My “State of the European Union” Overview for the Class of 2021 – Sequel

An article written by Univ.-Prof. Dr. Thomas Giegerich

In my welcome speech last September at the beginning of the study year, I gave you my very short personal “State of the European Union” overview which touched upon asylum reform, Brexit, the Multiannual Financial Framework with the NextGenerationEU Fund and EU sanctions against human rights violators worldwide. In this sequel, I will briefly comment on the developments in the final three months of the German Council presidency.

Concerning asylum reform, the Commission has indeed meanwhile presented new proposals which supplement and partly amend the earlier Commission proposals of 2016 on which the Council never acted. The new proposals are entitled “New Pact on Migration and Asylum”. The German Council Presidency wanted to make headway on that pact, but failed to do so, leaving the problem for the new Portuguese Council Presidency to solve. The urgency of the situation is daily brought home to all of us by the reports on the inhuman situation of asylum seekers stranded in snowy Bosnia and Herzegovina without shelter and adequate provision. The key bone of contention is what Art. 80 TFEU means when it invokes “the principle of solidarity and fair sharing of responsibility, including its financial implications, between the Member States.” Some of the Member States absolutely refuse to accept the redistribution of asylum seekers from other Member States who rightly feel overburdened. Unfortunately, you can win elections on a xenophobic ticket in today’s Europe. So it seems that hypocrisy instead of humanity is winning out regarding refugees.

On a side note, the Commission is trying to overcome resistance against asylum reform by proposing a new solidarity mechanism, giving Member States an option between accepting relocation of asylum seekers or assuming the so-called “return sponsorship”, i.e. making sure that those who have no right to remain are effectively kicked out of the EU. The German translation of that euphemism (“Rückführungs-Patenschaften”) has just been selected as one of two negative buzzwords of the year 2020 by a jury of German language experts. A term denoting protection is used to describe a phenomenon amounting to death and destruction.

Concerning Brexit, the EU and the UK struck a last-minute deal called the “EU-UK Trade and Cooperation Agreement” on Christmas Eve which is qualified as an association agreement based on Art. 217 TFEU. Prime Minister Boris Johnson succeeded in obtaining the consent of the UK Parliament and the signature of Her Majesty the Queen, so that he could ratify the new agreement in December. On the EU side, the European Parliament, whose consent is also required, was unwilling to be rushed like that. They are currently considering the deal and will hopefully agree to it in a matter of weeks. Since the temporary continued application of EU law to the UK, as stipulated in the Withdrawal Agreement, definitely ended on 31 December 2020, the only way to prevent a “hard” Brexit was to agree on the provisional application of the new Trade and Cooperation Agreement, pending its ratification by the EU, which Art. 218 (5) TFEU permits. The EU side was wise enough to conclude the TCA as a sole EU agreement and not a mixed agreement which would have required ratification by all 27 Member States. Whatever the merits of that agreement, one drawback will hurt many of us: The UK will no longer participate in the ERASMUS exchange programme.

The Multiannual Financial Framework 2021 – 2027 and the NextGenerationEU Fund to help Europe recover from the economic fallout of the Corona pandemic were temporarily blocked by the vetoes of Hungary and Poland. Both require unanimity in the Council. Why in the world did these two countries that are among those benefitting most from the additional financial means object? Well, because of the political linkage between the MFF and NextGenerationEU on the one hand and the conditionality regulation on the other which the Council could adopt by a qualified majority. That Regulation on a general regime of conditionality for the protection of the Union budget “establishes the rules necessary for the protection of the Union budget in case of breaches of the principles of the rule of law in the Member States “ (Art. 1). One example which the Regulation expressly mentions as indicative of breaches of the principles of the rule of law is “endangering the independence of the judiciary” (Art. 3 lit. a). This is exactly what Poland has been found guilty of in several recent judgments of the CJEU.

Ultimately, the German Council Presidency was able to find a compromise so that Hungary and Poland agreed to the MFF and NextGenerationEU. That compromise includes a promise by the Commission not to make use of the new Regulation before the CJEU has determined that it is in conformity with the Treaties in a future annulment procedure to be initiated by Hungary and Poland (para. I of the Conclusions of the European Council of 11 December 2020. Some commentators spoke of “Compromising the Rule of Law while Compromising on the Rule of Law” (Scheppele, Pech and Platon, Verfassungsblog of 13 December 2020). The whole affair has once more demonstrated what is obvious anyway: The unanimity rule favours veto games in the form of hostage-taking and should therefore be abolished.

Concerning sanctions against human rights violators worldwide, the EU has indeed adopted a “Magnitsky Act” of its own, without calling it that. The new EU Global Human Rights Sanctions Regime of 7 December 2020 consists of a Common Foreign and Security Policy Decision and a Regulation, the latter based on Art. 215 (2) TFEU . The CFSP Decision of course required unanimity which enabled the supporters of Member State sovereignty to defang the project: It will take a unanimous decision by the Council to put someone on the sanction list – the same procedure as has existed for years. In other words, the EU will continue to make a fool of itself, as it did recently when Cyprus blocked sanctions against human rights violators from Belarus for weeks because it wanted to compel the EU also to impose sanctions on Turks, thus taking the Belarus opposition hostage.

Yet, there is hope because the supporters of Member State sovereignty this time seem to have outwitted themselves when they wrote the unanimity requirement into the European Magnitsky Act. Why? Well, because according to Art. 31 (2) third indent TEU, the “Council shall act by qualified majority … when adopting any decision implementing a decision defining a Union action or position”. A Council decision putting someone on the sanctions list is exactly that – a decision implementing the very CFSP Decision of 7 December 2020. In other words, maintaining unanimity is incompatible with the TEU, which makes Art. 5 of that CFSP Decision void. The gap can be filled by the qualified majority rule of Art. 31 (2) third indent TEU. It is quite another question whether the incompatibility of the unanimity rule of the new CFSP Decision with the TEU is justiciable, in view of Art. 275 (1) TFEU setting forth that the CJEU shall not have jurisdiction with respect to the CFSP (see my paper [in German]). On another side note, that Art. 275 TFEU flies in the face of Art. 2 TEU which identifies the rule of law as a foundational value of the EU and Member States. But that is a matter for another presentation.

So let me stop here. You have probably realised that, as usual, the EU did indeed work quite well in the last three months, but certainly not well enough. Yet, it did and always does succeed in giving us lawyers a lot of food for thought and reasons to demand improvements. So we have no reason to complain or even despair.