‘Can a man serve two masters’? The Court of Justice decides whether monks can be banned from being lawyers

Rebecca Zahn, Senior Lecturer in Law, University of Strathclyde

Lawyers occupy a unique position in the European Union. Within their Member States, they play a vital role in providing access to and administering justice, and upholding the rule of law. As with other professionals such as doctors or architects, access to the profession is tightly regulated by national bodies. Yet unlike other professionals, lawyers are inherently immobile. The knowledge required to be a lawyer is closely linked to the jurisdiction within which an individual trains and qualifies. An understanding of the national language as well as of a particular legal system’s customs and practices is vital for the exercise of the profession. This makes the facilitation of free movement of lawyers difficult. Lawyers can make use of the general system of Directive 2005/36/EC, which leads to full integration in the profession of the receiving Member State following the successful completion of an aptitude test. The European Commission’s Regulated Professions Database suggests that 7,506 lawyers have availed themselves of this route to gain admission to the profession in a host State.

Yet in recognition of their special status, lawyers are the only professionals who benefit from an additional regime designed to facilitate temporary and permanent free movement.  Directive 77/249/EEC permits lawyers registered in one Member State to provide temporary cross-border services in another Member State without any prior notification. There are no statistics available on the use of this right but a 2012 study for the European Commission evaluating the Legal Framework for the Free Movement of Lawyers suggested that there was a large market for the temporary cross-border provision of services albeit with limited physical movement; often such services are provided at a distance, for example by e-mail or telephone.

Finally, Directive 98/5/EC allows lawyers to register to practice law on a permanent basis in a host Member State. Article 3 of that Directive mandates that lawyers wishing to practice in a host Member State register with the competent authority by presenting their registration certificate. The competent authority shall register the lawyer initially under their home-country professional title which allows the lawyer to give advice on his home law, EU law, international law or the law of the host Member State (Article 5(1)). Under Article 6, the host Member State’s professional rules of conduct will apply to the lawyer’s exercise of activity in that State. Following three years of practice in the law of the host Member State, the lawyer can apply to be admitted to the profession of lawyer in the host Member State (Article 10).

The Directive thus harmonises access to the profession under Article 3 while granting Member States discretion when it comes to integrating individuals through its own rules of professional conduct. However, this hybrid nature of the Directive can lead to difficulties as was made clear in a judgment handed down by the Grand Chamber of the Court of Justice of the European Union on 7 May 2019 in Case C-431/17 Monachos Eirinaios v Dikigorikos Syllogos Athinon.

The case concerned a Greek monk, Monachos Eirinaios, who lives in a monastery in Greece. He is also a qualified lawyer and a member of the Cyprus Bar Association. In June 2015, he relied on Article 3 of Directive 98/5 to register with the Athens Bar Association as a lawyer who has acquired his professional title in another Member State. The application was refused on the basis of the national rules on incompatibilities contained in Article 8(1) of the Presidential Decree 152/2000 and Article 6 of the Lawyers’ Code which prohibit a clergyman or monk from being a lawyer in Greece. The Athens Bar Association argued that monks were barred from becoming lawyers due to the absence of guarantees regarding their independence, doubts as to their ability to occupy themselves fully with their functions and whether they can handle contentious cases, the requirement for actual establishment in the geographical area of practice and the obligation not to provide services without remuneration. Monachos Eirinaios appealed the decision and the Council of State referred a question to the Court of Justice asking whether Article 3 of Directive 98/5 required the Athens Bar Association to register Monachos Eirinaios even though he would not be allowed to practice once registered.

In a short judgment, the Court reiterated that Article 3 of Directive 98/5 harmonises the rules under which a lawyer can establish himself in a host Member State. Provided that the lawyer is fully qualified and has the requisite certificate from the home Member State, the host Member State authorities must register him regardless of whether he is subsequently able to practice. National authorities are not permitted to impose additional conditions for registration other than those contained in article 3. This follows from the decision in Case C-58/13 Torresi (discussed here) where the Court established the mutual recognition of the professional titles of lawyers. The Court recognised the absurdity of the situation in Monachos Eirinaios where it was requiring the competent authorities to issue a registration certificate with the knowledge that the individual would not be able to practice.

However, the Court drew a clear distinction between access to the profession on the one hand and its practice on the other hand. The Court accepted that in relation to the latter national authorities may wish to impose certain requirements in order to maintain professional standards. The Court did not comment on the nature of the complete ban on monks becoming lawyers (saying only that it could not be a prerequisite for registration) but instead required the national court to determine whether the ban complied with the principle of proportionality (without giving specific guidance on the criteria to be applied).

The decision in Monachos Eirinaios follows on from the Court’s previous jurisprudence on Directive 98/5 which has focussed on facilitating the free movement of lawyers. In doing so, it is to be welcomed. Given the sensitive nature of the topic both in terms of access to a highly regulated profession and, in the specific Greek context, of the evolving relationship between church and state, the decision also strikes a subtle balance between facilitating access while maintaining Member State discretion. It is therefore perhaps not surprising that the case was heard by the Grand Chamber. However, by circumventing any discussion of the complete ban on monks and clergymen becoming lawyers, the Court has indeed created an absurd situation; namely, that the Athens Bar Association is required to register Monachos Eirinaios and can then immediately strike him off. More detailed guidance on the proportionality test to be applied in these circumstances could have been beneficial especially as the Advocate General engaged in a more nuanced discussion of the topic.

The Advocate General suggested that the rule bans all individuals with particular characteristics from practicing law and thus should not fall under professional conduct. This is a well-spotted flaw in the rules. The Advocate General suggests instead that the Bar Association should be required to see how a lawyer conducts himself in practice before removing registration (following the reasoning in Case C-225/09 Jakubowska where it was recognised that failure to comply with host State rules may lead to a foreign lawyer being removed from the register).

In this, she is correct. In effect, the Bar Association is making an assumption that monks are incapable of fulfilling the rules of professional conduct required of lawyers because they are monks. There is no need for any assessment as to whether the monk (or clergyman) is practicing his religion. Indeed, there is also no clear definition of the scope of the definition of monk or clergyman for the purposes of the Directive (what if, for example, someone is a lay preacher in another Member State – does this classify as a clergyman in this instance?). If Directive 98/5 is to facilitate free movement of lawyers then there must be a minimum harmonisation of what we understand ‘rules of professional conduct’ to be under Article 6. Blanket bans which relate to characteristics (and do not allow conduct to occur) do not facilitate free movement and render the right to registration in effect nugatory.

Moreover, the procedural guarantees in the case of disciplinary procedures in Article 7 or the right of recourse to a court in Article 9 of the Directive only apply once an individual has practiced as a lawyer which is rendered impossible in this case. If we abstract this case from its specific facts then accepting such a blanket ban in relation to a characteristic is a potentially problematic assumption which could undermine the rule of law. What if a Member State introduces rules which require political party affiliation in order to practice as a lawyer under the guise of professional rules of conduct? In a different factual context, the lack of minimum harmonisation of what we understand rules of conduct to encompass could undermine lawyers’ ability to provide access to and administer justice. In skirting around this topic, the Court of Justice has missed an opportunity to further clarify the scope of Directive 98/5/EC.

