Sunday, 25 September 2016

Bailouts, Borrowed Institutions, and Judicial Review: Ledra Advertising




Alicia Hinarejos, Downing College, University of Cambridge; author of The Euro Area Crisis in Constitutional Perspective 

One of the features of the response to the euro area crisis has been the resort to intergovernmental arrangements that largely avoid judicial and parliamentary control at the EU level. The paradigmatic example has been the European Stability Mechanism (ESM), created by the euro area countries in order to provide financial assistance to countries in difficulties, subject to conditionality. The ESM was created through the adoption of an international agreement, the ESM Treaty; it is an intergovernmental mechanism created outside the framework of the EU, but with significant links to it. Most importantly, the ESM ‘borrows’ two EU institutions, namely the Commission and the European Central Bank (ECB), in order to carry out its functions. (Those two bodies, along with the International Monetary Fund, constitute the so-called ‘Troika’ which oversees the controversial bail-out processes).

The nature of the ESM and the way it operates raises important questions regarding judicial protection. As mentioned above, ESM financial assistance is granted after strict conditions have been negotiated and agreed in a Memorandum of Understanding. These conditions typically require the Member State in receipt of assistance to adopt ‘austerity’ reforms that have an impact on its citizens—understandably, these citizens may wish to challenge the validity of these conditions, often questioning their compliance with the EU Charter of Fundamental Rights.

In Pringle, the Court stated that Member States were not within the scope of application of the Charter of Fundamental Rights when creating the ESM, or presumably when acting within its framework. This meant that their actions could not be reviewed for accordance with the Charter (although they can still be reviewed in national courts for compliance with purely national law, or in the European Court of Human Rights for compliance with that treaty). This, however, left open the question of whether, or in what form, the Charter applied to the EU institutions—the Commission and the ECB—when operating under the ESM. This is the question that the Court of Justice had to answer in the Cyprus bailout cases (Ledra Advertising and Mallis).

Cyprus wrote to the Eurogroup in 2012 to request financial assistance, and it was in receipt of ESM assistance from 2013 until 2016. The country had to recapitalize its biggest bank and wind down its second. The Memorandum of Understanding stipulated that bondholders and depositors would bear part of the cost. As a result, the applicants suffered substantial financial losses and turned to the EU courts: first to the General Court, and then on appeal to the Court of Justice. They were challenging the validity of the Memorandum of Understanding (Ledra Advertising), as well as a Eurogroup statement that referred to the conditions attached to the bailout (Mallis); they also asked for damages. In their view, the involvement of EU institutions—the Commission and the ECB—in the adoption of these measures meant that it should be possible for individuals to challenge their validity at the EU level; they also argued that these institutions’ involvement should trigger the EU’s non-contractual liability.

The General Court dismissed all complaints as inadmissible. It decided that neither the Memorandum of Understanding nor the Eurogroup statement could be the subject of an action for annulment; the former because it is not a measure adopted by an EU institution, the latter because it is not intended to produce legal effects with respect to third parties. It considered that the involvement of the Commission and the ECB in the adoption of these measures was not enough to attribute authorship to them, or to trigger the non-contractual liability of the Union.

The Court of Justice agreed, in part, with the General Court: neither the Eurogroup statement (Mallis) nor the Memorandum of Understanding (Ledra Advertising) can be the object of an action for annulment. The Court insisted again on its finding in Pringle that ESM acts fall outside the scope of EU law; the involvement of the Commission and the ECB does not change this, and is not enough to attribute authorship of these acts to them for the purposes of judicial review.

Yet the Court goes on to reveal a twist in Ledra Advertising: even if they are not its authors, the involvement of the Commission and the ECB in the adoption of an ESM Memorandum of Understanding may be unlawful, and thus able to trigger the non-contractual (damages) liability of the EU. The Commission, in particular, retains its role as ‘guardian of the Treaties’ when acting within the ESM framework. As a result, the Commission should not sign an ESM act if it has any suspicions as to its accordance with EU law, including the Charter.

The Court repeated the usual rules for the EU institutions to incur non-contractual liability: (a) they must have acted unlawfully, (b) damage must have occurred, and (c) there must be a causal link between the unlawful act and the damage. Not just any unlawful act gives rise to damages liability: there must be ‘a sufficiently serious breach of a rule of law intended to confer rights on individuals’. While the right to property enshrined in the Charter was a ‘rule of law intended to confer rights on individuals’, that right is not absolute: Article 52 of the Charter allows interference with some Charter rights. Applying that provision, the Court came to the conclusion that the measures contained in the Memorandum did not constitute a disproportionate and intolerable interference with the substance of the applicants’ right to property, given ‘the objective of ensuring the stability of the banking system in the euro area, and having regard to the imminent risk of [greater] financial losses’.

So individuals can challenge the EU institutions’ bailout actions by means of an action for damages (non-contractual liability), but not by means of an annulment action. It is useful to remember that the rules on access to the EU courts as regards those two types of remedy are quite different. The standing rules are more liberal for damages actions: it’s sufficient to allege that damages have been suffered as a result of an unlawful act by the EU, whereas it’s much harder to obtain standing to bring annulment actions. The time limits are more liberal too: individuals have five years to bring damages cases, but only two months to bring actions for annulment. On the other hand, the threshold to win cases is much higher for damages cases: any unlawfulness by the EU institutions leads to annulment of their actions, but only particularly serious illegality gives rise to damages liability.

In any case, we know from the Court’s ruling that breaches of at least some Charter provisions within the ESM framework could potentially give rise to damages liability. In the anti-austerity context, it should be noted that social security and many social welfare claims fall within the scope of the right to property, according to the case law of the European Court of Human Rights. In the case at stake, the Court did not discuss the proportionality of the interference with the applicant’s rights at much—or any—length, but it is clear that future applicants will face an uphill struggle.

On the whole, Ledra Advertising is a welcome change from other cases concerning measures adopted as a result of a bailout, where the Court’s approach had been to deny the existence of any link to EU law. Indeed, it seems unavoidable that the EU should bear the appropriate degree of responsibility when allowing its EU institutions to operate within the ESM framework. This is not to say that it will be easy for individuals to be awarded damages; as this case illustrates, the threshold is extremely high. Moreover, while a significant aspect of the role of the EU institutions within the ESM has been clarified, questions remain concerning the judicial and democratic accountability of this mechanism. Overall, however, Ledra Advertising is a step in the right direction.

Barnard and Peers: chapter 19, chapter 8
Photo credit: www.newsweek.com




Thursday, 22 September 2016

The Court of Justice and EU Foreign Policy: what jurisdiction should it have?




