The draft renegotiation deal: A genuine red card? Tusk’s proposal and national parliaments

Dr. Katarzyna Granat, Junior Research Fellow & Marie Curie Fellow, Durham Law School 

The Draft Decision of the Heads of State or Government, ‘A New Settlement for the United Kingdom within the European Union’, unveiled by Donald Tusk on February 2 2016 offers the first concrete vision of the changes to enhance the role of national parliaments under the UK’s renegotiation efforts. This note provides an analysis of the suggested changes by contrasting them with the mechanisms currently in force under the Lisbon Treaty.

Tusk’s proposal (Section C, points 2-3) envisions that reasoned opinions of national parliaments issued under Article 7.1 of Protocol No. 2 ‘on the application of the principles of subsidiarity and proportionality’ should be ‘duly taken into account’ by all institutions participating in the EU decision-making procedures. In Tusk’s proposal national parliaments may submit reasoned opinions stating that an EU draft legislative act violates the principle of subsidiarity submitted within 12 weeks from the transmission of that draft. If these reasoned opinions represent more than 55% of votes allocated to national parliaments (i.e. at least 31 of the 56 available votes; two votes for each national parliament; in the case of a bicameral parliament, each of the two chambers has one vote; votes of parliaments of member states not participating in the adoption of the act at stake are not counted), the opinions will be ‘comprehensively discussed’ in the Council. If the EU draft legislative proposal is not changed in a way reflecting the concerns of national parliaments in their reasoned opinions, the Council will discontinue the consideration of that draft.

This proposal differs from the current ‘yellow’ and ‘orange’ card schemes of the Lisbon Treaty in a number of ways concerning in particular the timeframe, applicable thresholds and the effects of these procedures.  

First, under the existing provisions of the Lisbon Treaty national parliaments may submit a reasoned opinion to the Commission, EP and Council within eight weeks from the transmission of the draft legislative act (Art. 6 of Protocol No.2). Tusk’s proposal hence gives national parliaments more time for the analysis of proposals and drafting reasoned opinions. The need to extend the submission deadline is often underlined by national parliaments and this would probably be welcomed by them. (See COSAC, 24th Bi-annual Report: Developments in European Union Procedures and Practices Relevant to Parliamentary Scrutiny, 4.11.2015 at 22) Yet, it is unclear whether the extension to 12 weeks under Tusk’s proposal also applies to the ‘yellow’ and ‘orange’ card procedures.

Second, although the mechanism of assignment of votes to national parliaments does not change, Tusk’s proposal offers a different threshold of votes to be met by national parliaments. The ‘yellow card’ provision demands that the reasoned opinions on the non-compliance of a Commission proposal with the principle of subsidiarity represent at least one third of all the votes allocated to the national parliaments. For triggering of the ‘orange card’, applicable only in the ordinary legislative procedure, the reasoned opinions of national parliaments need to represent at least a simple majority of the total number of votes allocated to the national parliaments. In contrast, to activate the procedure proposed by Tusk the necessary threshold is 55% of the votes allocated to national parliaments. Hence out of 56 votes of national parliaments at least 19 are necessary for a ‘yellow card’; at least 29 for an ‘orange card’ and 31 to meet the ‘more than 55%’ threshold in Tusk’s proposal. The new procedure thus requires only slightly more votes than the existing ‘orange card’, which, thus far, has never been triggered successfully.

Third, the most substantial change concerns the consequences of activating the new procedure. The ‘yellow card’ involved consequences that were relatively limited: the Commission had to review the draft and then to decide on whether to maintain, amend or withdraw the draft, giving reasons for its decision (Art. 7.2. of Protocol No. 2). For the ‘orange card’, the Commission had similar choices available, but a decision to maintain the proposal required the Commission to prepare its own reasoned opinion with arguments demonstrating compliance of the act with the subsidiarity principle. The EP and the Council would then decide on the fate of the proposal taking into account the arguments on the principle of subsidiarity expressed by the Commission and by national parliaments. If subsequently 55 % of the Council members or a majority of the votes cast in the EP finds a subsidiarity breach, ‘the legislative proposal shall not be given further consideration’. (Art. 7.3 of Protocol No. 2) By contrast, Tusk’s proposal seems to omit the phase in which the Commission can respond to national parliaments and instead moves directly to the Council, at which point Member States' representatives 'will discontinue' the consideration of the proposal, if it is not amended to accommodate the ‘concerns’ expressed by national parliaments. Tusk’s proposal binds stopping of the legislative procedure with whether the requests of national parliaments are met, while the ‘orange card’ provided for discontinuation only if the Council finds a subsidiarity breach.

