Friday 30 January 2015

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The EU is governed by seven institutions: the European Parliament, the European Council, the Council of the European Union (the Council); the European Commission, the Court of Justice of the European Union, the European Central Bank and the Court of Auditors.

 

Crunch time! EurActory beta goes live

Posted by on 30/01/15
Yesterday was crunch time for EurActory, EU Community’s first tool to identify relevant EU experts. We found ourselves surrounding by 150+ potential users, eager to take a peek at the platform. So we pitched EurActory…

EU Parliament scored own goal in failing to assert power over Commission

Posted by on 25/01/15

Research Executive Elias Papadopoulos comments on the European Parliament’s inability to adopt a common position on the Commission’s 2015 Work Programme.

To read Elias’ article, please click here.

The Whitehouse Consultancy is one of Europe’s leading public affairs and communications agencies.

 

New tool for EU experts – Who is behind EurActory?

Posted by on 23/01/15

EU Community will launch the beta version of its first, free service EurActory on 29 January at the European Parliament. But first, we explain the idea one ‘frequently asked question’ at a time.

 

FAQ5 – Who is behind EurActory?

At the very beginning of the project, the initiators were confronted with a challenge. The tools and applications on the table would require topnotch technology experts just as much as creative policy experts.

Having useful apps would require people who understand data, tech and development to team up with people who know the EU policy-making process… and know the community of EU experts.

EurActory is developed by a consortium of eight organisations as part of EU Community. EU Community is initiated by EurActiv.com, coordinated by Intrasoft and executed together with the other consortium members which are leading research centres and ICT enterprises.

The consortium includes:

EU Community is co-funded by the European Commission’s directorate general for communications networks, content & technology, known as DG CONNECT. It won a Call for Proposals under the Seventh Framework Programme for Research(FP7).

 

EU Community on TwitterLinkedInFacebook

 

Grexit? Brexit? Don’t bet on it.

Posted by on 22/01/15
By EU Perspectives The old cliché “who’ll blink first” has never seemed more appropriate when it comes to Greece’s election as Merkel and Tsipras face each other.

New tool for EU experts – What will EurActory look like in the future?

Posted by on 22/01/15

EU Community will launch the beta version of its first, free service EurActory on 29 January at the European Parliament. But first, we explain the idea one ‘frequently asked question’ at a time.

 

FAQ4 – What will EurActory look like in the future?

Next week, we release the ‘beta version’ of EurActory: a first version, designed to cater to EU professionals’ first needs and to trigger feedback to make it a better tool.

Our next move is ranking. We are working on a sophisticated ranking system, to launch early 2015, which will allow you to identify the most relevant experts per EU policy field within seconds.

To do this, EurActory is developing an algorithm that takes into account a person’s organisational standing, online and offline connections, peer-rated credibility, professional experience and other criteria. This ranking system will be released in full transparency.

EurActory will show which experts have built up a credibility on certain policy topics. Which experts stand out. The system will be rolled out after thorough double-checking the algorithm to make it match the actual world of EU affairs as much as possible.

EU Community will focus on our three pilot topics first, starting with developing the ranking feature for the topic Energy Union.

If you’re curious, connect on social media and you’ll know all about it as soon as the time is right.

 

EU Community on TwitterLinkedInFacebook

 

New tool for EU experts – EurActory: Why am I not in there?

Posted by on 21/01/15

EU Community will launch the beta version of its first, free service EurActory on 29 January at the European Parliament. But first, we explain the idea one ‘frequently asked question’ at a time.


FAQ3 – Why am I not in there?

EurActory currently has over 10,000 experts on EU policy. These are mostly sourced from the EU’s open databases of people working at (and with) the institutions.

When you discover EurActory, on 29 January, it’s possible that you don’t have an expert profile yet. The team behind EurActory could not find your details in the databases that we have integrated.

Not to worry though: you can help us by telling us about yourself and what you do.

Registered users can create a profile on the platform, connect their social media accounts and ‘Create an expert profile’. This will then be checked by one of EU Community’s moderators, after which your profile will appear in the list of experts.

 

EU Community on TwitterLinkedInFacebook

 

New tool for EU experts – Who has a profile on EurActory?

Posted by on 20/01/15
By EU Community We're launching the beta version of EurActory, our first tool for EU experts. You can find anyone working in the EU institutions on EurActory, as well as a growing of key lobbyists, analysts or other stakeholders.

There is life after €uro

Posted by on 20/01/15

With Greek election only a few days away, I am reminded of a friend’s prediction that this time even loyal voters may vote for a different party that they used to. After having to leave Athens because of the crisis, he is struggling to keep his doctors practice afloat on the small island of Aegina.

Since the early 80’s the Greek state has been managed in a deplorable way by the two major parties in the republic. A closed circle of politicians monopolized power and alternately governed the country. During these years, they developed an extreme political clientelism with as result the creation of two parallel administrations.

