European Union versus SOPA and Protect IP Act?

The European Parliament took a stand against the controversial Stop Online Piracy Act (SOPA) bill debated in the US House of Representatives and its sister, the Protect IP Act (Preventing Real Online Threats to Economic Creativity and Theft of Intellectual Property Act of 2011) discussed in the Senate.

Both bills raise serious concerns regarding the integrity of the internet as well as for service providers and businesses, not only in the United States, but globally.

How about the other EU institutions?

Here are the results of a quick search for public EU materials through the EEAS web pages.


European External Action Service EEAS

We start from the country page for the United States of America at the European External Action Service EEAS, where we find no specific item dedicated to the issue. However, there is material about the recent summit between the European Union and the United States of America.


EU-US summit

We take a closer look at the recent EU-US summit, 28 November 2011. Did the president of the European Council Herman Van Rompuy and the president of the European Commission José Manuel Barroso, the high representative Catherine Ashton or trade commissioner Karel De Gucht raise issues related to the internet in their discussions with president Barack Obama and secretary of state Hillary Clinton?

In the EU-US Summit Joint statement, Washington, 28 November 2011 (document 17805/11), paragraph 4 mentioned the work of the Transatlantic Economic Council (TEC), underlining the need to avoid unnecessary divergence in regulations and standards affecting trade, but also highlighting the the efforts to protect intellectual property rights (IPR):

4. We applaud the success of the Transatlantic Economic Council (TEC) on a wide range of issues and welcome the progress achieved in secure trade and supply chain security, electric vehicles and related infrastructure, regulatory practices, small and medium-sized enterprises, and in the Information Communications Technology (ICT) sector. We encourage the TEC’s continued leadership in helping us avoid unnecessary divergence in regulations and standards that adversely affects trade. We urge the TEC, together with our regulators and standard-setters to step up co-operation in key sectors such as nanotechnology and raw materials to develop compatible approaches to emerging technologies. We also instruct the TEC to pursue its work on strategic economic questions, not least in the field of investment, innovation policy, and the protection of intellectual property rights to level the playing field for our companies in third countries, in particular emerging economies.

The leaders did pay respect to an undivided global internet, before plunging into the security-driven concrete agenda, in paragraph 22:

22. We share a commitment to a single, global Internet, and will resist unilateral efforts to weaken the security, reliability, or independence of its operations — recognizing that respect for fundamental freedoms online, and joint efforts to strengthen security, are mutually reinforcing. We welcome the progress made by the EU-U.S. Working Group on Cyber-security and Cyber-crime, notably the successful Cyber Atlantic 2011 exercise. We endorse its ambitious goals for 2012, including combating online sexual abuse of children; enhancing the security of domain names and Internet Protocol addresses; promotion of international ratification, including by all EU Member States, of the Budapest Convention on Cybercrime ideally by year’s end; establishing appropriate information exchange mechanisms to jointly engage with the private sector; and confronting the unfair market access barriers that European and U.S. technology companies face abroad.

The mandate of the new TEC high level working group on jobs and growth includes regulatory issues affecting trade (press release MEMO/11/843). Thus, it could be a forum for the prevention of new barriers.


Transatlantic Economic Council TEC

The Commission's DG Trade provides an overview of the meeting of the Transatlantic Economic Council TEC, i.a.:

Information and Communication Technology: The EU and US reviewed the Information and Communication Technology (ICT) trade related principles which were agreed earlier this year and discussed ways of promoting the implementation of these principles within their bilateral economic relationship and in their trade negotiations with third countries. (IP/11/402)

The press release IP/11/402 notes the agreement on a set of ten fundamental principles for trade in information and communication technology (ICT) services, bilaterally and in order to open up markets for EU and US companies worldwide.

Logically, bilateral and globally propagated standards for information and communication technology (ICT) should exclude the creation of unilateral barriers, although the agreed principles come equipped with a caveat, far from clear in scope:

The EU-US Trade Principles for ICT Services have been agreed on a best endeavour basis and do not affect the rights of the EU or the US to maintain their respective policy approaches to the protection of intellectual property, privacy and personal data and the enhancement of cultural diversity.

The two-page document adds that financial services (one of the SOPA concerns) are excluded from the scope:

European Union-United States Trade Principles for Information and Communication Technology Services (4 April 2011)

The ten principles are briefly defined. Many of them could be affected by the SOPA and Protect IP bills.


Security and intellectual property or fundamental rights?

TFTP, ACTA, PNR... the list of invasive treaties problematic with regard to fundamental rights in the EU has grown.

The summit declaration and the TEC principles contain a few vague pointers, but what if the legislative powers in the USA decide to go even further than the executive, which works hard enough as it is to export its agendas on internet security and protection of intellectual property?

What have the EU institutions said and done? Where do they stand on freedoms and rights?



Ralf Grahn

Greens challenge ACTA legality

The European Commission has made two connected ACTA proposals:

Proposal for a COUNCIL DECISION on the signing, on behalf of the European Union of the Anti-Counterfeiting Trade Agreement between the European Union and its Member States, Australia, Canada, Japan, the Republic of Korea, the United Mexican States, the Kingdom of Morocco, New Zealand, the Republic of Singapore, the Swiss Confederation and the United States of America; Brussels, 24.6.2011 COM(2011) 379 final

Proposal for a COUNCIL DECISION on the conclusion of the Anti-Counterfeiting Trade Agreement between the European Union and its Member States, Australia, Canada, Japan, the Republic of Korea, the United Mexican States, the Kingdom of Morocco, New Zealand, the Republic of Singapore, the Swiss Confederation and the United States of America; Brussels, 24.6.2011 COM(2011) 380 final

The Council needs the consent of the European Parliament before the conclusion of the the agreement. See Article 218(6)(a)(v) TFEU. You can follow the procedure on Oeil, the Legislative Observatory of the EP, under the reference 2011/0167 (NLE).


Commission asserts

The European Commission knows that the less than open negotiating process leading to ACTA increased mistrust in many quarters. Some of the issues and proposals discussed during the negotiations have been criticised on Constitutional and civil rights grounds, as well as for being slanted in favour of big business interests – holders of intellectual property rights (IPR) - against the wider public (citizens, consumers, other users).

In the superficial and brief explanatory memorandum, which seems to be identical in the signing and the conslusion proposals, the Commission tries to sell the benefits of stricter IPR enforcement in international trade. It also makes assertions intended to eliminate obstacles, calm doubts and to promote the smooth passage of the proposal. Here a few picks:

* ACTA does not modify the EU acquis, because EU law is already considerably more advanced than the current international standards

* ACTA is a balanced agreement, because it fully respects the rights of citizens and the concerns of important stakeholders such as consumers, internet providers and partners in developing countries

* It has never been the intention, as regards the negotiation of ACTA to modify the EU acquis or to harmonise EU legislation as regards criminal enforcement of intellectual property rights

Fundamental Rights

The Green group in the European Parliament has constantly scrutinised supposedly illiberal proposals from the Commission or member states in relation to the digital environment and the Internet.

This time the Greens/EFA have commissioned a legal study of the compatibility of ACTA with civil rights. The press release offers the conclusions in a nutshell: New study underlines rights concerns with ACTA, strengthens calls for deal to be scrapped.

Yesterday, the Green MEP Jan Philipp Albrecht said that the ACTA agreement violates binding fundamental rights, and that the EU and its member states have a duty to scrap the ACTA agreement as it stands.

Those who are interested in the individual arguments, can read the full study, or at least the Summary and Conclusions (page 58-61):

Douwe Korff & Ian Brown: OPINION on the compatibility of the Anti-Counterfeiting Trade Agreement (ACTA) with the European Convention on Human Rights & the EU Charter of Fundamental Rights

The experts conclude:

Our analysis shows that ACTA, as currently drafted, seriously threatens fundamental rights in the EU and in other countries, at various levels.

