..does not lay down clear and precise rules governing the extent of the interference with the fundamental rights enshrined in Articles 7 and 8 of the Charter” and moreover  “does not require the data in question to be retained within the European Union, with the result that it cannot be held that the control, explicitly required by Article 8(3) of the Charter, by an independent authority of compliance with the requirements of protection and security, as referred to in the two previous paragraphs, is fully ensured…” In other terms from now on the Court of Justice will require a strict assessment of the proportionality and necessity of measures that constitute serious restrictions to fundamental rights, however legitimate the objectives pursued by the EU legislature.

On the basis of this landmark ruling do you not consider your priority to revise, to ensure its proportionality, the legislation falling within the sphere of judicial and police cooperation in criminal matters adopted before the entry into force of the Charter and of the Treaty of Lisbon ?

Will you commit to develop a stronger and more transparent strategy to deal with infringements of EU law where the rights in the Charter are threatened by a Member State's non-existent or incorrect implementation of its EU law obligations? 

Would it not be sensible, taking into account your attachment to the REFIT exercise, to establish “sunset clauses” for measures limiting EU citizens rights? Moreover, as regards data protection, do you not consider that this ruling raises even bigger doubts on the compatibility with the proportionality principle of the EU-US agreements on PNR and TFTP and of the legislative proposals submitted by the Commission on the EU-PNR and the “Entry-Exit” system (not to speak of the lack of compliance of the proposal on trusted traveller with the principle of non discrimination) ?

3 Better Regulation –interinstitutional agreement on codecision – Transparency

In your written answer you recognise that the current inter-institutional agreement on better law making has several flaws but you envisage its revision only by the end of 2015. However in the meantime some practices against the spirit and the letter of the Treaties could continue. For instance the Treaties make no reference any longer to the protection of the decision making process for legislative procedures and require public debates also at the Council level. Notwithstanding this new legal framework until now the Commission has done nothing to bring the Council and EP closer on the revision of Regulation 1049/2001 and create a sufficient majority within the Council (as former Dutch minister you should know this problem very well).

Will you, as a first priority, modify the 2008 Commission proposal on access to documents by taking as a basis Article 15 TFEU, Article 42 of the Charter and the position adopted by the European Parliament in December 2011?

As the Council has de facto imposed upon the other EU institutions, agencies and bodies its internal security rules as common standards for classified documents, would you not consider that the current situation violates the Treaty provision which requires a legislative measure to be adopted under art. 15 TFEU ?

4. Delegated / Implementing acts - Transparency

After the Lisbon Treaty the Commission, instead of applying on a case by case basis the implementation of the subsidiarity principle by defining policy by policy what should be considered basic rules, what could be considered non-essential (and therefore to be delegated) and what could be considered purely executive, has adopted a “horizontal” approach by taking as main reference the pre-existing types of Committees.

This “shortcut” has not only ignored the evolutions of different policies (as well as of the institutions’ roles) but it is also taking more time it could have, as compared to updating the EU legislative objectives in the light of the revised Treaties and of the Charter.

From a transparency perspective you state that you “will also consider whether the Commission could systematically publish draft measures at the point at which consultations with expert groups are due to start. This would allow the European Parliament and the Council as well as other stakeholders to express their views before formal adoption. The three institutions could discuss whether a dedicated Register could be part of the solution and depending on the conclusions reached, I would be ready to examine the feasibility of this option and its inclusion in the modernised inter-institutional agreement on better law-making”.

Are you aware that such an obligation already exists in Regulation 1049/2001 according to which “Wider access should be granted to documents in cases where the institutions are acting in their legislative capacity, including under delegated powers, while at the same time preserving the effectiveness of the institutions' decision-making process. Such documents should be made directly accessible to the greatest possible extent.” ?

5. Subsidiarity in the Area of Freedom, Security and Justice 

In your written answer you make reference to your initiative as former Dutch minister for external affairs on what the EU should do to comply with the principles of subsidiarity and proportionality. However according to the 54 recommendations adopted one year ago by your government the EU should be less ambitious, in the freedom security and justice area, on :

- consular protection for EU citizens abroad (even if since its establishment by the Maastricht Treaty this right exists only on paper)

- family reunification (where NL recommends higher age and civic integration requirements) 

- admission of third-country nationals for the purposes of research, studies, pupil exchange, etc.