It is worth noting that important details of the procedure such as who is responsible for amending the proposal and more importantly verifying whether the concerns of national parliaments were addressed are left unspecified. Recall that in its interaction with the national parliaments the Commission has often expressed itself satisfied that the concerns of the parliaments expressed in the reasoned opinions have been addressed by the original proposal. (See House of Lords, European Union Committee, 9^th Report of Session 2013-14, para 87) Nevertheless, Tusk’s proposal seems to demand a more active response from EU institutions than the ‘orange card’.

Moreover, one should note that Tusk’s proposal does not grant the national parliaments a veto power on any aspect of a Commission proposal. Tusk’s proposal mentions that the discontinuance of the legislative procedure is conditional on the non-accommodation of the ‘concerns’ expressed in the reasoned opinions, with the ultimate decision taken by the Council, and thereby away from the national parliaments.

One further interesting aspect of Tusk’s proposal is that it refers throughout to reasoned opinions on the non-compliance of proposals with the subsidiarity principle, even though in their exercise of subsidiarity scrutiny under Protocol No. 2 national parliaments often critique issues such as the legal basis, proportionality or the political merits of a proposal, thereby going beyond strict subsidiarity review (See F. Fabbrini, K Granat, ‘“Yellow card, but no foul”: The role of the national parliaments under the subsidiarity protocol and the Commission proposal for an EU regulation on the right to strike (2013) 50 Common Market Law Review, 115–143). The question is whether under Tusk’s proposal such a broad approach would also be adopted in the Council. If so, this might cause difficulties in amending a proposal in a way that properly takes account of all the different aspects raised by national parliaments and in consequence makes it also easier to stop the legislative procedure because of the lack of accommodation of the demands of the parliaments. 

A broad reading of Tusk’s proposal would therefore probably be more in line with Cameron’s wish of strengthening national parliaments by allowing a threshold of national parliaments ‘to stop unwanted legislative proposals,’ although Cameron underlined also that the EU must commit to a full implementation of the subsidiarity principle. (Letter of D. Cameron to D. Tusk, 10. November 2015 at 4) A more specific answer to the latter issue might be the proposed draft declaration ‘on a subsidiarity implementation mechanism and a burden reduction implementation mechanism’ obliging the Commission to create a mechanism for the review of existing EU legislation for its compatibility with the subsidiarity and proportionality principles with an aim to provide ‘full implementation’ of subsidiarity. (EUCO 7/16)

Last point: the fact that the tabled proposal demands a discussion in the Council could also mean that depending on the relationship between parliaments and their governments represented in the Council, the ministers might show more or less flexibility with the ‘concerns’ of their national parliaments and whether a consensus on stopping or continuing with the legislative procedure could be achieved.

Finally, recall that the rejected ‘red card’ proposed in the Convention on the Future of Europe aimed at a two-third majority of national parliaments that would require the Commission to withdraw its proposal (CONV 540/03, 6.02.2003, p. 3). In comparison, Tusk’s proposal has a lower threshold and does not imply an immediate stopping of the legislative procedure. It could be hence described as a ‘red card light’ and as way of finding a compromise solution without threatening to disrupt the EU legislative procedure.

Barnard & Peers: chapter 5

Photo credit: TheSun.co.uk 

National parliaments and the “Five Presidents’ Report’: The long road towards the democratization of EMU

Ton van den Brink, Associate Professor, University of Utrecht

The recent ‘Five Presidents’ Report’ contains far-reaching proposals to deepen the EU’s Economic and Monetary Union (EMU), which have been analyzed here. These proposals also have far reaching consequences for national parliaments. The much needed democratization of the EMU requires national parliaments to be assigned with stronger rights than the proposed intensification of ‘dialogues’.

What is at stake for national parliaments? The report proposes to come to a ‘system of further sovereignty sharing within common institutions’ (p. 5). This system would include, inter alia, a further Europeanization of economic policy coordination, aimed at economic convergence of the Euro area. To that end, the European Semester would be restructured and national ‘Competitiveness Authorities’ would be set up in the Eurozone Member States. The proposals to establish a Fiscal Union include the creation of an advisory European Fiscal Board and a common macroeconomic stabilisation function to ‘better deal with shocks that cannot be managed at the national level alone’. This last element is similar to the tax authority proposed by German Minister Gabriel and French Minister Macron as part of their plea for a radical integration of the Eurozone. It is unclear, however, how the more long term perspective of creating a European treasury would relate to national treasuries.

