Rule of law or rule of thumb? A new Copenhagen mechanism for the EU. CEPS Policy Brief No. 303, 20 November 2013

This Policy Brief synthesises the main research findings and policy recommendations presented in the CEPS e-book entitled The Triangular Relationship between Fundamental Rights, Democracy and Rule of Law: Towards an EU Copenhagen Mechanism” (http://www.ceps.eu/book/triangular-relationship-between-fundamental-righ...). The authors examine the ways in which the European Union could strengthen and develop its competences in the assessment of member states’ fundamental rights, democracy and rule of law commitments. They argue that a strong political impetus is needed at Union level in order to set up a new supervisory “Copenhagen Mechanism” that would effectively and periodically evaluate member states’ compliance with democratic rule of law with fundamental rights on the basis of independent academic expertise, and by ensuring a high level of democratic accountability and judicial oversight at European levels. The Policy Brief also aims at summarising CEPS’ contribution to the upcoming Conference “Assises de la Justice: Shaping Justice Policies in Europe for the Years to Come” organised by the European Commission in Brussels on 21-22 November 2013.

A New Start for the EU’s Area of Freedom, Security and Justice? Setting of Priorities for the New European Commission. CEPS Commentary, 23 September 2014

The nomination of a First Vice-President (Frans Timmermans) in charge of rule of law and the EU Charter of Fundamental is one of the more far-reaching innovations contained in the new institutional shape of the Juncker Commission. This CEPS Commentary by Sergio Carrera and Elspeth Guild welcomes the fact that a new fundamental rights and rule of law First Vice-President will exercise a coordination and advisory role over the other two JHA Commissioners – Věra Jourová, responsible for Justice, Consumers and Gender Equality (DG Justice); and Dimitris Avramopoulos, responsible for Migration and Home Affairs (DG Home Affairs), but expresses a note caution whether this new role and triangular relationship can be made to work effectively in practice.

The radical Islamic militants of Central Asia. OSW Report, November 2013

Radical Islamic militants from Central Asia have ceased to be a local phenomenon. The organisations created by those groups (the Islamic Movement of Uzbekistan and the Islamic Jihad Union) engage in propaganda, recruitment, fundraising and terrorist operations in states distant from their traditional area of interest, such as European Union countries, South Asia and the United States. Their ranks contain not only Central Asian Islamists, but also those from other countries, such as Russia, Pakistan, Germany, France, the United Kingdom, China, Turkey and even Myanmar. These organisations’ current activities and forms are multidimensional and complicated, characterised by combat versatility, structural amorphism, operational mobility and simultaneous operations in different fields and theatres. As a result of the universalization of Islamic terrorism, these organisations have been intensifying contacts with other international Islamic terrorist organisations based in Waziristan (mainly al-Qaida, Taliban and the Haqqani Network). A specific system of mutual cooperation has developed between them, involving the specialisation of various terrorist organisations in particular aspects of terrorist activity. The IMU and IJU specialise in the recruitment and training of Islamic radicals from around the world, and have thus become a kind of ‘jihad academy’.

The European Council’s Guidelines for the Area of Freedom, Security and Justice 2020: Subverting the ‘Lisbonisation’ of Justice and Home Affairs? CEPS Essay No. 13, 14 July 2014

In its Conclusions of 26-27 June 2014, the European Council has adopted the new “Strategic Guidelines for Legislative and Operational Planning for the coming years within the EU’s Area of Freedom, Security and Justice (AFSJ)”. These Guidelines reveal a pre-Lisbon Treaty mindset among the EU member states and the Justice and Home Affairs Council. This essay argues that the Guidelines are mainly driven by the interests and agendas of national Ministries of Interior and Justice and are only “strategic” to the extent that they aim at first, re-injecting ‘intergovernmentalism’ or bringing back the old EU Third Pillar ways of working to the new EU institutional setting of the AFSJ and second, at sidelining the EU Charter of Fundamental Rights and rule of law in the AFSJ. The paper argues that the European Council Guidelines seek to prevent the advances in Justice and Home Affairs cooperation as envisaged in the Treaty of Lisbon, particularly its emphasis on supranational democratic, legal and judicial accountability. As a consequence of this move to ‘de-Lisbonise’ JHA cooperation, fundamental rights and rule of law-related initiatives will be neglected and the interest of the individual will be displaced from the centre of gravity in the coming AFSJ 2020 policy agenda.

