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[This post was last updated 16th March 2019 with some new points/explanation].

The UK and EU could drop off the cliff edge together without realising it just by completing the current Withdrawal Treaty.

The Treaty seems incapable of ever being valid or enforceable. This is because of illegal conduct by the EU.

All involved appear to have assumed Brexit is to be agreed and treated as if just an ordinary commercial negotiation and whoever has the greatest negotiating leverage gets the better end of the bargain. That does not appear to be correct. EU law dictates how the EU must act. If tested in the Courts the result could be the Withdrawal Treaty is not legally binding or enforceable.

An underlying theme for the laws and constitution of the EU is the circumscription and control of exercises of the powers of State. EU law is intended to operate to reign in abuses of State power.

The irony is that here we see the very abuses by the EU which have driven many to want to leave and which illustrate the need for dramatic reform for those who wish to remain. 

The illegality by the EU and potential consequences are explained in my email to a number of London Members of the European Parliament today [see full text below].

If any reply I may also publish details on this blog.

SUMMARY

The illegal conduct of the EU is captured in a brief quote from Michel Barnier in French newspaper Le Point International.

In English: “I’ll have done my job if, in the end, the deal is so tough on the British that they’d prefer to stay in the EU”.

This breaches manifold provisions of EU law:

1) the Withdrawal Treaty seems to be made without lawful authority in breach of fundamental provisions of EU law;

2) and/or because any unnecessarily onerous provisions could be found to be illegal and unenforceable.

There may be a high degree of probability that the UK/EU Withdrawal Treaty approved by the Council in November last and relating to the UK’s exercise of its right under Article 50 is invalid, has never had and can never have legal effect and can be annulled under EU law at any time by any person with an interest.

This is argued primarily on the grounds of sufficiently serious breaches of Article 50 and of proportionality. There seem to be other breaches also.

  • Article 50 has been breached – specifically interference with the right to leave the union. That is a right all Member States have agreed all other Member States have. The principle of proportionality has been breached with respect to the terms imposed in the context of an inequality of bargaining power. This also breaches the exercise of the Art 50 right to leave by trying to make it a practical impossibility.
  • Breach of a Treaty provision puts the onus on the EU to prove the Treaty is the minimum necessary. [See eg. Craig 2nd Ed p604 on Proportionality I – The ECJ will tend to construe limits to such rights strictly, with the consequence that there will be a searching inquiry into the suitability and necessity elements of proportionality as exemplified by Hautala].
  • The Treaty is not the minimum necessary. EU Commission Chief Negotiator Michel Barnier has also been quoted publicly admitting he deliberately made it as hard as he could to deter the British from leaving the Union.
  • For serious breaches the Treaty will never have been valid and there is no time limit for bringing a challenge for such breaches [Craig 2nd Ed].
  • If the UK and EU go forward with the current Treaty, nothing they do will make any difference. No proposed changes will make any difference.
  • And to these breaches we can add additional breaches of principles of EU law and others may find further legal issues.
  • It is irrelevant that the UK Government has agreed the Treaty in negotiations because any natural or legal person with an interest can challenge the Treaty and the UK is subject to the law just as the EU is. The UK Government’s actions cannot validate illegality by the EU in the face of challenge by an aggrieved EU citizen with an interest.

If the Courts agree, even if the entire agreement does not fail, whenever in the 585 pages of the Withdrawal Treaty a less onerous provision could have been included whilst still achieving the objectives of the Treaties the more onerous one is illegal.

And the EU’s refusals to negotiate aspects of withdrawal may similarly be unlawful. The EU has refused to negotiate numerous aspects of withdrawal stating it will not do so until the UK has ceased to be a member of the EU.

That is obviously too late.

IN MORE DETAIL

So I wrote to 7 of my 8 London MEPs:

Dear …………

I write as a London constitutent. I am a lawyer.

I should be obliged if you would obtain for me from the Commission, Council and Parliament their position on the illegality of the EU’s approach to Article 50 negotiations and the consequences of that illegality.

The illegality is summarised in a recent quote from Michel Barnier in French newspaper Le Point International. Translated to English it is:

Ill have done my job if, in the end, the deal is so tough on the British that theyd prefer to stay in the EU.

