EU Commission President: Who and what did we actually vote for?

Christian Joerges and Florian Rödl

“How did we vote? Did we actually vote – or did the Volk simply roll the dice?”

Niklas Luhmann‘s sarcasm in the FAZ on October 22nd 1994 referred to the Bundestag elections of that same year. Back then, the black/yellow coalition narrowly won out over its red/green counterpart. Luhmann’s commentary is not only a pleasurable read – it also contains an analysis of surprising relevance for the electoral outcome of the 2014 European elections. Luhmann argued that the differences between the two coalition blocs were minimal. One reason for this was the fact that “politicians are no longer able to support political alternatives according to their preferences, due to constraints set by our economic system”. Fundamentally, this is not much different in contemporary Europe. Certainly the party landscape is larger, more diverse and more awkward than in Germany in 1994. However, even in this contested context, no party has a promising alternative when dealing for instance with the financial markets.

What was this most recent election about? One very prominent and popular manifesto from March 9th 2014 argued the election was about nothing less than the future of Europe itself. The novelty of “different candidates running for Commission President while also representing different models of Europe”, the election of so-called Spitzenkandidaten, is seen as a quantum leap for the Union.

Miguel Maduro, Bruno de Witte and Mattias Kumm, who have developed and publicly supported the idea of electing the Commission President by the European Parliament in their policy paper The Euro-Crisis and the Democratic Governance of the Euro: Legal and Political Issues of a Fiscal Crisis, put it somewhat differently. They did not speak of competing models. Instead, according to them the direct election of the Commission president would increase the political legitimacy of the Commission, thus strengthening the institution in its new role as European crisis manager. The control over national economic and fiscal policy would be democratically legitimated and thus more easily promoted and enforced. Accordingly, it would furnish functionalist technocrats with democratic legitimization.

This understanding of the Spitzenkandidaten would surely not have motivated the citizens of Europe, especially on the so-called European periphery, to participate in the election. In this respect the manifesto was both more attractive as well as more realistic. Nonetheless, the manifesto was not able to demonstrate that the leading candidates could be the personalization of its slogans. Socialist leading candidate Martin Schulz was supposed to represent the programme of an “’alternative Europe’, one in which the market is subjected to democratic rules”. When demonizing the political alternative of “’lesser Europe’, where the market subjugates democratic rules”, the manifesto had to refer to a politician not even on the ballot: David Cameron. For the manifesto, EPP candidate Jean-Claude Juncker, now Commission President-elect did not seem to stand for anything in particular. Continue reading

Access to the criminal case file: French example shows potential impact of Roadmap Directives

menottesJessica Finelle and Alex Tinsley

Yesterday, 2 June 2014, was the deadline for implementation of Directive 2012/13/EU on the right to information in criminal proceedings (‘the Directive’). This is the second of three directives adopted further to the 2009 Roadmap for strengthening procedural rights, the EU’s ambitious project to strengthen mutual trust between Member States’ judicial authorities by protecting criminal defence rights through EU law. The others were the Interpretation and Translation Directive, and the Access to a Lawyer Directive (together, the ‘Roadmap Directives’).

Designed to build upon the European Convention on Human Rights (‘ECHR’), these measures come full of promise: the citizen gets new, directly effective rights and the criminal court becomes a frontline enforcer EU law, potentially at the expense of inadequate national laws; the criminal judge can get help from Luxembourg, while the case is still live, lessening recourse to Strasbourg with the delayed justice this entails. That is the theory. To explore the potential impact on the ground, this post looks at the ongoing discussion surrounding access to the case file during garde à vue (police custody) in France.

Accès au dossier: the back story

Wind back to 2010. The European Court of Human Rights (‘ECtHR’) had given its important judgment in Salduz v. Turkey – establishing the right of access to a lawyer at the police station as an essential guarantee of Article 6 ECHR – and the Member States were scrambling to comply. The UK Supreme Court’s Cadder judgment found the Scottish system of police custody contrary to Salduz principles. In France, the Conseil Constitutionnel’s landmark ruling of 30 July 2010 found the garde à vue regime – whereby lawyers could not attend interrogations, despite the potential for suspects’ statements to be used against them later – unconstitutional. Urgent reforms followed in both jurisdictions.

