Child abduction: a further extension of EU exclusive external powers

Steve Peers

It's every parent's worst nightmare: the abduction of their child. If the child is abducted by a stranger, there's obviously a grave threat to the child. But it's far more common for a child to be abducted by a parent who doesn't have custody of him or her, in the context of family law proceedings.

While it's fortunately much less likely that a parent is a threat to a child's welfare, such abductions are still problematic, since they are a breach of court decisions regarding custody. And if the child is taken to another country by the abducting parent, it is far harder for the parent with custodial rights to enforce them. Sometimes, the latter parent doesn't even get to see his or her children for years.

To address this problem, the Hague Conference (an international body) drew up an international treaty, the Hague Convention on the civil aspects of child abduction, back in 1980. All the EU Member States are party to this treaty. In fact, a total of 93 countries have ratified it. According to the latest available statistics, in 2008 the Convention was applied about 2300 times. Two-thirds of the parents taking children were the mothers, and the average age of the abducted children was six. 

Indeed, the very popularity of the Convention was at the heart of a dispute over the EU’s external power regarding it, which was resolved yesterday by the CJEU (Opinion 1/2013). This judgment concerned new States signing up to the Convention, which has an unusual rule on accession: it only applies to new States which ratify it to the extent that the existing signatories individually agree to this.

The EU is not itself a party to the treaty, and it can't be, since the treaty only permits States to be parties. But in the years since the treaty was drawn up, the EU has adopted legislation which addresses child abduction issues (Regulation 2201/2003). So arguably this means that the EU has external competence as regards the subject matter of the Convention, and Member States are only 'trustees' of that power.  In practice, that means that Member States cannot decide unilaterally whether to extend the Convention to new countries or not.

The Commission, believing that this interpretation was correct, proposed in 2011 that the Council adopt eight separate decisions permitting Member States to extend the Convention to third States, including Russia, Albania and Morocco. Most Member States disagreed. So the Commission invoked the special procedure set out in Article 218 TFEU, which allows the CJEU to decide on whether an envisaged international agreement would be in conformity with EU law.

Judgment

The CJEU had to address four arguments against the admissibility of this case.  First of all, the Court ruled that the decision on accession of a new State to the Convention was an 'agreement'. Secondly, it ruled that the impossibility of the EU itself becoming party to the Convention was irrelevant. As it had ruled before, it has jurisdiction under Article 218 TFEU even in 'trusteeship' cases.

Thirdly, the Court ruled that an agreement could still be considered as being 'envisaged' even if a large majority of the Member States in the Council were opposed to it, making its adoption improbable politically. Finally, the Court decided that it was irrelevant that a number of Member States had gone ahead and agreed to extend the Convention to the third States concerned. The possibility that the Commission could have sued those Member States for infringing EU law didn't stop the Commission from invoking the special jurisdiction of Article 218 TFEU.

As for the substance of the case, 19 Member States opposed the Commission view that the EU had external competence in this case. Only the European Parliament, along with Italy, supported the Commission. Nevertheless, the Court agreed with the Commission.

The Court began by noting that the EU has external competence not only when the Treaties expressly provide for it, but also when this is necessary to realise the internal objectives of the EU, even if the Treaties don't make express provision for this. Indeed, the Court stated that Article 216 TFEU now sets out this rule. In this case, the EU competence existed merely because Article 81(3) TFEU gives the EU internal power to adopt legislation on family law matters with cross-border implications.

However, the bigger issue is whether such competence is exclusive, or merely shared with the Member States. On this point, the Court reaffirmed that the EU would enjoy exclusive competence, as set out in its prior case-law and Article 3(2) TFEU, where an international treaty was liable to affect common EU rules or alter their scope. This was the case when the treaty fell within an area which was largely covered by the EU rules.

