The European Journal

The EU diplomatic service is taking shape

The High Representative of the Union for Foreign Affairs and Security Policy will be in charge of the European external action service with delegations in different countries, and will ensure that the Union has a stronger voice on the international arena. Therefore, the Union will not only have a “foreign affairs minister” but also a European external action service, meaning a diplomatic service with delegations in several countries.

 

The European External Action Service will be composed by a combination of national diplomatic services of the Member States and officials from the Council General Secretariat and of the Commission. The organisation and functioning of the Service will be established by a Council decision on a proposal from the High Representative, after consulting the European Parliament and obtaining the consent of the Commission. Hence, it will be decided by QMV.

 

Questions regarding institutional arrangements, competences (Commission/Council secretariat) and financing were not answered by the Lisbon Treaty. The provision concerning the European external action service is highly imprecise.

 

The Lisbon Treaty has not entered into force yet but that has not prevented member states for starting negotiations over the European External Action Service. In fact, the Committee of Permanent Representatives (Coreper) has been discussing the subject for quite sometime. On 30 October, the European Council endorsed the Presidency's report on guidelines for the European External Action Service. But, ultimately, it is up to the future EU foreign affairs minister to present the final proposal on the EEAS which according to the EU leaders should be made “as soon as possible after the entry into force of the Lisbon Treaty with a view to its adoption by the Council at the latest by the end of April 2010.” The EEAS is likely to be up and running by 2012.

 

According to the Swedish EU Presidency’s report the EEAS “should be a service of a sui generis nature separate from the Commission and the Council Secretariat.” The EEAS would have its own budget line in the EU budget. The EU's new foreign minister would be in charge of the budget and will appoint his own staff independently of other EU institutions.

 

The European Parliament does not have much say over the creation of the EEAS as it is only consulted. Nevertheless, a few days before the European Council, the European Parliament adopted a resolution calling for the EEAS to be part of the Commission administrative structure and be funded from the Commission budget. The European Parliament urged the Commission, “in its preparatory work on the EEAS, to put its full weight as an institution behind the objective of preserving and further developing the Community model in the Union's external relations.” The MEPs do not want the EEAS to be a purely intergovernmental structure neither a totally independent body as they want it to be subject to parliamentary control. Ashley Fox MEP has said “(…) To have a diplomatic corps answering to MEPs rather than national governments would be detrimental to Britain's interests."

 

The MEPs recalled “that all aspects of the funding arrangements for the EEAS must remain under the supervision of the budgetary authority in accordance with the Treaties.” The European Parliament would have its say on the budget to be proposed by the High Representative.

 

The Lisbon treaty has left a lot of room for interpretation as regards the EEAS field of application. The European Council endorsed the 'single desk' policy meaning the EEAS will be composed of thematic and geographical desks which will carry out the tasks presently undertaken by DG External Relations and the Council Secretariat. According to the report the EEAS would be responsible for all the strategic decisions related to a particular desk but the Commission will continue to be in charge of the management of funding and the implementation of these decisions.

 

The Commission has exclusive competence over trade negotiations and membership negotiations therefore trade and enlargement will not be integrated into the EEAS as well as development. The relevant commissioners and their directorates-general will remain responsible of enlargement, trade and development policy. However, the high representative will have a say as vice-president of the Commission.

 

Since the EU foreign minister will also conduct European security and defence policy, crisis management structures and the EU Military Committee will be incorporated into the EEAS. The EEAS would, therefore, manage EU security and defence projects, crisis management, civil and military operations. The service will also incorporated the Situation Centre (SitCen), responsible for providing risk analyses. Consequently, it would deal with the sharing of the intelligence analysis.