***

The assertions by the European Commission are not enough. The European Parliament and national parliaments need to look closely at the legal implications of ACTA, however keen they might be to promote the interests of IPR holders in international trade and the internal market.



Ralf Grahn

Deserted by EP majority: EU citizens lead lives of quiet desperation (Updated)

”The mass of men lead lives of quiet desperation.” Henry David Thoreau, the author of Walden, is back in the European Union, including the European Parliament.

The International Relations and Security Network (ISN) published a background picture by Jeremy Druker of the repressive Hungarian law and other controversial legislation on its way: Hungary's Media Law – Tip of the Iceberg (18 January 2011).

Druker quoted professor and OSCE observer Miklos Haratszi saying:

Still, whatever the outrage in the West, few see that the media package is just the tip of the iceberg of Orban's very far-reaching illiberal, counter-revolution.

The French Brussels based journalist Jean-Sébastien Lefebvre, @jslefebvre on Twitter, has covered various aspects of the Hungarian presidency of the Council of the European Union on his blog, L'expérience européenne.

On the European Union as the last hope for Hungarian media with regard to the new law: Journaliste en Hongrie: ” notre dernier espoir, c'est l'Union européenne ” (29 December 2010).

A broad canvas about the Hungarian EU Council presidency and the history and neighbours of Hungary: La Présidence hongroise, son Histoire et ses voisins (15 January 2011).

The revealing quality of answers from the Hungarian presidency regarding a few of the controversial government measures: L'argumentaire de la Présidence hongroise (18 January 2011).

On Coulisses de Bruxelles, UE, the French journalist and blogger Jean Quatremer, @quatremer on Twitter, speaks about the lost honour of the European Socialists, the second largest group in the European Parliament: Tunisie, Hongrie, l'honneur perdu des socialistes européens (18 January 2011).

Quatremer presents the scene in his opening phrases:

Le groupe socialiste du Parlement européen, présidé par Martin Schulz, a joint ses voix au groupe conservateur du PPE pour bloquer toute résolution sur la révolution tunisienne et sur la suppression de la liberté de la presse en Hongrie à la consternation des Verts, de la GUE (gauche non socialiste) et des… libéraux et démocrates. Ces deux groupes ayant la majorité à eux deux, l’Europarlement restera donc muet, lui qui est si prompt à condamner la moindre atteinte aux droits de l’homme à condition qu’elle ait lieu à l’extérieur de la zone d’influence de l’Union…

Quatremer's conclusions about the group of Socialists and Democrats (S&D) in the EP is not rosy for those who hope to see a principled defence of the founding values of the European Union and the liberties of all EU citizens:

Sur la Hongrie, le groupe S&D (Alliance progressiste des socialistes européens) est encore plus vaseux si cela est possible : il veut attendre que la Commission européenne dise en quoi la loi sur les médias adoptée par le parlement hongrois est contraire au droit européen, comme si cela n’était pas évident.

Démocratie, liberté de la presse : les socialistes européens ne semblent vraiment plus savoir ce que sont les valeurs européennes qui fondent l’Union et doivent être défendues tant à l’intérieur qu’à l’extérieur. Après cela, étonnez-vous que la gauche soit en perte de vitesse dans l’Union. Au moins la droite est-elle conséquente en condamnant Cuba et en soutenant la Tunisie de Ben Ali…

Quatremer's text was so damning that I felt the need to check the S&D newsroom, where I found a press release from group leader Martin Schulz (in French). Even if Schulz mentions European values, his statement reduces the issue to an assessment by the Commission of compatibility with EU law:

Le Premier ministre Hongrois, Monsieur Viktor Orban, devrait s'assurer de la modification de cette loi si l'incompatibilité avec le droit européen est avérée, et pour cela, la Commission européenne doit agir en jouant pleinement son rôle qui découle du Traité a conclu Martin Schulz.

Update 19 January 2011: Added link to S&D press release Martin Schulz.

Update 2, 20 January 2011: S&D group leader Martin Schulz has written to the Coulisses de Bruxelles, and Jean Quatremer has commented.

***

In this instance I understand why Quatremer was somewhat hesitant about the position of the Liberals and Democrats, as reflected in the ALDE press release, leaving the field to the Greens and the Left.

This morning in Strasbourg the European Parliament is going to discuss the programme of activities of the Hungarian presidency of the EU Council. By the looks of it, in the terms of practical action neither the Hungarian government nor the EP majority seems to put the founding values of the European Union first.

Is there any alternative to despair?



Ralf Grahn



P.S. The Franco-German blog vasistas? battles for the freedom of EU citizens on the Internet, so there is little risk of running out of challenges to discuss any time soon. @vasistas_blog is also worth following on Twitter.


P.S. 2: You can follow me on Facebook and on Twitter @RalfGrahn.

State minimalism and parliamentary absolutism in EU

Max Steinbeis on Verfassungsblog vividly described Belgium: Failed State mitten in Europa (12 January 2011). Given the slow but seemingly inexorable descent into oblivion, Belgium's greatest gift to Europe could be to cede an ample enough territory to establish the real European Capital (E.C.): Brussels E.C? (7 January 2011).

Square this tenuous statehood and EU membership with the fiery fundamentalist rhetoric about parliamentary sovereignty – nay, absolutism crowding out the rule of law - a stone's throw away, across the Channel in UK Westminster.

We wonder if, or for how long, Belgium remains a state, and we begin to think about how the assets and liabilities should be divided.

We wonder how long it takes before the British people wake up to demand a modern and comprehensive Constitution with fundamental rights, instead of an elective dictatorship based on unrepresentative elections.

United or not, Europe is excelling in diversity.



Ralf Grahn



P.S. On Think about it 4 you find promising young bloggers from around the world writing in English about climate change. Think 4 is organised by the European Journalism Centre.



P.S. 2: There are now five updates worth reading to my previous blog post on the EUSSR and the new Pilgrim Fathers.

Hungary: Is free speech a socialist issue?

Freedom of opinion is an ideal too important to be swept under the rug by vague promises by high officials, or limited to purely legal scrutiny of a patchwork of minimum standards, so we continue to look at the Euroblog discussion, as in: Hungarian media law and EU Council presidency: Evolving European opinion (8 January 2011).


Mathew Lowry

One of the earlier blog posts against the authoritarian media law in Hungary was Mathew Lowry: Censoring Hungarian Blogs during the Hungarian EU Presidency (originally 22 December 2010, but now updated four times).

Among the updates is a link to the text of Act CLXXXV of 2010 on media services and mass media in English on Politics.hu as well as a lot of comments discussing the law (48 by now).

Some among the 51 comments to Lowry's blog post are chilling reading for anyone who, like Gandhi, thinks that Western civilisation would be a good idea. Imposing legal sanctions on other than impartial reporting, as defined by a politically nominated authority of party hacks, is a far cry from freedom of speech, even if restricted to important events. There seems to be little protection against arbitrariness.

If commitments to democracy, freedom of speech and rule of law are luxuries of wealthy western states Hungarians (and other Central Europeans) can ill afford, their country should not have joined the Council of Europe or the European Union, which embody the continuing quest for higher standards of human rights and fundamental freedoms.

If official Hungary is opposed to improving fundamental rights of EU citizens, including free speech, the government should not have assumed the responsibility to represent the EU to its 501 million citizens or to champion human rights in the wider world.

As Mathew said, media freedom is not a left/right issue, it is a democracy/authoritarianism issue.

Mathew punctured the allegations that criticism of the media law came from socialists only or mainly, by mentioning in addition to The Economist known for its free market views:

- the French Govt (quite right wing, many would say)
- the German Govt (centre right)
- the UK Gov’t (a centre right coalition led by the UK’s Conservative Party)
- the Luxembourg Govt (centre-right)

The ones who proclaim that free speech is a socialist issue are offering socialist Europarties undeserved kudos. Free media becomes a socialist issue only if others betray our trust. Since appearances matter as well as substance, this puts the other political parties at European level under pressure to come out resoundingly in favour of improving media freedom, in Hungary, in Europe and universally.

