Category: Article

Nationalism and the European project

Nikolay Domanov

LLM, MA in International Relations, Sofia University; Post-Graduate Diploma candidate in EU Competition Law, King’s College London
 

An idea with tremendous potential, a clear vision and huge emotional discharge emerged six decades ago in Europe – the creation of a Union which can bring piece and prosperity to the peoples of Europe. Unfortunately, 60 years later, this idea has yet to be accomplished.

European integration was conceived mainly as a continuous process. Communities were created not to solidify the status quo, but to create the foundations for the future development of the Continent and for the achievement of specific objectives; at first, economic, and, later, political.

For almost any political analyst it is clear that the EU needs further reforms, a much stronger economy, needs to protect its own integrity. However, the primary question that remains is: what does the EU actually need protection from? The answer appears to be it needs protection from itself. In the current economic environment it became clearer than ever that, in fact, it is the Union’s economy and the unity of its enduring diversity that are in deep crisis.

The global economic crisis set a special course for the whole European project. The current economic problems of the European citizens increased their skepticism of a unified European Union. This has resulted in yet another crisis of confidence in the European institutions, the increase of democratic deficit and the revival of concern over nationalism in Europe.

Under the Lisbon Treaty the EU was supposed to be politically and, thus, economically stronger. Indeed, the Lisbon Treaty is a good starting point as well as an inevitable phase in the integration process. According to its provisions, EU institutions enjoy greater powers: the European Council became grounded as a formal institution[1]; the European Parliament expands its powers[2] in terms of law making, scrutiny, budget, constitutional and foreign affairs; the meetings of the Council of Ministers, when it passes law, shall be public[3]; the Community method is now extended into the area of freedom, security and justice[4]; and the Charter of Fundamental Rights has become legally binding[5].

However, despite all these new provisions, it seems that recently the gap between the so-called “eurosceptics” and the “eurooptimists” has grown even bigger. It was ironic that it was the negative outcome of French and Dutch referendums on the draft Constitution of Europe that held back the Union’s integration aimed to overcome exactly those emerging nationalist ideas. And it shall be made clear that the EU needs further reform, mainly due to the fact that in many ways the present system is opaque and exhausted. This, however, means that the Lisbon Treaty lacks the potential needed to meet all of the current requirements raised by the ongoing social, economic and political events.

In these extraordinary times, instead of speeding the integration process Western democracies worried about their own future have felt the need to slow down Integration by introducing questionable mechanisms jeopardising EU fundamental freedoms.

Genuinely worried by the “Polish plumber”[6], and later by the cheap labour force coming from ethnic minority workers (mainly from Eastern Europe), the old EU Member States have felt the need to firstly limit access to their labour markets secondly to their systems of social insurance, and finally to their borders. The recent requests for partial reintroduction of border control within the Schengen area again raised the issue of how fragile the Union is. Moreover, this threat was not a minor one but against one of the fundamental freedoms and ultimate goal of the Union: the free movement of people and goods.

Following the Greek debt distress, the expulsion of Roma from France, the refugee waves to Italy and even the creation of a double standard in the attempts of Bulgaria and Romania to join the Schengen area, everyone in Europe realised that the European integration model is in deep crisis. And this crisis goes far beyond the democratic deficit against which the European bureaucrats felt very comfortable to fight. As a result, four critical areas in EU policy have been recognised: the massive migration flows from the periphery to the centre of the Union, the loss of national sovereignty and identity, Islamization and the problems with the Roma minority.

In this complex socio-political climate of economic shortages, the far right political ideas seem to have become a gathering point for many. The social contract upon which the EU was founded has been weakened by the ongoing economic crisis, and this led to the emergence of various nationalist parties across Europe, which have been trying to promote their own understanding of national identity and thus endangering the European project.

According to different analysis, nationalists’ concerns in the East and in the West are quite different. In Eastern Europe, on one hand, the main issue is believed to be the presence of ethnic minorities, especially Roma, and the negative consequences of their cheap labour. The Western world, on the other, seems to have created a bias against certain religions given the terrorist attacks that have occurred in the last century. As a result many nationalist parties claim that the foundations of Europe lie within Christianity only and thus other religions’ traditions and beliefs are said to be incompatible with the ‘European idea’.

Nationalist parties claim that the excessive granting of various rights to minority groups is actually incompatible with the principles of the ‘welfare state’ and it destroys its foundations. ‘Sweden Democrats’, for instance, claim that the welfare state is at risk of extinction because of the migration flows, while ‘Attack’ in Bulgaria criticise ethnic and religious minorities in the country for having too many privileges.

As a general rule, all nationalist parties feel that governments transfer too much sovereignty to the EU. That’s why some nationalist parties see the withdrawal of EU membership as the solution to all problems. For example, organisations such as the Freedom Party in Austria and the Danish People’s Party have repeatedly demonstrated opposition to EU accession and its enlargement, while the Swiss People’s Party seeks to keep the Union out of Switzerland. However, other parties find EU membership acceptable, but reject its future enlargement. For these parties, the accession of Turkey, a Muslim country of 74 million people, is a major argument against EU future enlargement.

Despite the bitter experience of World War II, some countries have a lasting tradition of supporting nationalist groups. Switzerland is a good example of this. In the last federal election nationalist parties collected an average of 28 percent of the vote, and Swiss People’s Party is the leader. ‘National Front’ in France has received approximately 14 percent of the vote in the last three presidential elections. Similar results can be observed in other countries such as the Netherlands, Austria and Denmark. Finland can be recognised as the state in which the support of the nationalist parties had the highest growth in the last two electoral campaigns. Further, participation of nationalist parties in the government under some form can be seen in countries like Italy, Hungary and Bulgaria.

It is worth pointing out that recently a very interesting phenomenon can be observed. As a general rule it is the mainstream parties that usually control the executive branch in the country. With the emergence of nationalist parties, however, support for mainstream parties has decreased and it is not as easy as it once was for them to build powerful majorities in the national and regional parliaments. It turns out that these established parties have to cooperate and comply with the requirements of the small (often the nationalist right-wing) parties in order to be able to maintain their participation in the government. This trend could turn out to be very dangerous in the near future, not only for the Member States, but for the EU as a whole.

To determine the future of the nationalist parties is as difficult as to determine the future of the EU itself. The fact is that the more difficulties the European integration process encounters, the more popular the nationalist alternatives will become.

