Hungary puts at risk the Union’s values?

”Such a change among the democratic frameworks that we did today was only done by revolutions before. […] Hungarians today have proved that there is a reason for democracy. […] Hungarians today overthrew a system of oligarchs who used to abuse their power.” The new government will be modest and humble. “ (1)

Two years later, these April 2010 Viktor Orban statements celebrating the Fidesz Party two thirds majority in Parliament following the Hungarian elections, sound now very different as it is the case for the economic forecasts following the 2010 Hungarian elections according to which such an electoral result would had made possible for the Hungarian Forint to recover from the crisis from which it had been barely saved in 2008 by the International Monetary Fund and the European Union.

Now, not only the relations between the EU and the IMF seem to have reached their lowest point (at least judging from the recent interruption of the negotiations with the Hungarian monetary authorities) but even bolder critics are emerging at European level as far as the compatibility of various initiatives of the Orban Government with fundamental rights and respect for democratic principles are concerned.

The situation is so worrying to push Guy Verohfstadt, President of the Liberal Group in the European Parliament to declare that Hungary seems not to fully respect anymore the “values” it subscribed when it joined the European Union, (“values” that the Lisbon Treaty has made even more explicit (2). Hence, according to Verohfstadt the European institutions should trigger the “alert” procedure foreseen by art. 7 par. 1 of the EU Treaty (3).

It is worth noting that such an “alert” procedure may be launched by the European Parliament itself and that it is designed to verify if “.. there is a clear risk of a serious breach“ by a Member State of the founding values of the European Union and, if such a risk exists the Council would be entitled to formally recommend the State who has lost its bearings to come back on the rights track.

Needless to say that such an “alert procedure” is very different from the “nuclear option” laid down in the second paragraph of the article 7 where the Council could even suspend a Member State voting rights if “a serious and persistent breach” of European Values has been ascertained.

Yet the mere fact of evoking the “alert” procedure has already led the European Parliament’s political groups, to position themselves as in previous cases by mirroring the political position present at national level (situation which will make difficult to reach the third majority needed in the European Parliament to vote the request the Council to address formal recommendation to Hungary).(4)

The European Parliament debate on this issue will take place during the January Plenary session in Strasbourg then the competent parliamentary committee could start its work as far as the European Commission has shown that there is ground to proceed and the Conference of Presidents of political groups consider that a formal report should be prepared following the proposal of the ALDE President Verohfstadt.

All that having being said on procedural aspects, it is worth recalling which have been the main concerns raised by the recent Hungarian initiatives.

Pluralism should be Safeguarded in Hungary ….

The first issue is pluralism and freedom of expression which seem far to be adequately protected by the recently adopted Hungarian legislation.
Even during the preparatory phase the European Commission under the pressure of the European Parliament raised strong reservations about the wide powers of the Governement’s appointed “Media Commissioner” which should grant a “balanced” information, failing which very high fines could be imposed to broadcasters operating in the territory of Hungary. Other issues were the heavy burden of formalities required by the broadcaster to be registered, the weak source’s protection for journalists, the rules on defamation, the weak data protection.. These and other aspects have been thoroughly discussed between the Hungarian Minister, the members of the Parliamentary committee and Commissioner Kroes,beginning of 2011, so that the draft legislation under the Commission pressure was partially amended. Therefore the amendments were more of cosmetic nature so that when the law was challenged before the Hungarian Constitutional Court the Judges ruled on 19 December 2011 repealed some of the most controversial rules (such as the rules on the Media Commissioner and the obligation impose to the Journalist to reveal their sources).

But Media pluralism should also be protected in practice and wide reservation have been raised also on the Hungarian administration decision to reassign three radio frequencies, taking one of them from the country’s largest opposition radio station, Klubradio. The European Commission has then decided to verify if the licensing procedures has been objective, transparent, proportionate and above all, non-discriminatory as required by the EU relevant legislation.

… but also in the rest of the EU.

Regrettably Media pluralism is, since years, under threat not only in Hungary but also in other EU countries and the latest events have relaunched in the European Parliament the broader issue of protection of pluralism in the European Union. Since years the European Parliament is pushing for european-wide binding standard to prevent future “incidents” in this domain. This request dates back in 2004 when the Strasbourg Assembly inspired by an Italian Constitutional Court ruling claiming that media pluralism was not granted in the country, requested the Italian authorities to reform the Italian media law (as it later happened with the so called “Gasparri” framework law). By the same token the European Parliament made a comparative overview also in the other 14 Member States and urged the Commission to establish a new legal framework protecting media pluralism in the European Union.

However, the Brussels Executive started working on this issue but with extreme prudence (also due the EU Member States lack of enthusiasm and the strong opposition of the EPP, the main political group in European Parliament which was minoritized on this issue). Moreover legal and institutional problems have, since the beginning, been raised such as the lack, at that time, of a clear legal basis in the Treaties on which to build an EU binding legal framework for media pluralism out of trans border freedom of services .

Of course, the legal situation in 2012 has dramatically improved compared to 2004, since pluralism is now explicitly mentioned between the EU “values” and is moreover outlined in the Article 11 of the EU Charter which is now binding as the Treaties.
Under this perspective “pluralism” should be taken in account not only by the Court of Justice but also by the European legislature no matter of the legislative domain at stake.

So, after the Lisbon Treaty, it could be now theoretically possible to frame an European Union legislative strategy which could protect pluralism through a combination of legal bases connected to each other notably when the issues at stake are of transnational scope (such as the Internet framework).

Under this perspective also the Commission could now build on the Hungarian case to relaunch its works in this domain such as the creation of a working group of several commissioners inside the Commission, the revival of the road-map for pluralism, which already provided, among others, the establishment of an European-wide monitoring system founded on a comparative view of the national legislation (5).

The Hungarian Constitutional reform in the context of a new EU-wide public space.

The second, perhaps even more serious problem, is linked with the constitutional reform entered into force on January 1st, 2012 and by the adoption by the Hungarian Parliament of the thirty implementing “cardinal laws”.

The first European Institution raising doubts on the compatibility of the new Hungarian Constitution with EU values has been the Legal Affairs Committee of the Council of Europe Assembly which asked an organism of renowned constitutional experts (the “Venice Commission”) to analyze the new draft Constitution.
The “Venice Commission” first analysis , submitted also to the European Parliament, identified several legal weakness of the draft text such as:
- the fact that the main sensitive issues were referred to “Cardinal Laws” to be adopted by a two third majority (which will be very hard to obtain in future) so that some essential policies in the cultural, religious, moral, socio-economic or even just financial domains would had been “cemented”;
- the Constitutional Court limited powers in fiscal and budgetary matters (which was interpreted as a sort of Government retaliation to a 2011 Constitutional Court ruling in this domain);
- the lack of a credible protection at constitutional level of judiciary independence;
- the violation of international standards dealing with life imprisonment;
- the relative weakness of fundamental rights protection at constitutional level (even if a reference to the EU Charter has been inserted in the Constitution Text).
The “Venice Commission” analysis evoked also the Constitution preamble reference to the protection of Hungarian minorities outside the national territory. According to the Council of Europe legal experts such a reference could be a possible element of tension in relations with the neighboring Countries (as it has been the case in 2001 during an Hungaro-Romenian dispute concerning the same kind of Hungarian law).

Regrettably these Venice Commission concerns have been confirmed by the text of the controversial Cardinal Laws adopted by the Hungarian Parliament in the following months.

The Hungarian Government strongly supported their compliance with the EU law but the arguments raised didn’t convinced the European Parliament and the European Commission.
The latter has recently taken some formal initiatives such as a letter sent, beginning of 2012, by Mrs Reding, Vice President of the European Commission by which some precise issues have been raised. This was the case of the Hungarian decision to drastically lower the retirement age for high level judges or the lack of true independence the National Data protection. Even stronger reservations have also been raised by the European Commission Barroso as far as the independence of the Hungarian Central Bank is concerned (which appears contrary to the Article 130 of the Treaty provisions (TFEU).