National Security and Secret Evidence in Legislation and before the Courts: Exploring the Challenges. CEPS Liberty and Security in Europe No. 78/January 2015

This study provides a comparative analysis of the national legal regimes and practices governing the use of intelligence information as evidence in the United Kingdom, France, Germany, Spain, Italy, the Netherlands and Sweden. It explores notably how national security can be invoked to determine the classification of information and evidence as 'state secrets' in court proceedings and whether such laws and practices are fundamental rights- and rule of law-compliant. The study finds that, in the majority of Member States under investigation, the judiciary is significantly hindered in effectively adjudicating justice and guaranteeing the rights of the defence in ‘national security’ cases. The research also illustrates that the very term ‘national security’ is nebulously defined across the Member States analysed, with no national definition meeting legal certainty and “in accordance with the law” standards and a clear risk that the executive and secret services may act arbitrarily. The study argues that national and transnational intelligence community practices and cooperation need to be subject to more independent and effective judicial accountability and be brought into line with EU 'rule of law' standards.

Gender Equality in the Case Law of the European Court of Justice. IES WORKING PAPER 2/2009

The principle of gender equality forms a part of the EU’s social policy and serves equally men and women. So far, fourteen directives concerning gender equality have been adopted in the EU, with the New Equal Treatment Directive as the latest one. The EU has developed different models to promote gender equality: equal treatment, positive action and most recently gender mainstreaming. The equal treatment model is primarily concerned with formal equality and it unfortunately prevails in the ECJ’s rulings. Indeed, this paper argues that so far, the ECJ has not managed to develop a firm and consistent case law on gender equality, nor to stretch it coherently to positive action and gender mainstreaming. It seems that in spite of some progress in promoting the position of women, the ECJ’s case law has recently taken a step backwards with its conservative judgments in e.g. the Cadman case. Overall, this paper aims at summing up and evaluating the most important cases of the ECJ on gender equality.

GATS and the Social Regulation of Services. IES WORKING PAPER 3/2010

Many service transactions are highly complex, and their quality is difficult to ascertain for consumers. In order to have properly functioning service markets, the services thus often require regulation. However, with the advent of the WTO, international trade in services has become increasingly rule-bound. GATS has considerable, intricate effects on social regulation due to the characteristics of services. The allocation of regulatory jurisdiction between home and host country, for example, is rendered difficult by the process-based nature of a lot of services. The WTO US – Gambling dispute settlement report is the first to address GATS disciplines on social regulation in a detailed manner. This working paper submits that the US - Gambling report has increased interference with domestic social regulation and created regulatory uncertainty for WTO members. However, it is also argued that the real impact of the GATS on social regulation can only be understood by looking beyond the text of the GATS. GATS disciplines may become amplified through their interaction with domestic and other international law. The GATS also contains some “political” counterbalancing mechanisms that allow members to renegotiate their commitments. It is argued that these political mechanisms strengthen subsidiarity in the GATS, and make WTO dispute settlement bodies accountable to WTO members.

The EU Counter-Terrorism Policy Responses to the Attacks in Paris: Towards an EU Security and Liberty Agenda. CEPS Liberty and Security in Europe No. 81/February 2015

This paper examines the main EU-level initiatives that have been put forward in the weeks following the attacks in Paris in January 2015, which will be discussed in the informal European Council meeting of 12 February 2015. It argues that a majority of these proposals predated the Paris shootings and had until that point proved contentious as regards their efficacy, legitimacy and lawfulness. The paper finds that EU counterterrorism responses raise two fundamental challenges: A first challenge is posed to the freedom of movement, Schengen and EU citizenship. Priority is being given to the expanded use of large-scale surveillance and systematic monitoring of all travellers including EU citizens, which stands in contravention of Schengen and the free movement principle. A second challenge concerns EU democratic rule of law. Current pressures calling for the adoption of measures such as the EU Passenger Name Record challenge the scrutiny roles held by the European Parliament and the Court of Justice of the EU on counterterrorism measures in a post-Lisbon Treaty setting. The paper proposes that the EU adopts a new European Agenda on Security and Liberty based on an EU security (criminal justice-led) cooperation model that is firmly anchored in current EU legal principles and rule of law standards. This model would call for ‘less is more’ concerning the use, processing and retention of data by police and intelligence communities. Instead, it would pursue better and more accurate use of data meeting the quality standards of evidence in criminal judicial proceedings.