 

Under the Lisbon Treaty, the present Commission Delegations will be transformed into "Union delegations." This boosts the EU’s action in this regard, creating EU delegations to negotiate with other agencies. The structure of the EEAS will be, therefore, secured by around 130 delegations from the Commission, which will become ‘delegations of the European Union’ under the authority of the High Representative of the Union for Foreign Affairs and Security Policy. The European Parliament has suggested that the Commission delegations in third countries and the Council liaison offices and offices of the EU Special Representatives should be merged to form “"Union embassies", headed by EEAS staff, who would be answerable to the VP/HR.” Furthermore, according to the MEPs, the EU delegations in third countries “could in many cases take over consular services and deal with Schengen visa issues.” According to Europolitcs a diplomat has said that whereas member states will not abolish their embassies, “the intention is, nevertheless, that they will make staff savings because embassies will only focus on national tasks.”

 

The EEAS will include officials from the Commission and Council secretariat as well as national diplomats from the EU's member states. It could involve over than 6,000 staff. The Member States are calling for at least a third of EEAS staff to be member states’ diplomats.

 

The MEPs also suggested the creation of a “European diplomatic college” to provide “training based on fully harmonised curricula” to Union officials and officials of the Member States. The European Council has not endorsed such idea but stressed that EEAS staff should be provided with “adequate common training.” As Ashley Fox has said “(…) a dedicated diplomatic college to train an army of EU diplomats is a total unnecessary waste of taxpayers' money.”

 

The High Representative, as a member of the Commission, will have to go through the European Parliament’s hearings. The European Parliament recommend "that political agreement be reached with Parliament on all issues at an early stage in order to avoid valuable time being wasted on political controversies about the form to be taken by the EEAS after the entry into force of the Treaty of Lisbon.” It is important to mention that the European Parliament may reject a commissioner nominated by the Member States by threatening to reject the college as a whole.

 

The Member States would no longer represent themselves but the Union on the international stage. What will happen to the UK diplomatic representation? Who will defend the interests of the Commonwealth, when the powers of the Foreign Secretaries would be transfer to the High representative of the Union for Foreign Affairs and Security Policy?

David Miliband, or Tony Blair, that is the question

The Lisbon Treaty also creates the post of High representative of the Union for Foreign Affairs and Security Policy. The Union will be represented by the High Representative, meaning EU foreign minister, 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. The delineation of tasks still has to be clarified.

The Lisbon Treaty transforms the Union into an international actor in its own right. It seems the Heads of State and Government will not represent anymore their country in the international stage as they will be represented by the Union.

The foreign affairs minister 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 and the European Commissioner for External Relations. Being a vice president of the Commission he/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. The CFSP is an intergovernmental matter in this way a Commission member will be too involved in the Council’s work. He will serve supranational and intergovernmental matters. 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.

Obviously, the High Representative of the Union for Foreign Affairs and Security Policy will have too much power; he will prepare, decide on and execute matters related to foreign and security affairs. He/she will have the right of initiative in foreign and security policy matters as he will share with each Member State the power to submit proposals regarding the CFSP. He/she will represent the EU in matters relating to common foreign and security policy. He/she will express the “Union” position in international organizations and international conferences. He/she can speak on behalf of the Union in the United Nations Security Council.

The new High Representative will chair the Foreign Affairs Council, submit the necessary proposals, and implement decisions adopted by the European Council and the Council. The rotating Presidency in external relations will end, therefore, the role of Head of State or Government and Foreign Minister of the country holding the Council Presidency will be significantly diminished. It remains to be seen how the agenda of the General Affairs and External relations Council, chaired by the High Representative for foreign policy will be coordinated with other council formations chaired by the ministers of the country which holds the six month Presidency. Moreover, it remains to be seen how the powers of the members of the future troika, the commission president, the high representative for foreign policy and the European council president will be balanced. Therefore there are important issues of accountability at stake.

The boundaries between the EU president and the EU foreign affairs minister are not clear yet. Nevertheless, it seems that the EU foreign affairs minister would be more powerful than the EU president and taking into account that the president of the European Commission is from the EPP it is not surprising that the Socialists are seeking to nominate the EU foreign minister blowing, in this way, Tony Blair’s bid. The High representative of the Union for Foreign Affairs and Security Policy will be appointed by the European Council, acting by a qualified majority and with the agreement of the President of the Commission.