Barnard & Peers: chapter 14

Photo credit: InHouse Legal

Judicial Independence and Maltese courts: Is a microstate about to provide EU rule of law with its Van Gend moment?

Justin Borg-Barthet, Senior Lecturer in EU Law at the University of Aberdeen*

In fifteen years of EU membership, Maltese courts have been remarkably reluctant to refer questions of interpretation to the CJEU.  This could be about to change in litigation which could have far-reaching consequences for the direct effect of member states’ rule of law and human rights obligations.  The dispute raises important, novel questions concerning the extent to which EU law of a classical constitutional nature could be democratised in much the same manner as the law of the internal market was democratised through Van Gend.

In the case of Pace Axiaq et al vs Prim Ministru, an NGO has asked the Civil Court to seek a preliminary ruling concerning the compatibility with EU law of Malta’s system of judicial appointments.  The NGO contends that a system which grants the executive absolute power over appointment and promotion breaches the right to a fair trial and the right to an effective remedy (Art 19 TEU and Art 47 Charter of Fundamental Rights).  The applicants also seek to enjoin the government to refrain from making further appointments to the bench until constitutional reforms have been implemented.

In a decree issued on 22 May 2019, the Civil Court rejected the Maltese government’s request to summarily dismiss the case.  The Court found that, while the applicants could not rely on the Maltese Constitution or the ECHR, they did have a juridical interest insofar as they rely on EU law. 

The case, should it be referred to the CJEU, would enable the further development of jurisprudence through which the Luxembourg court has operationalised the rule of law in the EU.  In particular, it could render individuals enforcers of the principles in the Juizes Portugueses judgment (discussed here) in which it was held that “every Member State must ensure that the bodies which, as ‘courts or tribunals’ within the meaning of EU law, come within its judicial system in the fields covered by that law, meet the requirements of effective judicial protection” (para 37).

Systematic backsliding in the absence of systemic change

The applicants in Pace Axiaq rely in great measure on the ongoing proceedings in Commission v Poland (discussed further here).  Their submissions refer also to the damning indictment of Malta’s rule of law failings in a report by the Council of Europe’s Venice Commission.  The report, which was prompted by the assassination of journalist Daphne Caruana Galizia, noted that the independence of the judiciary is severely compromised by the present system of appointments.

The Maltese government has, in fact, committed to introducing legislation which will make the judiciary self-perpetuating, thereby severing the executive’s control over the judicial branch.  The catch, however, is that appointments to the bench have continued; indeed, six appointments were made quite hurriedly following the filing of Pace Axiaq.  The net effect is that partisan capture could be perpetuated if a secure partisan majority of judges is installed by the executive prior to any legislative innovation.  As former ECHR judge Giovanni Bonello observes, permanent capture is quite likely given that the vast majority of judicial appointees since the 2013 change of government have either occupied a prominent role in the governing party or have close family or business relations with persons who do. 

Equally importantly, the threat to the independence of the judiciary is to be considered in a broader context of institutional capture.  The Maltese constitution relies on trust insofar as the separation of powers is concerned.  The executive has extensive powers of appointment and removal of officials responsible for the enforcement of criminal law, including financial regulation required by EU law. This has always been problematic in conceptual terms, and internal criticism is not a new phenomenon.  Recent events, however, demonstrate that there has been significant movement towards a deliberate culture of impunity in the highest political offices.  Erosion of the independence of the judiciary therefore takes on an altogether more worrisome flavour given many considered the judiciary to be a significant bar to the further (or complete, by some accounts) erosion of the rule of law, and the principle of sincere cooperation.

Malta is not Poland, but…

The Maltese rule of law crisis is distinguishable from its better-known Polish counterpart, however.  Poland has adopted regressive laws following EU membership, and thereby compromised the standard of judicial independence which had been scrutinised prior to accession.  The European Commission has been clear that this type of formal backsliding engages EU law, specifically Article 7 TEU, and requires redress as a matter of Union law.

In Malta, in contrast, the laws which the applicants in Pace Axiaq contend are contrary to EU law have been in place for as long as Malta has been an independent state.  Of course, nowhere in the treaties is the enforcement of fundamental rights and rule of law obligations contingent on regression, but the absence of formal regression means that a clear demarcation between compliance and its absence is lacking.  Indeed, the Maltese government, cognisant of the Commission’s formulaic systemic backsliding criteria, has been eager to emphasise the Commission’s role in the enforcement of rule of law obligations, arguing that there is no private route to enforcement. 

The potential innovation in Pace Axiaq, and the reason why a preliminary ruling is in fact necessary, is that the petitioners rely instead on the direct effect of certain human rights obligations: Article 19(1) TEU, which requires national courts to “provide remedies sufficient to ensure effective legal protection in the fields covered by Union law”, and Article 47 of the Charter of Fundamental Rights, which guarantees the right to an effective remedy and the right to a fair trial.  The matter is then brought within the scope of the Wachauf formula by way of the duty of sincere cooperation in Article 4(3) TEU; it is argued that the entire substance of the effectiveness of EU law may be at stake, and that all future judgments could be called into question should judicial independence be further compromised.

Paradoxically, Pace Axiaq could provide the Maltese courts with an opportunity to make their greatest contribution to the rule of law at a time when their own independence is most under threat.  Much like the establishment of the internal market required the development of direct effect and citizen-led enforcement of the law, supranational judicial oversight would go a long way towards fulfilling EU law’s promise of a system founded on the rule of law and fundamental rights.

*Reblogged from Verfassungsblog

Barnard & Peers: chapter 9

Photo credit: The Judiciary of Malta

What might have happened in an alternate universe: the EU (Withdrawal Agreement) Implementation Bill (‘WAB’)

Professor Tamara Hervey, University of Sheffield, and Professor Steve Peers, University of Essex

People who voted for a ‘coalition of chaos’ with Ed Miliband in 2015 sometimes imagine the goings-on in the ‘Miliverse’ – a parallel universe where Ed Miliband won the general election that year, and where the main debates in British politics are about bin collections and bus routes, rather than Brexit. With yesterday’s resignation of the Prime Minister, we can imagine the ‘Mayverse’ – a universe where Mrs May either held off calling an election, or held it and won the large majority she was hoping for, or had successfully pursued the art of compromise that she referred to in her resignation speech.

The latest big development in the ‘Mayverse’ would have been the Bill implementing the EU/UK Withdrawal Agreement. In our universe, on 15 May 2019, the UK government had announced that it would publish this Bill in ‘early June’.  This week the Prime Minister, before resigning, set out the main points of the Bill. Of course, her resignation, and the earlier news that the Conservative/Labour talks have failed, makes this much less likely.  However, in post-EU referendum politics, many futures are possible, including ones we might not foresee.  A lawyers’ job is to make sense of the legal texts that seek to express political agreements.

 

So this blog post considers some of the possibilities for one of the key elements of the EU (Withdrawal Agreement) Implementation Bill (or ‘WAB’ as it has come to be known) that would have been tabled in the Mayverse, and might yet be tabled in our universe: how is the UK going to render its obligations under the EU/UK Withdrawal Agreement into domestic law? (Other key elements are considered here.)

