The European Journal

The ludicrous EU civil servants pay rise

Last November, the European Commission proposed raising the salaries of 44,500 EU civil servants by 3.7%. This is absolutely ludicrous particularly at a time of financial crisis where several member states have been applying pay freezes to their civil servants.

The EU civil servants already enjoy high salaries, for instances a senior director general may receive over €17,000 per month, plus all the benefits such as family allowances, expatriation allowance, installation allowance, travel expenses, removal expenses, daily subsistence allowance as well as low taxes.

The Commission decides to reduce or raise civil servants’ salaries according to a staff regulation formula based on two factors: trends in civil service salaries in eight member states, Belgium, France, Germany, Italy, Luxembourg, the Netherlands, Spain, the UK, and the cost of living in Brussels. The pay rise is due on 1 January and is based on Eurostat’s data from those member states civil servant salaries between July 2008 and July 2009. Hence, the measures recently introduced by member states to curb budget deficits were not taken into account.

The Council must take a decision, by QMV, on the Commission's proposal by 31 December. Fifteen EU member states, including UK, Germany, France, Italy and the Netherlands, have rejected the pay rise due to the economic crisis. They are trying to invoke a Staff Regulations’ clause which reads “If there is a serious and sudden deterioration in the economic and social situation within the Community, assessed in the light of objective data supplied for this purpose by the Commission, the latter shall submit appropriate proposals (…).” However, according to the Council legal service there are limited grounds for rejecting the pay rise proposed by the Commission as it is in line with the law.

There was a similar situation in the 70s, during the oil crisis, which ended up with the Commission winning the case at the European Court of Justice.

In the meantime, the Council civil servants are on strike today (14 December) asking the member states to “play by the rules.” Staff at the European Parliament and European Commission is also threaten to strike this week.

According to the EuropeanVoice the European Commission President, José Manuel Barroso, has said “We have to respect the law. It's not a political choice; it's implementation of a legal commitment. ” Hence, if member states continue to oppose to the pay rise they would be taken to the ECJ.

The proposed directive on consumer rights may weaken consumer protection in the UK

On 4 December, the Competitiveness Council discussed, and generally supported the Commission’s 2008 proposal for a directive on consumer rights.

The Commission wants to harmonise consumer rights as regards information about the goods, rights in the event of late delivery or non-delivery, cooling-off periods, returns, refunds, repair terms and guarantees. Consequently, member states would be prohibited from keeping or introducing provisions in their national law which differ from the proposed Directive, whether those provisions provide for more or less stringent consumer protection requirements. Whereas some member states, including the UK are concerned about the full harmonization consequences others favour full harmonization. If the current proposal is adopted the UK would have to amend any existing legislation which exceeds or provides less protection than the level of consumer protection provided by the directive. In fact, some of the UK existing consumer protection measures go beyond the proposed directive terms, therefore it would have to lower consumer’s protection.

Moreover, several member states have raised concerns over the proposed rules on delivery and faulty goods. The Commission has proposed the same standard set of remedies available to all consumers who have bought a faulty product. Under the draft directive where goods do not conform, repair and replacement is the first option and the consumer would only be entitled to a refund in restricted circumstances. Hence, the trader may provide a remedy by repairing or replacing the product. Under certain circumstances such as if the trader refuses to remedy the lack of conformity or fails to do so in a reasonable time, the consumer would be entitled to have a reduction of the price or rescind the contract and claim damages. Consequently, the UK would be required to repeal consumers’ existing right, in national law, to reject faulty goods. Hence, consumers in the UK would no longer have a legal right to reject goods of unsatisfactory quality and being reimbursed.

Member States broadly support the proposal wider definitions of distance contracts and off premises contracts as well as right of withdrawal. The majority of the member states are willing to endorse common rules on the right of withdrawal as well as a 14 day right of withdrawal for consumers both for distance and off premises contracts. The House of Lords European Union Committee is concerned that the right of withdrawal might affect the UK 45-day cooling-off period for warranties.

Moreover, the majority of the member states believe that immovable property and financial services should not be covered by the directive.

Whilst consumer organizations are concerned that the proposal might undermine national consumer rights businesses organizations are worried about administrative burdens.

It remains to be seen what will come out from the negotiations. According to Malcolm Harbour, chairman of the European Parliament's consumer affairs committee, the European parliament "will not accept any move that undermines" consumer rights. Moreover, he said "By the time this directive has left parliament, I do not believe it will pose a threat to our right to a refund." Nevertheless, QMV is required at the Council and the Government might not be able to build a blocking minority in order to prevent a reduction in consumer protection for UK consumers.

Another step towards a Common European Asylum System

To recall, The Hague Programme provided for the Common European Asylum System to be established in 2010 and called for the establishment of a common asylum procedure and a uniform status for persons in need of international protection valid throughout the EU. In the European Pact on Immigration and Asylum, adopted in October 2008, the EU leaders asked the Commission to put forward concrete proposals for establishing a single asylum procedure comprising common guarantees and for adopting a uniform status for refugees and the beneficiaries of subsidiary protection.

Last December, the Commission presented the first proposals of the second phase of the asylum legislation: proposals amending the Directive on reception conditions for asylum-seekers, the Dublin Regulation and the Eurodac Regulation. The Commission also proposed the establishment of a European Asylum Support Office and a joint EU resettlement scheme.