A return to darker times is not an option EU citizens should have to contemplate.



Ralf Grahn



P.S. Does ”Onward and upward in 2011” mean Talking about the EU on the blog, on the official website of the European Commission in the United Kingdom, on Facebook or on Twitter? Antonia is not the only (social) media user and producer to wonder.

EPP president Wilfried Martens versus Free Press for Hungary

A short while ago 2,129 persons had already joined the new Facebook group Free Press For Hungary. International Version.

Established earlier, the Hungarian version had attracted 54,834 supporters against the authoritarian media law of the government of Viktor Orban.

There are many convincing media reports and blog posts about the essentials of the Hungarian censorship law, but translations into English and other EU languages would be most welcome for those who want to study the legislation in detail.


EPP ”dominant position”

The European People's Party likes to remind editors of its importance:

The EPP is the largest and most influential European-level political party of the centre-right, which currently includes 73 member-parties from 39 countries, the Presidents of the Commission, Council, and Parliament, 14 EU and 6 non-EU heads of state and government, 13 members of the European Commission and the largest Group in the European Parliament.

Update 2, 5 January 2011: Actually even this note is too modest. If the president of the Council means the rotating presidency, now held by EPP member party Fidesz in the Hungarian government of Viktor Orban, the text forgets to mention the president of the European Council, Herman Van Rompuy.


From EU competition law and policy we know the concept ”abuse of a dominant position”.

We have seen all too many examples of cronyism, turning a blind eye and abdication of responsiblity from the EPP in various situations.

This is why we have to ask: Quis custodiet ipsos custodes?


Top down reform

The real low water mark internationally was recorded by the EPP chairman Wilfried Martens who actively lauded the Hungarian media (censorship) law as an improvement ”with the aim to strengthen the freedom of the press, the culture of respect, the protection of minors and human dignity”.

I would like to see the biggest Europarty, the European People's Party, taking the greatest responsibility for our basic values, but instead I realise the need for a crash course from the top down concerning the European Convention on Human Rigths (ECHR), the founding values of the European Union (Article 2 TEU), the rights, freedoms and principles set out in the Charter of Fundamental Rigths of the European Union (Article 6 TEU) and the process to start determining a serious breach of the founding values (Article 7 TEU).

They are the cornerstones of European integration and for the citizens of the European Union, and they should be for the EPP (otherwise it is ineligible for Europarty funds).

Perhaps EU citizens could tweet @MartensEPP before his Europarty has become even more discredited.

I am not against the European People's Party. On the contrary, I want a better EPP and a better EU for voters, citizens and businesses of the European Union. Taking a principled approach is the only salvation from the current morass.


Update 5 January 2011: Thanks to Andreas Müllerleile who pointed out an English translation of the Hungarian Act on Media Services and Mass Media (about 200 pages).



Ralf Grahn


P.S. Despite the diminished stature of the presidency of the Council of the European Union, the government of Hungary has deservedly gained an astonishing amount of visibility in a few days, as seen on the front page of Bloggingportal.eu, the multiligual aggregator of 729 Euroblogs. Should we congratulate PM Orban on the achievement?

Help EPP group leader Joseph Daul defend media freedom

The leader of the European People's Party group in the European Parliament had this to say on Facebook with regard to fundamental rights of EU citizens, especially the Hungarian media law:

Let's see what the Commission says after it has examined the law. You remember the Roma case ? The Commission concluded that there was no breach of Eau law. But very few reported about that decision. So if this law contains dispositions contrary to EU law or international conventions, it will be changed. Let's see. But don't be naive: it is not purely because of their preoccupation for the rights of the media that socialists, liberals and greens atrack an EPP government.

Selective memory

Despite the conspicuous lack of support for the Commission, with regard to the Roma issue, Daul forgot to mention that the European Commission dropped the threat of infringement procedures after the French government submitted detailed documentation to the Commission, including draft legislative measures and a credible calendar for putting the procedural safeguards required under the EU's Free Movement Directive into French legislation by early 2011. When the demolition instruction to target Roma camps had leaked, the government had hastened to change it. France is still under Commission scrutiny.


Party political arguments - whose?

Scores of media reports and blog posts about the contents of the Hungarian gag law have seemed unequivocal enough to allow for clear condemnation long before now.

How much is still unclear after an article such as Slugger O'Toole ”Draconian press laws in the EU's new Presidency” (1 January 2011)?

Is it possible, in good faith, to avoid the impression that Daul is procrastinating or worse?

I feel offended when Daul equates criticism of the Hungarian censorship law with party political schemes to discredit an EPP government. I try to base my evaluation of the actions of the EU institutions and political actors on principles, primarily the interests of the citizens of the EU.

If various Europarties come out differently, it is not necessarily my fault.

I hope that I could see the EPP as an active protagonist for free speech, but I wonder if Daul's argument can be seen to be exempt from party political bias and cronyism. (Various Hungarian government representatives have dismissed criticism as party politically motivated.)

For me the European Convention on Human Rigths (ECHR), the founding values of the European Union (Article 2 TEU), the rights, freedoms and principles set out in the Charter of Fundamental Rigths of the European Union (Article 6 TEU) and the process to determine a serious breach of the founding values (Article 7 TEU) are the cornerstones of European integration and for the citizens of the European Union.

I would like to see the biggest Europarty, the EPP, taking the greatest responsibility for our basic values.

Dear readers, even if we are aware of the troubled history of the rule of law in France regarding freedom from political interference, please enlighten EPP group leader Joseph Daul about founding principles, non-discrimination and fundamental rights, as if the EU was intended to serve its citizens first.


Non-discrimination

Since the Treaty of Rome (1957), any discrimination on grounds of nationality is prohibited (now Article 18 TFEU).

Time enough for the basic principle of non-discrimination to sink in, methinks.

The Hungarian government of Viktor Orban is under fire for a number of controversial policies, including Commission scrutiny for alleged discrimination. According to the Wall Street Journal, thirteen large companies from France (Daul's country of origin, a founding member of the EEC), Germany, Austria, the Netherlands and the Czech Republic complained to the EU Commission, saying Hungary is targeting "select sectors and foreign companies in particular, to balance the state budget."

You can comment on this blog, tweet @JosephDaul or comment on Daul's new year wishes on Facebook for 2011 to become a better year.



Ralf Grahn


P.S. The Swedish MEP Gunnar Hökmark has shown that high profile EPP members can take a principled approach, as he has done in his blog posts ”Det blev ett nytt år – om Ungern, Estland och Sarkozy” with regard to the media law and ”Dåliga signaler från EU:s ordförandeland” concerning discrimination. Respect.

Viviane Reding and EU Justice

Justice and Home Affairs affect citizens and businesses more directly than most EU policies, and there is a whole lot going on.

The Lisbon Treaty entered into force a year ago, and the area of freedom, security and justice (AFSJ) now resembles 'normal' policies and internal actions of the European Union more than before.

The previous blog post looked briefly at Cecilia Malmström and EU Home Affairs, so now we take a peek at Viviane Reding and EU Justice.


EU Justice

Viviane Reding is vice-president of the European Commission and responsible for justice, fundamental rights and citizenship. Her Commission website is actively updated.

It took about six months, but then the Commission got separate Directorates-General for Home Affairs and Justice, both from 1 July 2010. However, they still seem to share the same culture. When I checked the Documentation centre and the Newsroom of DG Justice, they looked as lethargic as the corresponding web pages of their erstwhile fellow workers.

I wonder why.


