By Emilio DE CAPITANI, Henri LABAYLE and
This week, Members of the European Parliament (MEPs) will continue their questioning of the would-be members of the next European Commission, to determine whether to confirm the Commission in office. MEPs have already asked some written questions and the would-be Commissioners have replied. However, the oral hearings which will shortly take place are an opportunity for MEPs to ascertain the Commissioners’ plans, and to secure important political commitments.
The following blog post suggests some questions for MEPs to ask two of the proposed Commission Vice-Presidents, namely the would-be High
Representative for the Common Foreign and Security Policy and Commission Vice
President for external relations (Mogherini), and the would-be Commissioner for Better Regulation, Fundamental Rights and the Rule of Law (Timmermans). The questions for Ms. Mogherini focus on institutional issues, since we assume that MEPs will not overlook the possibility to ask about substantive foreign policy issues.
QUESTIONS TO HIGH
REPRESENTATIVE CANDIDATE MOGHERINI
1. External vs Internal
Security Policy
In your written
answer you claim the need of a consistent and global approach to external and
internal security. However, legally these two dimensions have been artificially
separated in the Treaties by a disconnection clause (art.40 of TEU; see the Annex to this blog post) according to which the external security will remain intergovernmental.
This means that consensus between the 28 Member States will remain the main
rule, there are no legislative powers and the Court of Justice has no full
judicial oversight.
Bearing in mind
these flaws of the EU external security policy (also from the point of view of
the democracy principle and of the rule of law) would not be better to achieve
some of your goals by building them on the external dimension of “internal”
policies (such as protection of borders, migration, judicial and police
cooperation)? If so qualified majority voting will be the rule and external agreements
will be approved by the EP (as already happened with some EU-US agreements) and
EU acts will be under the control of the Court of Justice…
2. Solidarity
clause in case of terrorist attack or natural or man made disaster (art. 222
TFEU)
On a joint proposal
of your predecessor and of the Commission on 24 June 2014 the Council adopted
the arrangements for the
implementation by the Union of the solidarity
clause (art 222 TFEU) to be activated if a
Member State is the object of a terrorist attack or the victim of a natural or
man-made disaster. The text has been adopted without associating the EP and
moreover it does not foresee any structured information of the European
Parliament on the way in which threats are defined and monitored, not even in the
case that such an event occurs. However even if the Treaty does not impose
a requirement to provide this information nothing would had prevented the
Council from foreseeing it on its own initiative also because it would be
bizarre that the members of the EP discover a terrorist attack from the press rather
than from institutional channels.
Will you propose an amendment to
that Decision by recognising an adequate space for the EP?
3. Global
Approach to Migration and mobility partnership as a binding act
As you rightly say
in your written answer, EU development policy and international agreements
could be the answer to address the root causes of displacement. However the
Global Approach of Migration and the mobility partnership are only diplomatic
instruments and are meaningless if not framed as full international agreements.
Should they be
transformed into legal binding acts (both for third countries and the EU and
its Member States) and be accompanied by formal EU agreements with the relevant
UN Agencies (UNHCR, IOM) tasking (and financing) them for the interventions in
third countries?
4. Agreements
on the exchange of confidential information with third countries
Since 2000 the Council of the European Union has concluded dozens of
international agreements dealing with the exchange of confidential information
with third states and international organizations. However, notwithstanding the
entry into force of the Lisbon Treaty and of art 218(10) of the TFEU which
requires that the European Parliament should be “immediately and fully informed”
during the negotiations this never happened.
Even worse these
agreements follow the same model (originally defined for the EU-NATO agreement)
according to which the Council concludes the agreement on behalf of the
European Union by granting to the other contracting party the right of vetoing
the transmission of the classified information to any other third party,
including the European Parliament.
Do you think that
in compliance with the democratic principle inside the EU and the principle of
loyal cooperation after the Lisbon Treaty these agreements should be amended?
5. Art 9 of
Regulation 1049/2001 and future revision of the Agreement on the exchange of
classified information
Art.9 of Regulation
1049/2001 frames in a very concise way the treatment of classified information
as “confidential”, “secret” and “top secret”. However there is not yet a
definition of the criteria to be followed for the
classification/declassification.
As limits to
fundamental rights should be founded on law and not on internal organisational
rules (the so called EUCI rules) will you propose a revision of article 9 of
Regulation 1049/2001 ?
The revision of the
agreement on exchange of confidential information with the Council in the
domains formerly covered by the second pillar is underway.
Will you accept an
EP request for declassification in case after examination a document appears
to be overclassified ?