On January 17th the European Commission will assess its final position and announce it not only to the Hungarian government but also to the European Parliament. In the meantime also the Council of Europe Assembly will debate these issues and is more than likely that the Venice Commission will be asked to further elaborate its initial analysis.

The alert procedure under Article. 7 para.1 as an appropriate framework for strengthening the European common public space?

All that having been said it could be interesting to understand the reasons why European Parliament and the Commission follow different paths when confronted to situations where the preservation of European values could be at stake.

While the European Parliament focus its debates on political aspects and try to highlight general positions as it has already done on Media Pluralism in Hungary (see the 10 March 2011 Plenary resolution) the European Commission prefer to avoid the slippery slope of political debates on general concepts like the ones on “European values” which are hardly legally enforceable (7) even if they are essential to preserve a close relation between the members of the same political community.

The Brussels Executive prefer the pre-judicial approach which ultimately rely on the Court of Justice intervention (8). Consistently the Commission focuses its analysis on specific cases of poor implementation/non implementation of the European law (such as the ones listed in the Vice President Reding and President Barroso letters to the Hungarian authorities.

Thus, by so doing, the Commission avoids public confrontation with Member States on symbolic issues but ultimately deprives their citizens of the complementary protection which they can aspire as European citizens.

That having been said it is also true that Member State which are under scrutiny consider that art 7 is a sort of undue inference in their internal political life, a challenge of democratically elected national governments and a violation of the EU Institutions obligation to respect the Member States ‘…national identities, inherent in (their) fundamental structures, political and constitutional ” enshrined in Article. 4 TEU (9).

These kind of arguments are therefore displaced when “alert procedure” is at stake (art. 7.1 TEU) as it more a sort of “moral suasion” than a form of political or legal sanction. Such fears seem excessive, notably in an European Union which by definition act in a framework of “shared competence” as far as they really share the same values and destiny.

That having been said the Commission reluctance against art 7 could be an expression of “political realism” to avoid a defensive position by the State under scrutiny which could harden their positions rather than closing the gap between the EU and the State concerned. This approach is the same taken by the Wise Men Report which in October 8th 2000 drew to an end the so called “Haider’s case”. According to that report the (informal) ostracism declared by fourteen Member States against the fifteenth was “counterproductive”.
To remind the case the 14′ initiative was driven by the fear that the new Austrian Minister Haider of well known xenophobic positions could block, in his capacity of member of the Council of the European Union, the adoption of legislative proposals on non-discrimination, requiring the unanimous vote in the Council (10).

Was the Haider’s case really counterproductive? The Wise Men assessment is contradicted by the fact that during that period it has been possible to adopt in record time (with the Austrian vote) the two first Directives on combating discrimination (Directive 2000/43 and Directive 2000/78) to draw to a positive end the European Convention on the European Charter of Fundamental rights, and, last but not least, there has been a loss of popularity of the Haider Party (FPO) and its consequent exclusion from the Austrian government.

All in all it is probably more appropriate that the European Parliament play the main role in the “alert procedures” because the ultimate objective should be to strengthen a common political space transcending national boundaries and building up ” political families ” and even European political parties as foreseen by the art. 10 of the TEU which has been ratified by all the national Parliaments (11). Following this approach it should not be considered outraging or counterproductive or a crime of high treason the result of mutual evaluation exercise as it daily happens (though with some tension) in many sensitive domains such as in the framework of the Schengen cooperation or in the fight against transnational terrorism, and in an even greater and deeper way for the economic and monetary union.

Should then financial securities treated more seriously than the values ​​of democracy, freedom of expression and human dignity?
The construction of a true European political community and identity require a strong support by the European and national institutions notably at parliamentary level as Parliaments derive their legitimacy by the direct vote of all citizens.

By complying with this view where national and European identity should strengthen each other; inclusiveness is then essential also in the framework of the “alert” procedure which should be conducted with mutual respect by avoiding polemics driven only by the search of some political visibility. This will be the real counterproductive effect for the EU as community of values which should be the everyone’ final objective.

Emilio De Capitani

NOTES

(1) Citations from http://www.euractiv.com/elections/voters-give-revolutionary-victory-hungary-s-centre-right-news-482020 and from http://www.guardian.co.uk/world/2012/jan/08/hungary-unaffordable-mortgages-forint

(2) TEU Article 2 (bold words have been added by the Treaty of Lisbon)
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.

(3) TEU Article 7
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.
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.
3. Where a determination under paragraph 2 has been made, 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 this Treaty shall in any case continue to be binding on that State.
4. The Council, acting by a qualified majority, may decide subsequently to vary or revoke measures taken under paragraph 3 in response to changes in the situation which led to their being imposed.
5. The voting arrangements applying to the European Parliament, the European Council and the Council for the purposes of this Article are laid down in Article 354 of the Treaty on the Functioning of the European Union.

(4) In several cases the EP has evoked the possibility to launch an “alert” procedure according to art. 7 of the TEU starting from 2000 during the parliamentary proceedings dealing with the existence of the “Echelon” global interception network (2000-2001), in 2001 when it condemned notably the violent behavior of the police at the G8 in Genoa, in 2004 in the survey on the respect for pluralism in Europe and particularly in Italy the and in 2006-2007 when examining the alleged use of European countries by the CIA for the transportation and illegal detention of prisoners.
The European Parliament has made reference to art. 7 of the Treaty in other resolutions homophobic or racist behavior or grossly discriminatory (eg in the case of the Roma population) by members of the Governments of member states to initiate the procedure without ordinary because of the difficulty of bringing together the aforementioned two-thirds of the votes.

(5) Following the Annex VII of the Rules of Procedure of the European Parliament, the Committee on Civil Liberties (LIBE) is responsible for the procedure of “alert” (art. 7 p.1) and the Committee on Constitutional Affairs (AFCO ) is responsible in case of sanctions that could deprive the member state the right to vote. Under the Treaty of the European Parliament can ‘take the initiative only if the alert procedure and must still vote with the maggiornaza two-thirds majority representing at least one more member.

(6) Taken from http://www.neurope.eu/article/commission-serious-about-media-pluralism: “The European Commission Is Establishing a Centre for Media Pluralism and Media Freedom in Florence with a € 600.000 grant to the European University Institute’s (EUI), Robert Schuman Centre for Advanced Studies. Starting in December 2011, the center will Develop new ideas on how to Ensure a highly diverse and free media, and work to Enhance the quality of the reflection on media pluralism in Europe. (…) The Centre will carry out four specific activities: Theoretical and Applied Research (working paper series, policy studies, observatory on media pluralism), Debates, Education and Training Activities (academic seminars, summer schools) and dissemination of results and outcomes. “

(7) It is worth noting that if a Member state is subject to art. 7 procedure, its citizens may also ask for asylum to the other Member States (see Protocol 24 on the right for Asylum for nationals of Members States of the EU

(8) Already in a 2003 Communication on the implementation of art. 7 the European Commission outlined the conditions triggering the alert procedure. An indirect reference to art. 7 was also made by the Council at the time of the adoption of the EU Regulation on the fundamental Rights Agency. The Council declared “The Council considers that neither the Treaties nor the Regulation establishing the European Union Agency for Fundamental Rights precludes the possibility for the Council to seek the assistance of the future European Union Agency for Fundamental Rights when deciding to obtain from independent persons a report on the situation in a Member State within the meaning of Article 7 TEU when the Council decides that the conditions of Article 7 TEU are met.”