On 21 October, the European Commission has taken another legislative step towards a single asylum system for the whole EU as it adopted proposals to amend the Directive on qualification and status of persons in need of international protection and the Directive on asylum procedures. The UK may ‘opt out’ from measures establishing a Common European Asylum System. The Government has recently decided to opt out from the revision of the EU Directive on Reception Conditions for Asylum Seekers but it was the first time that it has decided to opt out from an asylum measure. The development of a common European asylum system will have a significant impact on the UK’s future asylum policy. While commenting the Commission’s proposals, Timothy Kirkhope MEP has said that "Britain stands to lose a central pillar of its sovereignty: the ability to decide who can and cannot enter the UK.”

Presently, Member States still have some flexibility to establish their own rules. However, the Commission has pointed out that Member States have different decision-making practices and provide different levels of rights. Consequently, it has put forward a proposal for a recast of the 2004 Qualification Directive which will further harmonise protection standards for the qualification and status of beneficiaries of international protection. According to the Commission the proposal aims to simplify decision-making procedures in order to enable national authorities “to apply the criteria more robustly and to identify more quickly persons in need of protection and those who are not.”

The proposal would eliminate the differences on the rights granted to refugees and beneficiaries of subsidiary protection. Hence, there would be no longer different conditions and procedures for issuing residence permits and travel documents, for granting access to employment, social welfare, healthcare and benefits for family members as well as to integration programmes. The draft Directive removes the Member States discretion to decide whether to grant those rights to people with subsidiary protection. The Parliamentary Under-Secretary of State at the Home Office, Meg Hillier, has explained to the European Scrutiny Committee that the UK already provides for a single procedure for refugees and people with subsidiary protection, therefore, in this regard, no changes would be required in the UK.

Member States are required, under the existing directive, to ensure family unity and to provide family members with the same benefits as the person granted protection. However, the draft proposal broadens the definition of “family members” and provides more categories. The Government is particularly concerned about such extension as it believes that the risk of “using an alleged family connection as a cloak for trafficking in human beings” would be greater.

The Qualifications Directive would also be amended in order to require Member States to ensure equal treatment between beneficiaries of international protection and nationals as regards recognition procedures for foreign diplomas and certificates as well as to ensure that they have access to appropriate schemes for the assessment and validation of their learning. Member States would be also obliged to offer beneficiaries of international protection access to training courses and employment offices’ counselling services. Moreover, member states would be required to ensure access to accommodation to beneficiaries of international protection under the same conditions as nationals.

Presently, Member States are allowed to reduce employment and social benefits granted to a refugee or beneficiaries of subsidiary protection if their status “(…) has been obtained on the basis of activities engaged in for the sole or main purpose of creating the necessary conditions for being recognised as a refugee.” However, this is scrapped from the draft directive.

The Commission also presented a proposal for a directive on minimum standards on procedures in Member States for granting and withdrawing international protection which is a recasting of the 2005 Directive. The Commission has pointed out that Member States have different procedural arrangements enjoying therefore “a wide margin of discretion.” Thus, it presented this proposal whereby Member States would no longer be allowed to have their own procedural arrangements. Meg Hillier has said to the European Scrutiny Committee that the Government is concerned that the proposal would “impede Member States’ ability to tackle abuses of the asylum system.”

The Commission has proposed to widen the scope of the Directive which would also apply to applications for international protection made in the territorial waters of the Member States. This would be a major concern for the UK taking into account its territorial waters and Gibraltar.

Under the draft proposal Member States would be required to provide for training programmes for staff examining and taking decisions on applications for international protection. Moreover, Member States would be obliged to guarantee access to organisations providing legal advice and counselling to applicants of international protection at the border crossing points and detention facilities.

The draft directive introduces new requirements that Member States’ competent authorities have to respect while conducting a personal interview for an application for international protection. They would not be allowed to wear a uniform and a transcript must be made of every personal interview.

The Commission has also proposed a six months limit for completing procedures at first instance. Consequently, Member States will have to adapt their national procedures with the proposed time limits as they will be required to process applications for international protection within six months.

Furthermore, the possibility to omit a personal interview in accelerated procedures is scraped from the draft directive. In fact, the draft proposal provides for a limited and exhaustive list of grounds under which member states may accelerate the examination of an application of international protection. According to the Government the Commission’s proposal would seriously restrict the UK use of the accelerated procedure for the examination of applications and would jeopardize the UK’s “detained fast track” scheme. Moreover, the draft directive expressly states that Member States must ensure that applicants for international protection have the right to an effective remedy before a court or tribunal, against first instance decisions. It also provides for automatic suspensive effect of appeals against these decisions. Hence, the UK would be prevented of using non-suspensive appeals in cases of manifestly unfounded asylum claims.

The proposals are subject to co-decision and qualified majority voting in the Council. The Government has opted into the 2005 Procedures Directive and the 2004 Qualification Directive. It remains to be seen whether it will opt into the draft directives. On 30 November, the Justice and Home Affairs Council held its first discussion on the Commission’s proposals. According to the Council conclusions there are “a number of issues which will need to be addressed in the coming negotiations within the Council and with the European Parliament.”

The new faces of the EU

The EU leaders have been discussing the potential candidates for the posts of permanent President of the European Council and High Representative of the Union for Foreign Affairs and Security Policy in the last few months. Although there were no formal discussions on the new top positions at the EU summit in October, the EU leaders discussed them in the corridors. In fact, they have reached an informal agreement that the EU president post should go to a politician from the centre-right whereas the post of EU Foreign Minister should go to someone from the centre-left. Moreover, Sarkozy and Merkel have agreed to support the same candidate for the EU president post.

