Controversy on the Directive on Copyright in the Digital Single Market

On 2 April, after many years of debate and negotiations the European Parliament and the Council adopted a new Directive on copyright and related rights in the Digital Single Market (Directive 2019/790). Essential parts of the previous framework on copyright in the European Union date back to 2001 which meant that there was a need to update the framework to better apply to the digital environment of today (see the second question in the FAQ on Copyright Reform published by the Commission). The purpose of the Directive is to provide a comprehensive framework benefiting a wide range of actors in the digital environment. The aims are, according to the Commission, (i) to provide fairer rules for a better-functioning copyright marketplace by establishing new rights to remuneration for various actors (such as writers, journalists and musicians); (ii) to ensure more cross-border and online access to copyright-protected content for citizens; (iii) to offer wider opportunities to use copyright-protected material for education, research and preservation of cultural heritage; (iv) to enhance the data economy (see the first question in the FAQ on Copyright Reform published by the Commission).

There has been a lot of debate regarding this directive, mainly related to two provisions within it, namely Art. 11 and Art. 13. Article 11 has been renumbered to Art. 15 and Art. 13 has been renumbered to Art. 17 in the adopted version of the Directive. We will throughout this post use the old numbering, art. 11 and 13, as the debate mainly took part before the renumbering, and it still seems to be the commonly used numbering. When referring to specifically to Art. 17 of the adopted Directive we will, however, use the adopted numbering. The focus of this blog post will be Art. 13 and the debate relating to this provision and the effects of it.

Art. 13, which as mentioned above was renumbered to Art. 17, contains 10 paragraphs and several sub-paragraphs. The point of the provision is the ‘use of protected content by online content-sharing service providers’ and our focus will be on the application of the Article. The effect of Art. 13 will make the platforms legally responsible for any copyrighted content uploaded on their platform. The platforms will need licenses for the copyrighted material and will therefore have to negotiate licences with the parties holding the copyright, e.g. record labels. If they cannot get a license they must do everything they can to stop the content from being uploaded to the platform. If the platforms do not satisfy the obligations imposed upon them by Art. 13, the Commission shall take action in accordance with its assessment.

Human rights criticism and the debate regarding art. 13

The copyright directive raised a controversy regarding the respect for the international standards of freedom of expression, granted, for example, by the International Covenant on Civil and Political Rights. Some experts urged the European Union to bring the directive in line with these standards. Notably, in June 2018, the United Nations Office of the High Commissioner for Human Rights (OHCHR) Special Rapporteur on the promotion and protection of freedom of expression, David Kaye, raised concerns regarding the potential implications for the freedom of expression. He published a letter, addressed to the Commission, on the potential dangers of the proposed directive, specifically Art. 13.

According to the Special Rapporteur, ‘there should be as little restriction as possible to the flow of information on the Internet’ (‘Letter’, p. 5). Indeed, he considers that driving internet platforms toward restriction of user-generated content, even at the point of upload, ‘is neither a necessary nor proportionate response to copyright infringement online’. The criticism formulated by the Special Rapporteur is mainly based on the ICCPR, which establishes the States’ obligation to respect and ensure the right ‘to seek, receive and impart information and ideas of all kinds’ (Art. 19(2) ICCPR). It also states that restrictions on the right to freedom of expression must be ‘provided by law’ and necessary ‘for respect of the rights or reputations of others’ or ‘for the protection of national security or of public order, public health and morals’.

The main risk highlighted by this opinion is what the OHCHR Special Rapporteur calls the ‘privatisation of knowledge’ (‘Letter’, p. 5). Moreover, he considers that Art. 13 provides the obligation to prevent the availability of copyright protected works in ‘vague terms’, such as demonstrating ‘best efforts’ and taking ‘effective and proportionate measures’, leading to a ‘considerable leeway for interpretation’ and legal uncertainty (‘Letter’, p. 7).

Extended liability for intermediaries

Art. 13 has been criticized as going against existing EU law. Within the E-Commerce Directive there is a limited liability regime for information society service providers that also act as intermediaries. According to the criticism from inter alia iLINC, the new copyright directive would not comply with this limited liability regime, since it extends the liability of intermediaries such as YouTube. This new provision and the effects of it is justified on the basis that the platforms covered by the Directive should not be seen as merely technical intermediaries (iLINC, The Limited Liability of Internet Intermediaries in the EU and STIM, Allt du behöver veta om copyright).

Memes and GIFs
In everyday speech the Directive has been referred to as the “Meme Ban”. Although, the memes are not necessarily endangered. Uploaded content with the purpose of quotation, criticism, review, caricature, parody and pastiche are specifically allowed by Art. 17(7a-b) in the adopted version. This is important in order to strike a balance between fundamental rights protected by the Charter of Fundamental Rights of the European Union: on one hand the freedom of expression (Art. 11) and the freedom of arts (Art. 13) and on the other hand the right of property, in this case intellectual property (the Directive, para 70 of the preamble).

Upload/content filters

One difficulty is that the Directive does not specify how to fulfill the duties arising from the provision, but the easiest way ought to be to impose upload filters. The directive states that the application of Art. 13 should not lead to any general monitoring obligation (Art. 17(8) in the adopted version), but that might still turn out to be the cheapest way to avoid any liability or an extreme workload for the platforms. The Directive does not take into consideration the technological difficulties regarding the development of upload filters. The concern regarding the use of content and upload filters is that these filters are not sophisticated enough to distinguish perfectly between allowed content and copyright infringing content (The Telegraph, Article 11 and Article 13: What you need to know about the new copyright directive, 1 April 2019). Material protected by copyright comes in different forms (videos, memes, audio files, pictures, etc.), and the upload filters risk to block content that should be allowed online. For example, the upload filters cannot separate allowed material that is being used for educational purposes or allowed parodies of copyrighted materials versus the unlawful usage of copyrighted materials. This contradicts the objectives of the Directive, since it will have a harmful impact on online creators. Another aspect of the Directive is the workload that will emerge for the platform companies. By balancing the possible workload without any upload filters versus the occasional wrongful filtering of allowed data, to sort out the wrongful filtering would take far less effort for the platforms. In order to avoid having penalties imposed for lack of authorization, upload filters will become inevitable for service providers.