There are more unclarities which make it difficult to assess how national parliaments would exactly be affected. The European Fiscal Board would, for instance, only have an advisory role. The general direction of the proposals is, however, clear. The proposals would increase control of EU institutions over national policies. Thus, a further Europeanization of economic policy making would be the result. Second, the technocratic nature of decision making would be strengthened. The further expansion of ‘rule-based cooperation’ and the mandates of the new bodies would significantly contribute thereto.

Europeanization and technocratization pose challenges for national parliaments. These are not addressed, even though the report underlines that democratic legitimacy and accountability should be the corner stones of the EMU. The proposals in this regard do not add much to the already existing ‘six-pack’ and ‘two-pack’ arrangements and in any case do not extend beyond ‘streamlining’ procedures and the strengthening of ‘dialogues’.

The answer to these challenges cannot be the European Parliament, at least not the European Parliament alone. It is true that the executive federalism that may be witnessed in the field of economic policies requires a better position for the European Parliament as well. But the European Parliament cannot substitute national parliaments in economic policy making. First, there is no real solution for the role of the European Parliament - representing citizens from 28 Member States - in decision making on measures that are limited to the Euro area. Second, a substantial part of economic policy making is country specific. This will remain so, even though the Five Presidents’ report contains proposals to strengthen the euro area wide dimension of economic policy making. National parliaments certainly qualify as the most obvious institutions to exercise democratic control over the country specific part of economic policy making in the EU. Thirdly, national parliaments’ constitutional rights are affected in a very concrete manner by the proposals. Thus, strengthening their role would also contribute to compensating that loss.

Taxation and budget rights are among the most concrete constitutional rights that are at stake for national parliaments. The right to decide on the national budget implies budget autonomy. The German constitutional court, in its decision on the constitutionality of the ESM-Treaty, ruled that: ‘Deciding on public revenue and public expenditure is a fundamental part of the ability of a constitutional state to democratically shape itself. In this context, the right to decide on the budget is a central element for shaping opinions in a democratic society’. 

Thus, the German constitution (as well as the constitutional systems of many other Member States) would not allow the national budget right to be relinquished altogether. Although the German constitutional courts accepted the possibility of – even significant – limitations to national budget autonomy, a suspension thereof for at least a considerable period of time, would be considered unconstitutional by the German constitutional court. The creation of a Macroeconomic Stability Function would need to pass this test before it could be created. What is more, the Court made it clear that it had formulated only minimum conditions and stressed the discretion of the German legislature ‘to weigh whether and to what extent, in order to preserve some discretion for democratic management and decision-making, one should enter into commitments regarding future spending behaviour and therefore – correspondingly – accept a restriction of one’s discretion for democratic management and decision-making in the present’.

Closely related (but in various constitutional systems recognized as a separate right) is the right to decide on taxation. The constitutional significance of this right, as well as its “sovereignty-sensitivity” have made it impossible thus far to come to supranational taxes. The feasibility of a Euro area wide treasury – whatever its exact form – is, thus, highly questionable.

The position of national parliaments is also at stake with regard to macroeconomic policies, which have redistributive effects. Specific national constitutional guarantees are generally lacking in this area, but a Europeanization of these policies is still particularly troublesome. This has to do with the lack of common substantive principles or rules. Unlike fiscal policies – which are ‘rule-based’, such as the 3% rule - macroeconomic policies are essentially political decisions, e.g on how labour markets and pension systems must be reformed and whether and how national investment climates must be improved.

In this light, the proposals from the Five Presidents’ report are too meagre for national parliaments to ensure effective democratic control. It has to be acknowledged that - should all of the plans indeed be realized - national parliaments would be limited in their national decision making capacities on fiscal and economic policies. This limitation of decision-making power should be compensated by adequate accountability rights. It would therefore be far from sufficient to organize plenary debates between the EP and the Commission and streamline the interaction between the Commission and national parliaments and between the European Parliament and national parliaments.

The relationship between the Commission and national parliaments should be the starting point for strengthening the position of the latter. It is one thing to get the EU Commissioner to the national parliament to discuss country-specific recommendations, but without the possibilities of sanctions this remains an empty shell. The rules that have been developed in the context of EU legislative procedures (most notably with regard to subsidiarity scrutiny) may offer inspiration here. The right to make the Commission reconsider a legislative proposal could, for instance, be applied in the context of economic and fiscal policies as well: the national parliament at issue could be empowered with the right to object to country-specific recommendations which would lead to obligation for the Commission to reconsider these. In case of the macroeconomic stabilisation function the existing mechanisms of cooperation between national parliaments in the context of subsidiarity scrutiny could offer inspiration. This could be linked to the right of assent for - a qualified majority of – national parliaments.

