The EU’s anti-corruption conditionality for candidate countries: much ado about nothing?

By Liljana Cvetanoska, Teaching Fellow in Corruption, Law and Governance at Sussex Law School and Sussex European Institute

Corruption remains a serious problem for many European Union (EU) member states and candidate countries despite the EU’s efforts to tackle it during various accession rounds. Central and Eastern European countries (CEECs) have expressed an interest in joining the EU already since the 1990s, but they have been reluctant to become members immediately. A set of criteria was thus put forward to guide the accession process of candidate countries, known as the Copenhagen criteria. These conditions focused on the rule of law, certain economic aspects and their willingness and ability to incorporate all EU rules (the so-called “acquis communautaire”) into their domestic legal systems.

The fight against corruption has been at the centre of these criteria as it constitutes a potential obstacle to their fulfilment. The EU had strong reasons to push for anti-corruption reforms in candidate countries because of its limited ability to influence domestic anti-corruption reforms after accession. For these reasons, candidate countries are expected to respect the rule of law and to introduce the required anti-corruption reforms before becoming members of the Union. However, implementing these reforms has proved rather difficult in practice.

The EU accession process consists of three phases. The first phase is the expression to become a member, after which a country is assessed on its ability to become an actual candidate. The next phase is to check whether the country in question sufficiently fulfils the Copenhagen criteria followed by a unanimous agreement of the European Council to open negotiations. Only once the Copenhagen criteria are satisfied, can a country open accession negotiations: if a country is not able to demonstrate fulfilment of these criteria, it should not proceed to the next stage of the enlargement process. Nevertheless, this is exactly what happened during the 2004 and 2007 enlargement waves. Countries that did not have basic anti-corruption laws in place and had serious problems with corruption were allowed to open membership negotiations with the Union. For example, Romania, which was deemed a case of concern from the start of the accession process, was permitted to open negotiations with the EU even before passing an anti-corruption code.

Romania is not the only case. Various CEECs became EU members without implementing relevant anti-corruption laws that were part of the accession requirements. The Czech Republic did not have a Civil Service Code implemented at the time of accession, which is necessary for the fight against corruption, particularly due to the role civil servants play in the procurement process, an area that is prone to corruption for many CEE candidate countries. EU member states receive funds that are largely distributed at the national level through public procurement. It is necessary, therefore, to regulate the appointment, dismissal and promotion of public officials prior to accession in order to ensure a transparent and fair process in the allocation of EU funds. Yet the Czech Republic, in spite of not having the necessary law in place, was still allowed to join the EU. It took this country an additional 14 years after accession to implement the Civil Law Code and it was only following the EU’s threat to reduce funding rather than for a genuine attempt to fight corruption.

This is not to say that anti-corruption legislation on its own can ensure the effectiveness of anti-corruption efforts. Implementation of these laws and policies is also crucial. However, having relevant anti-corruption legislation in place was one of the specific criteria that had to be met in order to progress further in the accession process and the EU seemed to have ignored this by allowing these countries with significant corruption problems to become members of the Union.

The Romanian case again illustrates the loose application of the Copenhagen criteria. The country opened negotiations with the EU, even though it did not have a basic anti-corruption law. However, it is difficult to understand how a country can fulfil the rule of law criteria without penalising corruption-related offences. Indeed, there were concerns over the levels of corruption in this country throughout its negotiations with the EU. The EU constantly warned Romania that it needed to provide an anti-corruption track record. However, it failed to provide any guidance to the country as to what this meant in practice. In spite of these problems, the country’s accession process went ahead and Romania closed negotiations with the EU in 2005, even though there were still serious concerns about corruption.

As a result, and for the first time in the accession process of a CEEC, the EU added additional criteria for Romania (as well as Bulgaria) that were to be fulfilled between the closing of the negotiations and accession to the Union. In addition, the EU also threatened to postpone the accession date from 2007 to 2008 should reforms prove to be insufficient. However, this threat lacked teeth as in the worst case scenario Romania (and Bulgaria) were to join the EU by 2008 at the latest. Coincidentally, general elections were held in Romania in 2004. The President Traian Basescu won on the basis of an anticorruption campaign, and tried to reform the Anticorruption Directorate, the main agency prosecuting serious corruption offences in the country. The new Directorate gained the trust of the EU institutions and was effectively charged with strengthening the fight against corruption in the country. Yet, the so-called Cooperation Verification Mechanism was introduced to monitor Romania’s (and Bulgaria’s) implementation of anti-corruption reforms after accession. The adoption of this mechanism indicated that there were still additional reforms to be completed. In turn, this raises the question as to why Romania (and Bulgaria) have been allowed to join the EU without fully meeting the accession requirements.

Eventually the EU has made some credible attempts to improve its conditionality criteria in the sphere of anti-corruption after the 2004 and 2007 enlargement waves. For example, Macedonia only received a recommendation to open negotiations once the European Commission concluded that the country had a robust anti-corruption legal framework. This is not to say that the country was successful in implementing these laws. However, in the case of the Western Balkans there was an expectation to produce a comprehensive legal anti-corruption framework before opening negotiations, which was not the case for previous enlargements. Moreover, in 2011, the EU introduced the so-called “New Approach” according to which issues related to the fight against corruption, that is judiciary and fundamental rights (Chapter 23 of the acquis), as well as justice, freedom, and security (Chapter 24) should be addressed from early on in the accession process. The New Approach is being applied to the accession of the Western Balkan countries, which according to corruption perception indices have the lowest ability to control corruption in Europe.

The above suggests that the EU is learning from previous mistakes and is making additional efforts to tackle corruption from the early stages of the negotiations and prior to the accession of the Western Balkans. Yet, it remains to be seen how successful this New Approach is going be in practice.