Luigi Lonardo, PhD student, King’s College London

The second paragraph of Article 24(1) Treaty on the European Union explains that “the Common Foreign and Security Policy (CFSP) is subject to specific rules and procedures”, and ends with the rather explicit sentence “the Court of Justice of the European Union shall not have jurisdiction with respect to these provisions”.

Lawyers are currently discussing whether the sentence “the CJEU shall not have jurisdiction” means “the Court has some jurisdiction”. Seriously. AG Wahl elegantly phrased it this way: “The main question could be framed as follows: does the exclusion from the CJEU’s jurisdiction cover, in principle, all CFSP acts or only certain categories of CFSP acts?” (Case C455/14 P H v Council and Commission AG Opinion, Par 52).

The question is of fundamental constitutional importance because an answer will enable lawyers to understand with clarity what EU foreign policy acts are excluded from the Court’s judicial review – a legal issue that the Court has not yet had the opportunity to adjudicate upon. While Art 19 TEU confers on the Court jurisdiction to ensure that in the interpretation and application of the Treaties the law is observed, Article 24, as recalled, introduces an exception. The scope of this exception, however, has not been fixed. In Case C- 658/11 the Court said that the exception “must be interpreted narrowly” because it introduces an exception from a general rule (par 70). In Opinion 2/13 (on ECHR accession), it only concluded, without further specification, that “as EU law now stands, certain acts adopted in the context of the CFSP fall outside the ambit of judicial review by the Court of Justice” (par 252). To further complicate the issue, however, Article 24 TEU also introduces an exception to the exception: the Court has jurisdiction to monitor compliance with Article 40 TEU (the division between foreign policy and other EU measures) and to review the legality of sanctions.

So, when does the Court of Justice of the European Union (CJEU) have jurisdiction? Two cases may offer guidance with respect to this issue. One case, H v Council and Commission, was decided by the Court in July, and another, Rosneft, is currently pending.

H v Council

In H, an Italian magistrate sought annulment, before the General Court (Order in H v Council and Others, T271/10), of the decision of a Head of an EU Mission established under CFSP. The contested decision concerned the transfer of H, a seconded Legal Officer of the EU Police Mission in Sarajevo, to the post of Prosecutor in another regional office of the same country. The General Court (GC) held that it lacked jurisdiction to hear the complaint and therefore found that the action was inadmissible. The GC reasoned that the exclusion of jurisdiction under Art 24(1) TEU only encounters two exceptions: monitoring compliance with Article 40 TEU (ie the division of competence between CFSP and non-CFSP external measures) and the review of the legality of sanctions under the second paragraph of Article 275 TFEU.

The General Court took the view that the appellant’s situation did not fall under one of the exceptions to the general rule that EU Courts do not have jurisdiction in CFSP matters (it was not, therefore, one of the two “exceptions to the exception”). The General Court considered that the contested decisions were adopted by the Head of Mission pursuant to powers that had been delegated to him by the Italian authorities. It thus concluded that it was for Italian courts to review the legality of the contested decisions and to hear the action for damages. It finally added that, should the Italian court having jurisdiction consider the contested decisions unlawful, it could make that finding and draw the necessary conclusions, even with respect to the very existence of those decisions.

The applicant appealed the decision before the ECJ. Applicant, Council, and Commission all wanted to set aside the GC’s order, albeit each for different reasons, which will be briefly outlined below with regards to the issue of the extent of the Court’s jurisdiction on CFSP matters.

The position of the Applicant

The Applicant took the view that the exclusion of the Court’s jurisdiction does not cover merely administrative measures (such as the decision at stake in the present case) but only the acts provided for in Article 25 TEU: general guidelines, decisions on actions and positions to be taken by the EU (and implementation thereof), and acts of systemic cooperation between Member States

The position of the Council

Par 32 of the Advocate General opinion explains that “The Council is of the view that the statement of reasons in the order under appeal does contain two legal errors. First, in deciding to relocate H, the Head of Mission did not exercise powers delegated to him by the Member State of origin, but by the competent EU institution (the Council itself). Second, the national court hearing the case does not have the power to annul the act challenged. Nevertheless, those errors do not — in the opinion of the Council — invalidate the conclusion reached by the General Court”

The position of the Commission

The Commission argued that the Court lacks jurisdiction only on acts that are “expression of sovereign foreign policy”, thus leaving the Court empowered, for example, to review the lawfulness of (a) acts of implementation, or (b) adopted in the framework of the CFSP when the alleged invalidity stems from a possible infringement of non-CFSP provisions. The Commission took the view, nonetheless, that the contested decision was not an implementing act.

The findings of the Court

Somewhat unsurprisingly, the Court reversed the order of the GC and found that the circumstance that the decision was a CFSP measure “does not necessarily lead to the jurisdiction of the EU judicature being excluded” (par 43).

The Court interpreted the exclusion of jurisdiction very narrowly. It gave a systematic reading of the general provisions of EU law (Article 2) and of CFSP (Articles 21 and 23 TEU) to recall that the EU is founded, in particular, on the values of equality and the rule of law ( Segi and Others v Council; Opinion 2/13). It stated that “The very existence of effective judicial review designed to ensure compliance with provisions of EU law is inherent in the existence of the rule of law (Schrems)” (par 41).

In the current case, the Court considered that the decision of the Head of Mission was subject to legal scrutiny because under Article 270 TFEU the EU judicature has jurisdiction to rule on all actions brought by EU staff members having been seconded to the EUPM. They remain subject to the Staff Regulations during the period of their secondment to the EUPM and, therefore, fall within the jurisdiction of the EU judicature, in accordance with Article 91 of those regulations (even though H was seconded by a Member State, the two situations were considered similar). The decision of the Head of Mission was considered to be merely “staff management”.

Therefore, the Court concluded, “the scope of the limitation, by way of derogation, on the Court’s jurisdiction, which is laid down in the final sentence of the second subparagraph of Article 24(1) TEU and in the first paragraph of Article 275 TFEU, cannot be considered to be so extensive as to exclude the jurisdiction of the EU judicature to review acts of staff management relating to staff members seconded by the Member States the purpose of which is to meet the needs of that mission” (par 55).

The ECJ concluded that “[the] jurisdiction stems, respectively, as regards the review of the legality of those acts, from Article 263 TFEU and, as regards actions for non-contractual liability, from Article 268 TFEU, read in conjunction with the second paragraph of Article 340 TFEU, taking into account Article 19(1) TEU and Article 47 of the Charter of Fundamental Rights of the European Union” (par 58). It therefore referred the case back to the GC.

Rosneft

A similar question recurs in Rosneft, the first request ever for a preliminary ruling on a CFSP act, currently pending before the Court. The case stems from a Russian gas company, Rosneft, challenging sectorial measures (not target sanctions) prohibiting EU natural or legal persons, from engaging in contractual relations with certain Russian state-owned companies and banks, and from providing such companies and banks access to financial markets.