This practice, which de facto substituted the official state, is one of the major factors of the actual social and economic bankruptcy of Greek society. If we add to that : (1) the large amount of debt accumulated by public and private spending ; (2) the reckless lending to Greece by dangerously under-capitalized northern European banks and ; (3) euro zone’s blindness and visionless economic policy dictated by Berlin that imposed unsustainable demands, then we understand Greek reality.

Greece enters the eighth year of deep recession. The human toll of the economic crisis is huge. Unemployment is above 25 per cent, and among those aged 15 to 24 it is close to 60 per cent. A study published in the European Journal of Psychiatry in March 2014 provides evidence of a 55, 8 per cent increase in suicides between 2007 and 2011.

Despite the austerity, that has been extremely intense and inhuman, the Greek public debt has increased and now exceeds 170 per cent of GDP. The country lost 25 per cent of its GDP since it has been undertaken by the Troika program.

Here are 5 reasons why Greeks will vote for anti-austerity in the upcoming election:

Greeks don’t buy the fear campaign of #Grexit

The strategy of fear that the actual government is campaigning on clearly does not work. Endorsement of this strategy by European politicians and EU institutions does not help. In the contrary, it has a boomerang effect. Greek citizens are not buying that the opposition constitutes a danger. The EU institutions failed to take into account the social and political implications of the severe austerity programs they imposed in countries like Greece.

Lack of trust towards government coalition

The simplest definition of trust from the perspective of the citizens is the personal confidence and absence of disbelief. When trust is absent, like in Greece, it is replaced by uncertainty, lack of confidence, and the expectation that actual political leaders will do things that are adverse to the interests of the people. Greece has much more debt than the country could ever hope to repay. Denying this reality condemns Greek citizens to a very long period of misery.

EU and the euro lost their credibility

In May 2012 Mario Draghi, the head of the ECB, declared that the crisis had exposed the inadequacy of the financial and economic framework set up for the euro monetary union launched in 1999. The euro was meant to bring convergence to the economies of the EU. Yet it has caused even greater divergence. The emphasis on austerity might have been politically necessary when the debt crisis began, in order to discourage governments from expecting more EU bailouts. However, this policy has also brought EU growth near to zero, encouraged deflation, fed exasperation across the continent and led to the impoverishment of large parts of the Greek population and, other euro zone countries. Under present conditions, the question of staying or not in the euro zone may not be very relevant to the average Greek. Nevertheless, Greece will probably stay in the euro, whoever wins the election. If it doesn’t, I am sure that there is life after euro, even if this will demonstrate complete lack of cohesion and integration inside the euro zone.

Troika is seen as foreign intervention

The International Monetary Fund (IMF), the European Central Bank (ECB) and the European Commission (EC), form the so-called Troika, which intervened in 2010 to keep Athens from defaulting on its debts and having to leave the euro zone. Greece was put under a system of forced administration. In 2013 the IMF admitted that it made major mistakes on the first bailout, setting excessively optimistic expectations for the country’s economy and underestimating the effects of the austerity measures it imposed. The rescue package kept the country afloat, but it came in exchange for exaggerated austerity measures that have deepened recession and encouraged extremist political parties and polarization.

Leftwing Syriza is moving to the center

In every opinion survey leftwing Syriza is in the lead. The difference with the second party is 3 to 4 per cent and it does not seem to close. Syriza, is retreating from leftist rhetoric by confirming that no unilateral decisions will be taken on obligations towards creditors. It would not be the first party to become more pragmatic once in power. However, many of the party’s policies are unlikely to be accepted by the Troika, despite Syriza’s position having moved to the center recently.

The belief of the leader of Syriza, Alexis Tsipras that there should be a transparent and sustainable re-negotiation of debt, has won applause from other parties in Europe and may lead to a pan-European large-scale anti-austerity strategy. Nevertheless, Tsipras will be obliged to do business with other euro zone countries if he wins the election.

A herbicide spray to keep the bio-tech industry at bay? RIP traditional European agriculture

Posted by on 15/01/15

By Kathleen Garnett

Ever since the first boff in a lab profited from fiddling around with the genetic make-up of plants European agriculture has been at the mercy of the big corporations. Not unlike the pests GMO products are said to repel the bio-tech industry has been swarming all over the treasure chest that is European agriculture determined to find a crack in the armour and squeeze in. Those holding patents to GMO seeds have launched a relentless campaign to get their products approved for use across the EU. For fifteen years the EU put up a good fight but it was clearly no match for the ants. As long as there was sugar in the chest they would find a way to get in and find it they did this week when the European Parliament approved new measures that have effectively opened up the treasure chest and allowed the pest to swarm in.