6. International
negotiations and provisional application
In principle the
mandate for negotiations for an international agreement should indicate the
envisaged legal base (see the CITES
judgment of the CJEU) but this has not been the case for the ACTA agreement,
for the TTIP and currently for the EU-USA umbrella agreement on data
protection.
Do you agree that this is an essential element for the legality of the mandate even if the legal basis could be updated on the basis of the result of the negotiations?
The signature of an
international agreement not covering exclusively the CFSP requires the consent of
the European Parliament. In case of mixed agreements (such for external trade)
the provisional application could be foreseen and the EP will not have the
chance to delay the application without rejecting the agreement itself.
Do you not consider that it would be more wise to submit to the EP two
different draft Decisions covering respectively the agreement and its
provisional application?
7. Consular
Protection
Foreseen by the Maastricht Treaty the right to consular protection is still the “cinderella” of EU citizens’ rights, because of Member States’ reluctance to adopt even the Commission proposal to establish a solidarity mechanism in this area.
Will you try to convince the MS that it is even in their interest to
adopt the Commission proposal?
QUESTIONS TO FRANS TIMMERMANS
Rather strangely the
hearing in this case will not follow the EP’s very detailed internal rules (art.118 and
Annex XVI of the EP’s rules of procedure; see the annex to this blog post)
which require that the hearing should take place before the Parliamentary
committees. Candidate Vice President Timmermans will instead be heard by the
Conference of Presidents of political Groups.
1.Rule of law /
implementation of EU law
The confidence of all
EU citizens and national authorities in the functioning of the rule of law
in the Member States is vital to increase the mutual trust and to further
develop the EU into "an area of freedom, security and justice without
internal frontiers".
In your written reply
you strongly support the recent Commission proposal for a “common rule of law
framework (COM(2014)158 as repeatedly advocated by the European Parliament (but
criticized by the Council legal Service). However such an exercise, which
should cover all the EU member states, risk being meaningless if the Commission
does not strengthen the mechanisms which implement the principle of sincere
cooperation with and between the Member States. For instance there is no ground
in the Treaties which justifies confidential meetings between the Commission
and the Member States (even in the framework of the so called “EU Pilot
mechanism”) when legal certainty on the exact scope of EU citizens rights and
obligations are at stake.
As first steps to
strengthen the rule of law would it not then be appropriate to:
- update the way that
the Commission on a day-to-day basis debates with the Member States about the
implementation of EU legislation?
- make public
the Member States’ implementation plans as well as the table of
correspondence between EU and national rules ?
- implement (five
years after the Lisbon Treaty came into force!) Article 70 TFEU, providing for “objective
and impartial evaluation of the implementation of the Union policies” as
regards Justice and Home Affairs law, by keeping informed the European and
national parliaments ?
- take stock every
year of the rulings of the European Courts and of the measures taken at
national level ?
2. Charter of
Fundamental rights as a “roadmap” for the EU legislator ?
In a recent
ruling the Court of Justice struck down for the first time an EU
Directive (the Data Retention Directive 2006/24) because “.., the
EU legislature has exceeded the limits imposed by compliance with the principle
of proportionality in the light of Articles 7, 8 and 52(1) of the Charter. "
According to the CJEU the Directive “..does not lay down clear and
precise rules governing the extent of the interference with the fundamental
rights enshrined in Articles 7 and 8 of the Charter” and
moreover “does not require the data in question to be retained
within the European Union, with the result that it cannot be held that the
control, explicitly required by Article 8(3) of the Charter, by an
independent authority of compliance with the requirements of protection and
security, as referred to in the two previous paragraphs, is fully
ensured…” In other terms from now on the Court of Justice will require
a strict assessment of the proportionality and necessity of measures that
constitute serious restrictions to fundamental rights, however legitimate the
objectives pursued by the EU legislature.
On the basis of this
landmark ruling do you not consider your priority to revise, to ensure its proportionality,
the legislation falling within the sphere of judicial and police cooperation in
criminal matters adopted before the entry into force of the Charter and of the
Treaty of Lisbon ?
Will you commit to
develop a stronger and more transparent strategy to deal with infringements of
EU law where the rights in the Charter are threatened by a Member State's
non-existent or incorrect implementation of its EU law obligations?
Would it not be
sensible, taking into account your attachment to the REFIT exercise, to establish
“sunset clauses” for measures limiting EU citizens rights? Moreover, as regards
data protection, do you not consider that this ruling raises even bigger doubts
on the compatibility with the proportionality principle of the EU-US agreements
on PNR and TFTP and of the legislative proposals submitted by the Commission on
the EU-PNR and the “Entry-Exit” system (not to speak of the lack of compliance
of the proposal on trusted traveller with the principle of non discrimination)
?