A central question is the admissibility, as discussed at the hearing and in paragraphs 32-76 of AG Wathelet’s opinion.

The AG believes that the measure can be reviewed if it meets these cumulative two conditions: if (a) it relates to Articles 23 to 46 TEU (the foreign policy rules) and or EU acts adopted on the basis of those provisions; and if (b) its substantive content also falls within the sphere of CFSP implementation.

The first condition is derived, for Wathelet, from the consideration that the last sentence of the second subparagraph of Article 24(1) TEU excludes the Court’s jurisdiction only ‘with respect to these provisions’, and the reference thus made is to Chapter 2 of Title V of the EU Treaty, entitled ‘Specific provisions on the common foreign and security policy’, of which Article 24 forms part.

In the AG’s opinion, in particular, the court should have jurisdiction to hear actions for annulment and preliminary rulings on decisions providing for restrictive measures against natural or legal persons adopted by the Council on the basis of Chapter 2 of Title V of the EU Treaty – and not, therefore, regulations implementing them. For the AG, therefore, the Court has jurisdiction, but the challenged decision, to the extent that it is directly addressed to Rosneft, is not invalid. The very long opinion explains in detail why, but here we limit the scope of the analysis to the question on jurisdiction.

Comment

Judicial protection and uniformity of interpretation of EU law

The decision of the ECJ in H should be welcomed because it avoids the potential deterioration of the protection of fundamental rights which would derive from each national court being able to monitor CFSP decisions in the absence of a centralised mechanism. If national Courts had jurisdiction when the CJEU does not, this might lead to diverging and potentially even conflicting interpretations of the same CFSP measure.

Uniformity of interpretation of EU law would be further guaranteed if the Court affirmed jurisdiction to hear requests for preliminary rulings (and AG Walthelet in paras 61-62 of his opinion in Rosneft suggests that the Court can rule on CFSP preliminary rulings). The importance of judicial dialogue between the CJEU and national courts has been repeatedly affirmed in the Court’s case law (Opinion 1/09; CILFIT; Adeneler; Kamberaj). Moreover, absence of the Court jurisdiction to hear on preliminary rulings would be at issue with the third paragraph of Article 267 and the CILFIT doctrine.

The prohibition of judicial dialogue and cooperation between national and EU courts in CFSP may very well be a breach of the right to effective judicial remedy as enshrined in Article 47 EU Charter of Fundamental Rights. Article 47 Charter creates what has been described as a “composite, coherent, and autonomous” standard of EU judicial protection. Pursuant to Article 19(1) TEU, national Courts shall provide remedies sufficient to ensure effective legal protection in the fields covered by Union law, with the standard set and as determined by the CJEU (which has the final saying on interpretation and application of the Treaties). Completely excluding the Court’s jurisdiction from an area of EU law such as CFSP would seriously hinder the system of judicial protection (see to a similar effect  Gestoras Pro Amnistía and Others v Council par 53; Segi and Others v Council par 53).

Even though it is left to the discretion of national courts to decide whether to make a reference for a preliminary ruling as well as the questions to be referred, completely ruling out the opportunity for an applicant (or the national court) to make such a request may indeed be against Article 47 Charter. All the more so if one accepted the reading proposed by the Council in its appeal in H, that is, that the national court does not have the power to annul the CFSP decision. This would leave a legal vacuum in the annulment of the provision (unlike what happened in C-583-11 Inuit, where the Court found that existence of alternative legal remedies allowed for a restrictive rule on judicial remedy).

Political questions doctrine

The preferable option seems to be that only genuinely political acts of CFSP cannot be subject to the Court’s substantial judicial review, although the Court should be able to monitor compliance with the procedural rules of the Treaty and compliance with fundamental human rights. This position is very similar to that expressed by the Commission in H, where it said that only sovereign acts of foreign policy cannot be scrutinised by the Court – without saying anything of formal control.

In H, the Court seemed to conclude that if there was any other reason for the which the Court should have jurisdiction, that reason takes precedence over the exclusion of Article 24, and then the Court does have jurisdiction. This is too broad an understanding of the Court’s powers.

In its judgment in Manufacturing Support & Procurement Kala Naft v Council, the CJEU ruled that it does not have jurisdiction on a CFSP provision which is not a restrictive measure against natural or legal persons pursuant to Article 275 TFEU, and the substantial result might be similar in Rosneft (par 85 AG opinion).

For the reasons explained above, the Court should accept the request on the preliminary ruling in Rosneft, but should then take the opportunity to draw a clear distinction: on one hand, (a) EU acts which are purely political and diplomatically sensitive acts of sovereign foreign policy; on the other hand, (b) all remaining CFSP decisions, all acts of implementation, and provisions of general application.

On (a), which I submit should be assessed on a case by case basis and on their substantial content: the Court should recognise it lacks power of judicial review. Those acts, determined with a “substance over form” rule (see Les Verts par 27; AG Wathelet seems to be taking this position in paras 49-50 of his opinion in Rosneft; see also Gestoras Pro Amnistía and Others v Council par 54; Elitaliana v Eulex Kosovo par 48-49) will have too indirect an effect on individuals (as the case law on Article 263(4) TFEU now stands)

Such acts also have such a discretionary content that courts should defer to the decision of the political actors who adopted them. The latter element, which American constitutional lawyers refer to as the “political question doctrine” is present in many jurisdiction (see par 52 AG Opinion in Rosneft): deference toward the so called “actes de gouvernement”. The Commission proposed this thesis in its written submission and at the oral hearing in Rosneft. The “political question doctrine” is the attitude of courts not to review issues which are inherently political, are best left to the discretion of the actor who took the decision, and are ultimately non-justiciable.

In the leading case on the issue, Baker v Carr, the US Supreme Court held that a question is eminently political if it presents some characteristics such as “a textually demonstrable constitutional commitment of the issue to a coordinate political department”, or “an unusual need for unquestioning adherence to a political decision already made”. While in some cases involving foreign policy decisions the need for adherence to a political decision is evident (ie the ECJ could hardly decide that the EU cannot prohibit commerce with certain Russian companies involved in Crimea at all), arguably the retention of CFSP provisions in the TEU, the preference for intergovernmental institutions in that domain, the scant role of the European Parliament in the decision-making process, not to mention the exclusion of the Court’s jurisdiction, all militate in favour of a strong constitutional preference for CFSP to be resolved by purely political departments. The doctrine could very well be embraced for the first time by the ECJ in deciding Rosneft.

On the other hand, as regards category (b), which includes the case of the “decision on staff management” in H, the Court should exercise its powers of judicial review.

