EU Law Blog

Welsh, Gaelic Languages and the United Kingdom Administrative Arrangement with the Council

Remember that Council "conclusion" of June 13th 2005 on "the official use of additional languages within the Council and possibly other Institutions and bodies of the European Union" ? We mentioned it in this post back in September 2005.

We noted also back in February 2006 that Spain had concluded an administrative arrangement about the use of languages other than castilian recognized by the Spanish Constitution.

Now, the United Kingdom has concluded a materially identical administrative arrangement with the Council about the use of languages other than English recognized by United Kingdom law.

In practice, that means the use of the Welsh language which gets its status from the Welsh Language Act 1993 and the Government of Wales Act 1998. It also means the use of Gaelic which derives its official status from the Gaelic Language (Scotland) Act 2005. (On languages in the United Kingdom generally, see here).

Like the Spanish arrangement, the one with the United Kingdom provides that a person any may write to the Council - but indirectly - in any one of the languages recognised by law in the United Kingdom and receive a response in it. That person cannot write to the Council direct but must send the letter to a body designated by the United Kingdom government which body then translates it into English and sends it on to the Council. The Council responds in English, sends the response to the designated body which then translates it into one of the language of the addressee and sends it on. There are provisions in the arrangement also for oral debates in the Council to be in one of the languages recognized by United Kingdom law and for measures adopted by co-decision to be translate into them. The cost of all this is borne by the British government, not by the Council.

Extension of European Ombudsman's powers

The European Parliament has adopted Decision 2008/587/EC extending the powers of the European Ombudsman. Decision 2008/587/EC thus amends Decision 94/262, which sets out the conditions governing the performance of his duties.

One of the major changes that Decision 2008/587 makes is to remove the possibility that European institutions and bodies had to refuse to disclose documents to the Ombudsman on grounds of secrecy. The institutions must even disclose secret documents sent to them by the member States (provided that the latter consent). That, of course, has ominous implications given the sort of information that now transits the institutions in the field of police and security coöperation. It would seem that secret or confidential documents received from non member States are completely unprotected from his gaze and his right to make public. That is even more ominous.

Let's hope the next appointee to the position is vetted carefully.

Another interesting extension of the Ombudsman powers concerns his newly granted right to coöperate with bodies entrusted with the protection of fundamental rights.

New Judge for the Court of First Instance

The Irish government has nominated Judge Kevin O'Higgins of the Irish High Court to replace Judge Cooke at the Court of First Instance.

You can see the official letter and his resume here.

If his appointment is confirmed, it will be another father-son act because his father was a judge at the Court of Justice back in the late 80s and early 90s.

We'll keep you posted on the outcome of the appointment process.

UPDATE: An alert reader, Madeleine, points out that the new judge is not in fact the son of a former judge at the Court of Justice. We apologize for the mistake and thanks for the correction.

Comitology, Interinstitutional Agreement between Commission and Parliament

More excitement on the comitology front!

A while back we noted the new procedure called the "regulatory procedure with scrutiny" introduced by Council decision 2006/512/EC (and see here for an update).

The European Parliament and the Commission have recently concluded a new agreement on the procedures for implementing Council Decision 1999/468/EC as amended by Council Decision 2006/512/EC (see here for a consolidated version of Council Decision 1999/468/EC incorporating those amendments). The purpose of the agreement is to set out how the two institutions will work together in the area of comitology.

This new agreement replaces the 2000 Agreement on the same subject and the 1994 Modus vivendi.

It complements the 2006 Framework Agreement between the Parliament and the Commission which can be found here and here (for its Annex 1) and here (for its Annex 2). For some unaccountable reason, the new agreement on comitology refers to the old, 2001 version of the Framework Agreement and the wrong annex.

Powers of Institutions, Secondary Legal Basis, Asylum Policy: Case C-133/06

Catching up a little on some past judgments!

The Court of Justice handed down an important judgment in Case C-133/06 Parliament v. Council on the practice of establishing "secondary legal bases", that is providing a basis, in an act adopted by the Council, for further legislation to be adopted by the Council but according to a procedure different from that laid down in the Treaty.

The Parliament does not like such secondary bases because it is usually squeezed out of the process. As it was in Case C-133/06.