The crack in the armour? The bio-tech industry’s best tactic was always going to be to focus on science rather than on need or quality. All other arguments in favour of GMO products are weak. Very weak in fact. Few are convinced that GMO products add quality to food. Few believe that commercialising GMO products leads to diversification in agriculture. Few believe that GMO products give European farmers more autonomy over how they manage their farms. Few believe that GMO products offer gourmet tastes and experience. Most of all few really believe that Europe actually needs GMO foods. Europe has food surpluses and a Russian trade embargo.

Forget, for a moment, the whole debate about whether GMO food is or is not safe to eat, whether it will or will not destroy Europe’s eco-system or whether GMO food is more nutritious than mother nature’s bounty (even though the jury is still out on that) … the reality is Europe does not need GMO food. There is no gap in the market that needs plugging. Europe is not suffering from famine. It has other means to control pests, other than perhaps the bio-tech industry itself. It has enough traditional seed varieties that are capable of feeding the population. Nor is there a particularly strong yearning in Europe for GMO food.

In the fifteen or so years since the bio-tech industry has been lobbying Europe to get their products approved for use European consumers have not exactly been clamouring for GMO produce. Europe’s top chefs are hardly frothing at the mouth or singing with joy that the day is nigh when they can finally offer their sophisticated clients a GMO parfait. Supermarkets are not offering pre-booking for the first batch of GMO maize, tomatoes or soya beans to hit the shelves some time next year. This is because pretty much everyone in Europe has figured out what the EU has singularly failed to – no one in Europe particularly wants to eat GMO food, buy GMO food or serve GMO food to their family or friends. Few, other than some random scientists who insist they know more than the rest of us, wish to see European fields transformed into a form of mono-agriculture growing crops that are surplus to requirement.

Sadly, European decision makers – in the Commission, in the Council and in the European Parliament took none of these considerations into account and fell for the “sound” science argument hook, line and sinker. As though all decisions on food should be based on one variable and one variable only – science. Food science is an evolving science and has hardly proven itself worthy of the adjective “sound” in recent years. Other considerations barely factored in to their decision making process leading many to believe that the EU has become frigid with fright at the sight of a scientist in a white coat.

So star-struck by the sound science argument have EU decision-makers become they are even prepared to compromise one of the founding principles of the European Union – a level playing field for the single market. The new measures are a fudge that is going to lead to the weakening not the strengthening of the single European market – and all because the bio-tech industry got a certificate saying that GMO’s are “safe” to eat. This week marked the point of no return for European agriculture. The point when the ants brow-beat Europe’s decision-makers, prised open the chest and got in.

It would be refreshing if for once European decision-makes were to listen to what European consumers are saying rather than being brow beaten by the bio-industry. This week’s development does not auger well for the TTIP and the regulatory convergence in food safety. Expect European food and agriculture to become even more dumbed down within the coming months. As with GMO so with the TTIP. Many in Europe have made is clear that they do not want regulatory convergence of food but based on this week’s development it is unlikely anyone in Brussels is listening to ordinary consumers anyway.

Last summer’s flourishing fields may well be the last anyone remembers when European soil was truly free from commercial GMO crops – unless that it someone can develop a herbicide capable of repelling the bio-tech industry from European soil.

 

La communauté francophone de l’OpenGov

Posted by on 12/01/15

Voir

http://democratieouverte.org/

  • Concevoir et expérimenter des dispositifs de démocratie ouverte.
  • Animer et mettre en réseau les acteurs de la démocratie ouverte.
  • Faire connaître et promouvoir le concept et les bénéfices de la démocratie ouverte.

Capture d’écran 2015-01-12 à 20.07.08

Parliament’s High Level Group on Own Resources

Posted by on 09/01/15

On Thursday 8 January a European Parliament Conference of Presidents took place. It was chaired by the EU High Level Group on Own Resources lead by Mario Monti. The report on EU’s Own Resources that was published last month was presented under the idea of reforming the EU funding system.

AEGEE / European Students’ Forum has been monitoring the developments on the area of own financing of the European Union with special interest, predicting it as one of the most important challenges that the European institutions have to face with.

As members of the organization European Movement, AEGEE welcomes the tendency of the EU to increase the self-financed packages. In this sense, in 2013 EMI’s Council meeting a plan for Sustainable Development and Employment was suggested and presented on the ECI (2014)000002 funded through a Financial Transaction Tax.

AEGEE would like to encourage all involved subjects to work on the development of the Financial Transaction Tax linked to the Plan for Sustainable Development and Employment fostering policies directly addressed to lower the current unemployment and underemployment rates.

Background

The High Level Group, that was set up to develop ideas for EU own financing for EU’s 2014-2020 MMF, is expected to deliver its final recommendations before the end of 2016.

New Deal 4 Europe registered on March 2014 the ECI for a European Special Plan for Sustainable Development and Employment, the collection of which is ongoing.