(9) TEU Article 4
1. In accordance with Article 5, competences not conferred upon the Union in the Treaties remain with the Member States.
2. The Union shall respect the equality of Member States before the Treaties and their national identities, inherent in their fundamental structures, political and constitutional, inclusive of local and regional authorities. It shall respect their essential State functions, including those for ensuring the territorial integrity, maintaining law and order and safeguarding national security. In particular, national security remains the sole responsibility of each Member State.
3. Under the principle of loyal cooperation, the Union and the Member States respect, assist each other in carrying out tasks under the Treaties.
Member States shall take all measures, whether general or particular, to ensure fulfillment of obligations under the Treaties or resulting from the Union Institutions’ acts.
Member States shall facilitate the fulfillment of the Union’s tasks and refrain from any measure which could jeopardize the objectives of the Union.

(10) The legal basis for the anti-discrimination policy require the unanimity (Art. 19 TFEU, former art. 13 of the TEC)

(11) TEU Article 10
1. The functioning of the Union is founded on representative democracy.
2. Citizens are directly represented at Union level in the European Parliament.
The Member States are represented in the European Council by their Heads of State or Government and the Council by their governments, themselves democratically accountable either to their national parliaments, or to their citizens.
3. Every citizen has the right to participate in democratic life. Decisions shall be taken as closely as possible to open and close to its citizens.
4. Political parties at European level contribute to forming European political awareness and to expressing the will of Union citizens.

The European Arrest Warrant was established after the “Tampere European Council of 15-16 October 1999 called on Member States to make the principle of mutual recognition the cornerstone of a true European law-enforcement area.” The EAW replaced the extradition system that was in place and required that “each national judicial authority” recognised requests for the “surrender of a person made by the judicial authority of another Member State” with minimum formalities.

However, Member States are still able to form bilateral or multilateral agreements with other Member States in order to simply or facilitate the process further.

There are also judicial safeguards to EAW. Each Member State may refuse to execute a European arrest warrant if:

• final judgment has already been passed by a Member State upon the requested person in respect of the same offence (ne bis in idem principle);

• the offence is covered by an amnesty in the executing Member State;

• the person concerned may not be held criminally responsible by the executing State owing to his/her age.

In relation to the current case of Julian Assange, refusal to extradite him could take place on the grounds that the motive for the EAW is purely a political one.

The UK has refused extradition in the past on these grounds. These examples are not exhaustive of the qualifying grounds to refuse extradition under an EAW, however, in each case the grounds for refusal have to be given.

The European Arrest Warrant allows for the enhanced ability to pursue justice in the European Union. The EU has progressively decreased its internal borders and facilitated the free movement of European citizens. However it is simultaneously easier for criminals to operate across the Member States . Therefore, in order to give the criminal and law agencies sufficient power, their actions must be coordinated across the EU.

In order to better tackle this challenge of international crime, the EU is progressing toward a single area of justice.

The Amsterdam Treaty officially states that the creation of a common area of freedom, security and justice is an aim of the EU. EU Member States have agreed to “approximate the definition of offences and the level of sanctions for certain type of offences” and ensure “mutual recognition of decisions taken by national judges” . These actions are enabling the EU to be perceived as a specific partner on judicial cooperation in the international scene.

“While developing its activities in those directions, the EU has carefully insisted on ensuring a high protection of individual’s rights which characterise highly demanding democracies. ”

The European Arrest Warrant, a step in the direction of an EU area of justice, has recently been discussed widely in the UK media and at least citizens are becoming aware of the topic. However there are severe, basic misunderstandings in the reports. What is needed now is journalism that is more informed. Criticism and accountability is needed, however, real accountability can only be achieved when the citizens are given the right information to truly understand the EAW. The information is already there; it needs to be coherently and accurately communicated.

Attorney General Eric H. Holder Jr. said that a criminal investigation of WikiLeaks is continuing even after Mr. Assange, a 39-year-old Australian, was released on bail after surrendering to British authorities on 7th December in connection with a case in Sweden in which two women have accused him of rape and other sexual crimes.

In the meantime the Air Force and the Library of Congress have blocked the WikiLeaks website.

The repeated calls for criminal prosecutions to the funder of WikiLeakes raise a whole series of questions related to the most fundamental questions about freedom of expression and about what the public can know about the actions of its own government and therefore its level of accountability.

The recent US hearing on WikiLeaks, “Hearing on the Espionage Act and the Legal and Constitutional Issues Raised by WikiLeaks“, which took place on the 16th December 2010 took into considerations, among others, these issues and will be therefore be the main source used for the following analysis.

The background

As of 3 January 2011, 1,997 individual cables had been released by WikiLeaks, which has planned to publish 251,287 cables, originating from 274 embassies, dating from 28th December 1966 to 28th February 2010.

According to WikiLeaks’ website the cables are divided in:

15, 652 secret

101,748 confidential

133,887 unclassified.

According to Judge Louie Gohmert the release of documents “threatens our national security, our relations with foreign governments, and continued openness from embassy officials and foreign sources”.

However, Mr. Gates while defining the leaks embarrassing, considers that they have had modest consequences for US policy, so far. Also Thomas Blanton pointed out that although most international affairs scholars consider the cables useful, so far nothing in the diplomatic cables compares to the impact on public policy in 2004 from the leak of the Abu Ghraib photographs, of the secret prisons, or the torture memos, or the Pentagon Papers’ contribution to the end of the Vietnam war.

So, although embarrassing, the cables do not represent a clear danger to the US security and, since unpopularity does not represent a crime as House Judiciary Committee Chairman John Conyers jr pointed out, it is not clear what law has been violated by WikiLeaks.

The existing difficulties in finding a shared opinion of what information is indeed sensitive and what is not, have led to the over-classification of material, as several panellists pointed out during the hearing. In particular, Thomas Blanton, Director of the National Security Archive George Washington University, stated that current and former officials estimate that between 50% to 90% of what is classified is either over-classified or should not be classified at all.

This opinion was further re-affirmed by former Governor of New Jersey Tom Kean, who commenting on the Committee on House Judiciary review on the US Government’s most sensitive records about Osama bin Laden and Al-Qaeda after 9/11, observed that 75% of what he read that was classified should not have been so. Finally, President Reagan`s National Security Council secretary Rodney McDaniel estimated in 1991 that only 10% of classification was for “legitimate protection of secrets”.

The over-classification of the U.S. government’s national security information means that thousands of soldiers, analysts and officers need access to huge quantities of classified information and this necessary access makes it impossible to effectively protect truly vital secrets, said Mr John Conyers. Harvard law professor Jack Goldsmith, who served President George W. Bush as head of the Office of Legal Counsel at the Justice Department, stated that: “a root cause of the perception of illegitimacy inside the government that led to leaking is, ironically, excessive government secrecy.” As Potter Stewart asserted “When everything is classified, then nothing is classified, and the system becomes one to be disregarded by the cynical or the careless, and to be manipulated by those intent on self-protection or self-promotion.”(…) The hallmark of a truly effective internal security system would be the maximum possible disclosure (…) secrecy can best be preserved only when credibility is truly maintained.”

Of course, nobody is in favour of leaks that put people at risk. But as Mr Bill Delahunt (who serve on the Foreign Affairs Committee and had the opportunity to chair the committee on oversight) pointed out, currently there is an overwhelming over-classification of material which calls for a review of the classification procedures.

Thus, if a great amount of information which is currently classified should not have been classified in the first place, what is the liability of WikiLeaks and more in general what are the obligations that an individual not employed by the Government has towards the latter to keep its own secrets?

To answer to these questions it might be useful to compare this situation to the client-attorney relation, explained Professor Geoffrey Stone, former dean of the University Chicago Law School: “The client is free to keep matters secret by disclosing them to no one. He is also free to disclose certain matters to his attorney who is under a legal obligation to respect the confidentiality of a client’s disclosures. In this sense, the attorney is sort of like the government employee. If the attorney violates the privilege by revealing the client’s confidences say to a reporter, then the attorney can be punished for doing so. But the newspaper cannot be constitutionally punished for disseminating the information.”

