Should the EU sanction its Member States for breaches of rule of law and human rights? Part 1: The Legal Framework

Professor Steve Peers, University of Essex

I’ve taught EU law and human rights for over twenty years now, and the issue of sanctions against Member States for human rights breaches used to be the easy bit. Why? Because the procedure to enforce such sanctions (set out in Article 7 TEU) had never been used – and there was no apparent prospect that it ever would be. So there was no need to discuss it in any detail. A more theoretical sort of academic might have spent time counting the angels on the head of this constitutional pin, but I was anxious to move on to the real world issues of arrest warrants and asylum seekers.

Everything has since changed. Like Article 50 – which similarly raises fundamental issues about the EU’s relationship with its Member States – Article 7 was apparently dashed off in previous Treaty amendment talks without much thought to its detailed application in practice, perhaps because its authors thought it would never be used. Yet here we are, with both Articles now a live political and legal issue: the Ragnarok of EU law.

There are two recent parallel major developments. First of all, the Article 7 process has been triggered both against Poland (by the European Commission) and Hungary (by the European Parliament). Secondly, there are case law developments raising general questions about Member States’ observance of human rights and the rule of law outside the very specific (and very political) Article 7 process. In this context, last week the CJEU delivered its first judgment that a Member State is infringing judicial independence by means of reforms to its judicial system (see discussion here).

The prospect of the EU sanctioning its Member States for breaches of human rights and the rule of law raises a number of fundamental legal and political issues – and is best understood in a broader historical context. In light of the recent developments (and ongoing disputes), this is an opportune moment to provide an overview and analysis of this issue.

I’ll do this in a series of three blog posts, addressing in turn:

a)      the legal framework for sanctions under Article 7

b)      the overlap of the sanctions rules with other aspects of EU law

c)       the historical context and broader constitutional dynamics.

The legal framework for sanctions

Although many people refer to Article 7 TEU, there are other Treaty provisions which are inextricably linked: Article 2 TEU sets out the values which Article 7 is used to enforce; Article 354 TFEU describes voting rules for the EU institutions; and Article 269 TFEU provides for limited jurisdiction for the CJEU over the sanctions procedure.  All of this must be distinguished from the normal rules of EU law, discussed in the second blog post.

First of all then, what are the values of the EU, legally speaking? Article 2 TEU states:

The Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities. These values are common to the Member States in a society in which pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men prevail.

Article 7 then sets out the process of enforcing those values. It begins with Article 7(1), which provides for a kind of ‘yellow card’ – a warning if there is there is ‘a clear risk of a serious breach’ of those EU values:  

1. On a reasoned proposal by one third of the Member States, by the European Parliament or by the European Commission, the Council, acting by a majority of four fifths of its members after obtaining the consent of the European Parliament, may determine that there is a clear risk of a serious breach by a Member State of the values referred to in Article 2. Before making such a determination, the Council shall hear the Member State in question and may address recommendations to it, acting in accordance with the same procedure.

The Council shall regularly verify that the grounds on which such a determination was made continue to apply.

Notice that the ‘yellow card’ process can be triggered by the European Parliament, or a group of Member States, or the Commission. There is no requirement of unanimity of Member States to approve a Council decision to issue a ‘yellow card’ (this is a common misunderstanding), but the threshold of four-fifths of Member States’ governments in the Council is nevertheless fairly high. Triggering the process (as the EP did for Hungary, and the Commission did for Poland), does not, as some think, mean that the Council will agree to issue a ‘yellow card’, or has done so already. Indeed, the Council is still considering the proposals to issue a ‘yellow card’ against both Poland and Hungary, having held several of the hearings referred to in Article 7(1). If the Council ever did issue a ‘yellow card’, note that this does not entail a sanction as such: it is only a finding of a risk to EU values, with possible recommendations. Nevertheless, the issue of a ‘yellow card’ is perceived as extremely politically serious.

This brings us to Article 7(2), which is the ‘red card’ of the process:

2. The European Council, acting by unanimity on a proposal by one third of the Member States or by the Commission and after obtaining the consent of the European Parliament, may determine the existence of a serious and persistent breach by a Member State of the values referred to in Article 2, after inviting the Member State in question to submit its observations.

The procedure here is even tougher: unanimity of the Member States. The European Parliament cannot trigger the process, but could veto it  if the Commission or a group of Member States trigger it. The threshold to be met is higher: not just the risk of a serious breach, but the ‘existence of a serious and persistent breach’ of those values. It’s likely that the EU would get to the ‘red card’ stage after issuing a ‘yellow card’, but that’s not a legal requirement: a ‘straight red’, for (say) a country which had suddenly undergone a military coup, is also conceivable.

What are the consequences of a ‘red card’? Article 7(3) sets them out:

…the Council, acting by a qualified majority, may decide to suspend certain of the rights deriving from the application of the Treaties to the Member State in question, including the voting rights of the representative of the government of that Member State in the Council. In doing so, the Council shall take into account the possible consequences of such a suspension on the rights and obligations of natural and legal persons.

The obligations of the Member State in question under the Treaties shall in any case continue to be binding on that State.

Notice that the Member States don’t have to act unanimously in the Council when deciding exactly what sanctions to apply to the black sheep amongst them. The unanimity threshold only applies when taking the previous step of deciding whether there’s a serious and persistent breach of the EU values.  As for the specific sanctions which might be imposed, the Treaty mentions suspension of voting rights, but that’s just one example. The Council might instead (or additionally) impose other sanctions, such as suspension of MEPs’ voting rights (which raises the awkward question of whether they might also end up sanctioning any opposition MEPs from the Member State in question – whose voices would ideally need to be heard). However, there’s an obligation to consider the rights of individuals and businesses, which suggests that trade sanctions might be problematic. It might also be hard to justify restricting free movement rights, but in any event note that there are specific rules on asylum for EU citizens fleeing from a Member State subject to a ‘red card’. (I discuss them further in the second blog post).

Most significantly, there’s no provision to expel a Member State from the EU as such. Having said that, a Member State subject to suspension might be so outraged to be in that position that it triggers the process of leaving the EU under Article 50. The UK’s withdrawal process has been complicated and controversial enough; now imagine the legal and political complexities of a Member State subject to an Article 7 ‘red card’ triggering Article 50. Should its political authorities’ actions be considered legally and morally valid? What if a group of exiles claim to be the legitimate government of that Member State (a la the USSR-era Baltic States), and that purported government does not wish to leave the EU?  What if a part of that Member State, at odds with the government in power over EU membership and its violation of EU values, attempts to secede?

