Examination of Witnesses (Questions 160
- 179)
WEDNESDAY 28 NOVEMBER 2007
Professor Elspeth Guild and Mr Florian Geyer
Q160 Chairman:
It is designed to increase the standard of protection of individuals,
is it, in the area of foreign policy?
Mr Geyer: I think it is designed to have a special
regime on it and to say: "We will adopt a special data protection
rule"—which in my opinion certainly will not be higher
than the others but which will have to be subject to the special
sensitivities that we have in foreign policy and security measures.
I think it is an excuse.
Q161 Chairman:
It may move in the opposite direction, you are suggesting.
Mr Geyer: I do think so. I do think that the
aim is to move it and to adapt it to the needs of the second pillar
and to the special needs that exist there.
Q162 Chairman:
There might even be an intention to give less protection to individuals.
Mr Geyer: It might do so and the parliamentarians,
the MEPs who represented the European Parliament, Elmar Brock,
Mr Duff and Baron Crespo, took this particular Article to say
this is unacceptable and they have been highly critical of this
move of the Inter-Governmental Conference to move out the data
protection standards in the second pillar. I think at a certain
point they even threatened to say, "If this is in the Treaty,
we will not sign."
Q163 Chairman:
Because they will not have a word in the setting of the standards
under the EU.
Mr Geyer: Yes.
Q164 Lord Lester of Herne Hill:
It seems to me, looking at Article 24, that the last sentence
is rather worrying because it says that compliance with the rules
will be subject to review by independent authorities, but that
is not an effective safeguard for the individual of the kind that
is required by the European Human Rights Convention, is it?
Mr Geyer: Exactly. It would add an independent
authority of which kind? Is it the European Data Protection Supervisor?
Is it the Article 29 Working Party? Will it be a special committee
created newly to allow for a special in camera procedures? There
is a fear that it might add another body/institution that has
a special mandate and, as you say, will not live up to the data
protection standards that we normally are used to.
Q165 Chairman:
Although, to be fair, that is also a phrase which appears in Article
15a in the Treaty on the functioning of the European Union, so
it is a common problem whether we are talking about foreign policy
or not.
Mr Geyer: Yes.
Q166 Chairman:
Could we move on then to a question about the changes introduced
by the proposed Treaty as regards co-operation in relation to
border checks, asylum and immigration. That is a comparison of
the existing Article 63 of the EC Treaty with Article 69a of the
new Treaty of the functioning on the European Union. Do you have
any concerns about that?
Professor Guild: My Lord Chairman, our greatest
concern or our greatest interest in respect of these changes is
specifically the changes in respect of the competence and the
jurisdiction of the European Court of Justice. The extension of
the court's competence to receive preliminary questions from courts
at all instances we think is absolutely fundamental and the most
important change which is taking place in this field and one which
we very strongly support.
Q167 Chairman:
Is that not going to carry with it risks of delay and overloading
of the court, which is already overloaded and is perhaps not in
its most familiar area dealing with this type of problem?
Professor Guild: Indeed, My Lord Chairman. This
has been a very big question since 1999 (when we gave the court
jurisdiction at all, and only from courts of final instance) but,
if one looks at what has happened, we have only one reference
to the court of justice from a court of final instance on an asylum
issue on the Qualification Directive—I do not even think
it has a number yet—whereas on judicial cooperation in civil
matters there have been quite a number of references and even
some judgments. It does not seem at the moment that the area of
borders, immigration and asylum are going to overload the court
but probably civil justice.
Q168 Chairman:
Is this an area where you might also suggest alterations, changes,
adaptation to meet the new European rules, not at the national
level here but in the European Court of Justice itself.
Professor Guild: There is a proposal on the
table which was put forward last year in December 2006 on changes
to the procedures which seemed to be quite solid which are still
sitting on the table but certainly are designed to address the
question of how to deal with cases where there really is a tremendous
need for expedition and this seems to me to be a very sensible
approach. It does not seem to me to be necessary to start thinking
about specialised chambers until one sees what kind of demand
that is, until one begins to get the cases going. At the moment,
there does not seem to be a tremendous demand. The Member State
courts seem to be dealing perfectly happily with interpreting
the borders, immigration and asylum acquis.
Q169 Lord Lester of Herne Hill:
My wife is an immigration and asylum judge, so I should declare
that before asking this question. Obviously asylum and immigration
cases are cases that need to be decided very quickly in some cases.
Will the new opportunity to refer cases be subject to some accelerated
procedure in terms of the European Court itself so as to ensure
that there are no unnecessary delays in cases of real urgency?
Professor Guild: My Lord Chairman, every time
there is a discussion of urgency in immigration and asylum cases
sadly it seems that it is the Member States arguing that they
are not going to be able to expel somebody as fast as they want
and it is never concerns about, for instance, facilitating family
reunification for children who are growing up far from their parents.