However, the proposed Shield Act would amend the Espionage Act of 1917 to make it a crime for any person knowingly and wilfully to disseminate, in any manner prejudicial to the safety or interest of the United States any classified information (…) concerning the human intelligence activities of the United States or (…) concerning the identity of a classified source or informant” working with the intelligence community of the United States.” The proposed Shield Act might be constitutional as applied to a government employee who “leaks” such classified material, but it is unconstitutional as applied to other individuals who might publish or otherwise disseminate such information.

On the basis of the principle of freedom of expression, which stems from the first amendment of the US constitution states:

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

Furthermore, the Supreme Court in the case Bartnicki v. Vopper, held that when an individual receives information from a source who has obtained it unlawfully, that individual may not be punished for publicly disseminating the information, absent the need of the highest order.

Therefore, the suppression of public speech must be the Government’s last rather than first resort in addressing a potential problem. The Government should demonstrate the existence of a clear and present danger before limiting such a right. If there are other means by which government can prevent or reduce the danger, it must exhaust those before it can even entertain the prospect of suppressing the freedom of speech.

On the contrary, Judge Ghomert was of the opinion that nowadays we are confronted with different tools of mass communication compared to the one that were foreseen when the First amendment was written and therefore the boundaries of free speech should be re-thought, so as to balance this freedom with the Government’s need to protect some information.

However, there are very good reasons for the Government to demonstrate a clear and present danger before reducing the freedom of speech and these reasons do not vary depending on different communication tools:

1) The simple fact that the dissemination of such information might in the words of the proposed Act “in any manner prejudice the interests of the United States,” does not mean that the harm outweighs the benefit of publication, as Chairman Conyers noted. 2) A case by case balancing of harm against benefit would be unwieldy, unpredictable, and impracticable. Clear rules are essential in the realm of free speech. That is why the Government has so much authority to restrict the speech of its own employees, rather than insisting that in every case the government demonstrate that the harm outweighs the benefit.

3) There are great pressures that lead both government officials, and even the public, to overstate the potential harm of publication in times of national anxiety. A strict clear and present danger standard serves as a barrier to protect us against that danger, Mr Conyers concluded.

It is evident that, in order to protect effectively real vital information, the classification system should be put under review. Indeed the leaks underline the weaknesses derived from a system not sufficiently transparent.

By focusing on prosecuting WikiLeaks, not only there is a risk of violating one of the fundamental constitutional freedom, but also there is a clear risk of limiting the right of citizens to hold accountable their own Governments democratically elected.

As Mr Delhaunt put it: “Secrecy is the trademark of totalitarism. To the contrary, transparency and openness is what democracy is about”.

LB

The meeting confirmed the hegemonic and inspiring role that the American administration has towards the European Union when it comes to defining and implementing the European Internal Security Strategy (ISS).

This is true when it come to the synchronisation of the EU’ activities, since the Justice and Home Affairs Council which took place in Toledo in February 2010 adopted the strategy while the US administration approved the Fourth revision of its own internal security strategy.

It is also true in relation to the increasing concurrence of the objectives underpinning it. After all this is not so surprising for two allies which cooperate on a daily basis in all different domains, going from intelligence, money laundering, to the fight against drugs.

Therefore, the European ISS includes the fight against cyber crime, measures aimed at the protection of commercial flights and cargo safety, use of financial personal data and airplanes passengers. These objectives have been recalled by the Commission in its recent Communication entitled “The EU Internal Security Strategy in Action: Five steps towards a more secure Europe”.

The crucial element here is that while these objectives correspond to what the Congress requested, this is not the case for the European Union, where the position of the European Parliament – which should ensure the legislative transposition of some of these objectives- is much more cautious than the one of the Congress. This is even more striking  if one take into consideration the fact that the Congress is considered even more demanding than both the Bush and Obama Administration, for instance, concerning borders control with the creation of an entry-exit system and limits to visa liberalisation.

The opposition of the Strasbourg Assembly to the indiscriminate collection and systematic storage of personal data of millions of air passengers (PNR) for several years is renowned. Especially, because these data includes also those of individuals which are not wanted nor suspects and that, even after the controls, are not considered a danger for the flights safety.

That is why the Council of the European Union adopted the 3^rd December 2010 a negotiation mandate to the Commission which should allow revising in a more restrictive manner the data protection provisions which are provisionally applied on the basis of the EU-USA agreement, since 2007.

It goes without saying that it would be rather naïve to expect the American Administration to welcome such a measure, especially because the new Republican majority in the Congress would interpret it as a lowering down of the guard. Nevertheless, it is also self-evident that the current agreement risks to be rejected by the European Parliament at any moment and this possibility would open a dangerous vacuum, also for the aviation companies.[1]

Rather, it is reasonable to expect a greater willingness from the European Parliament’s side to adopt measures concerning the fight against cyber-crime, one of the USA priority for a long time and recently recalled by the Obama Administration during the last EU-USA summit of 20^th November 2010 in the Joint EU-US Statement. The summit promoted a EU-USA working group in the field of cyber security and cyber criminality, which within a year will present a report on a series of initiatives, such as those discussed in the recent EU-US-NATO summit of the 24^th November. These measures includes among others,

-       the creation of Computer Emergency Response Team (CERTs) in each European country, along the lines of the corresponding American centres, with the support of the European Agency responsible for network security (ENISA)

-       – the implementation of an emergency network

-       The creation of a sort of control room at the European level, as indicated by the Commission in its proposal for an internal security strategy.

These measures should be complemented by legislative measures such as the Proposal for a Directive on attacks against information systems, currently under review by the European Parliament. This measure will probably get inspiration from the Convention on Cyber crime of the Council of Europe, ratified by the United States itself.

However, all these measures, as well as the last ministerial meeting, all share the same unresolved problem related to the different data protection standards existing in the two sides of the Atlantic, namely in relation to public security. On the one hand, in the United States the protection of privacy and personal data is not considered a fundamental right (at most a penumbral right, subordinated to the safeguard of the right of expression foreseen by the first amendment and to the right of residence foreseen by the fourth amendment). On the other hand, in the EU, these rights are recognised as fundamental by art. 8 of the European Convention on Human Rights as well articles 7 and 8 of the Charter of Fundamental Rights.

Indeed, the European Parliament has requested, especially after 9/11 a transatlantic binding agreement in this field. This could eventually take place on the basis of negotiation mandate which the Council conferred to the Commission on the 3^rd December and that Vice-President Reding has already presented to the Parliament.

Theoretically, the US authorities should not oppose it given that the mandate recalls the recommendations made by a common working group which has elaborated a series of common principles. However, the American authorities fear that the new agreement will make more difficult the transfer of data that is already taking place under the EU-USA agreement in the field of judicial cooperation in criminal matters, the agreements with Europol and Eurojust and more importantly the various bilateral agreements negotiated in the last decades between the USA and the EU Member States, in the field of security and fight against crime.[2]

The next months look quite challenging and it will be interesting to follow not only the negotiations but also the tone of the dialogue that will be established between the Congress and the European Parliament, i.e. whether  they will be able to share to a greater extent the perception of a threat and therefore the need to a common answer.

If this will take place, it could be possible to open the way to a Transatlantic Schengen-like space which ahs already been announced in the  EU-US Joint Statement on “Enhancing transatlantic cooperation in the area of Justice, Freedom and Security”

EDC

Established in 2007 as part of the Agency’s founding mandate, RABIT operations have never been used up to now.

Home Affairs Commissioner Cecilia Malmström went to Greece to see the deployment of the 175 EU border guards posted to the Greece-Turkey border and according to Malmström’s spokesman the operation will consist in providing support activities of various nature.

According to Frontex the objective of the RABIT operation deployed in the Greek-Turkish border is to:

“assist Greek border control authorities in securing the land border with Turkey from a heavy influx of irregular migration. This will entail the deployment of 175 specialist border control personnel from 24 European countries for 24 hour joint surveillance of the land border in the area between Orestiada and Alexandroupolis, as well as additional officers at the Border Crossing Point (BCP) at Kipi.