Art. 13 of the Directive only imposes the obligation on the service provider to obtain authorisation for the data, for instance by concluding a licensing agreement. If authorisation of the data has not been granted, the service provider is obliged to remove the copyright protected materials from its servers. In the adopted version of the Directive, Art. 13 was renamed Art. 17. In Art. 17(4) the service provider shall also be deemed liable for ‘unauthorised acts of communication to the public […] of copyrighted-protected works and other subject matters’. In order to avoid liability for the platform that the copyrighted work has been uploaded to without authorization from the rights-holder, the platform has to show that it has undertaken the required steps stated in Art. 17(4) in the adopted version. The required steps are that the platform has made best efforts (1) to obtain authorisation, (2) to ensure unavailability of specific works for which the rights-holder have provided relevant and necessary information, (3) the platform has to have acted expeditiously to disable access to or remove the work and (4) made best efforts to prevent future uploads. A problem with the conditions stated is the interpretation of best effort as well as expeditiously, it is not possible to predict the correct interpretation which will have to be established by the ECJ when a case related to it arises.

License requirement and effects on smaller companies
Small sites may lack the power to negotiate fair licensing deals and upload filters could be too costly. Activists and members of the European Parliament that are against the Directive have argued that both Articles 11 and 13 could be a business opportunity for the likes of Google, as the smaller businesses would be forced to hire their technology to filter the content uploaded. Google has already spent $100M on contentID which is the most famous content filter (see Cory Doctorow’s post published on 19 March 2019).

The Directive shall for example provide fairer rules regarding the copyright marketplace by establishing new rights for journalists and writers, which is praiseworthy. However, if the Directive poses heavy burden on small businesses but not on the big businesses, it could be criticized for infringing on the competition balance of the internal market by only benefiting the bigger companies. This shift of balance might be a basis for seeking an annulment action against the act, since it might be in breach of general principles of EU law such as the principle of proportionality as well as Art. 114 TFEU which regulates the functioning of the internal market. The aims of the Directive are understandable, but the effects of the measures may not be suitable and proportionate. However, this might not be a successful action or even plausible, taking into consideration the difficulty of proving individual concern and the fact that both the EP and the Council adopted the legislation proposed by the Commission.

Josefin Nilsson, Alva Eriksson, Hanna Wiklundh, Eric Jämtheden, Jeanne Pouzet and Karin Dahlberg

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The ECJ’s Ruling in XC and Others (Case C-234/17) and its Significance

The European Court of Justice (ECJ) delivered its judgment in the case XC and Others (C-234/17) in October last year. The case concerns three claimants suspected of having committed several criminal offences in Switzerland. On the basis of an agreement of mutual legal assistance between Switzerland and Austria (CISA), a Swiss Public Prosecutor’s Office requested that Austrian authorities question the claimants. However, the claimants contest this request. They consider that it infringes Article 54 of the CISA, also called the ne bis in idem principle, which states that ‘[a] person whose trial has been finally disposed of in one Contracting Party may not be prosecuted in another Contracting Party for the same acts’. Indeed, criminal proceedings concerning the same matter that Switzerland seeks to prosecute the claimants for had already been concluded in Germany, who is also a party to the CISA. Judging at last instance, an Austrian Higher Regional Court did not find an infringement of Article 54 of the CISA (para 8). The claimants contested this finding, and applied to the Austrian Supreme Court for a rehearing on the basis of Paragraph 363a of the Austrian Code of Criminal Procedure (ACCP). The claimants contend that the grant of mutual legal assistance infringe not only their rights deriving from the CISA but also the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR), and the Charter of Fundamental Rights of the European Union (‘the Charter’). Pursuant to Paragraph 363a of the ACCP and settled Austrian case-law, the Austrian Supreme Court can rehear a case if it finds that a court adjudicating at last instance infringed the ECHR is such a way that might have affected the substance of the decision in a manner detrimental to the person concerned.

The Austrian Supreme Court’s Reference for a Preliminary Ruling

The peculiarity of this case lies in the fact that the claimants choose not to rely exclusively on a breach of the ECHR as the basis of their application under Paragraph 363a ACCP. Safe to say, it is well within the Austrian Supreme Court’s means to assess an application for rehearing made on the grounds of a breach of the ECHR. However, by relying also on the ground of a breach of the Charter, the claimants are testing the scope of Paragraph 363a ACCP. On the face of it, the scope of Paragraph 363a ACCP does not extend beyond breaches of the ECHR, but is this limited scope compatible with EU law? For clarification on this point, the Austrian Supreme Court requests a preliminary ruling from the ECJ on the interpretation of two key principles, namely, the principle of equivalence and the principle of effectiveness. The question asked is the following: Does the interpretation of the aforementioned principles oblige the Austrian Supreme Court to review the judgment of a court of last instance which allegedly violated EU law where national law permitting such a remedy is only provided for ECHR violations?

The key principles

The principle of equivalence states that national procedural rules for the enforcement of rights derived from EU law cannot be less favourable than those applicable to similar domestic actions. The principle of effectiveness states that national procedural rules cannot make it procedurally impossible or excessively difficult to exercise the rights conferred by EU law. Both of these principles stem from the principle of sincere cooperation enshrined in the founding Treaty and limit the national procedural autonomy of the Member States (as established in the famous Cassis de Dijon case [C-120/78] in 1979).

As regards the principle of equivalence, the ECJ swiftly and matter-of-factly states that Paragraph 363a ACCP ‘must be regarded as a domestic action’ (Para 26), and then turns its focus to the assessment of whether or not the domestic action may be regarded as similar to an action brought to safeguard EU law, in particular the fundamental rights enshrined by that law, ‘taking into consideration the purpose, cause of action and essential characteristics of those actions’ (para 27). On the one hand, the ECJ considers Paragraph 363a ACCP to be an ‘exceptional’ remedy, the existence of which is ‘justified by the very nature of the ECHR’ (para 31).  The remedy is described as having a ‘functional relationship’ to proceedings before the European Court of Human Rights (ECtHR) because it enables compliance with the obligation laid down in Article 46 of the ECHR (para 31); that is to say that Paragraph 363a ACCP allows for the execution of the ECtHR’s findings of a breach of the ECHR, which occur after all domestic remedies have been exhausted, thereby implying the existence of a decision of a national court adjudicating at last instance. The same can be said of findings by the Austrian Supreme Court of a breach of the ECR. On the other hand, the ECJ draws attention to the characteristic way in which EU law guarantees effective protection of the rights derived from this ‘independent source of law’. Critically, unlike Paragraph 363a ACCP, the system of rights protection under EU law ‘guarantees everyone the opportunity to obtain the effective protection of rights conferred by the EU legal order before a national decision with the force of res judicata [judged in last instance] even comes into existence’ (para 46). The ECJ points to the preliminary reference procedure (Article 267 of the Treaty on the Functioning of the European Union) as the mechanism for achieving this. Thus, the ECJ concludes that Paragraph 363a ACCP and actions protecting rights which individuals derive from EU law are different (para 47). As such, the principle of equivalence does not require the Austrian Supreme Court to extend the remedy under Paragraph 363a to alleged infringement of fundamental rights guaranteed by EU law where such a remedy exists only for infringements of the ECHR  (para 48).