Lord Lester of Herne Hill: I am sorry
to interrupt you but I was thinking precisely of that kind of
case where someone has been hanging around for years and years
and it is very urgent to get that sort of issue resolved.
Chairman: I am told that we are going
to see next week the proposal you mentioned a moment ago on urgent
preliminary references which is, I think, designed for this area.
Lord Lester of Herne Hill: In that case,
I withdraw the question.
Q170 Chairman:
I would like to move on to give Mr Geyer an opportunity to wind
up with any points he wants to make before he has to leave, but
I have a question on Article 65 of the existing Treaty on the
European Community and Article 69d(2) of the Treaty on the functioning
of the European Union. Both deal with co-operation in civil justice
and family law in matters having cross-border implications but
the existing wording is "in so far as necessary for the proper
functioning of the internal market" and the revised wording
will be "particularly when necessary for the proper function
of the internal market". Would you give your view as to why
there has been the change in wording and how significant it might
be.
Professor Guild: My Lord Chairman, I will deal
with your question on Article 65: Is "particularly"
going to be particularly important? Clearly somebody thinks it
is going to be particularly important. Some think it is going
to be so particularly important that it is worth making an awful
lot of noise about. Do I think it is going to be particularly
important? I cannot say I really do. It does not strike me as
the kind of thing that will be decisive if one gets to the European
Court of Justice and the court is trying to decide whether it
is "necessary for the proper functioning" or "particularly
when necessary ... ." Perhaps there is a change of emphasis
but will it be substantial? Perhaps it will act as a good indicator
to the lawmaker, to the Council and to the Commission not to propose
things which are unnecessary, but, beyond that ... .
Q171 Chairman:
It does not say "when particularly necessary"; the "when
necessary" is one example. It would be open, surely, to the
European court to say that a requirement of relevance to the proper
functioning of the internal market was irrelevant/no longer existed.
Professor Guild: Indeed. When we see the Reform
Treaty in operation the way in which the internal market will
be articulated with the area of freedom, security and justice
and the slightly wider objectives of the European Union will take
some time to adjust to. Perhaps I am too embedded in the traditional
thinking where the internal market is the driving force
and retains its centrality as the driving force. Perhaps I am
too rapidly jumping to the conclusion that things will not change
so dramatically as regards the perspectives. However, it still
seems to me that one would need a good reason to proceed if one
was going to take advantage of that slightly widened competence.
Lord Jay of Ewelme: It is on the face
of it wider, is it not?
Q172 Chairman:
I think everybody agrees it is on the face of it wider. Professor
Guild is perhaps suggesting that we still have to find a reason
for judicial co-operation in civil matters having cross-border
implications. Since internal market has a very broad meaning anyway,
on the face of it any judicial co-operation in civil matters having
cross-border implications is likely to require some sort of link
to the central purposes of the Union.
Professor Guild: Indeed.
Q173 Lord Lester of Herne Hill:
If you think about harmonising divorce law, it is a strange notion
that that is a full and proper functioning of the internal market.
Professor Guild: Indeed, My Lord Chairman, as
divorce is illegal in Malta, I do not think we have to worry about
that too soon!
Mr Geyer: Part of the internal market is the
free movement of persons. It is directly linked. It is one of
the four freedoms forming part of the definition of the internal
market.
Q174 Chairman:
There are already proposals in that area.
Mr Geyer: There are proposals and there are
difficulties. Just to round this up: in family law, especially
in divorce law, there still will be unanimity when adopting measures.
This is one of the areas that was kept out of qualified majority
voting and there will be unanimity requirements in family law.
Q175 Chairman:
That is helpful. Perhaps we could move to Mr Geyer's question,
before he goes, on transitional provisions which under the protocol
restrict the jurisdiction of the court and the Commission's powers
of enforcement over existing Title VI measures (criminal, et cetera)
for a period of five years, unless the measure is amended. Is
the five-year period going to be realistic, a real one? There
is a qualification of unless the measure is amended. Are the existing
measures not going to be amended or renegotiated and will it be
clear when they have been?