Available information at present

At this time, there is no text of the EU (Withdrawal Agreement) Implementation Bill in the public domain. What is available is the White Paper on Legislating for the Withdrawal Agreement, from July 2018, and the EU/UK Withdrawal Agreement itself, as well as the documents that surround it, such as the Preliminary Joint Report from the negotiating teams, from December 2017.

Only two paragraphs of the White Paper explicitly address the WAB.  One (para 148) simply says that if Parliament approves the Withdrawal Agreement, government will bring forward the WAB (see also para 4 which says government will only do this once the Withdrawal Agreement is approved by Parliament).  The other (para 149) states:

‘As set out in the preceding chapters of this paper, the Bill will be the primary means of implementing the Withdrawal Agreement in UK law, to ensure the Government meets its international obligations as set out in the treaty, …’

This makes it sound like the WAB would have treated the Withdrawal Agreement as ordinary international law.  This is not what the text of the Withdrawal Agreement suggests.  Its Article 4 provides:

‘(1) The provisions of this Agreement and the provisions of Union law made applicable by this Agreement shall produce in respect of and in the United Kingdom the same legal effects as they produce within the Union and its Member States. Accordingly, legal or natural persons shall in particular be able to rely directly on the provisions contained or referred to in this Agreement which meet the conditions for direct effect under Union law.

(2) The United Kingdom shall ensure compliance with paragraph 1, including as regards the required powers of its judicial and administrative authorities to disapply inconsistent or incompatible domestic provisions, through domestic primary legislation.

(3) The provisions of this Agreement referring to Union law, or to concepts or provisions thereof, shall be interpreted and applied in accordance with the methods and general principles of Union law.

(4) The provisions of this Agreement referring to Union law, or to concepts or provisions thereof shall in their interpretation and application be interpreted in accordance with the relevant case law of the Court of Justice of the European Union handed down before the end of the transition period.

(5) In the interpretation and application of this Agreement, the United Kingdom’s judicial and administrative authorities shall have due regard to relevant case law of the Court of Justice of the European Union handed down after the end of the transition period.

Article 4 WA thus embodies key principles of EU law: direct effect (enforceability of rights by individuals before domestic courts); primacy/supremacy (‘disapplication’ of inconsistent domestic law); and consistent interpretation with both the methods of EU law, and its ‘general principles’ (which of course include fundamental human rights, as (now) set out in the EU Charter and interpreted by the CJEU).  The WA sees itself as almost a species of EU law, and not as an ordinary EU international agreement.  At least the direct effect and supremacy aspects of that interpretation are reflected in the December 2017 Preliminary Joint Report (para 36), which states:

“Once this Bill has been adopted, the provisions of the citizens' rights Part will have effect in primary legislation and will prevail over inconsistent or incompatible legislation, unless Parliament expressly repeals this Act in future.”

It almost goes without saying that all of these obligations would have been political dynamite in the contemporary UK context.

How would the WAB have gone about the tricky task of implementing the UK’s obligations under the Withdrawal Agreement ‘in primary legislation’ (as required in Article 4 (2) of the Withdrawal Agreement)? The following is a summary of possible approaches and some of their implications.

Repeat the wording of the European Communities Act 1972

One possible approach would have been to use the wording of the European Communities Act (ECA) 1972.  To do so would have meant the continued supremacy and direct effect of law agreed between the UK and the EU (that is, the Withdrawal Agreement).  It would use a ‘tried and tested’ legal method, given that the ECA has in effect accommodated those concepts in the UK’s domestic constitutional system for over forty years, even if constitutional lawyers disagree on exactly how it does so.  In effect, this approach would create a new source of law in the UK’s constitution: that of ‘Withdrawal Agreement law’, in the same way that the European Communities Act 1972 is, in the words of the UK Supreme Court in Miller, para 65, the ‘conduit pipe’ by which EU law becomes ‘an independent and overriding source’ of UK law.  This new source of law would be in addition to the new source(s) of law (‘retained EU law’ of various types) which will be created by the EU (Withdrawal) Act 2018, when it comes fully into force.

The benefits of this approach are that it secures compliance with the provisions of Article 4 of the Withdrawal Agreement.  Further, there is significant jurisprudence, including from the House of Lords and Supreme Court, on the meaning and effect of the relevant parts of the European Communities Act 1972. In particular, the Factortame ruling confirms that domestic legislation, irrespective of its date, that cannot be consistently interpreted with directly effective, validly adopted EU law, must be ‘disapplied’. This approach thus entails significant legal certainty and clarity.

The detriments, however, include the complexities associated with yet another new source of law, a point made by Mark Elliott in 2017.  Further, as Elliott notes, this approach would appear inconsistent with the intention of the EU (Withdrawal) Act to expunge directly effective EU law per se from the UK’s legal systems.  Moreover, while the ECA might be able to work ‘constitutional magic’ with EU law, whether it can do so with an ‘ordinary treaty’ (if we think of the EU/UK Withdrawal Agreement as such) is far from certain.

EU/UK Withdrawal Agreement as ‘ordinary’ international law that gives human beings rights

An alternative model is to consider the EU/UK Withdrawal Agreement as ‘ordinary’ international law, or, perhaps better, as international law that gives human beings rights.  The key analogy here is with the European Convention on Human Rights and the Human Rights Act 1998.  Although in principle in the UK’s legal systems, domestic legislation takes precedence over conflicting international treaties, courts understand themselves to be under an obligation to interpret domestic legislation consistently with international treaties if possible, on the basis of a presumption that Parliament intends to comply with the UK’s obligations in international law.  

The obligation permits the UK’s courts – particularly its Supreme Court – to stray from the explicit language of a statute, and even from Parliament’s apparent intention when adopting that statute, as seen for instance in Ghaiden v Goden-Mendoza.  Of course, it is going to be far from easy for domestic courts to discern the intentions of Parliament when adopting the WAB, and so textual interpretation may well be more important in practice here.  The Human Rights Act 1998, sections 2 and 3, require that domestic courts must interpret domestic law ‘in a way which is compatible with’ ECHR rights and must ‘take into account’ decisions of the ECHR’s institutions whenever the domestic court considers it to be relevant to the instant proceedings.  Similar wording in the WAB could include decisions about the effects of the Withdrawal Agreement (for instance its direct effect or primacy) made by EU institutions.  But, unlike the ECA approach, such wording does not require ‘disapplication’ of domestic law if consistent interpretation turns out to be impossible.

 

This approach would also involve certainty and clarity.  However, it would potentially fail to fulfil the UK’s obligations under the Withdrawal Agreement in full.

Use the wording of the Withdrawal Agreement

A third approach would be to adopt a form of words that explicitly indicates intention to comply with both the letter and spirit of the Withdrawal Agreement, by using the words of its Article 4 (1):

‘shall produce in respect of and in the United Kingdom the same legal effects which they produce in the Union and its Member States. Accordingly, legal or natural persons shall in particular be able to rely directly on the provisions contained or referred to in this Agreement which meet the conditions for direct effect under Union law’.