JHA Council

Justice and Home Affairs (JHA) share the same Council configuration. The conclusions from the last meeting of this Council configuration during the Belgian presidency run to 37 pages, which gives us an indication of highly active policy areas:

Press release: 3051st Council meeting (Justice and Home Affairs), 2-3 December 2010 (provisional version; document 16918/10)

As with home affairs, there is a need for critical but constructive reporting and discussion about EU justice, fundamental rights and citizenship issues.


Citizenship report

I have been following EU citizenship issues on my blogs, so we might as well quote the Council conclusions with regard to the report from the Commission COM(2010) 603:

2010 EU citizenship report

The Council took note of the Commission's 2010 EU citizenship report: Dismantling the obstacles to EU citizens' rights (15936/10). The report analysis the areas where citizens are facing obstacles in the exercise of their rights and proposes 25 initiatives for tackling these obstacles.

You can find the initiatives in the blog post 'EU citizenship: 25 proposals' as well.



Ralf Grahn



P.S. 'The Blog with the European perspective' is how the team blog Kosmopolito describes itself; now closely following Wikileaks / Cablegate.

EU: Preventing human rights infringements – CEPS proposal

In a research paper from the Centre for European Policy Studies (CEPS) on the French Roma affair, the authors made an interesting proposal to strengthen human rights monitoring in the European Union. See:



Sergio Carrera and Anaïs Faure Atger: L’Affaire des Roms - A Challenge to the EU’s Area of Freedom, Security and Justice (CEPS Paper in Liberty and Security in Europe, September 2010; 20 pages).

The researchers demonstrated the weakness and slowness of the existing ‘ex post’ enforcement procedures. In order to prevent further damage, the authors proposed a new mechanism to stop suspected violations (page 17):

The EU should therefore develop a new (preventive) enforcement mechanism that would complement the existing ones (the infringement and the fundamental rights proceedings). This procedure would be primarily destined to ensure that contested national policies and practices falling within the remits of EU law and fundamental rights (and applying exceptions and/or derogations to European rights and freedoms) would be immediately ‘frozen’ while the formal opening of infringement or fundamental rights proceedings would be still be considered and/or under study by the relevant services of the European institutions. For such an ex ante procedure to ensure its full effectiveness, careful attention should be paid at times of ensuring its overall objectivity, impartiality and accountability. It would also be necessary that the opening of the procedure would not only lie in the hands of the Commission, but that the latter could be also launched on the initiative of the European Parliament.

On page 18 Carrera and Faure Atger added some thoughts about this injunction-like freezing procedure, which would build on documented violations of citizens’ rights:

The new freezing enforcement procedure would be activated through the existence of ‘evidence’ provided (for instance) by the European Agency of Fundamental Rights (FRA) along with its Fundamental Rights Platform (FRP) of Non-Governmental Organizations, which could be also tasked ‘to alert’ any suspected breaches of EU law and fundamental rights by EU member states. The next step would be the revision by the FRA of the pertinence of such allegations before a formal activation is put to the EU institutions. The existence of this EU-wide network for cooperation and information exchange set to act as the main channel for the FRA to engage civil society would enable an EU-wide coverage of the implementation of EU law in an enlarged EU. They could thus be responsible for informing/alerting if a violation of fundamental rights or EU law is suspected. The involvement of a network of independent experts who can be consulted quickly to present a report in relevant member states should also be another initiative to be considered in the implementation of such a procedure.

I noted this interesting proposal in a blog post yesterday: EU citizenship: France’s Roma expulsions documented by CEPS (11 October 2010).



There have been positive reactions from two Eurobloggers I value.


The writer of The European Citizen blog, Eurocentric (Conor Slowey) commented on my blog post. According to him, giving the European Parliament resolutions more force when it comes to breaching EU citizen rights could be a good step to ensure that EU citizenship rights are more effectively enforced (and in a timely manner).

However, how to improve enforcement caused Eurocentric some concern. Perhaps an independent Citizenship Ombudsman for monitoring citizenship rights across the EU might be a better way to ensure independent action.



In the blog post CEPS Proposes Freezing Enforcement Procedure (11 October 2010), Vihar Georgiev on the European Union Law blog presented a favourable initial reaction to the preventive mechanism.




As part of the Brussels Festival des libertés, the think tank CEPS and the ENACT research project (Enacting European citizenship) arrange a public debate On the margins of European citizenship, on 27 October 2010. This discussion may present an opportunity to address the weakness and lack of timeliness of existing procedures for monitoring the fundamental rights of EU citizens. Hopefully, we will see other reactions to the proposed freezing procedure by then.




Ralf Grahn



P.S. Nowadays it is increasingly hard to find European enterprises, public authorities or interest groups without an active social media presence, or a stake in European Union affairs. Politics, policies, economics and law at a EU level are becoming more important in a globalising world, at least if Europeans still want to weigh in.

EU-related blogs are a significant aspect of the emerging European online public space. There are now 672 673 Euroblogs, or blogs related to European Union (and Council of Europe) affairs, listed on Bloggingportal.eu, the multilingual aggregator.



You can take a look at the stream of all new posts, or follow the editors’ choices on the front page. You can also subscribe to the streams (all or highlighted) and the newsletters (daily or weekly) without cost.



Bloggingportal.eu needs a few more voluntary editors for the daily tagging of posts according to subjects. Why not increase your understanding of European affairs, improve your language skills and do something useful by joining the team of editors?

EU citizenship: France’s Roma expulsions documented by CEPS

France’s expulsion of Roma shows that the rights of EU citizens are still in a formative phase, and issues of scope and exceptions concern other mobile Europeans as well.

The Centre for European Policy Studies (CEPS) has published a welcome research paper on the French Roma affair:



Sergio Carrera and Anaïs Faure Atger: L’Affaire des Roms - A Challenge to the EU’s Area of Freedom, Security and Justice (CEPS Paper in Liberty and Security in Europe, September 2010)


One of the important contributions is that the authors document the pronouncements and actions of the French government in detail. This is enough to make the paper a valuable reference tool for all interested, but it offers more.

Carrera and Faure Atger also present how the other players have acted, including the tardy and initially weak response by the European Commission, the ‘guardian of the Treaties’.

The paper reveals the weaknesses of the current EU law monitoring system, and it argues that the current ‘ex post’ enforcement tools are ineffective in halting breaches of EU fundamental rights. In cases like the Roma expulsions the European Union needs an ‘ex ante’ freezing order, which could be launched by the European Parliament, not only the Commission.




Ralf Grahn



P.S. Nowadays it is increasingly hard to find European enterprises, public authorities or interest groups without an active social media presence, or a stake in European Union affairs. Politics, policies, economics and law at a EU level are becoming more important in a globalising world, at least if Europeans still want to weigh in.

EU-related blogs are a significant aspect of the emerging European online public space. There are now 672 Euroblogs, or blogs related to European Union (and Council of Europe) affairs, listed on Bloggingportal.eu, the multilingual aggregator.



You can take a look at the stream of all new posts, or follow the editors’ choices on the front page. You can also subscribe to the streams (all or highlighted) and the newsletters (daily or weekly) without cost.



Bloggingportal.eu needs a few more voluntary editors for the daily tagging of posts according to subjects. Why not increase your understanding of European affairs, improve your language skills and do something useful by joining the team of editors?

This sceptred isle or Sallust? The British are Europeans – but unaware for how long?

In an earlier post we discussed the absence of a (modern) codified Constitution and the notion of citizenship (instead, subjects of the Crown) in the United Kingdom. Many of the sources, features and procedures of the British constitutional and political system are antiquated. Who in his right mind would today resist a codified Constitution, institute a Monarchy or establish a House of Lords?



The Parliament in Westminster (House of Commons) was an important model internationally, but the first-past-the-post system does not lead to fair representation. The domestic climate in the UK regarding modern fundamental rights has been hesitant, when not outright hostile, as is current public opinion on the European Union.

Legally protected fundamental rights for citizens (or everyone within the jurisdiction) against encroachment by government are cornerstones of modern liberal political entities.