Liljana Cvetanoska can be contacted by email at: L.Cvetanoska@sussex.ac.uk

 

Brexit: a fresh legal start to help us restore and reconnect with nature

By Sarah Denman, , ClientEarth, UK Environment Lawyer

It’s not often in life that we get a completely fresh start. The same can be said for environmental law, where technical updates happen much more often than new constitutional frameworks.

Brexit however, whilst presenting a very real threat of regression in environmental standards, also creates an opportunity to build environmental law differently.

The draft environment bill will be a key part of the UK’s post-EU legal landscape. It will restructure the environmental law we are inheriting from decades of EU membership. It will set the tone and the trajectory for a new ambition from the UK to protect and enhance our natural world.

Part one of the environment bill has already been published and contains draft clauses:

  1. requiring the publication of a policy statement that will set out how ministers should interpret and apply environmental principles;
  2. establishing a public authority to oversee and enforce environmental law; and
  3. committing government to have a plan for environmental improvement.

But we expect that the fuller version of the environment bill will also include measures on air quality, nature recovery, waste and resource efficiency and water management. This is likely to be published this summer and will be crucial in ensuring that environmental law is secured and improved as we leave the EU.

Whilst current proposals give us a starting point, improvements must be made if the UK truly wants to establish a world-leading system of green governance and become a leader in environmental standards.

Environmental principles

The environment bill sets out the environmental principles which currently guide EU policy making and implementation. It requires the publication of a statutory policy statement on the interpretation and application of the principles which ministers must ‘have regard’ to when making policy.

But this approach falls far short of the current position under EU law where the environmental principles have a more thorough and secure role in environmental law and policy. The environment bill’s weak standard to merely ‘have regard’ to a policy statement – coupled with the numerous opt-outs the bill provides – mean that we are facing a significant regression in environmental standards.

The legal status of the principles must be strengthened in order to maintain existing environmental standards. However, Brexit presents an opportunity to go further than simply maintaining the status quo. The environment bill could be used to incorporate a strong and enforceable environmental non-regression principle into domestic law, requiring continual advancement in environmental laws and commitments. Meaningful commitments to non-regression are essential if the UK is to put itself forward as an actual world-leader in environmental protection.

The environment bill also presents an opportunity to better implement principles that are currently less developed in EU law. The integration principle, requiring that environmental protection is integrated into all policy areas, plays an important conceptual role in recognising that environmental matters do not exist in a vacuum. The environment bill should create new duties that make clear that the state of the environment is the responsibility of all parts of government, not just the Department for Environment, Food & Rural Affairs (DEFRA).

The Office for Environmental Protection

The Office for Environmental Protection (OEP) is intended to provide independent and impartial scrutiny, assessment and advice on government’s implementation of environmental law and policy. It will also be able to take enforcement action where needed to make sure government is meeting its obligations under environmental law.

Whilst the concept of the office is welcome, particularly as Brexit means we will lose the important oversight role that EU institutions such as the European Commission currently play, the proposal represents a missed opportunity to create a truly world-leading system of environmental governance.

The OEP needs a bespoke enforcement procedure in order to replace, and improve upon, the role of the EU institutions and to be able to effectively and meaningfully ensure compliance with environmental law. Though the expectation is that most complaints and matters would be solved without the need to resort to hard legal measures, the procedure must have legal teeth to it.

Central to this bespoke enforcement procedure must be the creation of a forum where the quality of government decision-making can be reviewed and assessed. Without this, the OEP will have to rely on traditional judicial review processes that have been shown to be frequently problematic in assessing and improving compliance with environmental law and responding meaningfully to peoples’ concerns.

In particular, the following issues must be addressed:

  1. The complaints procedure. Complainants must be assured that they will continue to be involved in the complaint. The process should be both iterative and deliberative, actively involving key stakeholders in all areas of the process and continually seeking the views and knowledge of the complainants.
  2. The scope of action of the OEP. Both the definition of ‘environmental law’ and of a ‘failure to comply with environmental law’ in the environment bill are opaque and potentially problematic. These should be clarified. This is also a chance to give the OEP a more innovative role over international law, which is currently missing. This is particularly important given that leaving the EU will bring about a significant change to the supranational layer of environmental law and policy that currently applies in the UK in lights of its EU membership.
  3. The enforcement powers are too weak. The OEP’s enforcement powers are entirely reliant on judicial review, which can only assess substantive legality in terms of irrationality. It does not allow review of the actual quality of decision-making. In addition, the OEP cannot require a change in behaviour. It can instead only issue advisory notices that are not binding on public authorities.

Building on the environment bill

The environment bill should not stop with its current scope of ambition. It represents a chance to both build on and improve the current environmental protections in the EU and deliver a truly green Brexit.

Actually improving environmental conditions will require new binding objectives and the cooperation of all parts of government. Ultimate responsibility to reach these objectives should lie with the Secretary of State, but the other arms and legs of government must not be allowed to act in ways incompatible with their achievement. Crucially, it must be possible to hold those responsible to account when they fail in their environmental responsibilities.

New binding and ambitious environmental goals should be established; for instance, we need new laws requiring compliance with World Health Organisation standards for air quality. We also need new mechanisms and processes that mean target-setting is done in line with ecological realities, future generations’ interests, planetary boundaries, global best practices, best available science and ratcheting up ambition.

Our new regulatory framework will also require new duties on private actors to reduce their impacts on the environment. Requirements to identify how business activities affect the environment, and take steps to prevent, assess and mitigate these, could trigger a shift in thinking about where responsibility for environmental conditions sits. Examples from health and safety law, or existing and emerging ‘duty of vigilance’ laws in France and Switzerland set the bar.