This approach creates less certainty as there is, obviously, no jurisprudence on which provisions of the Withdrawal Agreement meet the conditions for direct effect.  There is no universal rule in EU law as to direct effect of provisions of treaties to which the EU is a party: it is dependent on the context, aims and objectives of the treaty concerned.  In the EU’s legal order, the threshold test for direct effect is higher for international agreements to which the EU is a party than it is for other sources of EU law: the nature of international law differs from other EU law in this respect.  However, in this instance, there is a strong argument to the effect that at least the part of the Withdrawal Agreement on citizens’ rights, which mirrors directly effective provisions of EU law, meets the conditions for direct effect.  Whether this is the case for other provisions, such as, for instance, those on data protection, is a different matter.

Alternatively, or in addition, the EU (Withdrawal Act) Implementation Bill could adopt the wording of WA Article 4 (2), by requiring ‘judicial and administrative authorities to disapply inconsistent or incompatible domestic provisions’.  This would have the benefit of compliance with the Withdrawal Agreement obligations.  Whether the UK courts would interpret the obligation as identical to that under the European Communities Act 1972, given that the UK would no longer be a Member State of the EU, would potentially be a moot point, and some have argued that it might be ‘constitutionally impossible’.  Thus this position offers less legal certainty than the wording of the European Communities Act would bring.

Problems with any approach

Mike Gordon is right to point out that any of these approaches is of course vulnerable to the WAB itself being repealed.  But equally, as he says, any of them, and especially the ECA or WA wording approaches would constitute a significant example of Parliament seeking to constrain its powers and in effect to bind its successors.

The Withdrawal Agreement seeks to secure the position of EU-27 citizens in the UK (and vice versa).  Its effects, particularly as regards those citizens, will last long beyond the transition period.  The WAB would somehow need to secure these rights from interference not only from future UK governments, but also from future legislation.  While the UK is a Member State of the EU, the ECA effectively does so.  The WAB would need to do so without the underpinnings of EU membership: whatever approach it takes will be unlikely to satisfy those who are sceptical about securing citizens’ rights in the post-Brexit future.  As Paul Daly has pointed out, it is not difficult to imagine UK legislation discriminating against EU citizens.  Outside of EU law, the UK’s constitution does not have a tried and tested formulation for withstanding the normal lex posteriori rule of statutory interpretation.

These concerns would equally be relevant if the Bill contained provisions on the future UK/EU relationship, or as regards any parallel legislation dealing with that relationship. The Prime Minister had planned to table both: rules on a parliamentary mandate for the negotiations, and a Workers’ Rights Bill. Either way, it’s not true to say, as is sometimes claimed, that Boris Johnson (or whoever is the next Prime Minister) could just “rip up” such guarantees: it would require a parliamentary majority to do so. A watered-down version of the employment and environmental law guarantees that the opposition was seeking would nevertheless be ensured by the withdrawal agreement backstop.  However, the uncertainty attached to the prospect nevertheless was surely a factor in dissuading the opposition parties from agreeing to Mrs May’s proposals.

Final thoughts: WAB applied in first instance courts and tribunals

Ultimately, it does not matter so much exactly what the WAB says, but more how it is interpreted.  Here, of course, the decisions of the UK’s appellate courts will be crucial, as has been the case with the ECA and Human Rights Act.

 

However, we should not lose sight of the first-instance decision-making that will precede any such rulings.  It is this first instance decision-making – in immigration contexts, primarily, but also in employment contexts and perhaps many others – which will determine the real-life position of the human beings affected by Brexit, whose position the EU/UK Withdrawal Agreement seeks to protect as much as possible. 

One final sobering thought.  First instance judges in the UK respect the doctrine of Parliamentary sovereignty, and regard themselves at the service of the will of Parliament, as expressed in legislative text.  Judicial training includes – obviously – regular updates as legislation changes.  If the WAB were ever tabled, it might be enacted in record time.  But the WAB text has not even been released.  No one – including those who train the UK judiciary – has had any time to consider its meaning or effects.

Barnard & Peers: chapter 27

Photo credit: Medium

Facebook, defamation and free speech: a pending CJEU case

Preliminary Notes on the Pending Case Glawischnig-Piesczek v. Facebook Ireland Limited

Dr Paolo Cavaliere, University of Edinburgh Law School, paolo.cavaliere@ed.ac.uk

Introduction

In the next few months the Court of Justice of the European Union is expected to deliver a decision with the potential to become a landmark in the fields of political speech and intermediary liability (the Advocate-General’s opinion is due June 4). In fact the Court will have to render its opinion on two intertwining yet distinct questions: first, the case opens a new front in the delineation of platforms’ responsibility for removing illegal content, focusing on whether such obligations should extend to content identical, or even similar to other posts already declared unlawful. Secondly, the decisions will also determine whether such obligations could be imposed even beyond the territorial jurisdiction of the seised court. What is at stake is, in ultimate analysis, how much responsibility platforms should be given in making proactive assessments of the illegality of third-party content, and how much power courts should be given in imposing their own standards of acceptable speech across national boundaries.

Summary of the case

The plaintiff is a former Austrian MP and spokeswoman of the Green Party who – before retiring from politics – was reported as criticizing the Austrian Government’s stance on the refugee crisis in an article published by the news magazine oe24.at in April 2016. A Facebook user shared the article on her private profile along with her own comment, which included some derogatory language. In July, the plaintiff contacted Facebook and requested the post to be removed, only for the platform to decline the request as it did not find the post in breach of its own terms of use nor of domestic law. The plaintiff then filed an action for interim injunctive relief seeking removal of the original post, and of any other post on the platform with ‘analogous’ content. After the Commercial Court of Vienna found the post unlawful, Facebook proceeded to remove it.

However, the Court considered that Facebook, by failing to remove the original post on the plaintiff’s first notice, was not covered by the exemption from secondary liability and ordered the platform to remove any further post that would include the plaintiff’s picture alongside identical or ‘analogous’ comments. The Higher Regional Court of Vienna then found that such an obligation would amount to an obligation of general monitoring on Facebook’s part and removed the second part of the injunction, while upholding that the original post was manifestly unlawful and should have been removed by the platform following the first notification from the plaintiff. The Higher Court also confirmed that Facebook should remove any future posts that would include the same derogatory text alongside any image of the plaintiff. Facebook appealed this decision to the Austrian Supreme Court.

The Court referred to the CJEU two main ranges of questions:

- First, whether it would be compatible with Article 15(1) of the E-commerce Directive an obligation for host providers to remove posts that are ‘identically worded’ to other illegal content. In case of positive answer, the Court asks whether this obligation could expand beyond identical content and include content that is analogous in substance, despite a different wording. These are ultimately questions concerning the responsibility that platforms can be given in making their own assessment of what content amounts to unlawful speech, and what are the limits of “active monitoring”.

- Second, whether national courts can order platforms to remove content only within the national boundaries, or beyond (‘worldwide’). This is a question concerning the admissibility of extra-territorial injunctions for content removal.