An Exercise in Legal Honesty: Re-writing the Court of Justice and the Bundesverfassungsgericht. IHS Political Science Series No. 136, February 2014

At a time of crisis – a true state of emergency – both the Court of Justice of the European Union and the German Federal Constitutional Court have failed the rule of law in Europe. Worse still, in their evaluation of the ersatz crisis law, which has been developed in response to financial and sovereign debt crises, both courts have undermined constitutionality throughout Europe. Each jurisdiction has been implicated within the techocratisation of democratic process. Each Court has contributed to an incremental process of the undermining of the political subjectivity of European Citizens. The results are depressing for lawyers who are still attached to notions of constitutionality. Yet, we must also ask whether the Courts could have acted otherwise. Given the original flaws in the construction of Economic and Monetary Union, as well as the politically pre-emptive constraints imposed by global financial markets, each Court might thus be argued to have been forced to suspend immediate legality in a longer term effort to secure the character of the legal jurisdiction as a whole. Crisis can and does defeat the law. Nevertheless, what continues to disturb is the failure of law in Europe to open up any perspective for a return to normal constitutionality post crisis, as well as its apparent inability to give proper and honest consideration to the hardship now being experienced by millions of Europeans within crisis. This contribution accordingly seeks to reimagine each Judgment in a language of legal honesty. Above all, this contribution seeks to suggest a new form of post-national constitutional language; a language which takes as its primary function, proper protection of democratic process against the ever encroaching powers of a post-national executive power. This contribution forms a part of an on-going effort to identify a new basis for the legitimacy of European Law, conducted jointly and severally with Christian Joerges, University of Bremen and Hertie School of Government, Berlin. Differences do remain in our theoretical positions; hence this individual essay. Nevertheless, the congruence between pluralist and conflict of law approaches to the topic are also readily apparent. See, for example, Everson & Joerges (2013).

Greater TTIP Ambition in Chemicals: Why and how. CEPS Special Report, 28 July 2015. Paper No. 10 in the CEPS-CTR project ‘TTIP in the Balance’ and CEPS Special Report No. 114/July 2015.

To date, the negotiations over chemicals in the Translatlantic Trade and Investment Partnership (TTIP) have not shown sufficient ambition. The talks have focused too much on the differences in the two ‘systems’, rather than on the actual levels of health and environmental protection for substances regulated by both the US and the EU. Given the accomplishments within the OECD and the UN Globally Harmonised System of Classification and Labelling of Chemicals (GHS), the question is whether TTIP can be any more ambitious in the area of chemicals? We find that there is no detailed or systematic knowledge about how the two levels of protection in chemicals compare, although caricatures and stereotypes abound. This is partly due to an obsessive focus on a single US federal law, the Toxic Subtances Control Act (TSCA), whereas in practice US protection depends on many statutes and regulations, as well as on voluntary withdrawals (under pressure from the Environmental Protection Agency) and severe common law liability. This paper makes the economic case for firmly addressing the regulatory barriers, discusses the EU’s proposals, finds that the European Parliament’s Resolution on TTIP of July 2015 lacks a rationale (for chemicals), argues that both TSCA and REACH ought to be improved (based on ‘better regulation’), discusses the link with a global regime, advocates significant improvement of market access where equivalence of health and environmental objectives is agreed and, finally, proposes to lower the costs for companies selling in both markets by allowing them to opt into the other party’s more stringent rules, thereby avoiding duplication while racing-to-the-top. The ‘living agreement’ on chemicals ought to be led by a new TTIP institution authorised to establish the level of health and environmental protection on both sides of the Atlantic for substances regulated on both sides. These findings will lay the foundation for a highly beneficial lowering of trading costs without in any way affecting the level of protection. Indeed, this is exactly what TTIP is, or should be, all about.This paper is the 10th in a series produced in the context of the “TTIP in the Balance” project, jointly organised by CEPS and the Center for Transatlantic Relations (CTR) in Washington, D.C. It is published simultaneously on the CEPS (www.ceps.eu) and CTR websites (http://transatlantic.sais-jhu.edu).