The exact shaping of national parliaments’ rights is, however, essentially a second order issue. To get to that issue, it first needs to be acknowledged that a genuinely democratic EMU requires national parliaments to have more at their disposal than the right to be informed and to take part in economic dialogues.

Barnard & Peers: chapter 19

Photo credit: www.clivebates.com

The reform of Europol: modern EU agency, or intergovernmental dinosaur?

Introduction

The EU’s police cooperation agency, Europol, has played a major role in the development of Justice and Home Affairs cooperation in the EU from an early stage. Europol was originally set up informally, then on the basis of a 1995 Convention, subsequently replaced by a Council Decision in 2009. While its powers have gradually been expanded, so has the controversy about its accountability and the adequacy of its data protection rules. Since it is a creature of the former 'third pillar' (the previous special rules on policing and criminal law) it is something of a 'dinosaur' in institutional terms, being an essentially intergovernmental body.

With the entry into force of the Treaty of Lisbon, the European Parliament (EP) now has joint powers with the Council as regards the adoption of a Regulation governing Europol, and the Treaty now refers expressly to the importance of ensuring accountability to both national parliaments and the EP. Furthermore, the EU institutions agreed in 2012 a ‘Common Understanding’ on standard rules which would apply to the governance of EU agencies. To expand Europol’s powers further, while addressing the issues of governance, accountability and data protection, the Commission proposed a new Regulation reconstituting Europol in 2013.

At the most recent Justice and Home Affairs Council, ministers agreed the Council’s position on the Commission’s proposal.  Since the European Parliament also recently agreed its own position, this clears the way for negotiations to take place between the two institutions for a final deal, once the EP is fully operational again following the recent elections. This is therefore a good time to examine the progress of discussions on the proposed Regulation so far.

It should be noted that Ireland has opted in to this proposed Regulation, while the UK and Denmark have opted out. The UK’s objections are due to the proposals to place national law enforcement bodies to comply with Europol’s requests to start investigations, and to supply information to Europol without a national security exception. However, as discussed further below, the Council’s and EP’s positions on the proposal address these issues, raising the possibility that the UK will opt in after adoption of the Regulation.

Europol’s powers

First and foremost, the Commission failed in its attempt to merge together Europol with the European Police College. The Commission thought it was a good idea to merge the two, given the overlap of their subject-matter. There has never been a merger of EU agencies before, for essentially political reasons: Member States fight bitter battles to host EU agencies, and so are reluctant to let one go once they have one. However, unusually, in this case the original host of the European Police College, the UK, was rather keen to kick the agency out, as it was planning to sell the space where the College was located and declared itself unable to find a new one.

So there was a golden opportunity to merge these two agencies, but neither the European Parliament nor the Council wanted to take it. In light of the Commission’s inflexible insistence on its proposal, an unprecedented group of 25 Member States tabled an initiative to amend the previous Decision establishing the European Police College, which was subsequently adopted. This new Regulation simply moves the College to Budapest. The Council has requested the Commission to make a separate proposal making further changes to the Police College, but it remains to be seen whether the Commission will do so, or whether it will continue to sulk about the failure of its original suggestion for a merger.

The Commission’s second main objective related to Europol itself. It cannot carry out ‘coercive powers’, according to the Treaties, and all three institutions agree that a clause to this effect should appear in the new Regulation.  So it is destined to remain an agency which gathers and analyses information, and it is only able to do the latter to the extent that it does the former. As dinosaurs go, Europol is clearly a herbivore, not a carnivore.

But the Commission nonetheless hoped to give Europol some sharper teeth. So it proposed two key amendments: a clarification of Member States’ obligation to give information to Europol, and an enlargement of Europol’s access to national databases. In parallel to this, the Commission’s proposal removed the detailed rules on the structure of data processing that existed in the Europol Decision (and before that, in the Europol Convention). In place of these very specific rules on analysis files and the Europol Information System, et al, there would instead be general provisions on data processing, which would be centred upon an obligation to ensure ‘privacy by design’.

The Council weakened the proposed rules which required national authorities in principle to act upon Europol’s request to initiate investigations. However, this issue is mainly symbolic, since there was no absolute obligation to act, under the Commission’s proposals (authorities could ‘decide not to comply’ with a request, on any grounds).

Furthermore, the Council did not accept the Commission’s proposal to allow Europol to contact national authorities directly in all cases, without going through the ‘Europol national units’ (the official points of contact between Europol and national forces). Instead, it simply provided (as at present) for the possibility for Member States to allow this. It also reinserted the current provisions which allow national authorities to refuse requests for information from Europol on grounds of national security, current investigations or intelligence activities.