(where NL considers that the categories of pupils in exchange programmes, unpaid interns, volunteers and au pairs should not be covered)

- proposals to harmonise the law of criminal procedure where NL considers that “legislation should not be ‘Lisbonised’ simply because the Treaty of Lisbon exists” and oppose “the introduction of legislative proposals purely on the grounds that the Council of Europe has already adopted a Convention on the same subject”. (NDR : So why they did bother ratifying the Lisbon Treaty and a binding Charter when the previous regime was already satisfactory and why bother with the EU if the Council of Europe suffices?) 

-  proposals to harmonise substantive criminal law (where NL challenges, for instance, EU proposals  enforcing criminal laws against identity fraud and customs law violations) and the revision of the money laundering legislation.

As a Vice President of the Commission will you maintain the same approach ?

6. EU agencies and their powers /accountability

In the last ten years the number of EU agencies has rocketed from 10 to 32, sometimes for sound technical reasons, but more often as a way for Member States to shape and manage EU policies without a real accountability before the Commission, the European Parliament and the national parliaments. Their global budget amounted in 2014 to 800 million euros, and with more than 6.000 officials they have become a parallel administration which acts in a rather fuzzy way without a clear legal administrative framework. The Common Approach to decentralised agencies (a “political” agreement reached in 2012 by the Council, Commission and European Parliament) has laid down some parameters on EU agencies’ establishment, hosting, human resources policy, transparency and accountability but as such is more of cosmetic nature. But what is more worrying is the fact that some of the agencies are becoming political agenda setting bodies. In the FSJA the role of Frontex and of Europol (managing the so called “policy cycle” which defines the EU priorities against crime) is self –explanatory.

How do you intend to re-establish a real binding administrative framework and improve the rule of law principles for these “independent” EU bodies?

You announced that you “will prepare a proposal for an Inter-Institutional Agreement creating a mandatory lobby register covering the Commission, the European Parliament and the Council”. As cases of conflict of interest have emerged will you add also the EU agencies to the register ?

  

ANNEX

Article 40 (ex Article 47 TEU)

The implementation of the common foreign and security policy shall not affect the application of the procedures and the extent of the powers of the institutions laid down by the Treaties for the exercise of the Union competences referred to in Articles 3 to 6 of the Treaty on the Functioning of the European Union.

Similarly, the implementation of the policies listed in those Articles shall not affect the application of the procedures and the extent of the powers of the institutions laid down by the Treaties for the exercise of the Union competences under this Chapter.

The model agreement state “The EU institutions and entities to which this Agreement applies shall be: the European Council, the Council of the European Union (hereafter ‘the Council’), the General Secretariat of the Council, the High Representative of the Union for Foreign Affairs and Security Policy, the European External Action Service (hereafter ‘the EEAS’) and the European Commission.  For the purposes of this Agreement, these institutions and entities shall be referred to as ‘the EU”.

Rule 118 Election of the Commission

1. The President shall, after consulting the President-elect of the Commission, request the nominees proposed by the President-elect of the Commission and by the Council for the various posts of Commissioner to appear before the appropriate committees according to their prospective fields of responsibility. These hearings shall be held in public.

2. The President may invite the President-elect of the Commission to inform Parliament about the allocation of portfolio responsibilities in the proposed College of Commissioners in accordance with his or her political guidelines.

3. The appropriate committee or committees shall invite the Commissioner-designate to make a statement and answer questions. The hearings shall be organised in such a way as to enable Commissioners-designate to disclose to Parliament all relevant information. Provisions relating to the organisation of the hearings shall be laid down in an annex to these Rules of Procedure16.

4. The President-elect shall present the college of Commissioners and their programme at a sitting of Parliament which the President of the European Council and the President of the Council shall be invited to attend. The statement shall be followed by a debate.

5. In order to wind up the debate, any political group or at least 40 Members may table a motion for a resolution. Rule 123(3), (4) and (5) shall apply.

Following the vote on the motion for a resolution, Parliament shall elect or reject the Commission by a majority of the votes cast.

The vote shall be taken by roll call.

Parliament may defer the vote until the next sitting.

6. The President shall inform the Council of the election or rejection of the Commission.

7. In the event of a substantial portfolio change during the Commission's term of office, the filling of a vacancy or the appointment of a new Commissioner following the accession of a new Member State, the Commissioners concerned shall be invited to appear before the committees responsible for the areas of responsibility in question in accordance with paragraph 3.