Mr Geyer: This transitional provision is enshrined
in article 10 of the Protocol on transitional provisions. It is
one of the other major interesting aspects of this new configuration
that only came out after the October final negotiations. It was
not included already in the IGC mandate. It seems to be that,
for five years on, the old system shall apply as regards to infringement
procedures, so the powers of the Commission to make the Member
States do what they had agreed to do and signed to do, and also
insofar as it concerns the court's competence. We will freeze
what we have now for the Pre-Reform Treaty Acquis. It is important
to see that it is for the old measures: everything that we experience
now, we will have a freezing; we will have no sudden change. It
is for the European Arrest Warrant, Eurojust—everything
which is existing under the old measure—but, in fact, it
is the question of the amendment which will be the crucial one
and it will be mainly a strategic question, I think, of the actors
involved as to what to do within this five year period as concerns
amendments. There might be files and legislative acts which it
would be very unwise to reopen by introducing an amendment. They
were difficult enough to keep contained, and bringing in an amendment
would make it wholly impossible to continue or to implement an
existing measure. On the other hand, we have often seen, especially
in this area, that there is no progress because Member States
do not implement what they have signed up to, and so this theoretical
power of the Commission as the watch-keeper of the Treaty to make
Member States do their part and to implement framework decisions,
et cetera, might prove necessary and might be an incitement to
propose an amendment in order to get, before the collapse of the
five-year period, this extra pressure on the establishment of
this common system. For the citizens, it would be a clear advantage,
in my opinion, if the court would have the powers it has under
the normal treaties to step in, but, in the end, I think the Commission
will do a careful assessment of each and every measure that exists,
valuing which ones are the sensitive ones and which ones need
to be amended in order to make the procedure faster. I do not
think there will be an overall approach in bringing in small amendments
for each and every measure but it will be a very careful exercise
on top of that. Also, Member States can bring in proposals still.
There is still a shared right of initiative, which is important
in this field. It is not only the Commission who can make legislative
proposals but a shared initiative right, as it is now. Any Member
State can propose to bring in an amendment; it is not only the
"bureaucrats" in Brussels.
Q176 Chairman:
Under which provision is that?
Mr Geyer: It is 68 in the general introduction
of the area of freedom, security and justice.
Q177 Chairman:
We are going to move on now to the Charter of Fundamental Rights.
What impact, if any, will Article 6 of the Treaty of the European
Union in its new form have which declares the binding nature of
the Charter of Fundamental Rights have on the protection of fundamental
rights in freedom, security and justice measures?
Professor Guild: My Lord Chairman, in our view
this will have a very beneficial effect. We think the Charter
ought to have been binding from the very beginning. We think the
constant references to it in the preambles to all the measures
which have been adopted under Title IV have been particularly
important and we would like the legal effect of that to be reflected
in respect of all of the measures in the area of freedom, security
and justice. Another great advantage of the Charter of Fundamental
Rights is that it includes specificity going beyond the European
Convention on Human Rights, including aspects of protocols of
the European Convention on Human Rights, which will provide something
of a backstop in some areas where we have not had progress, for
instance, in the rights of the defence or the rights of suspects
in criminal trials where there has not been agreement on the framework
decision. We think that the impact will be excellent in terms
of concentrating the minds of the lawmakers and will be extremely
helpful for the national courts at interpreting measures and also
for the European Court of Justice.
Q178 Chairman:
Having given that general answer, perhaps you could answer what
the impact will be on and in respect of the United Kingdom—bearing
in mind the Protocol on the application of the Charter, which
of course starts with a ringing recital that Article 6 requires
the Charter to be applied by UK courts strictly in accordance
with the explanations in Article 6 and then goes on to contain
in the body a number of qualifications. What does all that mean?
How will it be perceived?
Professor Guild: My Lord Chairman, it is very
difficult for us to assess how this can possibly apply. We have
read that Protocol a number of times and it is not entirely clear
exactly what the objective of the Protocol is beyond some kind
of statement about fundamental rights and their application in
the UK and Poland. How will the impact work? We have the wording
of the Protocol which we can look at and we can dissect until
the cows come home. Is there going to be a practical effect? What
will that practical effect be? It needs to be tied in again with
the opt-ins and the opt-outs. If the minds of the lawmakers are
sufficiently focused on the necessity to comply with the Charter
of Fundamental Rights, will this discourage the UK from opting
into a measure in the area of freedom, security and justice? It
is very difficult to say what the outcomes will be.
Q179 Chairman:
These are ultimately legal questions which have to be viewed in
some legal context. One can talk about domestic litigation, one
can talk about litigation in the European court, one can talk
about litigation in some other court involving the UK citizens,
and in all those situations one has to ask whether in a concrete
case this protocol means anything and, if so, what. You have not
sought to make an analysis of that.
Professor Guild: One could argue this in a variety
of different ways and come up with any answer you want on the
basis of the wording of the protocol: that the protocol should
not be applied; that the Charter of Fundamental Rights should
not be applied by the UK courts; that judgments of the European
Court of Justice which rely on the protocol should not have an
effect in the UK. If we have a concrete case, how is this to make
any sense at all? Does this mean that if we take, for instance,
the Qualification Directive on Refugees and Subsidiary Protection,
that if reference is made in a judgment of the European Court
of Justice to the right to seek asylum in the Charter that that
whole judgment will not be applicable in the UK? It seems to me
it would be very difficult and very hard for the national judge
who is looking for a common interpretation of, for instance, Article
15c on whether you have to have an individual fear of torture
and inhuman or degrading treatment in a generalised situation
of violence. How are you to interpret that if you are then denied
the possibility of taking advantage of a decision of the European
Court of Justice merely because a reference has been made to the
right of asylum?
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