However, the Council agreed with the proposal to give Europol a list of other new powers, and added new provisions giving Europol the power to assist with Schengen evaluations, as well as the evaluation of candidate Member States. It also specified that Member States have to allow their Financial Intelligence Units (special units dealing with money laundering) to collaborate with Europol. Finally, it wants to extend the fields of crime which Europol deals with to include war crimes and genocide as well as insider trading.

For its part, the EP, like the Council, voted against strengthening the provisions relating to Europol requests to Member States, although it did agree to Europol’s direct contact with national authorities (under certain conditions). It also agreed to retain the provisions allowing authorities to refuse requests from information from Europol.

Furthermore, the EP wants to reinsert the existing conditions relating to Europol’s participation in joint investigation teams, whereas the Commission (and the Council) want to provide only for general rules in this respect.

Data processing and data protection

Europol’s powers are inevitably closely linked with the data processing and data protection rules that apply to its processing of personal data. On this point, the Commission’s main objective with its proposal was to enhance the data protection framework of Europol by ensuring that its data protection supervisor was fully independent and had effective powers.

To this end, the Commission suggested more detailed rules on data processing and more data protection rights for individuals. The rules on external transfers of data outside the EU, which currently allow Europol itself to sign treaties with the Council’s approval, would be replaced by the general external relations rules of EU law (treaty negotiations carried out by the Commission, treaties concluded by the Council after consent by the EP). In general, the rules on transferring data to third States would be modelled on the rules in the EU data protection directive (see the recent post on this blog), allowing for transfers in principle only where a third State’s data protection has been judged ‘adequate’, with limited derogations from this rule. The supervisory powers currently held by a Joint Supervisory Board would be transferred to existing European Data Protection Supervisor (EDPS), which has data protection supervisory power as regards most EU agencies.   

The Council would amend the proposal to add a general power to process personal data in order to facilitate information exchange between Europol, other EU bodies, third countries, Member States and international organisations. Also, the Council would impose an absolute obligation for Europol to inform Member States about information concerning them. The Council would also allow for broader derogations from the normal rules as regards the transfers of data to third countries, adding grounds relating to legal claims and the combating of criminal offences.

As for data protection rules, the Council would strengthen the proposal by banning the selection of a group persons purely on the basis of a ‘sensitive’ ground, such as racial origin. It would also add a requirement for Europol to notify its data protection officer and the EDPS in the event of a security breach. Europol would also have to inform data subjects of the time period for the processing of their data, and the right to make requests to Europol for erasure, et al of that data.

However, the Council would drop the requirement for Europol to report on its processing of sensitive data every six months to the EDPS. Also, Europol would have to comply with any Member State’s objection to the release of data which it provided to Europol. A data subject’s request for correction et al of personal data would have to be funnelled through a national authority, rather than addressed directly to Europol, and the Council would include very broad grounds for Europol to refuse such requests.

The Council is also keen to amend the institutional ‘architecture’ regarding data protection in the Commission’s proposal. It would cut back a little on the proposed powers of the EDPS, and impose the condition that it considers law enforcement concerns when it communicates with data subjects. National data protection bodies would have the power to comment on the draft annual report of the EDPS before its conclusion. More generally, the EDPS would have further obligations to consult national data protection bodies, and the Council wants to establish a Cooperation Board that would have a large number of advisory powers.

For its part, the EP would subject all access to personal data by Europol to general rules of necessity and proportionality and the adoption of specific rules setting out data protection principles.  The categories of personal data which could be processed would be more tightly restricted, and the EP does not support anything similar to a general power to process personal data to facilitate relations with the Member States, et al. There would be a requirement to carry out an impact assessment before data processing operations.

The EP would ban access to Europol data by OLAF, the EU’s anti-fraud body, and also would impose a ban on processing of data obtained by means which breach human rights. Pre-existing treaties with third states relating to the processing of personal data would have to be renegotiated within five years. The EDPS would have to be consulted before treaties with third States are negotiated. 

While the EP broadly agrees with the Council regarding the derogations from the external transfer rules, it wants to require Europol’s Executive Director to consider the record of the third country concerned before authorising the use of these derogations. The EP also agrees with the Council on a clause regarding notification of a data breach to the EDPS, although its version is more detailed, and the EP also wants a clause on notification of such breaches to the data subject. Finally, the EP wants more detail in the annual report by the EDPS, and proposes more cooperation between the EDPS and national authorities, although it does not support the Council’s idea of creating a Board.