All EU member states are parties to the mother of human rights in Europe, the European Convention on Human Rights (ECHR; CETS No. 005 including amending protocols), which the European Union itself has pledged to accede to.



The EU also houses the next generation daughter, the more comprehensive and modern Charter of Fundamental Rights of the European Union, legally binding since the Treaty of Lisbon came into force on 1 December 2009.



Britain, Poland and the Czech Republic have blotted their reputations by distancing themselves from the community of values formed around the EU Charter, but the Charter will still bind the institutions, bodies, offices and agencies of the European Union (Article 51), offering legal protection to all citizens of the EU, including the people of the laggard nations.



Looking at present and future European relations through the prism of the Battle of Britain, totally negating that Britain and the British have representation in the European Union, painting eurozone bank stress tests as pure self-deception, rejoicing at a member state (Hungary) telling the EU and the IMF to “bugger off” [until it needs massive refinancing next year], transport of joy on ConservativeHome at the absence of the EU flag when president Nicolas Sarkozy visited London (via Jason O’Mahony), a proposal to repeal the Act on Britain’s [reduced] share in financing the European Union (via Euromove) are but brief glimpses of constant sowing of discord and disinformation, intended to get the United Kingdom out of the EU or from engaging constructively even “with” (instead of in) Europe.



Much of English discourse on European integration shares the Taliban feeling that they have nothing to gain and nothing to learn from (the rest of) the civilised world. However, are these feelings of superiority well founded, when we look at the constitutional and political system, or the relationship to citizenship and fundamental rights?



Is Shakespeare’s beautiful poetry, “this sceptred isle, ... This blessed plot, this earth, this realm, this England” (written in approximately 1595), really a healthy philosophical foundation for the fundamental rights, or the future security and prosperity of UK subjects and EU citizens in a globalising world?



For as long as it takes for British EU citizens as a whole to become willing and able to create a constructive and mutually learning relationship in the European Union, at least the rest of the 501 million inhabitants of the EU have cause to reflect on Sallust’s wise words in the Jugurthine War about the effects of discord on political constructs:

Nam concordia parvae res crescunt, discordia maxumae dilabuntur.

The British are Europeans; they are in Europe. When is awareness going to set in? Is Sallust going to age another two millennia before it happens?




Ralf Grahn



P.S. Comments relevant to the topic discussed in each Grahnlaw blog post are most welcome. However, the number of spam comments has skyrocketed. This is the sad reason for comment moderation, so it may take a while before your pertinent comment appears.

It is easier to understand a language than to use it correctly. As Eurobloggers we could and should promote interaction among Europeans across borders and between linguistic communities. Grahnlaw has adopted a multilingual comment policy:

I do my best to read comments in Danish, Dutch, English, Finnish, French, German, Italian, Norwegian, Portuguese, Spanish or Swedish, even if the Grahnlaw blog and my possible replies are in English.



The European Commission in the UK arranges a Day of Multilingual Blogging on 26 September 2010, joined by the multilingual aggregator Bloggingportal.eu and individual Eurobloggers. Spread the word and start preparing for the event.

UK versus USA and EU: Oceans apart on fundamental rights

After yesterday’s blog posts on a new pocket-sized version of the European Convention on Human Rights (ECHR) and basic information about the Council of Europe and the EU Charter of Fundamental Rights, it is time to turn to the odd man out among civilised nations: the United Kingdom.



In the Declaration of Independence (1776), by the Second Continental Congress, the thirteen united States of America turned the tables on King George III:

We hold these Truths to be self-evident, that all Men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the Pursuit of Happiness ─ That to secure these Rights, Governments are instituted among Men, deriving their just Powers from the Consent of the Governed, ...

Principles of the English Bill of Rights (1689) and Enlightenment philosophy also flowed into the Constitution of the United States of America (1787), including the first ten amendments known as the United States Bill of Rights, which came into effect in 1791.



In the United Kingdom, absent the notion of citizenship and a codified constitution, subjects of the Crown enjoy certain rights based on a patchwork of domestic statutory provisions and common law rules.



The set of laws and principles under which the United Kingdom is governed form the uncodified constitution. According to the fundamental doctrine of Parliamentary sovereignty, the UK Parliament can change any law including the constitutional rules by a simple Act of Parliament, so domestically the rights of a British subject hang by a thread, subject to the whims of each Parliament in Westminster.



English nationalists seem to worship a ragtag bag of domestic documents from Magna Carta onwards with fervour, as if these parchments and papers somehow conferred superior protection for Englishmen compared to the human rights enshrined in other EU countries or the United States. Have these fervent Crown subjects even read the Magna Carta?



The Magna Carta is a historically important document, but so is the Code of Hammurabi.



The Conservative election manifesto 2010 still saw superior human rights and fundamental freedoms as an encroachment [on Parliamentary sovereignty] and pledged to replace the Human Rights Act with a UK Bill of Rights (page 79).



Intellectually and politically an unqualified statement like that would have placed the United Kingdom on par with Belarus with regard to European human rights standards.



The latest general election led to a coalition government between the Conservatives and the Liberal Democrats, so the UK Coalition programme 2010 shows restraining influences on the government’s urge to gain the upper hand against judges and the people (page 11):

We will establish a Commission to investigate the creation of a British Bill of Rights that incorporates and builds on all our obligations under the European Convention on Human Rights, ensures that these rights continue to be enshrined in British law, and protects and extends British liberties. We will seek to promote a better understanding of the true scope of these obligations and liberties.

Thanks to the Liberal Democrats, rights under the ECHR will be given continued protection, and there is even talk of potentially extending the rights of British subjects.

It is still amazing: Where in the civilised world of today can you, as the Conservatives, emerge as the biggest party in free and fair elections on a promise to curtail human rights?


Without UK membership in the European Union (indirectly benefiting from the EU Charter of Fundamental Rights despite opting out) and the Council of Europe, with the 1950 European Convention on Human Rights (ECHR) finally brought into force in 2000 by the UK Human Rights Act 1998, individuals in Britain would have few guarantees against excesses by government or parliament.

The media climate and the political atmosphere in the United Kingdom are still oceans apart from the fundamental rights traditions protecting citizens across the Atlantic Ocean and the English Channel.



I wonder why.




Ralf Grahn



P.S. The Grahnlaw blog invites comments relevant to the topics discussed, but the number and the variety of spam comments seems to be increasing steadily. This is the sad reason for comment moderation, so it may take a while before your pertinent comment appears.

It is easier to understand a language than to use it correctly. As Eurobloggers we could and should promote interaction among Europeans across borders and between linguistic communities. Grahnlaw has adopted a multilingual comment policy:

I do my best to read comments in Danish, Dutch, English, Finnish, French, German, Italian, Norwegian, Portuguese, Spanish or Swedish, even if the Grahnlaw blog and my possible replies are in English.

Reding and Malmström: Urgent & complete redesign of EU Commission website needed

When the new Barroso II Commission finally is allowed to start working, at least two Commissioners face the urgent task to update the web pages and step up the communication effort of their services. They are Viviane Reding (Justice, Fundamental Rights and Citizenship) and Cecilia Malmström (Home Affairs).



For some inexplicable reason, we have seen that the current Directorate-General Justice, Freedom and Security would remain intact, although the European Union is getting a “justice minister” and an “interior minister”.

If true, this means that the two Commissioners will have to agree on the steps to take, but one thing is crystal clear. In these policy areas with a direct impact on EU citizens, something needs to be done – and quickly.



The briefest tour of the web pages of DG Justice, Freedom and Security makes it abundantly clear that the website has to be redesigned and updated. Currently this DG probably has the worst web presence among the Commission services.



If Director-General Jonathan Faull has been mentioned as the new chief of Internal Market and Services for Commissioner Michel Barnier, directing communications and web design cannot have been among the merits counted for the new job.