What happened was that the Council adopted Directive 2005/85/EC on minimum standards on procedures in member States for granting and withdrawing refugee status. The directive states that the Council, acting by a qualified majority, after consultation of the Parliament, is to adopt a minimum common list of third countries which are to be regarded by Member States as safe countries of origin, and a common list of European safe third countries. The amendment of those two lists is also subject to the Council acting by a qualified majority after consultation of the Parliament.

The Parliament brought an action to annul the parts of Directive 2005/85/EC setting out that procedure which provided for consultation of the Parliament only. It submitted that in laying down such a procedure the Council breached Article 67 §5 EC, first indent, that provides :

"[...], the Council shall adopt, in accordance with the procedure referred to in Article 251 [EC]:
– the measures provided for in Article 63(1) and (2)(a) [EC] provided that the Council has previously adopted, in accordance with paragraph 1 of this Article, Community legislation defining the common rules and basic principles governing these issues,[...]"

Consequently, according to the Parliament the minimum common list of third countries should be adopted by the co-decision procedure, not with mere consultation of the Parliament. It submitted that, in view of the EU legislation already adopted, namely Regulation 343/2003 and Directives 2003/9 and 2004/83, the adoption of Directive 2005/85 constituted the final legislative stage in the adoption of common rules and basic principles the implementation of which was intended to enable the transition to be made to the procedure laid down in Article 251 EC (‘the co-decision procedure’), in accordance with the requirements of the first indent of Article 67(5) EC.

The Court of Justice agreed and quashed the offending provisions of Directive 2005/85/EC.

The Court rejected the Council's argument that laying down secondary legal bases in legislation was an established practice. It held that the existence of an earlier practice of establishing secondary legal bases cannot reasonably be relied upon. Even on the assumption that there is such a practice, it cannot derogate from the rules laid down in the Treaty and cannot therefore create a precedent binding on the institutions (see, Case 68/86 United Kingdom v Council, paragraph 24, and Case C‑426/93 Germany v Council, paragraph 21).

The Court recalled under the second subparagraph of Article 7(1) EC, each institution must act within the limits of the powers conferred upon it by the Treaty (see Case C-403/05 Parliament v Commission, paragraph 49). It also reaffirmed that the rules regarding the manner in which the EU institutions adopt their decisions are laid down in the Treaty and are not at the disposal of the member States or of the institutions themselves (see Case 68/86 United Kingdom v Council, paragraph 38). Thus, the Treaty alone may, in particular cases such as that provided for in the second indent of Article 67(2) EC, empower an institution to amend a decision-making procedure established by the Treaty. To acknowledge that an institution can establish secondary legal bases, whether for the purpose of strengthening or easing the detailed rules for the adoption of an act, is tantamount to according that institution a legislative power which exceeds that provided for by the Treaty.

The Court concluded that by including in Directive 2005/85 the secondary legal bases constituted by the contested provisions, the Council infringed Article 67 EC, and exceeded the powers conferred on it by the Treaty.

Consolidated Version of Treaties Published in OJ

The consolidated version of the Treaties taking account of the Lisbon-Reform Treaty amendments has now been published in the Official Journal. The citation is OJ 2008 C115, p. 1.

You can find that version here. It includes the Protocols, Annexes, Declarations and usefully, the table of equivalences.

That publication follows the publication on the Council web site we drew your attention to here back in April.

National Courts and the EU Judicial System: Draft Report of the European Parliament

Blogging has been light for a number of reasons but we'll do some catching up....

Back in June 2007 we noted the hearing that was held by the Legal Affairs Committee of the European Parliament recently held an interesting hearing on "The role of the national judge in the judicial system of the European Union" and announced that Diana Wallis MEP would draft an own-initiative report on the subject.

Ms Wallis has done that now and you can find the draft report and its annex here.

The draft report is well worth reading. It deals with how national courts can better enforce and apply EU law. Topics covered are not just the preliminary reference procedure but also training for judges, access to EU law (no mention of this blog, alas) and better drafting of EU law itself.

Particularly interesting is the extensive annex which is a distillation of responses sent by 2300 national judges.

Review of Regulatory Agencies

Those interested in administrative law would do well to look at the Commission's review of regulatory agencies entitled "European Agencies - The Way Forward" (COM(2008) 135 final). That document is accompanied by another one, referenced SEC(2008) 323, but the Commission true to its secretive form has not made that document public!