Of course, the possibility of withdrawal (alongside concerns about sovereignty, and the workings of partisan politics) may also have influenced the pronounced reluctance of the EU to use the Article 7 process. Does the EU really want Michel Barnier’s main task to be crowd control?

Article 7(4) TEU then provides that the Council, again by qualified majority, may ‘vary or revoke’ its sanctions against a Member State ‘in response to changes in the situation which led to their being imposed’. Article 7(5) notes that the rules on voting within the institutions when Article 7 is being applied are set out in Article 354 TFEU. The latter provides that the Member State which is the subject of potential sanctions has no vote at any stage of Article 7, as otherwise this would obviously have made the adoption of any decision on breach of EU values impossible. Abstentions cannot prevent the adoption of a ‘red card’ decision. Where the Council votes to implement a ‘red card’ decision, a higher threshold for adopting EU laws applies (72% of participating Member States in favour, instead of the usual 55%). If a Member State’s voting rights are suspended, the usual rules on Council voting with only some Member States participating apply. For its part, the EP ‘shall act by a two-thirds majority of the votes cast, representing the majority of its component Members’.

Finally, Article 269 TFEU significantly limits the role of the CJEU over the sanctions procedure:

The Court of Justice shall have jurisdiction to decide on the legality of an act adopted by the European Council or by the Council pursuant to Article 7 of the Treaty on European Union solely at the request of the Member State concerned by a determination of the European Council or of the Council and in respect solely of the procedural stipulations contained in that Article.

Such a request must be made within one month from the date of such determination. The Court shall rule within one month from the date of the request.

The legal issues

Given the limit on judicial control of the Article 7 process, it is almost entirely political. So the legal questions arising from it may be largely hypothetical in practice. However, they do exist.

The first important point is the wide scope of issues which can be the subject of the Article 7 process. It is sometimes claimed that the process can only be used to sanction Member States for breaches of EU law, but this is clearly false. There is no reference to EU law breaches in Articles 2 or 7. Indeed, such a limit on the scope of Article 7 would be odd, given that Article 269 TFEU limits the Court’s jurisdiction, yet other provisions of the Treaties (discussed further in the next blog post) give the Court extensive jurisdiction over the enforcement of ordinary EU law.

This claim about the limited scope of Article 7 is also absurd if you consider the broader context. Imagine, for instance, a Member State placing LGBT citizens in concentration camps. A narrow interpretation of Article 7 would mean that the EU could only complain about this to the extent that being locked up in camps would have a discriminatory effect on the detainees’ access to employment. Yes it would, but that would hardly be the most outrageous aspect of detaining LGBT people in camps because of their sexual orientation. (EU law is also relevant to LGBT refugees, but the Article 7 process would have to be triggered first for it to be relevant to refugees who are EU citizens).

So obviously Article 7 is not intended to be limited in this way. Indeed, its broad scope partly explains why the CJEU’s jurisdiction is limited – to avoid giving it jurisdiction to rule on issues which are not normally within the scope of EU law. (Another reason is the intention to keep the Article 7 process in the hands of politicians, not judges).

On the other hand, the Article 7 process and ordinary EU law can overlap. The Court can use its ordinary jurisdiction to rule on an issue being discussed in the Article 7 process, and vice versa. This was confirmed implicitly in last week’s judgment on Poland and the rule of law, given that the issues in that judgment also formed a part of the Commission’s Article 7 case against Poland. In fact, the Advocate-General’s opinion addressed the overlap explicitly (paras 48-50), arguing that ‘[t]here are firm grounds for finding that Article 7 TEU and Article 258 TFEU are separate procedures and may be invoked at the same time’.  As noted already, this alternative option of using ordinary EU law to restrain Member States’ breaches of human rights or the rule of law is discussed in the next blog post in this series.

Exactly how does the Court’s limited jurisdiction over Article 7 work? The wording of Article 269 TFEU definitely covers the decisions on the ‘yellow card’ or the ‘red card’. At first sight, it also applies to the implementation of sanctions, since the text refers to any Council actions pursuant to Article 7 TEU. But on this point, the use of the word ‘determination’ is confusing, as Article 7 doesn’t use that word to refer to the implementation of sanctions,  but only the decisions on whether EU values have been (or might be) breached.

Note also that the only possible challenger is the Member State sanctioned under Article 7 – not any other Member State, an EU institution, or an individual or business. If individuals are barred from challenging the validity of Article 7 implementation decisions, even indirectly via national courts to the CJEU, how else can the Council’s obligation to ‘take into account the possible consequences of such a suspension on the rights and obligations of natural and legal persons’ be enforced? At any rate, there’s no limit on the Court being asked by national courts to interpret the decisions implementing sanctions, which could be significant in working out the impact of sanctions on individuals. In particular, if Council decisions under Article 7 disapply ordinary EU law in some way, there should be no objection to the Court’s ordinary jurisdiction to interpret such ordinary EU law applying.

A Court judgment under Article 269 TFEU can only address procedural issues, not substance. In other words, the Court cannot be asked to rule on the question of whether the Member State concerned has actually breached EU values (or seriously risks breaching them). As we will see in the second blog post, however, the developing case law on the overlap between Article 7 and ‘ordinary’ EU law renders this firewall a little diffuse. Also, one can imagine that a Member State may make arguments about the fairness of the hearings, even where (as in the case of Poland and Hungary) some hearings have been held. (Update, Sep 1 2019: the Council's internal rules on Article 7 hearings have now been published). Finally, the time limits in Article 269 require significant fast-tracking: the challenge must be made one month after the determination (the usual deadline to bring an action to challenge an EU act is two months after publication) and (uniquely in EU law) one month for the Court to give its ruling.  

Even though Article 7 has not resulted in any sanctions decision yet, some issues about its scope may be addressed in the near future, because Hungary has brought a legal challenge to the European Parliament’s decision merely to trigger Article 7. This case might be inadmissible, because usually it is not possible to challenge the start of an EU legal procedure, but only a legal act once adopted, which may explain why Article 269 TFEU makes no reference to challenging acts of the European Parliament at all (or indeed, to challenging acts of the Commission or the Member States). The substance of the Hungarian government’s argument is that the European Parliament wrongly ignored abstentions when counting votes cast to trigger the Article 7 process.