The EU does not appear to be legally entitled to offer the UK a deal so tough that the UK does not want to leave. A Withdrawal Treaty reached on such a basis may prove not to be legal or binding under EU law. And if there is no Withdrawal Treaty in consequence of an unlawful approach to negotiations the EU could incur financial liability.

Can you thus also ask each of the EU Institutions, [Commission, Council and Parliament] for their assessment of the liability to damages should there be no withdrawal agreement concluded or if the current withdrawal agreement is concluded and later found to be unlawful wholly or in parts.

If businesses and individuals lose money in consequence of illegal conduct of the EU there could be legal bills for damages.

Barnier’s approach appears to breach numerous provisions of EU law. In short whenever in the 585 pages of the Withdrawal Treaty a less onerous provision could have been included whilst achieving the objectives of the Treaties the more onerous one is unlawful.

And refusals to negotiate any aspects of withdrawal may similarly be unlawful. That appears to be the case in relation to numerous aspects of withdrawal which the EU refuses to negotiate until the UK has ceased to be a member of the EU. That is obviously too late.

There have already been a number of Brexit challenges in the Courts – including the recent Wightman Case [10 December 2018], the Gina Miller case [24 Jan 2017] and the £190,000 crowd funded Elizabeth Webster case [June 2018].

All Member States have agreed every State has the right to leave the EU.

It follows that the Court of Justice of the European Communities may have to find as a matter of law that the EU, its Institutions and Member States are not allowed under EU law to impede any State in exercising and giving effect to that right. Whilst Article 50 has never been invoked before, there is a body of EU law providing principles laid down by the Court of Justice of the European Communities. These are principles the Court has found must exist if the various EU treaties are to have effect as intended. Individuals can take proceedings under EU laws having direct effect.

The UK is bound to observe EU law so there are implications for the UK Government also.

And there are implications for other EU Member States. This could be if they endorse the Commission’s conduct of the negotiations and the current Withdrawal Treaty or if their electors decide to leave the EU.

Some examples of potentially applicable principles of EU law are mentioned here. There are others which might also apply.

THE RULE OF LAW AND THE VALIDITY OF THE WITHDRAWAL TREATY

The rule of law requires that EU institutions, bodies, offices and agencies shall act in accordance with the law. The supervening provision is Article 2 TEU. EU action to be lawful must accord with the Principle of Conferral or else the EU is acting without legal authority.

PROPORTIONALITY

The Principle of Proportionality [Article 5 of the Treaty on the European Union [TEU]] requires “the content and form of Union action shall not exceed what is necessary to achieve the objectives of the Treaties.”

Necessary means “necessary” and no more nor less. Where there is a choice the least onerous must be used.

GOOD ADMINISTRATION

The Principle of Good Administration applies. It has many sub-principles.

In French it is the Right to Good Administration.

Michel Barnier’s admission is confirmation of acting contrary to Good Administration. This puts in question whether he has been acting without lawful authority.

EU’S LIABILITY IF UK REJECTS THE WITHDRAWAL AGREEMENT

If the UK leaves the EU rejecting an illegal Withdrawal Treaty does the Treasury have any calculation of the financial liability of the EU and its Institutions to the UK and to EU and UK citizens?

IMPLEMENTING AN ILLEGAL WITHDRAWAL AGREEMENT

On withdrawal from the EU there will be those who suffer detriments.

Can the UK or the EU implement lawfully a Withdrawal Treaty which is unlawful? If a challenge to the Withdrawal Treaty were upheld and it was found to be made without lawful authority, how much might the legal liability of the UK and the EU be?

If businesses in the UK and the EU were to continue to trade during a transitional period under the Withdrawal Treaty but then find there is no valid agreement and then later no valid trade agreement, what might the cost be and what might the UK and EU’s liabilities be?

What would be the consequences for other countries under WTO rules or GATT and what actions might be open to them to take? How can the requirements of legitimate expectation continue to be met?

And what difference would it make if a Court could remove the offending unlawful provisions of the Withdrawal Treaty as of no effect. What would be left to enforce?

What would the UK’s and the EU’s liabilities be:

    • within the UK and/or EU to businesses and citizens and
    • to third party states and to their businesses and citizens?

RIGHTS TO SUE

Related concerns are ensuring the UK’s rights and the rights of UK citizens to sue the EU for unlawful acts – in this context acts of the EU Commission, EU Council and their agents such as Michel Barnier – are not lost in any Withdrawal Treaty. The position is not clear in the current Withdrawal Treaty.