When interpreting the principle of effectiveness, the ECJ examines whether or not it is ‘impossible in practice or excessively difficult to exercise the rights conferred by the EU legal order’ (para 50), if an alleged infringement of the rights deriving from EU law is not an available ground for the rehearing of a criminal matter that has been adjudicated at last instance. Consistent with its previous case-law (in particular the Rewe-Handelsgesellschaft [Case C-158/80] and the Unibet [Case C-432/05] judgments), the ECJ states that the EU Treaties do not require the creation of new remedies to ensure the protection of the rights guaranteed under EU law if there are other means available to secure the effective protection of these rights (paras 51-53). According to the ECJ, nothing suggests that ‘there are not, in the Austrian legal system, legal remedies which effectively guarantee the protection of the rights that individuals derive from Article 50 of the Charter and Article 54 of the CISA’ (para 55). It is interesting to note here that the ECJ evoqued previously that the ne bis in idem principle (art. 50 of the Charter) has ‘direct effect’ (para 38). In conclusion, ‘the effectiveness of EU law is ensured by that [Austrian legal] framework’ (para 57). Thus, Austria does not have to extend the scope of Paragraph 363a to include alleged infringement of EU law as a ground for rehearing.

Reflection

This judgment offers valuable contribution to the ECJ’s case-law concerning the interpretation of the principles of equivalence and effectiveness. The ECJ reached a similar conclusion in the Unibet case (2007) in which the principle of effectiveness was held not to oblige the MS to create new remedies for actions seeking to protect rights derived from EU law, provided that other avenues already exist, whether direct or indirect, that secure the effectiveness of the protection of these rights (para 65). According to the judgment here presented, the principle of effectiveness does not oblige the Member States to extend the availability of a particular remedy to infringements of rights guaranteed under EU law if the effective protection of these rights is guaranteed by other means. This judgment is very much consistent with Unibet‘s findings, and is important because various Member States have similar procedural rules to that of Austria in their national legal orders, such as Germany (see Section 359, point no. 6, of the German Code of Criminal Procedure).

The ECJ substantiates its judgment through largely similar reasoning to that of the Advocate General (AG) Henrik Saugmandsgaard Øe in his opinion. Both the ECJ and the AG highlight the qualities unique to the EU legal order and the system of rights protection built around the ECHR, but on some points the reasoning diverges slightly. Regarding the principle of equivalence not being violated, the AG considers that a claim based on the ECHR is not a ‘domestic’ action in the first place (paras 67-69 in the AG opinion) whereas the ECJ states that it is ‘apparent’ that it ‘must be regarded as a domestic action’ (para 26). The ECJ does not develop further on this. On the other hand, the AG states that, regardless of the fact that the ECHR has constitutional status in Austria, it is not to be regarded as national law because ‘the expression “national law” refers exclusively to rules originating in the domestic legal order of the Member State concerned.’ According to the AG, ‘[i]t is clear that, like any instrument of national law, the ECHR does not contain such rules’ (AG opinion, para 67). The AG believes that his interpretation is in line with the objective sought by the principle of equivalence, namely, to prevent Member States from favouring domestic rules over EU law.

Furthermore, both the ECJ and the AG discuss the function and purpose of the preliminary reference procedure in their interpretations of the operation of the principle of effectiveness. However, unlike the ECJ, the AG brings the advisory opinion procedure of ECHR Protocol No. 16 into the discussion. Protocol No. 16 gives opportunity for the ECtHR to give advisory opinions on questions relating to the interpretation and application of the ECHR. The AG is quick to distinguish this from the preliminary reference procedure under Article 267 on the basis that the Protocol 16 procedure is only available to the ‘highest courts and tribunals’ of a High Contracting Party whereas the Article 267 TFEU procedure is available to all national courts and tribunals of the Member States, and also that such advisory opinions, unlike preliminary rulings of the ECJ, are not binding. Nevertheless, both the ECJ and the AG agree that the preliminary reference procedure constitutes an effective mechanism for the protection of rights derived from EU law. However, we may question the ECJ’s and the AG’s findings on this point. It is difficult to be certain that, in practice, the preliminary reference procedure guarantees effective protection. For a number of reasons, effectiveness may be limited. For example, where a national court has discretion as to whether or not to make a preliminary reference, it might be difficult for an individual claimant to convince the national court to engage in dialogue with the ECJ. Moreover, the important function of legal certainty that decisions with the force of res judicata provide is also raised in the reasoning of the ECJ and the AG. However, it might be argued that, if ever an exception could be made to legal certainty, the violation of human rights, from wherever they derive, would be it.

The ECJ also refers to state liability as another available remedy in this case (para 48). However, one could wonder if a monetary compensation is the right answer to a violation of human rights in the event that the claimants manage to pass the hard requirement of demonstrating individual concern.

Elin Andersson, Celine Bodera, Anna EekEloise Gueritte, Mia Pilipovic and Dzejna Vrazalica

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Wischmeyer on ‘Making social media an instrument of democracy’

In March 2019, Thomas Wischmeyer, assistant professor at Bielefeld in Germany, published the article ‘Making social media an instrument of democracy’ in the European Law Journal. In the article, Wischmeyer compares the current constitutional dialogue on social media regulation with the rise of broadcasting, the last major transformation of the media landscape. Wischmeyer concludes that social media are also instruments for the formation of public opinions, and as such a sphere of “institutional freedom”, to put it with the words of the German Federal Constitutional Court. Even though the German FCC used this term in relation to broadcasters in the 1960s. Wischmeyer claims that the debates accompanying the rise of broadcasting may be applied to the challenges of today. Yet, social media are not regulated in the way for combating these issues since they do not provide a balanced view of opinions. The blog post is limited to section two to five of the article, since we considered these sections most relevant to the review.

In the second part of the article, Wischmeyer presents the classical idea that a well‐functioning public sphere is a condition for democracy. However, today it is possible to argue that the structure of the public sphere is a product of the rise of social media and that the transformation of the public sphere also affects politics, e.g political campaigning and enables a new type of politics (p. 172). The author then continues to present the three key features of social media that affect the structure of the public sphere. Firstly, social media are not good at moderation. In social media, in contrast to post-war Germany, where there was a desire for a balanced press, the time of debate is now reduced and the balance is replaced by provocative tweets and one-sided individual statements. Secondly, in contrast to traditional broadcasting, social media put a premium on radical positions as they create curated infospheres and thus require and reward singularisation. Thirdly, social media do not act as traditional gatekeepers because it is possible to follow e.g. a politician directly, and since the ethical and legal standards required to be followed by traditional media do not exist for social media companies. Consequently, the plurality of opinions is undermined. All in all, there is moderation (p. 173).