David Miliband is now the name in everybody’s lips. He said that he is not running for the job but…Other possible candidates are Massimo d'Alema, Italy's former prime minister and foreign minister and Adrian Severin, a centre-left Romanian MEP.

What a Conservative government would do toward Europe?

David Cameron yesterday promised:

• to amend the European Communities Act 1972 to prohibit, by law, the transfer of power to the EU without a referendum;
• to introduce a Sovereignty Bill;
• Under the so called passerelle clause, introduced by the Lisbon Treaty, futher national vetoes would be abolished, a Conservative Government would "change the law so that any use of a so-called ratchet clause would require full approval by Parliament;"
• to negotiate a "full opt-out from the Charter of Fundamental Rights", a return of powers in criminal justice and the return of Britain's opt-out from social and employment legislation.

And the post of EU President goes…

Presently, the European Council is chair by Head of State or Government of the Member State which holds the Presidency of the Council (six months rotating presidency). Under the Lisbon Treaty the EU will have a President which will replace the six monthly Presidency of the European Council. 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. A long-term president of the European Council will provide the Union with a single face which gives the idea of United States of Europe.

The President will chair and lead the European Council work in order to ensure continuity in EU initiatives. However, it is not clear yet what would be his/her exact tasks and responsibilities. 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 the delineation of tasks for each representative.

The Lisbon Treaty is not yet in force but the EU ambassadors have started discussions on how to implement the Lisbon treaty including the exact role of the new post of President of the European Council way before the Czech ratification. It has been said that the EU President job description will depend on the person who would fulfil the post. 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."

Unsurprisingly, in an undemocratic and unaccountable EU, the member states’ citizens will have no say as the president of the European Council will be an unelected position. The EU president will be appointed by the European Council by qualified majority voting, for a term of two and a half years, renewable once. Although the formal negotiations for the new top positions have not started yet there was one name in everybody’s mouth - Tony Blair. As Shadow Foreign Secretary, William Hague, has said “It would be outrageous if the British people voted out a Labour Government only to find Tony Blair and Peter Mandelson setting themselves up in power in Brussels."

Several Member states, particularly the Benelux countries, are not willing to back Blair as the UK is not part of the eurozone or Schengen area. Nicolas Sarkozy who was the first to support him as the future president of the European Council now seems to be changing his mind. He has recently said "Personally I believe in a Europe that is politically strong and embodied by a person. But the fact that Great Britain is not in the euro remains a problem."

Although there were no formal discussions on the new top positions at the EU summit, the EU leaders, as Nicolas Sarkozy said, discussed them in the corridors. Now, that Czech Republic ratified the treaty, the horse trading for the EU new positions has officially started and will have to take into account the nationality, geography, the size of the country as well as political affiliation. The Swedish Presidency will convene an extraordinary summit in mid November to appoint the permanent President of the European Council and the High Representative for Foreign and Security policy.

Gordon Brown has tried without success to gather support for Tony Blair candidature, saying that his “credentials are well proven" and that he would become "an excellent President.” At a meeting of European socialist party leaders which took place before the summit no consensus was reached to back Tony Blair. The Socialists have decided to seek the post of high representative for foreign affairs. In fact, it seems that the EU leaders have reached an informal consensus that the EU president post should go to a politician from the centre-right whereas the post of EU Foreign Minister will be nominated by the left.

Sarkozy and Merkel have agreed to support the same candidate for the EU president post. It would not be a surprise if their candidate would be the one. Presently, the “stronger potential candidates” are Jean-Claude Juncker, Wolfgang Schüssel, Jan Peter Balkenende and Herman Van Rompuy who, according to Euractiv, “has the strong support of France and Germany.”

The “caretaker” Commission

The European Commission’s mandate has ended on 31 October, under the existing rules the new Commission would have to be composed of fewer Commissioners than the number of Member States. But the Protocol attached to the Nice Treaty does not specify the number. Under the Lisbon Treaty the Commission will be composed of one commissioner per Member State. However, from 2014, the commissioner’s number would be equivalent of two thirds of the number of Member States. The European Council acting unanimously might amend the number of commissioners.