Analogous content and active monitoring

To start with, it needs to be clarified that the dispute focuses effectively on a case of political speech, only formally concerns a case of defamation. The post on Facebook was considered by the Austrian court in breach of Art 1330 of the Austrian Civil Code, which protects individual reputation. However, the status of the plaintiff, who served as the spokeswoman of a national political party at the time, gives a different connotation to the issue. Established case-law of the European Court of Human Rights (Lingens v. Austria, 1986; Oberschlick v. Austria (no. 2), 1997) has repeatedly found that the definition of defamation in relation to politicians must be narrower than usual and the limits of acceptable criticism wider, especially when public statements susceptible of criticism are involved. In this case, the plaintiff had made public statements concerning her party’s immigration policy: the circumstance is relevant since the ECtHR traditionally identifies political speech with matters of public interest and requires interferences to be kept to a minimum. By established European standards the impugned content here amounts to political commentary, and the outcome of the case could inevitably set a new standard for the treatment of political speech online.

While intermediaries enjoy a series of immunities under the E-commerce Directive, which also notably established a prohibition for state authorities to impose general monitoring obligations, the 2011 Report of the Special Rapporteur to the General Assembly on the right to freedom of opinion and expression exercised through the Internet clarified that blocking and filtering measures are justified in principle when they specifically target categories of speech prohibited under international law, and the determination of the content to be blocked must be undertaken by a competent judicial authority. A judicial order determining the exact words (‘lousy traitor’, ‘corrupt oaf’, ‘fascist party’) may be an adequately precise guidance for platforms to operate, depending on how precise the contours of the order are.

To put the question in a context, the requirement to cancel ‘identical’ content marks the latest development in a growing trend to push platforms to take active decisions in content filtering. It cannot be neglected that the issue of unlawful content re-appearing, in identical or substantially equivalent forms, is in fact becoming increasingly worrisome. In a workshop held in 2017, delegates from the EU Commission heard from industry stakeholders that the problem of repeat infringers has become endemic to the point that, for those platforms that implement notice-and-takedown mechanisms, 95% of notices reported the same content to the same sites, at least in the context of intellectual property infringements. If rates of re-posting of content infringing other personality rights such as reputation can be considered anecdotally similar, then any attempts to clear platforms of unlawful content recall the proverbial endeavor of emptying the ocean with a spoon.

Nonetheless, the risk of overstepping the limits of desirable action is always looming. A paradigmatic example comes from early drafts of Germany’s Network Enforcement Law, which included a requirement for platforms to prevent re-uploads of same content already found unlawful – a provision that closely resembles the one at stake here. The requirement was expunged from the final version of the statute amid fears of over-blocking and concerns that automated filters would not be able, at the current state of technology, to correctly understand the nuances and context of content that is similar of equivalent at face value, such as irony or critical reference for instance.

The decision of the German law-makers to eventually drop the requirement – evidently considered a step too far even in the context of a statute already widely considered to hardly strike a suitable balance between platform responsibilities and freedom of expression – is indicative of the high stakes in the decision that the CJEU faces. A positive answer from the CJEU would mean a resurgence of this aborted provision on Europe-wide scale.

The idea of platforms’ monitoring of re-uploaded content is being gaining traction in digital industries for a little while now and is trickling down into content regulation. In the field of SEO, the concept of “duplicate content” defines content that has been copied or reused from other Web pages, sometimes for legitimate purposes (e.g. providing a mobile-friendly copy of a webpage), sometimes resulting in flagrant plagiarism. Yet definitions diverge when it comes to the criteria considered: while duplicate content is most commonly defined as ‘identical or virtually identical to content found elsewhere on the web’, Google stretches the boundaries to encompass content that is ‘appreciably similar’. Content regulation simply cannot afford the same degree of flexibility in defining ‘identically worded’ content, as the criterion of judicial determination required by the Special Rapporteur and the prohibition of general monitoring obligations in the E-commerce Directive exclude it.

In the area of copyright protection, it is in principle possible for service providers like YouTube to automatically scan content uploaded by private users and compare it to a database of protected works provided by rights-holders. In the case of speech infringing personality rights and other content-based limitations, discourse analysis is necessary to understand the context, and this kind of task would evidently amount to a private intermediary making a new determination on the legality of the speech.

The assessment of what amounts to unlawful speech rarely depends on the sole wording; context plays a fundamental role in the assessment, and that is all but a straightforward exercise. The European Court of Human Rights’ case-law includes several examples of complex evaluations of the local circumstances to determine whether or not an interference with speech would be justified.

For instance, in the case of Le Pen v. France (2010), the Court considered that comments, that could seem at face value derogatory towards a minority, needed anyway to be considered in the context of an ongoing general debate within the Country, and stressed that the domestic courts should be responsible for assessing the breadth and terms of the national debate and how to take it into account when determining the necessity of the interference. In Ibragimov v. Russia (2018), the Court noted that the notion of attack on religious convictions can change significantly from place to place as no single standard exists at the European level and, similar to political debates in societies, domestic authorities are again best placed to ascertain the boundaries of criticism of religions ‘[b]y reason of their direct and continuous contact with the vital forces of their countries’. The historical context is consistently taken into account to determine whether a pressing social needs exist for a restriction, and is enough to justify different decisions in respect to speech that otherwise appears strikingly similar.

For instance, outlawing Holocaust denial can be a legitimate interference in countries where historical legacies justify proactive measures taken in an effort to atone for their responsibility in mass atrocities (see Witzsch v. Germany (no. 1), 1999; Schimanek v. Austria, 2000; Garaudy v. France, 2003); whereas a similar statute prohibiting the denial of the Armenian genocide would be an excessive measure in a country like Switzerland with no strong links with the events in 1915’s Ottoman Empire (Perinçek v. Switzerland, 2015).

The intricacies of analysing the use of language against a specific historical and societal context are perhaps best illustrated by the Court’s minute analysis in Dink v. Turkey (2010). The Court was confronted with expressions that could very closely resemble hate speech: language such as ‘the purified blood that will replace the blood poisoned by the “Turk” can be found in the noble vein linking Armenians to Armenia’, and references to the Armenian origins of Atatürk’s adoptive daughter, were included in articles written by the late Turkish journalist of Armenian origin Fırat Dink.   The Court eventually came to the conclusion that it was not Turkish blood that Dink referred to as poison, but rather attitudes of the Armenian diaspora’s campaign which he intended to criticise. The Court built extensively on the assessment made by the Principal State Counsel at the Turkish Court of Cassation – who analysed all Dink’s articles published between 2003 and 2004 – in order to be able to ascertain whether these expressions amounted to denigrating Turkishness, and in what ways references to blood and the origins of Atatürk’s daughter amounted to sensitive subjects in Turkish ultranationalist circles and were susceptible to ignite animosity.

Not only social and political context matters, often it is precisely the use of language in a culturally specific way that forms a fundamental part of the Court’s assessment, with the conclusion that words alone have little importance and it is instead their use in specific contexts that determines whether or not they cross the boundaries of lawful speech. In Leroy v. France (2008), the Court went to great lengths in evaluating the use of the first person plural “We” and a parodistic quote of an advertising slogan to establish that a cartoon mocking the 9/11 attacks amounted to hate speech.  