For French lawyers, this was a watershed but only a first step. From their perspective, although they can now attend police interrogations, their presence remains somewhat ornamental. The relevant provision of the criminal procedure code (as in force until 1 June) entitled them to access the procès-verbal, the written record of the suspect being informed that they are in custody, the nature and time of the alleged offence, and their rights. But the underlying materials (e.g. the complaint, phone transcripts, testimonies, etc.) are unavailable. Without these, lawyers feel unable to advise clients usefully. Lawyers in Spain, who face the same problem, share their opinion.

The ECHR has not proved helpful in challenging this. The ECtHR had stated in its Dayanan judgment, shortly after Salduz, that the lawyer’s role at the police station involved a whole gamut of advisory and practical activities, and the brief Sapan judgment seemed to suggest explicitly that a lawyer needed to see the file to advise effectively. One brave court of appeal in Agen even followed this line in 2011, but the Cour de cassation was having none of it. And in a decision of 18 November 2011, the Conseil Constitutionnel confirmed that the new garde à vue regime was fine: police station proceedings were not part of the judicial process and did not call for equality of arms.

Nor does the arrested person derive much assistance from Article 5 ECHR. True, Article 5(4) entitles them to effective judicial review of detention; this challenge, as the ECtHR has often stated (para 124), should ensure ‘equality of arms’ and that means key documents need disclosing. But this applies only once the person is produced in court; in the shady confines of the police station – where confessions are so easily made and the outcome of a criminal case is often determined – it has no relevance.

Article 7(1) of the Directive

unlockedEnter Article 7(1) of the Directive. The idea is familiar: it requires Member States to provide a person deprived of liberty with access to documents essential for contesting the lawfulness of detention. But crucially, it speaks of a person ‘arrested or detained at any stage in criminal proceedings’. For the Paris Bar, it is obvious that this means an arrested person (or their lawyer) needs access to the police file before interrogation, so that they can contest the allegations – the grounds for their arrest – and advise the client on the best course of action.

Mobilising the defence

As with all Roadmap provisions, whether this one has an impact depends on the use made of it in practice. The Council of the EU, worn out from negotiating the measures, has emphasised the need for training to make them bite (para 12). Fair Trials International recently launched a project with five EU partners to train 240 defence lawyers across the EU with this in mind. National bars and defence associations, like the Asociación Libre de Abogados in Spain, are also organising themselves around these directives. Among them, the Paris Bar is in the maillot jaune. Continue reading

Adieu and Farewell to the Data Retention Directive

Anita PicAnita Davies

The European Union is all too often portrayed as a creature defined by over-regulation – be it the infamous “bendy banana” rules or the great chocolate debate. It is easy (and sometimes politically convenient) to forget that the EU and CJEU can serve to protect individuals from overt (and covert) state regulation. As of a CJEU decision this week to annul the Data Retention Directive (2006/24/EC), it will be very difficult for the Home Secretary, Teresa May, to push through the Communications Data Bill (also known as the “Snooper’s Charter”).

The bill was abandoned in May 2013 following opposition from the Lib Dems, but has shown signs of resurfacing. The bill would give police and security services access, without a warrant, to details of all online communication in the UK – such as the time, duration, originator and recipient, and the location of the device from which it was made. The bill depends however, on operators being obliged to store customers’ details and records. The data retention directive obliged companies to retain data and information of citizens using electronic communications networks – but now that it has been annulled the responsibility of operators to retain data is far more ambiguous.

The CJEU decision resulted from proceedings taking place in Ireland and Austria – where challenges had been mounted regarding the legality of national legislative and administrative measures concerning the retention of data. The Court ruled on Wednesday that the purpose of the Data Retention Directive, i.e. ensuring that communications data was available in order to investigate and fight serious crime, was compatible with the European Rights framework. However, the Directive itself entailed a wide-ranging and particularly serious interference with the fundamental rights to respect for private life and to the protection of personal data (Articles 7 and 8 of the CFREU), without that interference being limited to what was strictly necessary.

The Court noted that the data being retained enabled:

“very precise conclusions to be drawn concerning the private lives of the persons whose data has been retained, such as the habits of everyday life, permanent or temporary places of residence, daily or other movements, the activities carried out, the social relationships of those persons and the social environments frequented by them” [§27].