 

It is important to mention that the EC Treaty does not include provisions for extending the European Commission’s mandate - there is no legal basis to extend the Commission’s mandate. According to Europolitics, Johannes Laitenberger, European Commission’s spokesman, said that the Commission’s mandate will be extended as of 1 November “based on the principle of institutional continuity.” It has been said that the Commission will work in a “caretaker capacity” until the new team is appointed. According to Johannes Laitenberger it would be for the “caretaker Commission” “(…) to judge whether it is necessary for a legislative proposal to be made during this period.” According to the European Voice senior officials said “that the general agreement is that the Commission would act as a low-profile caretaker administration and would avoid taking any important decisions.” Obviously, there are doubts over the legality of the decisions that the Commission might take during the “caretaker period.” The Commission has no longer decision-making powers as its mandate has expired. Solely, José Manuel Barroso has been reappointed.

 

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 EU Presidency will hold an extraordinary summit on 13 or 19 November to appoint the new EU President and Foreign Affairs minister. The negotiations over the allocation of the Commission’s portfolios are directly related to the appointment of the EU new posts. José Manuel Barroso cannot announce his new team until the appointment of High Representative for Foreign and Security policy who will also be a Commission vice president. Mr Barroso said “if we move forward as quickly as possible on the appointment of the permanent president and the high representative, I will then proceed with the appointment of the new Commission as soon as I have received the full list of candidates.”

 

According to Jerzy Buzek, president of the European Parliament “We need a new and strong European Commission in place as soon as possible,” consequently the European Parliament is ready to start up hearings of the nominated commissioners from 25 November and a vote in plenary on the entire Commission is likely to take place at the session from 14 to 17 December. In this way the candidates would have no time at all to prepare for the hearings. 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. Another possible scenario is the hearings taking place in December and the European Parliament vote in January.

 

It is important to recall that under the existing Treaties, the Council and the European Commission president select the persons to propose for appointment as members of the Commission on the basis of the Member State’s proposals whereas under the Lisbon Treaty, Member States would be solely entitled to make suggestions. Such provision will limit even more the influence of the Member States whilst it would have been much easier and more democratic for each Member State to appoint one Commissioner.

 

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 and innovation. 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 hard to believe but the Lisbon treaty will be in force on 1 December

It is hard to believe but Vaclav Klaus has signed the Lisbon treaty. Following the result of the second Irish referendum, Brussels has increased pressure on Czech Republic to ratify the Treaty. Nicolas Sarkozy has described the Czech president’s refusal to sign the treaty as “unacceptable” and said “It’s time for him to make a choice and his decision will not be without repercussions.” Eventually, Mr Klaus said he would sign the ratification act if the Constitutional Court accepted the treaty and Brussels accepted his request for a Czech opt out from the Charter of Fundamental Rights.

Mr Klaus was concerned that the Charter of Fundamental Rights could abolish the Benes decrees on the expropriation of German property and would allow descendants of the Germans expelled from the Sudetenland at the end of the Second World War from filing legal claims for the return of their property. Consequently, he requested assurances in this regard before signing the ratification act.

On 30 October 2009, the European Council has reiterated its “determination to see the Treaty enter into force by the end of 2009” and come up with another deceitful solution to push the treaty through. In order to pave the way for the Czech ratification in a way that would not involve re-starting the ratification process for the other Member States, the European Council followed the method used for the Irish guarantees.

In order to avoid similar request from Slovakia and opposition from Hungary, the European Council has not mentioned Vaclav Klaus’s demand for an assurance that the Benes decrees would not be abolished by the Lisbon Treaty. The Czech Republic got a promise that an opt-out Protocol from the Charter of Fundamental Rights will be attached to the Treaty on European Union and the Treaty on the Functioning of the European Union at the time of the next Accession Treaty. Protocol No 30 on the application of the Charter of Fundamental Rights to Poland and to the UK would be amended “in order to refer to the Czech Republic in the same terms as they refer to Poland and to the United Kingdom.” Obviously, the protocol will not be amended immediately as in that way the EU leaders could not prevent the re-ratification of the treaty.