Barnard & Peers: chapter 24

Art credit: The Economist, Peter Schrank

Sunday, 18 September 2016

Is the EU planning an army - and can the UK veto it?




Steve Peers

Is the EU planning to create an army? If so, can and should the UK veto it - up until Brexit? The issue has been much debated in recent days. But this is the classic example of a debate that has created much heat but shed little light. The purpose of this post is to clear up misunderstandings. In short, the recently announced plans do not amount to an EU army – and so the UK is not able to veto the EU’s plans.

Background

Initially, the EU’s foreign policy had little to do with defence, in deference to Irish neutrality and the UK’s strong support for NATO. This has changed gradually over the years as the Cold War ended, US troops left Europe, and the parallel non-EU defence organisation (the Western European Union) was wound down.

Since the Treaty of Lisbon, the rules on EU defence policy are set out in Articles 42-46 of the Treaty on European Union (TEU). I have included the full text of these Articles in an Annex to this post. The starting point (Article 42(1)) is that the EU has an ‘operational capacity’ to use on non-EU missions ‘for peace-keeping, conflict prevention and strengthening international security’, consistently with the UN Charter, as explained further in Article 43. These actions shall use ‘capabilities provided by the Member States’, meaning that they each retain their own armed forces. There’s a reference to using ‘multinational forces’ too (Article 42(3)), but it’s clear that it’s optional both to set up such forces and to contribute them to support the EU defence policy.

However, there is also a long-term objective. Article 42(2) TEU says that the EU includes ‘the progressive framing of a common Union defence policy’, which ‘will lead to a common defence’. But this policy must ‘respect’ the obligations of those Member States who are parties of NATO, and be ‘compatible’ with NATO policy. Equally it ‘shall not prejudice the specific character’ of some Member States’ defence policy: this is an oblique reference to neutrality. (Six Member States are neutral).

Most importantly, it will only happen when the European Council (consisting of Member States’ presidents and prime ministers) ‘acting unanimously, so decides’.  That decision then needs to be ratified by Member States ‘in accordance with their respective constitutional requirements.' For the UK, that would require a referendum, as set out in section 6(2) of the European Union Act 2011. It would need a referendum in Ireland too, since Article 29(4)(9) of the Irish Constitution rules out Irish participation in an EU common defence, and the Irish Constitution can only be amended by referendum.  Other Member States may also have stringent constitutional requirements to this end.

What happens in the meantime, before this rather mythical notion of a common defence is achieved? Article 42(3) says that Member States must ‘undertake progressively to improve their military capabilities’. A ‘European Defence Agency’ (see further Article 45) is set up to this end. It’s possible for a group of Member States to take on an EU-wide task (Article 42(5), as set out in more detail in Article 44). Member States have an obligation of ‘aid and assistance’ to each other, if one of them is ‘the victim of armed aggression’, in accordance with the UN Charter (Article 42(7)). Finally, certain Member States which meet higher standards as regards their ‘military capabilities’ and ‘which have made more binding commitments to one another in this area with a view to the most demanding missions shall establish permanent structured cooperation’ within the EU (Article 42(6), referring to Article 46).

New EU plans

What are the EU’s new military plans? Some newspapers and commentators have referred to plans for an ‘EU army’, which at first sight implies a ‘common defence’. In turn, the UK’s defence minister is quoted as saying he would veto these plans, as long as the UK is part of the EU.

As we saw above, any Member State can indeed veto an EU ‘common defence’. But still, it’s striking to hear a supporter of the Leave side acknowledge that the UK can veto an EU army, since many of them suggested during the referendum campaign that this scary prospect was unavoidable if the UK remained part of the EU. Having said that, there’s a misunderstanding here. According to the information available, the proposal is not to create an EU army, and therefore the UK can’t veto it.

In fact, the ‘State of the Union’ speech by Commission President Juncker proposed four things: a joint headquarters for EU military missions; common procurement to save on defence costs; a Defence Fund for the EU defence industry; and the development of ‘permanent structured cooperation’, as referred to briefly above (and see below). It did not propose merging armies to create a common army. Some press reports suggest that the recent EU summit discussed a ‘common military force’, but the ‘Declaration’ and ‘Road Map’ issued after the summit make no mention of such a thing.

So what exactly is ‘permanent structured cooperation’? It’s described in Article 46 TEU, as well in as a Protocol attached to the Treaties. Article 46 sets out the process: it’s set up by willing Member States only. Any unwilling Member States can simply choose not to take part. There’s no veto on setting it up, but that’s because participation is voluntary. Member States can join once it’s underway – and leave at any time, with no conditions attached. If more EU policies were this flexible, EU participation would be less controversial – although in a post-truth world some people would undoubtedly deny that those policies were flexible in the first place. (If the current EU plans go ahead, I expect to read somewhere that the soldiers are inspired by Hitler, and armed with Muslamic ray guns).

As for the substance of ‘permanent structured cooperation’, it’s explained fully in the Protocol (also reproduced in the Annex).  The criteria to join are development of defence capacities, and in particular supplying forces to support EU operations within a short period. Participating countries must aim to achieve approved levels of domestic spending, align their equipment and operability of their forces, fill capability gaps, and take part in joint procurement. That’s significant – but that’s it. It’s not an EU army.

Conclusions

Plans can always change. But the recent Commission plans, and the EU summit declaration, don’t amount to an EU army.  And if there’s no EU army, the UK can’t veto one.  It’s arguable whether a veto threat is a good negotiating strategy; but it’s indisputable that an empty threat is simply ridiculous.

A more rational approach to the issue would be to acknowledge (as a number of calmer voices on the Leave side have advocated) that the UK and the EU might well benefit mutually from continued defence and foreign policy cooperation after Brexit. In that light, the best way for the UK to spend its remaining time as an EU Member State as regards defence issues is to offer constructive criticism of the EU plans – and align that with sensible proposals for how post-Brexit EU/UK cooperation could go forward in this field.

Barnard & Peers: chapter 24
Photo credit: http://www.lowyinterpreter.org/post/2015/03/16/A-European-Army.aspx

Annex – Treaty on European Union, defence clauses
Article 42

1. The common security and defence policy shall be an integral part of the common foreign and security policy. It shall provide the Union with an operational capacity drawing on civilian and military assets. The Union may use them on missions outside the Union for peace-keeping, conflict prevention and strengthening international security in accordance with the principles of the United Nations Charter. The performance of these tasks shall be undertaken using capabilities provided by the Member States.

2. The common security and defence policy shall include the progressive framing of a common Union defence policy. This will lead to a common defence, when the European Council, acting unanimously, so decides. It shall in that case recommend to the Member States the adoption of such a decision in accordance with their respective constitutional requirements.

