Examination of Witnesses (Questions 140
- 159)
WEDNESDAY 28 NOVEMBER 2007
Professor Elspeth Guild and Mr Florian Geyer
Q140 Chairman:
I think the argument is as to whether the only means of legislating
is now under the new provisions which provide for an opt-in or
whether there is still a residual and, one might argue, a primary
basis of legislation under the transport and environmental provisions
which presently have been worked out in their scope by the European
Court. The European Court has spoken cautiously in each case and
limited its observations to a pillar one jurisdiction in respect
of environmental matters. Is that not the position?
Mr Geyer: As I said before, if there are future
cases, they will be limited, I presume—but it is never able
to predict it with full certainty—to environmental crime.
It might be possible or we might see that it will be eliminating
an opt-out in this case if the court is, let us say, strong enough
or confident enough to say, "We have developed this under
the old Treaty and, as we have not changed the environmental law
substantially with the new Treaty, we have, in effect, the same
provision which was good enough for criminal sanctions under the
old system and it will continue." But, as I said, I think
it will be limited to this special field of policy.
Q141 Chairman:
Just to sum it up, we may be in a position where the court is
unlikely to eat its previous words but is unlikely to speak more
widely and extend the jurisprudence, which, apart from the Treaty,
it might well have done.
Mr Geyer: Yes.
Professor Guild: My Lord Chairman, I would like
to add that the Commission has proposed a number of other measures
now which include criminal sanctions in other fields. For instance,
the one I am most familiar with is the employer sanctions for
hiring irregular or undocumented aliens. There are a number of
proposals out there that are on the table of the Council at the
moment which do include the sanctions. It will be a question for
the Council to decide in the negotiations in which the UK will
participate—unless, of course, it opts out, as it looks
like it is going to do on the employer sanctions one. It will
be in those negotiations that that decision will be dealt with.
If in a Directive in some other field of law beyond, for instance,
environmental—let us say in working conditions—the
Council agrees a measure which includes criminal sanctions, it
would seem to me a bit odd then if the Court of Justice were to
say, "Tut-tut ... No, no, we cannot possibly do that,"
because we will have the political evidence in the form of the
Directive that the Member States wanted to do it.
Q142 Chairman:
Thank you. Shall we move on to another concept which we find for
the first time in this area—correct me if I am wrong—and
that is mutual recognition, Article 69e. What do you perceive
Article 69e as meaning and how do you perceive it as applying?
Mr Geyer: It is very interesting to see that
the principle of mutual recognition is making its way into the
Treaty. It has been out there for quite a while, since the late
1990s. The most stunning aspect of the irony of history is that
it was in fact the UK which was most eager and strongly promoted
this principle of mutual recognition to be used and applied also
in criminal law because it would help in overcoming the different
systems—common law, civil law—making it not so necessary
to approximate procedures. It is interesting to see that now that
it will come into the Treaties promoted by the UK, the UK chooses
to get as far away as possible from those provisions, like a father
who is seeking to avoid any responsibility for his child. The
principle of mutual recognition has its pros and its difficulties.
There are difficulties, highlighted, for example, by the Finnish
Presidency last September, where they issued a paper stating,
"We are facing problems with this principle. We thought it
was a very good principle but we are having problems in the implementation,"
and in June the Commission tendered for a study to assess this
principle and what the future of this principle will be. It is
very interesting to read the tender explanation because it is
in fact a statement of all the things that do not go well under
the principle of mutual recognition. It is in fact stated in this
tender that there are different conceptions and understandings
between Member States as to what it refers to and what it actually
entails. We are in the situation right now that the principle
of mutual recognition will be elevated from policy to hard treaty
law but we see that there are still some misconceptions and difficulties
in knowing what actually this new Treaty provision will entail.
Q143 Chairman:
In language terms it embraces not merely recognising each other's
decisions but also, linguistically, it is expressed to include
an approximation of the laws and regulations of the Member States
in certain areas, particularly the core areas of terrorism, drug
trafficking, et cetera. Linguistically, it is a slightly all-embracing
concept.