However, no one can say that the treaty is exactly the same as ratified by UK and other Member States. The Decision in respect of the “Irish guarantees” as well as the Czech Republic’s opt out comes after the Lisbon treaty has been implemented in the UK Parliament by enactment. Member States have not agreed to the Irish guarantees during the treaty negotiations. The UK and Poland have obtained their opt-out during the treaty negotiations but not Czech Republic. The Czech opt out from the Charter entails an amendment to the Treaty. There would be therefore a new relationship between the EU and Ireland/Czech Republic and between Ireland/Czech Republic and the other Member States requiring re-ratification and new implementing legislation in each Member State. But...the the Lisbon Treaty is unstoppable now!

In the meantime, the Irish Decision and, obviously, the promise of an opt out, are not legally binding on the European Court of Justice and the other EU institutions until they are incorporated into protocols and then become part of the Community legal order. The Lisbon Treaty negotiation and ratification process has been a charade.

Last September, a group of Czech senators, mainly from ODS, lodged a complaint with the Constitutional Court challenging the conformity of the Lisbon Treaty with the Czech Republic’s Constitution. The senators argued that the Treaty will infringe Czech sovereignty by creating a supranational European state. President Klaus could not sign the treaty ratification act until the verdict of the Czech Constitutional Court. Unsurprisingly, on 3 November, the Czech constitutional court ruled that the Lisbon treaty is compatible with the country's constitution rejecting the legal complaints. Unexpectedly, a few hours after the court’s ruling, Václav Klaus signed the Lisbon Treaty ratification act, he said “Once the Lisbon Treaty comes into force, the Czech Republic, contrary to the political opinion of the Constitutional Court, will cease to be a sovereign state.”

The Lisbon Treaty will enter into force “on the first day of the month following the deposit of the instrument of ratification by the last signatory State to take this step”, i.e, on 1 December.

In the meantime, inexplicably, David Cameron has ruled out a referendum on the Lisbon treaty. It is absolutely necessary that David Cameron reconsiders such decision and commits to hold a post-ratification referendum. As Bill Cash said “We need a full referendum on Lisbon as we were promised and as we voted in the House of Commons. No ifs or buts. This is about the Government of the United Kingdom operating in line with the democratic wishes of the electorate.”

The EU leaders held preliminary talks about the new EU top positions but there was no decision on the nomination of the EU President and the EU Foreign Minister. Now, that Czech Republic ratified the treaty, the horsetrade for the EU new positions has officially started. There would be an overall transfer of more political power to the EU through the creation of a permanent President of the European Council and the High Representative on Foreign and Security policy, meaning an EU foreign affairs minister. These posts would diminish the ability of Member States to conduct their own foreign policy.

Fredrik Reinfeldt, Swedish Prime Minister, has already announced that he would start “consultations on the names” for the two top positions. In fact, to accelerate the process, the Swedish Presidency will convene an extraordinary summit in mid November to appoint the permanent president of the European Council and the High Representative on Foreign and Security policy as well as to decide on the composition of the new Commission.

The Commission wants to reduce the average CO2 emissions of vans

The Commission has been postponing the publication of a proposal to reduce the average CO2 emissions of light commercial vehicles (vans) due to a row between Günter Verheugen, the European commissioner for enterprise, and Stavros Dimas, the European commissioner for environment. Whereas Stavros Dimas wanted to reduce CO2 emissions for vans and minibuses to 175 grammes per kilometre by 2012 with an intermediary target of 160 grammes per kilometre in 2015, Günter Verheugen believes that the timing of the proposal is not right due to the economic crisis. According to the European Automobile Manufacturers' Association (ACEA) the sales of light commercial vehicles have fell by 34.4% this year. Moreover, vehicles manufacturing countries, such as France, Germany and Italy, have been warning the Commission that such targets would be difficult to maintain and too expensive. They asked, therefore, the Commission to water down or to delay its proposal.