One key legal and political question is the interpretation of the unanimity requirement to issue a ‘red card’ determination of a serious breach of EU values. Some have suggested that since two Member States are facing Article 7 procedures, and they would have a natural tendency to stick together and vote for each other, unanimity can never be reached. Therefore, for the ‘red card’ procedure to be effective, it must be interpreted to mean that any Member State facing an Article 7 procedure must lose its vote even as regards issuing a ‘red card’ against another Member State.

With respect, this interpretation is untenable. Article 354 TFEU refers to ‘the Member State in question’ not voting in its own case – clearly using the singular, as well as the definite article. There is no way to stretch the canons of interpretation for this to refer to multiple Member States. Such wild leaps of legal fancy are particularly inappropriate when a main point of the process is to ensure protection of the rule of law in the European Union.

Conclusions

Article 7 TEU recently turned 20 years old. It was conceived as a political process par excellence, and it remains supremely political at childhood’s end, even as the first attempts to trigger it are made. Due to its impact on national sovereignty, and the web of transnational partisan politics in which the governments concerned are embedded, Article 7 has long been seen as a ‘nuclear weapon’ – only to be used as a last resort, in a political emergency such as a military coup. Although the attempt to nuance Article 7, by adding a ‘yellow card’ process, dates from 2003, in practice this version of the process is perceived as politically ‘nuclear’ too.

The obvious problem here – which the ‘yellow card’ reform sought but failed to address – is that democracy rarely collapses overnight. In the famous words of Michael Rosen, ‘people think that fascism arrives in fancy dress’, but in fact ‘it arrives as your friend’ – promising to:

…restore your honour, 

make you feel proud, 

protect your house, 

give you a job, 

clean up the neighbourhood, 

remind you of how great you once were, 

clear out the venal and the corrupt, 

remove anything you feel is unlike you...

And to that end, and for those reasons, it often gains a foothold through the democratic process. Yet the values of the EU to be protected also include democracy – and the Article 7 process is in the hands of the governments of fellow Member States. All have some skeletons in their own closet; and all have backs that might need some scratching by the governments of the States being criticised.

So is the Article 7 process doomed? In fact, the expansion of EU law in areas with significant relevance to human rights – and the willingness of the CJEU to rule on the judicial independence of national courts in general – means that recourse to the nuclear option may arguably not be necessary. In effect, the conflict over the protection of human rights and the rule of law in Member States can also be fought by conventional means: the ordinary system for the enforcement of EU law as such, to which we will turn in the second post in this series. As for the broader tension when concerns about the rule of law and human rights stem from a democratic outcome, this will be assessed as part of the broader discussion in the third post.  

Barnard & Peers: chapter 9

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The Global Compact for Migration: cracks in unity of EU representation

Pauline Melin, PhD, Lecturer in European Law (Maastricht University) and Researcher at the Institute for European Law (KULeuven)

Today, the UN Global Compact for Safe, Orderly and Regular Migration is meant to be approved by an intergovernmental conference in Marrakesh with the purpose to be adopted on the 19th December 2018 as a Resolution of the UN General Assembly in New York. The debate over the adoption the Global Compact for Migration has been politically polluted. Since the end of October 2018 and the withdrawal of Austria, a Member State who had until then positively contributed to the negotiations Global Compact through the Council Presidency, no week has passed without a new announcement of an EU Member State withdrawing or doubting its support for the Global Compact for Migration. That vague of lack of support coming from the EU Member States is in contradiction with the (supposedly) common position presented by the Union delegation during the negotiation process. Those cracks in unity of representation of the EU on the international scene raise questions concerning the role of the EU in the negotiations of the Global Compact and the consequences for its Member States in light of the principle of sincere cooperation.

The role of the EU in the negotiation of the Global Compact for Migration

The process eventually leading to the adoption of the Global Compact started in September 2016 with the New York Declaration whereby 193 Heads of State and Government recognized the need for developing an international cooperation on migration.

Throughout its different drafts (the Zero Draft on 5th February 2018, the Zero Draft Plus on 5th March 2018 and the Final Draft on 11th July 2018), the wording of the Global Compact concerning its legal nature stayed consistent. The Global Compact is intended to present “a non-legally binding, cooperative framework that builds on the commitments agreed upon by Member States in the New York Declaration for Refugees and Migrants.” (emphasis added, points 5,6, and 7 of the Zero Draft, Zero Draft Plus and Final Draft respectively).

From the UN side, the negotiations of the Global Compact were meant to be as inclusive as possible with the participation of all its State Members, all members of specialized agencies that have an observer status with the General Assembly, intergovernmental organizations and other entities having received a standing invitation. The EU, as a regional group, was granted standing status in order to participate in the negotiations and the conclusion of the Global Compact.

From an EU perspective, given the fact that the Global Compact for Migration is a non-legally binding international instrument, the procedure for negotiating and concluding an international agreement enshrined in Article 218 TFEU was not applicable (C-233/02 France v. Commission, para. 40). The EU participated in the negotiation of the Global Compact through the delivery of Union delegation statements. According to the European Commission, the Union delegation statements were “EU coordinated statements” constituting an “unified EU approach”. That unified EU approach must however be nuanced considering that, since March 2018, Hungary has proposed a very different approach than the one defended by the Union delegation. Furthermore, the exclusion of Hungary from the EU coordinated statements can be seen from the Union delegation’s statements themselves which mention “on behalf of 27 Member States”.

The (lack of) common position

The fact that the Global Compact is a non-legally binding international instrument does not entail that the principles of conferral, institutional balance or sincere cooperation should not be respected. In case C-660/13 Council v. Commission on the Swiss MoU, the Court found that the Commission needs a Council Decision authorizing it to sign the negotiated text of a non-binding instrument before it can approve it on behalf of the Union. In the context of the negotiation of the Global Compact for Migration, the Commission in fact relied on this case in order to justify its proposal for Council Decisions (since withdrawn) authorizing it to sign the Global Compact in Marrakesh on behalf of the Union.