Applying that law to the facts, the main provisions of the Convention, dealing with return of the child and the right to visit a child, were also the subject of rules in the Regulation. There was a risk that patchwork extension of the treaty to third States by Member States would complicate application of the EU legislation, particularly where a dispute concerned a third State and two Member States, each of which had taken a different view on extending the treaty to the relevant third State. So it followed that the EU had exclusive external competence regarding the extension of the Convention to new countries. 

Comments

The Court’s judgment raises three issues: its impact upon child abduction in practice; the substantive scope of the EU’s external competence generally; and the process of litigating disputes about that competence.

On the first point, fortunately for the children concerned, the dispute regarding the EU’s external competence in this case doesn’t appear to have prevented Member States from extending the Convention to new countries in practice. However, since the new judgment resolves the issue, the Council now needs to move forward quickly to adopt the Commission’s earlier proposals (on family law issues, the Council votes unanimously, after consulting the European Parliament). Also, seven more States have ratified the Convention in the meantime, including Japan and Korea (see the full list of signatories here), so the Commission needs to propose further such measures straight away. A failure to act quickly will run the risk that a parent who has abducted a child to Russia (for example) might try to argue against the enforcement of a ruling issued by a Member State’s court on the return of a child, on the grounds that the Member State’s extension of the Convention to Russia was illegal.

The Court’s ruling also means that any amendment of the Convention in future will also fall within the scope of the EU’s exclusive external competence. This isn’t a purely hypothetical possibility, as there was some contemplation of a protocol to the Convention a few years ago (for the details, see here).  So it’s now clear that Member States will have to act together, or not at all, as regards any amendment to the Convention, and any extension of it to new countries.

As regards the EU’s external competence, there are two issues: the existence and nature of that competence. In fact, this is the first CJEU judgment since the entry into force of the Treaty of Lisbon which touched upon the existence of such competence. The Court’s judgment appears to assume that Article 216 TFEU simply reflects the prior case law; this issue had been debated in literature. And according to the Court, external competence exists where there is an internal legal base and the EU has adopted legislation on the subject in question. The Court didn’t rule on whether the existence of legislation on an issue was necessary before the EU could exercise its external competence. But on the facts of the case, it didn’t have to address that issue.

Moving on to the nature of the EU’s external competence, the Court’s ruling is not very surprising, following the pre-Lisbon judgment on the exclusivity of the EU’s external competence over civil jurisdiction issues (Opinion 1/03), and more recently the broadcasting rightsjudgment, confirming and elaborating a broad approach to finding that EU external competence is exclusive. In fact, EU exclusive competence as regards the child abduction Convention is more self-evident than as regards the planned broadcasters’ rights Convention, given that the two main aspects of the child abduction Convention clearly correspond to provisions of an EU Regulation, which moreover expressly incorporates or supplements some aspects of the Convention.

Finally, as regards the procedural aspects of this case, all four aspects of the Court’s ruling (the definitions of ‘agreement’ and ‘envisaged’, the application to ‘trusteeship’ cases and the relationship with infringement actions) take a broad approach to the scope of its jurisdiction pursuant to Article 218 TFEU. In effect, it’s now clear that all the Commission needs to do in order to trigger the possible use of Article 218 is to make a proposal for an external relations decision by (or on behalf of) the EU to the Council. Even if that proposal is ‘dead on arrival’ in the Council (as in this case), to the extent that Member States ignore the Commission’s proposal and begin ratifying the relevant treaty (or taking other external action) themselves, the Commission can still invoke the Court’s jurisdiction under Article 218. That special jurisdiction only ceases to apply if the Council approves the treaty concerned on the EU’s behalf, and the treaty then binds the EU. This precisely won’t ever be the case if the Council rejects the Commission’s proposal at the outset.

Having said that, the Court’s judgment does appear to draw a distinction between legaland political reasons for rejecting a Commission proposal, stating that in this case, the case was admissible because the Council’s reasons for rejection were purely legal. What if its objections were political – or both legal and political? And how can one tell the difference between those grounds?