In the third part of the article, the author emphasizes that it has been recognized that the privileges of social media are difficult to justify in the light of their political impact. As a result, lawmakers have started to consider a tougher agenda on social networks. As an example, Wischmeyer brings up the Network Enforcement Act (NEA) introduced in the German legal order in 2017. Basically, the Act imposes responsibility on social network providers, in particular it takes direct and effective measures against hate crimes and criminal content on the internet. However, the Act has been criticized for violating the E-commerce Directive (Directive 2000/31/EC) and art. 5  of the German Basic Law on the freedom of speech, due to the fact that the media providers got too vast possibilities to block and delete user content, arguably violating freedom of expression (p. 174 and 180). Although, the strongest argument that the author brings up is that the law only aims to improve the enforcement of existing laws in social networks and does not introduce new ones (p. 175). The author means that the measures taken by the social networks to combat ‘hate speech’ probably are a result of internal community standards, and not a result of the NEA itself. As an example, YouTube alone deleted almost nine million videos based on violation of internal community standards before private individuals could see them. What the law also misses out is that mass media are starting to lose their public service function to social media (p. 176-177) However, there is some evidence that points to the fact that NEA could have influenced social media providers to interpret their own community standards more restrictively (p. 177, fn. 53). It is difficult to state whether the NEA or the internal community standards led to the reported content on social media platforms.

In the fourth section, Wischmeyer argues that as a result of the key features presented above, social media, by some, are associated with populism and political polarization and not with democracy. Historically, mass media have been an important tool in the forum of the democratic debate. Since during the time of Nazi-Germany media was proven to be a powerful propaganda-tool, later there was a broad political agreement that media should be used to promote democracy. Therefore there were several regulations and policies introduced in Germany emphasizing the important role of media in a democratic society. Particularly important was the regulation on state broadcasting. Broadcasting councils for the state were established with representation from different groups in society. This led to pluralistic representation, moderation and mediation becoming the core of the new medium (p. 177-178). An important connection between broadcasting and democracy was made by the German Constitutional Court, stating that broadcasting is more than just a medium, it is an imposing factor in the formation of public opinion (case BVerfGE 12, 205 (260)). In the case the court interpreted art. 5 of the German Basic Law to also include that broadcasters must be organized so that all possible groups are represented to guarantee a minimum of substantive balance, objectivity and mutual respect. Consequently, there is a positive duty for the state to regulate exercise of broadcasting in such a manner. (p. 178-179).

The author then argues that if mass media have been able to evolve in such a way as presented above, a similar development should be possible for social media as well. Although, such development cannot be reached by solely stating that what should be illegal offline should be illegal online. As presented above, there are clear differences between broadcasting and social media, making it impossible to just transfer regulations developed for broadcasting to a dynamic social media. Without regulating balance, objectivity and mutual respect social media companies can never develop into an instrument of democracy (p. 180). The author concludes that it should be possible to turn social media into a tool of democracy, yet it probably demands just as much dedication as the regulations on broadcasting did in the past (p. 180).

Reflection

As the author stated, the length of debates are shorter and singular statements are being amplified as a result of the continued rise of social media. This is leading to people being more narrow-minded when the balances in the classical media is undermined by provocative content, which risks leading to populism rather than promoting diversity of opinions. It seems that what is appearing on your social media is selected for your personal preferences, for instance this happens when a person accepts so called ‘cookies’ when surfing on the internet. What you have searched for on the internet tends to appear on your social media platform afterwards. Therefore a new law should regulate such situations, making social media more balanced. The new laws imposed must be adjusted to the key features of social media.

The NEA introduced in Germany must be described as toothless since it regulates social media as ‘offline’ media not having the key features in mind. Paradoxically, instead of regulating social media as a tool for democracy, it risks undermining the freedom of expression. However, the author does not present any idea of what the law should look like instead or how such a law should take place in practice, which would have been interesting to read about. What is in our opinion a regulation to wish for, would rather regulate the social media providers to balance their users content, in order to serve democracy. As argued by the author, a law really giving effect to the democracy in a society would need to have as dedicated legislators as the legislators on traditional broadcasting were in post-war Germany.

The author emphasizes that social media nowadays are used for terrorist recruitment (p. 171). This is a very interesting aspect of social media since one could argue that it reveals a very negative consequence of social media. One of the most fundamental rights in a democratic society is the freedom of speech. This freedom makes it possible for individuals to express thoughts and opinions. Social media are in this aspect very accessible for individuals to express their opinions since the majority uses social media and there is not a lack of internet access in Western societies. This wide opportunity to express opinions has however another consequence: it reveals opinions by individuals that are radical and hateful.

One could argue that social media promotes democracy through freedom of expression. But since social media are also used for terrorist recruitment, one could argue that the social media as a ‘tool’ are also used to undermine democracy. Attacks by terrorists against a society are perhaps one of the biggest threats to democracy and the society as a whole. The recruitment of individuals to perform such actions is probably successful through social media since you can get in touch with individuals with the same state of mind.

A recent example of where freedom of expression is used to express radical ideas and racism is demonstrations by Nazis in Sweden. The Prime Minister of Sweden expressed after the demonstrations that it is a ‘shame’ that such organisations can walk the streets in the society. Even if people in general share the Prime Minister’s opinion on the situation, one should not forget that the demonstrations are protected by freedom expression, demonstration and assembly. As it has been established, one could argue that freedom of expression has another side, namely that every opinion has a ‘counter opinion’, and every opinion uses the same democratic ‘tool’ despite the value of the opinion.

Considering the discussion above, an act at the EU level regulating the plurality of opinions in social media would be difficult to introduce. For example, ‘hate speech’ is regulated differently depending on the country in question, and the limits for when freedom of speech becomes a ‘hate speech’ varies between the European legal orders. What at least can be said is that the German NEA has started a debate about social media content and the social media providers responsibility on it, which might have importance for a future social media regulation at an EU level.

Hanna Isaksson, Oskar von Ekensteen and Ebba Hård af Segerstad

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The debate over CEU and ‘the overall situation in Hungary’ in April 2017

In a statement published on 26 of April 2017, the Commission concluded that the Hungarian Higher Education Law of 4 April may be incompatible with the fundamental internal market freedoms. Therefore, the Commission decided to take legal actions and sent a formal notice to the Hungarian government.