However, as opposed to the Council v. Commission case, the Commission here did not seem to have a clear negotiating mandate from the Council. In Council v. Commission, there were some Council Conclusions adopted in 2012 authorizing the start of the negotiation between the Swiss Confederation and the EU whereby the content of the negotiation as well as the designation of the European Commission as the negotiator were set out. The European Commission then considered that because the negotiated text was similar in content to the negotiated mandate, it could sign the negotiated text on the basis of Article 17(1) TFEU (para.35). However, the Court disagreed and held that neither Article 17(1) TEU nor the negotiating mandate found in the Council Conclusions were sufficient bases for authorizing the Commission to sign the negotiated text without a Council Decision on the matter.

In the case of the negotiation of the Global Compact for Migration, there is in fact no Council Decision authorizing the start of the negotiation. In order to justify its negotiating position on behalf of the Union, the European Commission relies on two documents: the European Council Conclusions on Migration from October 2016 and the European Consensus on Development from 2017. In the European Council Conclusions on Migration, it is simply mentioned that the European Council welcomes the New York Declaration. In the European Consensus on Development, it is stated that the EU and its Member States will actively support the elaboration of the UN Global Compacts on Migration and Refugees. While the two documents could be considered as an indication that there is a willingness from the European Council to have a common position in the negotiations of the Global Compacts for Migration and Refugees, there is nothing in the documents that either identify the European Commission as the negotiator on behalf of the Union and its Member States nor that indicate what the content of that common position would be. With no official document proving the common position of the EU and its Member States, one might wonder whether the Member States were obliged to abstain from contradicting the Union delegations’ statements.

The point of departure of the principle of sincere cooperation

From the PFOS case, it seems that the principle of sincere cooperation whereby the Member States should support the position expressed by the EU or, at least, abstain from contradicting it starts from the moment there is an established common position (para. 89). In the PFOS case, Sweden had submitted a proposal to list PFOS in Annex A of the Stockholm Convention while a Commission proposal for a Council Decision authorizing the Commission to submit on behalf of the Union and its Member States a list of chemicals to be added in the Annexes of the Stockholm Convention did not comprise PFOS within the list. Firstly, the Court recalled that the principle of sincere cooperation flows from the requirement of unity in international representation of the Union (para.73). Then the Court reminded that the submission by the Commission of a Council proposal for the authorization to start the negotiation of a multilateral agreement represent the point of departure for a concerted action even though the proposal has not been adopted by the Council (para. 74). The Court added that the establishment of a common position through a Council Decision was not a prerequisite for its existence as long as “the content of that position can be established to the requisite legal standards” (para.77). In the PFOS case, the Court found that the fact that Council’s conclusions and minutes of the meeting of the Council’s Working Party on International Environmental Issues were sufficient evidences of an established common position which the Member States should support or, at least, abstain from contradicting (para.89). In reference to the “requisite legal standards”, the Court referred another case whereby the Council and the Commission had concluded an arrangement setting up a coordination procedure between the Commission and the Member States to decide on the exercise of responsibilities or on statements in the context of the UN Food and Agriculture Organization (‘FAO’).

In the context of the drafting process of the Global Compact for Migration, one may consider the General Arrangements for EU Statements in multilateral organisations as being the relevant requisite legal standards. In the General Arrangements, point 2 indicates that “[G]iven the sensitivity of representation and potential expectations of third parties, it is essential that, in conformity with current practice, the preparation of statements relating to the sensitive area of competences of the EU and its Member States should remain internal and consensual.” (emphasis added). Hence, while the need for a Council Decision is not required, there is a need to have an internal discussion and a consensus about the common position. Considering the fact that internal coordination for setting a common position takes place behind closed doors, it is not possible to ascertain whether the internal coordination on the Global Compact for Migration actually took place.

Conclusion

While there might have been internal coordination and an agreed common position, the lack of evidence of it becomes a problem when Member States start expressing opinions contradicting the Union’s position. The uneasiness of the European Commission faced by rebellious Member States can be felt through the timing of its proposals for Council Decisions authorizing it to sign the Global Compact for Migration on behalf of the Union. The European Commission adopted those proposals in March 2018 whereas the Final Draft of the Global Compact for Migration was only agreed in July 2018. As a result of the lack of proof of an agreed common position, it is difficult for the European Commission to ensure that the Member States respect their obligations under the principle of sincere cooperation. However, there should be a strong interest for the European Commission to avoid cracks in unity of representation as it ultimately diminishes the credibility of the EU as a global actor. Given the growing relevance of non-binding international instruments, it is unlikely that the cracks in unity of representation will remain anecdotal to the approval of the Global Compact. It is therefore time to think about a clear legal framework for the negotiation and conclusion of non-binding international instruments.

Barnard & Peers: chapter 24, chapter 26

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How to protect the rights of UK citizens in the EU27 after Brexit? Analysis of the Shindler judgment

Professor Steve Peers, University of Essex*

Introduction

The EU General Court today gave its judgment in the case of Shindler and others, on the legality of the EU Council decision giving the EU Commission a mandate to negotiate the Brexit withdrawal agreement with the UK. In the Court’s view, the case, which was brought by a group of UK citizens living in the other EU Member States, was inadmissible. Although this necessarily meant that the Court did not rule on the merits of the legal challenge, the judgment nevertheless touched on a number of interesting issues regarding the process and consequences of the UK’s withdrawal from the EU.

Today’s judgment could still be appealed to the full Court of Justice, and indeed the applicants’ lawyer has announced an intention to appeal. However, it might be difficult for the Court to give a ruling on the appeal before Brexit day. The judgment also arguably leaves the door open to potential legal challenges against further steps in the Brexit process.

Furthermore, it should be noted that today’s judgment does not have any direct implications for other cases raising Brexit legal issues, which I summarised here, including the Wightman case on whether the UK’s notification of withdrawal from the EU can be unilaterally revoked (on the background to Wightman in the Scottish courts, see here; on the legal arguments on unilaterally revocability, see here). To add to that, a parallel case in the Dutch courts on the legal status of UK citizens in the EU (see discussion here) has been stalled until Brexit day, and the CJEU has ruled already that the UK remains fully part of EU law until that date (as discussed here).