Beyond the Court’s experience, examples of words that, though otherwise innocuous, can become slurs if used in a certain context abound: for instance, the term ‘shiptari’ in Southern Slavic-speaking countries to indicate Albanians especially in Serbia acquires a particularly nasty connotation as it was often used by Slobodan Milošević to show contempt of the Albanian minority in Yugoslavia. In Greece, the term lathrometanastes (literally ‘illegal immigrants’) has been appropriated and weaponised by the alt-right rhetoric to purposefully misrepresent the legal status of asylum seekers and refugees in an attempt to deny them access to protection and other entitlements, and now arguably lies outside of the scope of legitimate political debate,[1] to the point that it has been included in specialised research on indicators of intolerant discourse in European countries.

This handful of examples shows how language needs to be understood in the context of historical events and social dynamics, and can often convey a sense beyond their apparent meaning. While for domestic and supranational courts this seems challenging enough already, the suggestion that it would suffice for platforms to just check for synonyms and turns of phrases in a mechanical fashion is simplistic at best.

Extraterritorial injunctions

This plain observation calls into question whether it would be appropriate for the CJEU to answer in the positive the question on extra-territorial injunction. The Austrian Court’s order is in fact addressed towards an entity based outside the Court’s territorial jurisdiction and the order sought is to operate beyond the Austrian territory. To clarify, the novelty here resides not on the seising of Austrian courts, but rather on the expansive effect of their decision; the question concerns whether it would be appropriate for the effects of the injunction sought to extend beyond the limits of the national jurisdiction and effectively remove content from Facebook at the global level.

The Court of Justice has already interpreted jurisdiction in a similarly expansive way on a few occasions. In L’Oréal v. eBay (2011) the Court decided to apply EU trade-mark law on the basis that trade-mark protected goods were offered for sale from locations outside the EU but targeted at consumers within the EU. In Google Spain (2014), the Court decided to apply EU data protection law to the processing of a European Union citizen’s personal data carried out ‘in the context of the activities’ of an EU establishment even if the processor was based in a third country. The Court considered that delimiting the geographical scope of de-listings would prove unsatisfactory to protect the rights of the data subjects. A similar reasoning was the basis for deciding in Schrems (2015) that EU data protection law should apply to the transfer of personal data to the US.

One common element emerges from the case-law of the Court of Justice so far, in that the extraterritorial reach of court orders seems to be a necessary measure to ensure the effectiveness of EU rules and the protection of citizens’ or businesses’ rights. The Court has been prepared to grant extraterritorial reach when fundamental rights of European Union citizens were at stake (for instance in the context of processing of personal data) or when, in case of territorially protected rights such as trade marks, a conduct happening abroad was directly challenging the protected right within the domestic jurisdiction. It is dubious that the case at stake resembles either of these circumstances; in fact limiting political speech requires a different analysis.

A politician certainly is entitled to protect their own reputation, however when the criticism encompasses aspect of an ongoing public debate, the limits of acceptable speech broaden considerably: whether the speech falls within, and contributes to, an ongoing social conversation is very much a factual and localised consideration. Conversations that are irrelevant or even offensive within one national public sphere could very well be of the utmost relevance to communities based elsewhere, especially minorities or diasporas, who could find themselves deprived of their fundamental right to access information.

The CJEU has traditionally paid attention to connecting factors justifying extraterritorial orders. Following its own jurisprudence, it will now be faced with the challenge of identifying a possible connecting element to justify a worldwide effect of the Austrian Court’s local assessment. It needs to be recalled that a fundamental tenet of L’Oréal is the principle that the mere accessibility of a website is not enough a reason to conclude that a jurisdiction is being targeted, and it is for national courts to make the assessment. With the exception of the ECtHR that applies to date one of the most expansive jurisdictional approaches (Perrin, 2005), international policy-makers (such as for instance the UN Special Rapporteur on Freedom of Opinion and Expression, the OSCE Representative on Freedom of the Media, the OAS Special Rapporteur on Freedom of Expression and the ACHPR Special Rapporteur on Freedom of Expression and Access to Information’s Joint Declaration on Freedom of Expression and the Internet of 2011, among others) and most courts favour a different approach inspired to judicial self-restrain, and put emphasis on a ‘real and substantial connection’ to justify jurisdiction over Internet content.

When personality rights are at stake, the recent CJEU decision in Bolagsupplysningen of 2017 (incidentally, derogating from the more established CJEU decisions in Shevill, 1995, and eDate, 2011) suggested that, when incorrect online information infringes personality rights, applications for rectification and/or removal are to be considered single and indivisible, and a court with jurisdiction can rule on the entirety of an application.

However, this precedent (already controversial in its own right) seems unfit to apply to this case. Bolagsupplysningen builds at least on the same rationale as in the other decisions of the CJEU mentioned above, that expansive jurisdiction can be justified by the necessity to guarantee the protection of citizens’ fundamental rights and not to see them frustrated by a scattered territorial application. In the case of political speech, where limitations need to be justified by an overriding public interest, such as typically public safety, the connecting element the Court looks for becomes immediately less apparent, as it cannot be assumed that the same speech would prove equally inflammatory in different places under different social and political circumstances. In other words, public order better lends itself to territorially sensitive protection.     

This taps into the assessment of the necessity and proportionality of the measure that decision-makers need to make before removing content. As a matter of principle, the geographical scope of limitations is part of the least restrictive means test: the ECtHR for instance in Christians Against Fascism and Racism (1980) considered that even when security considerations would outweigh the disadvantage of suppressing speech and thus justify the issue of a ban, said ban would still need a ‘narrow circumscription of its scope in terms of territorial application’ to limit its negative side effects.  Similarly, the 2010 OSCE/ODIHR – Venice Commission Guidelines on Freedom of Peaceful Assembly (as quoted by the ECtHR in Lashmankin v. Russia of 2017) consider that ‘[b]lanket restrictions such as a ban on assemblies in specified locations are in principle problematic since they are not in line with the principle of proportionality which requires that the least intrusive means’, and thus restrictions on locations of public assemblies need to be weighed against the specific circumstances of each case. Translated in the context of digital communications, the principle requires that the territorial scope of content removal orders is narrowly circumscribed and strictly proportionate to the interest protected. An injunction to remove commentary on national politics worldwide, as a result, seems unlikely to be considered the least intrusive means.

Conclusions

The decision of the CJEU has the potential to change the landscape of intermediary responsibility and the boundaries of lawful speech as we know them. By being asked to remove content that is identical or analogous, intermediaries will be making, in all other cases other than removing mere copies of posts that have already been found illegal, active determinations on the legality of third-party content. While the re-upload of illegal content is an issue of growing importance that needs to be addressed, consideration needs to be paid as to whether this would be an appropriate measure, as solutions borrowed from other fields like copyright protection can sit at odds with the specificities of content regulation and infringe on European and international standards for the protection of freedom of expression online.