In addition, guest officers will also be stationed at Athens airport and the operation will be supported by Frontex’s Return Coordination Office in Athens with a view to enhancing Greece’s capacity to return irregular migrants found to be staying illegally on EU territory.

Additionally to surveillance and border control, Frontex will provide interviewers to assist in the screening of apprehended migrants to ascertain their nationality and identity, as well as debriefers to gather evidence on the involvement of people smuggling networks and trafficking rings as well as other relevant intelligence on cross border criminal activities.

Therefore Frontex not only will be involved in surveillance but also in intelligence activities, by having access to personal data of individuals, in ways that are not precisely identified.

Human rights concerns

Although during these activities officers deployed are supposed to respect human rights during these operations as required by, inter alia, Articles 18 and 19 of the Charter of Fundamental Rights of the European Union, several doubts have been raised in this regard, especially taking into consideration the fact that officers may carry service weapons.

Amnesty International has addressed important questions to the State Secretary in charge of Migration and Asylum Policy for the Presidency of the Council of the European Union which took place the 8 and 9 November 2010.

These questions refer to:

The kind of training that officers have attended

According to Frontex the officers involved in RABIT operations have a curriculum that includes among others knowledge related to

“the history of EU and Schengen  EU legislation (special focus on Frontex Regulation, RABITs Regulation, Schengen Border Code)  human rights (Charter of Fundamental Rights of the EU, Geneva Convention and New York Protocol, Common European Asylum System) practical policing (intercultural management, practical work on the border).”

It remains to be demonstrated whether the fact that officers have basic notions on the above, represent sufficient guarantee for a full respect of human rights, including the principle of non-refoulement,  while operations are carried out.

The support that Frontex has received from experts in the field of international protection

No information has been provided in relation the support, if any, that Frontex has received from experts in the field of international protection when planning the RABIT operation.

In fact the decision to deploy a RABIT force follows the following procedure, as explained by Frontex:

“The decision on deployment of the Rapid Border Intervention Teams belongs to the Executive Director of Frontex. The final decision is preceded by a number of procedural steps:

a) Request of a Member State.

b) Information about the request from the Executive Director to the Management Board.

c) Assessment of the situation based on Frontex risk analyses and information provided by a Member State. The Executive Director may also send experts to the operational theatre in order to assess the situation.

d) Decision of the Executive Director (no later than five days from the date of the receipt of the request).

e) Communication on the decision to the requesting Member State and the Management Board.

f) If the decision is positive:

1. Preparation of the Operational Plan

2. Selection and composition of the teams to be sent

3. Deployment”

The kind of support that Greece has received in order to set up adequate reception facilities for all individuals whose status must be verified

So far no information has been found with the kind of support that Greece has received in order to set up adequate reception facilities for all individuals whose status must be verified.

The kind of involvement foreseen for humanitarian agencies and

Humanitarian agencies have requested to be involved in several occasions, so as to be able to monitor how Frontex has been carrying out its activities. However, none of these requests have been taken into consideration so far.

The existence of independent monitoring foreseen for these operation

Frontex explains that officers are subject to civil and criminal liability:

“While performing the tasks and exercising the powers, the members of the teams shall comply with Community law and the national law of the host Member State. While performing the tasks and exercising the powers, the members of the teams shall remain subject to the disciplinary measures of their home Member State. Where members of the teams are operating in a host Member State that Member State shall be liable in accordance with its national law for any damage caused by them during their operations.

Where such damage is caused by gross negligence or willful misconduct, the host Member State may approach the home Member State in order to have any sums it has paid to the victims or persons entitled on their behalf reimbursed by the home Member State.

Without prejudice to the exercise of its rights vis‐à‐vis third parties, each Member State shall waive all its claims against the host Member State or any other Member State for any damage it has sustained, except in cases of gross negligence or willful misconduct. (…) ”

However, Frontex has provided no information related to whether it has foreseen any measure to carry out an effective, constant and independent monitoring of the RABIT operation.

These questions are of utmost importance given the difficulties that third country nationals have to face in accessing refugee protection in Greece and the JHA Council that takes place on Monday 8 and Tuesday 9 November represents the appropriate forum to discuss such issues, especially because one of the point of the agenda concern s the development of the Common European Asylum System (CEAS), whose principles seems to be put increasingly under question by also but not only the Greek case.

This follows the European Commission’s proposal on 13 July 2010 for a directive on seasonal employment which has the aim of “establishing a common procedure for entry and residence in the EU and defines the rights of seasonal workers from third-countries“ .

According to the Commission the proposed directive concerns non-EU citizens coming to an EU Member State for the purposes of seasonal employment on EU territory. The work will be carried out during one or more fixed-term work contracts concluded directly between the non-EU worker and the employer established in a Member State. The proposal introduces a special procedure for the entry and residence of third-country seasonal workers and “sets out fair and transparent rules for entry and residence while, at the same time, it provides for incentives and safeguards to prevent a temporary stay from becoming permanent“. 

The only other existing provision in this area is the 1994 Council Resolution ‘on limitations on admission of third country nationals to the territory of the Member States for employment’.

Within the Council, Ministers have held a first exchange of views which resulted in “several ministers recalling the right of Member States to determine the number of third-country nationals to be admitted to their territories.  In this context, they pointed out that the impact on national labour markets should be taken into account. Several ministers also highlighted the need for greater flexibility, for example with reference to the proposed duration of stay or the time limits in which applicants must be given a decision. In the case of seasonal employment, a number of member states mentioned that a choice should be given on whether accepted third-country nationals would receive residence permits, as proposed by the Commission, or long-term visas.

Another issue highlighted by several ministers was the question whether the rights accorded to third-country nationals should be equivalent to those enjoyed by nationals of the host member states, in particular with regard to social security benefits. Other delegations questioned whether the proposal on seasonal workers was in line with the principle of subsidiarity.” (Quote taken from: http://www.europarl.europa.eu/oeil/file.jsp?id=5865532)

The Anti-Counterfeiting Trade Agreement (ACTA) began in Geneva two years ago. It is a plurilateral trade agreement aimed at establishing international standards on intellectual property rights so as to  assist those that are part of the agreement to fight against counterfighting and piracy.

It will include:

- state-of-the-art provisions on the enforcement of intellectual property rights (including provisions on civil, criminal, and border enforcement measures)

- cooperation mechanisms among ACTA Parties and

- establishment of best practices for effective Intellectual Property Rights enforcement.

The reason why ACTA has not been negotiated under the framework of the World Intellectual Property Organisation (WIPO) is related to the impossibility to find an agreement between all the members of WIPO. The last round of negotiations included: Mexico, Australia, Canada, the European Union (represented by the European Commission), Spain, an unnamed EU member state, Japan, Korea, Morocco, New Zealand, Singapore, Switzerland and the United States.

Acta has raised several criticisms (see previous post in this blog) concerning both its content and the secretative approach with which negotiations were held as the  consolidated text of 2^nd October shows:

The scope

An unresolved issue refers to the  scope of the agreement, for instance, in relation to border measures (see italics underlined part).

“ARTICLE 2.X: SCOPE OF THE BORDER MEASURES

In providing, as appropriate, and consistent with a Party’s domestic system of IPR protection and without prejudice to the requirements of the TRIPS Agreement, for effective border enforcement of intellectual property rights, a Party should do so in a manner that does not discriminate unreasonably between intellectual property rights and that avoids the creation of barriers to legitimate trade.

(…)

ARTICLE 2.X: BORDER MEASURES

1.

Each Party shall provide procedures for import and export shipments:

(a)            by which customs authorities may act upon their own initiative, to suspend the release of suspect goods; and

(b)            where appropriate by which right holders may request the competent authorities to suspend the release of suspect goods.

where appropriate,

2. situations where the goods are under Customs control:

Each Party may provide procedures for suspect goods in transit or in other

(a)            by which customs authorities may act upon their own initiative, to suspend the release of, or to detain, suspect goods; and

(b)            where appropriate, by which right holders may request the competent authorities to suspend the release of, or to detain, suspect goods.”