For the federalists it is clear that the future of the EU lies far away from the nationalist ideas as they strive for a truly federal state capable of solving all current problems. In a federal union the present inter-institutional balance shall be changed; a bicameral parliament shall be established comprised of the European Parliament and the Council of Ministers with a true executive body: the Commission; and a real European Court. In terms of finance, the EU treasury and European Monetary Fund shall be established. These innovations will clearly dissolve many of the current economic and political problems the EU is facing. However, the national sovereignty issue will remain. This could only be overcome by introducing a truly European political space where the EU dimension of politics is presented at a national level.

It is clear that the prospect of successful European integration is a desirable goal. A federal Union is one of the proposals for a possible development of the European Project, but there may also be others that have yet to be seen. However, nationalism is definitely not one of them.

[1] Article 13, paragraph 1 of the Treaty on European Union.

[2] For further reference see Article 14 of the Treaty on European Union and Articles 223-234 of the Treaty on the Functioning of the European Union.

[3] Article 16, paragraph 8 of the Treaty on European Union.

[4] For further reference see Articles 67-76 of the Treaty on the Functioning of the European Union.

[5] By virtue of the first subparagraph of Article 6(1) of the Treaty on European Union.

[6] This was a phrase used as a symbol of cheap labour coming in from Central Europe as a result of the Directive on services in the internal market during the EU Constitution referendum in France in 2005. It was first used by Philippe Val in Charlie Hebdo and later popularised by Philippe de Villiers

Some thoughts concerning the EU’s Nobel Peace Prize

Jose Manuel Panero

MA in Economics for Competition Law candidate, King’s College London; LL.M in European Law, College of Europe

Andrea Redondo

LL.M in European Law and Economic Analysis, College of Europe; BSc Economics and Finance LSE; LLB, Université Paris 1 Panthéon-Sorbonne and Universidad Complutense of Madrid

 

 

On 12 October 2012 it was announced that the European Union (hereafter “EU”) has been awarded the 2012 Nobel Peace Prize.[i] The award ceremony took place two months later, on 10 December. In anticipation of the tidal effect of such a landmark event, this article intends to provide some thoughts on the most important questions related to the awarding of such a distinguished prize to the EU.

(i)    What has the EU done to deserve the Nobel Peace Prize? Does the EU really deserve it?

“Considering that world peace can be safeguarded only by creative efforts commensurate with the dangers that threaten it, convinced that the contributions which and organized and vital Europe can make to civilization is indispensable to the maintenance of peaceful relations, recognizing that Europe can be built only through practical achievements which will first of all create real solidarity, and through the establishment of common bases for economic development, anxious to help, by expanding their basic production, to raise the standard of living and further the works of peace, resolved to substitute for age-old rivalries of their essential interests; to create, by establishment an economic community, the basis for the broader and deeper community among peoples long divided by bloody conflicts; and to lay the foundations for institutions which will give direction to a destiny henceforward shared”. These words are not part of the brainstorming activity to draft the speech of the three representatives who received the Nobel Peace Prize on behalf of the EU. Most of the attentive readers will recognise in the sentences above the full preamble of the early ECSC Treaty,[ii] signed in 1951. And as readers know, it is not by chance that the word ‘peace’ had such a prominent role within it, as well as in the preambles of the EEC Treaty[iii] and the EURATOM Treaty.[iv]

Contrary to what younger generations might think, the EU (and, to a greater extent, its predecessors, the European Communities) is not all about the Euro and the Eurozone, travelling within – most of – Europe without the need to show one’s passport or the Erasmus programme. Older generations will probably also have a partial view of the influence of the supranational creature in their lives (e.g. mountains of butter and lakes of milk and wine, or even Margaret Thatcher claiming a rebate for the UK before her peers). We should perhaps go even further in time, to previous generations, who experienced the horrors of the Second World War.  They can probably certify much better than us what the supranational and polymorphic creature has given to Europe: a period of relative peace, something quite unusual in its recent history.

One might doubt of the true intentions of the ‘founding fathers’ when establishing the original structures; it might be true that they had ‘a vision’, they were ardent federalists and wanted to go ahead with a supranational entity because they were heartily-convinced of the idea and the spill-overs that their creation would generate.[v] Alternatively, it might have been the case that they simply acted strategically defending their own countries in the difficult context they had to face and that, consequently, supranational structures that facilitated peace arose only by chance.[vi] There is however a fact that cannot be denied: the members of the current EU – at least once they have taken part of it – have not entered into war with each other for the incredibly long period, at least for precedent European standards, of over 65 years. And for most of 60 of them, Member States have found in the early “Communities” and now the Union, a channel of cooperation and (variable) integration that most probably has largely contributed to the consecration of this reality.

The idea of the establishment of common structures which would render impossible in the future what was so vivid in people’s memory at the time when the Treaties were drafted certainly was a driving force for their conclusion. The creation of an “ever closer union”[vii] was profoundly rooted in Monnet’s idea that it is “better [to] fight around a table than on a battle-field”.[viii] This was recalled at the awarding ceremony, and Herman Van Rompuy was indeed right when he said that in order to avoid wars within the EU, “boring politics is only a small price to pay”.[ix]

We are certainly not in a position to determine precisely whether the long period of peace we have enjoyed is the consequence, the cause or an unrelated factor of the EU´s existence. However, let’s give the Union at least the benefit of the doubt, and if it has contributed – or at least facilitated – this period of peace within Europe – as we do believe, it should without any doubt deserve the Nobel Peace Prize.

This major achievement does not however come without criticisms in terms of the contributions the bloc could have provided to the peace when it comes to situations outside its borders but in neighbouring regions. In this respect, the position taken by the EU in the conflicts which took place in the Balkans in the 90’s is one of the most blatant. It seems that while it has achieved a tremendous success in avoiding military disputes amongst its members, it has failed to project a unified voice and all its power when it comes to stopping external wars in which its members do not a have a defined unified position.

Some have preached that the current situation within the Eurozone can be compared to an economic war[x] and that the EU has “lost its way in the crisis”.[xi] It is undeniable that the Union is not in its best days ever (although it is not entirely clear that, at the end of the road, the EU would not become a closer union), but we nevertheless strongly disagree with those arguing in such an apocalyptic manner and who generally claim that the Euro is the EU’s major – and perhaps only – achievement.

