With or without you...judging politically in the field of Area of Freedom, Security and Justice? Research Papers in Law, 3/2007

From the Introduction. The study of the European Court of Justice’s (ECJ) case law of the regarding the Area of Freedom Security and Justice (AFSJ) is fascinating in many ways.1 First, almost the totality of the relevant case law is extremely recent, thereby marking the first ‘foundational’ steps in this field of law. This is the result of the fact that the AFSJ was set up by the Treaty of Amsterdam in 1997 and only entered into force in May 1999.2 Second, as the AFSJ is a new field of EU competence, it sets afresh all the fundamental questions – both political and legal – triggered by European integration, namely in terms of: a) distribution of powers between the Union and its member states, b) attribution of competences between the various EU Institutions, c) direct effect and supremacy of EU rules, d) scope of competence of the ECJ, and e) measure of the protection given to fundamental rights. The above questions beg for answers which should take into account both the extremely sensible fields of law upon which the AFSJ is anchored, and the EU’s highly inconvenient three-pillar institutional framework.3 Third, and as a consequence of the above, the vast majority of the ECJ’s judgments relating to the AFSJ are a) delivered by the Full Court or, at least, the Grand Chamber, b) with the intervention of great many member states and c) often obscure in content. This is due to the fact that the Court is called upon to set the foundational rules in a new field of EU law, often trying to accommodate divergent considerations, not all of which are strictly legal.4 Fourth, the case law of the Court relating to the AFSJ, touches upon a vast variety of topics which are not necessarily related to one another. This is why it is essential to limit the scope of this study. The content of, and steering for, the AFSJ were given by the Tampere European Council, in October 1999. According to the Tampere Conclusions, the AFSJ should consist of four key elements: a) a common immigration and asylum policy, b) judicial cooperation in both civil and penal matters, c) action against criminality and d) external action of the EU in all the above fields. Moreover, the AFSJ is to a large extent based on the Schengen acquis. The latter has been ‘communautarised’5 by the Treaty of Amsterdam and further ‘ventilated’ between the first and third pillars by decisions 1999/435 and 1999/436.6 Judicial cooperation in civil matters, mainly by means of international conventions (such as the Rome Convention of 1981 on the law applicable to contractual obligations) and regulations (such as (EC) 44/20017 and (EC) 1348/20008) also form part of the AFSJ. However, the relevant case law of the ECJ will not be examined in the present contribution.9 Similarly, the judgments of the Court delivered in the course of Article 226 EC proceedings against member states, will be omitted.10 Even after setting aside the above case law and notwithstanding the fact that the AFSJ only dates as far back as May 1999, the judgments of the ECJ are numerous. A simple (if not simplistic) categorisation may be between, on the one hand, judgments which concern the institutional setting of the AFSJ (para. 2) and, on the other, judgments which are related to some substantive AFSJ policy (para. 3).

The New EU Climate and Energy Package: Passing the test? CEPS Commentary, 6 January 2014

On 22 January 2014, the European Commission is expected to publish the proposals for the 2030 Framework for Climate and Energy Policies, which will be discussed and possibly – or maybe, partly – agreed during the 20-21 March 2014 European Council. This is the first comprehensive review of the 2007-09 Climate and Energy Package, which resulted in the so-called ‘20-20-20’ targets by 2020. The principal intention is to define the EU’s climate change and energy policy framework for the next decade and beyond to give investors an adequate amount of predictability if not certainty. This Commentary argues, however, that the ‘2030 Framework’ is not just about predictability; it is also about making the proper adjustments based on the lessons learned and also in response to new issues that have emerged in the interim. The authors ask what the main lessons are and how they should influence the 2030 Framework. Or put differently, what are the conditions that the “2030 Framework” will need to meet in order to offer a viable package for discussion?

Exceeding expectations, Lithuania moves the Trio presidency forward. CEPS Commentary, 22 January 2014

Lithuania assumed its maiden term running the rotating Presidency of the Council in the 2nd half of 2013 under difficult constraints: the country’s modest administrative capacities and the enormous time pressures brought on by the urgency of certain dossiers and the abbreviated term of the current Parliament, which ends in mid-April. Nevertheless, as assessed by Sonia Piedrafita and Vilde Renman in this new CEPS Commentary, substantial progress was made thanks to the perseverance and strenuous efforts by the Lithuanians. In the end, some 137 legal acts were adopted during its six-month term, including several highly sensitive and complex pieces of legislation. The overall success was only slightly marred by the haste with which a few agreements were negotiated.