Mr Geyer: We had already taken the position
that mutual recognition might not work in its pure form. It always
needs accompanying approximation of certain rules in order to
allow us to make it happen, because this principle of mutual recognition,
the concept of mutual recognition, is built on mutual trust. One
judge trusts the other judge and the citizen has trust in the
different systems and knows that his rights and safeguards are
protected throughout the EU. This is why we can trust an order
that is coming from Greece to Germany or from Spain to Italy,
because we know that there are common rules. This is why we always
said that the pure principle of mutual recognition will face difficulties
because this trust cannot be imposed and implemented without the
accompanying measures that show the professionals and the citizens
that there are reasons to have trust in each other. In an edited
volume that we will be publishing soon, we have a contribution
titled: Too Different to Trust and there the author made
a comparison and interviewed German judges and UK judges on the
implementation of the European Arrest Warrant and the level of
trust that they have. There it was seen that the further away
legal systems are in their concepts, the less it is that judges
and magistrates do practically work together. There is a good
relationship between Germany and Austria because the systems are
similar and the languages are similar but the further that moves
apart the more difficult it will become to have this trust that
is necessary.
Q144 Lord Jay of Ewelme:
In the classic areas of the Treaty where mutual recognition has
existed so far or has done for some time, like the single market,
there is usually a combination, as I understand it, between mutual
recognition based, as you say, on trust and a sort of minimum
harmonisation in order, as it were, to encourage that trust among
the Member States. Is that a concept which you can see as applying
in the areas in Title IV or is that an area where one is going
to have to look at this rather differently?
Mr Geyer: This is the idea where it comes from,
but I think that Member States so far were quite eager to try
to agree on those underlying common principles, like toy safety.
If we trust in a different product—alimentation, toys, liquids,
chemicals, all those things—we trust each other because
we have common standards of product safety. Exactly this is the
problem in the field we are talking about now: we want to promote
the principle of mutual trust but Member States have difficulties
in finding common ground on those accompanying measures that would
establish the common standards.
Q145 Lord Jay of Ewelme:
What would be the process, as it were, of testing this system?
Would it be coming forward with a proposal and then, as it were,
testing it during the negotiation? Or would there be some kind
of event before that to work out exactly what Member States meant
by mutual recognition in the context of Title IV? What happens
now, as it were, or will happen, assuming this goes through?
Professor Guild: If we take a couple of the
really difficult chestnuts on the European Arrest Warrant, one
is the elements of the crime. We have our list of the crimes for
which there is no longer an obligation of criminality in two Member
States. One of the difficulties which arises endlessly is: "Yes,
but does robbery mean the same thing?" Are the elements of
the crime the same in two different Member States or is this a
completely different crime for which we are no longer required
to have criminality which means that we have a fundamental problem.
To resolve that, if we take one of the practical examples and
one of the areas where there has been quite a lot of call in the
legal world for further clarification to ensure that we know exactly
what we are talking about when we are talking about mutual recognition
for the purposes of the European Arrest Warrant, there would need
to be a proposal. It would need to be a legislative proposal.
It is almost inconceivable that it could happen through judicial
decision making. If the system got so out of control that the
European Court of Justice was faced with the question: "What
are the elements of the crime?" I think that indicates a
failure on the part of the lawmaker to give sufficient clarity
to the issue.
Q146 Lord Lester of Herne Hill:
I wonder whether this makes any sense. It seems to me that in
the German or the American system of government you have federal
clients, federal courts, common standards as well as state courts.
In the European system, we do not have that. We do not have federal
crimes, we do not have federal courts, we have a very incomplete
system. The European Court in Strasbourg is meant to ensure independence
and impartiality in the determination of criminal and civil cases
but its 47 judges have a backlog of over 100,000 cases and cannot
really do that well. Among the Member States there are some who
do not yet have properly independent and impartial courts, in
my view. Therefore, when we talk about mutual recognition and
other compromised mechanisms, is it not right to say that these
are attempts with an incomplete system to do the best one can,
given all the disadvantages I have just tried to summarise crudely
and undiplomatically?