Furthermore, does this reasoning also apply to the European Parliament? It has no veto right over family law treaties, but it does over most treaties concluded by the EU. The Commission passed up a chance to clarify this issue when it withdrew its request for a CJEU Article 218 ruling as regards the controversial Anti-Counterfeiting Trade Agreement, after the EP refused its consent to that treaty on political grounds. Arguably, the legal questions remain relevant even if a treaty has been rejected by either the Council or the EP on political grounds; but the Commission surely shows good judgment by accepting the political decision of either branch of the EU’s legislature and withdrawing applications for a Court ruling in such circumstances.

Barnard & Peers: chapter 24

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Doktor U? The CJEU reconciles the right to a name with passport security

Steve Peers

Many people have a fluid sense of their personal identity. But this is anathema from the perspective of law enforcement bodies, who seek to fix individual identity in order to ensure certainty about each person they are collecting information on.

The CJEU had to reconcile these two conflicting principles in last week’s judgment in U. This was one of four separate CJEU judgments that week where the plaintiff was designated by a letter only (the others were E, Q and X). In my view, it’s long past time for the Court to borrow a good idea from journalism, and simply give the people in question assumed names. That’s because it’s harder to understand and recall a case which is designated by letters only, especially where the same letters are reused by the Court in other cases in the same field (such as asylum).

In particular, it’s confusing to use an initial only for the U case, because the whole point of the case is the designation of names. In fact, under German law Mr. U is also entitled to use ‘Doktor’ as part of his name. This makes it hard to resist the temptation to call him ‘Doktor U’. So I won’t resist it at all.
  

The judgment

Doktor U had the birth name ‘E’, but his official surname is now U. The German authorities placed in his passport that his name was ‘Dr. U, GEB E’. The ‘GEB’ stands for the German word ‘geboren’ (meaning ‘born’). In practice, this led to confusion about what his actual name was. So he challenged the authorities’ decision in the German courts, which asked the CJEU to interpret the EU’s passport security Regulation and the EU Charter of Rights.

According to the CJEU, first of all the EU legislation requires all passports to apply the recommendations of the ICAO on document security. This is an interesting example of EU law importing international soft law by reference (on the implications of this for EU external relations, see this week’s judgment in Germany v Council).

Secondly, the Court ruled that a Member State had flexibility to designate a person’s birth name as part of his name on a passport, even though the ICAO rules refer to national law, and the relevant German law on fixing of names (as distinct from the law on passports) does not include birth names as part of a person’s name. The rationale here was the interest of document security, which favoured the use of a fixed element (the name at birth).

Thirdly, the Court ruled that the birth name could not be included in the optional section of the passport. Finally, interpreting the Charter, it ruled that the right to a name, which forms part of the right to a private life set out in Article 7 of the Charter, means that any use of a birth name on a passport had to be clearly indicated. The abbreviation ‘GEB’ was not translated, so could not be comprehended by the authorities of other countries and was liable to lead to practical complications for the passport holder.  

Comments

It might be hard for some Germans to admit it, but their country’s enormous influence in the EU political system has not been accompanied by any predominance of the German language, either inside or outside the EU. So the insistence of a peculiar approach to inscribing names on passports, coupled with an absence of translation, will inevitably lead to complications for those German citizens whose name has changed since birth.

The CJEU goes some way to addressing that problem in this judgment, when it requires the German authorities to make it clear to the non-German speakers who make up most of the rest of the world that Doktor U’s birth name is just that, and that he now goes by a new name.  At least this will reduce the confusion about his name that the good Doktor experiences in practice.

But the Court could have gone much further. Doktor U didn’t merely want to reduce confusion about his current name; he wanted to be known only by his current identity. After all, his fictional namesake has not disclosed his Gallifreyan birth name in 50 years of screen time (or thousands of years in narrative time). And unlike that time-travelling Doctor, the real Doktor U has presumably not regenerated his body many times over, with consequent complications for using his passport.