Given the potential conclusions the Court found that:

“The EU legislation in question must lay down clear and precise rules governing the scope and application of the measure in question and imposing minimum safeguards so that the persons whose data have been retained have sufficient guarantees to effectively protect their personal data against the risk of abuse and against any unlawful access and use of that data” [§54].

The Directive lacked such precise rules and appropriate safeguards.

In particular the Court objected to the fact that the Directive did not discriminate between individuals. The Directive covers all individuals, all means of electronic communication and all traffic data without any differentiation, limitation or exception being made in the light of the objective of fighting against serious crime. The Directive also fails (somewhat surprisingly given its purpose) to define the notion of “serious crime”. The Court found that the data retention period (6 to 24 months) was too generic and that the Directive did not require that the data be retained within the EU itself. Continue reading

Case Comment: CD v ST and Z v A Government Department & Ors (C-167/12 and C-363/12)

Michèle Finck, University of Oxford

Human procreation is not longer what it used to be. While medical research has created a number of mechanisms that allow people to engage in sexual intimacy without a resulting pregnancy, it also allows those wishing to procreate but who are unable to do so biologically to have children. IVF and surrogacy in many ways challenge our conception of human procreation. Naturally, the law needs to adapt to these changes.  Surrogacy in particular however raises a number of value-laden questions, which complicates the law’s response to these medical avenues. It is thus not surprising that no homogenous position exists between Member States on this issue.

In the CD and Z cases, the CJEU had to pronounce itself on how to reconcile surrogacy with an existing legal framework on maternity leave that did not account for motherhood resulting from that mechanism. More precisely, it was faced with the question of whether a mother who did not give birth to her own child, born via a surrogate, has a right to maternity leave under EU law. Family law is not a EU competence. Maternity leave is, however, regulated by the Pregnant Workers Directive (PWD) and some aspects arising out of motherhood and employment are addressed by the Sex Discrimination Directive. In Mayr, the CJEU had already clarified that the Sex Discrimination Directive is applicable to workers undergoing IVF that have not yet been successful.

In CD and Z, the Grand Chamber established that, as a matter of EU law, only women who themselves give birth to the child can benefit from maternity leave. Two Advocates General, Wahl and Kokott, issued opinions and came to opposed conclusions. The Court followed Advocate General Wahl in its judgment. Applying Mayr, it found that the PWD only applies to women who are in fact pregnant. The Sex Discrimination Directive was found not to be applicable either as the commissioning mother of a surrogacy agreement would be in the same position as a commissioning father. Having found that the question fell outside of the ambit of EU law, the CJEU also found the Charter of Fundamental Rights to be inapplicable. In the Z judgment, the CJEU further clarified that the Framework Equality Directive and its provisions on disabilities do not apply to women unable to become or carry out a pregnancy as the directive only targets disabilities that render a worker’s involvement in professional life more burdensome, which is not the case for medical conditions that prevent women from getting pregnant or carrying out a pregnancy. Continue reading

The Commission gets the point – but not necessarily the instruments

european-union-flags-at-t-0021Jan-Werner Müller

This week the European Commission issued a Communication about a new framework for protecting the rule of law within EU Member States.[1]  Is this the long hoped for mechanism that allows the EU to deal with internal threats to liberal democracy (the democratic deficits within Member States, so to speak) effectively?  The clear-cut answer is: yes and no.  The Commission has evidently understood that attempts systematically to undermine rule of law principles require a different response than individual infringement proceedings.  Depending on the circumstances, a structured process of naming and shaming which is now available to the Commission might work.  But if it doesn’t, then the Commission will remain just as helpless as before: no new sanction mechanisms are envisaged (and, to be fair, none might be feasible without treaty change).  In that sense, the new framework formalizes — or, in the words of Commission President Barroso, “consolidates” – the Commission’s de facto approach in recent years.  This is not a trivial achievement; and it’s probably the most the Commission could do on the basis of existing law and with available institutions such as the Fundamental Rights Agency.  It may well deter some governments.  But for illiberal national politicians determined to go head to head with the Commission, there is in the end still only Article 7 TEU – and that remains as difficult to put into effect as before.