The environment bill must create the space for all of us to reconnect with our shared environments. Part of this is empowering people to fulfil their right to a healthy environment, to enjoy nature in its full wonder and re-establish our intrinsic connection to it. We must construct a legal framework that helps ensure our environment is clean, healthy, diverse and beautiful, while also providing people full access to justice and remedies for when the law is broken.

Sarah Denman can be reached by email at: SDenman@clientearth.org

 

 

The ‘Right to be Forgotten’: Challenging Neo-Nazis’ use of Russia’s Right to be Forgotten Law in Constitutional Court

By Paige Morrow , Senior Legal Officer, ARTICLE 19

 

ARTICLE 19 has submitted an expert opinion to Russia’s Constitutional Court on an important case challenging Russia’s so-called ‘right to be forgotten’ law. The case arose from a request to remove Google search results to articles about convictions for hate crimes and extremism.

Russia’s Right to be Forgotten Law

In 2016, a ‘Right to be ForgottenLaw entered into force in Russia, thus restricting the free flow of information online by enabling Russian citizens to request that search engines delist links about them. The only requirement is that the information is “inaccurate and out-dated” or “has lost meaning to the applicant due to subsequent events”. The law provides a limited exception for information relating to criminal offences, where the conviction has not been quashed or removed from the official record, however it does not include any carve-out for information that is in the public interest or related to a public figure.

The law has allegedly been used by Russian public officials to remove online content addressing their misconduct and/or corruption. In  2017, a court ordered Russian search engine Yandex to remove links to articles concerning a Swiss investigation into money laundering, by former minister of agriculture Elena Skrynik, that led to a temporary freeze on her bank accounts totalling $61 million. It was stated that this content defamed Skrynik’s dignity and business reputation. That same year, a St Petersburg court ordered Yandex to remove search results regarding businessman Ilya Kligman that linked him with allegations of corruption, on the ground that no criminal conviction resulted from these allegations.

Legal Challenge

SOVA Center for Information and Analysis is a Moscow-based non-profit organization founded in October 2002 to conduct and disseminate research on issues including political extremism, nationalism and xenophobia, the relationship between religion and politics, and human rights. SOVA regularly publishes news releases relating to radical nationalism, hate crime, and counter-responses. It also maintains a publicly accessible database recording incidents of hate crimes and convictions for ‘extremism’.

As part of its news coverage, SOVA published two articles, in 2006 and 2008, on hate crime convictions: one on the convictions of Yuri Shchebyetuk and Alexei Ershov for beating an Angolan national, and the other on the conviction of 8 individuals for supporting neo-Nazism, including Yuri Shchebyetuk.

In March 2016, SOVA received notification from Google that these articles were being delisted from its search engine due to a user’s request pursuant to Russia’s Right to be Forgotten Law. This law allows, but does not require, the search engine to notify the website that is the subject of the request. However, the search engine must not provide the name of the person who made the request. Here, we can infer that it was Yuri Schebyetuk, since he was the only individual named in both articles.

SOVA petitioned the court asking that the law be declared unconstitutional, a request which was denied by the lower courts. SOVA subsequently appealed to the Constitutional Court and approached ARTICLE 19 for an expert opinion to support SOVA’s legal challenge.

 

The right to be ‘de-referenced’: A real right?

The existence of the ‘right to be dereferenced’ has been derived by domestic and supranational courts on the basis of data protection law, personality rights, defamation law, and/or the right to control one’s image.

There are certain recognised aspects of the right to be forgotten in criminal and civil law, including the expunging of criminal records, and statutes of limitations. However, international standards suggest that a specific law on the right to be forgotten is not only unnecessary, but that it may also unduly restrict freedom of expression. While there may be legitimate instances where an individual will seek to remove access to information about them, which is of a private nature (e.g. bank details, medical information, or phone number), defamatory or libellous, individuals can rely on existing remedies. In most cases, individuals should apply directly to the courts, which are best placed to decide whether the information should remain available.

The ‘right to de-referencing’ was initially recognised by the Court of Justice of the European Union (CJEU) in Case C-131/12 Google Spain, which held that data protection principles apply to the publication search results of search engines. The CJEU held that European citizens should be able to ask search engines to remove links to “inadequate, irrelevant or no longer relevant, or excessive” content. There is an exception to not delist pages “for particular reasons, such as the role played by the data subject in public life”, such that the data processing is justified by “the preponderant interest of the general public in having, on account of inclusion in the list of results, access to the information in question”. While the content itself remains online, it cannot be found through online searches of the individual’s name.

The new case before the CJEU, Google v CNIL, asks the Court to clarify whether a court or data regulator should require a search engine to de-list websites only in the country where it has jurisdiction or across the entire world. The Advocate General, recognizing the geographical limitations of the Court’s jurisdiction, has proposed that: “the Court should limit the scope of the de-referencing that search engine operators are required to carry out to the EU”.

The right to be forgotten has now been codified in Article 17 of the General Data Protection Regulation (GDPR), which recognises a number of exceptions, including for information that is necessary “for exercising the right of freedom of expression and information”.

The key issue is that while the EU version contains a strong exception for information that is in the public interest or that relates to public figures (who should have a limited expectation of privacy), there is no such exemption in the Russian law, thus allowing public figures to request suppression of information about them, which may be important for people to know.

Legal Arguments – Freedom of expression in Russia

ARTICLE 19 argued in its legal opinion that the ‘Right to be Forgotten’ law violates Russia’s international legal obligations. While respect for human rights has dramatically declined under Putin’s presidency, freedom of expression is (theoretically) protected by Article 29 of the Russian Constitution. Moreover, Russia is a State Party to the International Covenant on Civil and Political Rights (ICCPR) and the European Convention on Human Rights (ECHR), both of which guarantee freedom of expression in Article 19 and Article 10 respectively.