3 Better Regulation
–interinstitutional agreement on codecision – Transparency
In your written
answer you recognise that the current inter-institutional agreement on better
law making has several flaws but you envisage its revision only by the end of
2015. However in the meantime some practices against the spirit and the letter
of the Treaties could continue. For instance the Treaties make no reference any
longer to the protection of the decision making process for legislative
procedures and require public debates also at the Council level.
Notwithstanding this new legal framework until now the Commission has done
nothing to bring the Council and EP closer on the revision of Regulation 1049/2001
and create a sufficient majority within the Council (as former Dutch minister
you should know this problem very well).
Will you, as a first
priority, modify the 2008 Commission proposal on access to documents by taking
as a basis Article 15 TFEU, Article 42 of the Charter and the position adopted
by the European Parliament in December 2011?
As the Council has de
facto imposed upon the other EU institutions, agencies and bodies its internal
security rules as common standards for classified documents, would you not
consider that the current situation violates the Treaty provision which requires
a legislative measure to be adopted under art. 15 TFEU ?
4. Delegated /
Implementing acts - Transparency
After the Lisbon
Treaty the Commission, instead of applying on a case by case basis the
implementation of the subsidiarity principle by defining policy by policy what
should be considered basic rules, what could be considered non-essential
(and therefore to be delegated) and what could be considered purely
executive, has adopted a “horizontal” approach by taking as main reference
the pre-existing types of Committees.
This “shortcut” has
not only ignored the evolutions of different policies (as well as of the institutions’
roles) but it is also taking more time it could have, as compared to updating
the EU legislative objectives in the light of the revised Treaties and of the
Charter.
From a transparency
perspective you state that you “will also consider whether the Commission
could systematically publish draft measures at the point at which consultations
with expert groups are due to start. This would allow the European Parliament
and the Council as well as other stakeholders to express their views before
formal adoption. The three institutions could discuss whether a dedicated
Register could be part of the solution and depending on the conclusions
reached, I would be ready to examine the feasibility of this option and its
inclusion in the modernised inter-institutional agreement on better law-making”.
Are you aware that
such an obligation already exists in Regulation 1049/2001 according to which
“Wider access should be granted to documents in cases where the institutions
are acting in their legislative capacity, including under delegated powers,
while at the same time preserving the effectiveness of the institutions'
decision-making process. Such documents should be made directly accessible to
the greatest possible extent.” ?
5. Subsidiarity in
the Area of Freedom, Security and Justice
In your written
answer you make reference to your initiative as former Dutch minister for
external affairs on what the EU should do to comply with the principles of
subsidiarity and proportionality. However according to the 54 recommendations
adopted one year ago by your government the EU should be less ambitious, in the
freedom security and justice area, on :
- consular
protection for EU citizens abroad (even if since its establishment by
the Maastricht Treaty this right exists only on paper)
- family reunification (where
NL recommends higher age and civic integration requirements)
- admission
of third-country nationals for the purposes of research, studies, pupil
exchange, etc.
(where NL considers
that the categories of pupils in exchange programmes, unpaid interns,
volunteers and au pairs should not be covered)
- proposals to
harmonise the law of criminal procedure where NL considers that “legislation
should not be ‘Lisbonised’ simply because the Treaty of Lisbon exists” and
oppose “the introduction of legislative proposals purely on the grounds that
the Council of Europe has already adopted a Convention on the same
subject”. (NDR : So why they did bother ratifying the Lisbon Treaty
and a binding Charter when the previous regime was already satisfactory and why
bother with the EU if the Council of Europe suffices?)
- proposals
to harmonise substantive criminal law (where NL challenges, for
instance, EU proposals enforcing criminal laws against identity fraud and
customs law violations) and the revision of the money laundering legislation.
As a Vice President
of the Commission will you maintain the same approach ?
6. EU agencies and
their powers /accountability
In the last ten years
the number of EU agencies has rocketed from 10 to 32, sometimes for sound
technical reasons, but more often as a way for Member States to shape and
manage EU policies without a real accountability before the Commission, the
European Parliament and the national parliaments. Their global budget amounted
in 2014 to 800 million euros, and with more than 6.000 officials they have
become a parallel administration which acts in a rather fuzzy way without a
clear legal administrative framework. The Common Approach to decentralised
agencies (a “political” agreement reached in 2012 by the Council, Commission
and European Parliament) has laid down some parameters on EU agencies’
establishment, hosting, human resources policy, transparency and accountability
but as such is more of cosmetic nature. But what is more worrying is the fact
that some of the agencies are becoming political agenda setting bodies. In the
FSJA the role of Frontex and of Europol (managing the so called “policy cycle”
which defines the EU priorities against crime) is self –explanatory.