In any event, and even if the most pessimistic forecasts will be fulfilled, what has been achieved during more than 60 years cannot be denied. The EU has largely contributed to turn a continent of war into a continent of peace. We are not so naïve as to think that the EU will guarantee the pax perpetua amongst its members, but this is not the reason why the prize has been granted.

(ii)    Why has the Nobel Peace Prize been granted to the EU now?

We consider that the Nobel Peace Prize could have been awarded to the EU at three earlier moments in time:

  • In 1995, to commemorate the 50th anniversary of the end of the Second World War. The 1995 Nobel Peace Prize was however awarded jointly to Joseph Rotblat and Pugwash Conferences on Science and World Affairs “for their efforts to diminish the part played by nuclear arms in international politics and, in the longer run, to eliminate such arms“.
  • In 2007, when the Treaty of Rome turned 50. The 2007 Nobel Peace Prize was however awarded jointly to Intergovernmental Panel on Climate Change (IPCC) and Albert Arnold (Al) Gore Jr. “for their efforts to build up and disseminate greater knowledge about man-made climate change, and to lay the foundations for the measures that are needed to counteract such change“.
  • In 2009, when the Treaty of Lisbon – together with the Charter of Fundamental Rights of the European Union – entered into force and the EEAS, “Europe’s Foreign Office” was created. The 2009 Nobel Peace Prize was however awarded to Barack H. Obama “for his extraordinary efforts to strengthen international diplomacy and cooperation between peoples“.

Why did the Norwegian Nobel Committee fail to jump on any of these three great opportunities to award the Nobel Peace Prize to the EU? Was it because the EU did not previously fulfill the nomination criteria? Most likely not. Is it because the EU had not previously been nominated? Or was it because other nominees had greater and more impressive achievements deserving the Prize? Could be. We will however only know the sheer reasons behind this decision in 50 years’ time, once the Nobel nomination database becomes publicly available according to the statutes of the Nobel Foundation.[xii] In the meantime, all we can do is speculate about the reasons underlying the decision.

However, instead of looking backwards as to what could have been but wasn’t, we prefer having a forward-looking approach and analysing the reasons why the prize has been awarded to the EU in 2012.

We strongly believe that the Nobel Peace Prize has been awarded to the EU in 2012 due to a cumulus of factors. First, and most importantly, as we have explained above, since its creation in 1957, the EU has constantly fought in favour of a stable and continuous peace in Europe. It has also proclaimed the Charter of Fundamental Rights of the European Union,[xiii] consecrating at EU level the democracy and human rights pre-existing at national level.

Our intuition is also in accordance with statistics. As a matter of curiosity, it is worth noting that the average age of all Nobel Peace Laureates between 1901 and 2011 is 62 years. Yet, the ECSC would have – if it hadn’t expired in 2002 – turned 61 in 2012. The European construction is thus only one year younger than the average Nobel Peace Prize Laureate. Over these 61 years the EU has sufficiently demonstrated that it truly deserves this Prize even if it is slightly younger than the average and that it has attained in 2012 the ripeness and maturity worthy of a Nobel Peace Prize Laureate.

However, some people have raised voices claiming that the award of the Nobel Peace Prize to the EU in 2012 is nothing but a strategic political decision. Now that the EU – or at least the Eurozone – seems to be tearing apart due to the bailout of several of its Member States, there are important difficulties in keeping the Euro abreast and there are continuous attacks of foreign investors to the EU’s financial markets, some claim that the Nobel Peace Prize has been awarded to the EU in order to avoid an economic catastrophe which could not only make strongly shake the foundations of the EU as such but also have an significant macroeconomic impact well beyond the European borders. In other words, some claim that this award should be regarded as a “bond” of all the pieces of the European jigsaw for the benefit of the whole humankind. We understand the rationale behind this thinking and somehow adhere to it, but we nevertheless strongly consider that this is only a secondary – albeit important – reason, the main reason remaining the EU’s very important achievements in the field of peace-keeping.

(iii)  How will this impact on the EU’s future position in international negotiations?

It goes without saying that nothing should ever be the same for the EU when it comes to the international arena and peace negotiations with third parties.

Being a Laureate of the Nobel Prize not only means that the Laureate has “been good” in his/her field in the past, it also – and perhaps more importantly – implies that the Laureate becomes a solid reference and maybe even the example to follow for others moving forward.

Consequently, the EU will need to take a step forward and take the leadership in the field of peace negotiations. It will also have to intensify its efforts in order to fight for a worldwide and lasting peace. The EU will no longer be able to hide behind the sovereignty of Member States in the field of Foreign Affairs. It will need to find an internal consensus, which it will need to defend internationally with more commitment than it has done in the past when it came to peace negotiations outside its own borders.

The EU will – unfortunately – have plenty of opportunities to put its new responsibility and leadership into practice. As a “new graduate”, the EU will need to take a common position and act in a responsible manner with respect to each and every vitally important conflict which is currently occurring, such as the conflicts in the Gaza Strip and Israel more generally, Syria and Iran.[xiv]We sincerely hope that the EU will not deceive all those undefended people around the globe who may have deposited in the EU their most ardent hope for peace

[i] The Nobel Peace Prize 2012 – Press Release, Nobelprize.org. 22 Nov 2012, http://www.nobelprize.org/nobel_prizes/peace/laureates/2012/press.html

[ii] Treaty establishing the European Coal and Steel Community (1951), available at http://eur-lex.europa.eu/en/treaties/dat/11951K/tif/TRAITES_1951_CECA_1_EN_0001.tif

[iii] Treaty establishing the European Atomic Energy Community (1957), available at http://eur-lex.europa.eu/en/treaties/dat/11957K/tif/TRAITES_1957_EURATOM_1_EN_0001.tif.

[iv] Treaty establishing the European Economic Community (1957), available at http://eur-lex.europa.eu/en/treaties/dat/11957E/tif/TRAITES_1957_CEE_1_EN_0001.tif

[v] See the Schuman Declaration of 9 May 1950; J. Monnet Memoirs, Doubleday 1978; H. Brugmans, L’ Idée européenne 1918-1965, Bruges, 1965; H. Brugmans Prophètes et fondateurs d l’Europe, Bruges, 1974, W.Lipgens, A History of European Integration, 1945-1947 vol. 1 The Formation of the European Unity Movement, Oxford, 1982.