The policy of the Union in accordance with this Section shall not prejudice the specific character of the security and defence policy of certain Member States and shall respect the obligations of certain Member States, which see their common defence realised in the North Atlantic Treaty Organisation (NATO), under the North Atlantic Treaty and be compatible with the common security and defence policy established within that framework.

3. Member States shall make civilian and military capabilities available to the Union for the implementation of the common security and defence policy, to contribute to the objectives defined by the Council. Those Member States which together establish multinational forces may also make them available to the common security and defence policy.

Member States shall undertake progressively to improve their military capabilities. The Agency in the field of defence capabilities development, research, acquisition and armaments (hereinafter referred to as “the European Defence Agency”) shall identify operational requirements, shall promote measures to satisfy those requirements, shall contribute to identifying and, where appropriate, implementing any measure needed to strengthen the industrial and technological base of the defence sector, shall participate in defining a European capabilities and armaments policy, and shall assist the Council in evaluating the improvement of military capabilities.

4. Decisions relating to the common security and defence policy, including those initiating a mission as referred to in this Article, shall be adopted by the Council acting unanimously on a proposal from the High Representative of the Union for Foreign Affairs and Security Policy or an initiative from a Member State. The High Representative may propose the use of both national resources and Union instruments, together with the Commission where appropriate.

5. The Council may entrust the execution of a task, within the Union framework, to a group of Member States in order to protect the Union's values and serve its interests. The execution of such a task shall be governed by Article 44.

6. Those Member States whose military capabilities fulfil higher criteria and which have made more binding commitments to one another in this area with a view to the most demanding missions shall establish permanent structured cooperation within the Union framework. Such cooperation shall be governed by Article 46. It shall not affect the provisions of Article 43.

7. If a Member State is the victim of armed aggression on its territory, the other Member States shall have towards it an obligation of aid and assistance by all the means in their power, in accordance with Article 51 of the United Nations Charter. This shall not prejudice the specific character of the security and defence policy of certain Member States.

Commitments and cooperation in this area shall be consistent with commitments under the North Atlantic Treaty Organisation, which, for those States which are members of it, remains the foundation of their collective defence and the forum for its implementation.

Article 43

1. The tasks referred to in Article 42(1), in the course of which the Union may use civilian and military means, shall include joint disarmament operations, humanitarian and rescue tasks, military advice and assistance tasks, conflict prevention and peace-keeping tasks, tasks of combat forces in crisis management, including peace-making and post-conflict stabilisation. All these tasks may contribute to the fight against terrorism, including by supporting third countries in combating terrorism in their territories.

2. The Council shall adopt decisions relating to the tasks referred to in paragraph 1, defining their objectives and scope and the general conditions for their implementation. The High Representative of the Union for Foreign Affairs and Security Policy, acting under the authority of the Council and in close and constant contact with the Political and Security Committee, shall ensure coordination of the civilian and military aspects of such tasks.

Article 44

1. Within the framework of the decisions adopted in accordance with Article 43, the Council may entrust the implementation of a task to a group of Member States which are willing and have the necessary capability for such a task. Those Member States, in association with the High Representative of the Union for Foreign Affairs and Security Policy, shall agree among themselves on the management of the task.

2. Member States participating in the task shall keep the Council regularly informed of its progress on their own initiative or at the request of another Member State. Those States shall inform the Council immediately should the completion of the task entail major consequences or require amendment of the objective, scope and conditions determined for the task in the decisions referred to in paragraph 1. In such cases, the Council shall adopt the necessary decisions.

Article 45
1. The European Defence Agency referred to in Article 42(3), subject to the authority of the Council, shall have as its task to:

(a) contribute to identifying the Member States' military capability objectives and evaluating observance of the capability commitments given by the Member States;

(b) promote harmonisation of operational needs and adoption of effective, compatible procurement methods;

(c) propose multilateral projects to fulfil the objectives in terms of military capabilities, ensure coordination of the programmes implemented by the Member States and management of specific cooperation programmes;

(d) support defence technology research, and coordinate and plan joint research activities and the study of technical solutions meeting future operational needs;

(e) contribute to identifying and, if necessary, implementing any useful measure for strengthening the industrial and technological base of the defence sector and for improving the effectiveness of military expenditure.

2. The European Defence Agency shall be open to all Member States wishing to be part of it. The Council, acting by a qualified majority, shall adopt a decision defining the Agency's statute, seat and operational rules. That decision should take account of the level of effective participation in the Agency's activities. Specific groups shall be set up within the Agency bringing together Member States engaged in joint projects. The Agency shall carry out its tasks in liaison with the Commission where necessary.

Article 46

1. Those Member States which wish to participate in the permanent structured cooperation referred to in Article 42(6), which fulfil the criteria and have made the commitments on military capabilities set out in the Protocol on permanent structured cooperation, shall notify their intention to the Council and to the High Representative of the Union for Foreign Affairs and Security Policy.

2. Within three months following the notification referred to in paragraph 1 the Council shall adopt a decision establishing permanent structured cooperation and determining the list of participating Member States. The Council shall act by a qualified majority after consulting the High Representative.

3. Any Member State which, at a later stage, wishes to participate in the permanent structured cooperation shall notify its intention to the Council and to the High Representative.

The Council shall adopt a decision confirming the participation of the Member State concerned which fulfils the criteria and makes the commitments referred to in Articles 1 and 2 of the Protocol on permanent structured cooperation. The Council shall act by a qualified majority after consulting the High Representative. Only members of the Council representing the participating Member States shall take part in the vote.

A qualified majority shall be defined in accordance with Article 238(3)(a) of the Treaty on the Functioning of the European Union.

4. If a participating Member State no longer fulfils the criteria or is no longer able to meet the commitments referred to in Articles 1 and 2 of the Protocol on permanent structured cooperation, the Council may adopt a decision suspending the participation of the Member State concerned.

The Council shall act by a qualified majority. Only members of the Council representing the participating Member States, with the exception of the Member State in question, shall take part in the vote.

A qualified majority shall be defined in accordance with Article 238(3)(a) of the Treaty on the Functioning of the European Union.

5. Any participating Member State which wishes to withdraw from permanent structured cooperation shall notify its intention to the Council, which shall take note that the Member State in question has ceased to participate.

6. The decisions and recommendations of the Council within the framework of permanent structured cooperation, other than those provided for in paragraphs 2 to 5, shall be adopted by unanimity. For the purposes of this paragraph, unanimity shall be constituted by the votes of the representatives of the participating Member States only.