Will the Transatlantic Trade and Investment Partnership be a game-changer? EU Centre Singapore Policy Brief No. 5, April 2013

In February 2013, US President Barrack Obama, European Council President Herman Van Rompuy and President of the European Commission José Manuel Barroso announced the decision to go for an ambitious and comprehensive trade and investment agreement between the US and the EU. To be called the Transatlantic Trade and Investment Partnership (TTIP), this agreement would lead to a new stage in the transatlantic relationship and be a much needed boost to the lacklustre economic recovery so far. Some analysts have even argued that TTIP would be a “game changer” – besides the economic gains, it would serve a bigger strategic purpose of promoting EU-US common objective to set higher standards of trade liberalisation, and thereby level the playing field in China and other key emerging markets. This policy brief examines the reasons behind the current push towards TTIP and the possible contents of such an agreement. It also discusses the possible obstacles to the realisation of TTIP, and at the same time, looks into what a successful conclusion of TTIP would mean for Asia and beyond.

The Treaty of Lisbon or intergovernmental temptation?

From the Introduction. This question goes to the very heart of the European project: it is fundamental for the future of the European Union and its role in the world. The Treaty of Lisbon emerged from the ashes of the European Constitution. Driven forward by Angela Merkel, as President of the European Council, Nicolas Sarkozy and José Manuel Barroso, the main advances made in the Constitution were preserved at the expense of a few concessions and symbolic sacrifices in order to make the Union more effective and more democratic.

Shifting EU Institutional Reform into High Gear. Report of the CEPS High-Level Group. CEPS Task Force Reports

To contribute to the important debate on EU institutional reform in the run-up to the European Parliament elections and the start of a new Commission, CEPS formed a High-Level Group on EU Institutional Reform under the leadership of Danuta Hübner MEP and member of the CEPS Board of Directors. The report of this distinguished group of MEPs, former and current EU institutional members and leading scholars on EU law and institutional affairs focuses on reforms that could be taken within the framework of the current treaties to build a more responsive and accountable Union. The report analyses the main inter- and intra-institutional weaknesses in terms of efficiency, democracy and differentiation and puts forward a number of recommendations addressing issues such as the reorganisation of the College of Commissioners, the promotion of strategic legislative planning, the enhancement of the role of the EP and the rotating Presidency of the Council, the improvement of the democratic accountability of the European Council and the adequate engagement of the national parliaments.

Common Security and Defence in 2014: Revise and resubmit. CEPS Commentaries, 27 March 2014

The conclusions of the December 2013 European Council on defence sounded like a ‘revise and resubmit’ recommendation for the Common Security and Defence Policy (CSDP). That outcome was not too disappointing in itself, because precise technical guidelines were provided to revamp Europe’s defence, with good prospects of real progress. But it was not too ambitious either, as a clear indication of Europe’s future role in global security was in effect postponed until 2015, thus requiring ‘resubmission’ at a later date. Furthermore, member states did not seem particularly committed to reaching a formal agreement on a common strategic narrative; a sign that the governance gap continues to affect CSDP. Giovanni Faleg asks whether the European Council on defence marked the twilight of CSDP, or whether we will now see a new phase of cooperation, characterised by escalating external pressures in the southern neighbourhood and a resurgent Russian threat in the east.

The Composition and Drivers of Energy Prices and Costs in Energy-Intensive Industries: The Case of Ceramics, Glass and Chemicals. CEPS Special Report No. 85, 27 March 2014

In May 2013, the European Commission received a mandate from the European Council to “to present an analysis of the composition and drivers of energy prices and costs in Member States, with a particular focus on the impact on households, SMEs and energy intensive industries, and looking more widely at the EU's competitiveness vis-à-vis its global economic counterparts”. Following such mandate and in view of the preparation by the Commission of a Communication and a Staff Working Document, DG Enterprise and Industry commissioned CEPS to carry out a set of studies aimed at providing well-grounded evidence about the evolution and composition of energy prices and costs at plant level within individual industry sectors. A team of CEPS researchers conducted the research, led by Christian Egenhofer and Lorna Schrefler. Vasileios Rizos served as Project Coordinator. Other CEPS researchers contributing to the project included: Fabio Genoese, Andrea Renda, Andrei Marcu, Julian Wieczorkiewicz, Susanna Roth, Federico Infelise, Giacomo Luchetta, Lorenzo Colantoni, Wijnand Stoefs, Jacopo Timini and Felice Simonelli. In addition to an introductory report entitled “About the Study and Cross-Sectoral Analysis”, CEPS prepared five sectoral case studies: two on ceramics (wall and floor tiles and bricks and roof tiles), two on chemicals (ammonia and chlorine) and one on flat glass. Each of these six studies has been consolidated in this single volume for free downloading on the CEPS website. The specific objective was to complement information already available at macro level with a bottom-up perspective on the operating conditions that industry stakeholders need to deal with, in terms of energy prices and costs. The approach chosen was based on case studies for a selected set (sub-)sectors amongst energy-intensive industries. A standard questionnaire was circulated and respondents were sampled according to specified criteria. Data and information collected were finally presented in a structured format in order to guarantee comparability of results between the different (sub-)sectors analysed. The complete set of files can also be downloaded from the European Commission’s website: http://ec.europa.eu/enterprise/newsroom/cf/itemdetail.cfm?item_id=7238&lang=en&title=Study-on-composition-and-drivers-of-energy-prices-and-costs-in-energy-intnsive-industries The results of the studies were presented at a CEPS Conference held on February 26th along with additional evidence from other similar studies. The presentations can be downloaded at: http://www.ceps.eu/event/level-and-drivers-eu-energy-prices-energy-inten...