Professor Guild: One of the issues which we
have raised again and again is that there have to be compensating
measures. One of the great difficulties about going down the route
of the European Arrest Warrant is that, if you do not have at
the same time a measure on the rights of the defence and a measure
on bail, you are going to get a highly inadequate system; that
you cannot go down the course of route without also protecting
the citizen against the course of power of the state. We see again
and again an enthusiasm for abolishing the internal borders that
constrain the coercive state among the Member States and a huge
reluctance to abolishing those obstacles that borders form for
the protection of the defence. Therefore, I think that your question,
Lord Lester, is a very proper one.
Q147 Lord Lester of Herne Hill:
You are talking about substantive safeguards built into the European
legislation. I am trying to say that whatever safeguards you build
in—and I quite agree with the point you make—you have
to have judges there to be able to give effective remedies. The
problem is, looking at Europe as a whole, to see that there will
be a common system of effective remedies, either among the Member
States' courts or among the two European courts. Therefore, when
you are seeking mutual trust it makes it harder to do so if you
are looking at it from the enforcement point of view, from the
judicial determination point of view, whatever safeguards you
build into the legislation.
Professor Guild: Indeed, but I think we need
to be careful when we are looking at different systems and our
concerns. Perhaps we can take the excellent study which the Council
of Europe's Committee CEPEJ did on criminal justice systems in
the 47 Member States of the Council of Europe. They did a very
wide ranging study on the criminal justice systems, looking at
them from the perspective of how resources are allocated to them,
and one of the things which I found particularly interesting is
that there is one new Member State where a starting prosecutor
is paid twice the salary of a starting judge and there is another
Member Stats where a starting judge is paid twice that of a starting
prosecutor. The first case is Sweden and the second case is Ireland.
These are not self-evident. The ways in which our criminal justice
systems work and the weightings which we give to different parts
operate differently and perhaps the results are not as obvious
as one would expect.
Q148 Chairman:
Perhaps I could follow this line of thought a little. You have
been talking about the criminal areas. I do not know whether you
know, in the civil area, a case called Eric Gasser v MISAT,
the Brussels regime. It is a case where the European Court effectively
said that the fact that the Strasbourg Court has the backlog that
Lord Lester has mentioned and the fact that the backlog is very
heavily contributed to by Italian delays is irrelevant. The Austrian
Court had to await the outcome of Italian proceedings. Even if
there was a clear exclusive choice of law courts referring the
dispute to Austria, the Austrian Court had to stay its hand until
years down the line and the Italian Court eventually got round
to saying, "This is not for us." This is a device which
an Italian professor once described, I think in the 1970s, as
the "Italian torpedo": you commence proceedings in Italy
in order to thwart them in the proper jurisdiction. I do not say
that that was the facts in this case but it is a well-known device
and the backlog is referred to in the CEPEJ study which you mentioned.
You are saying that we need to have compensating measures if we
are going to impost mutual trust on states: we have to try to
ensure that the quality of justice is the same and that the standards
are the same and therefore a degree of harmonisation should follow.
Have I understood it right?
Professor Guild: My Lord Chairman, I am delighted
to hear this Committee speaking in favour of harmonisation in
criminal justice because I think that it is really quite a sensible
approach!
Lord Burnett: I think that is going a
little far actually, but, still ...
Q149 Chairman:
I was putting it to you as a question, I hope—though I was
much interested in Lord Lester's question and your response to
it.
Professor Guild: Perhaps I could add a little
bit to that on a more serious note. Article 69e(1) says "The
European Parliament and judiciary, acting in accordance with the
ordinary legislative procedure, shall adopt measures to: (c) support
the training of the judiciary and judicial staff; (d) facilitate
cooperation between judicial or equivalent authorities of the
Member States ... " It seems to me that we have at least
there a glimmering of a competence to deal with some of the issues
which are of concern to you which are very serious.
Q150 Chairman:
Do you think that if the Community signs up to the European Convention
on Human Rights it might take a greater interest in its jurisprudence
in the Human Rights aspects of access to justice?
Professor Guild: One would certainly hope so!
Q151 Chairman:
Perhaps we ought to move on. Would you make a comment on what
you mentioned in passing in your opening remarks, and that is
the dangers of different levels of integration via the enhanced
co-operation provisions via opt-outs and opt-ins. That happens
already. Why do you think it would be undesirable? It happens
already, informally and in Schengen and so on.