Restrictions are disproportionate to aim pursued

Under international law, the right to freedom of expression is not an absolute right and may be legitimately restricted by the State in certain circumstances. A three-part test identifies the conditions against which any proposed restriction must be scrutinised:

  • The restriction must be provided by law: it must have a basis in law, which is publicly available and accessible, and formulated with sufficient precision to enable citizens to regulate their conduct accordingly.
  • The restriction must pursue a legitimate aim, exhaustively enumerated in Article 10, para 2 of the ECHR and Article 19, para 3 of the ICCPR, namely: national security, territorial integrity or public safety, the prevention of disorder or crime, the protection of health or morals, and/or the protection of the reputation or rights of others. Article 10, para 2 of the ECHR also states that preventing the disclosure of information received in confidence, or maintaining the authority and impartiality of the judiciary, is a legitimate aim.
  • The restriction must be necessary in a democratic society, meaning that it must be necessary and proportional. This entails an assessment of whether the proposed limitation satisfies a “pressing social need” and whether the measure is the least restrictive way to achieve the aim.

 

ARTICLE 19 submitted, in its opinion, that the Law is disproportionate to the aim pursued for the following key reasons:

  • Whether personal information is ‘relevant’ is an unduly broad yardstick against which to decide whether information should remain genuinely accessible. In fact, it assumes that personal information is only relevant in the eye of the person making the ‘right to be forgotten’ application. However, information about a person may be both personal and public – it may be relevant to the person seeking the information, and may be relevant insofar as it concerns a matter of public interest. In other words, there is no such thing as an objective conception of relevance. In requiring search engines to determine the ‘relevance’ of information, lawmakers and courts impose on search engines an impossible task.
  • The Law entirely fails to make reference to the right to freedom of expression as an important right that must be balanced with the right to privacy and protection of personal data during the examination of ‘right to be forgotten’ requests.
  • The Law fails to include an overarching presumption that information already legitimately in the public domain shall remain in the public domain except where it has demonstrably caused serious harm to the person concerned; and a broad exception for personal information in the public interest and/or concerning public figures.
  • The exception that search engines are not required to delist links concerning allegations of criminality or information about convictions, which have not been expunged or quashed, is too narrow to cover cases where the criminal record of the concerned individual has been expunged but there remains a clear public interest in having access to the information. In the present instance, the complainant does not know on what basis the request for de-listing was made. However, based on the content of the webpages at issue, it appears that an individual whose criminal convictions for hate crimes were mentioned in both pages may have made the request.
  • The action required by the search engine is unclear, specifically whether search engines are required to remove the links at issue entirely or whether they must delist search results generated on the basis of a person’s name. ARTICLE 19 believes that any law providing for a “right to be forgotten” should be limited to a right to de-list search results generated on the basis of a search for a person’s name

 

The Law lacks important procedural safeguards

The Law is also devoid of important procedural safeguards:

  • the right of linked-to sites to be notified that a ‘right to be forgotten’ request has been made in respect of their content; and
  • a requirement that search engines publish transparency reports containing sufficiently detailed info about the nature, volume and outcome of ‘right to be forgotten requests’.

At a minimum, the Law should provide a right for linked-to sites to be notified and given an opportunity to intervene in cases being challenged by search engines before the courts. Further, the Law should require search engines to publish sufficiently detailed information about the nature, volume and outcome of de-listing requests to ensure accountability in the application of the law.

 

Applicability of the Law and State sovereignty

The Law is particularly far-reaching since it will apply to any search operator “who places advertisements on the Internet network aimed at attracting the attention of consumers located on the territory of the Russian Federation”. The Law is therefore clearly intended to apply beyond Russian search engines to Google and other search engine operators that are based – and may collect the personal data of Russian nationals from – outside the Russian Federation. Instead, the applicability of the Law should be limited to operators having a branch/subsidiary established in the Russian Federation.

In this case, SOVA operates a website under .ru, the Internet country code top-level domain (ccTLD) for the Russian Federation. However, it may be accessed by Russian-speaking users from outside the geographic territory of the Russian Federation. Furthermore, SOVA’s website is available in both Russian and English, meaning that Internet users worldwide are able to access its content.

By requiring search engines to alter the contents of search results available to users that could potentially be located in other countries, thereby impacting their freedom of the expression, the Law also violates the principle of State sovereignty.

The principles of comity and reciprocity suggest that the Law should not be used to impose global restrictions on freedom of expression through ad hoc remedies grounded exclusively in domestic law, without regard to international norms, laws or policies. Otherwise, any country could potentially assert jurisdiction over a search engine in order to restrict access to information all over the world.


Conclusion

The Russian Constitutional Court is currently deliberating on this important case for freedom of expression and access to information online, amid a worsening environment for civic space and online freedoms in Russia, with a decision expected later in 2019.

 

Paige Morrow may be contacted by email at paige@article19.org or Twitter: @paigemorrowlaw.

ARTICLE 19: Global Campaign for Free Expression (ARTICLE 19), an independent human rights organisation that works around the world to protect and promote the rights to freedom of expression and information. ARTICLE 19 has produced a number of standard-setting documents and policy briefs based on international and comparative law and best practice on issues concerning the rights to freedom of expression. It also regularly intervenes in domestic and regional human rights court cases, and comments on legislative proposals, as well as existing laws that affect the right to freedom of expression.

Brexit Update: The Meaning behind the Second Meaningful Vote

By Tom Frost, Sussex Law School

The Background

The House of Commons revisited the Government’s 585 page Withdrawal Agreement with the European Union (EU) on 12 March for a second ‘meaningful vote’. The ‘meaningful vote’ is the common name given to section 13 of the European Union (Withdrawal) Act 2018, which compelled the Government to bring forward an amendable parliamentary motion at the end of the Article 50 negotiations with the EU. Before the exit agreement is ratified and incorporated into UK law through an Act of Parliament, the House of Commons must approve the withdrawal agreement via a motion and the House of Lords must consider that same motion.