Written by Pablo Hernández, Policy Officer of AEGEE-Europe on Youth Employment

The EU in deep trouble with its top court

Posted by on 07/01/15

Something rather shocking has happened. The European Court of Justice (ECJ) has just confounded its friends as well as its foes by blocking the EU’s efforts to sign up to the European Convention on Human Rights (ECHR). In Opinion 2/13 delivered on 18 December, the Court ruled that the draft accession agreement between the European Union and the Council of Europe breaches EU law. In so doing, the judges defied the combined will of the European Commission and the European Parliament. They also demurred from the advice of their Advocate General Kokott who had recommended, with qualification, that the deal be accepted.

Although we may assume that several EU member states were and still are ambivalent about the project, the European Council (24 of whose member states intervened separately in the case) was bound to follow the treaty which says that the Union ‘shall’ accede to the ECHR. Difficult negotiations on the draft agreement were concluded between the EU and the Council of Europe’s 20 non-EU signatories in April 2013, and the Commission then asked the ECJ for its advice on the compatibility of the agreement with the EU treaties (under Article 218(11) TFEU).

The Opinion is long and complicated, as it might well be considering the long history and high political importance attached to the matter in hand. It is worth recalling – especially because the Opinion does not do so – that the goal of EU accession to the ECHR is to strengthen human rights protection in Europe. That the EU requires the adherence of all its member states to a Convention to which itself is not a party is an anomaly. It has been argued for decades that the EU needs to conform explicitly to the original human rights document of post-War Europe in the interests of legal certainty, uniformity and effectiveness. The EU borrowed and copied the ECHR when it drafted the Charter of Fundamental Rights in 1999-2000, and signing up to the ECHR was made a quid pro quo (not least at the insistence of the prickly British) for allowing the Charter to be made binding in the Treaty of Lisbon. Indeed, the ECJ demanded a change to the treaty in a 1996 Opinion precisely in order to make accession compatible with EU law. This was achieved at Lisbon (Article 6 TEU & Protocol No 8).

Does it matter?

The effect of the EU’s adhesion would be to accept the European Court of Human Rights (ECtHR) as the external supervisor of the ECJ in the matter of fundamental rights when and in so far as the exercise of EU competences were concerned. The EU’s own mandatory Charter is already cited in much ECJ litigation, and although the EU is expressly permitted in interpreting the Charter to go further in more extensive rights protection, the jurisprudence of the ECJ and the political and legislative actions of the EU institutions must not contradict the earlier Convention. It is also presumed that after accession the right of redress for a breach of rights will be quicker and cheaper at the ECJ in Luxembourg than at the ECtHR in Strasbourg. Optimistically, one could foresee ECJ jurisprudence establishing the best rights regime in the world.

The accession process was always going to be fairly complex. The EU, needless to say, is not a state: but its status in international law, the fact that its own supranational law has primacy and direct effect, the given nature of EU citizenship and its institutional arrangements (not to mention a single currency), give the EU a perfectly adequate standing to become a party to the Strasbourg Convention. If not a state, the Union is certainly, and increasingly, state-like. While the EU will not join the Council of Europe, the Commission will sit in the Committee of Ministers, which is the control body of the Convention system, an EU judge will join the Strasbourg Court, and MEPs will join the Parliamentary Assembly (PACE) for the election of judges.

So what’s the problem?

The Court of Justice, which in any case tends to exaggerate the uniqueness of the EU’s constitutional order (as if no other federal system has ever existed), takes a lofty view of its own importance. According to the Opinion, the draft accession agreement fails to preserve the specific characteristics of EU law; it does not adequately ensure that accession to the ECHR will not affect the share-out of competences between the member states and the EU or the powers of the EU institutions. The ECJ fears that the ECtHR could interlope into domestic EU matters. In particular, the Court’s powers to give preliminary rulings on the application of EU law (Article 267 TFEU), and the obligation for states to deal with their disputes exclusively at the ECJ (Article 344 TFEU) are deemed to be jeopardized by the draft agreement.

The Opinion complains that the mechanisms to ensure proper coordination between the Luxembourg and Strasbourg courts are not spelled out, at least where the ECJ would be asked by the ECtHR for its prior involvement in a case to assess its substantive and procedural relevance to either the primary or secondary law of the EU. The ECJ dislikes the freedom given in the draft agreement to the ECtHR to examine the plausibility of an EU state’s eligibility to become a co-respondent to a case, believing that both the EU and an EU state should have an automatic right to intervene in relevant Strasbourg litigation. And the Court of Justice worries that the habitual and mutual presumption that each EU member state respects fundamental rights to the letter, especially in the field of justice and home affairs, will be undermined by the arrival on the scene of a bossy external supervisor.