The judgment

While the applicants presumably disagree with the UK’s decision to trigger the Brexit process, the EU General Court only has jurisdiction over acts of the EU institutions or other bodies, not acts of the Member States. The applicants therefore challenged the Council’s response to the UK’s notification of withdrawal from the EU under Article 50 TEU. (Note that the act being challenged in this case – namely the Council’s decision to give the Commission a negotiating mandate for the withdrawal agreement – is different from the European Council’s adoption of negotiating guidelines for the agreement, although a legal challenge brought against those guidelines would surely have had the same result as this case). The Commission planned to intervene in support of the Council, although ultimately its application to do so was irrelevant. No Member States intervened.

When individuals (natural or legal persons) seek the annulment of acts adopted by the EU institutions directly before the EU General Court, they are subject to restrictive conditions on standing set out in Article 263 TFEU. In order to sue, they must either be: a) addressees of the act; b) directly and individually concerned by it; or c) directly concerned by it, if it is a regulatory act which does not entail implementing measures.

 

Shindler and others are not addressees of the Council’s negotiating mandate, and they were likely covered by point c), since the EU courts have ruled (see the Inuit judgment, and the discussion here) that point c) applies whenever the EU act is not adopted by an EU legislative process, which the negotiating mandate was not. However, the General Court never really got to that stage of legal analysis, since it ruled that they lacked standing anyway, because they did not meet the requirement that ‘the binding legal effects of the measure being challenged must be capable of affecting the interests of the applicant, by bringing about a distinct change in his legal position’.

In the Court’s view, the decision on the negotiating mandate was binding. However, while, following previous CJEU case law (the cases referred to were discussed here and here), a negotiation mandate produces legal effects between the EU and Member States, and between EU institutions, it ‘does not directly affect the legal situation of the applicants’.

On that point, the decision on the negotiating mandate was legally distinct from the UK decision to withdraw from the EU (which was not defined by the Court), and from the notification of the UK’s intention to withdraw from the EU sent by the Prime Minister. The latter notification, not the former decision to withdraw, started the two-year time limit set out under Article 50, after which the Treaties cease to apply to the UK in the absence of a withdrawal agreement, unless there is an agreement to extend the period. (Today’s judgment does not address the question at issue in Wightman – ie whether the notification can be revoked).

Nor does the decision on the negotiating mandate ‘alter the legal situation of UK citizens resident in one of the European Union’s other 27 Member States’, as regards either their situation when that decision was adopted or their situation on Brexit day. The negotiating mandate ‘merely constitutes a preparatory act for any final agreement’, which would have to be approved by the Council with the consent of the European Parliament. Annulling it would not change the position of UK citizens, because the notification would still be valid and the two-year time limit would still apply. Although the UK citizens’ status, ‘particularly as regards their status as EU citizens, is likely to be affected’ from Brexit day, whether or not there is a withdrawal agreement, that change would not result from the decision to adopt the negotiating mandate.

The Court then rejected a number of counter-arguments of the applicants against this finding. First, they had argued that the Council’s decision was ‘an implicit act by which the Council accepted the notification of intention to withdraw’. In the Court’s view, although the decision produced effects within the EU and between the EU and Member States, it did not produce legal effects for the applicants: for them it ‘must be considered to be a preparatory act’ without ‘direct legal effects’.

Nor did it implicitly accept the UK’s notification to withdraw, as it was distinct from the decision to withdraw or the notification of that decision. Also, withdrawal from the EU ‘is based on a unilateral decision’ by a Member State ‘pursuant to its own constitutional requirements’. Article 50 refers twice to a decision by a Member State – and then to notifying its intention to withdraw, not to making a ‘request’ to withdraw. Article 50(3) TEU, setting out the two-year deadline and the possibility of a no deal outcome, ‘confirms that the possibility for a Member State to withdraw from the EU is not subject to authorisation from the EU institutions’.

So there is no process of accepting the notification from the EU institutions, in which they check if the UK has met its own constitutional requirements: ‘[s]uch a decision of acceptance by the Council or by any other EU institution is not needed and is not provided for by Article 50 TEU.’ Anyway, the notification was sent to the European Council, not the Council; and the Council’s reference to the Brexit process in its negotiating mandate only observed the legal situation, not created it.

Next, the applicants had argued that the Council's negotiating mandate ‘does not include an objective to ensure that UK citizens who obtained the status of EU citizen before 29 March 2019 maintain that status’, therefore failing to protect them fully or provide for legal certainty. The Court rejected this argument for several reasons: the negotiating mandate was (unsurprisingly) simply a negotiating mandate, not a final position; there would not necessarily be an agreement; the position of UK citizens will not be determined unilaterally by the EU but also depend on the UK’s position; and the final agreement will need consent of the European Parliament. So the mandate, being addressed to the Commission, did not itself determine the position of UK citizens after Brexit.

Also, the absence of any provision in the mandate on EU citizenship and voting rights ‘does not directly affect [UK citizens’] legal situation’, because the negotiating mandate ‘is merely a preparatory act which cannot prejudge the content of any final agreement, particularly as regards the personal scope of any provisions on the protection of the status and rights of UK citizens in the EU 27’. Furthermore, the mandate could not establish the rights of UK citizens in the EU27 in the absence of an agreement, and so an argument based on the Council’s failure to address this scenario was unfounded.

Thirdly, the applicants had argued that ‘the Council should have refused or stayed the opening of negotiations’, because the withdrawal process is ‘void’ due to ‘the absence of definite constitutional authorisation based on the votes of all UK citizens, who are also EU citizens’. More precisely, the applicants object to being denied the vote in the 2016 referendum and the 2017 UK general election, because UK citizens who have been living outside the UK for more than 15 years lose the right to vote. Also, they argued that the European Union (Notification of Withdrawal) Act 2017 does not require the UK to notify its withdrawal but only authorises the Prime Minister to do so, and that:

legal proceedings are currently underway before a UK court, that the Council and the United Kingdom should have sought judicial review of the constitutionality of the notification of the intention to withdraw pursuant to the principle of sincere cooperation provided for in Article 4(3) TEU, and that the Council also should have requested the opinion of the Court as to the compatibility with the Treaties of depriving expatriate UK citizens of the right to vote and their indirect representation by MPs, pursuant to Article 218(11) TFEU. They add that to dismiss the present action for inadmissibility would infringe the principle of democracy, in so far as removing EU citizenship in March 2019 will occur in circumstances that are illegal, where EU citizens have been deprived of the right to vote.

