European values and Hungarian media law: ECHR

The discussion about the Hungarian media law prone to arbitrary implementation has revealed profound ignorance about or lack of care for European values, even outright denial of their existence.

For the legal text (to the extent that the Act has been translated) you can go to Politics.hu:

Act CLXXXV of 2010 on media services and mass media (in English)

The text on Politics.hu is followed by a lot of comments discussing the law (48 by now), even if they reflect only a tiny proportion of an ongoing discussion in many media articles and blog posts.


Grahnlaw

I have tried to shed some light on political and legal aspects of freedom of speech in Europe in earlier blog posts:

Help EPP group leader Joseph Daul defend media freedom (5 January 2011)

EPP president Wilfried Martens versus Free Press for Hungary (5 January 2011)

Hungarian media law and EU Council presidency: Evolving European opinion (8 January 2011)

Hungary: Is free speech a socialist issue? (9 January 2011)

Presidency or Troll? Describing itself as the unofficial troll blog of the Hungarian presidency, EUphobia made its confused and confusing appearance on the Euroblog scene: The Party has Started (8 January 2011). If I understand the blog entry and the following discussion correctly, the Hungarian media law is bad, but press freedom needs to be suppressed in Hungary for partisan reasons. EUphobia seems to imply that there are no European standards to uphold.


Council of Europe (CoE)

All the members of the European Union (EU) are members of the pan-European Council of Europe (CoE) and thus parties to the European Convention on Human Rights and Fundamental Freedoms (ECHR), an evolving system of protection of the rights of citizens against abuse by governments and public authorities, as shown by the preamble:

The governments signatory hereto, being members of the Council of Europe,

Considering the Universal Declaration of Human Rights proclaimed by the General Assembly of the United Nations on 10th December 1948;

Considering that this Declaration aims at securing the universal and effective recognition and observance of the Rights therein declared;

Considering that the aim of the Council of Europe is the achievement of greater unity between its members and that one of the methods by which that aim is to be pursued is the maintenance and further realisation of human rights and fundamental freedoms;

Reaffirming their profound belief in those fundamental freedoms which are the foundation of justice and peace in the world and are best maintained on the one hand by an effective political democracy and on the other by a common understanding and observance of the human rights upon which they depend;

Being resolved, as the governments of European countries which are like-minded and have a common heritage of political traditions, ideals, freedom and the rule of law, to take the first steps for the collective enforcement of certain of the rights stated in the Universal Declaration,

Have agreed as follows: ---

The ratifying states have not only declared their profound belief in the fundamental freedoms, but pledged a common understanding and observance of human rights, which are legally binding in every member state of the CoE.

In short, the purpose is to give citizens' rights and freedoms teeth:

Article 1 – Obligation to respect human rights

The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of this Convention.

Key word ”secure”.


Freedom of expression

Section 1 of the ECHR contains Article 10, which enshrines the freedom of expression:

Article 10 – Freedom of expression

1.Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.

2.The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.

This text binds national legislators, governments and public administrations, as well as Courts. Ultimately observance of the engagements undertaken by the member states is ensured by the European Court of Human Rights (ECtHR). (See Article 19)

As we see, some restrictions are possible on freedom of expression, but they have to be strictly justifiable. Let me make just two points: 1) ”Interference” by public authority is a much wider concept than crude prior censorship; 2) Conditions have to be prescribed by law, ”necessary in a democratic society” and they have to be based on the enumerated grounds.

Rich pickings are available on the ECtHR's search portal Hudoc for those who are interested in case law can find. I link to newer cases concerning ECHR Article 10.


The good fight

In the end governments miss the whole purpose of protecting the health of their democratic system and the rights of individuals if they propel themselves into a race to the bottom and a competition who can get away with the least.

We are, at least hopefully, dealing with the rights of humans, not maximising those of governments at the expense of citizens, despite the obvious temptations.