How do you intend to re-establish
a real binding administrative framework and improve the rule of law
principles for these “independent” EU bodies?
You announced that
you “will prepare a proposal for an Inter-Institutional Agreement creating a
mandatory lobby register covering the Commission, the European Parliament and
the Council”. As cases of conflict of interest have emerged will you add also
the EU agencies to the register ?
ANNEX
Article 40 (ex Article 47 TEU)
The implementation of the common foreign and security policy shall not affect the application of the procedures and the extent of the powers of the institutions laid down by the Treaties for the exercise of the Union competences referred to in Articles 3 to 6 of the Treaty on the Functioning of the European Union.
Similarly, the implementation of the policies listed in those Articles shall not affect the application of the procedures and the extent of the powers of the institutions laid down by the Treaties for the exercise of the Union competences under this Chapter.
The model agreement state “The EU institutions and entities to which this Agreement applies shall be: the European Council, the Council of the European Union (hereafter ‘the Council’), the General Secretariat of the Council, the High Representative of the Union for Foreign Affairs and Security Policy, the European External Action Service (hereafter ‘the EEAS’) and the European Commission. For the purposes of this Agreement, these institutions and entities shall be referred to as ‘the EU”.
Rule 118 Election of the Commission
1. The President shall, after consulting the President-elect of the
Commission, request the nominees proposed by the President-elect of the
Commission and by the Council for the various posts of Commissioner to
appear before the appropriate committees according to their prospective fields
of responsibility. These hearings shall be held in public.
2. The President may invite the President-elect of the Commission to
inform Parliament about the allocation of portfolio responsibilities in the
proposed College of Commissioners in accordance with his or her political
guidelines.
3. The appropriate committee or committees shall invite the
Commissioner-designate to make a statement and answer questions. The hearings
shall be organised in such a way as to enable Commissioners-designate to
disclose to Parliament all relevant information. Provisions relating to the
organisation of the hearings shall be laid down in an annex to these Rules of
Procedure16.
4. The President-elect shall present the college of Commissioners and
their programme at a sitting of Parliament which the President of the European
Council and the President of the Council shall be invited to attend. The
statement shall be followed by a debate.
5. In order to wind up the debate, any political group or at least 40
Members may table a motion for a resolution. Rule 123(3), (4) and (5) shall
apply.
Following the vote on the motion for a resolution, Parliament shall
elect or reject the Commission by a majority of the votes cast.
The vote shall be taken by roll call.
Parliament may defer the vote until the next sitting.
6. The President shall inform the Council of the election or rejection
of the Commission.
7. In the event of a substantial portfolio change during the
Commission's term of office, the filling of a vacancy or the appointment of a
new Commissioner following the accession of a new Member State, the
Commissioners concerned shall be invited to appear before the committees
responsible for the areas of responsibility in question in accordance with
paragraph 3.
ANNEX XVI Guidelines for the approval of the Commission
1. The following principles,
criteria and arrangements shall apply for making the entire College of the
Commission subject to Parliament's vote of consent:
(a) Basis for assessment
Parliament shall evaluate Commissioners-designate on the basis of their
general competence, European commitment and personal independence. It shall
assess knowledge of their prospective portfolio and their communication skills.
Parliament shall have particular regard to gender balance. It may
express itself on the allocation of portfolio responsibilities by the
President-elect.
Parliament may seek any information relevant to its reaching a decision
on the aptitude of the Commissioners-designate. It shall expect full disclosure
of information relating to their financial interests. The declarations of
interest of the Commissioners-designate shall be sent for scrutiny to the
committee responsible for legal affairs.
(b) Hearings
Each Commissioner-designate shall be invited to appear before the
appropriate committee or committees for a single hearing. The hearings shall be
held in public.
The hearings shall be organised by the Conference of Presidents on a
recommendation of the Conference of Committee Chairs. The Chair and
coordinators of each committee shall be responsible for the detailed
arrangements. Rapporteurs may be appointed.