The first meaningful vote took place in the Commons on 15 January 2019, which resulted in a 230-vote defeat for the Government – the worst defeat for a UK Government in modern history. Central to this defeat was the opposition of Conservative backbenchers and the Democratic Unionist Party (DUP) to the ‘Irish backstop’. The backstop is an insurance policy, ensuring the Irish border remains open, which honours the Belfast Agreement of 1998. If the negotiations between the EU and the UK on the future trading relationship between the two are not successful, under the backstop the whole of the UK enters a ‘single customs territory’ with the EU. In addition, Northern Ireland would remain aligned to the Single Market to ensure the Northern Irish border remained open.

The Current Situation

On 11 March, the Prime Minister negotiated further documents that now form part of the UK’s exit arrangements from the EU. Alongside the Withdrawal Agreement and the Political Declaration were three other documents. First, a Joint Interpretative Instrument, a legal add-on to the withdrawal agreement, giving legal force to a letter from the Presidents of the EU Commission and Council, stating that it is the EU’s intention to negotiate an alternative to the ‘Northern Ireland backstop’. Second, a unilateral statement from the UK stating that, if the backstop became permanent, and talks were not advancing on an alternative, that the UK can exit the backstop. Third, the political declaration, a non-binding document accompanying the Withdrawal Agreement, has had additional language added to it, illustrating the need to find an alternative to the backstop.

Yet these concessions (and the EU made clear that no further concessions would be forthcoming going forward) were not enough for the House of Commons, who voted by 391 votes to 242, a majority of 149, to reject the Government’s Withdrawal Agreement, the fourth largest Government defeat in history.

What’s Next?

Now that the meaningful vote has been defeated for a second time, the immediate next steps are clear. On Wednesday 13 March MPs will vote on whether to leave the EU with ‘No Deal’. If MPs do not vote in favour of this then, on 14 March, MPs will vote on whether to extend Article 50 TEU. The matter of an Article 50 extension is not, however, a matter for the UK Parliament. Any request for an extension would have to be considered by the EU, and specifically the European Council’s meeting of 21-22 March. The European Council is in a position to determine both whether an extension is granted, and also the length of the extension. There is a case to suggest that any extension may only be granted until 30 June 2019. New MEPs take their seats in July, and a short-term extension would mean the UK does not take part in this May’s European Parliament elections.

The Labour Party once again called for a General Election. However, since the passage of the Fixed Term Parliaments Act 2011 the only way that this can be brought about is through a formal Vote of Confidence or having two-thirds of MPs voting in favour of calling an election. The Act, passed by the Coalition Government, has effectively hamstrung Parliament. This is because historically, situations such as the present one, with a key Government policy suffering huge defeat, would have led to an election by convention. However, under the 2011 Act, the Opposition does not have the numbers to guarantee a Government defeat in a confidence vote, meaning that the UK is likely to continue with a hung Parliament until the next scheduled election, in 2022.

The Difficulties Ahead

It is highly probable that the EU will grant the UK an extension to Article 50. Doubtless those who support a Second Referendum will greet this news happily. Yet this does not mean that the fundamentals of the situation will have changed. If anything, an Article 50 extension makes a No Deal Brexit more likely. Without a General Election, and with a hung Parliament, there may be a majority in Parliament against No Deal, but there is not a clear majority in favour of a Second Referendum, or a deal, be it designed by the Government or the Opposition. It is also true to say that any number of votes in the Commons decrying No Deal do not have any weight. If the UK reaches the end of the Article 50 period without a deal being agreed, the UK will leave without a deal.

In the meantime, the Civil Service will continue its preparations for No Deal, with over a hundred statutory instruments needed before a No Deal exit still awaiting debate in Parliament. And even if a deal is passed by the Commons and Lords before the extension of Article 50 expires, there are still six Bills which will need to be passed, covering everything from Trade to Agriculture, that have to become law before Exit Day.

The Commons rejection of the Government’s Withdrawal Agreement again has added more uncertainty to the UK’s future rather than solving anything. MPs, who until now have shown little desire to compromise on their positions, making the perfect the enemy of the good, will have to compromise to avoid the UK crashing out of the EU. Whether this is realistic is to be seen.

Dr Tom Frost is currently working at the Department for Digital, Culture, Media and Sport – he can be contacted by email at: T.M.Frost@Sussex.ac.uk

 

Featured

Protecting the rule of law in Hungary and Poland: how well has the Commission done?

By Israel Butler (PhD Nottingham, LLM Nottingham, BA Cantab.), Head of Advocacy, Civil Liberties Union for Europe

Poland and Hungary have serious problems when it comes to respect for the rule of law, certain fundamental rights standards and the proper functioning of a healthy democracy. These form part of the EU’s fundamental values, set out in Article 2 of the Treaty on European Union (TEU) and proper implementation of these values is a prerequisite for EU membership. This blog will take a look at what the European Commission has managed to achieve so far to bring these two governments back into line and suggest what it could do in the future within its existing powers.

Infringement proceedings

The traditional tool used by the Commission to secure compliance with EU law is infringement proceedings. Unfortunately, the EU does not have general competence in the field of fundamental rights. It has a negative obligation not to infringe on rights when it legislates. But it has used its legislative powers to incorporate fundamental rights standards into regulations and directives relatively sparingly and has been slow even to enforce the standards that do exist. For example, it took the Commission over a decade to begin proceedings against certain Member States under the Racial Equality Directive despite well-documented discrimination against Roma.  If the Commission wishes to use infringement proceedings on issues related to the rule of law, it has to overcome its reticence to enforce fundamental rights standards, and be creative – the latter being a characteristic in short supply in the Commission Legal Service.