Professor Guild: Yes, indeed, My Lord Chairman.
I think our position is that if one looks at the Schengen experiment
one sees a very unsatisfactory mechanism of lawmaking. It can
hardly be a satisfactory situation that a whole treaty and all
of these uncertain objects that are made—and I will not
even glorify them with the name of "Acts"—suddenly
get pumped into the EU system to be sorted out thereafter, as
we did with the Amsterdam Treaty, and it has taken us more than
five years to try to figure out what is the legal value of any
particular issue. We still have tremendous incoherence throughout
the Schengen system about how it operates and which set of rules.
We have not managed to adopt a common visa code yet as a regulation.
We do have a border code as a regulation. It is a very, very unsatisfactory
way of going about things, which fails, in our opinion, to give
proper voice to the correct concerns of the Member States. When
a small group of Member States gets together and agrees something,
the reason it is not agreed by the 27 is because not all 27 agree.
Therefore, some have very substantial concerns. One can take the
Treaty of Prüm and the concern of the Swedish Government
regarding air marshals being armed on planes, which gave rise
to a series of difficulties there. If a smaller number of Member
States gets together and then seeks, as in the Treaty of Prüm,
to set out in a treaty what the agenda is and then at the end
of that treaty says, "And in two years we intend to make
this EU law" they are effectively saying that the legitimate
concerns of the Member States which had difficulty with certain
provisions are not legitimate at all. That seems to me to be an
extremely unsatisfactory way of going about lawmaking in a European
Union of the 27.
Q152 Lord Jay of Ewelme:
How would that make it European law? If there were only x
number of states under the Treaty of Prüm, they cannot just
say, "This is going to be European Union law"; there
then has to be a process which the others agree.
Professor Guild: Indeed. This is what we thought
and then the German Presidency put forward a proposal for a decision
which would transform the majority of Prüm. I would like
to say that the air marshals bit fell out in the process, but,
nonetheless, the rest of it has all stayed in. They have proposed
a decision—not even a framework decision, so it will not
even go through the legislative process—to transform Prüm
into a third pillar measure.
Lord Wright of Richmond: My Lord Chairman,
can I help Lord Jay and say that if he looks at the European Union
Select Committee's Report on the Prüm Treaty, on which, I
may say, Professor Guild was extremely helpful, you will see there
an explanation of what the Germans were trying to do.
Chairman: Did they succeed in doing it?
Lord Wright of Richmond: Yes.
Chairman: They did. Under what provision
is this? Under the third pillar?
Q153 Lord Wright of Richmond:
It is well under way.
Mr Geyer: I think they reached a political agreement
at one of the Council meetings. It is not yet hammered out completely
but apparently it will be soon. In spite of it being transformed
through the negotiating of the process into EU law, the old, the
original, Prüm Treaty does not cease to exist, so it will
be an international agreement between the seven original Member
States and whoever wants to join in, continuing to exist on top
of a Europeanised "Blue-Prüm". This makes it very
difficult for the judge and the magistrate who has to deal with
it because exactly what we want to achieve with the common EU
area is to make it more simple and more easy and to avoid a million
systems—
Lord Jay of Ewelme: I can see that. I
can see that that comes in untidy and undesirable and unstructured
and all that, but that seems to me a different point from the
point we were on earlier. It seems to be rather an important point—which
I have to say I had not quite focused on—that there was
a risk that people who had reached an agreement outside the framework
of the Treaty could in some kind of almost automatic way make
that an instrument of the EU as a whole. That seems to be rather
an important point.
Chairman: We are all grateful to Lord
Wright for the reference and we shall study the report. Which
Sub-Committee was it?
Lord Wright of Richmond: Sub-Committee
F. It is a European Select Committee Report. I should say that
there are also instances of six ministers getting together and
taking decisions which, by implication, commit all the members
of the European Union, in successive meetings on which this Committee
has also reported at Stratford-on-Avon and Heiligendamm, meetings
of Home Office ministers.
Chairman: We will ask our legal advisers
to send us all a copy. They are going to do that. I think this
is an important point.