Similarly, by granting an extraterritorial injunction in this case the Court would follow a stream that has been emerging in the last few years in privacy and data protection. Thanks to extraterritorial reach, the GDPR is rapidly becoming a global regulatory benchmark for the processing of personal data, which arguably benefits European Union citizens and protects their relevant fundamental rights. The same could not be true if this rationale would be applied to standards of legitimate political speech. It is questionable whether the EU (or any other jurisdiction) bears any interest in setting a global regulatory benchmark for content regulation. By restricting the accessibility of content beyond the national boundaries where the original dispute took place, it would restrict other citizens’ right to receive information without granting any substantive benefit, such as protecting public security, to the citizens of the first state.

Barnard & Peers: chapter 9

Photo credit: Slate magazine

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[1] L. Karamanidou (2016) ‘Violence against migrants in Greece: beyond the Golden Dawn’, Ethnic and Racial Studies, 39:11, 2002-2021; D. Skleparis (2016) ‘(In)securitization and illiberal practices on the fringe of the EU’, European Security, 25:1, 92-111.

Strengthening democracy through public participation in policy-making: the EU, Germany, and the United States

Susan Rose-Ackerman (Henry R. Luce Professor of Law and Political Science, Emeritus, Professorial Lecturer in Law, Yale University) and Lena Riemer (Fox Fellow at Yale University; Doctoral candidate at Freie Universität Berlin)*

The European Union and some of its Member States are beginning to introduce enhanced public participation in executive regulatory processes at the same time as the United States, long the leader in such procedures, is cutting back by making the promulgation of rules increasingly difficult. We outline developments in the EU and Germany to provide a contrast with the US.

Regular elections for political representatives and referenda are the hallmarks of citizen participation in democratic politics, but both have serious limitations. The policies enacted by sitting governments may only weakly relate to constituents’ votes in elections. Votes in referenda may be based on misinformation, and the options may be posed in over-simplified or vague language. These difficulties have led critics of representative democracy to propose direct civil society input into policy-making. Yet, that goal is difficult to operationalize in any large polity. Constraints of time and space limit input, and many policies require esoteric technical data and a complex balancing of facts, values, and law.

As a result, some argue for radical decentralization to the grassroots to give citizens direct control over local policies and finances. In the ideal, the polity rejects hierarchy and decides on the basis of a consensus reached in a town meeting. Clearly, this is an unrealistic model for anything other than a small homogeneous community. Localism fails to accommodate policies with a large geographical extent, such as many environmental harms. Furthermore, even a local decision reached by consensus needs to be implemented and that will involve both a division of labor and a source of funds. Yet, the ideal of an involved citizenry advising on policy remains an aspiration behind many supporters of representative democracy.

Some, however, reject that ideal. To them, a chain of legitimacy operates where citizens vote for political parties and/or candidates. The winners take power and enact policies supported by the elected politicians. That chain is clearer in a parliamentary system than in the US presidential system or in the EU. In parliamentary systems such as Germany or the UK, a coalition of political parties forms a government and, with the nominal approval of the president or the monarch, appoints the prime minister/chancellor and the cabinet. In the US there is no single chain linking the government to the voters because the president may come from a different party than one or both houses of the legislature. The EU is also complex with the popularly elected parliament in a relatively weak position relative to the Commission and the Council, even if the legislature has gained increased clout in recent years.

However, even in a parliamentary system, the policy messages sent down the chain from the voters may be unclear and conflicting, especially in areas that are both technically complex and of deep concern to citizens. To us, this implies that mechanical efforts to justify controversial policies by reference to the chain of legitimacy are inadequate. Policymakers need to make direct connections to the citizenry on a policy-by-policy basis in all political systems. However, it is challenging to organize a policy-making process that is both responsive to public concerns and realistic about the difficulties of organizing participatory procedures in large, diverse polities.

This essay considers public input into executive branch policy-making in the EU, Germany, and the US. For large polities, consensus is obviously impractical. Open-ended invitations to provide input will, of necessity, feed into a political-bureaucratic structure where citizen input is only one factor in the final decision. Realistic public participation procedures both seek to elicit public input and articulate how it will feed into the ultimate policy choice. Courts may or may not be involved in reviewing the adequacy of public participation; some processes are only prudential exercises that do not give participants or potential participants legal rights.

We begin with the European Union because it has been frequently criticized for lacking sufficient public participation in policy-making. Over time, the role of the democratically elected parliament has increased, but the Commission still must initiate legislative proposals, and it plays a major role in the implementation of EU law. The call for more and early participation of the public was reignited in the aftermath of the 2008 financial and economic crisis and has grown stronger all over Europe. A consortium of administrative law professors established the ReNEUAL project to reform EU administrative law. One chapter of its model rules deals with rule-making and recommends a notice and comment process similar to the US model. However, so far, the EU has not adopted these recommendations.

In May, the citizens of the EU will have the right to vote once again for the European Union Parliament which represents 512 million people in 28 member states. European voter turnout has decreased since the first European elections in 1979. Less than 50% of the eligible citizens are expected to cast votes in the 2019 elections. The reasons for this decreasing turnout are various and multilayered, but one explanation is citizens’ disengagement from the EU because of the lack of opportunities to participate in the political process outside the parliamentary elections. One possible solution is to introduce public participation at the early stage of policymaking processes. The EU seems to have understood this linkage; EU officials acknowledge that increasing deliberative public participation could be the key to increasing the acceptance of EU institutions and decisions and to increasing voter turnout in elections.

The EU has recently taken several concrete measures to offer citizens the possibility of starting a conversation, offering feedback, making suggestions, and raising concerns via online platforms on existing and proposed EU legislation. They can also suggest new items for future legislative agendas. The consultation database of the European Commission offers an overview of all the public consultation projects sponsored by the EU. There are currently 51 consultation projects on EU directives in areas such as the environment, waste legislation, natural disasters, market, business and industry public health, consumers, and many more.

Another tool to foster public participation is the EU’s “better regulation agenda”. The agenda aims to design and evaluate EU policies and laws more transparently and to incorporate the views of citizens and stakeholders into policy-making. Public participation in all stages of the process is an essential part of the agenda. Feedback is welcome from the “in preparation”-stage when EU rules are evaluated or new initiatives are proposed, all the way to feedback on acts to be adopted by the Commission as tertiary norms or “rules” in US terminology.

During the process new and old ideas for policies and legislation are outlined, and citizens can give feedback during a period of 4-8 weeks via the “Have your say”-portal. One example in the early “roadmap-phase” is the process on “cross-border enforcement of road traffic rules”. Here, participants (even anonymously) can submit comments online that are visible to everyone. In this example, 16 public authorities, associations, trade unions and citizens from different countries expressed their support, disagreement and concern in English, French and German. The Commission will next make public the final legislative proposal, accompanied by its impact assessment report. Citizens and stakeholders then will have another chance to submit feedback on the proposal when it goes to the EU legislature. In this case, the assessment of the initial feedback and another public consultation is planned for the first quarter of 2020 before the EU Commission adopts proposed rules on cross-border enforcement.