PROTOCOL
ON PERMANENT STRUCTURED COOPERATION
ESTABLISHED BY ARTICLE 42 OF THE TREATY ON EUROPEAN UNION


THE HIGH CONTRACTING PARTIES,

HAVING REGARD TO Article 42(6) and Article 46 of the Treaty on European Union,

RECALLING that the Union is pursuing a common foreign and security policy based on the achievement of growing convergence of action by Member States;

RECALLING that the common security and defence policy is an integral part of the common foreign and security policy; that it provides the Union with operational capacity drawing on civil and military assets; that the Union may use such assets in the tasks referred to in Article 43 of the Treaty on European Union outside the Union for peace-keeping, conflict prevention and strengthening international security in accordance with the principles of the United Nations Charter; that the performance of these tasks is to be undertaken using capabilities provided by the Member States in accordance with the principle of a single set of forces;

RECALLING that the common security and defence policy of the Union does not prejudice the specific character of the security and defence policy of certain Member States;

RECALLING that the common security and defence policy of the Union respects the obligations under the North Atlantic Treaty of those Member States which see their common defence realised in the North Atlantic Treaty Organisation, which remains the foundation of the collective defence of its members, and is compatible with the common security and defence policy established within that framework;

CONVINCED that a more assertive Union role in security and defence matters will contribute to the vitality of a renewed Atlantic Alliance, in accordance with the Berlin Plus arrangements;

DETERMINED to ensure that the Union is capable of fully assuming its responsibilities within the international community;

RECOGNISING that the United Nations Organisation may request the Union’s assistance for the urgent implementation of missions undertaken under Chapters VI and VII of the United Nations Charter;

RECOGNISING that the strengthening of the security and defence policy will require efforts by Member States in the area of capabilities;

CONSCIOUS that embarking on a new stage in the development of the European security and defence policy involves a determined effort by the Member States concerned;

RECALLING the importance of the High Representative of the Union for Foreign Affairs and Security Policy being fully involved in proceedings relating to permanent structured cooperation,

HAVE AGREED UPON the following provisions, which shall be annexed to the Treaty on European Union and to the Treaty on the Functioning of the European Union:

Article 1

The permanent structured cooperation referred to in Article 42(6) of the Treaty on European Union shall be open to any Member State which undertakes, from the date of entry into force of the Treaty of Lisbon, to:

(a) proceed more intensively to develop its defence capacities through the development of its national contributions and participation, where appropriate, in multinational forces, in the main European equipment programmes, and in the activity of the Agency in the field of defence capabilities development, research, acquisition and armaments (European Defence Agency), and

(b) have the capacity to supply by 2010 at the latest, either at national level or as a component of multinational force groups, targeted combat units for the missions planned, structured at a tactical level as a battle group, with support elements including transport and logistics, capable of carrying out the tasks referred to in Article 43 of the Treaty on European Union, within a period of 5 to 30 days, in particular in response to requests from the United Nations Organisation, and which can be sustained for an initial period of 30 days and be extended up to at least 120 days.

Article 2

To achieve the objectives laid down in Article 1, Member States participating in permanent structured cooperation shall undertake to:

(a) cooperate, as from the entry into force of the Treaty of Lisbon, with a view to achieving approved objectives concerning the level of investment expenditure on defence equipment, and regularly review these objectives, in the light of the security environment and of the Union’s international responsibilities;

(b) bring their defence apparatus into line with each other as far as possible, particularly by harmonising the identification of their military needs, by pooling and, where appropriate, specialising their defence means and capabilities, and by encouraging cooperation in the fields of training and logistics;

(c) take concrete measures to enhance the availability, interoperability, flexibility and deployability of their forces, in particular by identifying common objectives regarding the commitment of forces, including possibly reviewing their national decision-making procedures;

(d) work together to ensure that they take the necessary measures to make good, including through multinational approaches, and without prejudice to undertakings in this regard within the North Atlantic Treaty Organisation, the shortfalls perceived in the framework of the ’Capability Development Mechanism’;

(e) take part, where appropriate, in the development of major joint or European equipment programmes in the framework of the European Defence Agency.

Article 3


The European Defence Agency shall contribute to the regular assessment of participating Member States’ contributions with regard to capabilities, in particular contributions made in accordance with the criteria to be established, inter alia, on the basis of Article 2, and shall report thereon at least once a year. The assessment may serve as a basis for Council recommendations and decisions adopted in accordance with Article 46 of the Treaty on European Union.

Saturday, 17 September 2016

Public wi-fi and liability for illegal downloads: the CJEU judgment in McFadden




Lorna Woods, Professor of Internet Law, University of Essex

Is a business which offers free wi-fi to its customers liable if they download content unlawfully? That was the main issue in the recent CJEU judgment in McFadden, a rare case on Article 12 of the EU’s eCommerce Directive, which provides that the provider of an information society service is not liable for the transmission of information if it is a ‘mere conduit’ (as further defined) of that information.  While must of the decision seems to fit well into existing law on intermediaries and the provisions of services in general, there are a couple of potentially unexpected developments: those relating to costs for injunctive relief; and the requirements of those providing access to the Internet.

Facts

McFadden runs a lighting and sound system shop in which he offers free access to a wi-fi network to the general public in order to draw the attention of potential customers to his goods and services.  This network was used to download some content unlawfully. The question was whether McFadden was indirectly liable (for not making his network secure) or whether he could rely on intermediary immunity from liability contained in the e-Commerce Directive.

Judgment

The first requirement for someone to be able to rely on the e-Commerce Directive is to show that that body is an information society service provider within the terms of the Directive.  The problem here is that the wi-fi was provided free of charge, so does McFadden provide an economic service to bring himself within the TFEU?

The key requirement is that a service is one which is ‘normally provided for remuneration’ (as found in the case law on Article 57 TFEU, which defines ‘services’ for free movement purposes, as well as Article 1(2) of Directive 98/34, which sets out rules on consulting about new technical barriers to information society services).  Referring to Recital 18 of the e-commerce directive, the Court confirmed that under a proper interpretation of the definition of ‘information society service’ in Article 12(1) of the directive, ‘cover only those services normally provided for remuneration’ (para 39).

Applying this principle to this context, the Court noted “it does not follow that a service of an economic nature performed free of charge may under no circumstances constitute an ‘information society service’” (para 41).  For example, the service may be paid for by a third party, as is the case in free to air television which is often financed through advertising revenue rather than viewer subscription.  Here McFadden was providing the service as an advertising technique, so the Court concluded that the provision of wi-fi fell within Article 12 (para 43).