With regard to the recent development in Hungary the EU decided not only to discuss the Hungarian Higher Education Law but the overall situation in Hungary in two meetings that took place on 12 and 26 April 2017 in the European Parliament. The following text will discuss the events that took place in April as a response to the new law.

Hungarian education law

The issue concerns the Higher Education Law in Hungary, which might threaten fundamental European Union (EU) freedoms, i.e. freedom of establishment or/and freedom to provide services. Articles 49 and 56 of the Treaty on the functioning of the European Union (TFEU) lay down rules, which prohibit Member States to hinder the exercise of the latter freedoms by State measures that target intra-community services or the right of establishment. Paragraph 2 of Article 49 TFEU provides the right for legal and natural persons to set up and manage undertakings, while Articles 56 to 57 TFEU lay down the right to provide services on a temporary basis by a person established in one Member State to a recipient established in another.

The Central European University (CEU), established after  the fall of communism in Hungary by an Hungarian-American philanthropist, offers US-accredited degrees – a crucial draw for foreign students. Firstly, the new Hungarian Higher Education Law requires foreign universities to have a campus both in Hungary and their home countries, which in fact is a measure aimed to restrict freedom of establishment. Secondly, it bans universities outside the EU from awarding Hungarian diplomas without an agreement between national governments – in this case, with the United States (US) (BBC news, 4 April 2017). While the CEU is not allowed to award US accredited diplomas, an issue for non-EU teachers to come to Hungary and teach there arises. It also restricts the CEU’s ability to choose its students, thus on the one hand hindering EU student’s right to receive services and one the other hand CEU’s freedom to provide services on regular or permanent basis to EU’s students (The Guardian, 12 April 2017).

The CEU argued that the amendments to the Hungarian Higher Education Law would make it impossible for the CEU to continue its work as an institution of higher education in Budapest.  If the CEU can not continue it would damage the Hungarian academic life and furthermore, Hungary’s relations with its EU partners and with the US. The part of the amendment which constitute a clear discrimination against CEU is, according to the CEU itself, the part which prevents Hungarian universities from delivering programs or issuing degrees from non-European universities on behalf of CEU. Another example of discrimination in the proposed amendment is the rejection of a remission that grant academic staff from non-EU countries to work at the CEU without a work permit. The amendment would create a threshold towards the recruitment. Since the CEU recruits a high number of professors from outside the EU, the new amendment would put it in an unfavorable position (CEU, 28 March 2017).

According to Renáta Uitz, a professor at the CEU, it can be argued from a constitutional aspect, that Hungary is testing the limits of the European constitutional construct by leaning on the possibility for member states to defend their national identities under Article 4(2) of the Treaty of the European Union (TEU). It is no surprise, according to her, that the new Hungarian legal measures are put in terms of national security and counterterrorism. In an era of global terror, such measures will be recognized by both foreign observers and their governments will be sympathetic to such reasons. It is of great importance that European constitutional and political actors comprehends: “The carefully crafted new Hungarian laws use the cloak of national security to stab the rule of law, as understood in Europe, in the heart” (Renata Uitz, 5 April 2017).

The meeting of 12 April

The following text will present a press release from the European Commission released on 12 April 2017. A speech was held by first vice-president Frans Timmerman discussing legal issues relating to Hungary. Recently, there has been a development in Hungary which has resulted in worried reactions amongst stakeholders both in the EU and outside. The development mentioned above has raised questions regarding the shared values of the Union and Hungary’s compatibility with it. As mentioned above, Hungary has adopted a Higher Education Law which has raised concern in the academic community as well as amongst politicians of Europe. The newly adopted law is according to some an attempt to close the Central European University and in turn it can restrict the scientific and academic freedom of thought (Christopher Adam, ‘Hungary’s parliament votes to shut down Central European University’, in Hungarian Free Press, 4 April 2017). Furthermore, the university is one of the most important universities in higher education in Europe. The Commission stated that it  will make a legal assessment to review compatibility with the free movement of services and the freedom of establishment.

Margrethe Vestager and Vera Jourova, Commissioners for competition and gender equality, have also expressed worries that the recent events in Hungary may result in issues regarding shared European values as set out in Article 2 TEU. Apart from the education law there are also reasons for concern when it comes to migration laws in Hungary and its compatibility with EU law. Therefore, the Commission will act if there is no positive progress soon. The press release concludes with the importance of a dialogue between the Hungarian authorities and Member States, as well as the Commission and the European Parliament.

The meeting of 26 April

When the second meeting took place on 26 April the Commission had reviewed the Hungarian Higher Education Law’s compatibility with the internal markets freedoms and the Charter of Fundamental Rights and it confirmed EU’s concern. As a result of the review, the Commission decided to take action and commencing an infringement proceeding against Hungary under Article 258 TFEU by sending a formal notice, expecting Hungarian authorities to respond within a month.

The Commission’s first vice-president, Frans Timmerman, also warned the Hungarian government that other laws that has recently been proposed or adopted will continue to be on the Commission’s radar. For example, the treatment of asylum seekers in Hungary and draft legislation on registration of  NGOs have raised serious doubts about their compatibility with EU law. Furthermore, it was added that Hungary has not yet answered the EU’s concern regarding compliance with EU rules on the protection of pregnant working women and the Commission soon intents to decide on further action if Hungary does not comply with those rules (Press release – April infringement package). The same date as the meeting took place, the Commission decided to release a public answer in response to the Hungarian Government’s ‘Stop Brussels’ consultation. The Commission’s response had the intention to set the record straight with hard facts because the ‘Stop Brussels’ consultation had factually incorrect or misleading allegations. The Commission emphasized in its answers that EU is not about Brussels but ‘a project driven and designed by its Member States’.

Although, robust criticism was raised towards the Hungarian authorities in the meeting, Frans Timmerman concluded that the aim of the meeting was to seek clarification regarding the Hungarian government’s intentions and that dialogue is the European way to solve misunderstandings or disagreements. He also expressed gratitude to the Hungarian authorities that in the past always engage in dialogue with the EU and to Prime Minister Mr Orban who came to the meeting and debated the issues in the European Parliament.

Post-meeting

According to the center-right group of the European Parliament, after the debate Mr Orban told them on 29 April that he would comply with EU demands on academic freedom. At the same time, Mr Orban has said, when speaking to the domestic media, that “nobody will set condition for Hungary” and he will negotiate with the Commission in the coming months for a final result (Reuters, 29 April 2017).

As a result of the recent events, it seems that Mr Orban is in a delicate situation both within the country but also within the European political community. Recently, the president of the center-right group of the European Parliament, Manfred Weber, spoke about the new Hungarian education law, saying that “we do not accept any attacks on academic freedom.” He added that it was the responsibility of the Hungarian head of government to “present solutions and change behavior” (La Libre, 29 April 2017).