Unsurprisingly, in an undemocratic and unaccountable EU, the member states’ citizens have no say in the matter. Under the Lisbon Treaty, the EU president as well as the High Representative is appointed by the European Council by qualified majority voting. The EU leaders have been saying that the Lisbon Treaty brings more democracy and Europe close to the citizens but the all process just shows the opposite. There was no public consultation. Citizens or even national parliaments were left out of the discussion.

The EU leaders were in a hurry to appoint the two EU top positions as the treaty enters into force on 1 December they wanted the posts that it creates filled by that date. Moreover, the European Commission has been operating in “caretaker mode” since 1 November and the negotiations over the allocation of the Commission’s portfolios are directly related to the appointment of the EU new posts. José Manuel Barroso could not announce his new team until the appointment of the High Representative for Foreign and Security policy who will also be a Commission vice president. Hence, to accelerate the process, the Swedish Presidency has convened an extraordinary informal summit to appoint the permanent president of the European Council, the High Representative for Foreign and Security Policy and a Secretary-General of the Council Secretariat.

In the run-up to the extraordinary EU summit, Swedish Prime Minister, Fredrik Reinfeldt, has intensified his phone consultations with the EU leaders. The negotiations were done in total secrecy. The final deal was reached at the EU leaders' behind closed doors dinner on 19 November. They unanimously agreed to appoint the Belgian Prime Minister, Herman Van Rompuy as President of the European Council, Catherine Ashton, Trade Commissioner, as High Representative of the Union for Foreign Affairs and Security Policy and Pierre de Boissieu as the Secretary-General of the Council. The Swedish EU Presidency obtained unanimous consensus without a vote.

Fredrik Reinfeldt said "This is the new leadership team of Europe" they will be “the voice and face of Europe throughout the world." In fact, they will represent 500 million citizens but they are hardly known. They have no democratic legitimacy. The appointment of the EU President and the EU foreign affairs minister is the product of compromises between the Member States. The horse trading for the EU new positions has taken into account the nationality, geography, the size of the country, political affiliation, gender, everything but merit.

As above mentioned, it was decided that the first full-time president of the European Council should come from a small country and from the centre-right. Hence, the appointment of Van Rompuy was not a surprise, specially taking into account he had the backing of Merkel and Sarkozy. On the other hand, Ms Catherine Ashton´s appointment was, definitely, a surprise. In the last few weeks we heard the names of David Miliband, Massimo D'Alema, Adrian Severin but no one could imagine that Catherine Ashton was a candidate. Her name came up completely out of the blue.

Although it was obvious that Tony Blair had no support, Gordon Brown took too long to drop Tony Blair’s candidature for President of the European Council and he has not done his homework for a plan b. In a last minute deal, Gordon Brown accepts the offer and decides that Britain should go for the post of High Representative. The EU leaders from the centre left decided at a meeting few hours before the summit to support Catherine Ashton for the post of high representative. However, she was the last in Gordon Bronw´s list but there was not enough support for Lord Mandelson or Geoff Hoon. In the end of the day, Gordon Brown has had limited influence in the choice of the two top positions. Moreover, Gordon Brown by accepting the post of High representative for Ms Ashton, who will also be a Vice president of the Commission, has taken the UK out of the race for the heavyweight economic portfolios in the next European Commission.

It was reported in several newspapers that Sarkozy has supported the appointment of Ms Ashton in exchange of France getting the internal market and financial services portfolio. William Hague has demanded an explanation from the Government on what has been agreed at the EU summit but no concrete answer was given. At a House of Commons Debate, on 23 November, William Hague said “We wish Lady Ashton well in her appointment, but it would be a very serious matter if the price of adopting the Government's third choice as High Representative meant that policy on the internal market and on financial services, in particular, was taken in a direction that was not in keeping with the interests of Britain.” David Miliband denied the accusations and said that the European Commission’s portfolios are a responsibility of the President of the Commission.

Yes, José Manuel Barroso is in charge of assigning the Commission’s portfolios among the Member States’ nominees and he held intense negotiations with the EU leaders. Obviously, member states were seeking the most prestigious portfolios such as internal market, competition, trade, and economic and monetary affairs. One could say that the European Commissioner more important portfolios were also part of the EU summit horse trading.

On 27 November, José Manuel Barroso presented the new Commission announcing the portfolios of each nominee. He said "I am confident I have assigned the right jobs to the right people, (…) we have achieved a good mix of skills, experience and gender.” Moreover, he said "In such a process there is always going to be dialogue, requests and suggestions. I spoke to many of the commissioners designate and prime ministers but the decision is mine, I take full responsibility for the decision." However, José Manuel Barroso has not resisted pressure from member states who try to influence his decision.

Sarkozy pressure has been successful, and unsurprisingly the internal market portfolio including financial services went for his candidate Michel Barnier. In fact, according to Le Monde, Sarkozy said "The agreement on the role of Michel Barnier was sealed between Barroso and I three days ago. It's exceptional for France.” Moreover, he said "It's not that the Brits were hesitant, they were frankly against [Barnier's appointment].” However, Baroso has not even considered the UK’s request of separating financial services from the internal market portfolio. The UK campaign to stop this happening was obviously too late. France was therefore the bigger winner as it got one of most important posts as the European Commission has been particularly active in its response to the financial crisis.