In the Court's view, these are substantive arguments that do not impact the admissibility of the case, because they do not impact the Court’s finding that the negotiating mandate ‘does not directly affect the legal situation of the applicants’. So ‘[e]ven if the Council should have refused to open the negotiations or should have verified that the decision by which the United Kingdom decided to leave the European Union had been taken in accordance with its own constitutional requirements’, the negotiating mandate only authorised the start of talks and set the negotiation objectives of the EU. Equally, even if the Council ‘was wrong’ not to check the compatibility of the withdrawal agreement with EU law (ie, the process in Article 218(11) TFEU which the applicants refer to), which the Court noted is optional, or ‘infringed the principle of sincere cooperation’, that would not alter the admissibility criteria either.

As for the alleged infringement of the principle of democracy, this did not change the criteria for admissibility either, as it would in effect amount to the tail wagging the dog: ‘tantamount to inferring the admissibility of an action for annulment under Article 263 TFEU from the possible unlawfulness of the contested decision’. Just because the EU institution allegedly seriously breached EU law or had a major adverse impact on the applicant, it does not follow that the challenge is admissible. Anyway, again the negotiating mandate ‘does not, of itself, restrict the applicants’ rights’.

Next, the Court rejected the argument that this was the applicants' only legal remedy before they lose EU citizenship. But the Court repeated that the Council decision was not the cause of the UK leaving the EU, and added that protection of EU law rights can also be secured by national courts. In this case, the Court noted that the voting franchise ‘and, indeed, the notification of intention to withdraw, were open to challenge before the UK courts, which may, where appropriate, refer questions to the Court for a preliminary ruling on the interpretation of the Treaties, pursuant to Article 267 TFEU.’ More precisely, the Court observed that the High Court had already rejected a case brought by Mr Shindler concerning the franchise, as well as the Webster challenge to ‘the alleged lack of a decision to withdraw taken in accordance with the United Kingdom’s constitutional requirements’.

Finally, the applicants argued that no such route through the UK courts would be possible after Brexit day, as the UK might not consider itself bound by an EU court decision. However, the Court ruled that it could not alter the rules on admissibility of legal actions in light of this scenario.

Comments

It’s striking that the General Court has chosen a less obvious route to find that this case is inadmissible – the lack of direct impact on the applicants – rather than the more obvious route of finding that there is no ‘direct concern’, or that the negotiating mandate calls for further implementing measures (ie negotiations with the UK). The implication of the Court’s judgment is that that the withdrawal agreement – if it is ratified in some form – would have a direct impact on the applicants, and that they could try afresh to challenge it then. But then they would have to face the hurdle of showing direct concern and the absence of implementing measures – which could be a difficult hurdle to surmount given that the withdrawal agreement will be implemented by national bodies in the EU27 and the UK.

As for alternative routes to challenge the Council’s negotiating mandate, it is hard to see exactly what could be attacked via the national courts (which can ask the CJEU whether an EU act is invalid: direct challenges like today’s case are only one means of challenging the legality of EU acts). Again, though, the Council’s decision to conclude a final withdrawal agreement could be attacked via the EU27 national courts, even if a direct action would face different standing challenges; recent case law of the CJEU (see discussion here) has confirmed that the EU’s conclusion of international treaties can indeed be challenged by this route.

Another route to challenging the validity of EU acts is by claiming damages liability of the EU, which is not subject to the same standing rules. According to the CJEU case law, the EU incurs damages liability when it acts unlawfully, its unlawful acts cause damage to individuals, and it commits a sufficient serious breach of a legal rule conferring rights on individuals. But it’s hard to see how damages liability could be incurred by the negotiating mandate, since the logic of the Shindler ruling is that the mandate could not cause damage to individuals, as it did not directly affect their legal position. On the other hand, an argument about damages liability could be made if there is a withdrawal agreement, although note that the threshold to succeed in a damages claim is quite high: see, for instance, the Ledra Advertising case on losses of Cypriot bank depositors, discussed here.

In the case of no withdrawal agreement (or replacement treaty ring-fencing rights), there would be nothing which could be the subject of legal challenge at EU level, although UK citizens could still try to argue in the national courts of the remaining Member States that there is a principle of acquired rights which EU law recognises (see again the Dutch case discussed here, which is on hold), or at least that EU legislation on the position of non-EU citizens (which has partly harmonised national law) applies to them. Equally there would be no EU act to claim resulted in damages, although UK citizens (and others) might try to argue that the EU’s conduct of the negotiations could be the subject of a damages claim.

Moving to the core of the Court’s reasoning, it is a persuasive argument that the decision to establish a negotiating mandate did not directly impact upon the applicants’ rights. The process was indeed triggered by the UK, with the negotiating mandate at most taking note of that decision; and any later impact on individual rights will flow from the final agreement (if ratified) or the absence of a deal.  While the Court seemed to assume that UK citizens lose EU citizenship as a result of Brexit, it did not expressly say as much.

The Court was also right to stress that withdrawal is the responsibility of the UK in accordance with its own constitutional requirements, meaning that the Council could not in some sense review whether the UK had met those requirements when it submitted its notification to withdraw. It’s particularly unclear how exactly the Council should have sought judicial review of the UK’s notification, or how the Article 218 process of assessing draft international treaties for their compatibility with EU law could extend to an examination of the franchise in the UK referendum and general elections. The general assertion that the circumstances are ‘illegal’ due to the limited franchise in the referendum rather overlooked the legal process in the UK, which had already (as the Court noted) rejected a claim challenging the legality of the franchise restrictions. Having said that, the Court later indicated that national court disputes over the Article 50 process in the UK could be sent to the CJEU – although it did not as such suggest that this would, after all, entail a review of those national constitutional requirements in light of EU law.

Similarly the Court rightly rejected the arguments about the negotiation mandate being insufficient because it depends upon the final agreement (if ratified) what the rights of individuals are, and applies its usual case law refusing to rethink the strict rules on standing in light of the applicants’ particular circumstances. 

It’s useful to examine briefly what the Court would have ruled on if it had examined the merits of the claim, which are summarised here. The first argument was that withdrawal from the Euratom treaty had to be a separate legal process; I have a different view, as set out here. (Note that winning on this point would not have helped with the key legal objective of preserving UK citizens’ rights).