ANNEX XVI Guidelines for the approval of the Commission

1.      The following principles, criteria and arrangements shall apply for making the entire College of the Commission subject to Parliament's vote of consent:

(a)        Basis for assessment

Parliament shall evaluate Commissioners-designate on the basis of their general competence, European commitment and personal independence. It shall assess knowledge of their prospective portfolio and their communication skills.

Parliament shall have particular regard to gender balance. It may express itself on the allocation of portfolio responsibilities by the President-elect.

Parliament may seek any information relevant to its reaching a decision on the aptitude of the Commissioners-designate. It shall expect full disclosure of information relating to their financial interests. The declarations of interest of the Commissioners-designate shall be sent for scrutiny to the committee responsible for legal affairs.

(b) Hearings

Each Commissioner-designate shall be invited to appear before the appropriate committee or committees for a single hearing. The hearings shall be held in public.

The hearings shall be organised by the Conference of Presidents on a recommendation of the Conference of Committee Chairs. The Chair and coordinators of each committee shall be responsible for the detailed arrangements. Rapporteurs may be appointed.

Appropriate arrangements shall be made to associate relevant committees where portfolios are mixed. There are three options:

(i)         if the portfolio of the Commissioner-designate falls within the remit of a single committee, the Commissioner-designate shall be heard by that committee alone (the committee responsible);

(ii)        if the portfolio of the Commissioner-designate falls more or less equally within the remit of more than one committee, the Commissioner-designate shall be heard jointly by those committees (joint committees); and

(iii) if the portfolio of the Commissioner-designate falls mainly within the remit of one committee and only to a small extent within the remit of at least one other committee, the Commissioner-designate shall be heard by the committee mainly responsible, with the association of the other committee or committees (associated committees).

The President-elect of the Commission shall be fully consulted on the arrangements.

The committees shall submit written questions to the Commissioners-designate in good time before the hearings. For each Commissioner-designate there shall be two common questions drafted by the Conference of Committee Chairs, the first relating to the issues of general competence, European commitment and personal independence, and the second relating to the management of the portfolio and cooperation with Parliament. The committee responsible shall draft three other questions. In the case of joint committees, they shall each be given the right to draft two questions.

Each hearing shall be scheduled to last three hours. Hearings shall take place in circumstances, and under conditions, in which Commissioners-designate enjoy an equal and fair opportunity to present themselves and their opinions.

Commissioners-designate shall be invited to make an opening oral statement of no longer than 15 minutes. Where possible, questions put during the course of the hearing shall be grouped together by theme. The bulk of the speaking time shall be allotted to political groups, mutatis mutandis in accordance with Rule 162. The conduct of the hearings shall aim to develop a pluralistic political dialogue between the Commissioners-designate and the Members. Before the end of the hearing, Commissioners-designate shall be given the opportunity to make a brief closing statement.

There shall be a live audio-visual transmission of the hearings. An indexed recording of the hearings shall be made available for the public record within 24 hours.

(c) Evaluation

The Chair and coordinators shall meet without delay after the hearing to evaluate the individual Commissioners-designate. Those meetings shall be held in camera. The coordinators shall be invited to state whether, in their opinion, the Commissioners-designate are qualified both to be members of the College and to carry out the particular duties they have been assigned. The Conference of Committee Chairs shall design a pro forma template to assist the evaluation.

In the case of joint committees the Chair and the coordinators of the committees concerned shall act jointly throughout the procedure.

There shall be a single evaluation statement for each Commissioner-designate. The opinions of all the committees associated with the hearing shall be included.

Where committees require further information in order to complete their evaluation, the President shall write on their behalf to the President-elect of the Commission. The coordinators shall take the latter's reply into consideration.

If the coordinators are unable to reach a consensus on the evaluation, or at the request of one political group, the Chair shall convene a full committee meeting. As a last resort, the Chair shall put the two decisions to the vote by secret ballot.

The committees' statements of evaluation shall be adopted and made public within 24 hours after the hearing. The statements shall be examined by the Conference of Committee Chairs and conveyed subsequently to the Conference of Presidents. Unless it decides to seek further information, the Conference of Presidents, following an exchange of views, shall declare the hearings closed.

The President-elect of the Commission shall present the whole College of Commissioners-designate and their programme at a sitting of Parliament which the President of the European Council and the President of the Council shall be invited to attend. The presentation shall be followed by a debate. In order to wind up the debate, any political group or at least 40 Members may table a motion for resolution. Rule 123(3), (4) and (5) shall apply.