According to Le Monde Sarkozy also said "It's the first time in 50 years that France has had this role. The English are the big losers in this business (…).” France is well known for its protectionist tendencies and will be in charge of the internal market and financial services. No one could think of a worse deal for the UK, specially taking into account the current negotiations for the reform of the European supervisory financial system and the draft directive on Alternative Investment Fund Managers. The UK is already struggling to get these proposals substantially amended in order to protect the City of London interests. France in the aftermath of the financial crisis has made stricter regulation of the financial market a priority. France has been therefore calling for tough financial regulation and stronger financial supervision. Michel Barnier as the new internal market commissioner will be in charge of proposing future EU legislation in the financial sector. If there is something we can expect is further financial regulations against the interests of the City of London. According to The Times a senior City source said: “This is a disaster. They have appointed an incredibly prescriptive French politician who is hardline protectionist. He doesn’t care about Britain. This is a job which is critical for Britain, for the City, and it goes to the French.” Barroso in order to shut up the UK´s voices of concern over such nomination appointed Jonathan Faull, a senior UK civil servant, presently the director-general for justice, freedom and security, as the director-general for the internal market.

Mr Barroso has not only tried to please the member states but also the re-nominated commissioners and the European Parliament. The new Commission will have 12 members coming from the European People's Party (EPP), 6 from the Progressive Alliance of Socialists and Democrats (S&D), and 9 from the Alliance of Liberals and Democrats for Europe (ALDE). Taking into account that none of the top positions went to the liberals and that ALDE support Barroso’s second term, they were therefore compensated with the Commission’s portfolios, they got the Economic and Monetary Affairs portfolio. Olli Rehn, from Finland, is the new commissioner for Economic and Monetary Affairs. The ALDE leader, Mr Verhofstadt has said “From the beginning, we were working on the top jobs in the Commission.What counts is not so much the people there but what were the portfolios […] and could these portfolios help us in our fight to have a more pro-European agenda.”

Moreover, Barroso has also favoured his present colleagues as all but one of the posts of vice-presidents had been given to returning commissioners. The new Commission will have 7 Vice-Presidents, including Baroness Catherine Ashton, Viviane Reding, Joaquín Almunia, Siim Kallas, Neelie Kroes, Antonio Tajani and Maros Sefcovic.

Although Joaquin Almunia was not kept in his post as the Spanish government wanted he was given the competition portfolio. Neelie Kroes, from Netherlands, is now in charge of the Digital Agenda. Belgium has got the post of President of the European Council, nevertheless, Karel de Gucht, currently in charge of development and humanitarian aid will be the new trade commissioner. Guenther Oettinger, from Germany, will be the new Energy commissioner. He will have an instrumental role on the development of a common EU energy policy.

Barroso created a new portfolio, climate action which has been given to the Danish Connie Hedegaard, and Janez Potocnik, from Slovenia, will be the new Environment commissioner. He also has split the justice and home affairs portfolio into justice and fundamental rights on the one hand and home affairs on the other. According to the EuropeanVoice, he said “Most governments, if not all governments in Europe, have a minister for justice and a minister for interior or security and internal affairs, so that's one of the reasons I decided to have instead of one commissioner in charge of all these matters to separate [them] in the new Commission.” Hence, Viviane Reding, from Luxembourg, will become the commissioner for justice, fundamental rights and citizenship. The communications portfolio has been scraped but Vivien Reading will be in charge of the DG Communications. Cecilia Malmström, from Sweden, will be in charge of home affairs.

Romania has lobbied for the agriculture portfolio and it got it. In fact, this was another France’s victory, Sarkozy has said “(…) And the second victory is that our friends the Romanians have agriculture.” Dacian Ciolos will be the new agriculture and rural development commissioner. One could wonder if he will be seriously committed in reforming CAP.

Maria Damanaki, from Greece, will be the new commissioner for maritime affairs and fisheries. Poland got what it wanted, Janusz Lewandowski will be the commissioner for budget/financial programming.

Barroso has also split the development and humanitarian aid portfolio into two, hence Andris Piebalgs, from Latvia, and former energy commissioner, will be the development commissioner and Rumiana Jeleva, from Bulgaria, will be in charge of international cooperation, humanitarian aid and crisis response. Stefan Füle, from Czech Republic, is in charge of enlargement and European neighbourhood policy. It remains to be seen how they will work with Ms Ashton, as they are supposed to work in close cooperation with the High Representative/Vice-President.

Maros Sefcovic, from Slovakia, is the new commissioner for inter-institutional relations and administration. Antonio Tajani, from Italy, will be in charge of industry and entrepreneurship whereas Siim Kallas, from Estonia, got the transport portfolio. László Andor, from Hungary, is the new commissioner for employment, social affairs and inclusion. Algirdas Šemeta, from Lithuania, is the new commissioner for taxation and customs union, audit and anti-fraud. John Dalli, from Malta, is in charge of health and consumer policy, Maire Geoghegan-Quinn, from Ireland, is the new commissioner for research and innovation, and Johannes Hahn, from Austria, is in charge of regional policy. Androulla Vassiliou, from Cyprus, got the education, culture, multilingualism and youth portfolio.

Although France has not pursued one of the Lisbon Treaty’s posts no one can said that it left the summit with empty hands. It is important to recall that the EU leaders also appointed the present deputy secretary-general of the council, the French Pierre de Boissieu for the post of secretary-general of the EU Council of Ministers, until his retirement in June 2011. He won’t have a marginal role, in fact it is a quite powerful position. Pierre de Boissieu has been described as a “Brussels legend” and a “key player in European integration.” As Secretary-General he will assist the Council and “shall be closely and continually involved in organising, coordinating and ensuring the coherence of the Council's work and implementation of its 18-month programme.”