[vi] For a dispassionate opinion on the reasons of the earlier leaders of the EC members for the founding of the Communities see A. Milward ‘The lives and teachings of the European saints’ in A. Milward, G. Brennan and F. Romero, The European Rescue of the Nation State, Routledge, 2000. For a perhaps more balanced opinion on the context they faced and the early times of the Communities see D. Dinan Europe Recast; A History of the European Union, Palgrave, 2004.

[vii] See the preamble of the EEC Treaty note v supra.

[viii] Authors’ translation of the sentence «Mieux vaut se disputer autour d’une table que sur un champ de bataille».

[ix] From war to peace: European Union accepts Nobel Prize. http://edition.cnn.com/2012/12/10/world/nobel-peace-prize/index.html

The New Proposal on Reception Conditions for Asylum Seekers: Genuine Change or Putting Lipstick on a Pig?

Amanda Spalding

LLM student at King’s College London

 

This September the European Parliament voted to reinforce asylum seekers’ rights in the Member States.[1] This is a welcome development given that the EU states’ record on asylum is far from squeaky clean with asylum seekers often being shunted from one Member State to the other and horror tales of unsanitary and unsafe living conditions in detention centres.[2]  The draft proposals approved by Parliament clarify the responsibilities of states as well as providing a set of standards for the reception and treatment of asylum seekers. These standards include detention grounds, detention conditions, detention of vulnerable persons, asylum seekers’ access to the labour market, asylum seekers with special needs and access to benefits. The draft, which has been provisionally agreed with the Council, modifies the Directive 2003/9 and, if passed, will become EU law by December 2012. In this article I will outline the proposed changes to the Directive and will offer a critique to ascertain whether these changes will adequately change the current asylum system or whether it is simply ‘putting lipstick on a pig.’[3]

 

The Current System

Up until 1999 asylum policy between Member States still operated on an intergovernmental level in so far as it was covered by the Third Pillar, thus outside the competence of the European Community(now the European Union). However with the Schengen cooperation[4] being incorporated into the Treaties in 1997 it was thought necessary to change this and bring the relevant policy areas under the EU’s remit. From 2003 to 2005 the EU attempted to implement the first phase of a ‘Common European Asylum System.’ The relevant instruments adopted under this heading are:

  1. Regulation 343/2003 which covers the determination of responsibility for an application of asylum between Member States.
  2. Directive 2003/9 which lays down the minimum standards and conditions of reception of asylum seekers.
  3. Directive 2004/83 which sets the minimum standards for the qualification of persons as refugees or persons otherwise in need of international protection as well as what protections are granted.
  4. Directive 2005/85 which provides the minimum standards on Member States procedures for withdrawing or granting refugee status.

This system has proven to be disastrous. Notice the abundance of directives used – giving Member States discretion in their implementation of the system. This has resulted in very important issues such as standards of reception and the criteria for qualification of a refugee being subject to different interpretation in what is ostensibly a ‘common’ system. The whole area of EU asylum law generally is deeply in need of reform but given the parameters of this article the rest of the discussion will be confined to Directive 2003/9.

As stated above the Directive 2003/9 relates to reception conditions for asylum seekers. ‘Reception conditions’ are the rules for the treatment of asylum seekers while their claim is being processed.  They generally concern areas relating to social rights.

There are six main areas that the current proposal seeks to amend. These are detention grounds, detention conditions, detention of vulnerable persons, asylum seekers access to the labour market, asylum seekers with special needs and access to benefits. I will outline the changes in each area below:

 

Detention Grounds

At present the 2003/9 Directive does not provide any grounds for detention. Thus the grounds for detention vary from state to state as they have discretion in this area. The new proposal sets out an exhaustive list for grounds of detention of an asylum seeker which are:

–       to check his or her identity;

–       to verify the elements of the application for international protection;

–       to decide on their right to enter the Member State’s territory;

–       to protect national security and public order;

–       to prepare them for return to their  home country if the Member State “can substantiate on the basis of objective criteria … that there are reasonable grounds to believe that he makes the application for international protection merely in order to delay or frustrate the enforcement of the return decision”;[5]

–       in the context of a transfer to another Member State, under the “Dublin II” regulation on  responsibility for asylum seekers.

 

Detention Conditions

The current law does not provide any guidelines as to where an asylum seeker may be detained by a Member State. There is merely a requirement to provide them with a dignified standard of living. Thus a common ‘solution’ is to detain asylum seekers in prison. The European Parliament was in favour of prohibiting this in the new proposal but could not get the Council to agree. The new proposal merely reiterates the point that generally detention should take place in a specialised detention facility. However, if accommodation in such a facility cannot be provided and the Member State is obliged to place the asylum seeker in a prison, then they should be kept separately from ordinary prisoners and have access to open-air spaces. Asylum seekers who are detained must also be provided with information explaining their rights and obligations in a language that they understand “or are reasonably supposed to understand”[6].

 

Detention of Vulnerable Persons

Article 18 of Directive 2003/9 only provides that Member States should take into account the specific situation of vulnerable persons. The new proposal lays down some clearer rules. Minors are only to be detained as a last resort and if they are, it should be for the shortest period possible. All efforts should be made to release them and place them in more suitable centres. Unaccompanied minors should only be detained “in exceptional circumstances” and they should not be kept in prisons. They should be provided with accommodation in centres with staff and facilities which are adapted to their needs. They should also be kept separately from adults. Though this is an improvement on the very vague provision laid out in Art 18, the European Parliament wanted to insert clauses providing for a ban on the detention of vulnerable persons if it would be harmful to their health and to completely ban the detention of children. However they were resisted by the Council and the above compromise was reached.

 

Access to the Labour Market

At present, an asylum seeker will have access to the labour market one year after they have filed an application. However in practice there may be other obstacles. The Commission pointed out in its 2008 report on the application of the current directive that “additional limitations imposed on those asylum seekers who have already been granted access to the labour market, such as the necessity of a work permit, might considerably hinder such access in practice”. Also if a negative decision regarding the application is made within the year and the asylum seeker wishes to challenge that decision then the one year period restarts. Under the new proposal asylum seekers will have access to a Member State’s labour market no later than nine months after filing an application.  The Commission and the European Parliament wanted to change this to six months but again could not convince the Council.  The other restrictions to access also continue to apply.