Ralf Grahn







P.S. Cross-border communication is a necessity in the European Union and beyond, with scrutiny by active citizens. At the same time Euroblogs are an agreeable way to brush up one’s skills in foreign languages.

While resolutely outside the European Union, Norway is part of the European Economic Area (EEA). Thus, EU has profound implications for Norway, and Norwegian opinions are of European interest.

Written by Norwegian journalists, Europabloggen.no (in Norwegian) bridges the communication gap between the EU and Norway.



Europabloggen.no is listed among 522 great Euroblogs (at the latest count) on growing multilingual Bloggingportal.eu, your useful one-stop-shop for fact, opinion and gossip on European affairs, i.a. politics, more than thirty policy areas, communication, economics, finance, business, civil society and law.

If you are interested in the EU or the euroblogosphere, you can also subscribe to the RSS feed for new blog posts appearing on Bloggingportal.eu.

By the way, I also discuss European issues in Finnish on Eurooppaoikeus and in Swedish on Grahnblawg.

European Parliament to vote on EU-USA TFTP (SWIFT) interim Agreement (Updated)

After yesterday’s debate in the European Parliament it looks like the EP and the Council have found a way forward, at least with regard to the procedure to follow. See the EP’s press release: SWIFT: European Parliament to vote soon on the interim agreement (20 January 2010).

The European Parliament will vote on the interim agreement and it will be allowed to participate fully in the drafting of the long term agreement, according to the Spanish presidency of the Council of the European Union.

The Council’s explanations about delays caused by translation sound a bit fishy, because the interim agreement should have existed in all the official EU languages on 30 November 2009, when it was adopted by the Council, and it was published in the Official Journal of the European Union 13 January 2010. If a draft or aims for the long term agreement exist, one would expect at least an English language version to be available.

The European Parliament has previously stated its concerns regarding fundamental rights. Now it looks as if it is going to be able to check how the Council intends to meet them.

Update 21 January 2010, about 17:05 EET: The EP's press release has been updated. The vote has now been scheduled for 9 February 2010.




Ralf Grahn




P.S. If business leaders, top officials and political heavyweights have a European newspaper in common, it is The Financial Times. FT bureau chief Tony Barber writes the recommendable Brussels blog (Financial Times), listed together with more than 500 great euroblogs on growing multilingual Bloggingportal.eu, your useful one-stop-shop for fact, opinion and gossip on European affairs, i.a. politics, policies, communication, economics, finance, business, civil society and law. You can also subscribe to the RSS feed for new blog posts appearing on Bloggingportal.eu.

By the way, I also discuss European issues in Finnish on Eurooppaoikeus and in Swedish on Grahnblawg.

Puzzling EP action over EU-USA bank data deal?

What is happening between the European Parliament and the Council? I have to admit that I was puzzled, even shocked when I saw that the EP is threatening the EU Council with political blackmail.

EUobserver reports that the European Parliament threatens to derail EU-US bank data deal (18 January 2010). According to the article, EP president Jerzy Buzek has sent a second letter to the Council, demanding more information about the so called interim SWIFT agreement, also known by the acronym TFTP (Terrorist Finance Tracking Program).

The European Parliament wants full access to information related to the interim agreement, and the EP wants its concerns to be fully reflected in the negotiating mandate for the planned long-term agreement after the end of October, writes Valentina Pop for EUobserver.com.


Late November 2009 Grahnlaw wrote about the upcoming decision of the Council of the European Union to approve the so called SWIFT Agreement to hand over European banking data to the United States, and early December we reported on the decision, taken on the last day before the Lisbon Treaty entered into force.

The Decision by the Council of the European Union on the signing of the so called SWIFT or TFTP Agreement was later officially published, which we reported on:



COUNCIL DECISION 2010/16/CFSP/JHA of 30 November 2009 on the signing, on behalf of the European Union, of the Agreement between the European Union and the United States of America on the processing and transfer of Financial Messaging Data from the European Union to the United States for purposes of the Terrorist Finance Tracking Program; Official Journal of the European Union (OJEU) 13.1.2010 L 8/9.


This contained the formal decision on signing, as well as a provision and declaration on provisional application of the Agreement.



The annexed contents of the TFTP / SWIFT Agreement were here.




Parliament v Council

The Council deliberately adopted the TFTP / SWIFT Agreement on the last day before the Lisbon Treaty entered into force and the European Parliament became more fully involved in the conclusion of international agreements. (Cf Article 218 TFEU).

The news report seems to indicate that the EP action stems from the Parliament’s desire to “be immediately and fully informed at all stages of the process” (Article 218(10) TFUE).

Fair enough, the European Parliament wants to be taken into account from day one, even if the issue may seem more like a continuation of the interim solution than a totally new agreement.

The EUobserver article also seems to indicate that the European Parliament is not convinced about the privacy and data protection guarantees for European businesses and citizens in the interim agreement.



On 17 September 2009 the European Parliament had adopted a non-legislative resolution P7_TA(2009)0016 on the envisaged international agreement to make available to the United States Treasury Department financial payment messaging data to prevent and combat terrorism and terrorism financing.

The resolution doubted if a separate agreement was the right way to proceed, given the framework of the EU-US agreement on legal assistance to enter into force on 1 January 2010, and it went on to lay down a number of “minimum” assurances the EP found necessary.

If I understand correctly, the European Parliament is not only showing off, but has procedural and substantive concerns it wants to see addressed.

At first I was a bit shocked when I read about the EP’s threat of political blackmail, but after reading the resolution I think that the Spanish presidency of the Council of the European Union should come up with a constructive and cooperative response today in Strasbourg.

The rule of law, privacy and data protection are fundamental EU values. They are not to be treated lightly, even in the combat against terrorism, the importance of which the European Parliament stressed in its resolution:

Recalls its determination to fight terrorism and its firm belief in the need to strike the right balance between security measures and the protection of civil liberties and fundamental rights, while ensuring the utmost respect for privacy and data protection; reaffirms that necessity and proportionality are key principles without which the fight against terrorism will never be effective.

Ralf Grahn




P.S. On Verfassungsblog (in German) Max Steinbeis writes expertly on German and European issues of constitutional law. Verfassungsblog is a fine example of a specialist blog in the Euroblogosphere, listed together with more than 500 great euroblogs on growing multilingual Bloggingportal.eu, a useful one-stop-shop for fact, opinion and gossip on European affairs, i.a. politics, policies, communication, economics, finance, business, civil society and law.

By the way, euroblogs are an excellent means to brush up your foreign language skills while learning about or debating our common challenges.

Minaret-banning Switzerland chairing the Council of Europe

Twittering Julien Frisch was the first to make me aware of the matter, and later I saw Carl Bildt mention it on his blog, Alla dessa dagar. I decided to take a look at the web pages of the Council of Europe:

Switzerland has taken over the chairmanship of the Committee of Ministers, the principal decision-making body of the Council of Europe, for a period of 6 months. From 18 November 2009 to 11 May 2010, Switzerland will focus on 3 main areas: protection of human rights and the primacy of law, strengthening of democratic institutions, and increasing the transparency and the effectiveness of the Council of Europe.

The priorities of the Swiss chairmanship are introduced in the following terms:

Switzerland attaches paramount importance to respect for the values underlying the European identity. Continuing the previous Chairmanships’ efforts, Switzerland will maintain the emphasis on respect for human rights, democracy and the rule of law, identified at the Warsaw Summit in 2005 as the Council of Europe’s core objective.

It must be pretty embarrassing for representatives of the Swiss government to chair the decision-making body of the CoE, when the government’s good intentions have been disavowed by its own people.

The other member states may think twice when they hear suggestions along these lines:

Switzerland, a country which possesses a long experience of participatory democracy, undertakes to strengthen democratic structures for citizen participation.

A pretty helvetic confederation, if I may say so.