The Commission’s initiative comes against the background of threats to liberal democracy in Hungary and Romania since about 2010 — and an acute sense among many observers (and also among political actors) that the Union has been ill-equipped to deal with a challenge one might call “constitutional capture.”  Constitutional capture is different from pervasive corruption (a major problem still in Bulgaria and Romania, for instance); but it is also different from individual rights violations, grave as the latter might be.  Constitutional capture aims at systematically weakening checks and balances and, in the extreme case, making genuine changes in power exceedingly difficult.  Hungarian Prime Minister Victor Orbán actually passed a new constitution for his country (a case of formal constitutional capture); his Romanian counterpart Victor Ponta, in the summer of 2012, blatantly tried to disable checks and balances (the constitutional court in particular) to get rid of his political arch-enemy, the President of Romania (this being a matter of attempting an informal constitutional capture).

In both cases, the Commission got into a direct confrontation with the respective national governments.  While the EU arguably helped to avoid the worst, the experience seemed to point to a significant weakness of the Commission as a guardian of the treaties: it could take governments to court for individual infringements of EU law, but it proved incapable of addressing systematic attempts to undermine the rule of law.  In some cases, it could not “read” certain laws for what they were, but had to reinterpret them in an EU framework such that their real political meaning was officially missed.  When Orbán’s government effectively decapitated the Hungarian judiciary by drastically lowering the retirement age of judges, the EU sued Hungary for age discrimination.  Brussels won its case, but the judges were never re-instated; the political situation remained more or less as Orbán’s government wanted it.       Continue reading

Does Germany need a political questions doctrine?

CormacCormac Mac Amhlaigh

The German Federal Constitutional Court’s (GFCC) recent decision on the (il)legality of the ECB’s bond-buying practices is the latest in what can only by now be described as a slew of cases from the Court since its 2009 Lisbon decision on questions which involve the German basic law but have an arguably disproportionate reverberation across Europe and particularly the European integration project. In fact, the OMT the decision itself, whereby the Court expressed doubts about the legality of the ECB’s bond-buying practices, but before making a definitive determination on the question, made a preliminary reference on the question to the CJEU, in a sense represents the making good on previous promises by the Court in Maastricht, Lisbon and Honeywell, where it threated to monitor the activities of the European institutions to ensure that they did not stray beyond the powers bestowed upon them in the treaties, and thereby vicariously break the German Constitution, (Maastricht and Lisbon) but would make a preliminary reference to the CJEU for its input into whether the activities of EU institutions are lawful before making a final determination on the point itself. (Honeywell)

The OMT decision has attracted much commentary and criticism in both the media and the blogosphere which I will not add to it here. Nor will I try to predict the future as to what Luxembourg’s response will be, nor Karlsruhe’s response to Luxembourg’s response (although it will be interesting to see what Luxembourg makes of a preliminary reference from a national Court which comes with a threat to ignore its opinion attached).  Rather, this latest case in the recent slew, and the occasion of the first preliminary reference from the GFCC in the fifty plus years of European integration, gives occasion, I think, to critically reflect upon the Court’s approach to politically sensitive issues involving the European integration process. 

To a student or teacher of British constitutional law, with its (however threadbare) doctrine of parliamentary sovereignty, one never ceases to be amazed by the extent to which the GFCC gets its hands dirty by wading into the heart of German political life, adjudicating upon high-profile and sensitive political issues such as the conduct of German foreign policy and the management of security threats, to the point of second-guessing the activities of the executive and legislature.  This fearless attitude to the separation of powers has resulted in some remarkable decisions in the past (see Franck for an excellent overview), and some, quite frankly, dubious political theory on the part of the court which was on full display in its Lisbon decision.    However, what stands out is the fact that Court seems to unquestioningly assume the propriety of its activities and the complete absence of any doctrine or criteria to filter out particular controversies which may be judged too politically sensitive for the Court to make a ruling.  Courts in many (if not most) other jurisdictions, tend to side-step heavily political matters through the savvy use of admissibility requirements such as rules on locus standi or the development of judicially fashioned doctrines on ‘political questions’ or justiciability. Continue reading

Barking vs. Biting: Understanding the German Constitutional Court’s OMT reference … and its implications for EU Reform

lindsethProf. Peter Lindseth

I find myself in familiar territory.  Just as with the ESM Ruling of September 2012, some of the insta-commentary on a decision of the German Federal Constitutional Court (GFCC) on the Eurozone crisis calls for a response. At issue in September 2012 was the claim that the GFCC’s refusal to issue a preliminary injunction against the European Stability Mechanism (ESM) was evidence of “the Court’s weakness in EU matters.” At issue now is the idea that the Court’s decision this past Friday to refer a question to the CJEU – on the compatibility of the ECB’s OMT program with the treaties – is somehow an “abdication,” indeed “nothing less than a surrender of sovereignty by Germany’s highest court.”