EU Budgetary Responses to the ‘Refugee Crisis’: Reconfiguring the Funding Landscape. CEPS Paper Liberty and Security in Europe No. 93/May 2016

This paper analyses the EU budgetary responses to the ‘refugee crisis’ in Europe. The European Commission has proposed several changes to the EU budget as well as the establishment of new funding instruments. The paper explores what the announced funding consists of, what role it plays in policy-making and what issues it generates. Throughout these budgetary responses the search for flexibility has been dominant, motivated by the need to respond more swiftly to humanitarian and operational needs. In addition, the paper argues that beyond implementation or management, the role of funding is also symbolic and communicative. In light of limited competences that are difficult to exercise, funding represents a powerful tool enabling the Commission to shape policy-making in times of crisis. At the same time, the dominant search for flexibility also challenges established funding rules and procedures. It has furthermore led to reduced space for democratic scrutiny by the European Parliament. More profoundly, EU funding for cooperation with third countries to prevent the inflow of refugees and asylum seekers has monetised questions over the responsibility for these individuals. As the EU–Turkey agreement shows, this has created a self-imposed dependence on third countries, with the risk of potentially insatiable demands for EU funding. This paper questions the proportionality and rule of law compliance of allocating funding for the implementation of this agreement. Moreover, it proposes that the Commission take steps to practically safeguard the humanitarian aid principles in the management structures of the new funding instruments, and it stresses the need for more scrutiny of the reconfigured funding landscape by the European Parliament and the European Court of Auditors.

Europeanization, Institutional Changes and Differential Empowerment

The issue of European integration is of utmost importance for contemporary Swiss politics, as underscored by the presence of three decision-making processes relating to bilateral agreements with the EU, and two additional processes with a strong European dimension (the telecommunication act and the immigration law), among the 11 most important processes of the early 2000s. Previous chapters have highlighted substantial differences between domestic and Europeanized decision-making processes in terms of institutional design and decision-making structures. Chapters 2 and 3 suggest that the peculiarities of the three decision-making processes relating to bilateral agreements go along with specific power configurations among political actors. Chapter 5 draws our attention to the impact of Europeanization on the specific decision-making structure at work in a given policy process.

Addressing climate change under preferential trade agreements: Towards alignment of carbon standards under the Transatlantic Trade and Investment Partnership

With its wide coverage of economic spheres and the variety of trade and investment measures currently under negotiation, the Transatlantic Trade and Investment Partnership opens windows of opportunity for advancing action on climate change. We examine possible avenues and international trade law implications for an alignment of carbon-related standards between the EU and the US. We compare EU and US carbon emissions standards for cars and argue that negotiators should strive for a mutual recognition of their equivalence for a transitional period, while pursuing the goal of full harmonization at the level of the highest standards of two parties at some date in the future. This could be a way to balance between economic and environmental interests and harness economic incentives for the benefit of climate.

Toward alignment of carbon standards under the Transatlantic Trade and Investment Partnership

With its wide coverage of economic spheres and the variety of trade and investment measures currently under negotiation, the Transatlantic Trade and Investment Partnership (TTIP) opens windows of opportunity for climate change mitigation and adaptation. The paper examines the possible avenues and the WTO law implications for the alignment of emissions standards between the European Union (EU) and United States of America (US). Looking particularly at the automobile sector, it argues that TTIP negotiators should strive for the mutual recognition of equivalence of EU and US car emissions standards, while pursuing full harmonisation in the long term. It concludes that the preferential trade agreement (PTA) status of TTIP would not be able to exempt measures taken for regulatory convergence from compliance with applicable WTO rules, particularly the rules of the WTO’s Agreement on Technical Barriers to Trade (TBT). Furthermore, the EU and the US would not be able to ignore requests for the recognition of equivalence of third countries’ standards and would need to provide the grounds upon which they assess third countries’ standards as not adequately fulfilling the objectives of their own regulations and therefore rejecting them.

Driver license compact study: evaluation and recommendations. Final report.

National Highway Traffic Safety Administration, Washington, D.C.