Individual politicians, politcal parties at national and European level, legislatures, governments and public authorities should compete to improve the standards and observance of human rights and fundamental freedoms, including free speech, in order to be able to claim at the end of the day: I have fought the good fight, I have finished the course, I have kept the faith.

This is what European values are about.



Ralf Grahn



P.S. Anarchic in spirit, but vigilant for the rights of EU netizens is @telecomix on Twitter, describing itself in the following terms: The Telecomix News Agency aims to inform about the telecoms package, ACTA, data retention, net neutrality and censorship within EU and the rest of the world. Worth following.

EU law: Defence procurement

Military procurement in the internal market can be divided into two groups of materials: 1) arms, munitions and war material, and 2) products not intended for specifically military purposes.

We look at how the EC (EU) Procurement Directive 2004/18/EC deals with military procurement and at the treaty level security derogations. After a look at the (historical) scope of military material and interpretation of member states’ security prerogatives, we summarise some of the latest proposals in the field of defence procurement in the internal market.

The European economic and security interests at stake are huge.



***

Procurement Directive Article 10

The Procurement Directive 2004/18/EC mentions defence procurement under Specific situations. In principle, procurement in the field of defence falls within the scope of the Directive, but subject to Article 296 TEC:

S e c t i o n 2
Specific situations

Article 10
Defence procurement

This Directive shall apply to public contracts awarded by contracting authorities in the field of defence, subject to Article 296 of the Treaty.


***

Article 296 TEC

Article 296 of The Treaty establishing the European Community (TEC) is problematic from a legal point of view. It constitutes a wide derogation from the treaty provisions on grounds of essential national security interests.

Each member state can refuse to supply the European Community (European Union) and the other member states information on grounds of essential security interests, but the refusal requires proper justification.

Article 296(1)(b) deals specifically with defence procurement. The provision distinguishes between the production of and trade in arms, munitions and war material on the one hand, and products not intended for specifically military purposes on the other hand. The latter would seem to be subject to normal competition rules in the internal market.

The second paragraph refers to an initial agreement on the materials covered, but for a long time the list of 15 April 1958 was not even published. In other words, the scope of a vast derogation was not even in the public domain, although it concerned the interests of private enterprises.

The Council can alter the scope of paragraph 1(b) by changing the list by unanimous decision.

Here is Article 296 TEC (ex Article 223) as it was published in the latest consolidated version of the treaties, OJEU 29.12.2006 C 321 E/173:

Article 296 TEC

1. The provisions of this Treaty shall not preclude the application of the following rules:

(a) no Member State shall be obliged to supply information the disclosure of which it considers contrary to the essential interests of its security;

(b) any Member State may take such measures as it considers necessary for the protection of the essential interests of its security which are connected with the production of or trade in arms, munitions and war material; such measures shall not adversely affect the conditions of competition in the common market regarding products which are not intended for specifically military purposes.

2. The Council may, acting unanimously on a proposal from the Commission, make changes to the list, which it drew up on 15 April 1958, of the products to which the provisions of paragraph 1(b) apply.


***

Lisbon Treaty

If the Lisbon Treaty enters into force, Article 296 TEC would remain intact as Article 346 of the consolidated Treaty on the Functioning of the European Union. The provision would extend the blanket derogation to ‘the Treaties’ and the ‘internal market’ would replace the ‘common market’ according to the horizontal (general) amendments (OJEU 9.5.2008 C 115/194).

Even if shifting global security challenges would tend to emphasise the common security interests of the EU member states, the Lisbon Treaty takes a step in the opposite direction. Article 4(2) of the Treaty on European Union sets out that in particular, national security remains the sole responsibility of each member state.