Nevertheless, on 28 October, at the last weekly college meeting before the expiry of its mandate, the Commission adopted a proposal for a regulation setting emission performance standards for new light commercial vehicles. The Commission draft regulation is similar to the legislation on CO2 emissions from passenger cars.

The Commission has proposed for average CO2 emissions from new vans to be reduced to 175 g/km. Such target will be phased in from 2014 to 2016. Hence, from 2014 manufactures must ensure that 75% of their fleet have average emissions below their target, 80% in 2015 and 100% in 2016. The Commission also proposed a long term target of 135 g/km by 2020. The scope of the draft proposal was also reduced as minibus-type vehicles are not included.

Moreover, under the draft proposal, manufactures who fail to meet their targets will have to pay “an excess emissions premium.” Such fine will be calculated by multiplying the number of vehicles by “the number of grams per kilometre (g/km) that the manufacturer’s registered vehicles are above the curve on average.” From 2014 until 2018 the first gramme beyond the limits will be €5 per vehicle increasing to €15 for the second gramme, to €25 for the third and €120 for subsequent grammes. However, from 2019 each gramme will cost €120 per vehicle.

The Commission has water down its proposal. However, according to Ivan Hodac, Secretary General of ACEA, the Commission has ignored the economic reality by proposing a “costly regulation during the crisis (...)” He said “There is a focus on technologies regardless of the market situation or customer needs” and “There is not much consideration of the different uses of the vehicles concerned.”

The proposal must be approved by the European Parliament and the Council to enter into force.

Another step towards a Common European Asylum System

It should be recalled that the 1999 Tampere European Council decided that a Common Asylum Policy should be implemented and a Common European Asylum system to be set up by a two phases approach. The aim of the first phase which ran from 1999 to 2005 was to harmonise Member States' legal frameworks on the basis of common minimum standards. The elements of the first phase are already in place.

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 nevertheless the Government has opted into all measures. The Government has recently decided not to opt in to 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. It remains to be seen if the UK will opt into the new abovementioned proposals. The development of a common European asylum system will have a significant impact on the UK’s future asylum policy. The UK is obliged to ensure that its policy and practice does not conflict with the EU asylum legislation.

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.” Mr Kirkhope has pointed out that “Genuine asylum seekers can already rightly claim asylum in EU member states and we must help southern states who carry a cost for their proximity to Asia and Africa.” But, he stressed that “such decisions should be based on goodwill and solidarity from other national governments, not on decisions forced on governments by the European Commission."

Presently, Member States still have some flexibility to establish their own rules as the Qualification directive only sets up minimum standards. The Qualification Directive has defined common criteria for the identification of persons in need of international protection and ensures that a minimum level of benefits is available for them in all Member States.

The Commission has pointed out that Member States have different decision-making practices and provide different levels of rights. Consequently, the Commission has put forward a proposal on minimum standards for the qualification and status of third country nationals or stateless persons as beneficiaries of international protection and the content of the protection granted which will recast the 2004 Qualification Directive. Such proposal will further harmonise protection standards for the qualification and status of beneficiaries of international protection, moving forward towards a common asylum procedure and a uniform status.

The Commission is proposing 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.”

Under the existing Directive Member States enjoy a considerable level of discretion in granting rights to beneficiaries of subsidiary protection. However, the proposal would eliminate the differences on the rights granted to refugees and beneficiaries of subsidiary protection. Consequently, there would be no longer different conditions and procedures for issuing residence permits and travel documents and for granting access to employment, social welfare, healthcare and benefits for family members and to integration programmes.

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. Moreover, if beneficiaries of international protection cannot provide documentary evidence of their qualifications, Member States shall 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 to upgrade their skills 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.