The Court then considered the application of Article 12. The national court recognised that a first requirement would be the transmission of content, but questioned whether other conditions – notably the existence of a contractual relationship – would also be required.  The Court confirmed that transmission is required and – following the wording of the recital 42 – that the activity of transmission as a ‘mere conduit’ is of a mere technical, automatic and passive nature (para 48).  While the Court accepted that there might be an interpretation of the German language version that suggested the existence of further requirements, there was no such aspect in other language versions.  In the interests of a uniform interpretation of the directive across the various language versions, the Court concluded that there were no further conditions to be satisfied (para 54).

The next question related to the types of immunity from liability, the provisions in relation to mere conduit, caching and hosting being expressed in slightly different terms.  So while Article 14 requires a host to act expeditiously on becoming aware of illegal content to continue to benefit from immunity, there is no such requirement in Article 12.  The Court suggested (as the Advocate General had done) that this difference may result from the different nature of the services provided. In particular, a host may have greater opportunity to identify illegal content than a mere conduit.  On this basis, the Court thought it inappropriate to imply a condition that a mere conduit should be required to act expeditiously into Article 12 (para 65).

The national court further questioned whether Article 12(1), read in conjunction with Article 2(b), was to be interpreted as meaning that there were additional conditions beyond that in Article 12 to which a service provider providing access to a communication network would be subject.  Again, the Court rejected this proposition on the basis that it should not disturb the balance between the various interests achieved by the legislature (para 68-69).

The Court then considered the type of relief which an injured third party might claim, and particularly whether such a party could seek injunctive relief against a mere conduit.  While Article 12 precludes a damages claim, and claims for costs (paras 74-75), according Article 12(3) a national court may order the mere conduit to take action to end the infringement of copyright (para 76), notably injunctive relief.  Costs in respect of such an action may be claimed (para 78).

The next set of questions concerned the measures that might be required of a mere conduit, given the relevance of Article 17(2) of the EU Charter of Fundamental Rights (EUCFR) (right to intellectual property), Article 16 EUCFR (right to conduct a business), and Article 11 EUCFR (freedom of expression).  The Court, adopting a margin of appreciation style approach, recognised that in case of conflict of rights it is for the national authorities to ensure a fair balance of interests (citing the CJEU ruling in Promusicae) (para 83).  The national court envisaged three possible measures McFadden could take:

-          examining all communications passing through an internet connection,
-          terminating that connection or
-          password-protecting it.

Article 15 precludes requiring intermediaries to monitor traffic and therefore the first obligation would be contrary to the  terms of the eCommerce Directive. Requiring McFadden to terminate the connection would constitute a serious interference with his rights to run a business under Article 16 EUCFR and so cannot be considered as reaching a ‘fair balance’ (paras 88-89). The third measure also constitutes a restriction of Article 16 as well as the Article 11 rights of users. In neither instance, however, is the essence of the right undermined.  The Court noted that ‘the measure adopted must be strictly targeted, in the sense that it must serve to bring an end to a third party’s infringement of copyright or of a related right but without thereby affecting the possibility of internet users lawfully accessing information using the provider’s services’, as otherwise the measure would – following the CJEU ruling in UPC Wien – be disproportionate (para 93).  Securing the network by password protecting it (but not blocking access to any particular content)

‘may dissuade the users of that connection from infringing copyright or related rights, provided that those users are required to reveal their identity in order to obtain the required password and may not therefore act anonymously’ (para 96).

Given that this third option is the only possible option, not securing the network would result in the right to intellectual property being deprived of any protection. Requiring password protection therefore strikes a fair balance.

Comment

In terms of following its Advocate General to find a free service to fall within the scope of the e-Commerce Directive (and indeed the treaty framework) the Court’s approach is not unexpected.  This is a long-standing approach of the Court in relation to services in general – indeed the Court refers to old television jurisprudence as authority – and also follows its approach in Papasavvas (C-291/13), which related to an online service which was funded through advertising revenue, rather than direct payments by users. 

This approach is potentially necessary in the context of the Internet, where many services are provided ‘free’ but in actual fact paid for by advertising or other secondary uses of user data.  Nonetheless, it is worth noting that in McFadden there was some economic context: McFadden was using the offer of free wi-fi as a form of advertisement.  The extent to which some such connection is required has not been addressed.  The Advocate General noted that 'there is no need to consider whether the scope of Directive 2000/31 [the e-commerce Directive] might also extend to the operation of such a network in circumstances where there is no other economic context' (para 50).  The Court did not address this at all.

The judgment contains little new as far as the conditions for the application of Article 12 are concerned, though it is perhaps useful to have the confirmation that further conditions should not be implied into the Directive. 

The Court determined that Article 12 (and presumably also Articles 13 and 14) give protection against costs – which as the Advocate General noted – could be as punitive as damages themselves.  Note however the distinction between an action for damages and an action for injunctive relief.  Article 12 does not protect an intermediary from being on the receiving end of an injunction, and the prohibition on costs does not extend to costs incurred in relation to given notice or an action for an injunction.  This is a difference in approach from that of the Advocate General and may be significant for those companies which have challenged injunctions.  The litigation in England and Wales in regard to blocking injunctions for trademarks in Cartier may be a case in point.

The extent to which intermediaries are under an obligation to put an end to infringing behaviour by end users has been the subject of much discussion and this judgment is useful in bringing some clarity.  The Court locates this discussion within the framework of fundamental rights, and starts off by indicating that this is a matter for national authorities – seemingly taking a leaf out of the Strasbourg court’s book on margin of appreciation. In practice, however, the Court gives a pretty clear steer to the national court on the ‘right’ outcome and in this there is a marked difference between its approach and that of the Advocate General.  Both agree that the first two possible measures are not possible. The Advocate General took the view at para 145 of his opinion that imposing security obligations

'would not in itself be effective, and thus its appropriateness and proportionality remain open to question'.

He also thought that forcing password protection could discourage or hinder usage of the WiFi service, undermining the business model of the operator. In contrast, the Court stated that the password protecting of the network is permissible; indeed, it could be seen as suggesting that the enforcement of copyright requires the network to be protected as the only means to protect Article 16. Does this suggest that all networks would be required to impose such measures on the chance that someone might use them to infringe copyright? On that basis, this judgment could have worrying implications for anonymity on the Internet, and certainly may have implications for the development of wi-fi/public access services.


Photo credit: www.amazon.co.uk

Monday, 12 September 2016

Will UK citizens have to pay to visit the EU after Brexit?



Steve Peers

Following a Guardian article on Saturday, and the Home Secretary’s confirmation on Sunday, it’s clear that the EU is planning to institute some kind of Electronic System of Travel Authorisation (ESTA) in future, which could well apply to UK citizens visiting the EU after Brexit. I’ll examine the background, context and consequences in this post.

Background

What is an ESTA?