Sarkozy got exactly what he wanted whereas Gordon Brown got his third choice for a post that he was not particularly interested in getting.

The hearings in the European Parliament’s committees for the Commissioners-designate will take place during the week of 11 to 14 January and on 18 and 19 January. The plenary’s vote on the entire Commission is planned for 26 January. Then, the Commission will be formally appointed by the European Council. Consequently, the new Commission would not take up its duties until February 2010. Theoretically, the European Parliament can only confirm or reject the entire Commission. But it may reject a commissioner nominated by the Member States by threatening to reject the college as a whole. In 2004, Rocco Buttiglione and Ingrida Udre had to be replaced and László Kovács had to be assigned a different portfolio. Hence, if there are problems with any of the candidates, the plenary vote would be postponed and the candidates would have to be replaced. But Barroso has said “I talked to all the commissioners and asked them all whether there was anything in their political or economic background that could present a problem. And after having discussed the past with them, I am sure that is not the case.” Nevertheless, some MEPs already raised concerns over the communist pass of the Hungarian nominee, Laszlo Andor and the Czech Republic's nominee, Stefan Fuele.

Council and European Parliament approved tyre labels

In November 2008, the Commission put forward a proposal for a directive on labelling of tyres as part of the Second Strategic Energy Review package. The scope of the proposal is to harmonise product information. The Commission has stressed that in order to reduce the environmental impact of road transport, to reduce traffic noise and to improve road safety it is necessary to introduce provisions to encourage end-users to buy more fuel efficient tyres.

The European Parliament, at its first reading, proposed that the legislation should take the form of a Regulation rather than a Directive. According to the European Parliament a regulation is directly applicable in all member states hence the national transposition phase would be bypassed and tyres producers will have to comply entirely with the EU rules. Last July, the Commission modified the legislative proposal, incorporating the majority of the amendments proposed by the European Parliament, and changed the format from a Directive into a Regulation.

Last October, the Council and the European Parliament representatives reached a compromise deal on the proposal, behind closed doors. On 20 November, the Council adopted the draft regulation on the labelling of tyres with respect to fuel efficiency and other essential parameters and the European Parliament endorsed it on 25 November.

The regulation harmonises information on tyre parameters and introduce a mandatory tyre label to be displayed at points of sale and in technical promotional material. Hence, from November 2012, suppliers of tyres for passenger cars, light and heavy duty vehicles (C1, C2 and C3 tyres) must inform consumers about fuel efficiency, wet grip and noise classes in any technical promotional material. Moreover, from July 2012, all new C1 and C2 tyres on sale in the EU must be labeled indicating their impact on a vehicle’s fuel efficiency as well as their performance in wet conditions and their external rolling noise in decibels. Under the compromise deal, tyre suppliers will have the option to “stick the label on each tyre” or to deliver each batch of identical tyres accompanied by a print format label. The tyre distributors must ensure that the tyres bear the sticker, at the point of sale, or they must show to the end users the paper version before the sale of the tyre.

The labels are similar to the ones on energy information attached to household appliances, hence it will classify tyres from best performance “A class” to worst “G class”. The MEPs were able to include in the regulation a redesigned noise pictogram which indicates the level of external rolling noise by ascending numbers of black waves emitted from a speaker. For instance, tyres producing noise levels below 68 decibels will get one black and two white waves next to the value in decibels.

The Commission will create by June 2012 an "EU tyre labelling website" which would explain each component of the tyre label and it will also provide a fuel savings calculator.

According to the Commission, in order to avoid the fragmentation of the market, it would be necessary to determine minimum fuel efficiency classes where Member States put in place incentives in favour of fuel-efficient tyres. Under the Commission’s proposal Member States would have been prohibited to grant incentives for tyres below class C on fuel efficiency and wet grip. But, this provision would have breached the principle of fiscal sovereignty, as pointed out by the UK government, thus, the final text indicates that such incentives “should not cover taxation and fiscal matters.”

Member States would be required to monitor manufacturers, suppliers and distributors compliance of the labelling provisions through market surveillance. Obviously, tyre testing requirements would entail further burdens for both Member States and manufacturers. The regulation also entails additional costs for tyres manufactures as they would be required to ensure that information on the rolling resistance, wet grip, and noise of all tyre options is available.

The Commission strikes again…

On 20 November, the “caretaker” Commission had a busy day sending reasoned opinions to several member states, including the UK. The reasoned opinion is the second stage of the infringement procedure, whereby the Commission states the infringement and requires the Member State to remove it within a specified time limit. Then, if the Member State does not comply with the reasoned opinion, the Commission may refer the case to the Court of Justice.

The Commission has sent a reasoned opinion to the UK for “incorrectly implementing” the Employment Equality Directive, adopted in 2000. The directive prohibits discrimination based on religion or belief, disability, age or sexual orientation in employment and occupation. According to the Commission the UK law does not provide for a “clear ban on 'instruction to discriminate'” or for “clear appeals procedure in the case of disabled people.” Moreover, the Commission has pointed out that “exceptions to the principle of non-discrimination on the basis of sexual orientation for religious employers are broader than that permitted by the directive.”

The Commission also believes that the UK's equality laws are inadequate. Hence, it has sent a reasoned opinion to the UK for failing to fully implement Directive 2002/73/EC on equal treatment for men and women in employment.