Rounding out a satisfactory Trio Presidency: Greece sets the stage for its Italian successor. CEPS Commentary, 3 July 2014

Expectations of the Greek presidency were not high: the budget was limited, the legislative term was drawing to a close and the European Parliament dissolved in mid-April for the elections. However, Greece made the most of its resources to progress on some very important dossiers and brought about a satisfactory close to the Trio presidency previously held by Ireland and Lithuania. The Greek presidency managed to finalise work on the Trio priorities, mainly in relation to banking union, the Digital Agenda, the competitiveness of EU enterprises and the Compact for Growth and Jobs. It also advanced legislation to tackle tax evasion as a necessary complement to spending cuts, and set the agenda for migration and maritime affairs, in close cooperation with Italy.

Relative direct democratic legitimacy. CEPS Commentary, 26 June 2014

As the European Council convenes today and tomorrow (June 26-27th) to confirm Jean-Claude Juncker as the candidate for President of the European Commission, CEPS Director Daniel Gros shows in this Commentary that the Council should de facto also be considered more a 'mini parliament' than an assembly of states and that the European Parliament cannot claim the monopoly on democratic legitimacy. For a practical application of the principles Gros presents in this commentary, see his column in Project Syndicate, 17 June 2014, in which he rejects the view that Jean-Claude Juncker has a democratic mandate to lead the European Parliament (www.project-syndicate.org/commentary/daniel-gros-rejects-the-view-that-j...

Never mind the Spitzenkandidaten: It's all about politics. CEPS Commentary, 6 June 2014

In this new commentary, CEPS Fellow Marco Incerti argues that the so-called technical and legal arguments that are being advanced against the lead candidates’ (Spitzenkandidaten) selection process actually boil down to political choices − choices that are set against the increasingly confrontational climate between the European Council and European Parliament that has characterised their dealings in recent years.

Priorities for the Next Legislature: EU external action. CEPS Commentary, 29 September 2014

At a time when the European Union’s strategic and geopolitical environment is more troubled and unpredictable than it has been for decades, the European Council is calling for stronger EU engagement in international affairs. The rest of the rapidly changing world is not going to wait for the EU to get its act together to defend its own values and interests. This CEPS Commentary sets out four priorities for High Representative/Vice-President-designate Federica Mogherini as she takes up her role as leader of the European External Action Service and the next 'RELEX' Group of Commissioners.

Historic turning point or just another chapter? The results of a foreign-policy summit. EPC Post-Summit Analysis, 24 March 2014

The March 2014 European Council could enter the history books as a turning point, not only in the EU’s relations with Russia but also in its role as a foreign policy actor. Events in Ukraine inevitably dominated the Summit, with EU leaders adopting a balanced approach aimed at achieving three key objectives – de-escalation, containment/deterrence and cooperation – based on political and economic support for Ukraine, increased but limited pressure on Russia, and moves to strengthen ties with other EU neighbours. The Summit also discussed a range of economic and environmental policy issues, with the situation in Ukraine casting a long shadow over the discussion on energy policy, but failed to reach agreement on the EU’s climate goals to 2030, or to put more flesh on the bones of calls for a European “industrial renaissance”. However, two other developments were particularly significant: the creation of the second pillar of the future banking union, establishing a single regime for winding down failing banks; and changes to the savings tax directive, bringing years of negotiation to an end.

The future of the area of freedom, security and justice. Addressing mobility, protection and effectiveness in the long run. EPC Discussion Paper, 23 January 2014

With the Stockholm Programme coming to an end in 2014, the “Brussels Community” is increasing agitated with a recurring question: what will replace the Stockholm Programme? Paradoxically, this uncertainty is fuelled by the existence of a new and clear Treaty provision – Article 68 TFEU – which states “The European Council shall define the strategic guidelines for legislative and operational planning within the area of freedom, security and justice”. Clear in its wording, this provision may lead to different understandings and unclear implications in practice. In order to provide more clarity, the European Policy Centre (EPC) set up a Task Force to reflect on the impact of this provision and more generally the future of the area of freedom, security and justice after 2014. Results of this process are reflected in this discussion paper which addresses the process and content regarding the definition of future strategic guidelines.