 

Special Needs

Like minors, the current directive only requires the Member State to take account of the person with special needs (i.e. vulnerable persons) specific situation. It also provides that victims of torture, rape or other acts of violence should be given medical treatment if necessary. Under the new proposal the Member States will be obliged to assess whether an asylum seeker needs special attention, such as medical or psychological help. This assessment should take place “within a reasonable period of time” after an application is filed and the Member States should ensure that these special needs are properly addressed.


Access to Benefits

Currently the Directive merely provides that the Member State must provide emergency healthcare and treatment of essential illnesses to asylum seekers. All other benefits may be withdrawn at the Member State’s discretion.  The new proposal provides that benefits may only be withdrawn in exceptional and duly justified cases. This is again a compromise as the European Parliament wanted to ban withdrawal of benefits whereas the Council was happy for the current system to continue. Another change is to the practice of reducing benefits to asylum seekers who apply ‘late’. Now a Member State must be able to demonstrate that the asylum-seeker had not applied as soon as ‘reasonably practicable’ for asylum, ‘for no justifiable reason’ in order to reduce benefits. Again this is a compromise as the European Parliament wanted to abolish this practice, whereas the Council wanted to keep it. Finally Member States are now obliged to provide core benefits which includes emergency healthcare but also includes providing a ‘dignified standard of living.’ This is somewhat of a victory for the European Parliament as the Council only wanted to include healthcare but the vagueness of ‘dignified standard of living’ may prove to result in little change.

 

Is it enough?

Although undoubtedly there will be a lot of back slapping around the European Parliament over these changes, very little has in fact been achieved. The phrase ‘putting lipstick on a pig’ certainly seems apt here. The pig that is the EU’s broken asylum system has been very insignificantly altered. The number of asylum seekers who are detained may decrease slightly but given the broadness of some of the terms such as ‘to verify the elements of the application’; it is unlikely to significantly decrease. The ability of Member States to hold asylum applicants in prisons and for an imprecise period remains unchanged. Minors, unaccompanied minors and other vulnerable persons are still able to be detained by the state. The changes to access to the labour market are also relatively insignificant. As can be seen from above, this new proposal is most definitely a compromise. The limitations on withdrawal or reduction of benefits are a relative success but again encompass the features of a compromise. Although the Council may not have gotten its way with all measures, it has significantly diluted the Commission and European Parliaments proposals. Sadly this proposal will be viewed by those advocating fairer and more dignified treatment for asylum seekers as a missed opportunity. However these new proposals do meet for the most part with the UN Refugee Agency’s guidelines on detention of asylum seekers.[7] It provides grounds for detention, that detention in general and especially in prisons should be an exception to the rule and that the detention of minors and particularly unaccompanied minors should be an exceptional circumstance. The only way the proposal is lacking is that is does not specify the factors to be taken into account when deciding whether or not to detain a vulnerable person. Thus on the face of it, the new proposals at least means that the EU meets acceptable international standards on detention. Whether or not this is the case in practice will have to be seen but I am doubtful that the practice of detaining asylum seekers in prisons will see any change in near the future. Nevertheless any improvement on the current system is a welcome development and will hopefully mark the beginning of a trend in raising standards.

 

 

[4]  Which resulted in the abolition of passport controls between Member States

[5] July 2012, agreed text of Directive – Council document 12090/12:

http://www.statewatch.org/news/2012/jul/eu-council-reception-compromise-12090-12.pdf page 2 para 2

[6] July 2012, agreed text of Directive – Council document 12090/12:

http://www.statewatch.org/news/2012/jul/eu-council-reception-compromise-12090-12.pdf page 56

“I want to break free” – Implications of breaking Commission’s seals during antitrust investigations, Case C-89/11 P E.On v Commission [2012]

Andrea Redondo

LL.M in European Law and Economic Analysis, College of Europe; BSc Economics and Finance, LSE; LLB, Université Paris 1 Panthéon-Sorbonne and Universidad Complutense of Madrid

 

In the judgment, delivered on 22 November 2012, the Court of Justice of the European Union (hereafter “CJEU”) had to resolve, for the first time, a conflict between a company and the European Commission pertaining to the application of Article 23(1)(e) of Regulation 1/2003. The conflict concerned the scope of the Commission’s powers when imposing fines on companies breaking the seals which have been affixed in their premises during the course of antitrust investigations.

The facts

It all began on 29 May 2006, when some officials of the European Commission, together with their counterparts from the German competition authority, arrived by surprise at the premises of E.On in Munich in order to gather documentary evidence, which would allow them to prove E.On’s anticompetitive conduct (in this case, a potential abuse of its dominant position). Some of the documents which were gathered during the course of the day were deposited in a room which the company had facilitated so that these could be analysed in greater detail the following day. The agent in charge of conducting the investigation locked the door of the room and affixed on the frame of the door an official seal.

For those readers who are not familiar with dawn raids, the seal includes a plastic sticker which allows determining whether, during the absence of the Commission officials, a non-authorised access to the room occurred. In case the seal in broken, the seal which is originally blue and contains the yellow stars of the European flag becomes transparent and the sign “VOID” appears written on it. These signs appear even if the seal is placed back in its original position.

The next morning, when the Commission officials returned to the room, they noticed the “VOID” sign on the totality of the seal. Furthermore, the seal had been displaced by 2mm upwards and sideways, which entailed that there were visible traces of adhesive from the rear of the seal. The seal had however not been torn, although it should also be noted that when the Commission representatives opened the door themselves, the seal did not torn apart either.

The Commission considered that the state of the seal was sufficient to claim that E.On had committed a procedural infringement, even if it did not prove that some documents had been removed from the room – something which we will never know given that the documents which were placed in the room had not been photocopied nor catalogued, which means that it is materially impossible to determine if anything was removed from the room. Consequently, on 30 January 2008, the Commission imposed a fine of EUR 38 million on E.On for obstructing the Commission’s investigation, even if, at the end of the day, the Commission considered that E.On had not committed any substantive infringement of competition rules.[i]

This was the first time the European Commission employed the powers conferred to it by Article 23(1)(e) of Regulation 1/2003[ii] in order to impose a fine going up to 1% of the company’s total turnover in the preceding business year for a procedural infringement such as the breach of a seal.[iii]

The ruling of the General Court

It is no wonder that E.On appealed the Commission’s decision before the General Court. In order to justify the state of the seal, E.On presented various alternatives as to what might have happened during the absence of the Commission officials. On the one hand, E.On alleged that the seal had been broken as a consequence of the vibrations of the walls of the building, given that renovation works were being carried out in neighbouring rooms. On the other hand, E.On claimed that the cleaning personnel may have washed the frame of the door with products which would have caused the displacement of the seal. Finally, E.On tried to justify its conduct arguing that the seal had exceeded its shelf life (i.e. it’s expiry date was set later than the period for which the producer could certify its reliability and correct functioning).