The purpose of the document which is in fact a Communication to the European Parliament and the Court is to review the current agencies, how they are structured and how they work. It seeks to lay the ground work for a common framework for regulatory agencies but the Commission announces that it will withdraw its proposal for an interinstitutional agreement on the operating framework for regulatory agencies (COM (2005) 59).

It concentrates on regulatory agencies of which there are now 29. A regulatory agency is a body governed by EU law, distinct from the EU Institutions (Council, Parliament, Commission, etc.) with its own legal personality. It is set up by a directive or regulation in order to accomplish a very specific technical, scientific or managerial task. For a list of them, see here. The three CFSP agencies are listedhere. The Police and Judicial Cooperation in Criminal Matters agencies are listed here.

According to the Communication, regulatory agencies employ an incredible 3800 staff.

Executive agencies, on the other hand, are not covered by this Communication. They areorganizations entrusted with certain tasks relating to the management of one or more Community programs, are set up for a fixed period and must located in Brussels or Luxembourg. They are established in accordance with Council Regulation 58/2003. For a list, see here.

Jurisdiction of the Court of Justice in Police and Criminal Matters: Article 35 TEU

Back in December 2005, we noted here the state of play on declarations accepting the jurisdiction of the Court of Justice to give preliminary rulings on the acts referred to in Article 35 of the Treaty on European Union (TEU). Those are the acts adopted under Title VI of that Treaty dealing with police and judicial cooperation in criminal matters.

There have been new declarations by Hungary, Latvia, Lithuania and Slovenia. See also the notice from the Council about them.

Latvia, Lithuania and Slovenia now accept the jurisdiction of the Court of Justice to give preliminary rulings on the validity and interpretation of framework decisions and decisions, on the interpretation of conventions established under Title VI and on the validity and interpretation of the measures implementing them. Moreover, they have declared that any of their national courts or tribunals may refer questions (under Article 35 § 3 (b)).

Slovenia has accepted that its courts of last resort are obliged to refer preliminary questions to the Court of Justice (under art. 35 §1).

Hungary, for its part, has withdrawn its previous declaration in which it accept the jurisdiction for its courts of last resort only (under art. 35 §3(a)).

For ease of reference (and because nobody else seems to have taken the trouble), the current situation for each member State that has accepted jurisdiction is as follows:

Austria: Any court (art. 35 §3(b)) - declaration here - Obliged to refer.

Belgium: Any court (art. 35 §3(b)) - declaration here - Obliged to refer.

Czech Republic: Any court (art. 35 §3(b)) - declaration here (at p. 980) - Obliged to refer (at p. 980).

Finland: Any court (art. 35 §3(b)) - declaration here.

France:Any court (art. 35 §3(b)) - declaration here - Obliged to refer.

Germany: Any court (art. 35 §3(b)) - declaration here - Obliged to refer.

Greece: Any court (art. 35 §3(b)) - declaration here.

Hungary: Any court (art. 35 §3(b)) - declaration here.

Italy: Any court (art. 35 §3(b)) - declaration here - Obliged to refer.

Latvia: Any court (art. 35 §3(b)) - declaration here.

Lithuania: Any court (art. 35 §3(b)) - declaration here.

Luxembourg: Any court (art. 35 §3(b)) - declaration here - Obliged to refer.

Netherlands: Any court (art. 35 §3(b)) - declaration here - Obliged to refer.

Portugal: Any court (art. 35 §3(b)) - declaration here.

Slovenia: Any court (art. 35 §3(b)) - declaration here - Obliged to refer.

Spain: Court of last resort (art. 35 §3(a)) - declaration here - Obliged to refer.

Sweden: Any court (art. 35 §3(b)) - declaration here.

Better Regulation, Administrative Burdens and Fast Track Actions

So perhaps we were a bit skeptical about "Better Regulation" when we wrote up about the Commission's 2007 Annual Report a while back.

It looks like we were being unfair.

The Commission has recently published a report, COM(2008) 141 final, with a list of 11 pieces of legislation to be amended in order to reduce the administrative burden imposed on industry and commerce in the EU.

Such a list was promised in an earlier report, COM(2008) 35 entitled "Reducing administrative burdens in the European Union 2007 progress report and 2008 outlook".