***


Arms, munitions and war materials

The list of 15 April 1958 was published when the Council replied to a written question in 2001 (OJEC 20.12.2001 C 364 E/85–86). This unorthodox procedure to publish acts with legal implications merits republication of the question and the reply:


(2001/C 364 E/091) WRITTEN QUESTION E-1324/01
by Bart Staes (Verts/ALE) to the Council

(4 May 2001)

Subject: Article 296(1)(b) of the EC Treaty

Pursuant to Article 296(1)(b), Member States are permitted to waive the general principle of competition (Title VI of the EC Treaty) in the case of military procurement. The Council adopted the list of products to which this applies on 15 April 1958.

What products appear on the list of 15 April 1958 to which Article 296(1)(b) refers?

Reply

(27 September 2001)

The list of the arms, munition and war materiel, including nuclear arms, to which the provisions of Article 296 paragraph 1(b) of the Treaty of Rome are applicable is given below.

1. Portable and automatic firearms, such as rifles, carbines, revolvers, pistols, sub-machine guns and machine guns, except for hunting weapons, pistols and other low calibre weapons of the calibre less than 7 mm.

2. Artillery, and smoke, gas and flame throwing weapons such as:

(a) cannon, howitzers, mortars, artillery, anti-tank guns, rocket launchers, flame throwers, recoilless guns;

(b) military smoke and gas guns.

3. Ammunition for the weapons at 1 and 2 above.

4. Bombs, torpedoes, rockets and guided missiles:

(a) bombs, torpedoes, grenades, including smoke grenades, smoke bombs, rockets, mines, guided missiles, underwater grenades, incendiary bombs;

(b) military apparatus and components specially designed for the handling, assembly, dismantling, firing or detection of the articles at (a) above.

5. Military fire control equipment:

(a) firing computers and guidance systems in infra-red and other night guidance devices;

(b) telemeters, position indicators, altimeters;

(c) electronic tracking components, gyroscopic, optical and acoustic;

(d) bomb sights and gun sights, periscopes for the equipment specified in this list.

6. Tanks and specialist fighting vehicles:

(a) tanks;

(b) military type vehicles, armed or armoured, including amphibious vehicles;

(c) armoured cars;

(d) half-tracked military vehicles;

(e) military vehicles with tank bodies;

(f) trailers specially designed for the transportation of the ammunition specified at paragraphs 3 and 4.

7. Toxic or radioactive agents:

(a) toxic, biological or chemical agents and radioactive agents adapted for destructive use in war against persons, animals or crops;

(b) military apparatus for the propagation, detection and identification of substances at paragraph (a) above;

(c) counter-measures material related to paragraph (a) above.

8. Powders, explosives and liquid or solid propellants:

(a) powders and liquid or solid propellants specially designed and constructed for use with the material at paragraphs 3, 4 and 7 above;

(b) military explosives;

(c) incendiary and freezing agents for military use.

9. Warships and their specialist equipment:

(a) warships of all kinds;

(b) equipment specially designed for laying, detecting and sweeping mines;

(c) underwater cables.

10. Aircraft and equipment for military use.

11. Military electronic equipment.

12. Cameras specially designed for military use.

13. Other equipment and material.

14. Specialised parts and items of material included in this list insofar as they are of a military nature.

15. Machines, equipment and items exclusively designed for the study, manufacture, testing and control of arms, munitions and apparatus of an exclusively military nature included in this list.


***

Interpretative Communication


The Commission’s Interpretative Communication on the application of Article 296 of the Treaty in the field of defence procurement, Brussels, 7.12.2006 COM(2006) 779 final, referred to an annual defence procurement market of € 80 billion, fragmented into national markets.

The Commission recalled two proposals from 2005, saying:

(1) Adoption of an "Interpretative Communication on the application of Article 296 TEC in the field of defence procurement". This Communication will not modify, but clarify the existing legal framework;

(2) Preparation of a possible new directive on the procurement of defence equipment to which the derogation in Article 296 TEC does not apply. This directive could offer new, more flexible rules adapted to the specificities of the defence sector.

The Communication summarises the discussion and ECJ case law on how the member states can exercise their prerogative to interpret their essential security interests, and it sets out guidelines on balancing these essential security interests with fundamental principles of the internal market.