The General Court was unimpressed by these – original, to say the least – arguments and consequently dismissed the appeal in full in a judgment adopted on 15 December 2010.[iv] The General Court held that “the Commission was fully entitled to take the view that this case concerned at least a breach of seal through negligence”.[v] Furthermore, the Court ruled that the fine imposed by the Commission was not disproportionate given the particularly serious nature of the infringement, E.On’s size and the need to ensure that the fine had a sufficiently deterrent effect.[vi]

The ruling of the Court of Justice

Again, it comes as no surprise that E.On appealed to the Court of Justice the General Court’s judgment in an attempt to seek more coherence in the field of the Commission’s powers with respect to the imposition of fines for seal breaching conducts.

This was a much-awaited judgment as it was going to set the grounds for future antitrust investigations. Yet, the Court merely confirmed the General Court’s judgment and its findings without going into particular great detail nor making any statements of principle. There are, however, two issues discussed in the judgment which are worth mentioning here.

The first one is the burden of proof. While confirming that in the field of competition law, it is for the Commission to prove the infringement and to adduce evidence capable of demonstrating to the requisite legal standard the existence of the circumstances constituting an infringement, the CJEU stated that when the Commission relies on evidence which is sufficient to demonstrate the infringement, the company cannot merely raise the possibility that a circumstance arose which might affect the probative value of that evidence. Instead, the company must – with the exception of those cases where such proof cannot be provided by the company due to the Commission’s conduct – prove both the existence of the circumstance relied on by it as well as that the circumstance calls in question the probative value of the evidence relied upon by the Commission.[vii] In the case at stake this meant that the burden of proof laid with E.On and it was thus for it to adduce evidence challenging the Commission’s finding of the breach of seal, which it did not.

The second one is the proportionality of the fine. The CJEU started off by arguing that whilst the General Court has unlimited jurisdiction with regards to the fines imposed by the Commission (i.e. it can decrease – or increase, although this is much more exceptional in practice – the level of the fine imposed on the undertaking if it deems it appropriate), the CJEU – to the extent that it is a court of appeal – doesn’t enjoy such powers. The CJEU hence recalled that it can therefore only find that the General Court erred in law when the fine is excessive to the point of being disproportionate. Thereafter, the CJEU confirmed that the breach of a seal must be regarded as a particularly serious infringement by its own nature, independently of whether or not the room was opened. The Court ruled in this sense because the objective of Article 23(1)(e) of Regulation 1/2003 is to protect the inspections from the threat that comes from the fact that the seal has been broken, which may be an obstacle to the integrity of the evidence contained in the sealed room. Finally, the CJEU held that procedural fines ought to be set at a sufficiently high level – within the limit of the 1% impose by Regulation 1/2003, of course – in order to ensure deterrence as otherwise companies would be able of escaping a much higher fine for a substantive infringement – going up to 10% of their annual turnover – by breaking the seal and removing the evidence gathered by the Commission.

The implications of the judgment for future antitrust investigations

The judgment of the CJEU deserves, at least, two comments, one negative and one positive.

On the one hand, the Court confers to the Commission a great – too great maybe – discretion when it comes to assessing and sanctioning procedural infringements such as the breach of seals, given that at no point during the judicial review was it questioned that E.On had opened the door of the conflictive room. Therefore, and given that the CJEU has held that it belongs to the Commission to proof the breach of the seal even if it does not however need to demonstrate that the room was actually accessed or that any documents stored in the sealed room had been removed or manipulated, this is tantamount to considering this type of procedural infringements as entailing an objective liability for undertakings. In other words, the mere appearance of the “VOID” message is sufficient to find an infringement. Consequently, it is not necessary for the Commission to prove the effects of the conduct – in this case the effects would have been that the documents were removed or manipulated – which significantly reduces the burden of proof on the Commission. Additionally, the objective liability of undertakings when it comes to seal breaking infringements entails that any justification on the side of the company, independently of how sincere and valid this may be, is useless to make it escape the fine. The judgment is thus to be disapproved in this respect given that competition authorities and courts applying EU competition law should analyse in detail the effects of the conduct at stake – and this goes for both substantive infringements as well as for procedural infringements – instead of limiting themselves to appreciating the mere existence of the conduct.

On the other hand, however, the judgment is to be welcome to the extent that it considers that the EUR 38 million fine was not disproportionate. Although this amount is impressive and may sound excessive, it “only” amounts to 0.14% of E.On’s annual turnover. This is a ridiculously low amount when compared to the fine that E.On could have faced for a substantive infringement – which could have been as high as EUR 2.7 billion, i.e. 10% of E.On’s annual turnover – which might have been found on the basis of incriminating evidence which could have disappeared during the Commission officials’ absence. It is only by deterring such potential document-destructing conducts that a higher number of substantive infringements will be found, in fine reverting in the consumers’ interest, which is the ultimate aim of competition law.

All in all, this novel judgment of the CJEU should be welcomed, although it is regretful that it did not proclaim an effects-based approach for procedural infringements. Having said that, even if the Commission has been granted extensive powers (given that the burden of proof is not particularly stringent) and that fines for procedural infringements are very high in order to ensure deterrence, it is likely that more cases will arise in the future where “[companies] want to break free” as, unfortunately, the reward for doing so still is significantly greater than the price they have to pay to break free.

[i] See Decision of 4 May 2010 in Case COMP/39.317 – E.On Gas, where the Commission considered that the commitments offered by E.On were sufficient to dissipate any existing doubts concerning the company’s abuse of its dominant position and thus closed down the case.