The inclusion of patents in enforcement measures at the border is one of the main concerns of civil society. This is particularly worrisome when it comes to public health border-enforcement measures related to patents within the European Union, which resulted in several stopped shipments of legitimate generic medicines in 2008. Although there are,provisions in the ACTA text addressing goods in transit within the border measures section, parties are still engaged in consultations on this issue.

Another controversial aspect is in the first paragraph under border measures,which refers to the product names associated with a particular place or characteristics. The compromise texts sets out a “certain principle” that signatories to ACTA must respect when putting into place enforcement mechanisms, but leaves open flexibilities for each member’s individual implementation. While some parties wants to include GIs, others think that ACTA should focus on issues of trademarks, counterfeiting and piracy.

On criminal enforcement, private acts of infringement will be excluded. Third-party liability has been removed from “Section 5: Enforcement of Intellectual Property Rights in the Digital Environment”. In this respect, third-party liability was a concern for internet freedom advocates . Several discussions surrounded the issue of the “three- strikes” legislation, which however is not included in the text.

Despite these aspects, technological protection measures remain in the digital section:

“Section 5: Enforcement of Intellectual Property Rights in the Digital Environment

ARTICLE 2.18: ENFORCEMENT IN THE DIGITAL ENVIRONMENT

1.            Each Party shall ensure that enforcement procedures, to the extent set forth in the civil and criminal enforcement sections of this Agreement, are available under its law so as to permit effective action against an act of intellectual property rights infringement which takes place in the digital environment, including expeditious remedies to prevent infringement and remedies which constitute a deterrent to further infringement.

2.            Each Party’s enforcement procedures shall apply to infringement of at least trademark and copyright or related rights over digital networks, including the unlawful use of means of widespread distribution for infringing purposes . These procedures shall be implemented in a manner that avoids the creation of barriers to legitimate activity,

including electronic commerce, and, consistent with each Party’s law, preserves fundamental principles such as freedom of expression, fair process, and privacy.13

3.            Each Party shall endeavor to promote cooperative efforts within the business community to effectively address at least trademark and copyright or related rights infringement while preserving legitimate competition and consistent with each Party’s law, preserving fundamental principles such as freedom of expression, fair process, and privacy.

4.            Each Party may provide, in accordance with its laws and regulations, its competent authorities with the authority to order an online service provider to disclose expeditiously to a right holder information sufficient to identify a subscriber whose account was allegedly used for infringement, where that right holder has filed a legally sufficient claim of infringement of at least trademark and copyrights or related rights and where such information is being sought for the purpose of protecting or enforcing at least the right holder’s trademark and copyright or related rights. These procedures shall be implemented in a manner that avoids the creation of barriers to legitimate activity, including electronic commerce, and, consistent with each Party’s law, preserves fundamental principles such as freedom of expression, fair process, and privacy.”

It is unclear what the procedure will be for resolving final outstanding issues (the one in italics, underlined and bold)..

The European Parliament has repeatedly reported the danger of having an anti-counterfeiting laws that endanger citizens’ fundamental freedoms (see Resolution of the European Parliament). Once MEPs learned that negotiations on the controversial agreement ended without their consent in Tokyo on Saturday (2 October), they called on the Commission to explain the matter at the earliest.

Besides the content of the agreement, the European Parliament has also criticised the Commission for not keeping it informed during the negotiations and for having denied access to ACTA documents.

For all these reasons Members of the European Parliament have asked the Commission to halt ACTA and have warned they will not give the agreement their approval, replicating the SWIFT case which took place at the beginning of the year.

While waiting for the next developments,  another post will therefore focus on the relation between governance and transparency.

LB

(to be continued)

Since then, there has been steady progress through Tampere and the Hague programme (2004), which have in turn been complimented by initiatives on practical cooperation and solidarity as well as the external dimension of CEAS. More recently, the Stockholm Programme (2009) has provided another opportunity for Member States to yet again declare their commitment to CEAS by 2012.

CEAS will include two crucial elements. Firstly, by joining the system, Member States will accept a higher standard of harmonisation across the EU with respect to the adherence and proper application of the human right to seek asylum. In order to realise this, amendments are needed to three key EU asylum directives, namely the directive dealing with reception conditions, the directive which deals with asylum procedures and finally amendments would be needed to the directive dealing with “standards for qualification as refugees or persons needing international protection”. 

Secondly, through CEAS, Members States will also ensure that certain procedures are consistently implemented which will have the aim of eliminating the chances of abuse of the system, no matter where the request for asylum is submitted in the European Union. This can be achieved, for example, through the recently established Common Asylum Support Office. As stated by the Swedish Minister for Migration, Tobias Billström, the Support Office could “contribute to the harmonization process” but also “facilitate the work of the national authorities” and “play a vital role in enhancing capacity building in both the short and the long run”.

The overall attitude and political commitments made are positive. The most recent results of this positive attitude would be the entry into force of the Lisbon Treaty and the adoption of the Stockholm Programme by the European Council in December 2009, which established the political priorities in the area of freedom security and justice for the period 2010 to 2014.

The Lisbon Treaty provides a mandate for the European Union to have a fully fledged policy in this domain by establishing a common European policy on asylum, which is to go further than the current cooperation between Member States. Furthermore, the Treaty also establishes subsidiary protection and temporary protection when needed (and when the conditions for granting asylum are not met), as well as offering appropriate status to any third country national not requiring international protection. These indications in the Stockholm Programme foresee a better quality of the asylum decision-making process across the Member States in order to close the protection gap in Europe.

However, to adopt these measures a qualified majority of the Member States is needed and the continued reluctance of some Member States cannot be ignored, notably of the states concerned about the economic impact of these reforms.

These concerns have to be taken into account and policy solutions found in order to ensure that the integrity of CEAS is not jeopardised, such as the potential situation of various Member States continuing, in practice, to implement different rules to asylum seekers though a common standard has been agreed upon.

One, albeit pragmatic strategy, could be to accept the inevitable result that each best practice will not be followed and therefore elevate some principles and make them sacred. Some of these principles could include the Commission’s proposals on detention. However, it is first necessary to establish that it is to be principles that are elevated and not a detailed list, as is currently trying to be agreed upon and has reached deadlock.

In order to complete the ongoing construction of the Common European Asylum System, six legislative proposals have to be negotiated with the European Parliament.

These proposals are:

- the Long Term Residents Directive (rapporteur Claude Moraes),

- the Dublin II Regulation (rapporteur Cecilia Wikström),

- the Eurodac Regulation (rapporteur Monica Macovei),

- the Reception Conditions (rapporteur Antonio Masip Hidalgo),

- the Qualification Directive (rapporteur Jean Lambert),

- and finally the Asylum Procedures Directive (rapporteur Sylvie Guillaume). 

Focusing on the Long Term Residents Directive, in June 2007, the Commission proposed the extension of the scope of the Directive to include beneficiaries of international protection. At the time, there was no unanimity in Council; however, with the entry into force of the Treaty of Lisbon, unanimity is no longer required for proposals dealing with legal migration and it could therefore be adopted by the Council at qualified majority.

With regards to Dublin II and the Eurodac Regulations, recast proposals were presented in December 2008 with the aim of increasing efficiency of asylum cases and offering better guarantees and legal protection to asylum seekers. In May 2009, the European Parliament proposed various amendments to these proposals in ‘first reading’. Discussions are now ongoing in Council, and though they advanced considerably, there are still serious issues that have to be resolved before the proposals can come back to the Parliament for a second reading and ultimately the adoption of the final text. The blocking issues are the definition of family members, provisions on detention and finally the necessity of a mechanism for the temporary suspension of transfers of asylum seekers to the first country of entry in the EU territory. The Belgian Council Presidency believes that the inclusion of a solidarity mechanism in the Dublin Regulation for Member States that are committed to fully implementing the EU asylum acquis, will be needed.