***

Defence package


One of the latest developments is the Commission’s defence procurement package constisting of a Communication on strategy and two legislative proposals.


Strategy proposal


Communication A strategy for a stronger and more competitive European defence industry, Brussels, 5.12.2007 COM(2007) 764 final.

The aim of the Communication is to promote a strong defence technological and industrial base (DTIB) in Europe, as a fundamental underpinning of the European Security and Defence Policy (ESDP). In the Commission’s view, only a competitive DTIB can provide Europe with autonomy, affordability and the ability to cooperate internationally in the development and production of defence equipment.




The Communicatio was accompanied by two proposed Directives:


Intra-EU transfers

The Proposal for a Directive of the European Parliament and of the Council on simplifying terms and conditions of transfers of defence-related products within the Community, Brussels, 5.12.2007 COM(2007) 765 final.

The aim of proposal is to contribute to the emergence of a European Defence Equipment Market (EDEM) as well as the functioning of the internal market by replacing current national licensing requirements by a streamlined system of general or global licenses, to which individual licensing would remain the exception. The Directive would not affect the arms exports of member states to third countries.

On 16 December 2008 the European Parliament voted in favour of the proposed Directive, with amendments.


Defence procurement


The aim of the proposed directive on defence procurement is to enhance openness and competitiveness of defence markets in the EU taking into account specific features, such as security of supply and security of information. According to the Commission, it will reduce the regulatory patchwork in this field. It will increase competition and transparency and so aid SMEs to find, and bid for, sub-contracts. By providing new rules applicable to the procurement of arms, munitions and war material and to certain sensitive non-military security items, this initiative should further limit the use of Article 296 to exceptional cases as stipulated by the Court of Justice and build upon earlier steps taken by the Commission and the EDA to encourage greater openness of defence markets, says the Commission.


The Proposal for a Directive on the coordination of procedures for the award of certain public works contracts, public supply contracts and public service contracts in the fields of defence and security,Brussels, 5.12.2007 COM(2007) 766 final.

The Commission aims to introduce a new legal instrument tailored to the specific nature of "sensitive" purchases for which specific requirements and precautions govern the award of contracts, in these fields. The Commission argues that the Member States will then have at their disposal a common framework of procurement rules that not only ensure the application of the principles of the EC Treaty but also take into account the particular requirements of these purchases, such as security of information, security of supply and the necessary flexibility of the procedures.

The plenary of the European Parliament is expected to vote in about ten days on the Committee on the Internal Market and Consumer Protection report A6-0415/2008, generally supportive of the Commission’s aims.





Ralf Grahn

EU Treaty of Lisbon: Enhanced cooperation

How can Member States advance without being held back by less integrationist countries? Articles 43 to 45 of the Treaty on European Union (TEU; latest consolidation OJ 29.12.2006, C 321 E) offer the possibility for a group of states to establish enhanced cooperation between themselves within the institutional framework of the EU (EC).

Despite Treaty adjustments, the provisions on enhanced cooperation have not been used until now. Although the final stage of Economic and Monetary Union (EMU) leading to the introduction of the euro currency has taken place between an expanding group of countries, it is based on Treaty provisions. (From the beginning of 2008 fifteen Member States share the common currency.)

The Schengen and Prüm Treaties originated between Member States, but outside the institutional framework of the EU.

The conditions for enhanced cooperation have been seen as too restrictive.

Article I-43 of the Convention was modified to become Article I-44 Enhanced cooperation in the Treaty establishing a Constitution for Europe (OJ 16.12.2004, C 310). Article 10 TEU of the Treaty of Lisbon (OJ 17.12.2007, C 306) takes on the core contents, with modifications caused by the new Treaty terminology and detailed voting provisions moved to the Treaty on the functioning of the European Union (TFEU). The most concrete change was, in accordance with the IGC 2007 Mandate (document 11218/07, point 14), to fix the minimum number of participating states at nine, regardless of further enlargement of the Union.