[iii] The only exception is Case COMP/37.792 – Microsoft, where the Commission imposed a fine amounting to the eye-popping amount of EUR 899 million. Even if this fine preceded the one imposed on E.On, it is of a different nature given that in the Microsoft case the fine was imposed for non-complying with a Commission decision, whilst in the case of E.On what was at stake was an illegal conduct during the course of the inspections carried out in its premises.

[iv] Case T-141/08 E.On Energie v European Commission.

[v] Case T-141/08, para. 262.

[vi] Case T-141/08, para. 294.

[vii] Case C-89/11 P, para. 76.

The Charter of Fundamental Rights: the ‘Bible’ of EU citizens’ rights or a voice crying in the wilderness?

Mehmed Yuseinov

LLB Law and European Studies graduate from the University of Portsmouth

 

Over the last two decades it has been demonstrated in a number of initiatives that human rights issues continue to be central within EU law and policy-making because of the Union’s determination to establish its credentials as an international human rights supporter. However, until the introduction of the Lisbon amendments, the protection of fundamental rights was limited. The Lisbon Treaty provided a new “façade” to the existing fundamental rights regime by resolving the status of the Charter of Fundamental Rights in Article 6 TEU.[i] This article will aim to identify the role and significance of the Charter in the evolution of EU fundamental rights protection. The main focus will be given to the question: is the Charter a fundamentally important “bill of rights” for the EU citizens, or another source of inspiration for political schizophrenia in the Union? This question will be examined by discussing the process by which the Charter was drafted and by considering its aim, scope and nature.

The Charter sets out in a single document the whole range of civil, political, economic and social rights of the Union citizens and all persons residing within the territory of the EU. The initiative for drafting the Charter dates back to the German presidency of the European Council in the first half of 1999. The fact that the starting point of this initiative was in Germany is not surprising. It is worth recalling that in Solange I,[ii]  the German Constitutional Court explicitly held that it would stop reviewing the compatibility of Union law with fundamental rights as long as the Union has its own catalogue of rights. This reaction was particularly as a result of the Court of Justice’s judgment in Costa,[iii] where the Court established the doctrine of supremacy. The academic critique stipulates that the German courts believed that development of the doctrines of direct effect and supremacy could potentially eliminate any national legislative or judicial control over Union law.[iv] Given that in the 1960s the EU was functioning as an economic entity, it was possible as a result of the lack of Treaty provisions that Union law, in some circumstances, could undermine the fundamental rights of individuals protected by the national courts of the Member States.

The Maastricht Treaty resolved the status of fundamental rights by indicating and confirming the EU’s determination towards human rights with the introduction of Article F TEU which stressed that ‘the Union is founded on the principles of liberty, democracy, respect for human rights and fundamental freedoms, and the rule of law, and principles common to Member States.’[v] However, it did not clarify or specify the rights of the EU citizens protected under Union law.[vi] Although the Court had regularly expressed in its judgments that the Union was founded on the rule of law, the problematic pillar structure created by the Maastricht Treaty meant that Union acts and measures were not always subject to judicial review.[vii] One of the shortcomings of the pillar structure was that natural and legal persons were not always able to challenge the legality of any act which affected their Union rights and obligations.[viii]

The Charter initiative revealed Union’s aspirations for a Europe which is not solely about economics, but also about fundamental rights and freedoms. These are an indivisible part of the common European heritage of the Union citizens. The idea of having an EU Bill of Rights was particularly welcomed by those Member States which have constitutional ambitions for the Union.[ix] It also appealed to other Member States, as such development was seen as an effective and sensible tactic not only to ‘bring the EU closer to its citizens, but also gain support for the Union.’[x] As underlined by the President of the Commission in 2000, Romano Prodi, the role of the Charter was to fill this gap in order to make more explicit the EU citizens’ fundamental rights already enjoyed at a European level.[xi] Thus, the goal of the German Presidency was to launch an initiative which could create a high profile move as far as fundamental rights and the EU were concerned.[xii] However, such a move should neither introduce new policy changes, nor alter anything significant within the existing legal, political and constitutional framework.[xiii] All these developments imply that fundamental rights have an intrinsic character.  Human rights can operate as a ‘double-edged sword’,[xiv]  on the one hand, they can legitimise a political system thus creating feelings of a political union. On the other hand, the nature of rights might also lead to a disagreement if the Union had moved to include rights which fall within the competence of the Member States such as divorce, abortion and surrogacy.[xv]

The Charter was proclaimed as a Declaration in Nice on 7 December 2000. Since the beginning of the Charter initiative, the representatives of the EU repeatedly promoted the proposal of the EU’s bill of rights as a process which was aimed at ‘the peoples of Europe’. However, this was not a fully participative process[xvi]  because the members of the Convention[xvii] were only representatives of the national and European institutions and the members of the civil society were excluded from formal participation in the drafting process.

The Charter was adopted by the EU institutions but one very important question was left open: what was its legal status? Given that it was proclaimed as a Declaration,[xviii] it did not have a legally binding effect on the EU institutions and the Member States. However, as demonstrated by the jurisprudence of the CJEU, speeches and reports of the EU institutions and the EU Ombudsman, the Charter did have special significance. In 2002, Söderman criticized the failure of the EU institutions to observe the rights enshrined in the Charter.[xix]  His speech indicated that special importance is attached to the role of the Charter because the failure to respect fundamental rights could lead to ‘a further step on the road of mistrust between the EU and its citizens’.[xx] In addition, the Advocates General of the Court of Justice and the General Court referred in several cases[xxi] to the Charter rights as a reaffirmation of the general principles of law common to Member States.[xxii] All these pre-Lisbon judgments reflect that the Charter was acting only as an inspirational source in determining the general principles.[xxiii] They also acknowledge that during the pre-Lisbon period, the Charter was only an authoritative statement that contained the rights which were fundamental to the EU.[xxiv]

Following the coming into force of the Lisbon Treaty in 2009, the legal status of the Charter was finally resolved. Article 6(1) TEU provides that the Charter has ‘the same legal value as the Treaties’. The Charter’s scope of application is defined in Article 51[xxv] which underlines that its ‘provisions (…) are addressed to the EU institution (…) and to Member States only when they are implementing Union law.‘ Article 51(2) particularly raised concerns in the UK, Poland and the Czech Republic. These Member States thought that it was not clear enough that the Charter did not extend the competences of the Union. The EU thus repeated this in Declaration No 1.[xxvi]