Following the vote on the motion for resolution, Parliament shall vote on whether or not to give its consent to the appointment, as a body, of the President-elect and Commissioners-designate. Parliament shall decide by a majority of the votes cast, by roll call. It may defer the vote until the following sitting.

2. The following arrangements shall apply in the event of a change in the composition of the College of Commissioners or a substantial portfolio change during its term of office:

 (a)       When a vacancy caused by resignation, compulsory retirement or death is to be filled, Parliament, acting with dispatch, shall invite the Commissioner-designate to participate in a hearing under the same conditions as those laid down in paragraph 1.

(b)        In the event of the accession of a new Member State, Parliament shall invite the Commissioner-designate to participate in a hearing under the same conditions as those laid down in paragraph 1.

(c)        In the event of a substantial portfolio change, the Commissioners affected shall be invited to appear before the committees concerned before taking up their new responsibilities.

By way of derogation from the procedure laid down in paragraph 1(c), eighth subparagraph, when the vote in plenary concerns the appointment of a single Commissioner, the vote shall be by secret ballot.

Barnard & Peers: chapter 3, chapter 5, chapter 9, chapter 24

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Roadkill: the EU Charter of Rights after the Conservative party’s changes to UK human rights law

Steve Peers

Most drivers, at one time or another, have felt an unpleasant bump as their car ran over an unfortunate small animal which had chosen precisely the wrong time to scoot across the road. Some drivers are devastated, while others are mildly upset or indifferent. But a few are exhilarated at the thought that they have eliminated an irritating obstacle in the way of their unseemly rush to reach their destination.

The latter attitude aptly sums up the Conservative party’s attitude to the role of EU law in their proposals to reform UK human rights law, unveiled today.

I have already blogged on the problems with this proposal at a domestic level, but there are problems as regards its relationship with EU law too.  

First of all, we should be clear what today’s proposal does not do. There is a widespread perception that it suggests that the UK withdraw from the European Convention on Human Rights (ECHR). But it doesn’t suggest this, at least not yet. The assumption in the document is that the UK will remain a party to this Convention, although it raises the possibility that the UK will withdraw from it if the Council of Europe raises too many objections to today’s plans. This may simply be a concession to those who think that these proposals do not go far enough (!) in eviscerating human rights protection in UK law. So while I blogged this summer on what would happen to the UK’s EU membership if it withdrew from the ECHR, that question does not yet arise.

Nor does today’s proposal suggest that the UK should disapply the EU’s Charter of Rights in its domestic law. A House of Commons committee suggested that earlier this year. The idea is utterly bonkers, for the reasons I blogged on at the time. But again, it isn’t immediately relevant.

What today’s document does do is propose to weaken the domestic system of human rights protection, decouple it from the ECHR system and introduce new rules which weaken substantive protection of human rights for any group of people which the drafters of the proposal deem sufficiently despicable. How does that relate to EU law?

The key questions here are: are the new proposals compatible with EU law? If not, to what extent? And what are the consequences?

At the outset, we should note that the EU Charter of Rights and the rights protected by the ECHR don’t always overlap. So today’s proposals could not create any conflict where (a) the Charter applies, but the ECHR does not (as regards social rights, for instance), or (b) the ECHR applies, but the Charter does not – because the Charter only applies where there is a link to EU law, as the CJEU set out in the judgment in Fransson. There’s only a possible conflict where both the Charter and the ECHR apply to an issue.

What sort of cases would these be? I suggest three examples, although this isn’t an exhaustive list. First of all, any limitations on the right to a fair trial granted to criminal suspects which resulted from today’s proposals could conflict with the EU legislation on their rights  to interpretation and translation, and their rights to information about proceedings, which the UK has opted in to. (There are other EU measures and proposals in this area, but the UK hasn’t opted in to them).

Secondly, any requirement that telecommunications service providers retain data for handing over to law enforcement authorities falls within the scope of EU law, since that would constitute a derogation from the rule in the EU’s telecom privacy Directive. Derogations from EU law fall within the scope of the Charter, as the CJEU recently ruled in Pfleger; I have discussed this point (as regards national data retention laws) in detail earlier on this blog. 

This is relevant not just to the ‘DRIP’ Act passed by the UK Parliament earlier this year (as I pointed out at the time), but also to any requirement that telecommunications providers retain and hand over the content of communications, following the Home Secretary’s latest plans unveiled this week. On the other hand, interception of communications directly by the police or security services would not fall within the scope of EU law, since there are no EU measures dealing with such issues in a purely domestic context.