First of all, let’s establish what an ESTA is not. It’s not a means of regulating longer-term migration as such, although there is an indirect link between long-term migration rules and ESTA systems, as discussed below. Rather it’s a means of regulating short-term visits for tourism or other reasons.

Nor is an ESTA a tourist visa. A lot of people have confused it with one, perhaps because a Guardian sub-editor initially put an inaccurate headline on the original story (I see the online headline has since been corrected). A tourist visa is a bigger hassle for visitors than an ESTA, since travellers must visit a consulate or pay an agency to handle their application. It entails higher fees and a longer waiting period, and probably a bigger risk of rejection.

During the Brexit referendum campaign, the prospect of a visa regime between the UK and EU was not raised by the Leave side generally. However, it was raised by a junior minister, Dominic Raab, and at the time I trashed the idea here. Since then, Theresa May has shown sufficient judgment to return Raab to the backbenches, so hopefully we have heard the last of this idea for a while.

So what is an ESTA? It’s a way of gathering travellers’ information in advance of travel, usually for citizens of countries subject to a visa waiver, for instance the USA and Japan. In fact, the best-known example of an ESTA is the American version, although there are several other countries with one.  If a traveller fails to complete an ESTA in advance of travel, they will likely be denied boarding or admission at the border.  The US version includes a fee for administration and tourism promotion. Usually the form is completed, and the fee paid, online. It’s recommended to complete the ESTA form several days in advance, although on my last trip to the USA, I did it just before dashing out of the house to catch my plane. (I am not suggesting this as best practice).

The EU context

The EU has been considering an ESTA for a while. It would form part of the Schengen system of standardised external border controls, which are paralleled by the abolition (in principle) of internal border controls between Schengen States. The Schengen states comprise all the remaining EU countries except Ireland – although Romania, Bulgaria, Cyprus and Croatia do not fully participate yet – plus four non-EU Schengen associates (Norway, Iceland, Switzerland and Liechtenstein).

A key feature of EU law in this area is that the Schengen system interacts with EU free movement law. So because the UK and Ireland have signed up to the free movement of EU citizens as EU Member States, their citizens are fast-tracked across the Schengen external borders. The same is true of the Schengen associates, because they have all signed up to free movement of their citizens with the EU as well.

Other non-EU citizens are subject to more intensive checks at the Schengen external border, as set out in the Schengen Borders Code. There’s a simple reason for this: they don’t have an underlying right to stay in the country, whereas citizens of EU Member States and the Schengen associates do – subject to exceptions. There are also distinctions between non-EU countries: some (like the US or Canada) have a visa waiver from the Schengen countries, while others (like India and China) don’t.

An ESTA was first discussed in a Commission discussion paper back in 2008. This was followed up by a very detailed study in 2011 which recommended against the idea, after which the Commission dismissed it.  In 2013, the Commission decided instead to propose an entry-exit system, which would record the movements of non-EU citizens (besides the Schengen associates) into and out of the Schengen external borders. Discussions on that proposal moved slowly, and the Commission proposed a new version of it in spring 2016. The intention is to agree on this system by the end of the year, although it will take several years afterward to get the system up and running in practice.

At the same time, the Commission revived talk of a possible EU ESTA, in a discussion paper on EU information systems. This excited many Member States, as can be seen by a Dutch EU Council Presidency paper published in the spring, which argued that the system could be a quid pro quo for visa waivers with countries like Ukraine and Turkey. Now the idea is on the agenda for the summit of the ‘EU27’ (ie the EU without the UK) to be held this week. It is being pushed by France and Germany in particular. Surely only a cynic would link this to the upcoming elections in those countries…

Consequences

Like the entry-exit system, an EU ESTA would take some time to set up. The details of how it would work would remain to be determined: the Commission is due to make a proposal this autumn, which would then be agreed by the Council (only Schengen States get a vote, so not the UK) and the European Parliament. So it might not follow the US model exactly, in terms of fees or the link to the broader border control system, or the two-year period of validity.

For one thing, some of the EU documents suggest an EU ESTA will apply at external land borders, whereas the US system does not. Also, some EU papers suggest an ESTA will be used as a method of screening people and denying them entry in advance, while others refer to it simply as generating information for border guards to use to speed up their work. It’s not clear whether an ESTA would apply to those UK citizens who live in the EU already, if they (for instance) visited the UK and then returned to France.

But it does seem very likely that it will apply to all non-EU countries which don’t have a treaty on free movement of citizens with the EU. This would follow the existing model of the Schengen Borders Code, the Schengen Information System (which includes data on non-EU citizens to be refused entry) and the proposed entry-exit system. It’s simply common sense: fast-track entry at the border for those who are not subject in principle to immigration controls, but scrutiny at the border (or in advance of it) for those who are.

It’s been suggested that the application of an EU ESTA to the UK would be an act of ‘spite’. This is simply ridiculous. If a country leaves the EU, it leaves behind both the pros and cons of membership. In short: divorce doesn't come with bed privileges.

Many on the Leave side argued that the UK should leave the EU and then stop applying free movement law, so that it could exercise more control over EU citizens at the border. Applying an EU ESTA to UK citizens would just be exactly the same principle in reverse. Equally UK citizens would no longer be fast-tracked at Schengen external borders, would be subject to the EU entry-exit system and (for a few) would be listed in the Schengen Information System as people to be denied entry into any Schengen State. This isn’t ‘scaremongering’: it’s simply a description of existing and proposed EU law.

So will the UK be subject to an EU ESTA after Brexit? The obvious way to avoid it (and the other forms of stepped-up border control) would be to conclude a deal on free movement of persons with the EU (this need not mean joining Schengen). Arguably even a free movement deal with derogations – for instance, limiting the numbers of EU citizens who can work in the UK in some way – could justify an exemption from stepped-up border controls, as long as those UK controls are not applied at the border. I can foresee the counter-argument that ‘the EU will never negotiate an exception to free movement of people’; but has it occurred to anyone that this might simply be a negotiating position?

If an EU ESTA does end up being applied to UK citizens, the UK could reciprocate with a system of its own, applied to EU visitors. But this doesn’t rule out some form of deal on immigration flows between the UK and the EU, which could be agreed in return for continued UK participation in the single market.  The mere existence of a UK ESTA – perhaps accompanied by some other form of immigration safeguard on EU citizens – might arguably go some way to satisfying those who want additional border controls. It could be accompanied by further mutual sharing of data on serious convicted criminals, for use in the ESTA process. Latvia’s daft decision to release a convicted murderer after only a few years in prison should not have had tragic consequences in the UK, or any other Member State.

Barnard & Peers: chapter 13
JHA4: chapter I:3
Photo credit: Kaihsu Tai - Own work, CC0, https://commons.wikimedia.org/w/index.php?curid=45487009