Lord Wright of Richmond: My Lord Chairman,
Prüm is being debated in the House of Lords next week.
Chairman: Yes, on 5 December. Lord Bowness,
you had a question.
Q154 Lord Bowness:
A very short question, My Lord Chairman. If we could just leave
aside for the moment the desirability or otherwise of these opt-ins
and opt-outs, could I just ask the witness whether they think
the claimed opt-ins and opt-outs are effective in law.
Professor Guild: My Lord Chairman, I am the
opt-in person, so I guess I had better try to answer that one.
Are they effective in law? Well, the UK Government has chosen
not to participate in all of the measures on legal migration and
that means, for instance, that it does not participate in the
long-term residence Directive; that means, for instance, that
if Americans who have been living and working in the UK for five
years get a posting to Paris or to Frankfurt, they cannot go without
going through the whole work permit scheme over there and starting
all over again. Once again this has been dealt with in a report
of Sub-Committee F. Are they effective? Yes. To that extent we
have prevented third country nationals in the UK from participating
in that system.
Q155 Chairman:
And vice versa, presumably.
Professor Guild: And vice versa.
Q156 Lord Bowness:
Do you believe they will be equally effective under the new proposals?
Professor Guild: It would seem to me that those
kinds of opt-ins and opt-outs will be equally effective. If one
looks at, for instance, the third country agreements in the area
of immigration and asylum, the UK has opted in to all the readmission
agreements and out of all visa facilitation agreements. That seems
to be piggy-backing for coercive measures and then refusing to
accept the trade-off on the basis of which the third country agreed
the coercive measures.
Q157 Chairman:
Mr Geyer, time is short as far as you are concerned, or relatively
short. Is there anything you want to add on this question which
bears directly on the paper which we have read and thank you for?
Mr Geyer: On the enhanced co-operation question?
Q158 Chairman:
Yes.
Mr Geyer: I think we always need to keep in
mind just a very short remark, that the reason for judicial co-operation
as it was perceived historically and within the Treaty is not
an aim and a goal in itself but always accompanied or seen as
a flanking measure of opening up borders within the internal market.
This makes a difference in comparison to the international co-operation,
Interpol and the different measures—which may be seen as
an aim in itself—but within the EU it was always a flanking
measure: "As we may be losing security by opening up borders,
we will enhance co-operation of judges and policemen and we will
make it easier not to rely on borders as gatekeepers of security
because we have made it more easy to operate across borders of
policemen." When we have a common area of free travel, and
if we want to have this one area, then it is imperative that also
within this common area we do not have different levels of these
flanking measures. This is why, from this conceptual understanding,
a differentiated treatment of flanking measures within a unified
free travel area would lead to difficulties and to negativities.
Q159 Chairman:
Can I move on, unless there are any questions on that, to a point
on the new Article 24 of the Treaty of the European Union which
in the area of foreign affairs requires unanimity in respect of
the protection of individuals with regard to the processing of
personal data, whereas in other areas there is no such requirement.
What is the purpose of that provision?
Mr Geyer: On this question, My Lord Chairman,
we would be most grateful for the possibility to find out among
the governments of the EU 27 the purpose and the history of this
provision, because we did not have it in the Constitutional Treaty.
It is in fact an innovation of this new reform setting. It was
agreed upon in June, when it was also decided that the idea of
the Constitutional Treaty to have one common goal on data protection,
notwithstanding the policy area, was divided up. We have a special
declaration on data protection in the now third pillar; we have
this special provision of Article 24 on data protection when we
come to foreign policy. All this is surprising and there is no
proper explanation given, at least in the open sources, so we
would be most grateful if this would be a question posed by your
Committee to your Government and by the other parliaments to their
governments because it is very difficult to see. It seems to us
that it might be linked to the considerable difficulties and considerably
difficult questions in connection to the Extraordinary Rendition
Report of the Parliament. It might be linked to the measures against
financing terrorism, the listing cases, because all this involves
sharing data and using data with third states, with third intelligence
services, and it might be that in the Council and among Member
States there was a certain kind of nervousness that new data protection
rules that would apply to all fields would make them forced to
open up things that they might better not want to open up.
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