Lastly, there is the thorny issue of the common foreign and security policy (CFSP) where the ECJ’s own powers of judicial review are greatly restricted under the terms of the EU treaty (Articles 24(1) TEU & 275 TFEU). After accession to the ECHR, the Strasbourg court would have much more power than its counterpart in Luxembourg to interpose on (the fairly numerous) breaches of human rights in the area of CFSP. The Opinion finds this state of affairs distasteful.

What’s to be done?

The practical effect of the shock judgment of the Court is to kill off the draft agreement and to postpone indefinitely the EU’s accession to the ECHR. The Commission would be wise, however, not to let the matter drop. Improvements and clarifications to the issue of coordination between the two courts can be made to the draft agreement if the other members of the Council of Europe agree. They should be attempted. Despite the bad state of diplomatic relations between Russia, Turkey and the EU, the accession agreement would give those states the right to intervene at the ECJ; and their voting rights are to be well protected.

Furthermore, the EU must now complete the negotiation of its own internal rules that will govern how the institutions deal with ECHR affairs in the future. These rules, which will have to be agreed with the European Parliament, ought to satisfy the sceptical lawyers that the due process of legitimate governance under the treaties will be respected. The rules of procedure of the Council and Parliament will need to be modified, as will the Statute of the Court.

And, lastly, the EU treaties should be changed. Adjustments to Protocol No 8 aside, two other amendments would immediately help the installation of a decent fundamental rights regime at the EU level. First, the woeful restrictions on the jurisdiction of the Court of Justice in the field of CFSP should be lifted. Second, we need a new clause to oblige the member states to respect the constitutional identity of the European Union, not least in terms of its values and principles. Let us call this the Viktor Orban clause. That would certainly make our Union more state-like.

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Andrew Duff took part in the drafting of the Charter of Fundamental Rights and the Treaty of Lisbon. Pandora, Penelope, Polity: How to Change the European Union is published on 19 January.

Reaction to Leonard Besselink’s ACELG Blog

Posted by on 06/01/15

Thanks to Leonard Besselink for giving a fast, sensible and innovative approach to get the Union out of the quagmire created by the Court’s Opinion 2/13. He proposes an amending Protocol to the TEU, which will basically amend Article 6(2) of that Treaty by announcing that this accession will happen “notwithstanding” the Opinion of the Court, effectively setting it aside. However, that solution might be too radical for many in the EU Institutions and even the Member States.

By Pieter Jan Kuijper

How could one accommodate most, perhaps all, of the problems of the Court, without returning to the negotiating table, where the EU will once again meet some very unwilling negotiation partners? Of these certainly Russia by now will have become totally intractable. There is simply not much hope that it will agree to anything of the kind. Moreover, it would be the second time that the Union returns before its own Members and other Member States of the Council of Europe to ask them to help solve its problems (which, once again, are largely the problems of the Court). This is simply not a situation in which any negotiator should want to be put. The Union would be in an incredibly feeble position.

 

Perceived risks

If one reads the Opinion, it is striking that the Court (like most modern politicians and citizens) is totally risk-averse.

(1) The Member States might want to use the facility given to them under the ECHR to give greater protection to fundamental rights than required under the ECHR. And in turn this might compromise the primacy, unity and effectiveness of EU law.

(2) The Member States may want to exercise surveillance about how other Member States fulfill their obligations under the ECHR and this, accordingly, may harm the mutual trust that Member States owe each other and undermine the autonomy of EU law.

(3) The new advisory opinion procedure created by Protocol No.16 to the ECHR might trigger the procedure of ‘prior involvement’, thus creating the risk that the preliminary ruling procedure might be circumvented. (I must be gravely mistaken to think that that was precisely the idea behind the prior involvement procedure, namely to kick in when a preliminary procedure was avoided inter alia by the highest court in a Member State pretending that there was an ‘acte claire’ or ‘acte éclairée’. The avoidance of the preliminary ruling procedure through recourse to Protocol 16 is not fundamentally different.).

(4) The draft agreement still allows for the possibility that the EU or Member States might avail themselves of the possibility to submit an application to the ECtHCR concerning an alleged violation of the ECHR by a Member State or the even the EU itself in relation to EU law.

(5) The co-respondent mechanism inevitably involves a ‘foreign jurisdiction’ being confronted with the choice that the EU has made in respect of the defense of its own interests before that jurisdiction and on the division of responsibility and competences between the Member States and the EU. This risks adversely affecting the division of powers between the EU and its Member States.

(6) On the ‘prior involvement’ procedure the Court has two worries: (a) a ‘foreign jurisdiction’ may rule on the case law of the Court, especially whether the Court has already ruled on the matter at issue in a different form before the EUCtHR, and this is unacceptable, and (b) the prior involvement procedure concerns only questions of validity and not of interpretation.

Constitutional and international law are not for the faint-hearted, but the Court seems unwilling to live with any risk. It has no faith in its own case law and the fact that a case like MOX-plant has become part of the constitutional landscape of the Union. One may after all expect that no Member State in the context of points (2) and (4) would consciously go against that case. The Court must also trust that the Commission, confronted to any such tendency in a Member State, would start an accelerated infringement procedure, demanding provisional measures against the Member State in question, if necessary.