What is clear is the EU has repeated references in the Withdrawal Treaty to the EU’s ability to pursue the UK in legal proceedings.

And it needs to be clear that citizens have the right to sue the EU for EU unlawful acts occurring up to the end of any transition period and/or when the Withdrawal Treaty comes to an end, whichever is longer and the limitation period on commencing proceedings should be six years from when the breach is known publicly.

Mr Miller

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Here I continue discussion of the causes of the new conflicts in Europe. Previously I discussed some of the conditions under which the next war in Europe may arise and whether a European Army will facilitate a power-grab in the EU by a totalitarian EU Government: Brexit And The Next War In Western Europe.

The following is part of a discussion which has been taking place on another blog.

_______________________________

Thanks for your view of history. I have seen many on all sides of the debate coming to recognise there are fundamental problems with the Union as currently constituted.

Brexit seen in context is a symptom of those problems. It is not the British. It is a symptom just as the gilet jaune in France are and other social, economic and political problems across the EU along with the rise of the far right across the EU.

Neither the UK nor the EU leadership come out of the present mess with much credit. Its the people who always end up paying the price.

It is a mark of the competence of the UK leadership and media that the EU has so far escaped being called to account.

The current games are a distraction from what is wrong.

So let us see what is known about the EU leadership just before Brexit – and remember the EU is roughly only two decades old and in that time has lurched from crisis to crisis whilst being the architect of a factual matrix which underpins social, political and economic problems across the EU geographically and politically for the PIIGS and from the Baltic States in the North East to Portugal in the South West.

Turn the clock back only a few years in the EU’s history to 2015. The year before the Brexit referendum – that is how close in time the EU’s woes are linked. It is not coincidence. It is mismanagement.

Even you rail at austerity which is also not just a British problem but describe it as such “The brutal austerity measures initiated by Cameron and Osborne”.

Austerity is a ridiculous and damaging EU wide policy forced on Member States. It has much to do with what is happening across the EU today. The losers are the people and it is taking Europe into conflict as now seen in France.

Austerity is deliberately imposed. The overall political objective is not clear but the symptoms of it we see in France and across the EU are and were a predictable outcome. Brexit is a predictable outcome – the ultimate expression of dissatisfaction with the EU.

Are the problems it has caused intentional or merely a by-product of creating more wealth for the very wealthy? Is the social political and economic destabilisation an objective or side-effect?

Economist Professor Yanis Varoufakis former Greek Finance Minister and someone of ability wrote of his experience of negotiations with the EU during five months in 2015 during the Greek debt crisis:

“…. a titanic battle is being waged for Europe’s integrity and soul, with the forces of reason and humanism losing out …. to growing irrationality, authoritarianism and malice. ….. Europe has twice in the past hundred years dragged the planet down into an appalling quagmire. It can do so again. ….. Leonard Schapiro … on Stalinism: … ‘the true object of propaganda is neither to convince nor even to persuade. But to produce a uniform pattern of public utterances in which the first trace of unorthodox thought reveals itself as a jarring dissonance.”

….. I bore the brunt of precisely this type of propaganda. My attempts ….. were met with a concerted effort to turn our sensible proposals into …. a jarring dissonance.”

Angela Merkel during the crisis and in relation to it stated that we did not want to see another war in Europe. That is how bad it was then. The problems today are not much better.

And there is a war taking place in the EU being fought without armaments and troops – at least not yet – France is on the brink.

Brexit is one of the battlefields. It is not the only one and it is the people of Europe who are paying the price of this war.

As with all wars there are costs.

But some things never make it onto the balance-sheet.

That root and branch reform of the political and administrative structures of the EU is thought to be needed by some on the one hand and on the other the frustration that it would ever occur with the system as it is, is another aspect. Uncertainty about the social, political and economic stability of the Union is another factor.

And how can one put a price on this? A Syrian in a rebel enclave was asked why he was fighting his Government and he answered that freedom is too important. Easy to forget its importance after many decades of relative [but not absolute] peace in Europe. There has been war and it was NATO which was deployed in case the conflict spread. It was not the EU nor its predecessor. That did not prevent war in Europe.

What has kept the peace in Europe has been increasing prosperity and economic development since the 1939-45 conflict. Neither the Common Market nor the EU were the cause of that. It would have happened with or without them.