While the Court was right to say that the EU legislation requires the application of ICAO soft law, it did not acknowledge the great ambiguity in those rules. Indeed, it is striking that the Advocate-General’s opinion arrives at precisely the opposite interpretation of them. The objective of ensuring passport security could still have been achieved by providing a precise record of Doktor U’s currentidentity. And the Court would have surely reached this conclusion if it had performed in this case – as it always ought to do – an assessment of whether the interference in Doktor U’s right to his private life was proportionate and necessary.

Barnard & Peers: chapter 9, chapter 26

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Denmark and EU Justice and Home Affairs Law: Really Opting Back In?

Steve Peers

Yesterday, the Danish Prime Minister made an announcement that Denmark would hold another referendum on EU matters in 2015. This was widely reported as a vote on whether Denmark would opt back in to EU Justice and Home Affairs (JHA) law. In fact, the government’s intention is to hold a vote on whether to replace a complete opt out with a selective opt-out. This blog post explains the detail of the issue, including a complete list of the measures which Denmark might opt back into if the Danish public approves the referendum proposal.

The Danish opt-out effectively dates back to the Danish referendum on the Maastricht Treaty in 1992. Following the initial Danish ‘no’ vote to that treaty, the EU’s Heads of State of Government adopted a Decision, which states that Denmark fully participates in EU JHA law. This was accompanied by a declaration stating that any transfer of powers to the European Community (as it then was) would be subject to a referendum in Denmark. This is generally regarded as the basis for Denmark’s opt-out on JHA matters.

This Decision is also often described as an opt-out on EU citizenship, although it is no such thing: it simply clarifies the relationship between Danish and EU citizenship. In fact, despite a widespread belief to the contrary, Denmark has no opt-out on EU citizenship at all.

The JHA opt-out was formalised as a Protocol to the Treaties at the time of the Treaty of Amsterdam (in force 1999), and was then revised at the time of the Treaty of Lisbon (in force 2009). It currently appears as Protocol 22 to the Treaties.

In a nutshell, the legal position is as follows.

First of all, Denmark is bound by the ‘Schengen’ rules abolishing border controls between most Member States, and measures building upon them, such as the Schengen Borders Code, the EU’s visa code, the Schengen Information System and the EU’s border control agency, Frontex. However, it is bound by these measures only as a matter of international law, not EU law. It could choose to opt out of new measures in this area, but there would be some unspecified retaliation if it did. It hasn’t done so in practice.

Secondly, Denmark is not bound by any other EU measures on immigration and asylum law, or civil cooperation, except for the measures on a standardised list of countries whose nationals do and don’t need visas to enter the EU. However,  for a few of these measures,  Denmark is bound instead by means of a treaty with the EU: the Dublin rules on asylum applications; the Brussels Regulation on civil and commercial jurisdiction; and the Regulation on service of documents. It’s also bound by the initial Rome Convention on conflicts of law in contract, but not by the Regulation replacing it.

Thirdly, Denmark is bound by EU measures on policing and criminal law adopted before the entry into force of the Treaty of Lisbon. This includes (as matters stand) the EU measures establishing Europol (the EU police agency), Eurojust (the EU prosecutors’ agency) and the European Arrest Warrant.

Fourthly, Denmark is conversely not bound by EU measures on policing and criminal law adopted after the entry into force of the Treaty of Lisbon. This includes particularly EU legislation on suspects’ rights, victims’ rights, and the European Investigation Order. In the near future, it will also not be bound by legislation re-establishing Europol, which will soon be the subject of final negotiations between the European Parliament and the Council (on the details of that negotiation, see the previous blog post). According to the Prime Minister, this is a particular reason for considering whether to exercise the opt-out.

The assumption behind her argument is that the pre-Lisbon measure establishing Europol will not be applicable to Denmark any longer once a new measure is adopted. In fact, Article 2 of Protocol 22 says as follows:

…acts of the Union in the field of police cooperation and judicial cooperation in criminal matters adopted before the entry into force of the Treaty of Lisbon which are amended shall continue to be binding upon and applicable to Denmark unchanged.