‘Schizophrenic reactions’ were particularly observed in Ireland and France[xxvii] with regard to the case of abortion and the interpretation of Article 2(1) of the Charter which states that ‘everyone has the right to life’.[xxviii] This provision is based on the first paragraph of Article 2(1) of the European Convention on Human Rights (ECHR).[xxix] The case of abortion was hotly debated in both Member States. In France, it was believed that the Charter could lead to the prohibition of abortion. In Ireland, it was speculated that the Charter could legalise abortion. The reactions in France and Ireland are ironic and are clearly a product of political speculation. This is evidenced if Article 52(3) is observed. It explicitly states that ‘[i]n so far as the Charter contains rights which correspond to rights guaranteed by the [ECHR], the meaning of those rights shall be the same as laid down by the said Convention.’ [xxx]

If the application and interpretation of Article 2 of the Charter is the same as the one defined in the ECHR then it is evident that these Member States’ reactions were unnecessary. The conclusions of the Council of Europe’s Human Rights Commission in 1980 suggested that neither the notion of everyone nor the notion of life was defined in the ECHR.[xxxi] The European Court of Human Right’s judgment in X v UK[xxxii] provides that the ECHR does not impede the national legislation from authorizing such acts. In all these debates, France and Ireland clearly failed to take into account Article 51 of the Charter[xxxiii] which clarifies that the provisions of the Charter are addressed to the EU institutions and Member States only when they are implementing Union law. Abortion is clearly a matter of national competence and it is not a right defined within the context of Union law. Thus, it falls within the margin of appreciation of the Member States and it should be concluded that the EU has no competence in this area either under the previous Treaty provisions or the current amendments introduced by the Lisbon Treaty.

It is concluded that the Charter did not create any new rights. This is why speculations in the Member States were needless. Those rights have already been known to the Member States as they result from their ‘common constitutional traditions’.[xxxiv] The Charter is a fundamental development under the current Treaty framework not only for the measures of the Member States when they are implementing Union law, but also for all the acts and measures of the Union institutions .

[i] Consolidated version of the Treaty on European Union [2010] OJ C83/01.

[ii] Internationale Handelsgesellschaft mbH v Einfuhr- und Vorratsstelle für Getreide und Futtermittel [1974] 2 C.M.L.R. 540.

[iii] Case 6/64 Flamino Costa v ENEL [1964] ECR 585.

[iv] N A Neuwahl, ‘The Treaty on European Union: A Step Forward in the Protection of Fundamental Rights?’ in N A Neuwahl and A Rosas (eds), The European Union and Human Rights (Kluwer International Law 1995) 3.

[v] Consolidated Version of the Treaty on European Union [2010] OJ C83/01,  Article 6.

[vi] D Denman, ‘The Charter of Fundamental Rights’ [2010] EHLR 349, 350.

[vii] X Groussot, Fundamental Rights Protection in the European Union post Lisbon Treaty, Foundation Robert Schuman European Issue N 173/ 14th June 2010,  4.

[viii] Ibid.

[ix] J B. Lisberg, ‘Does the EU Charter of Fundamental Rights Threaten the Supremacy of Community Law? Article 53 of the Charter: a fountain of law or just an inkblot?’ Jean Monnet Working Paper 4/01, 11.

[x] Ibid.

[xi] S Douglas-Scott, ‘The European Union and   human rights after the   Treaty of   Lisbon’[2011] HRLRev 645, 651.

[xii] G De Burca, ‘The Drafting of the European Union Charter of Fundamental Rights’ [2001] ELRev 126, 129.

[xiii] Ibid.

[xiv] Ibid.

[xv] Ibid.

[xvi] G De Burca, ‘The Drafting of the European Union Charter of Fundamental Rights’ [2001] ELRev 126, 131-132.

[xvii] The Council entrusted the task of drafting the Charter to a body which was called the Convention. The Convention composed of 62 members, who were representing the national parliaments and governments, the EP and the Commission.

[xviii] Consolidated version of the Treaty on the Functioning of the European Union [2010] OJ C83/01, Article 288.

[xix] EU Ombudsman, ‘Speech by the European Ombudsman, Mr Jacob Söderman to the Committee on Petitions concerning the presentation to the European Parliament of his Annual Report for 2001, Strasbourg, France, 8 April 2002’ < http://www.ombudsman.europa.eu/speeches/en/2002-04-08.htm> Accessed 20 February 2012.

[xx] Ibid.

[xxi] Case T-54/99 max.mobil Telekommunikation Service GmbH v Commission [2002] ECR II-313, paras 48-57; Case T-210/01 GEC v Commission [2006] OJ C34/26;  Case T-378/02  R Technische Glaswerke Ilmenau GmbH v Commission [2005] ECR II-5575.

[xxii] P Craig, G De Burca, EU Law Text, Cases and Materials (4th edn, OUP 2008) 418.

[xxiii] W Weiss, ‘Human Rights in the EU: Rethinking the Role of the European Convention on Human Rights After Lisbon’ [2011] ECLR 64, 65.

[xxiv][xxiv] D Chalmers, G Davies,  G Monti  European Union Law (2nd edn, Cambridge University Press 2010) 238.

[xxv] Charter of Fundamental Rights of the European Union [2010] OJ C83/02, Article 51.

[xxvi] Consolidated versions of  the  Treaty  On European Union and  the  Treaty on the Functioning  of the European Union  [2010]  OJ  C 83/1, Declaration concerning the Charter of Fundamental Rights of the European Union.

[xxvii] J Piris, The Lisbon Treaty – A legal and political analysis (Cambridge University Press 2010) 155.

[xxviii] Charter of Fundamental Rights of the European Union [2010] OJ C83/02, Article 2(1).

[xxix] European Convention for the Protection of Human Rights and Fundamental Freedoms, November 4, 1950, Europ.T.S. No. 5; 213 U.N.T.S. 221.

[xxx] Charter of Fundamental Rights of the European Union [2010] OJ C83/02, Article 52

[xxxi] J Piris, The Lisbon Treaty – A legal and political analysis (Cambridge University Press 2010) 155.

[xxxii] X v UK App no 8416/79 (ECtHR, 13 May 1980).

[xxxiii] Charter of Fundamental Rights of the European Union [2010] OJ C83/02, Article 51.

[xxxiv] Consolidated Version of the Treaty on European Union [2010] OJ C83/01,  Article 6 (3).