Governance

First of all, as regards Europol’s management board, in accordance with the Common Understanding on EU Agencies, the Commission proposed that it have two representatives, alongside one from each Member State. However, both the EP and Council want to cut this back to one representative (as at present). Moreover, the EP (based on the Common Understanding, which refers to full EP members on agencies’ management boards) proposes to let an observer from its Joint Parliamentary Scrutiny Group (see below) attend meetings of the Management Board. Both the EP and the Council want to drop the proposed clause (based on the Common Understanding) which would require Member States to limit turnover in the Board. 

The EP supports the Commission’s proposal to ‘aim to achieve a balanced representation between men and women’ on the board, but the Council does not. 

Next, the Council and Commission agree that (in accordance with the Common Understanding) members of the Management Board should have standard terms of four years. However, the EP wants their term of office to be set by each Member State.

Furthermore, the Council wants the chair of the Management Board to come (as at present) from one of the three Member States which is jointly holding the Council Presidency, whereas the Commission and the EP reject this. Finally, the EP wants all members of the Management Board to sign a declaration of interests, for such declarations to be published, and for the Commission to have the power to object to draft Management Board decisions on fundamental legal or policy grounds. These proposals are based on the Common Understanding.

Secondly, the Council wants to retain its current powers to appoint Europol’s Executive Director and the Deputy Executive Directors, instead of shifting this power to the Management Board as the Commission proposes, in accordance with the Common Understanding on agencies (the EP agrees with the Commission). But the Council does not want to share this power with the EP.

Thirdly, the Commission proposed the creation of a new Executive Board as part of the management structure. The EP rejects this idea completely, whereas the Council can accept it on condition that the Management Board agrees unanimously to create it, leaving it to the Board (rather than the Regulation) to set out the details.

Finally, the Council wants to curtail the scope of the future reviews of the Regulation, while the EP wants to enhance them to include the provisions on parliamentary accountability. The Commission and EP support the possibility of a future amendment or repeal of the Regulation, while the Council wants to drop this possibility. It should be noted that the Common Understanding refers to the possibility of disbanding an agency.

Parliamentary accountability

Currently, the EP can receive reports on Europol, plays a role as regards the budget, is consulted upon implementing measures and can hold hearings with the Director. Due to concerns about ensuring more effective parliamentary accountability for Europol’s actions, the Commission proposed a number of reforms, in particular sending the EP and national parliaments more reports, and involving the EP more in the process of choosing the (Executive) Director.

In response, the Council insists upon separate references to the EP and national parliaments. It would also delete many of the proposed powers for the EP, in particular dropping the proposed obligation for the Executive Director to report to the EP and the obligation for the candidate to be Executive Director to make a statement before the EP.

Conversely, the EP would enhance the parliamentary role in the Regulation, in particular by creating a Joint Parliamentary Scrutiny Group, which would comprise members of both the EP and national parliaments. In its view, references to the EP in the proposal should be replaced by references to this group. There would also be greater powers for the Joint Parliamentary Scrutiny Group as regards the process of appointing the Executive Director. 

Comments

The EP and the Council agree broadly on the modest extension of Europol powers, including in particular the removal of provisions relating to the European Police College and retaining the current limits on Europol’s powers as regards national authorities, so these will likely be the least controversial issues to negotiate. It is striking that these institutions did not take the opportunity either to reduce the agencies’ costs by means of a merger, or at least to increase their efficiency by means of co-location.

As regards data protection, there are significant differences between the EP and the Council as regards: the broadening or tightening of the grounds for data processing; the details as regards notification of security breaches; the rights of data subjects; the architecture of data protection authorities; and the grounds to refuse a data subject’s requests. Both support some further powers for national authorities.

Two specific points should be highlighted here. First of all, the Council’s suggestion of a general power for Europol to process personal data in order to facilitate information exchange has to be rejected on legal grounds, since this is far too broad and imprecise a legal basis on which to justify the exchange of personal data. The EP has the better approach: if (as all the institutions agree) EU legislation should no longer regulate the details of Europol’s databases and analysis files, there need to be strong and specific data protection principles in the Regulation instead.

Secondly, while both the EP and the Council agree on a general derogation from the external transfer rules for the combating of criminal offences, this exception is likely to become the rule, since combating criminal offences is Europol’s whole raison d’etre.

As for governance and accountability, the main issues are the extent of parliamentary powers, and also the nature of those powers (ie, whether there should be separate or joint roles for the EP and national parliaments). It is striking that the Council is keen to have a joint data protection supervisory body, but not a joint parliamentary body, whereas the EP’s preferences are the other way around.  Remarkably, the Council’s removal of the (Executive) Director’s obligation to report to the EP would actually mean less parliamentary accountability on this point than under the current Decision.