It was the result of a confrontation between Mr Orban and Joseph Daul, leader of the EPP, as well as the Presidents of the Council, the Commission and the European Parliament, Donald Tusk, Jean-Claude Juncker and Antonio Tajani, Mr Orban had to comply with the demands expressed by the Commission in its letter to the Hungarian government. According to Siegfried Muresan, the European political family firmly intends to closely monitor the actions of the Hungarian Prime Minister. Mr. Orban has recently stated that this new law, despite appearances, did not represent a threat to the CEU. Manfred Weber says that Mr Orban is open to dialogue (BBC, 29 April 2017). The European People’s Party considered that the fact that Fidesz, the ruling party in Hungary, although it might be expelled over this issue, is still part of the group is an opportunity for the Hungarians to maintain the dialogue with Mr Orban and thus be able to push him “to commit to change the legislation on universities”, according to Mr. Muresan (La Libre, 29 April 2017).

The new law gave rise to a protest movement in Hungary on 1 May. The Momentum movement, led by Andras Fekete-Gyor, organized a demonstration of support for the European Union which brought together several thousand people chanting “Europa!” And brandishing starry banners to walk against the new law, considered “Europhobic” (Le Monde Europe, 2 May 2017).

Although the Hungarian Higher Education Law is the basis for the meetings that took place during April, there are more issues in Hungary relating to its compatibility with EU values. By raising concern on one aspects it also brings light towards other problems that in the future might lead to infringement proceedings. It is interesting to see how quickly the EU responded to the new law in Hungary and how that creates a chain reactions in the political community of the EU and creates discussions in the Member States. When reflecting over the above one can see that all we know for now is that the EU has decided to launch an infringement proceeding against Hungary due to the Hungarian Higher Education Law and if it may be incompatible with EU law.

Denice Wiklund, Ernestas Vaiciunas, Petra Giessbeck and Sherimane Abdoun

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Joined Cases C-203/15 and C-698/15, Tele2 Sverige v Post- och Telestyrelsen (21 December 2016)

General background

In the joined cases C-203/15 (Tele2 Sverige AB v Post- och Telestyrelsen) and C-698 (Secretary of State for Home Department v Tom Watson and Others) of 21 December (the Joined Cases), the ECJ decided a request for preliminary ruling from the Swedish Administrative Court of Appeal (Kammarrätten), and from the Court of Appeal (England & Wales) (Civil Division) (United Kingdom). Both cases concerned the interpretation of Article 15 (1) of Directive 2002/58/EC (paras. 1-2).

On 9 April 2014, Tele2 Sverige, a Swedish provider of electronic communication services, informed the Post- och Telestyrelsen (PTS) (Swedish Post and Telecom Authority) that, having regard to the judgment in the Digital Rights Ireland and Others case (C-293/12 and C-594/12) which invalidated Directive 2006/24, it would stop to store electronic communications data. The reason for this was that, as a consequence of the Digital Rights judgment, Tele2 believed it was no longer obliged to do so under the Swedish national law (Lag [2003:389] om elektronisk kommunikation, or LEK), which implemented the now invalid Directive. On 29 April 2014, the Swedish Minister of Justice appointed a special reporter to examine the Swedish legislation at issue in the light of the Digital Rights judgment. The conclusion of the Report was that Swedish law was not incompatible with either EU law or the European Convention on Human Right (ECHR). As a consequence, the PTS informed Tele2 Sverige that it was in breach of its obligations under LEK, and ordered them to start retaining that data. Tele2 on the other hand, believed the Report was based on a misinterpretation of the Digital Rights judgment, and that the obligation under LEK was in breach of the fundamental rights guaranteed by the EU Charter of Fundamental Rights (the Charter). Therefore, Tele2 Sverige brought an action against the order of the PTS before the Administrative Court (paras. 44-48).

In the case Secretary of State for Home Department v. Tom Watson and Others, the applicants brought applications for judicial review of the lawfulness of the data retention regime in Section 1 of the Data Retention and Investigatory Powers Act of 2014 (DRIPA). They claimed that Section 1 DRIPA was incompatible with Articles 7 and 8 of the Charter and Article 8 of the ECHR. The High Court of Justice stated, on 17 July 2015, that the regime was conflicting with EU law because it did not satisfy the conditions laid down in the Digital Rights judgment. According to the Court, the Digital Rights judgment stated that ”mandatory requirements of EU law” are applicable to the Member States legislation on the retention of communications data and access to data. The National Court also stated that national legislation that contained same provisions as Directive 2006/24, which was held to be conflicting with the principle of proportionality, could not be compatible with that principle. Furthermore, the Court stated that Section 1 DRIPA is not compatible with Articles 7 and 8 of the Charter because it does not state how to get access to and use retained data. Later, the Secretary of State for the Home Department brought an action against that judgment before the referring court (paras. 52-58).

To summarise, the referring national courts requested a preliminary ruling, under Article 267 TFEU, on the following questions:

  1. Must Article 15 (1) of Directive 2002/58, read in the light of Articles 7, 8 and 52 (1) of the Charter, be interpreted as precluding national legislation that provides for, the purpose of fighting crime, general and indiscriminate retention of all traffic and location data of all subscribers and registered users with respect to all means of electronic communications? (paras. 51, 59 and 62)
  2. Must Article 15 (1) of Directive 2002/58, read in the light of Articles 7, 8 and 52 (1) of the Charter, be interpreted as precluding national legislation governing the protection and security of traffic and location data, and more particularly, the access of the competent national authorities to retained data, where that legislation does not restrict that access solely to the objective of fighting serious crime, where that access is not subject to prior review by a court or an independent administrative authority, and where there is no requirement that data concerned should be retained within the EU? (paras. 51, 59 and 114)

Decision and reasoning

On 21 December 2016, the ECJ (Grand Chamber) announced its ruling in the Joined Cases. Firstly, the Court examined whether national legislation falls within the scope of EU law (para. 64). Furthermore, the Court examined the general structure of Directive 2002/58 and argued that the legislative measures mentioned in Article 15 (1) of Directive 2002/58 concerns activities of state authorities and not individuals (para. 72). It concluded that Article 15 (1) together with Article 3 in the directive shall be seen as legislative measures that fall within the scope of that directive (para. 74).