Early in Hungarian Prime Minister Orbán’s tenure, the Commission won cases against Hungary relating to the early retirement of judges (which it argued as an age discrimination case) and the premature termination of the mandate of the data protection ombudsman (who was replaced by a new data protection authority headed by a political appointee). However, this did not produce any changes in practice. Only around one fifth of the judges were returned to post (and not necessarily to their original positions) and the new data protection authority was created as planned. Recently, the Commission has been more adventurous in its use of infringement proceedings. In particular, by going after Hungary’s anti-NGO law using rules on free movement of capital and going after Poland’s judicial reforms on the basis of a general principle of EU law that requires effective remedies for citizens exercising their EU law rights. One might note that these were both solutions previously suggested to the Commission by civil society organisations. It remains to be seen whether these cases will make a real impact on the ground.

Infringement procedures are good for executing surgical strikes on problematic pieces of legislation. But they are not very effective against broad concerted reforms designed to destroy the division of powers. When it came to other rights-related issues, the Commission has attempted to place political pressure on Hungary in conjunction with the Council of Europe and made vague threats about Article 7 TEU. But it’s difficult to conclude that legal or political tools have prevented the regime from pushing ahead with efforts to bring state institutions under party control.

The rule of law framework

In response to a call from the Council to create some kind of new mechanism that was more powerful than infringement proceedings and more easily activated than Article 7 TEU, the Commission created its ‘framework on the rule of law’ in 2014. The framework sets out a process of dialogue to be followed in cases where a government has created a systemic threat to the rule of law. The process concludes with the Commission issuing non-binding recommendations to be implemented by the government in question. This author and many in academia criticised the rule of law framework as half-hearted and self-defeating. Mostly because it relies on the goodwill of the targeted government to voluntarily repair the situation – goodwill that is unlikely to exist if the government is deliberately and seriously sabotaging the rule of law. We have seen a clear demonstration of this weakness in the Commission’s dialogue with Poland, whose government has ignored, mocked and rebuked the Commission and its recommendations.

However, the modest rule of law framework was probably the most the Commission could hope to achieve at the time, and even then, some Member States tried to derail it. Conversations with some of the architects of the framework suggest that the Commission was trying to codify the process of dialogue, which it had had to improvise with Hungary, to avoid future accusations of ‘making it up as it went along’. The Commission also seems to have created the framework as a means of making the subsequent activation of Article 7 TEU – which makes governments very nervous – easier. The long process of dialogue gives the Commission time to gather political support among governments, time to show that a thorough and impartial analysis has taken place and time, if the targeted government is confrontational and diplomatically clumsy, for other Member States to lose sympathy.

This appears, at least, to be the case with the Polish government when, in an unprecedented move in May, the Council discussed the rule of law in one of their own Member States. Poland was again on the Council’s agenda in September. While subtle, there were signs that the Commission may be succeeding in using the framework to bring governments slowly around to the view that activating Article 7(1) TEU may become inevitable.

Why Poland but not Hungary?

The Commission has been criticised for not activating its framework on Hungary. Objectively speaking, Hungary’s situation is still worse than Poland’s. Legally, it is difficult to make the case that the difference in treatment in justified. The Commission’s line on Poland has been that the government is acting in contradiction to its own constitution in the way that it has interfered with its judiciary. This suggests that the Commission regards Hungary as a different case because everything that Orbán has managed to do (including clipping the wings of the highest courts and packing them with friendly judges) has been in line with national law. But this is because his super-majority has allowed him to change the constitution whenever he needed to. This is not only an unsatisfying distinction. It also suggests that the Commission sees the rule of law as ‘rule by law’, according to which the quality of the democratic process and the compliance of laws with fundamental rights doesn’t really matter as long as legislation is enacted according to the correct formal procedure.

The real reason Hungary’s government has escaped the pressure facing Poland is that the ruling party, Fidesz, belongs to the largest political grouping in the European Parliament, the European People’s Party (EPP). This group has shielded the Hungarian government from criticism. Splits are now emerging in the EPP, but the German government (also part of the EPP group) has been unwilling to sanction steps against Hungary. This is because the German government’s junior coalition partner is supportive of Fidesz. And Germany’s recent election has only deepened the ruling party’s dependence on that junior partner. This situation has hitherto meant that the Commission knew it probably would not have support among the Member States in the Council if it triggered Article 7(1) TEU. In Poland’s case, however, the ruling Law and Justice party belongs to a relatively small group in the European Parliament, the European Conservatives and Reformists group (ECR), which has been unable to protect it. This has allowed stronger criticism of the Polish government to emerge from the Commission and the European Parliament.

So what’s next?

For the EU to adopt any kind of sanction against Hungary or Poland, the Council would have to activate Article 7(2) TEU, which requires unanimity minus the Member State under examination. Some see this as a dead end because Poland and Hungary will protect each other with their vetoes. But there is still a way that Article 7(2) TEU could be triggered against both governments. The European Parliament is currently working on a resolution to trigger Article 7(1) TEU in relation to Hungary. If the Commission triggers Article 7(1) TEU on Poland, then both governments could land on the Council’s agenda at the same time. And it’s been suggested that a vote to activate Article 7(2) TEU could be taken on both countries simultaneously. That would exclude both of them from the vote and prevent either from using their veto to protect the other.

There are other possible measures. The EU could cut off structural funds, which are seen as vital to the economies of both countries. Current rules allow funding to be stopped if the government does not have an administrative and judicial system in place to ensure money is spent according to national and EU law. For Hungary it’s arguable funding could be suspended because of corruption. For Poland, because the courts are no longer independent and so cannot be presumed to ensure the proper application of national and EU law. The risk is that suspending funding may have negative consequences for the general population: the very people the EU is trying to protect.