Ralf Grahn



P.S. Do you find EUSSR myths fascinating? Are we EU citizens worth a better European Union? Educate yourself! There are already 487 Euroblogs aggregated on multilingual Bloggingportal.eu. You can access all the posts on the Posts page, or concentrate on the editors’ choices on the Home page. On most of the blogs you can comment and discuss our common European future.

Ethics and law of Swiss minaret ban

First, a few thoughts on how we should try to approach difficult questions concerning freedom of thought, conscience and religion. The general understanding in Europe has been that there are universal rights. In Europe the secular state does its best to guarantee that the rights of all are respected, as long as they do not harm the freedom of others to practice their beliefs. Outside Europe we try to promote human rights.

The Council of Europe and the European Union are built on the premises of human rights and fundamental freedoms. Membership requires respect for fundamental rights.

Switzerland is still a member of the Council of Europe, party to the European Convention on Human Rights and subject to the European Court of Human Rights. The Swiss can contravene the European Convention only by renouncing their membership.

The exact scope for different rights is a difficult issue, where we need discussion at European level to find satisfactory solutions. It is not easy, and we will probably see trial and error.

If we want to find principles applicable to all on issues concerning religious symbols (headscarves or crucifixes in secular state schools, for instance), we have to look towards ethical rules:

The Golden Rule, reciprocity, Kant’s categorical imperative.


Did the Swiss ban church towers and belfries as well? If not, then their vote is discriminatory.


Legal analysis

Here are a few examples of lawyers who have analysed the Swiss minaret ban on their blogs:



Actualités du droit, Gilles Devers: Minarets: C’est illégal, et la Suisse devra renoncer (30 November 2009)



Verfassungsblog, Max Steinbeis: Schweiz: Diktatur der Mehrheit (30 November 2009)




European Union Law, Vihar Georgiev: The Swiss Ban on Minarets: Legal implications (30 November 2009)


***


The blogs discuss the matters from different angles (Swiss, European and international law; referendums and minority rights), but their conclusions are clear. There is a contradiction between the Swiss referendum result and the international obligations of Switzerland.

Let the corrective mechanisms take over. They can at least right the wrong in a legal sense, although they can do little to improve the image of Switzerland and the Swiss.



Ralf Grahn



P.S. Do you find EUSSR myths fascinating? Are we EU citizens worth a better European Union? Educate yourself! There are already 487 Euroblogs aggregated on multilingual Bloggingportal.eu. You can access all the posts on the Posts page, or concentrate on the editors’ choices on the Home page. On most of the blogs you can comment and discuss our common European future.

Mainstream media and EU-USA SWIFT agreement

Have civil society and blogging communities put the EU-US SWIFT agreement on the pages of the mainstream media, or is it the other way around?



Without possessing the philosopher’s stone on that question, I am able to report that at least some mainstream media do report on the problems associated with the “free flow” of Europeans’ financial data to the US intelligence community.

Do the results of my haphazard searches add to my confidence in mainstream media?




In the news



Is the signing of the SWIFT agreement just a formality? Not if you believe the AFP report: Austria, Germany blocking EU-US data deal: officials (27 November 2009). According to the report, Austria and Germany were still blocking the accord on Friday. Discussions were expected during the weekend, but it looks like the choice is about the duration of the agreement: six, nine or twelve months.




Europolitics, Brian Beary: Parliament pushes to delay SWIFT bank records agreement (27 November 2009). The European Parliament, in a letter by EP president Jerzy Buzek, has made a last minute appeal to the Swedish EU Council presidency to pull the agreement off the agenda. The EP wants to be fully involved under the Lisbon Treaty, which enters into force on 1 December 2009.



Spiegel Online, Hans-Jürgen Schlamp: Spying on Terrorist Cash Flows ─ EU to Allow US Access to Bank Transaction Data (27 November 2009) says that it looks like the EU is going to agree to the controversial SWIFT deal, referring to massive US pressure. According to this report, both Germany and Austria have given in and the EU Council is expected to sign an agreement “politically divisive and of dubious legality”.



Deutsche Welle: Datenschutz – Erlaubt Europa US-Konto-Spionage? (27 November 2009) presents the member state governments railroading the EU-US agreement while bypassing the European Parliament.



EUobserver, Valentina Pop: MEPs flex legal muscles over police reforms ahead of new treaty (25 November 2009) noted that an initiative by the Green group to thwart the EU-US bank data transfer deal fell through, and member states’ ministers were likely to adopt the SWIFT banking agreement on Monday. According to diplomatic sources, the prospect of having to start from scratch was incentive enough for the member states to adopt the deal on Monday.



Baltic Review, by eurotopics: Brussels too soft on the US (26 November 2009) publishes an opinion by Die Presse: The SWIFT deal is a further example of Washington not taking the EU seriously.



Tagesschau: Länder stemmen sich gegen SWIFT-Abkommen (27 November 2009) notes that the Bundesrat (where the Länder are represented) has demanded better data protection, but that the resolution is not legally binding on the German federal government. German politicians and the banking sector have criticised the low data protection standards. The German data protection supervisor Peter Schaar had criticised the SWIFT deal as a massive breach of fundamental rights, and signing the agreement would lead to would lead to legal challenges in the German federal constitutional court and the European Court of Justice. Schaar could not see the agreement as constitutional. Politically it was still unclear if Germany with abstain or vote against on Monday, although CDU spokesman Hans-Peter Uhl considered an agreement necessary in the fight against terrorism.



Heise Online, Stefan Krempl: Bundesrat warnt vor Wirtschaftsspionage durch SWIFT-Abkommen (28 November 2008) is quality reporting with useful links, i.a. to the decision by the Bundesrat (Drucksache 788/09; 27 November 2009), which details the concerns of the German Länder.



Romandie News has published an AFP bulletin: Terrorisme : les Européens divisés sur l’accès aux données bancaires (27 November 2009).

There are a number of newspaper articles in German quality media such as Die Zeit, Die Welt and others (but I only have one life).


***


Watchdogs?


During my somewhat random search, I have noticed that there has been serious and continuing discussion about the SWIFT agreement issues in German(y).

By the way, to cut a few historical corners, the Federal Republic of Germany was essentially an American creation, endowed with a Basic Law designed to respect parliamentary procedures and enshrining human rights. Right now it looks like the lessons have succeeded, with Germany just about the only place where fundamental rights are taken seriously, and the old US teachers in need of enlisting as pupils.

In addition to German media, there are also some fairly ‘non-national’ reports by news agencies or media with an EU focus or international readership, but traditional national media seem to have been fast asleep, unworried by their governments and politicians, too placid to dig on their own.

Naturally, I may be completely mistaken, having missed journalistic feats in languages unknown by me (and unrepresented in my web searches), but this is my first impression. Pray, tell me that I’m wrong.

Are social media, such as blogs, responsible for this decline, too?




Ralf Grahn



P.S. Do you find EUSSR myths fascinating? Are we EU citizens worth a better European Union? Educate yourself! There are already 487 Euroblogs aggregated on multilingual Bloggingportal.eu. You can access all the posts or concentrate on the editors’ choice. On most of the blogs you can comment and discuss our common European future.

EU & USA: SWIFT agreement ─ Sweden “informs”

Yesterday, in the blog post SWIFTly signed – Long term damage? (Updated), I criticised the Swedish EU Council presidency for acting against its proclaimed principles of openness, transparency and accessibility with regard to the proposed bank data transfer deal with the United States of America.

Important as the fight against terrorism is, expediency should not override democratic scrutiny and open debate, when fundamental rights are at stake.

Have matters improved since early Friday afternoon?

Actually, Friday brought some improvements, but left the fate of the SWIFT agreement between the EU and the US hanging in the air.


Presidency and Council information



During Friday, the Swedish presidency of the Council of the European Union published information about the Council meeting Monday 30 November 2009, Justice and Home Affairs configuration: Stockholm Programme and work to combat human trafficking at Council meeting. The general press release highlights “some of the issues”, but not the SWIFT agreement.