Furthermore, the EU is also beginning to include the public in assessing the performance of existing EU law and to suggest changes necessary to keep laws up-to-date. The Commission’s “Regulatory Fitness and Performance Programme” which aims at evaluating the effectiveness and performance of current directives enhances public participation, using an online platform. For example, the evaluation of the Strategic Environmental Assessment Directive in summer 2018 invited participation from any interested party, including private citizens, companies, organizations, public authorities. Respondents could contribute to the assessment of the effects of certain public plans and programs on the environment (SEA Directive).

The EU consultation platform included an online questionnaire for participants that could be submitted in any EU official language. There were 249 respondents, significantly more than the 16 responses in the traffic rules consultation. Individuals submitted 111 or 45% of the total.

A report prepared after the consultation found that 88% of the respondents considered it very important for stakeholders and the public to be informed and consulted about the potential environmental impacts of public plans and programs. However, there are two problems with the report. First, 249 is a small number relative to the EU’s population of over 500 million, even if some comments were posted by organizations representing civil society groups. Second, feeling good about consultation is hardly a measure of its importance. One would also like if any of the input from the public influenced the final EU decision. Are the suggestions taken seriously by EU officials, as the EU claims?

Commission consultations are seldom subject to judicial review so it is difficult to check for the impact of public participation procedures. However, the environment is a special case because of the Aarhus Convention, an environmental agreement of the United Nations Economic Commission for Europe, ratified by both the EU and Germany, along with most other European countries. Its three pillars are access to environmental information for any citizen; public participation in administrative decisions on environmental issues, and access to justice on environmental law matters. It does not apply to legislative processes, and the Convention’s provisions are less stringent for regulations with the force of law than for the individual projects or plans and programs.  For regulations, countries that ratify the treaty must only “strive” to promote public participation and “should” take certain steps.  Thus, the ECJ let stand a Commission decision not to allow two Dutch NGOs to participate in Commission decisions regarding environmental matters.

However, courts in Europe are beginning to acknowledge and uphold democratic justifications for public participation, especially in the environmental area. In September 2018 the ECJ sided with the NGO plaintiff in requiring publication of Impact Assessments (IAs) used to prepare legislative proposals. The judgment, based both on the EU’s own open government policy and its implementation of Aarhus, explicitly stressed the democratic value of open information and its role in stimulating debate. The court held in favor of the NGO, in part, because the decision would limit future Commission attempts to limit access to IAs. This decision may signal a new willingness of the ECJ to promote democratic values, but it remains to be seen if that perspective will extend to policy-making inside the Commission.  At least, the ECJ has recognized the democratic consequences of administrative practices.

In the Member States, public participation in policy-making processes is gaining support in the hope that it will encourage citizen acceptance of political/policy decisions. For example, Germany has moved from one extreme to the other. In the late 1990s, after reunification, statutes sought to speed up approval of large-scale infrastructure projects by limiting public participation. After massive public protests in the early 2000s, the trend reversed (Gard, Andre “Die frühe Öffentlichkeitsbeteiligung: Die Regelung zur frühen Öffentlichkeitsbeteiligung nach § 25 Abs. 3 VwVfG” (Nomos 2018)). Reflecting the special status of environmental harms, recent domestic laws require public consultations for major projects affecting the environment (see, for example the “Öffentlichkeitsbeteiligungsgesetz” (Public Participation Act) or the Gesetz über die Umweltverträglichkeitsprüfung (Environmental Impact Assessment Act)). A good example is the Netzausbaubeschleunigungsgesetz (network-expansion-acceleration-act) that mandates public consultations at several stages in the rollout of the expansion of the electricity supply system. The statute demands access to relevant information and public participation from an early stage The German courts have interpreted and generally enforced these procedural requirements in cases brought by environmental groups (see, for example: Administrative Court Berlin “Gigaliner”-decision of 18 April 2018).

The newest step, taken under the second pillar of the Aarhus Convention, is the publication of the “Leitlinien für gute Bürgerbeteiligung” (guidelines for good public participation) published by the German Federal Ministry for the Environment in January 2019. The guideline was developed by ministry officials, experts, and the public. The Environmental Ministry invited ministry officials and the public (irrespective of nationality) to provide input in several workshops  The guideline stresses the relevance of public participation in environmental questions from the planning phase to the final proposal, but it also makes clear that the decision rests with the ministry. The guideline refers to past pilot-projects using public participation that served as a basis for the new document. Successful measures were, for example, online platforms where people could post suggestions and comments, such as “an action-program for the protection of insects” or the climate protection plan 2050 where “civil dialogues” were held in several German cities and where randomly selected citizens could discuss and offer their suggestions. Nevertheless, it remains true that the Government can issues Rechtsverordnungen (rules with the force of law) without any required public consultation or reason-giving. Of course, it may be politically expedient to involve the interested public and organized civil society groups, but consultation is not a legally required.

In contrast, administrative law in the United States has required open-ended public consultation in rule-making since the passage of the Administrative Procedure Act (APA) in 1946. [USC chapter 5, sub-chapter II, 551-559; chapter 7, 701706]

The informal rule-making provisions require notice in the Federal Register with publication of a proposed rule, open-ended public participation, and a statement of reasons to accompany the final rule. Thus, public participation is built into the framework of the US law of rule-making, but the statute does not require outreach to potential participants beyond public notice. However, the APA gives the government an incentive to organize a credible process because those procedures are subject to judicial review along with the requirement that the rule be consistent with the underlying statute and not be “arbitrary and capricious”. Large infrastructure projects are also subject to procedures that require public input. The open-ended comment process in US rule-making sometimes overwhelms the system with hundreds of thousands of submissions, but most are duplicate emails from supporters or opponents. The more serious problem is the bias toward the well-organized and the well-financed. However, as in the EU and German cases the aim is not to produce a policy through a consensus of the participants, but rather to provide an additional input for the regulatory authority to consider in drafting a policy.

Probably the more serious threat to effective public participation in executive branch rule-making is the shift of regulatory power to the Executive Office of the President (EOP). The Office of Information and Regulatory Affairs (OIRA) in the EOP reviews rules before they are issued by applying cost/benefit criteria [E.O. 12866]. The Trump Administration’s executive orders stress the cost side of the equation, and new rules must be balanced by the repeal of old ones [E.O. 1277182 Fed. Reg. 9339 (Feb. 3, 2017) (entitled “Reducing Regulation andControlling Regulatory Costs”). These are executive orders, not statutes, but they aim to chill rule-making activity so that processes that would require public participation are not even initiated. Many current rule-makings repeal or modify existing rules, but they must go through the notice and comment process providing a possibility for opponents, at least, to place their objections on the record [Motor Vehicle Manufacturers’ Asso. v. State Farm Mutual Automobile insurance Co., 463 U.S. 29 (1983)].

In the United States public participation in executive rule-making has a long pedigree; hence, it is troubling and ironic, that some politicians and commentators are suggesting cutbacks in procedures that require public input. In contrast, the EU, Germany and other European countries are experimenting with alternative routes to public input that could enhance the democratic accountability of executive policy-making. Although neither the EU nor its Member States have legally enforceable requirements for public participation in rule-making, it seems likely, at present, that innovations along that dimensions are more likely there than in the US.

*Reblogged from the Notice and Comment blog

Photo credit: Bird Aware Solent

Barnard & Peers: chapter 5, chapter 8