Broader reforms to safeguard against right wing populism in the EU

There are two other steps the EU could consider, though these should be measures that apply generally across the EU. Both Hungary and Poland are democracies, which suggests that many of the retrogressive reforms have taken place with the consent or acquiescence of a significant proportion of the population. This is probably partly due to two things. First, the control that the Hungarian and Polish governments have over the media, which gives them significant influence over the population’s understanding of public affairs. The EU could change rules relating to the media market to guarantee the independence of public service media from government, but also to guarantee media plurality. The latter would prevent a small group of owners with political links or agendas from dominating the news.

The second factor is that, as well as silencing the media and hobbling the judiciary, populist authoritarians also target NGOs, for example by weighing them down with spurious administrative burdens or interfering with funding. This is because NGOs, like the media, help to inform the public about current affairs. They also uphold the rule of law by taking governments to court. And they tend to work on issues such as democracy, fundamental rights, anti-corruption, environmental protection and the rule of law. This makes NGOs natural enemies of right-wing populists. The EU could do much more to support organisations that promote its fundamental values. Like the media and the judiciary, NGOs are an essential pillar of a healthy democracy.

Unfortunately, the Commission seems to have a tendency rather to treat them as subcontractors on short-term projects helping to implement EU law, for example, through research or delivering training. To support NGOs the EU could, for example, create an EU statute for associations. This would allow organisations being strangled by national administrative rules to escape restrictions by registering and forming an association directly under EU law. The Union could also replicate the way it supports NGOs in foreign policy by creating a European endowment for democracy to fund NGOs to carry out public education, litigation and monitoring in support of its fundamental values.

Final Thoughts

The Commission has failed in spectacular terms when it comes to Hungary, perhaps in part due to being naïve about Orbàn’s commitment and audacity to create an authoritarian state and in part due to political factors that led the Commission to completely discount Article 7 TEU as an option. Its willingness to use infringement proceedings more creatively to protect the rule of law has come rather too late in the day. Now the European Parliament has taken the hot potato of Article 7 TEU from the Commission, but the German election results mean that Fidesz is likely to continue to benefit from the protection of the EPP. On Poland, the Commission appeared better prepared and stepped up to its responsibilities promptly when the government began taking damaging measures. But the Commission is waiting too long to trigger Article 7 TEU while it canvasses national governments for support; in the meantime the Polish government continues to move quickly to enact its retrogressive reforms.

Politicians with populist tendencies in other Member States are watching what happens to Poland – if the government can backslide without facing consequences, we will see more countries head the same way. One of the reasons the EU expanded eastward in the first place was to spread democracy, rights and the rule of law. And publics in former Communist countries supported accession because they believed the EU would deliver. Unless the Commission together with governments supportive of the rule of law up their game, the EU’s legacy will be one of empty achievements and broken promises.

Israel Butler can be contacted by email at: i.butler@liberties.eu or Twitter: @idjbutler

The Civil Liberties Union for Europe (Liberties) is a non-governmental organisation promoting and protecting the civil liberties of everyone in the European Union. We are headquartered in Berlin and have a presence in Brussels. Liberties is built on a network of national civil liberties NGOs from across the EU. Unless otherwise indicated, the opinions expressed by Liberties do not necessarily constitute the views of our member organisations.

 

 

 

The UK’s offering to EU citizens: a lesson in fairness and generosity

The British government’s proposal on EU citizens’ rights after Brexit

A full year after the EU  referendum, the UK government has finally issued a seemingly detailed official proposal as offering to the Three Million non-UK EU citizens living in the UK.

These people have spent the year lobbying governments, parliaments and relevant organisations all over Europe in a desperate plea for clarity about their post-Brexit rights – as well as those of UK EU citizens living in Europe.

Their uncertainty is the result of the UK’s efforts to withdraw as a Member State from the European Union. Article 50 TEU – the legal mechanism for initiating the withdrawal process was triggered in March 2017, which accelerated the run for paperwork qualifying the status of EU citizens living  abroad under EU and/or UK law.

Permanent residence documentation (PR) is meant to evidence the individual’s rights to reside in their host country permanently. The key lies in “evidence”. The paperwork does not award any rights, it merely evidences it, comparable to a passport. In the UK, however, it is also an essential criterion for a successful application to British citizenship.

This highly anticipated paper has received immense criticism from politicians, lawyers, and citizens alike, be it in the UK or the EU, almost imminently after its birth. The “fair and generous offer” as it was dubbed by PM Theresa May, is allegedly falling short of the EU’s proposal and continuing to use  non-UK EU citizens here and UK-EU citizens living abroad as “bargaining chips”.

A New “UK Settled Status”

The proposal seems to be starting off very generously, by offering all non-UK EU citizens the right to remain, provided they have been living in the country lawfully for a minimum of five years, which is the residency threshold in the existing permanent residency system briefly mentioned above.

While the PM promised a simpler system that doesn’t involve much paperwork, she has not provided any clarity on how “lawfully” will be defined. The issue with the requirement of lawfulness in the current systems, stems from the added layer of complexity where non-UK EU citizens reside in the UK but are not economically active. This category includes students as much as stay at home parents and generally self-sufficient individuals, living in the UK. EU law requires any such EU citizen to hold comprehensive sickness insurance in their host Member State, in order to ensure they are not to become a financial burden for the same.

The policy paper speaks to the PM’s promise as the requirement of comprehensive sickness insurance is being dropped all together with the eventually newly established “settled status”. This new form of permanent residency will require evidence of five years continuous residency in the UK, nothing more. Surely, non-UK EU citizens living in the UK were thrilled about this? Except they weren’t.