The provisional agenda of the JHA Council meeting (dated 13 November 2009; document CM 4735/09) still mentions the bank data transfer agreement, without any reference to documents of substantive value:

“Council Decision authorising the signing of an Agreement between the European Union and the United States of America on the processing and transfer of Financial Messaging Data for purposes of the Terrorist Finance Tracking Programme
- Adoption”

Understandably, the short pre-meeting video with ambassador Christian Danielsson on preparation in Coreper II concentrates on the strategically important five year Stockholm Programme, which covers the whole of the evolving area of freedom, security and justice, but the interview makes no mention of the SWIFT deal.



The Background note on the Justice and Home Affairs Council 30 November to 1 December 2009, by the Council Press service (dated 27 November 2009), breaks the silence by mentioning the US agreement among the highlighted questions (front page):

“Ministers will also discuss a draft EU-US agreement on financial messaging data for counterterrorism investigations.”

Under Home Affairs (Monday, 30 November), the background note presents the following general information about the financial data transfer agreement (page 5):

“EU-US agreement on financial messaging data for counter-terrorism investigations

The Council will discuss an EU-US agreement on the processing and transfer of financial messaging data for purposes of the US Terrorist Finance Tracking Programme (TFTP).

The negotiations on the agreement started in July 2009 and responded to a decision by the Society for Worldwide Interbank Financial Telecommunication (SWIFT) to store its European financial messaging data no longer in a database located in the US, but only in Europe. The agreement aims to continue to allow the US Department of the Treasury to receive European financial messaging data for counter-terrorism investigations, while ensuring an adequate level of data protection.

Under the Terrorist Finance Tracking Programme (TFTP), the US Department of the Treasury seeks to identify, track and pursue suspected terrorists and their providers of finance. It was set up shortly after the terrorist attacks of 11 September 2001.

Relevant results of the US analysis have been and will, under the draft agreement, continue to be shared with EU member states. A report by the former French investigating judge Jean-Luis Brugière, commissioned by the Commission, concluded in December 2008 that the TFTP had generated considerable intelligence value also to the EU member states.

SWIFT is a Belgium-based company which operates a worldwide messaging system used to transmit, inter alia, bank transaction information. It has been estimated that SWIFT handles 80% of the worldwide traffic for electronic value transfers.”

***


Where do we stand?


We note that the background note Friday says “discuss a draft”, not “sign” or “approve”. Does this mean that concluding the agreement is off the agenda Monday, and that the governments are going to give the EU’s data protection rules and parliamentary procedures some serious thought?

We also note that the information on offer – although a huge improvement on past practice – is bland, incomplete and one-sided. Privacy, data protection or fundamental rights are not mentioned, but valuable intelligence is. There are no documentary references to enlighten debate.




The SWIFT agreement is not among the issues debated publicly on the JHA webcast Monday 30 November 2009.

The fight against terrorism is too important to spoil by shady dealings and sowing mistrust in an EU on the threshold of becoming a union, “in which decisions are taken as openly as possible and as closely as possible to the citizen”.

Admittedly, proceedings behind closed doors have created a problem with the end of the year approaching fast. Still, I am reasonably optimistic that, given the opportunity, the European Parliament would do its bit to look for temporary solution if the Council agrees to trust our system of representative democracy.




Ralf Grahn



P.S. Do you find EUSSR myths fascinating? Are we EU citizens worth a better European Union? Educate yourself! There are already 487 Euroblogs aggregated on multilingual Bloggingportal.eu. You can access all the posts or concentrate on the editors’ choice. On most of the blogs you can comment and discuss our common European future.

Europe against the death penalty

The Council of Europe and the European Union work to eradicate the death penalty, elsewhere as already in Europe.

As a reminder this Saturday, 10 October 2009, the World Day Against the Death Penalty, the joint statement by these European organisations:



Joint Statement by the Presidency of the European Union and the Chairmanship of the Committee of Ministers of the Council of Europe


Recognising the importance of the "World Day Against the Death Penalty", which has taken place on 10 October every year since 2003, the Swedish Presidency of the European Union and the Slovenian Chairmanship of the Committee of Ministers of the Council of Europe welcome the celebration of the third European Day Against the Death Penalty.

The Presidency of the European Union and the Chairmanship of the Committee of Ministers of the Council of Europe recall that the death penalty is contrary to the fundamental rights on which the European Union and the Council of Europe are founded.

The abolition of the death penalty is enshrined in Protocols Nos 6 and 13 to the European Convention on Human Rights and Fundamental Freedoms and reflected in Article 2 of the European Union Charter of Fundamental Rights. Abolition is a condition which States are required to meet in order to become members of the Council of Europe or the European Union.

The Presidency of the European Union and the Chairmanship of the Committee of Ministers of the Council of Europe share the vision of a death penalty-free European continent as a further step towards global abolition and stress the importance of persevering in the pursuit of actions aimed at abolishing the death penalty throughout the world, by making representations to third countries, acting within multilateral arenas and supporting the action of civil society towards this end.

***

Council of Europe


Here are two extracts from the Council of Europe’s Factsheet on the death penalty:


The Council of Europe was created to unite Europe around the shared principles of the rule of law, respect for human rights and democracy. The European Convention on Human Rights, which was adopted in 1950, states that everyone’s life shall be protected by law and no one shall be deprived of life. However, the Convention did allow the death penalty to be imposed when it was provided for by law.

In the early 1980s, the Council of Europe became a pioneer for the abolition of capital punishment, considering it to be a grave violation of human rights. The organisation’s Parliamentary Assembly gradually persuaded governments to help Europe become the first region in the world to permanently outlaw the death penalty. In 1982, the Council of Europe adopted Protocol No. 6 to the European Convention on Human Rights, which became the first legally-binding instrument abolishing the death penalty in peacetime. The protocol has today been ratified by 46 of the Council’s 47 member states; the one exception – Russia – has committed itself to ratification.

In 1989, abolition of the death penalty was made a condition of accession for all new member states. Since then, all countries are committed to introducing an immediate moratorium on executions and ratifying Protocol No. 6 when joining the organisation. A number of mechanisms have been set up to monitor the respect of those commitments while assisting governments with their implementation.

In 2002, an important step was taken by the Council to ban the death penalty in all circumstances with the adoption of Protocol No. 13 to the European Convention on Human Rights, which requires the complete abolition of capital punishment - even for acts committed in time of war.

As a result, there has not been a single execution in any of the member states of the Council of Europe for 10 years. Across Europe, only Belarus - which is not a member of the organisation - still uses capital punishment. The Parliamentary Assembly now wishes to extend prohibition to countries enjoying observer status with the Council, including Japan and the United States.

A resolution calling for a global moratorium on executions will be introduced at the 62nd session of the United Nations General Assembly, which begins on 18 September 2007. Its adoption would be a milestone towards the abolition of the death penalty worldwide.

-----------


What are the main points of Protocols No. 6 and No. 13 to the European Convention on Human Rights?

Protocol No. 6 to the European Convention on Human Rights abolishes the death penalty in peacetime. It came into force on 1 March 1985. With Protocol No. 6, Europe’s position changed from tolerating to prohibiting statutory killing. Protocol No. 13, which entered into force on 1 July 2003, bans the death penalty in all circumstances, including for crimes committed in times of war and imminent threat of war.

***


Fundamental rights in Europe


The Council of Europe has been a pioneer of human rights in Europe, most notably through the amended European Convention for the Protection of Human Rights and Fundamental Freedoms and the European Court of Human Rights. .

The European Union has gradually adopted human rights principle, for instance by adopting the Charter of Fundamental Rights of the European Union, as a politically binding document on 7 December 2000.

The EU Treaty of Lisbon would make the EU Charter legally binding, and the European Union would accede to the pan-European Convention.



Ralf Grahn