The ECJ found that Article 15 (1) of Directive 2002/58 must be interpreted strictly, since it enables the Member States to provide for exemptions to the obligation to ensure the confidentiality of personal data (paras. 88–89). But, this does not prevent a Member State from adopting legislation permitting targeted retention of traffic and location data for the purpose of fighting serious crime, provided that the retention of data is limited to what is strictly necessary (para. 108). To satisfy this requirement, the Court stated that national legislation must lay down clear and precise rules governing the scope and application of data retention and impose minimum safeguards to guarantee effective protection of the retained data (para 109). In short, the Court found that Article 15 (1), read in the light of Articles 7, 8 and 52 (1) of the Charter precludes national legislation which provides for general and indiscriminate retention of all traffic and location data of all subscribers and registered users relating to all means of electronic communication (para. 112).

The ECJ also found that Article 15 (1) must be interpreted as precluding national legislation governing the protection and security of traffic and location data, and access of competent national authorities to the retained data, unless it is restricted to solely fighting serious crime and that it prescribes a requirement of prior review by a court or an independent administrative authority before granting access to the data (paras. 123 and 125). Furthermore, the competent national authorities whom access the retained data must give information to those concerned (para. 121).

Comments

The ECJ shows with this new judgment its concern to ensure respect for the Charter, in particular the rights to respect for private life and protection of personal data, also proclaimed by Article 8 of the ECHR. The jurisprudence of the ECJ, which seems to act as a protector of fundamental rights of EU citizens, remains confused on two points: the wording of the contested directive, which is contradictory, and the control of proportionality. Where is the boundary between the acceptable and the unacceptable? Where does ‘targeted retention of traffic and location data’ start and where does it end? On paper the concept seems clear, however, in the reality, it is difficult to apply.

This judgment may leave an ajar door for a possible retention of data for purposes of administrative policing, when it comes to ‘preventing a serious risk to public safety’, on the condition that very strong guarantees are ensured, namely the prior control by an independent authority (para. 123) and information to those concerned (para. 121). States will have to combine the protection of the state with respect for the privacy of its citizens. (Orla Lynskey, Tele2 Sverige AB and WATSON and AL: continuity and radical change, 12 January 2017)

The Joint Case Tele2 Sverige AB highlights several interesting aspects (Gunnar Beck, Case Comment: C-203/15 Tele2 Sverige AB v Post-och telestyrelsen and C-698/15 SSHD v Tom Watson & Others, 13 January 2017). Firstly, the Court emphasizes that the data retention provisions of the Member States have to comply with EU law. Secondly, the Court repeated its ruling in the Digital Rights  judgment according to which generalized and indiscriminate surveillance is not permissible  under EU law. The retained data from every phone call, text and internet connection display information about the location, time and duration of the communication. The Court highlighted a focal point when it comes to this retained data. It stated that very precise conclusions may be drawn from it with regard to the private life of the person whose data has been retained. Thirdly, the Court accepted that data can be retained under certain circumstances. For example, in case of public interest, retained data can reveal a direct or indirect link to a serious criminal offense.  The Court lays down conditions for that national data retention laws which need to comply with EU law. The provisions of the national law must be clear and precise. In addition, they must indicate the circumstances and conditions in which data may be retained. Moreover, the retention must be ‘strictly necessary’.

Furthermore, in his opinion delivered on 19 July 2016, Advocate General Saugmandsgaard Øe drew the following conclusion: Article 15(1) of Directive 2002/58/EC concerning the privacy and electronic communications  and Articles 7, 8 and 52 (1) of the Charter are to be interpreted as not precluding Member States from imposing on providers of electronic communications services an obligation to retain all data with regard to communications effected by the users of their services if all of the above mentioned conditions are satisfied [Opinion delivered by Advocate General S on 16 July 2016, paragraph 263].

Thus, what can we learn from this case? We believe that the Court is methodical in the sense that it is more precise in its reasoning in comparison to other decisions. It enumerates the exceptions to fundamental rights guaranteed under EU law, which must be interpreted strictly. Thereafter, the Court follows its ruling in the Digital Rights  case, in which the Digital Retention Directive was declared invalid due to the fact that the EU legislation exceeded the principle of proportionality in the light of Articles 7,8 and 52 (1) of the Charter. Moreover, the Court weighs the right to data protection against the demands of public security. It then suggests that measures allowing for retaining data in some circumstances comply with the Charter.

Christofer Bjerkhoel, Nora Shoki, Anna Puck Lundgren and David Peralta

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Gordon on Brexit: a challenge for the UK constitution, of the UK constitution?

In October 2016, Michael Gordon, Senior Lecturer in Law at the University of Liverpool, specialized in Constitutional law, published an article entitled  “Brexit: a challenge for the UK constitution, of the UK constitution?” in the European Constitutional Law Review. As the title reveals, the article presents two main issues, namely the possible challenges for the UK constitutional system, and whether the Constitution in itself influenced the decision to leave the EU.

Brexit as a challenge for the UK Constitution

In the first part of the article, Gordon discusses the potential consequences of the UK’s departure from the EU in the light of the UK Constitution. Some of the challenges mentioned are, e.g., the transformation of the UK’s legal system that Brexit entails, the involvement of the institutions in the Brexit process and the potential negotiations of new agreements with the remaining EU member states (pp. 410-411).

Leaving aside how interesting these issues might be, they are mainly speculative since the UK’s exit from the EU is still in a very early stage. Although, in January 2017, the UK Supreme Court ruled in the Miller case that parliamentary approval was needed in order to commence the process of exiting the EU. This ruling has provided some clarity with regard to the institutional involvement, but the remaining issues are still unclarified. Therefore, this post mainly focuses on the second question of Gordon’s article.

Brexit as a challenge of the UK Constitution

Under this part of the article, Gordon raises the question as to whether the UK constitution might have contributed to the decision to leave the EU. He places great weight on the fact that the UK does not have a written constitution, but rather an uncodified constitution under which political action is given much space. Gordon further points out that due to the “unprecedented nature” of exiting the EU, any member state wanting to leave the Union would face major constitutional challenges in the process of doing so. Nevertheless, it may be particularly challenging for the UK because of the uncodified nature of its constitution (pp. 435-438).

According to Gordon, one of the decisive factors for the outcome of the referendum, which was held in order to determine whether to remain or to exit the EU, was the UK’s concern about the immigration levels caused by the free movement commitment within the EU. Furthermore, the strong eurosceptic movement, and the fact that the concept of supranational governance can, in some aspects, be considered incompatible with the UK constitution itself could also have influenced the result of the referendum. In relation to this, Gordon also mentions other pre-existing difficulties which have given rise to tensions between the UK constitution and the supranational nature of the EU. One of them is, according to the author, that the UK constitutional mechanisms controlling governmental accountability and responsibility does not correspond well with the supranational governance of the EU. He further states that the above mentioned difficulties in the UK’s constitutional system, that already existed before Brexit, might be exacerbated due to this process (pp. 439-441).