Despite this seemingly legally sensible offering and finally some provision of clarity and certainty – particularly since we now know that family members yet to arrive in the UK will be included, those affected are right to remain wary. The new status, on paper, promises to be future proof, even after Brexit, but what about the system currently in place?

The policy paper proposes a voluntary registration for “settled status” up to a specific cut off point, yet to be agreed, after which it will become mandatory for all UK based non-UK EU citizens to register if they want to continue living and working in the UK. We have seen a rise in applications for documents under the current system and a surge in applications for British citizenship, following that. These EU citizens have spent money, time and tears on clarifying their status within the current legal framework and have now been told that, unless they use this paper to become British citizens before the ominous cut off point, they will be forced to jump through administrative hoops yet again. The policy paper promises a streamlined process, but it clearly states that those that hold PR now will have to re-apply under the current system. A fee waiver is not mentioned.

The frustration of non-UK EU citizens is understandable. After being left with no certainty over their future status, they have of course used the existing system to evidence their rights. The proposed “settled status”, however, does not suggest to be evidential only. The right to reside in the UK will depend on the “settled status” being awarded. Similar to the existing system of ‘indefinite leave to remain’, will the status itself award non-UK EU citizens a right to remain in the UK? Once the UK ceases to be a Member State, all residential rights based on EU citizenship implode. The “settled status” steps into that hole and consequently all non-UK EU citizens seeking the right to remain, will have to apply for this specific status.

Benefits, pensions and healthcare

Following the uncertainty around residency rights, access to healthcare and pensions is among the greatest concerns for EU citizens living in the UK and equally for UK nationals living in the EU abroad.

The government’s paper is envisaging protected access to UK pensions and also wants to “seek to protect” access to healthcare. It even goes so far as to say that it wants to have an agreement in place that is similar to the existing European health insurance card.

All of this sounds promising, but whether it survives negotiations and legislative process is another matter. It also gives the impression that somehow non-UK EU citizens will be treated unfavourably in comparison with British nationals resident in the UK. They will not just have the same access, they will somehow evidence their connection, relation and/or economic activity to be worthy.

The mysterious cut-off point

The idea that there can be some kind of cut-off point to decide who does and doesn’t qualify for residency rights also shows a lack of awareness of EU law, and consequently provides for the second legal crux. The UK seems to be under the impression that any time before the official end of its EU membership can be set as a cut off point. Only people entering the country before that time, it apparently believes, would automatically qualify for residency rights. May’s announcement refers to any date between March 29 2017, when Article 50 TEU was triggered, and March 2019, when the two-year negotiation period would officially end.

But again, there is no legal way for the UK to limit free movement from the other Member States until it has left the union. There cannot be a legal cut-off point before March 29 2019, unless all EU Member States and their parliaments agree to change the law.

The Court of Justice

One legal crux of the policy paper and general negotiations alike, is the absurd obsession over the jurisdiction of the Court of Justice of the European Union (CJEU). The PM claims that EU law will no longer apply in the UK through the CJEU. Not only does it remain questionable whether the disconnection of EU citizen rights and the jurisdiction of the Court will survive and succeed during the negotiations; it is also questionable where the practical need for this lies. This seems mainly a point of principle about sovereignty. A political promise the government is adamant to keep, rather than legal necessity. The government argues that new UK laws will be passed to define EU citizen  rights after Brexit, so the ties to the CJEU can be cut.

Theoretically, that’s possible but it will be very difficult to completely leave the CJEU’s jurisdiction. The court’s case law is highly interwoven with the principles and rights also applying to EU citizens. In a way, even if the UK succeeds in passing matching domestic law, the CJEU could still arguably remain influential. We are, after all, talking about the status of EU citizens in the UK. What’s more, the UK also seems to be overlooking the fact that British citizens living abroad are likely to remain subject to the CJEU jurisdiction.

The withdrawal agreement is also likely to be overseen by the EU institutions and even Norway and the other European Economic Area (EEA) countries have to apply the Court’s rulings. It is difficult to imagine a legal arrangement that will completely disarm the EU jurisprudence. Besides, albeit populist reports claiming differently, the CJEU’s jurisdiction is limited to where it has competence, so most of the UK’s jurisprudence is and will continue to be completely unaffected.

Second class citizens?

When reading the policy paper, we cannot escape the notion that a new category of citizen is envisaged. One that will have no electoral rights, which non-UK EU citizens in the UK currently hold for council elections, monitored access to benefits and limited legal means to challenge any infringement of their rights based on their status as EU citizens.

Not only will the UK differentiate between EU citizens and other international members of British society, it will also create subcategories for this group. There will be the “good” (economically active) and the “bad” (economically inactive). Access to benefits, healthcare and pensions is promised to the “good” while the economically inactive remain excluded.

How the status will be evidenced is also another matter. Is a system of ID cards going to be implemented? Will it apply only to a specific group within the UK’s population?

Interestingly, it was David Davis, the secretary of state for exiting the EU, who once resigned as shadow home secretary over the issue of ID cards, arguing they were intrusive.

The government is suggesting that people with “settled status” can move away from the UK for two years without losing their rights. This sounds reasonable, but is it realistic? European citizens are used to free movement. How will their border hopping be monitored? Will they be given a unique passport that they use like a loyalty card? When it’s full, will they need to stay put?

The government’s plan can be accepted as a starting point – so long as all the good things in it survive the legislative process. It’s not the worst possible offering, but it is far from being the best. Certainly some of these are practicalities that can be defined as we go along, but let’s not forget: 12 months of uncertainty is a long time for anybody looking to plan for their personal future. How much longer should EU citizens be expected to hold their breath?

This blogpost is based on a series of articles written by Anne Wesemann (PhD candidate in Law, University of Sussex, Teaching Director & Lecturer in Law at The Open University), first published by The Conversation.