Whilst for Eurodac (the system collecting asylum seekers fingerprints), the blocking issue is that of the access to this data by law enforcement services. As Eurodac is not a security related measure, such a move will modify the original purpose and have an impact on data protection. This is an issue that is incredibly controversial as the European Parliament could consider it a dangerous precedent which provides law enforcement services access to systems that have been conceived for other purposes.

In order to resolve the various issues that are present in all proposals and to enable the conclusion of the negotiations, the institutions have taken various practical steps.

Recently for example, the LIBE Committee of the European Parliament set up an internal working group on asylum made up of the rapporteurs and shadow rapporteurs involved in the asylum dossiers to ensure a common strategy to treat the asylum “package”.

Furthermore, the Council Presidency intends to preserve a politically coherent approach. In fact at the last JHA informal Council meeting on 15 and 16 July this year, the Belgian Council Presidency showed a real awareness of the urgent need to advance rapidly on the legislative proposals in order for CEAS to be established by 2012, a deadline set by the Stockholm Programme (though it is becoming increasingly evident that such a deadline looks too ambitious). Taking into consideration the current political majorities between Member States to date, the Presidency will firstly focus on some pieces of the “package” such as the Long-Term Directive, Dublin II, Eurodac and the Qualification Directive as these proposals that can be viably achieved in the short-term.

Regrettably, the “reception conditions” and “asylum procedures” draft directives are seen as long-term issues with no solution foreseen in the short-term. This is due to the challenge of striking a balance between high protection standards on the one hand and the “efficiency” of the asylum system on the other; no small issue to contend with and certainly not one to which a solution is foreseen in the short-term.

Regardless of the timetable however, progress needs to be made in all proposals.

An opportunity to advance on the proposals will present itself at the Ministerial Asylum Conference on “Quality and Efficiency in the Asylum Process on 13-14 September”. Here contributions will be made by a large range of stakeholders, including the EU institutions and the Member States which should work together in order to resolve the issues that are blocking many of the proposals and be consistent with the engagements taken with the Lisbon Treaty and the Stockholm Programme.

The overall aim of a Common European Asylum System needs to be achieved urgently. Asylum seekers should be treated in an equal and fair way across all the EU Member States and not risk losing their rights depending on which Member State they so happen to land in. Furthermore, EU Member States need to work together to ensure that the system itself is not open to abuse.

Needless to say, the effects of harmonisation of this kind do not just stop at the issue of asylum, rather, this level of harmonisation feeds into the bigger issue of international relations and the image of the EU. If the European Union wishes to retain its status as the “protector” of human rights, as stated by Mr. António Guterres, the UN Commissioner for Refugees, then CEAS is an opportunity to strengthen the realisation of human rights, achieve a truly common European standard in the framework of the Geneva Convention and it can also contribute to the EU as a whole becoming a more harmonised and credible international player, rather than the clumsy one that it currently is.

Clearly, it is not technically appropriate to talk about state secrets in the case of the European Union, since the latter remains an international organisation entrusted by its Member States to intervene only in those areas established by the founding treaties and to pursue those objectives established by the funding treaties (3). Nevertheless, the European order now spans such a wide range of competences and has developed such a direct relation between citizens and the institutions that the need for transparency and political accountability is as essential for the European Union as it is for its Member States.

As long as the institutions’ work was covered by professional secrecy, there was minimal risk of leaks and any undesirable impact at the national level during the negotiating phases of European measures. Problems related to a different perception of transparency/secrecy were paradoxically raised with the process of democratisation of the European institutions which, due to Maastricht, has been accompanied with the widening of competences. Additionally, and more importantly, the Amsterdam Treaty ensured that the right of access to documents of the Parliament, Council and Commission (art. 255 TEC) was recognised as a fundamental right of European citizens (and of those legally residing in the EU).

In theory, a fundamental right can only be limited by law (4), but the institutional framework resulting from the implementing measures of article 255 ( EC Regulation 1049/01) is a long way from defining a coherent regime of this sensitive topic. To obtain such a result it would have been necessary to mediate between two different juridical traditions which divided (and still divide) some countries; indeed, Northern Europe is traditionally more favourable to transparency needs whereas some southern countries prioritise the efficiency of the decision making process ahead of transparency (5).

This unresolved conflict is reflected in Regulation 1049/01, which regulates for two different regimes, respectively one of a general nature and one of a specific nature. The general one establishes transparency and the right of access to information as the general rule to which it is possible to derogate only under the provisions established by art. 4. Furthermore, it stems from the will of the author who submitted the document to the institution (whether that be another institution, a Member State or a third party). The ratio behind the suppression of the “author rule” as confirmed by the Court (6), is evidently that of avoiding that additional exceptions are added to those already foreseen by law (7), which would have the effect of nullifying the answer to the citizen requesting the access to a document or information (and therefore being incompatible with the principle of certainty of law).

Nonetheless, the general rule of Regulation 1049/01 also presents a significant exception to article 9 (8), which establishes a specific regime for the so-called “sensitive documents” defined as “… documents originating from the institutions or the agencies established by them, from Member States, third countries or International Organisations, classified as ‘TRÈS SECRET/TOP SECRET’, ‘SECRET’ or ‘CONFIDENTIEL’ (9) in accordance with the rules of the institution concerned, which protect essential interests of the European Union or of one or more of its Member States in the areas covered by Article 4(1)(a), notably public security, defence and military matters.

The regime established in Article 9 is evidently a “lex specialis”, which is only applicable to the external affairs and defence matters (the former “second pillar “). However, it is also an incomplete regime because Regulation 1049/01 does not specify (as foreseen in art. 255 TEC which now is replaced by art. 15 TFEU) the general principles regarding the classification of “sensitive” documents. Although the legislator has abdicated its role and referred the decision to the institutions internal regulations, defining such a rule is not a mere organisational matter.

The official justification for this attempt at a ‘quick-fix’ in 2001 was related to the approaching deadline for the approval of the regulation, as foreseen by the Treaty. The real reason, however, was the impossibility to reach an agreement between the European Parliament and the Council over the adoption of NATO standards at the European level.

Due to article 9 and the fact that that it refers to the internal regulation of the institutions, some measures were introduced through the back door, since the internal regulations of the Council and the Commission (11) were accompanied by the need to have the author’s consent when classifying the document as “sensitive”(12).

In this way, not only have NATO standards become de facto the standards of reference for EU classified information (13), although (for the moment) limited to external and defence matters, but it also re-establishes the pre-Maastricht regime for EU citizens and institutions such as the European Parliament and the Court of Justice. Indeed, these actors cannot refer to the “right” of access to information, because the holding institution can always oppose it in the name of non compatibility with NATO standards of internal security regulations (14) or more simply, because the member state or third party (author or co-author) of the classified document does not give its consent to the transmission of the document.

The result is the existence of a conspicuous number of agreements between on one side the Council and the Commission, and the other side third countries, concluded on the basis of an unstable institutional framework (15). Recently, the same agreements have also been concluded by EU agencies such as Europol, Eurojust or Frontex (and therefore outside of the so-called second pillar), on the basis of which the institution and/or the agency (although negotiating on behalf of the European Union) (16) accept that the third country may oppose access to information to EU citizens and even the Parliament and Court.

It is therefore legitimate to wonder about the extent to which this situation is compatible with a European order, allegedly based on the principle of representative democracy (17), fundamental rights and citizenship (18), especially following the entry into force of the Treaty of Lisbon. The issue becomes even more urgent in view of the passage to the ordinary legislative regime and to the (almost) total control of the Court of sensitive matters such as police, internal security and intelligence cooperation (which are increasingly labelled as classified information).