What is causing lack of prosperity and economic problems is the EU and its austerity. The EU is turning into the architect of new conflicts flaring up in Europe. The clock is ticking. It is just a matter of time.

The irony is acute that the EU wrongly attributed with being a mechanism for peace appears is the architect of the new conflicts.

And put a European army at the disposal of Brussels and we will be on the brink of tyranny. The very kind of tyranny of governments Thomas Jefferson described in the context of the right to bear arms under the US Constitution.

As for your perspective of the history of the Brexit negotiations: “a patient accommodation of the more outrageous demands of a succession of Brexit negotiators” is not accurate.

From a very early stage the Prime Minister’s government conceded practically all the demands of the EU. There was rapid capitulation by the UK including to the payment of £39 billion without knowing what the framework of the future trading relation was to be.

And the context of what Barnier said could not have been clearer: “I’ll have done my job if, in the end, the deal is so tough on the British that they’d prefer to stay in the EU”.

You however write: “I’ll have to reserve judgement on exactly what was meant by M Barnier when he said this.” And then go on to praise him.

You go on to write: “As far as I can see, there has been no breach of Art 50, which simply provides the mechanism by which a member state may exit the Union.”

I cannot tell quite how far you can see. What I can say is that since I last posted here the validity of my legal arguments on the lawfulness of such conduct is coming to be accepted by others with the knowledge to appreciate the legal niceties.

You write “you mean like the “Led By Donkeys” campaign”.

No I don’t.

Please don’t mention ‘May’ again. That is as close to a four letter word as you can get for the numerically challenged but linguistically gifted. Much the same could be said about “Davis” as “Fox”.

And her “red lines” came long after the Withdrawal Treaty text had been finalised so again your version of the history needs attention. The finalised version of the Treaty was since then approved by the EU Parliament and in November last ratified by the Council.

I disagree that “In fact, a little thought on this matter should make it evident that extending anywhere near as advantageous conditions to non-members as to members, would undermine the very foundations of the Union.”

Why should it? Non-members cannot be full participants and can play no part in how the Union develops. Non-members are thus seriously disadvantaged.

And a moment’s thought reveals the wisdom of such an approach. It is better to have a club of contented members than malcontents so not forcing membership of those who wish to leave is a sensible approach – more likely to lead them to return – and in the negotiations one can create a framework to ease the return whilst in the interim effecting change to ensure the club is suited to the common objectives of its membership. A golf club with inadequate golfing facilities is likely to lose members to a club with better facilities but it can regain them if it puts needed change into effect.

What you are really saying is that the Union is an unhappy club run by individuals with issues which raise doubts over their suitability and a track record of failure such that the only way the club can stay together is by shackling the members in an economic prison – neither content to be in and worried of the consequences of being out.

The EU would be a better place if its Member States were content to be members rather than being locked into an economic cage with a key inside but from which they fear to escape. Like a caged bird remains even when the cage door is opened.

This makes no sense “Also, technically it was impossible to negotiate a future trade deal with the UK while it was still a member”.

“Negotiate” is form of talking. How can it be impossible for the UK and EU representatives just to talk to each other? And the UK is still a member and was when people were talking about Norway + and Canada + and suchlike.

In fact it is actually impossible to agree the framework of the future relationship without agreeing the principles of what the future relationship is to be. So again what you say about it being impossible to talk is not consistent with the express requirements of Article 50 for the parties.

This also is a non sequitur and logically flawed: “it is only when the Withdrawal Agreement has been finalised that the detailed aspects become clear of what is to be negotiated in terms of an extensive trade deal.”

It is necessary to know the framework of the future relationship in order to agree what must be done to withdraw.

And Article 50 addresses the future relationship – which does not necessarily include a “trade deal”. It does include things like continuing co-operation on security, arrest warrants, air and other travel.

You don’t need to withdraw from arrangements which are agreed to continue after withdrawal but you do need to know what the future relationships are to be to agree about them.

This is not correct: “Obviously, this process could have been accelerated if the UK demands and red lines had not been entirely internally inconsistent (also known as “cakeism”).” How can this be accelerated? The red lines did not appear until late in the day after the Withdrawal Treaty had been agreed by the UK’s negotiators but not by the UK Parliament. And thank all that is good it was not left to the Prime Minister and her Cabinet.