Thirdly, the Conservative party would like to strip ‘illegal’ immigrants and foreign criminals of the possibility of invoking at least some (if not all) human rights. Due to the UK’s opt-outs from EU justice and home affairs law, not all EU measures dealing with immigration issues apply to the UK. But depending on how these demonised groups are defined, this could result in a conflict with EU rules on the free movement of EU citizens and their family members, or with EU legislation on asylum (the UK is still bound by the first phase of this legislation, and has also opted in to parts of the second phase of it).

In most of these cases, we can’t be certain that the new plans would conflict with EU law until we see the exact text of the proposals (coming later this year). However, it’s already clear, in my view, that the DRIP Act conflicts with the EU Charter in part.

What happens in the event of a conflict? There are two issues here. First of all, the EU Charter refers to the ECHR as regards those Charter rights which ‘correspond’ to ECHR rights, such as the right to a private and family life and the prohibition on torture. It says that the relevant Charter rights have the same ‘meaning and scope’ as their ECHR equivalents. The explanations to the Charter make clear that the case law of the European Court of Human Rights also applies in this context.

Secondly, the Treaties provide for the EU itself to become a party to the ECHR. Negotiations on the treaty to this effect are complete (the Conservative policy document is simply wrong when it states that they are ‘ongoing’). However, the signature and ratification of this treaty is held up while the Court of Justice of the European Union (CJEU) considers the question of whether this process is compatible with EU law. Its judgment is expected soon. The EU must also adopt internal rules governing this issue.

Today’s policy document recognises that there might be a conflict between EU law and the Conservative party’s plans. It states that the document’s position will be ‘reflected in the rules that will govern the EU’s interaction with the [Human Rights] Court’. It also threatens a veto over the ratification of the EU’s accession treaty to the ECHR if ‘the UK’s new human rights framework is [not] respected’.

More generally, the document concludes that human rights issues might be an issue forming part of the overall renegotiation of the UK’s role in the EU which the Conservative party supports. If there is anything in EU law which ‘encroaches upon our new human rights framework’, then the renegotiation will have to address it.

Obviously these human rights plans will not come to fruition unless the Conservative party forms a majority government, since the Labour and Liberal Democrat parties strongly oppose them. If that does happen, though, what are the systemic implications for EU law?

First of all, it seems possible that they will complicate the process of the EU’s accession to the ECHR. This will be clearer once the draft UK Bill is unveiled, the CJEU has ruled on the ECHR accession issue, and the Commission proposes the internal rules which will govern the EU/ECHR relationship. There would be no conflict if those internal rules provide, or the CJEU requires, that the judgments of the European Court of Human Rights will have, after the EU’s accession to the Convention, as weak an impact on EU law (and Member States’ actions within its scope) as the Conservative party suggests should be the case for the UK. Time will tell whether this is the case.

Secondly, and more immediately, it seems unlikely that the Conservative plans are compatible with the Charter as interpreted in light of the ECHR, and the jurisprudence of the European Court of Human Rights, by the CJEU.  The CJEU’s case law for many years has insisted that EU law must be interpreted not only in light of the Convention but in light of the other Court’s case law. But these are precisely the two elements of the UK’s Human Rights Act which the Conservative strategy paper most strongly opposes.

So the new proposals would only be compatible with EU law if they contain a general savings clause, making the new ‘British Bill of Rights’ entirely subject to the special role for EU law in the UK as set out in the European Communities Act.  Conservative Eurosceptics are no more likely to suggest this than the proverbial turkeys are likely to vote for Christmas.

Indeed, the strategy document implicitly foresees as much, when it suggests that human rights protection will likely be on the negotiation table in the event of UK renegotiation of its EU membership. The problem with this is that human rights protection is a general legal rule that forms part of the constitutional foundations of EU law.

So it is not easy to provide a general exemption from human rights protection (as the failed attempt to do so for the UK already, the infamous Protocol 30 attached to the Treaty of Lisbon, confirms). Nor is it very likely that other Member States would be keen to allow it if it were. It follows that today’s strategy document, if the Conservative party wins a majority and takes the document seriously once in office, is likely to increase the risk of a failed renegotiation and, therefore, the UK’s exit from the EU.

Barnard & Peers: chapter 2, chapter 9

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