Appropriate arrangements shall be made to associate relevant committees
where portfolios are mixed. There are three options:
(i) if the portfolio of
the Commissioner-designate falls within the remit of a single committee, the
Commissioner-designate shall be heard by that committee alone (the committee
responsible);
(ii) if the portfolio of the
Commissioner-designate falls more or less equally within the remit of more than
one committee, the Commissioner-designate shall be heard jointly by those
committees (joint committees); and
(iii) if the portfolio of the Commissioner-designate falls mainly within
the remit of one committee and only to a small extent within the remit of at
least one other committee, the Commissioner-designate shall be heard by the
committee mainly responsible, with the association of the other committee or
committees (associated committees).
The President-elect of the Commission shall be fully consulted on the
arrangements.
The committees shall submit written questions to the
Commissioners-designate in good time before the hearings. For each
Commissioner-designate there shall be two common questions drafted by the
Conference of Committee Chairs, the first relating to the issues of general
competence, European commitment and personal independence, and the second
relating to the management of the portfolio and cooperation with Parliament.
The committee responsible shall draft three other questions. In the case of
joint committees, they shall each be given the right to draft two questions.
Each hearing shall be scheduled to last three hours. Hearings shall take
place in circumstances, and under conditions, in which Commissioners-designate
enjoy an equal and fair opportunity to present themselves and their opinions.
Commissioners-designate shall be invited to make an opening oral
statement of no longer than 15 minutes. Where possible, questions put during
the course of the hearing shall be grouped together by theme. The bulk of the
speaking time shall be allotted to political groups, mutatis mutandis in accordance
with Rule 162. The conduct of the hearings shall aim to develop a pluralistic
political dialogue between the Commissioners-designate and the Members. Before
the end of the hearing, Commissioners-designate shall be given the opportunity
to make a brief closing statement.
There shall be a live audio-visual transmission of the hearings. An
indexed recording of the hearings shall be made available for the public record
within 24 hours.
(c) Evaluation
The Chair and coordinators shall meet without delay after the hearing to
evaluate the individual Commissioners-designate. Those meetings shall be held
in camera. The coordinators shall be invited to state whether, in their
opinion, the Commissioners-designate are qualified both to be members of the
College and to carry out the particular duties they have been assigned. The
Conference of Committee Chairs shall design a pro forma template to assist the
evaluation.
In the case of joint committees the Chair and the coordinators of the
committees concerned shall act jointly throughout the procedure.
There shall be a single evaluation statement for each
Commissioner-designate. The opinions of all the committees associated with the
hearing shall be included.
Where committees require further information in order to complete their
evaluation, the President shall write on their behalf to the President-elect of
the Commission. The coordinators shall take the latter's reply into
consideration.
If the coordinators are unable to reach a consensus on the evaluation,
or at the request of one political group, the Chair shall convene a full
committee meeting. As a last resort, the Chair shall put the two decisions to
the vote by secret ballot.
The committees' statements of evaluation shall be adopted and made
public within 24 hours after the hearing. The statements shall be examined by
the Conference of Committee Chairs and conveyed subsequently to the Conference
of Presidents. Unless it decides to seek further information, the Conference of
Presidents, following an exchange of views, shall declare the hearings closed.
The President-elect of the Commission shall present the whole College of
Commissioners-designate and their programme at a sitting of Parliament which
the President of the European Council and the President of the Council shall be
invited to attend. The presentation shall be followed by a debate. In order to
wind up the debate, any political group or at least 40 Members may table a
motion for resolution. Rule 123(3), (4) and (5) shall apply.
Following the vote on the motion for resolution, Parliament shall vote
on whether or not to give its consent to the appointment, as a body, of the
President-elect and Commissioners-designate. Parliament shall decide by a majority
of the votes cast, by roll call. It may defer the vote until the following
sitting.
2. The following arrangements shall apply in the event of a change in
the composition of the College of Commissioners or a substantial portfolio
change during its term of office:
(a) When a vacancy caused by
resignation, compulsory retirement or death is to be filled, Parliament, acting
with dispatch, shall invite the Commissioner-designate to participate in a
hearing under the same conditions as those laid down in paragraph 1.
(b) In the event of the
accession of a new Member State, Parliament shall invite the Commissioner-designate
to participate in a hearing under the same conditions as those laid down in
paragraph 1.
(c) In the event of a substantial
portfolio change, the Commissioners affected shall be invited to appear before
the committees concerned before taking up their new responsibilities.
By way of derogation from the procedure laid down in paragraph 1(c),
eighth subparagraph, when the vote in plenary concerns the appointment of a
single Commissioner, the vote shall be by secret ballot.
Barnard & Peers: chapter 3, chapter 5, chapter 9, chapter 24
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