 

Possible solutions

The most important point that flows from the fact that the Court is so afraid of risks and possibilities, however, is that the realization of these risks and possibilities is almost wholly in the hands of the institutions and of the Member States themselves. It is not the text of the Accession Agreement itself that is contrary to the TFEU, but rather the use and the interpretation of the Agreement that the institutions and the Member Sates could make of the Agreement or the gaps that are left in it. This gives the Union and the Member States a way to escape from renegotiation by making a number of unilateral declarations and interpretations. Some of these can be entirely internal and others will have to be given to the other parties to the draft accession agreement merely as a matter of fact, not for agreement on their part.

On point (1) mentioned above, the Member States can give a solemn declaration (or even conclude an agreement among themselves and with the EU) to the effect that they will not avail themselves of their right to go beyond the level of protection required by the ECHR, if that could put the primacy, unity and effectiveness of EU law in danger. The Commission might back this up with a declaration to the effect that it will prosecute any Member State that does not hold this promise in a concrete case.

Points (2) and (4) above concern the use of the surveillance and enforcement mechanisms of the ECHR by the EU and the Member States inter se for disputes relating to the application of the ECHR relating to EU matters. The EU has already issued at least one unilateral so-called disconnection declaration which stated that the Member States of the Union which are party to the Convention (next to the EU itself) will apply the provisions of the agreement in question in their mutual relations in accordance with the Union’s internal rules and without prejudice to appropriate amendments being made to these rules (Annex 2 of the UNESCO Convention on cultural diversity). With an added assurance that this does not preclude the full respect of the rights and duties that the EU and its Member States have in relation to the other parties to the ECHR, this should be a sufficient guarantee for the Court that the risks mentioned under (2) and (4) are fully precluded. The Council of Europe Conventions have almost habitually included disconnection clauses, if the subject matter of the Convention overlapped in whole or in part with EU law. Hence a disconnection declaration of the same nature should not be problematic. Again the Commission could declare that it will fully uphold the MOX Plant case law through the infringement procedure as an ultimum remedium.

On point 3 above, the Member States could, as under (1), make a solemn common statement or agreement that they would have recourse only exceptionally to the facility of Protocol 16 and under the strictest observance of the requirements of EU law. That should constitute sufficient guarantee for the Court.

Where points 5 and 6(a) are concerned, it should be made clear in no uncertain terms to the Court of Justice that, if the EU wants to participate in international life and international dispute settlement, it simply must be willing to run these risks (as the Court sees them). The EU has been exposed several times before the jurisdictions of the WTO to the “risk” that these would have a view on the division of competences and responsibility between the MS and the Union that the EU institutions, including the Court, might not have agreed with, but it has survived so far. And the Union has always the possibility (as the US has had to do in the Avena case, the Italian Constitutional Court believes Italy should do in the ‘compensations for war crimes’ case against Germany and the Court itself implicitly made the Union institutions do through Kadi I and II) to say that constitutionally it is not in a position to implement in the way the other parties to the agreement would like. Which obviously does not diminish the EU’s international obligation to offer compensation or satisfaction instead.

Moreover, no partner of the EU in any international dispute settlement system would be willing to give to the Court a kind of exclusive last word on the interpretation of Union law (of whatever rank), when an international jurisdiction must judge the question whether that piece of Union law conforms to the international agreement covered by that jurisdiction. In the same way the EU will never accept, for instance, that the US Supreme Court has the absolute last word on the interpretation of US legal rules that must be judged by the WTO Appellate Body in the framework of a WTO dispute on their conformity with WTO law. The Appellate Body may consider Supreme Court judgments an important fact enabling it to construct a plausible interpretation of US law that will be reviewed for its conformity with the WTO Agreement, but nothing more than that. It should be no different for the ECJ. If one subjects oneself to an international jurisdiction, one must accept that inevitably that cannot happen in a situation, which is always the most advantageous from an internal constitutional point of view.

On point 6(b) above an interpretative declaration by EU could simply state that in the light of the object an purpose of the ‘prior involvement’ procedure, namely to be a safety net for the preliminary question procedure, validity should be interpreted so as to include interpretation.

This leaves only one point, namely the problem of the lack of jurisdiction of the Court in the field of the CFSP. All the beautiful words of the Court on this subject cannot hide that here the emperor is naked. The Court has no jurisdiction except in two well-circumscribed cases and that is it. That the Court in Strasbourg will have something to say about upholding fundamental rights in the CFSP can only be welcome news. Just as it has always been welcome news that in countries, where there is no constitutional review of the laws passed by Parliament in the light of the bill of rights (as in the Netherlands), there is at least the Court in Strasbourg that will uphold a minimum level of human rights in these countries. I fail to see why that would not be the case for the CFSP, in a situation where there is no constitutional review in part of CFSP ‘law’ and why the Court of Justice should not be able to live with that, if the Supreme Courts of some Member States have been able to live with that.

