Category Archives: Procedural Law

New Insights on Possible Treaty Amendments

The idea for an amendment of the founding Treaties in order to accommodate a permanent bail-out mechanism is on the table after the last European Council meeting. Now there are new developments and opinions that touch on this subject.

CEPS has published three reports that contemplate on possible Treaty amendments – a post-mortem on the European Council, an overview of revision procedures under the Lisbon Treaty, and a more specific overview of the practicalities of the Lisbon Treaty revision(s). All documents suggest that a limited revision of the Treaties is achievable. The more specific proposals are:

  • amending art. 122 TFEU, and including a reference to financial stability (plus a permanent European Financial Stability Facility – EFSF, created on an intergovernmental basis), or
  • adding a reference to art. 143 TFEU – the legal basis to extend the existing EU support mechanism to non-euro area member countries in art. 136 TFEU – the special Treaty article for the euro area countries.

The authors note that the viability of both approaches will depend on the interpretation whether such an amendment would affect the no-bailout clause in Art. 125 TFEU, thereby changing the nature of monetary union and creating a fiscal transfer union (in German Transferunion). Additionally, it is arguable whether such an amendment would constitute a change to the “essential scope and objectives” of the EU, thus requiring an ordinary revision procedure.

Meanwhile some Dutch parties are trying to force a preliminary referendum on any pending Lisbon Treaty amendments.

It appears that any proposal for Treaty amendment must be considered very carefully in the light of possible ratification, as well as taking into account the no-bailout clause of art. 125 TFEU. My personal conviction is that any institutionalisation of a permanent bailout mechanism is legally troublesome, and in any case should be subject to ordinary revision procedure. But first of all we need to see the amendments in print before speculating on their legal essence.

New Directive on Combating Late Payment in Commercial Transactions

The European Parliament has approved the final text of a new directive on combating late payment in commercial transactions. As a general rule, the deadline for both public and private sectors to pay a bill for goods or services will now be 30 days. For business-to-business payments the general deadline is 30 days unless otherwise stated in the contract. If both parties agree, it is possible to go up to 60 days. The payment period may be extended beyond 60 days only if “expressly agreed” by the creditor and the debtor in the contract and provided that it is not “grossly unfair” to the creditor.

For public-to-business payments the general deadline is 30 days. If the two parties wish to extend the payment period, this has to be “expressly agreed” and “objectively justified in the light of the particular nature or features of the contract”. Member states may choose a payment deadline of up to 60 days for public entities providing healthcare.

Strategy for the Implementation of the Charter of Fundamental Rights

The European Commission has adopted its Strategy for the effective implementation of the Charter of Fundamental Rights by the European Union. The main points:

1. Guaranteeing that the EU is beyond reproach in upholding fundamental rights

All proposals for EU legislation must respect the Charter. On the basis of a fundamental rights “check list,” the Commission services will identify which fundamental rights could be affected by a proposal and assess systematically the impact on these rights of each envisaged policy option.

The Commission will launch an inter-institutional dialogue to determine methods for dealing with amendments that raise questions of compatibility with fundamental rights.

The Commission will use all tools available, including infringement proceedings when necessary, to ensure compliance with the Charter in the implementation of EU law.

2. Improving information for citizens

Citizens will have access to information about legal remedies in all Member States through the Commission’s new e-Justice portal in 2011.

The Commission will explain when it can and cannot intervene on fundamental rights complaints where these are outside the scope of EU competence.

3. Monitoring progress

The Commission will publish an Annual Report on the application of the Charter. The report will monitor progress in the areas where the EU has powers to act: showing how the Charter has been taken into account in concrete cases (such as when new legislation is proposed).

France Will Eventually Comply with EU Law on the Free Movement of People

In what should sound as a happy end to a very unpleasant episode of EU history, France has agreed to insert certain provisions of Directive 2004/38/EC into national law texts. That is a welcome development, but I remain quite interested in the facts surrounding the recent mass expulsions of Roma citizens to Bulgaria and Romania. Infringement of EU law does not come only in the form of lack of transposition, but also in the form of direct transgression.