Also, the EP and the Council differ as regards: whether there should be an executive board; the role of Council as compared to the Management Board in appointing the executive director; retaining a special status for the Council Presidency chairing the Management Board; rules on conflict of interest; other aspects of the composition and functioning of the Management Board (term, turnover, gender equality, Commission control, conflict of interests); and the review and possible disbanding of Europol.

On these issues, the Council’s suggestion to go backwards, by eliminating any role for the EP questioning the Executive Director, is simply antedivulian. It flies in the face of the specific reference to parliamentary accountability in the Treaties, given the obvious importance that parliamentary questioning of an agency director can play in ensuring that body’s accountability.

The Council’s attempts to defend the status quo can also be seen in its approach to the appointment of the (Executive) Director and the composition and chairing of the Management Board. The more modern approach of the EP as regards gender equality, declarations of interests, scrutiny by the Commission, and review or disbanding of Europol, should be preferred. Furthermore, accountability surely demands a single parliamentary observer on the Management Board, given that 28 Member States will each have a voting member to advocate their interests.

It is striking that two years after agreeing standard rules on EU agencies, in a bid to forestall future conflicts and difficult negotiations, all three agencies have taken a ‘pick and mix’ approach to the Common Understanding, each selecting certain points that they like from these common principles and rejecting those which they dislike.

Overall, it is clear that the Council’s preference is for Europol to remain an essentially intergovernmental body, with merely another incremental increase in its powers, a modest enhancement of the data protection rules, and no significant change in either its governance or parliamentary accountability. The EP agrees that the increase in its powers should be limited, but is pushing instead for a modernisation of the agency in light of the Treaty of Lisbon and the Common Understanding, as regards stricter data protection rules, reforming its governance, and greater accountability. Time will tell whether the Council will succeed in preserving this intergovernmental dinosaur. 

Is there a right to be a member of a national parliament and the European Parliament simultaneously?

Steve Peers

It was announced last week that Geert Wilders, the head of the Dutch PVV and a newly elected Member of the European Parliament (MEP), would bring legal challenges to assert a right to be an MEP while also continuing to be a member of the Dutch national parliament. Is there such a right?

The starting point is Article 39 of the EU Charter ofFundamental Rights, which provides that every EU citizen ‘has the right to vote and stand as a candidate’ for elections to the European Parliament. If that right were unlimited, then Wilders would of course win his case (assuming, logically enough, that the right to ‘stand’ as a candidate entails a right to sit as an MEP, if elected, as its obvious corollary).

However, most rights in the Charter are not unlimited. Article 52 of the Charter sets out (among other things) the rules on limitations of rights. Article 52(2) specifies that the rights ‘based on’ the EU Treaties ‘shall be exercised under the conditions and within the limits’ of the Treaties. More generally, Article 52(1) specifies that any limits on Charter rights must be provided for by law, not deprive the right of its essence, have a public interest objective and be necessary and proportionate to meet that objective.

The Court of Justice of the European Union (CJEU) has not yet clarified the relationship between Article 52(1) and (2). In the Commentary on the Charter, I suggest that Article 52(2) is lex specialis, with the consequence that the limitations on rights based on the EU Treaties which are set out in EU legislation are prima facie valid, without having to consider the issue any further. As we will see in a moment, that interpretation would instantly decide the Wilders case.  

However, it’s arguable, in the absence of clarification from the CJEU, that those limitations also have to comply with the general rule on limitations on Charter rights set out in Article 52(1). So I will consider that possibility also.

The source of the ban on the ‘dual mandate’ (ie being an MEP and national MP simultaneously) is the 2002 Council Decision which amended the 1976 Decision on elections to the European Parliament (see the consolidated text of the Decision). Article 7(2) of that Decision sets out a rule of incompatibility between being an MEP and a member of a national parliament, as from the 2004 election to the EP. There is a transitional rule for the UK (since expired) and an indefinite special rule for Irish MEPs: they can retain a dual mandate until the next Irish election following their election to the EP.  

According to the explanations to the Charter, which the CJEU constantly relies on to interpret it, Article 52(2) means that rights derived from EU citizenship in particular (such as the Article 39 right) remain subject to the limits and conditions in the Union law in which they are based. So that is the end of Wilders’ argument.  

But what if such conditions also have to meet the conditions set out in Article 52(1)? First of all, the limitation on the dual mandate is obviously ‘prescribed by law’. It doesn’t destroy the essence of the right to stand as an MEP, since there is no requirement to give up a national seat before standing. Nor does it destroy the essence of the corollary right to serve as an MEP once elected, since the person concerned can always do so if he or she is willing to stand down as a national MP.