Without effective transparency, risks of abuse or “policy laundering” become too high. This risk is also linked to the reproduction of unwanted situations where information in the field of defence and external affairs (Chapter 2 of the EU Treaty) are kept hidden, not only from the European Parliament for the reasons illustrated above, but also form the national parliaments as the information is regarded as a “European” secret. In this context, the national parliaments arguably receive the same level of access as a third country.

Therefore, the result would be the complete absence of a counterbalance mechanism which should characterise every democratic system and which would be strengthened by these security and defence policies under the formal coverage of European “executive privilege”, which not even the President of the United States of America has ever dreamt.

Luckily, the situation is less worrisome in other parts of the treaties, for example where it is established that the European Parliament must ratify international agreements. In this case, the same Treaty foresees that the Parliament “shall be immediately and fully informed at all stages of the procedure” (art. 218 par. 10 TFEU). This should effectively prohibit the Commission (negotiating the agreements) and the Council (concluding the agreements) from being able to make excuses in order to not reveal all the information.

Indeed, the European Parliament has made reference to these provisions throughout the negotiations on SWIFT, ACTA and the access of the EU to the European Convention on Human Rights. This initiative raised disconcert from the Council and Commission, who obviously realise how difficult it is to maintain two different regimes in the field of classified information depending on whether the negations of the agreements are conducted on the basis of Article 218 TFEU or on the basis of the competences in the field of security and defense (which are based on Article. 9 of Regulation 1049/01 and/or the internal organisation competence of the Council, Commission and security agencies). If in theory it is possible, although difficult, to differentiate between these two agreements at the European level, it turns into a “probation diabolica” to explain  to a third country why matters such as  the fight against terrorism may sometimes refer to an ordinary regime (article 218 TFEU) or to an extraordinary regime (art. 9 1049/01)

The process of re-negotiating the inter-institutional agreements concerning the European Parliament’s access to classified information is ongoing. A first draft agreement will be reviewed by the Committee on Constitutional Affairs of the European Parliament and a second one will take place between the European Parliament and the Council to modify the 2002 agreement applying Regulation 1049/01 (20).

The problem is that some expression of this agreement (not ratified yet) seem to extend the preventive consent to de-classify the document given by the author from the exceptions of defence and security issues to all the matters of competences of the European Union. Such an iron grip would put the European Parliament in a position leading to its abdication  (21) of the right/duty to exercise the democratic control foreseen by the treaty.

However, the issue remains undefined and contradicting signals are coming from the High Representative. This is important as the High Representative is about to adopt a declaration accompanying the decision which establishes the organisation and functioning of the European external service which “ (…) will be applied mutatis mutandis by the High Representative for agreements falling under her area of responsibility, where the consent of the Parliament is required. The European Parliament will be, in accordance with Article 218 (10) TFEU, immediately and fully informed at all stages of the procedure, including for agreements concluded in the area of CFSP.”

It remains to be seen whether the European institutions will be able to finally overcome the long-lasting inconsistencies of the Regulation 1049/01 by establishing a European matter also in the field of the state secrets or whether, by carrying on the current, judicially confusing paths, once again the task of clarification will be left to the Court.

EDC

NOTE

(1) See the fundamental investigation of the Washington Post on the possible abuses of the documents’ classification from the USA administration since 9/11.

(2) See the current debate at the COPASIR concerning the revision of the Italian law on the “services” and the treatment of the state secret (L. 124/2007)

(3) Concept reaffirmed by the German Constitutional Court in several occasions (including 2009 with the famous Lisbon Urteil) the Union cannot gives itself different or wider competences than those granted by the Member State.

(4) As foreseen by the Member States’ constitutions and by the ECHR.

(5) This is an expression also used by article 207 of the “old” EC Treaty but that the Council has always interpreted as the conditions that allow the representatives of the Member States to change their negotiating positions in complete discretion according to circumstantial needs)

(6) This principle has been reaffirmed also recently by the Court of Justice

Case C‑64/05 P Kingdom of Sweden vs Commission of the European Communities (see: http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:62005J0064:EN:HTML )

(7) In the case of a member State it could be requested to see applied its own national regime and in the case of a third country needs

(8See:  http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2001:145:0043:0048:IT:PDF

(9) Strangely enough the Italian version of the Regulation 1049/01 only refers to the category of the “confidential” documents.

(10) It is “…public interest safeguards, namely:— public order, — safeguard of military matters — International relations, — financial, monetary or economy policy  of the Community or Member states

(11)See Council decision 2001/264/CE  19  march 2001 adopting internal security regulation OJ n°101,  11.04.2001 modified following the entry into force of the Lisbon treaty.

(12) The “considering” 15 of the regulation invited the Member states to respect in the name of the principle of loyal cooperation the classifications established by the European institutions so as to avoid leaks related to National security matters “ Even though it is neither the object nor the effect of this Regulation to amend national legislation on access to documents, it is nevertheless clear that, by virtue of the principle of loyal cooperation which governs relations between the institutions and the Member States, Member States should take care not to hamper the proper application of this Regulation and should respect the security rules of the institutions.

(13) European Classified Information  (EUCI)

(14) For obvious reasons and given the peculiar nature and constitutional mission of the European Parliament or the court of Justice.

(15) See as a last example the agreement between the EU and Liechtenstein concerning the security procedures for the Exchange of classified information http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2010:187:0002:0004:EN:PDF

(16) Art. 3 of the above mentioned agreement establishes that  “the European Council, the Council of the European Union (hereinafter referred to as ‘the Council’), the General Secretariat of the Council, the High Representative of the Union for Foreign Affairs and Security Policy, the European External Action Service (hereinafter: ‘the EEAS’) and the European Commission. For the purposes of this Agreement, these institutions and entities shall be referred to as ‘the EU»

(17) Artt. 9-12 of the TEU in specific art. 10

(18) Artt.18-24 TFEU

(19). See for example the regime for the treatment of classified information foreseen by the Decision of the Council establishing Europol http://eur-lex.europa.eu/JOHtml.do?uri=OJ:L:2009:121:SOM:EN:HTML and the implementing measures concerning the exchange of information with third countries: http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2009:325:0006:0011:EN:PDF. These provisions, which entered into force in January 2010 should be interested on the basis of the regime before the entry into force of the Lisbon Treaty in virtue of the transitory provisions foreseen by protocol  n° 36.

(20) The text of the inter-institutional agreement EP-Council is available at:  http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:C:2002:298:0001:0003:EN:PDF

(21) Obviously it would be only a de fact abdication given that the inter-institutional agreement cannot modify a juridical situation defined by a treaty. However, the signal is worrying as much as the stall of the revision of Regulation 1049/01 and the juridical vacuum under which the EU institutions (and agencies) are now operating, since they should have defined their own norms in the field of transparency/confidentiality on the basis of principles that still need to be defined after Lisbon.

(22) See in specific the declaration f the high represntative:http://register.consilium.europa.eu/pdf/it/10/st12/st12401-ad01.it10.pdf ) “.. The results of the ongoing negotiations on the Framework Agreement between the European Parliament and the Commission on negotiations of international agreements will be applied mutatis mutandis by the HR for agreements falling under her area of responsibility, where the consent of the Parliament is required. The European Parliament will be, in accordance with Article 218 (10) TFEU, immediately and fully informed at all stages of the procedure, including for agreements concluded in the area of CFSP.. (…) 4. The present system of providing confidential information on CSDP missions and operations (through the IIA 2002 ESDP EP Special Committee) will be continued. The HR can also provide access to other documents in the CFSP area on a need to know basis to other MEPs, who, for classified documents, are duly security cleared in accordance with applicable rules, where such access is required for the exercise of their institutional function on the request of the AFET Chair, and, if needed, the EP President. The HR will, in this context, review and where necessary propose to adjust the existing provisions on access for Members of European Parliament to classified documents and information in the field of security and defence policy (2002 IIA ESDP). Pending this adjustment, the HR will decide on transitional measures that she deems necessary to grant duly designated and notified MEPs exercising an institutional function easier access to the above information..”