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, the Commission presented this proposal which provides for the establishment of a single asylum procedure. Consequently, Member States would no longer be allowed to have their own procedural arrangements. The organisation of the processing of applications for asylum would no longer be left to the discretion of Member States.

The proposal is aiming at ensuring higher standards on procedures for granting and withdrawing international protection.

The Commission has proposed to widen the scope of the Directive which will also apply to applications for international protection made in the territorial waters of the Member States.

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, border guards, police and immigration authorities, and personnel of detention facilities would have to provide information to persons who wish to lodge an application for international protection.

Member States would be obliged to guarantee access to organisations providing legal advice and counselling to applicants for international protection at the border crossing points and detention facilities.

The draft proposal introduces new requirements that Member States’ competent authorities have to respect while conducting a personal interview on the substance of 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 possibility to omit a personal interview in accelerated procedures is scraped from the draft proposal.

Moreover, Member States would be required to provide free legal assistance for applicants for international protectin for procedures at first instance.

The draft proposal includes the introduction of six months 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.

Moreover, in order to achieve a common asylum procedure, the proposal consolidates procedural notions and devices such as “inadmissibility grounds”, the “safe country of origin” and “unfounded applications.” The draft proposal provides for a limited and exhaustive list of grounds for an accelerated examination of manifestly unfounded applications

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 first instance these decisions.

The proposals are subject to codecision and qualified majority voting in the Council.

EU to set common procedural standards in criminal proceedings

To recall, in 2004 the European Commission proposed a draft framework decision on certain procedural rights in criminal proceedings. The Commission has chosen as legal basis Article 31(1)(c) EU. Several Member States, including the UK, could not accept this legal basis as the proposal would also apply to purely internal cases where there is no judicial co-operation. In fact, those member states pointed out that there was no treaty basis for such interference into domestic affairs consequently they argued that the draft Framework Decision did not comply with the principle of subsidiarity. The UK Government could not back a biding instrument covering domestic criminal proceedings but it could have accepted a compromise package with a binding measure limited to cross border cases and a non binding resolution on practical measures to enhance compliance with the European Convention on Human Rights.

Member States were divided on whether the EU has competence to legislate on purely domestic proceedings or whether the legislation should only cover cross-border cases consequently it was not possible to reach agreement on the proposal by unanimity.

Taking into account that several EU Member States would not back a similar proposal including six procedural rights, the Commission has decided to adopt a “step-by-step approach.” Hence, last July, the European Commission adopted a proposal for a Council framework decision aiming at establishing common minimum standards as regards the right to interpretation and translation in criminal proceedings in the EU. However, the Commission is using the same legal basis - Article 31(1) (C) EU. The Government has accepted that this instrument will apply to purely internal situations.

It is necessary to strengthen the right of suspects to have documents translated and proceedings interpreted in criminal cases in all EU Member States but this draft framework decision is the first of several specific measures intended to replace the 2004 proposal. Consequently, other proposals will follow on other rights. The Commission’s proposals covering different rights would also apply to purely internal cases. The issue whether the EU has competence to act in domestic proceedings still exists. Moreover, it is important to mention that, presently, unanimity is required at the Council and the proposal goes through the consultation procedure however this would change to QMV and co-decision when the Lisbon Treaty comes into force.

The Commission expects this approach will overcome Member States opposition to the EU setting up common procedural standards in criminal proceedings. In fact, on 23 October, the Justice and Home Affairs Council reached a general approach on the proposal. The Council must consulted the European Parliament, before the proposal can be adopted.

The aim of the proposal is to approximate Member States' procedural rules as regards interpretation and translation in criminal proceedings. Under the proposal all suspects in criminal proceedings, including a person subject to an EAW, who do not understand or speak the language used, are entitled to interpretation and translation free of charge at all stages of criminal proceedings, including any appeals. Member States must also ensure that the right to interpretation is extended to legal advice given to the suspect. The costs of interpretation and translation are to be covered by the Member States.