Vladimír Špidla, Commissioner for Employment, Social Affairs and Equal Opportunities, asked the Government to amend, as soon as possible, the anti-discrimination and gender equality laws in order to comply with the EU rules. The Government believes that the new Equality Bill will address the issues raised by the Commission. In fact, Vladimír Špidla, welcomed the Bill and hopes “it will come into force quickly.”

As a result of the infringement procedure the UK has recently amended its legislation on the recognition of medical prescriptions. Nevertheless, the Commission considered that “the UK legislation still failed to guarantee the recognition of medical prescriptions issued by health professionals established in other Member States in accordance with Article 49 of the EC Treaty.” Consequently, the Commission has sent a supplementary reasoned opinion. The Commission has deemed as disproportionate the UK non recognition of medical prescriptions issued by Community health professionals for 'controlled drugs' categories of medicines for which a special medical prescription is not required. The Commission also considers “disproportionate in relation to the objective of protecting public health” requiring the address and age of the patient to be indicated on medical prescriptions for them to be recognized in the UK. The UK has two months to provide the Commission with a “satisfactory reply” otherwise it may refer the matter to the European Court of Justice.

Furthermore, the Commission sent a reasoned opinion to the UK for failure to communicate the full transposition of the Directive 2004/8/EC on the promotion of cogeneration based on a useful heat demand in the internal energy market.

And the winner is, Barroso

The EU leaders, surprisingly, appointed Baroness Ashton as the High Representative of the Union for Foreign Affairs and Security Policy, with the agreement of the European Commission President. Ms Ashton was no one first choice and her name came up out of the blue at a meeting of the centre left EU leaders few hours before the summit.

It has been reported in several newspapers that Sarkozy has supported the appointment of Ms Ashton in exchange of France getting the internal market and financial services portfolio. William Hague has demanded an explanation from the Government on what has been agreed at the EU summit but no concrete answer was given. At a House of Commons debate, on 23 November, William Hague said “We wish Lady Ashton well in her appointment, but it would be a very serious matter if the price of adopting the Government's third choice as High Representative meant that policy on the internal market and on financial services, in particular, was taken in a direction that was not in keeping with the interests of Britain.” David Miliband denied the accusations and said that the European Commission’s portfolios are a responsibility of the President of the Commission. Yes they are, but France would never come out of the summit empty hands.

Baroness Ashton fulfils all the requirements of the EU leader’s unwritten agreement, she is from the centre left, from a big country and she is a woman. Nevertheless, she has never been elected to a public office and she has no foreign affairs experience. She was just as surprised as we are that she has not even prepared a speech.

Ms Ashton worked for the Campaign for Nuclear Disarmament and chaired the Hertfordshire health authority. In 1999, she started at the House of Lords and subsequently was appointed State Secretary for Education, Constitutional Affairs and Justice. In 2007, Gordon Brown named her Leader of the House of Lords. She played a key role in pushing the Lisbon Treaty ratification through parliament. In October 2008, she became the European commissioner for trade replacing Peter Mandelson, just because Gordon Brown wanted to avoid a by-election. In Brussels, her main achievement was initialling a free trade agreement with South Korea.

Catherine Ashton assumes her new post on 1 December but she and the other members of the Commission will be subject as a body to a vote of approval by the European Parliament.

The High Representative of the Union for Foreign Affairs and Security Policy will prepare, decide on and execute matters related to foreign and security affairs. Catherine Ashto will be both the Council’s representative for the common foreign and security policy and one of the Commission’s vice-presidents. The post merges the positions of High Representative for the Common Foreign and Security Policy, currently held by Javier Solana and the European Commissioner for External Relations, Benita Ferrero-Waldner. Being a vice president of the Commission she will be responsible within the Commission for responsibilities given to it in external relations and for coordinating other aspects of the Union's external action. In exercising her responsibilities within the Commission, she will be bound by Commission procedures. The CFSP is an intergovernmental matter and, in this way a Commission member will be too involved in the Council’s work. She will serve supranational and intergovernmental matters. She will serve the interests of the Council and of the Commission which are most likely to be conflicting.

The General Affairs and External Relations Council will be split in two. The High Representative will chair the Foreign Affairs Council whereas the General Affairs Council will be chaired by the Prime Minister of the Council rotating presidency.

The High Representative will have the right of initiative in foreign and security policy matters. Under the Lisbon Treaty, the Member States, the High Representative or the High Representative with the support of the Commission can refer questions or submit proposals on CFSP to the Council. It seems that the Commission can no longer submit proposals to the Council relating to the CFSP by itself but through the High Representative. However, the High Representative is one of the Vice presidents of the Commission. Ms Ashton will share, therefore, with each Member State the power to submit proposals regarding the CFSP to the Council.

Moreover, under the Lisbon Treaty, decisions relating to the common security and defence policy, including initiating a military mission will be adopted by the Council acting unanimously however the member states will have to share their right of initiative with the High Representative, this means that the Commission might be involved on such decisions. The Lisbon Treaty stipulates that the Council may adopt decisions concerning the use of civilian and military in joint disarmament operations, humanitarian and rescue tasks, military advice and assistance tasks, conflict prevention missions, post-conflict stabilisation missions but it will be for the High Representative to “ensure coordination of civilian and military aspects of such tasks.”