This last point perhaps needs further thought, but for the other points the road of formal internal assurances or agreements and external unilateral declarations on the interpretation of the draft accession agreement can certainly be followed without needing the agreement of the other parties, since these internal and unilateral acts will not abridge their rights under the ECHR at all.  Moreover, the methods employed are wholly in line with international law and/or EU law. Solemn unilateral declarations not to do certain things have been considered binding in international law, as the ICJ has explained in the Nuclear Test cases. Internal agreements between the Member Sates on matters covered in the TFEU are ok, as long as they do not go against EU law, as we know from the ECJ’s case law on agreements concerning economic policy and the EMU.

The difficulty for the points 5 and 6(a) above remains, but the Union institutions and Member States do not need to follow the Opinion of the Court (which after all remains an Opinion), if they agree that these are risks are inherent in subjecting the EU to binding international dispute settlement and need to be taken, since they are taken habitually by all parties to international agreements creating binding international dispute settlement.

In the end, therefore, my preference is for a modification of (the application) of the draft agreement of accession to the ECHR, and not for a Treaty amendment by a Protocol modifying Article 6 TFEU, as Leonard Besselink proposes. It has the advantage of showing some good will to the Court, even while setting aside some of its qualms as exaggerated or totally impracticable in international dispute settlement, whereas Besselink’s solution through its “notwithstanding” formula, sets the judgment aside as a whole. My solution may well be more risky, but, as I said at the beginning, the practice of international and (European) constitutional law is not for the squeamish.

Pieter Jan Kuijper is based at the Amsterdam Centre for Law and Governance. His personal page can be accessed here.

Acceding to the ECHR notwithstanding the Court of Justice Opinion

Posted by on 30/12/14

The Court’s Opinion may have shattered expectations. Who had thought that the revised accession agreement that was renegotiated by the EU and its Member States with the State Parties to the ECHR, after an initial rejection in the Council by the UK and France, would be dodged by the Court? After all, on all the points that the Court and its President had made known to the negotiators, namely the guaranteed ‘prior involvement’, the Court seemed to have been granted a privileged position, that has not been granted to any other court of any of the parties to the ECHR. Was the Court’s membership of the Council Committee in charge of supervising the negotiations on this and other points in vain?

By Leonard Besselink

It is too early to give an in-depth assessment of the position taken by the Court on various points. We do now know that we have to take the President seriously when he announced in the plenary debate at the closing session of the FIDE Conference 2014 powerfully:

“The Court is not a human rights court: it is the Supreme Court of the Union.”

It took this in a more literal way than could be expected, and gave a resounding: NJET.

What’s to do now?  Tobias Lock has suggested that ‘[i]t is clear that the drafters of the DAA will have to return to the negotiating table’. I respectfully disagree.

Whether one finds the Court’s rejection and its concept of autonomy a form of autarky or a symptom of autism, and whether or not its judges behave like Humpty Dumpty, spoilt brats,  or overly severe schoolmasters dealing out a bad marks to the Commission, the reality is that there is little political prospect that the non-EU parties to the ECHR will be willing to reopen the negotiations on accession, and give up all the compromises that in the end they were willing to strike. I refer in particular to Switzerland, Turkey and the Russian Federation. The declaration of Russia at the re-opening of the negotiations after a few EU Member States rejected the earlier version of the Accession Agreement, stands as an omen (see Appendix VI to the Minutes of the relevant meeting).

So if renegotiating the Accession Agreement is hardly feasible, the other alternative that the TFEU leaves open in its Article 218(11), is to amend the EU Treaties. It is this option that I here consider, in light of the fact that 24 of the Member States concluded before the Court that the revised Accession Agreement is in accordance with the Treaties, and so did the Council and Parliament – though not necessarily on the same grounds as the Commission did (see point 108 of the Opinion).

The points on which the Court rejected the Accession Agreement are numerous, and some of them concern points that are not in the Treaty at all, in particular the issue of ‘autonomy’ of the Court. It is also for these – but not only – that the solution here proposed  would be a way out.

Seeking inspiration in clauses of national constitutions of some of the Member States that provide a constitutional way out of constitutional divergences for the sake of further European integration, I propose solving the matter with a “Notwithstanding Protocol”.

It should read:

‘The Union shall accede to the European Convention for the Protection of Human Rights and

Fundamental Freedoms, notwithstanding Article 6(2) Treaty on European Union, Protocol (No 8 ) relating to Article 6(2) of the Treaty on European Union and Opinion 2/13 of the Court of Justice of 18 December 2014.’