The second argument was that the negotiating mandate wrongly claims that the EU alone was competent to conclude the withdrawal agreement, and that it should be jointly ratified with EU Member States. Leaving aside the merits of this argument, with respect it is hard to see how it helps the applicants if they had won on this point, because it would have seriously increased the risk of a no deal scenario – which would, as I recently pointed out, leave UK citizens in the EU27 in particular much worse off than under the withdrawal agreement.

The third and fifth arguments have been addressed in an indirect way by the judgment, despite the finding of inadmissibility: the limited franchise is a matter to be addressed in accordance with the UK’s own constitutional requirements, and the lack of certainty regarding the final outcome is simply unavoidable at the point when the Council adopts a negotiating mandate. Finally, the fourth argument – concerning the lack of a vote for UK citizens living in overseas countries and territories – is another form of franchise argument, which again should be left to the UK’s constitutional requirements to address.

Finally, on the overall context of the case: while in my view, protection of the rights of UK citizens in the EU27 (and the parallel rights of the EU27 in the UK) is absolutely fundamental, the focus should be on securing those rights in future – either by reversing Brexit, or failing that by at least avoiding a no deal outcome – rather than re-litigating the franchise of the referendum, by trying to induce the EU courts to rule on an issue (national constitutional requirements) which should be wholly outside their remit.  In the event of a no deal outcome, despite the apparent indifference of the Commission to the fate of UK citizens in the EU27, the focus has to be on securing a ring-fenced treaty on securing the rights of citizens on both sides; failing that, EU-wide legislation on the acquired rights of UK citizens (hopefully matching parallel action by the UK for EU27 citizens); and failing that, litigation to argue that the EU and/or its Member States have an obligation to preserve their rights as much as possible.

*Supported by an ESRC Priority Brexit Grant on 'Brexit and UK and EU Immigration Policy'

Barnard & Peers: chapter 10, chapter 27

Photo credit: European Sanctions Blog

Referendum Briefing 3: Does the EU have a ‘democratic deficit’?

Laurent Pech, Professor of Law, Middlesex University

Steve Peers, Professor of Law, University of Essex

The EU is regularly accused from suffering a ‘democratic deficit’. In particular, it is often asserted that all EU decisions are made by the EU Commission – who are ‘unelected bureaucrats’.  

As we demonstrate in this post, this criticism is clearly invalid. It fundamentally misunderstands (a) the powers that the Commission has – and more generally how decisions are made in the European Union; and (b) the way in which the European Commission gets into office. We will examine each of those issues in turn.

Who does what? Does the Commission adopt all EU laws?

The crucial thing about the EU system is that the Commission does not have anywhere near as much power as many people think it has. The standard EU’s decision-making process is: the Commission alone makes legislative proposals. Those proposals are then considered by the Council (the intergovernmental body representing elected national governments), jointly with the elected Members of the European Parliament (representing EU citizens), whose powers have been gradually and significantly increased over the last three decades. Some people say that the Council and European Parliament simply rubber-stamp Commission proposals, but that is not true: they sometimes reject them and almost always amend them.

This graph illustrates the EU decision-making process:

 

In addition, national parliaments have seen their involvement with the EU’s decision-making process formally recognised and all draft legislative acts, for instance, must be forwarded to them. If enough national parliaments object to an EU proposal, it must be reconsidered (a so-called ‘yellow card’). The UK’s renegotiation deal says that if enough national parliaments object to a proposed law, it will be rejected (so-called ‘red card’). Any major changes to the EU (new Member States, new Treaties) have to be approved by national parliaments.

Overall guidance on what policies the EU should take comes not only from the Commission but also from the European Council – the EU body made up of Member States’ Prime Ministers and Presidents, such as Cameron, Hollande and Merkel. When they call for the proposal of an EU law on an issue the Commission usually reacts quickly. The Council and European Parliament can also ask the Commission to propose laws.

Although a lot of EU decisions are made by a ‘qualified majority’ in the Council (meaning they need 55% of the Member States with 65% of the population to support them), there is a tradition of seeking wide consensus. So – as the graph at the top of this blog post indicates – the UK has in recent years voted in favour of 95% of EU laws.

Once an EU law is adopted the Treaties say that implementation powers are left in principle to Member States. So it’s up to national authorities to apply most laws which Member States have agreed in the EU. As an exception the Commission has powers in a few cases to adopt some detailed further rules to implement the technical details of an EU law which was already agreed, so that the EU law applies in the same way in all Member States. But the Commission’s use of such powers is controlled by Member States and the European Parliament, who can block such draft technical measures. This is similar to the process in most national systems – including the UK, where the government drafts ‘Statutory Instruments’ which the House of Commons or House of Lords can block.

This system is a complex one because it has to reflect several and sometimes competing objectives such as the necessity to ensure the fair treatment of all Member States from the largest to the smallest. Member States insist on retaining their control over the EU’s decision-making process to democracy at the national level, and democratic legitimacy at EU level is reflected by the strengthening over time of the legislative, budgetary and supervisory roles of the European Parliament whose position as a ‘co-legislator’, jointly with the Council, is now firmly established. It is because the member states believe that their national interests were and continue to be better served by an independent Commission with atypical powers (e.g. the Commission’s monopoly on legislative initiative or its enforcement powers) that the Commission’s role, functions and powers have been left essentially unchanged since the Treaty establishing the European Economic Community of 1957.

To argue that such the EU’s system of governance is not democratic illustrates a failure to grasp that, in fact, the EU’s institutional framework has been specifically designed not to function on the basis of a mere majority rule but on the contrary, as an highly consensual system where nothing of importance can be agreed without the joint consent of the Commission, Parliament and Member States’ governments in the Council.

With respect to the Commission, critics quite often point out that it alone has the right of legislative initiative, meaning that legislative acts may be adopted solely on the basis of a Commission proposal. However, they usually fail to point out that, as noted above, EU leaders often ask for the Commission to propose a new EU law; both the Council and the Parliament have the formal power to ask the Commission for a proposal; and the Council and the Parliament must adopt proposals from the Commission for them to become law.

In practice, the annual work programmes adopted by the Commission are in any event devised in the light of a process of intensive and continuous dialogue with the European Parliament and the Council. One may also note in passing that at the national level, bills tend to be written by civil servants working for ministerial departments. In the UK, in practice Private Members’ Bills cannot be adopted unless the government wants them to be.