Commentators much closer to as well as more knowledgeable of these matters have already weighed in on this over-reaction. I’d still like to offer some additional reflections, not merely to add what I hope will be some context to Friday’s decision, but also to shed some light on the Court’s strategy in the “game” in which it inescapably finds itself. Finally, I’d like to suggest that the Court’s ruling has major implications for the process of EU reform that David Cameron has been struggling to energize. As I’ll explain in the conclusion to this post (apologies in advance for its length), it is hard to envision any outcome of Friday’s decision that will not compel the Angela Merkel’s government to undertake reform, including treaty changes.  This presents an opportunity for the British government but only if it’s prepared to accept that European reform must include not merely “less” Europe, but also “more,” including possibly an expanded mandate for the ECB to explicitly embrace OMT.

Continue reading

Jobless EU migrants and housing benefit

Dr Iyiola Solanke

According to reports from the BBC, ‘jobless migrants from within the European Union will be denied access to housing benefit from April this year’. Housing benefit is an ‘in –work’ benefit which provides support with rent for those who are unemployed or on a low income. As it is means tested, it may not cover all rent costs. It is administered through local councils to private and social landlords. Universal credit[1] will replace housing benefit in 2015. Before then, both Home Secretary Theresa May and Work and Pensions Secretary Iain Duncan Smith intend to introduce plans to ‘prevent exploitation of the UK welfare system’ by ‘jobless’ EU migrants.

Research[2] suggests that EU migrants are less likely than UK nationals to claim any form of benefits so the prevention of exploitation by targeting EU migrants is questionable. Furthermore, who are the jobless EU migrants – are they a composite group? Finally, as these measures will not apply to jobless nationals, would such action be compatible with EU law? There is indeed little free movement for jobless migrants under EU law[3] but when is an EU migrant ‘jobless’?

The ‘Jobless’

Focusing on the ‘jobless’ draws a broad distinction between this group and EU migrant ‘workers’: the former have few rights under EU law while the latter have many. Article 45 TFEU provides free movement to workers within the EU. A worker under EU law is a person who is employed: in Lawrie Blum and Collins the CJEU defined a worker as a person who provides services under direction of another for remuneration. The work itself must constitute a ‘genuine economic activity’: in Steymann the provision of maintenance tasks for was seen as such whereas in Bettray work conducted as part of a rehabilitation scheme was not. The number of hours worked and level of salary are irrelevant to the definition.[4]

The Citizenship Directive (CD) adopted in 2004 guarantees migrant EU workers and other ‘qualified persons’[5] equal treatment with nationals in the territory of a host member state. Migrant EU workers benefit from non-discrimination on the grounds of nationality – they and their family members are to be treated in the same way as any national worker, in relation to work, education and access to benefits. Conditions for this equal treatment are set out in Chapter III of the CD. Continue reading

Nintendo vs Modchips: Score Draw in the CJEU

Angus MacCulloch

The Court of Justice of the EU handed down its judgment in Case C-355/12 Nintendo v PC Box on 23 January 2014. It is the first of two cases concerning the legality of modchips for videogames consoles to come before the Court (Case C-458/13 is remains pending). The judgment doesn’t finally decide on the legality of modchips, but it sets out the factors that courts across Europe should address when deciding on an individual device’s legality.

In a previous post I commented on AG Sharpston’s Opinion, which was delivered in September 2013. The Court essentially adopts a similar approach, but before going into the judgment itself it is worth explaining the technology and legislation that underlies the dispute. If you have been following the case you can skip the next paragraph. Continue reading

Call for evidence: Scottish European and External Relations Committee on EU membership for an independent Scotland

Please find a link to the EER Committee’s call for views on the Scottish Government’s proposals for an independent Scotland’s membership of the European Union. The Committee is seeking views on three main themes: Scotland in the EU; the road to membership; and small states within the EU. Further details can be found on the Committee’s website.

The deadline for responses is 24 January 2014: however, if you are particularly interested in the road to membership and Scotland’s representation in the European Union, responses should be received by 16 January 2014, prior to oral evidence sessions due to take place on 23 and 30 January 2014.