Furthermore, it is important to recall that the Lisbon Treaty introduced a "solidarity clause" whereby the Union as well as each Member State has to provide assistance to a Member State affected by a human or natural disaster or by a terrorist attack. The decisions on the implementation of the solidarity clause will be made by the Council, acting by QMV, on a joint proposal by the Commission and the High Representative.

Ms Ashton will be responsible to conduct political dialogue with third countries such as the US, Russia, China, etc. The EU has been represented by the Member State holding the rotating presidency, but now the High Representative is in charge of expressing the “Union” common positions at international organizations and international conferences.

The existing EU Treaty stipulates that the “Member States which are also members of the United Nations Security Council will concert and keep the other Member States fully informed.” However, under the Lisbon Treaty, those member states, meaning UK and France, will have to ensure “(…) the defence of the positions and the interests of the Union.” The UK would no longer be free to act independently within the Security Council. Moreover, they will have to “request that the High Representative be asked to present the Union's position” if there is a common position on a subject which is on the agenda of the United Nations Security Council. It is a matter for the Security Council and not for the Union who appears before it. Nevertheless, Catherine Ashton may, therefore, speak on behalf of the Union in the United Nations Security Council.

The Union will be represented by the High Representative for matters relating to the common foreign and security policy, together with the President of the European Council, on issues other than CFSP, the external representation of the Union, will be ensured by the Commission. It remains to be seen how the powers of the members of the future troika, the commission president, the High Representative and the European Council President will be balanced. There are important issues of accountability at stake. Barroso is particularly happy with these nominations, no wonder, he was the biggest winner. He won't be overshadowed by any of them and will take the opportunity to exercise more influence over foreign policy. It seems Mr Van Rompuy will be more concern with his job as an “internal conciliator” rather than projecting himself on the international stage. Hence, he won’t reduce Ms Ashton and Barroso roles.

Yes, Catherine Ashton is hardly known in the world stage, she has limited foreign policy experience, particularly, she has no experience in defence and security matters. Ms Ashton might be a low profile figure with lack of international experience but the powers are there for her, and subsequent High Representatives, to use. Plus, she has Barroso to help her out who, in the end of the day, is her boss.

According to Gordon Brown, Catherine Ashton’s appointment "gives Britain a powerful voice both within the European Council and the Commission" and "It will ensure that Britain's voice is very loud and clear. It will ensure that we will remain, as I want us to be, at the heart of Europe […]” But, would Ms Ashton be able to stand up for the UK interests? No, she is required to perform her duties in the Communities’ interests.

And the post of EU President goes…

Presently, the European Council is chair by the Head of State or Government of the Member State which holds the Presidency of the Council (six months rotating presidency) however this is about to change. On 19 November, Herman Van Rompuy, Belgian Prime Minister, has been appointed, by the 27 EU member states’ heads of state and government, in a behind closed doors meeting, the first full-time President of the European Council, for a term of two and a half years, renewable once. The President of the European Council will be a permanent figure with more influence and symbolism. This represents more transfer of political power to the EU.

Herman Van Rompuy has been Belgian Prime Minister since December 2008 and has held other high posts such as Deputy Prime Minister and Minister for Budget, nevertheless he is not known outside Belgium. He is meant to represent 500 million citizens but those citizens had no say on his appointment.

It is not clear yet what would be his exact tasks and responsibilities. According to Barroso "The job of the president is to deliver the results of a European Council," therefore should be "Someone who will fight to reach agreement in the European Council.” And, that is the reason Brussels chose Herman Van Rompuy, a “discrete conciliator.” It has been said that he will not pursue the role of a “president” but he will be a “consensus builder.” He has been called “the master of the back room deal.” It is through “back room deals” that the EU gets things done, therefore this post suits him well.

The main task of the president will be to chair the European Council summits and setting the agenda. The President will chair and lead the European Council work in order to ensure continuity in EU initiatives. Under the Lisbon Treaty provisions he shall “ensure the preparation and continuity of the work of the European Council” and “shall endeavour to facilitate cohesion and consensus within the European Council.” On his first speech as EU president he outlined his priorities, such as the financial perspectives and the Lisbon Strategy, “economic and social agenda”, “the environmental and energy challenges” and “greater security and justice for all our fellow citizens.” He has always favoured further European integration, therefore, this will be his main priority. He is an assumed Eurofanatic who wants to abolish national symbols in favour of the EU ones.

Mr Van Rompuy has started pursuing his job even before being appointed, calling for EU direct taxes. During a Bilderberg Group dinner he said “New resources will be necessary for the financing of the welfare state. Green tax instruments are a possibility, but they are ambiguous: (…) But the possibilities of financial levies at European level must be seriously examined and for the first time the large countries in the union are open to that."

Van Rompuy has a low international profile but he also has a role in the EU’s external relations. The Lisbon Treaty is very vague particularly in stating that the European Council president would also represent the EU externally for matters relating to the common foreign and security policy without prejudice to the remit of the High Representative of the Union for Foreign Affairs and Security Policy. This of course creates a problem of delineation of tasks for each post. There is no indication on the Lisbon treaty how the relationship between the European Council President, the High Representative, and the President of the Commission will work. Herman Van Rompuy has said “I will be present at the summit meetings with our partners across the world and I will put forward the positions that the Council has approved.” He is counting “on the President of the Commission to fulfil a similar role in areas other than the Common Foreign and Security Policy.” It seems that the President of the European Commission will not be overshadowed by the President of the European Council in representing the EU in the international stage. In fact, he might see his responsibility in representing the EU externally enhanced.