Finally, a word about EU judges. They are often described as ‘unelected’ – but of course judges in the UK and most other countries are unelected as well. In fact, the UK has a veto over the appointment of EU judges. So none of them can take up their jobs in the first place or keep their jobs (appointments are reviewed every six years) without the UK government’s approval.

The European Commission

It’s simply inaccurate to describe the Commission as ‘unelected’. Rather, like many national legislative bodies, it is elected indirectly – meaning that it is appointed by people who are directly elected. A candidate for President of the Commission is selected by the national Heads of State and Government (each democratically accountable to their own Member State), taking into account the results of the elections to the European Parliament. In other words, the choice of the Commission President is based on which party got the most seats in the European Parliament elections – just as the choice of the UK Prime Minister is based on who gets the most seats in a UK general election. (The Annex to this blog post shows how the Commission is appointed in graphic form - compared to the UK).

Moreover, starting from the current Commission (which took office in 2014) the candidates for Commission President had actually been nominated by European political parties in advance. So voters could make a judgment on which potential Commission President they preferred when they cast their vote in European Parliament elections – just as they can do the same for potential Prime Ministers when voting in a UK general election.

This allows a connection between the voting choices made by citizens all across the EU in the European Parliament elections with the political colour of the selected candidate to the presidency of the Commission. The nomination of the President must be further approved by a majority of those elected Members of the European Parliament. For those who ask ‘how can I get rid of the Commission President?’, the answer is simple. He got that job in the first place because of the results of the European Parliament elections. If he runs again to be Commission President and you don’t want him to keep the job, don’t vote for his party (or for another party that would back him).

Then the remaining members of the Commission are each proposed by Member States’ elected governments, and as a body, they must be subject to a vote of approval by the European Parliament. Prospective commissioners are also subject to individual questioning by the appropriate European Parliament committee prior to the European Parliament’s approval.

How can voters vote out the European Commission as a whole? They don’t get to vote on the entire Commission – but that’s because the appointment process defers to Member States. People criticise the EU for not being a democracy, but in many ways it is an international organisation. We don’t usually expect international organisations to be democratic as such; rather their accountability comes from national governments’ participation in them. So we don’t get to ‘vote for NATO’ or ‘vote for the UN Security Council’; we vote for governments that represent us in those international institutions. Similarly, a vote in a British national election determines the political background of the British Commissioner: the current Commissioner is a Conservative, and the previous one was Labour.

Some argue that Commissioners and/or its President must be directly elected. The idea of direct election for the president of the European Commission however reveals not only a misunderstanding of the Commission’s role (it is not supposed to act as the government of the EU) but also a lack of understanding of how national Heads of State or Government are appointed. For instance, there is no actual direct election for selecting the Prime Minister in parliamentary regimes like the UK.

The Prime Minister would certainly be locally elected as an MP – like David Cameron is in Witney. Yet, he or she will become Prime Minister, strictly speaking, on the sole ground of being the victorious leader of a political party, which selected that leader beforehand, without asking citizens’ opinion. We also had examples in the UK of seeing an MP being coroneted PM without a general election being organised (Brown, Major and Callaghan, just in recent years).  In other words, it is wrong to assume that electors directly decide on the identity of the Prime Minister; rather they select the leader of the country from a pool of names put forward by political parties. This is essentially equivalent to the appointment of the EU Commission.

Similarly, it is also wrong to assume that national cabinet ministers (equivalent to the rest of the Commission) are always elected officials. This is for instance the situation in France where anyone can be appointed minister without having ever been elected to the national Parliament or to a local assembly. The UK cabinet has ministers from the unelected House of Lords. Even worse, in a multi-party system, as opposed to a two-party system, the citizens may find themselves with a government that does not represent the most popular political party, but which is the fruit of arrangements made between political parties after the elections are held – like the UK coalition government between 2010 and 2015. With these examples in mind, the selection and appointment of Commissioners by the European Council and the European Parliament cannot be said to be less ‘democratic’ nor less ‘transparent’ than the equivalents in the UK or other Member States.

Furthermore, it’s possible for the Commission to be dismissed by the European Parliament – just like the UK’s House of Commons can pass a vote of non-confidence in a government.  However, it’s true that this power has never successfully been used. Does the EU suffer from a comparison with the Member States in this respect? Not quite, as the power to dismiss the government has simply been lost at national level for a range of reasons: fixed election dates, the so-called rationalisation of parliamentary rules and a more disciplined partisan system. In the UK, for instance, we only have one example of a government brought down by a motion of no confidence since World War II.

Conclusion

At the end of the day, the European Union’s institutional architecture and decision-making process merely reflect the twofold legitimacy of the EU as a union of States and of citizens on which competences have been conferred to meet common objectives. In other words, the legitimacy of the EU’s institutional architecture flows from two sources: the Member States, which are represented at the EU level in the European Council by their Heads of State or Government and in the Council by their governments which are democratically accountable to their national Parliaments, and the European Parliament, which is directly elected and represents European citizens.

In this context, the highly consensual and arguably cumbersome process governing the selection and appointment of the Commission may be perhaps better understood and justified. If anything, one may even argue that it would be unwise, and one may even say undemocratic, to push for a complete ‘democratisation’ of the Union’s institutional architecture and organise the transformation of the Commission into something akin to a national government. Indeed, and contrary to popular wisdom, the strict implementation of a purely majoritarian system and the direct transplantation of the mechanisms associated with the national model of parliamentary democracy would, in all likelihood, undermine the EU’s legitimacy due to the ‘thin’ character of the European Union’s sense of collective identity.

The resulting original system of government could be a hard sell to the man on the street, as it may differ from his instinctive (and, in most cases, idealised) understanding of what a democracy is or how one’s democratic system actually works. It may, nonetheless, be defended in the name of democracy, one where the value of consensus trumps the majoritarian features classically associated with the Westminster model of parliamentary or representative democracy. This is not to say of course that there is no room for improvement when it comes to the democratic life of the EU.  It remains however ludicrous to describe the EU as an undemocratic ‘superstate’. For all its imperfections, the EU may actually offer the chance of political leadership at a level where the social impact of globalisation could be democratically and effectively managed. One may only that hope that people remember, to paraphrase Voltaire, that the best can quite often be the enemy of the good.

Graphics credits: The Conversation (Council voting); tasc.ie (EU decision-making); uktostay.eu (Commission appointment)

Annex: Appointing and dismissing the European Commission