In this manner the Treaties have been amended fully in accordance with the requirements of the Court as well as Article 218 (11) of the TFEU. All of the several objections of the Court are covered by such a Protocol. Should there arise any doubts on this, the proposed provision can be accompanied by either a consideration in the Preamble or another protocol provision, that reads:

‘This Protocol effects a revision of the Treaties in the sense of Article 218(11) of the Treaty on European Union.’

True, not all 28 Member States took the same position before the Court on whether accession agreed with the Treaties. Nevertheless, of at least of 24 we can assume that they disagree with the Court. The four Member States not intervening at the Court were Croatia, Slovenia, Luxembourg and Malta. Although we cannot be absolutely certain, but none of them seem to have had any major objections to the terms of accession.

But even if they would, it will certainly be easier to straighten out and negotiate a Notwithstanding Protocol with potentially four (partly) dissenting EU Member State than having to go through highly embarrassing negotiations with the parties to the ECHR plus the Council of Europe (and European Court of Human Rights representatives).

There is of course a constitutional presumption underlying such a Notwithstanding Protocol.

The rejection of the first draft Accession Agreement had cast doubt on the sincerity of some of the Member States to take their commitment to let the EU accede to the ECHR seriously. The Court of Justice has now driven its recent position of not accepting any EU legal commitment that anchors it within a broader legal order to the very extreme on the issue of the protection of fundamental rights of EU citizens within the strictly European context.

Thus, the Court casts doubt on its constitutionalist commitment to the project of European integration. It is now for the EU Member States to show what the protection of the rights of their citizens is worth to them, and whether they think it useful to anchor it externally and consent to protection according to the pan-European minimum standard by a European Court that has so successfully provided a true safety valve, should the EU institutions fail to do so.

This article has previously appeared in slightly different form on Verfassungsblog.de.

Leonard Besselink holds a chair in European constitutional law at the Amsterdam Centre for European Law and Governance. His personal page can be accessed here.

Europe’s mistaken identities

Posted by on 30/12/14

History suggests that it may even be easier to create an identity for others than to find one for oneself. The ‘Us and Them’ syndrome, where the ‘Them’ are dumped together in a separate communal basket, makes the process a bit easier…

The Greeks called all foreigners barbaros because they couldn’t decipher their babbling. The philosopher Isocrates made things a bit easier by saying that “we consider Greeks those who partake in our culture”. This sense of cultural superiority clearly helped the cultures concerned to lump all their neighbours into a single disparaging basket.

In the early Middle Ages people of the Islamic faith were indiscriminately called Moors. At the receiving end of the Crusades, the Arabs got their own back by calling all westerners Franks.

According to the historian Norman Davis, the inhabitants of the Iberian peninsula also called the Catalans Franks because of their genetic and linguistic links to people further north  At the same time, in recognition of a Visigothic kingdom centred on Toulouse, the Catalans referred to the people of southern France as Goths.

Later, the Ottoman Turks responded by indiscriminately calling all inhabitants of the Balkans Greeks, while both sides referred to the good folk manning the fortresses on the borderlands of Transylvania were dubbed Saxons, when many of them came from all over what was to become Germany, as well as Flanders and, to a lesser extent, the Moselle and Wallonia.

The migrants to the Banat and Slavonia, both regions on the banks of the Danube downstream from Belgrade, were labelled Swabians, when they could have come from anywhere in today’s Germany.

From the viewpoint of Westerners, all people east of the Oder were for a long time just called Slavs (a word that mutated to ‘slave’, although some etymologists think it was the other way round).

Rather more mysteriously, throughout Europe, people ranged east of others living further to the west still tend to use words beginning with ‘Wa’ or ‘We’ to describe their generally romanised neighbours: Wallachians (Vlachs from the Slav root Volokh) in the Balkans, Welsch in German for anybody to the southwest, Walliser to describe the inhabitants of the south-western canton of Switzerland (the Valais, to most people) and Waalsch or Walloons in Belgium. Not, however, the Welsh who were anything but romanised: the word used by the English meant ‘aliens’.

There is even a community in the French Vosges mountains speaking a Romance dialect and known as the Welche, i.e. ‘those who do not speak German’.

Maybe all these cases of mistaken identity were, in reality, forgivable. Europe’s history before the emergence of the nation states was essentially one of migration and assimilation, so that fragile ur-identities were easily absorbed and transformed into what came later.

The process of creating a nation often meant running roughshod over individual identities and papering over the ethnic cracks. The inhabitants of Hungary – supposedly as ethnically distinct a body of people as the Finns or, almost, the Basques – are not just Magyars.

Hungary’s citizens include, according to a 1990s study undertaken jointly by a Budapest research institute and a German university, more than one Magyar strain, Armenians, Ruthenians, Croats, Gypsies – and the Swabians again (a splinter group of this ubiquitous race settled in the southern part of the country).

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