However, in the specific case of EU agencies, it is hard to see in practice how Denmark could continue to be part of Europol as it was set up subject to a pre-Lisbon measure, while all of the other Member States (presuming that the UK and Ireland opt-in) are part of Europol as it was set up afresh by a post-Lisbon Regulation.

In fact, the same issue is likely to arise as regards Eurojust (the EU prosecutors’ agency) in the next year or so, since there is also a proposal to replace the pre-Lisbon Decision setting up that body with a post-Lisbon Regulation.

What are the consequences of the opt-in? Denmark has the power to denounce ‘all or part’ of the Protocol, which also includes an opt-out relating to EU defence policy, without a need for a Treaty amendment. (Note that Denmark’s opt-out from the obligation to adopt the EU’s single currency is set out in a separate Protocol).

However, Denmark also has another option available to it: to replace the current complete opt-out for post-Lisbon JHA measures not linked to the Schengen acquis with a selective opt-out, ie the power to opt in to JHA measures on a case-by-case basis. According to press reports, this is what the Prime Minister proposes. In light of this, it simply isn’t accurate to say that Denmark would be voting to ‘give up its JHA opt-out’.

If the public vote in favour, Denmark would have the same power that the UK and Ireland have to opt in to JHA measures on a case-by-case basis, either within three months after those measures are proposed or at any time after they are finally adopted. However, unlike the UK and Ireland, Denmark will continue to be fully bound by EU measures on visa lists (ie with no-opt-out possibility), and will also continue to participate in the Schengen rules (although those rules would then have the force of EU law, not international law, in Denmark).

It would be up to the Danish government and parliament to determine what arrangements apply to opting in, as a matter of national law. If national law permits, it is open to Denmark to provide, if it wishes, that its national parliament must approve every opt-in decision, possibly by a higher majority in some or all cases. The Danish government could also announce in advance which measures it would (and would not) seek to opt in to.

To clarify the potential impact of the decision, the Annex to this post contains a complete list of all current measures or proposals which Denmark could opt to participate in if the public chose to vote for a selective JHA opt-out in place of the current complete opt-out. Again, though, Denmark could choose to participate in only a small number of these measures if it wished.

While it is sometimes claimed that EU opt-outs are not really genuine, because Member States will face undue pressure to opt-in to EU measures regardless, the evidence of the last 15 years clearly refutes this assertion. In practice, Denmark and the UK have not been forced to adopt the single currency, and the UK and Ireland have opted out of a growing number of JHA measures.

Barnard & Peers: chapter 2, chapter 25, chapter 26

Annex

JHA measures which Denmark couldopt in to after adopting a selective opt-out

1) Adopted measures

Asylum

1. Directive 2001/55 on temporary protection (OJ 2001 L 212/12)

2. Regulation 439/2010 establishing a European Asylum Support Office (OJ 2010 L 132/11)

3. Recast Directive 2011/95 on qualification and content of international protection (OJ 2011 L 337/9)

4. Directive 2013/33 on reception conditions for asylum-seekers (OJ 2013 L 180/96)

5. Regulation 604/2013 on responsibility for asylum applications (OJ 2013 L 180/31) – nb applies to Denmark by means of treaty already

6. Directive 2013/32 on international protection procedures (OJ 2013 L 180/60)

7. Regulation 603/2013 on Eurodac (OJ 2013 L 180/1) – nb applies to Denmark by means of treaty already

8. Regulation establishing the asylum and migration Fund (OJ 2014 L 150/168)

9. Regulation laying down general provisions on the Asylum and Migration Fund and on the instrument for financial support for police cooperation, preventing and combating crime, and crisis management ((OJ 2014 L 150/112)

Irregular migration

1.Directive 2004/82 on transmitting passenger information by carriers (OJ 2004 L 261/24)

2.Decision on joint expulsion flights (OJ 2004 L 261/28)

3. Directive 2004/81 on residence permits for victims of trafficking or facilitation of irregular migration (OJ 2004 L 261/19)