***

Today’s remarks by your glossator:

Enhanced cooperation is a tool of last resort for more effective cooperation within the scope of the Treaties and within the institutional framework of the European Union. It starts between a group of countries, but other Member States, willing and able, can join later. The decisions are made by the participating states, but they do not form part of the ‘acquis communautaire’, the common body of EU law.

For an overview of the innovations in the Lisbon Treaty, I quote “Enhanced cooperation: From theory to practice” (page 101):

“Three innovations are meant to facilitate the triggering of enhanced cooperation.

* Firstly, the last resort condition has been clarified and downgraded: a deadlock in the decision-making process can now be established by the Council in the initial decision authorizing enhanced cooperation.

* Secondly, the initial authorizing decision shall be enacted by qualified majority without further qualifications (except CFSP).

* Thirdly, the authorizing decision may lay down conditions for participation, to test the capacity, or the good will, of the initial participating Member States. This aims at preventing the participation of unwilling Member States, only interested in keeping some influence on the development of enhanced cooperation, or even impeding it.”

On potential areas of enhanced cooperation, I quote the same publication (page 113):

“Potential areas of application can be identified. In spite of the existing forms of flexibility, enhanced cooperation is not ruled out in the area of freedom, security and justice, nor in the EMU, notably to strengthen economic coordination between the Euro States. Other areas include Community policies governed by unanimity like taxation, social policy, but also European citizenship. Conversely, enhanced cooperation would seem to be of little use in the field of CFSP and Defence.”

The comparison between cooperation outside and within the institutional framework merits a third quote from the publication mentioned (page 114):

“Compared to intergovernmental cooperation outside the Union, the enhanced cooperation mechanism is advantageous: it maintains the community method, parliamentary and judicial control, and guarantees for the non-participants. Compared to predefined systems of flexibility (Euro, Schengen): it can create functioning subsystem without needing an IGC, it is more general and coherent a system, and through the “passerelle” clause it can modify its internal decision making system.”

Politically, it is going to be interesting to see if further core groups of Member States are going to be formed, and if this is going to make minimalist countries to be perceived as even more marginal than they are today from a dynamic point of view.

***

In the Treaty of Lisbon (OJ 17.12.2007, C 306) Title IV becomes Provisions on enhanced cooperation with an Article 10.

Article 10

1. Member States which wish to establish enhanced cooperation between themselves within the framework of the Union's non-exclusive competences may make use of its institutions and exercise those competences by applying the relevant provisions of the Treaties, subject to the limits and in accordance with the detailed arrangements laid down in this Article and in Articles 280 A to 280 I of the Treaty on the Functioning of the European Union.

Enhanced cooperation shall aim to further the objectives of the Union, protect its interests and reinforce its integration process. Such cooperation shall be open at any time to all Member States, in accordance with Article 280 C of the Treaty on the Functioning of the European Union.

2. The decision authorising enhanced cooperation shall be adopted by the Council as a last resort, when it has established that the objectives of such cooperation cannot be attained within a reasonable period by the Union as a whole, and provided that at least nine Member States participate in it. The Council shall act in accordance with the procedure laid down in Article 280 D of the Treaty on the Functioning of the European Union.

3. All members of the Council may participate in its deliberations, but only members of the Council representing the Member States participating in enhanced cooperation shall take part in the vote. The voting rules are set out in Article 280 E of the Treaty on the Functioning of the European Union.

4. Acts adopted in the framework of enhanced cooperation shall bind only participating Member States. They shall not be regarded as part of the acquis which has to be accepted by candidate States for accession to the Union.

***

A presentation of the Union’s external action will follow.


Ralf Grahn


Source:

Enhanced cooperation: From theory to practice (p. 97-119), in EPC, Egmont & CEPS: The Treaty of Lisbon: Implementing the Institutional Innovations; November 2007