Does it serve a legitimate public interest? Surely, yes: despite all the derision heaped upon national parliamentarians and MEPs, both jobs are full-time and demanding, and cannot be done simultaneously. In light of that consideration, it’s hard to avoid the conclusion that the limitation is necessary and proportionate.

There is a possible issue of equality though (see Article 20 of the Charter). It is odd that Irish MEPs are subject to a special rule that allows them to hold a dual mandate, potentially for several years. Of course, the principle of equality could equally be satisfied by ruling that the Irish exception is invalid. At most, it would mean that Wilders could hold the dual mandate until the next Dutch elections, not indefinitely.

Admittedly, the Council Decision does not rule out holding other full-time jobs, besides national parliamentarian, EU official or member of a national government (Article 7(1)). Again, though, the principle of equality could equally apply so as to extend to a ban on holding such jobs as well.

What about other sources of law? Any right to hold a dual mandate that might arguably be conferred by the Dutch constitution is irrelevant, due to the supremacy of EU law. The CJEU established last year, in the Melloni judgment, that Article 53 of the Charter, although it refers to national constitutional rights, does not give them priority over EU law when EU law has fully harmonised an issue.  As for the ECHR (referred to in Article 52(3) of the Charter), it has not ruled on the dual mandate issue as regards national parliaments and the European Parliament.

Finally, it should be noted that the above conclusions would apply to any politician, whether I dislike their politics (as in Wilders’ case) or whether I fervently support them. 

Renegotiating the UK’s membership of the EU: Mission Possible?

Steve Peers

Is it feasible to renegotiate the terms of the UK’s membership of the EU? The answer is easier to give following David Cameron's article outlining the 'key' objectives which he would seek from a renegotiation.

The Telegraph journalists broke these objectives down into a list of seven items, so let's examine them one by one.

First, a limit on the movement of people following future EU accesions. This wouldn't need a Treaty amendment, since accession treaties have to be agreed unanimously. However, if the intention is to provide for a possible indefinite delay in free movement, arguably a Treaty amendment would be necessary, since this would entail a permanent exception from a key Treaty rule.

Secondly, no free movement just to claim benefits in another Member State. This is already the status quo, so does not need a Treaty amendment, or even a legislative amendment. But if Cameron actually means that there should be a delay before an EU worker can claim benefits, then a Treaty amendment would be necessary.

Third, enhancing the powers of national parliaments collectively (Cameron doesn't mention strengthening the power of individual national parliaments). This would need an amendment to the relevant Treaty Protocol to be binding. However it would be possible to agree to apply such rules informally. For instance, the Commission could declare that it would always withdraw a proposal that one third of national parliaments were opposed to.

Fourth, a reduction in red tape and increase in free trade. The EU is already engaged in a programme to cut red tape and is currently negotiating a number of free trade agreements. So obviously no Treaty amendment is needed here. But perhaps Cameron wants an opt-out from some or all EU employment law: that would need a Treaty amendment.

Fifth, the Prime Minister wants less EU involvement in police and criminal law. This doesn't need a treaty amendment, since the UK already has an opt-out on individual proposals plus a block opt-out from all pre - Lisbon measures.

However, there is an odd reference to the ECHR in this context. It is unfortunate that Cameron felt a need to appeal to those who cannot tell the EU and the ECHR apart. Obviously the ECHR cannot be changed by an EU treaty amendment. But by 2017 a separate process of reforms to the ECHR will be well underway.

Next, Cameron wants to ensure that power can flow away from the EU. The Treaties already provide that amendments can either reduce or increase EU competence. This could simply be reaffirmed in a declaration.

Finally, he wants to exempt the UK from the EU goal of 'ever closer union'. This would take a Treaty amendment, but would also be possible to address in a declaration.

It is also important to note what Cameron didn't demand: changes to the EU agriculture or fisheries policies or the power to control the total number of EU citizens coming to the UK. Even the demands as regards limits on benefits and opt-outs from social policy are not set out expressly.

Taken as a whole, this is a fairly modest set of proposed changes that could be achieved by means of a limited Treaty amendment, and possibly even by means of political commitments that would not entail Treaty amendments. While other Member States might not want such amendments, in the event of a Conservative majority government after 2015, they would have a choice between agreeing such a limited set of amendments or seeing the departure of a large Member State which is a major net contributor to the EU budget and has a trade deficit with other Member States. Their decision should be obvious.

Barnard & Peers: chapter 2