4.Decision on an information and coordination network for Member States’ migration management services (OJ 2005 L 83/48)

5. Directive 2008/115 on common rules for expulsion – Returns Directive (OJ 2008 L 348/98) – nb applies to Denmark in part already

6. Directive 2009/52 on sanctions for employers of irregular migrants (OJ 2009 L 168/24)

Legal Migration

1. Directive 2003/86 on family reunion (OJ 2003 L 251/12)

2. Directive 2003/109 on the status of long-term resident third-country nationals (OJ 2004 L 16/44)

3. Directive 2004/114 on entry and residence of students, volunteers and others (OJ 2004 L 375/12)

4. Directive 2005/71 on admission of researchers (OJ 2005 L 289/15)

5. Decision on exchange of asylum and immigration information (OJ 2006 L 283/40)

6. Decision establishing Migration Network (OJ 2008 L 131/7)

7. Directive 2009/50 on the conditions of entry and residence of third-country nationals for the purposes of highly qualified employment (‘Blue Card Directive’) (OJ 2009 L 155/17)

8. Regulation 1231/2010 extending Regulation 883/2004 on social security for EU citizens to third-country nationals who move within the EU (OJ 2010 L 344/1)

9. Directive 2011/51 applying long-term residents’ Directive to refugees and beneficiaries of subsidiary protection (OJ 2011 L 132/1)

10. Directive 2011/98 (single permit Directive) (OJ 2011 L 343/1)

11. Directive 2014/36 on admission of seasonal workers (OJ 2014 L 94/375)

12. Directive 2014/66 on admission of intra-corporate transferees (OJ 2014 L 157/1)

Civil Cooperation

1. Regulation 1346/2000 on jurisdiction over and enforcement of insolvency proceedings (OJ 2000 L 160/1)

2. Regulation 1347/2000 on jurisdiction over and enforcement of matrimonial and custody judgments (OJ 2000 L 160/19)

3. Regulation 1206/2001 on cross-border taking of evidence in civil and commercial matters (OJ 2001 L 174/1)

4. Decision 2001/470 on European Judicial Network on civil and commercial matters (OJ 2001 L 174/25)

5.  Directive 2003/8 on legal aid (OJ 2003 L 26/41)

6. Regulation 2201/2003 on parental responsibility (OJ 2003 L 338/1)

7. Regulation 805/2004 on European enforcement order (OJ 2004 L 143/15)

8. Regulation 1896/2006 creating a European order for payment procedure (OJ 2006 L 399/1)

9. Regulation 861/2007 establishing a European small claims procedure (OJ 2007 L 199/1)

10. Regulation 864/2007 on the law applicable to non-contractual obligations ('Rome II') (OJ 2007 L 199/40)

11. Directive 2008/52 on mediation (OJ 2008 L 136/3)

12. Regulation 593/2008 on 'Rome I' (choice of law for contractual obligations) (OJ 2008 L 177/6)

13. Decision amending Decision on judicial network (OJ 2009 L 168/35)

14. Regulation 662/2009 on Member States’ negotiation and conclusion of external treaties relating to maintenance, divorce and parental responsibility (OJ 2009 L 200/25)

15. Regulation 664/2009 on Member States’ negotiation and conclusion of external treaties relating to conflict of laws as regards contractual and non-contractual obligations (OJ 2009 L 200/46)

16. ‘Rome III’ Regulation 1259/2010 on choice of law in divorce proceedings (OJ 2010 L 343/10)

17. Regulation 650/2012 on choice of law and jurisdiction in succession proceedings (OJ 2012 L 201/107)

18. Regulation 1215/2012 on civil and commercial jurisdiction (OJ 2012 L 351/1) - – nb applies to Denmark by means of treaty already

19. Regulation 606/2013 on civil law enforcement of protection orders (OJ 2013 L 181/4)

20. Regulation 542/1014 amending civil jurisdiction Regulation (OJ 2014 L 163/1) – nb applies to Denmark by means of treaty already