CEPS Proposes Freezing Enforcement Procedure

Sergio Carrera and Anaïs Faure Atger from CEPS have provided a thorough and very interesting account of the current cases of expulsion of Roma citizens from France (hat tip: Grahnlaw).  They provide a careful and precise assessment of the expulsions from the perspective of EU law that is definitely worth reading.

More importantly, they put forward a proposal a new (preventive) enforcement mechanism that would complement the existing ones (the infringement procedure – art. 258 TFEU, and the fundamental rights proceedings, art. 7 TEU). This procedure would be primarily destined to ensure that contested national policies and practices falling within the remits of EU law and fundamental rights would be immediately ‘frozen’ while the formal opening of infringement or fundamental rights proceedings would be still be considered and/or under study.

This is a very interesting proposal with far-reaching consequences and is worth considering.

Whither Independence of the Commission?

A new trend in the institutional dynamic of the European Commission is evident: its independence, enshrined in the Treaties (art. 17, para 3 TEU; art. 245 TFEU) is waning. The EUobserver reports:

“A group of EU commissioners from smaller Member States is growing increasingly angry with a number of their larger-state colleagues, perceiving their actions as being driven by national interests rather than the greater European good.”

This is a really worrying sign. True, the Commission has often been suspected in the past of succumbing to pressure from larger Member States. And the very procedure of election of commissioners is, after all, subject to compromise by the governments of the Member States themselves. But the independence of the Commission is not a joke, and the repercussions can be very harmful.

But why do we need an independent Commission in the first place? Well, the independence of the Commission is at the heart of the integration method (called, at least until now, the “Community method”). The independence of the Commission guarantees a more objective approach to the integration process that is removed from the political concerns of the separate Member States. That is why the Commission is entitled with exclusive right of legislative initiative. It also implements EU legislation at the Community level and monitors the implementation of EU law at national level by Member States. In other words, the independence of the Commission guarantees that Member States will not be able to bend the integration process in the direction of their own, singular interests.

Now, if some commissioners start to defend the singular interests of the Member States that they come from, we are in trouble. Once the suspicion spreads (as it is spreading right now), all Member States will try to project their interests to the Commission by pressuring their own commissioners. This will destroy the credibility of the Commission, and is also illegal.

In fact at least one author – Jean-Paul Jacqué, has warned that there is a danger of the Commission becoming an intergovernmental institution which is in competition with the Council. One of the checks against this danger has been the empowerment of the European Parliament, but it cannot be expected to mend the problem. The Commission President should work hard to dispel suspicions of wrongdoing, and if necessary – to request the resignations of certain commissioners. Member States should also refrain from unduly pressuring the Commission as in the case of the Roma expulsions from France.

The alleged breach of the principle of independence of the Commission is the most dangerous challenge to the European integration in recent times. Keeping in mind that the European Union is to get new powers of economic governance, such a suspicion can indeed derail the whole integration process once the really tough disputes start.

2009 Report on Monitoring the Application of EU Law

The Commission has published its 2009 Report on Monitoring the Application of EU Law. The report outlines the main trends in the implementation and application of EU law during 2009.

At the end of 2009, the Commission was handling around 2900 complaints and infringement files. Around 77 % of complaints were closed before the first formal step in an infringement proceeding; around a further 12 % of the total were closed before the reasoned opinion and around a further 7 % before a ruling from the ECJ. The average time taken to process infringements, from opening the file to sending the application to the ECJ under Article 258 TFEU, fell from around 27 to 24 months.

According to the Commission late transposition and late reporting continue to constitute a widespread, systematic problem, affecting both technical updating of measures important to EU industry, priority EU policies and measures of interest to individual citizens.

The Commission underscores the use of correlation tables and expert groups for improving its cooperation with Member states on the monitoring of the application of EU law.

The Commission plans a review of its general policy on the registration of complaints and relations with complainants in the light of experience of the new methods now being tested. According to the Commission horizontal instruments, such as SOLVIT and EU Pilot, continue to develop and prove their worth, quickly resolving problems faced by citizens and enterprises.

The Commission also intends to step up the use of inspections in areas such as transport safety and security, where they can play a strong role in confirming the interpretation of the law and ensuring its correct application.