The EU president will have at his disposal the staff of the General Secretariat such as the Directorate for general political questions, the Legal Service, translation services, and press office. Under Article 210 TFEU the salaries, allowances and pensions of the President of the European Council are decided by the Council. Mr Van Rompuy is likely to have a salary around £270,000. The taxpayers are expected to pay around £5.5million a year just on the president costs.

The “caretaker” Commission

The European Commission’s mandate has ended on 31 October. However, the EC Treaty does not include provisions for extending the European Commission’s mandate. According to Johannes Laitenberger, European Commission’s spokesman, the Commission’s mandate has been extended “based on the principle of institutional continuity.” The Commission has been working in a “caretaker capacity.” Moreover, Johannes Laitenberger said that it would be for the “caretaker Commission” “(…) to judge whether it is necessary for a legislative proposal to be made during this period.” Obviously, there are doubts over the legality of the decisions that the Commission is taking during this period. The Commission has no longer decision-making powers as its mandate has expired. Solely, José Manuel Barroso has been reappointed.

The uncertainty over the size of the new Commission has not prevented Barroso to announce sometime ago the creation of new portfolios for his new team, including a commissioner for climate change, for security and internal affairs, justice and fundamental rights. According to the EuropeanVoice, José Manuel Barroso said “Most governments, if not all governments in Europe, have a minister for justice and a minister for interior or security and internal affairs, so that's one of the reasons I decided to have instead of one commissioner in charge of all these matters to separate [them] in the new Commission.”

It is unclear for how long the Commission mandate will be extended for. However, it is now certain that the new Commission will be appointed under the Lisbon Treaty. The negotiations over the allocation of the Commission’s portfolios are directly related to the appointment of the EU new posts. José Manuel Barroso could not announce his new team until the appointment of the High Representative for Foreign and Security policy who will also be a Commission vice president. On 19 November, the EU leaders appointed Belgian Prime Minister Herman Van Rompuy to be President of the European Council and Catherine Ashton to be the High Representative for foreign policy. Now, the President of the European Commission can start putting together his new team.

Not all Member States have named yet their commissioners, but once Barroso has the full list of designated Commissioners he will then start handing out portfolios. An intense round of negotiations on the configuration of the next Commission is expected this week. Obviously, member states are seeking the most prestigious portfolios such as internal market, competition, trade, and economic and monetary affairs. The post of European Commissioner for Internal Market and Services, including financial services is the one with most bids.

The European Commissioner posts were also part of the EU summit horse trading. One could wonder why France and Germany have not sought one of the Lisbon Treaty’s posts. It has been reported in several newspapers that Sarkozy has supported the appointment of Ms Ashton fort the post of EU foreign affairs minister in exchange of France getting the internal market and financial services portfolio. One thing is for sure, the UK is now out of the race for the heavyweight economic portfolios of the next European Commission. In fact, Michel Barnier is set to be the next Internal Market Commissioner. France is well known for its protectionist tendencies and will be in charge of the internal market. No one could think of a worse deal for the UK, specially taking into account the current negotiations for the reform of the European supervisory financial system. Germany is also seeking a heavyweight portfolio. Günther Oettinger might get the economic and financial affairs portfolio or competition. José Manuel Barroso is planning to announce the new Commission’s composition and the distribution of portfolios by the end of this month.

The hearings in the European Parliament’s committees for the nominated commissioners will take place during the week of 11 to 14 January. The plenary’s vote on the entire Commission is planned for the week of 18 to 21 January in Strasbourg. Consequently, the new Commission would not be up and running until February 2010. It is important to recall that the European Parliament may reject a commissioner nominated by the Member States by threatening to reject the college as a whole. In 2004, Rocco Buttiglione and Ingrida Udre had to be replaced and László Kovács had to be assigned a different portfolio. Hence, if there are problems with any of the candidates, the plenary vote would be postponed and the candidates would have to be replaced.

The European Commission anti-trust investigations are not properly documented, says the European Ombudsman

Last May, the European Commission fined Intel a record €1.06 billion for abuse of dominant position and illegal anti-competitive practices. The European Ombudsman, Nikiforos Diamandouros, has recently published his decision on a complaint by Intel alleging procedural errors by the Commission during its anti-trust investigation.

Intel argued that the Commission's DG Competition had failed to take minutes of a meeting with a senior executive from computer manufacturer Dell, albeit the meeting directly concerned the subject-matter of the Commission's anti-trust investigation of Intel. Nikiforos Diamandouros noted that the Commission’s investigation file did not include the agenda of the meeting and found that the Commission's DG Competition had failed to make a proper note of that meeting. The European Ombudsman concluded, therefore, that the Commission committed maladministration.

Moreover, Intel alleged that the Commission encouraged Dell to sign an information exchange agreement with AMD the micro-chip producer and Intel competitor which, according to it, gave AMD access to confidential information contained in the Commission's investigation file. The European Ombudsman did not find maladministration as regards this allegation, nevertheless he criticised the Commission for having failed to make notes of the content of a telephone call between senior representatives of Dell and senior Commission representatives, in which the information exchange agreement was first discussed. He said that “Such a note would have helped to clarify the relevant facts.” He recommended, therefore, the Commission to “improve its administrative procedures by ensuring that its future anti-trust investigations are fully documented."

According to Eurobusiness Intel said that  "The Ombudsman's decision speaks for itself. Intel has consistently said that the (EU) directorate general of competition ignored evidence that was potentially exculpatory for Intel and that it was selective in its use of other evidence.”