The draft framework decision provides for the right to translation of essential documents of the proceedings such as the detention order depriving the person of his liberty, the indictment, documentary evidence and the judgment, so suspects can fully understand the case against them. No Member State can deny the right to interpretation and translation to a person facing a criminal charge who does not understand the language of the proceedings. However, the suspect’s lawyer may require for further documents to be translated. The UK might be required to translate documents which are not presently translated. The Government may set out in a statute which documents must be translated.

Moreover, the proposal would place further financial and administrative burden on Member States that, presently, do not offer training to legal interpreters and translators.

The Justice Ministers also agreed on a draft Resolution fostering the implementation by Member States of the right to interpretation and to translation in criminal proceedings. The Draft Resolution provides that Member States should put in place a system of accreditation/certification for interpreters and translators who can be employed in criminal proceedings. Such system should include a national registry of the accredited/certified interpreters and translators.

Moreover, the Justice and Home Affairs Council reached a general approach on a draft resolution, presented by the Swedish Presidency, on a roadmap for strengthening procedural rights of suspected or accused persons in criminal proceedings. According to Lord Bach the Government supports the road map as it believes there should be further action at EU level in the field of procedural safeguards. The Member States agreed, therefore, that the rights included in the road map are “fundamental procedural rights” therefore “action in respect of these rights should be given priority at this stage.”

The Commission is invited to present proposals concerning the following rights: Translation and Interpretation, Information on Rights and Information about the Charges, Legal Aid and Legal Advice, Communication with Relatives, Employers and Consular Authorities and Special Safeguards for Vulnerable Persons. Moreover, the Commission should also present a Green Paper on the Right to Review of the Grounds for Detention.

The Draft Resolution states that “The Council will examine all proposals presented in the context of the roadmap and pledges to deal with them as matters of priority.” It seems that all the member states have politically committed themselves to adopt such measures.

Poultry businesses

The UK has been strongly against to a proposal for a regulation amending Regulation 1234/2007 establishing a common organisation of agricultural markets as regards the marketing standards for poultry meat. Despite UK strong opposition, on 19 October, the Agriculture and Fisheries Council adopted by qualified majority the regulation modifying the current marketing standards for poultry meat.

The regulation extends the scope of the current marketing standards for poultry meat to poultry meat in brine, poultry meat preparations and products. Moreover, a new definition was introduced under which fresh poultry meat preparation can only be obtained from fresh poultry meat meaning it has never been frozen before. Consequently, “poultry meat which has been frozen or quick-frozen must be sold in that state or be used in preparations marketed as frozen or quick-frozen, or in meat products.” Hence, a product will be prevented of being sold as fresh if it had previously been frozen or quick-frozen.

These new standards will have adverse consequences to the poultry industry, particularly to the production of poultry kebabs in the UK. According to Jim Fitzpatrick, the Minister of State at the Department for Environment, Food and Rural Affairs the regulation will prohibit a safe and lucrative business practice.

The Regulation will apply from 1 May 2010 and will be binding in its entirety and directly applicable in all Member States.

It is not clear yet how much the regulation will cost to producers, processors and consumers. The Commission has not provided an Impact assessment and the Government has promised the European Scrutiny Committee (ESC) to provide its own Impact Assessment in autumn 2008 but it has failed to do it. It seems that the government will provide an Impact Assessment this autumn.

The Minister said to the ESC that the poultry industry has estimated that the measure may cost it in excess of £160m in sales.

It is important to recall that the Commission, in May 2008, also put forward a proposal to amend this Regulation as regards the treatment of poultry carcases, allowing the authorisation of certain substances to remove surface contamination from poultry carcases. The US has been calling for the EU to reopen its borders to its chlorinated chicken but the EU has not satisfied its demands. Last December, at the Agriculture Council, 26 Member States have confirmed their opposition and rejected the proposal to lift the ban on the US chlorinated chickens. The UK has decided to abstain. This is effectively a blow on the EU and US trade relations. The US has recently decided to ask the World Trade Organization to rule whether the EU’s ban on imposts of chlorinated poultry breaches trade rules.