Comments

Even if some main reasons behind the result of the referendum can be pointed out, the decision to leave the EU is the consequence of many elements and cannot be reduced to just a few ones. Having said that, one cannot disregard the influence of the strong eurosceptic movement in the UK, nor the concerns regarding immigration levels in the UK, which greatly clashed with the free movement commitment of the Union.

As Gordon points out, it is probable that the specific features of the UK’s constitution in some ways have contributed to create tensions between the UK and the EU, which influenced the UK’s decision to leave the Union. However, the author fails to fully motivate how these tensions could have affected the UK’s decision. The possible tensions between the UK constitution and the EU might have had an influence on the decision to leave. Nevertheless, one can assume that the majority of UK citizens did not consider constitutional aspects when voting. Over-emphasising such tensions would be equivalent to underestimating the political influences, and by extension also the democratic process of the result of the referendum.

Since the UK, so far, is the only country that has decided to exit the EU, it is difficult to assess the impact that its constitution may, or may not, have had on the outcome of the referendum. The “pre-existing constitutional difficulties” discussed by Gordon might also exist in the written constitutions of other member states. If other countries should decide to follow the UK, such departures from the Union would allow for comparisons of potential constitutional influences of such decisions. However, the author is entirely correct in suggesting that Brexit raises “more fundamental constitutional questions about government and governance, democracy and accountability, power and sovereignty, the national and the supranational” (p. 443).

Lara Bianchet, Nathalie Holvik, and Sahel Noroozi

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The watchdog barks, but does it bite? – A renewed push on relocation and resettlement of refugees and migrants in the EU

Background

This post is a follow up of the earlier posts on the Common European Asylum System published on this blog. It is based on a Statement from the Commission, published on 2 March 2017 concerning renewed efforts in implementing solidarity measures under the European Agenda on Migration. The European Agenda on Migration is an agenda based on four pillars to better manage migration. The four pillar are reducing the incentives for irregular migration, saving lives and securing the external borders, a strong asylum policy and a new policy on legal migration.

Since 2015, a lot of people have applied for asylum in different parts of the world. The main reason for this is the crisis and war in Syria. According to the United Nations High Commissioner for Refugees (UNHCR), 6.5 million people have fled from Syria. Because of the unexpected amount of people applying for asylum, the migration policy in the EU has been highly discussed and criticised (see earlier posts). On 2 March 2017, the Commission stated that all Member States need to ‘pick up the pace of relocation to alleviate pressure from Italy and Greece’.

The EU-Turkey Agreement, which has been discussed earlier on this blog, is an agreement which aims to end illegal migration from Turkey to the EU. The agreement came into force 20 March 2016 and includes, inter alia, a provision stating that irregular migrants crossing from Turkey to the Greek Islands will be returned to Turkey. On 2 March 2017, the Commission stated that Greece and the other Member States must continue working on the Joint Action Plan on the implementation of the EU-Turkey agreement, which is a cooperation between EU and Turkey on migration management. The objective is to improve the situation on the Greek Islands and the work of the European Border and Coast Guard Agency.

Frans Timmermans, the Commission’s First Vice-President stated, that all Member States must continue to implement a comprehensive approach. The engagement with Turkey needs to continue. Dimitris Avramopoulos, the Commissioner for Migration, Home Affairs and Citizenship stated that ‘responsibility cannot be fairly shared without solidarity’. Avramopoulos refers to the fact that the Member States need to carry through their obligations and to ensure full operational capability of the European Border and Coast Guard.

A renewed push without actual effect?

Concerning the relocation and the resettlement of migrants, the Member States are performing in various degrees with regards to their obligations. Only two Member States, Finland and Malta, are fulfilling their obligations towards Greece and Italy. However, other Member States, such as Hungary, Austria and Poland, are refusing to participate at all in the process. In addition, some Member States are meeting their obligations to a very limited extent, for example Bulgaria, Croatia and Slovakia. So far, the Member States have only provided safe pathways to 14,422 out of 22,504 persons which they have agreed to relocate. It is in this light that we must ask ourselves the critical question if the Commission’s renewed push towards implementing solidarity measures will really encourage the Member States to live up to their obligations on the issue of relocation and resettlement of migrants.

The Commission’s stance towards the Member States is quite firm. Either the Member States comply with their obligations or the watchdog of the EU will hold these naughty Member States accountable for not living up to their obligations deriving from the Council decisions. But, will the Commission’s stern approach help the migrants in the Mediterranean sea? It is evident that the Member States should participate in the relocation scheme of migrants. The principle of solidarity and fair sharing binds all Member States.

As a consequence of the Member States’ failure, or refusal, to comply with their obligations, the Commission is indeed calling for renewed efforts in implementing solidarity measures under the European Agenda on Migration. By stating it will not hesitate to make use of its powers under the Treaties for those who have not complied, the Commission shows it is firmly determined to make the Member States equally deliver our obligations. However, will this threat actually lead to the Member States complying and is this the only way forward? As Avramopoulos said, all operational preconditions to make relocation work are in place, yet only two Member States are complying with their obligations. In this case, it is not hard to argue that, although the EU officially has agreed upon how to solve this ongoing problem, it is obvious that very few Member States actually support what they have agreed upon. Therefore, if the Commission were to realize its threat, it would have to do this against almost all the Member States. In such a case, it is doubtful if the Commission is brave enough to do this or if the threat is an ‘empty threat’.

So, why are some Member States not complying with their obligation? One of the reasons for this is the conflicting interest between the EU and the Member States. While the EU has their own interest to maintain their obligations, the Member State are concerned about their national priorities. Since the Commission, which takes the interest of the EU, is the initiator of the agreement, the Member States may not feel sufficiently included in the decision-making process. Bulgaria, Hungary, Macedonia, Greece and Turkey have put up fences to hinder refugees from entering their countries, which clearly manifest some Member States’ contradicting opinions about the refugee crisis.

In addition, it is also possible that some Member States, especially those refusing to comply with their obligation at all, would prefer to be brought before the Court by the Commission and eventually be fined instead of having to relocate refugees. The relocation and resettlement of refugees is clearly a very sensitive issue for both the EU and the Member States, and although the Commission is firmly determined in implementing the solidarity measures under the European Agenda on Migration, it is not hard to argue that this renewed push is without actual effect. It seems more likely that the EU must get back to the drawing board and come up with a solution that all Member States support and, sadly enough the refugees are the ones most affected by this, not the Member States.

Christofer Bjerkhoel, David Peralta, Anna Puck Lundgren and Nora Shoki

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