21. Regulation on European account preservation orders

Criminal law and policing

Directives

1. Directive 2010/64 on the right to interpretation and translation in the framework of criminal proceedings (OJ 2010 L 280/1)

2. Directive 2011/36 on trafficking in persons (OJ 2011 L 101/1)

3. Directive 2011/82 on exchange of information on traffic offences (OJ 2011 L 288/1)

4. Directive 2011/92 on sexual exploitation of children (OJ 2011 L 335/1)

5. Directive 2011/99 on European protection order (OJ 2011 L 338/2)

6. Directive 2012/13 on the right to information on criminal proceedings (OJ 2012 L 142/1)

7. Directive 2012/29 on crime victims’ rights (OJ 2012 L 315/57)

8. Directive 2013/40 on attacks on information systems (OJ 2013 L 218/8)

9. Directive 2013/48 on access to lawyer and communication rights (OJ 2013 L 294/1)

10. Directive 2014/41 on European investigation order (OJ 2014 L 130/1)

11. Directive 2014/42 on freezing and confiscation of criminal proceeds (OJ 2014 L 127/39)

12. Directive 2014/57 on criminal sanctions against market abuse

13. Directive 2014/62 on counterfeiting currency (OJ 2014 L 151/1)

Regulations

1. Regulation establishing a Justice Programme (OJ 2013 L 354/73)

2. Regulation on the instrument for financial support for police cooperation, preventing and combating crime, and crisis management (OJ 2014 L 150/93)

3. Regulation 543/2014 amending Decision on European Police College (OJ 2014 L 163/5)

2) Proposals

Immigration and asylum

1. Directive on admission of students, researchers and others (COM (2013) 151, 25 March 2013)

2. Regulation amending the Dublin III Regulation regarding unaccompanied minors (COM (2014) 382, 26 June 2014)

Civil cooperation

1. Commission invitation to Council to apply ‘co-decision’ procedure to the issue of maintenance obligations (COM (2005) 648, 15 Dec. 2005)

2. Commission proposal for Regulation on choice of law and jurisdiction on matrimonial property (COM (2011) 126, 16 Mar. 2011)

3. Commission proposal for Regulation on choice of law and jurisdiction on registered partnerships (COM (2011) 127, 16 Mar. 2011)

4. Commission proposal for Regulation amending insolvency Regulation (COM (2012) 744, 12 Dec. 2012)

5. Proposal for Regulation amending prior legislation regarding implementing measures (COM (2013) 452, 27 June 2013)

6. Proposal for Regulation amending small claims and order for payment Regulations (COM (2013) 794, 19 Nov. 2013)

Criminal law

1. Proposal for Directive on the right to interpretation and translation in the framework of criminal proceedings (COM (2010) 82, 9 March 2010)

2. Proposal for Directive on passenger name records (COM (2011) 32, 2 Feb. 2011)

3. Proposal for Directive on protection of EU financial interests (COM (2012) 363, 11 July 2012)

4. Proposal to amend Framework Decision on drug trafficking (COM (2013) 618, 17 Sep. 2013)

5. Proposal on presumption of innocence (COM (2013) 821, 27 Nov. 2013)

6. Proposal on childrens’ rights as suspects (COM (2013) 822, 27 Nov. 2013)

7. Proposal on provisional legal aid (COM (2013) 824, 27 Nov. 2013)

8. Regulation on Europol (COM (2013) 173, 27 March 2013)

9. Regulation on European Public Prosecutor’s Office (COM (2013) 534, 17 July 2013)

10. Regulation on Eurojust (COM (2013) 535, 17 July 2013)

Note: this list does not include measures which have expired or been replaced (or which will be replaced as of July 2015). It also does not include international treaties with third States, since at least in some cases, Denmark has parallel arrangements in place with the countries concerned. The most important treaties in question concern readmission, visa facilitation, the Hague Convention on maintenance and treaties on mutual assistance, extradition and exchange of police information.

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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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