“The EU …. is constantly renewing itself.” It is not and that is a fundamental problem already noted above.

I will not continue addressing further lacunae. It has been an interesting exercise despite all. And thank you for your comments which have required me to think about the issues and refine my thinking further.

I explained in a prior post that the Withdrawal Agreement appears to be be unlawful in its entirety, not valid and so not legally binding. Anyone can apply to the Courts to challenge it. If that happens and a Court agrees then the UK and the EU – particularly those Member States doing the most trade with the UK could all be jumping off the cliff top together even if Theresa May got her Withdrawal Agreement through Parliament. See EU Illegal Brexit Tactics – Invalidation of Brexit Withdrawal Agreement – Business Can Sue February 27, 2019.

And now someone is challenging the Withdrawal Agreement in the Courts.

Lord Trimble (the holder of a Nobel Peace Prize) who was an architect of the Good Friday agreement has been named in connection with a legal challenge to the UK Government in Court. The challenge is on the basis the ‘Withdrawal’ Agreement seeks to alter the constitutional relationship between Northern Ireland and the United Kingdom without the express consent of the people of Northern Ireland.

It is also now being explained via the Bruges Group’s blog that the creation of the backstop breaches the EU’s own principles and those of other European and international organisations. In particular it breaches the principle of Self-Determination: How the “Backstop” breaches international treaties

 

It is explained in the blog that imposing taxation without representation, via the customs union that the Backstop would establish, is not in keeping with the “European values”. The Backstop would place the EU-27 in breach of a number of their international obligations, including:

– The 1952 Protocol to the European Convention on Human Rights which ensures “the free expression of the opinion of the people in the choice of the legislature”;

– The right to self-determination expressed in Article 1 of the UN Charter and expanded upon in various UN Resolutions including: the Principles of International Law Concerning Friendly Relations and Cooperation Among States (UN Resolution 2625(XXV)), the Declaration on the Granting of Independence to Colonial Countries (UN Resolution 1514(XV)), and the International Covenant on Civil and Political Rights (UN Resolution 2200A(XXI));

– and The EU’s own treaty provisions, including “good neighbourliness” (Article 8 TEU) and the progressive abolition of trade barriers (Article 3(5) TEU) and citizen’s rights to participate in the democratic life of the EU (Article 10(3)).

These are examples of the wider and more general principles I set out on my law blog: EU Illegal Brexit Tactics – Business Can Sue – Invalidation of Brexit Withdrawal Agreement

I discuss some of the conditions under which the next war in Europe may arise and whether a European Army will facilitate a power-grab in the EU by a totalitarian EU Government. This is in an abriged comment I posted on a discussion on ResearchGate:

Has the EU’s Illegal conduct of the Brexit negotiations made the Withdrawal Agreement invalid before it is even signed?

25 minutes ago Clifford Miller Added a reply

Hi Harish,

Thanks for your thoughts.

Yesterday I met with some Hungarian friends who are visiting London with their two primary school age children.

We discussed the EU. We have common concerns. None of them are about the gradual slipping of anything by any country. And the UK remains rated the fifth largest economy in the world, although I am very pleased to see India’s success and development along with the long needed development of many countries including that we now see in Africa since the end of the Cold War.

The union that is the USA and the current union in Europe are very different economically, politically, constitutionally and by maturity. The EU with its own currency, the Euro with the common economic controls on Member States which that entails, has existed for less than 20 years. The union in the USA you say has existed for over 230 years. The rise of the union in the USA could not have been more different and it has had time to develop and grow. Its population 230 years ago was very small but with substantial natural resources including land mass.

The USA has a State of the Union address from the President. The union in Europe could benefit from an annual independent, objective and public State of the Union audit.

In its absence let me give you some examples of what might be part of such an audit.

My friends and I can see and fear the rise of totalitarian government centred on the EU. We can see and fear new wars in Western Europe.

The lack of effective control over abuse of power at the centre of Europe, ignoring the rule of law, such as we see as part of Brexit, combined with the rise of an EU army controlled from Brussels and the civil unrest associated with economic mismanagement caused by a decade of the economically ridiculous and counter-productive austerity policy are all part of an unhealthy picture.

In parts of the EU there is 60% unemployment. The gilet jaune [Yellow Vest] movement in France is new and extensive, provoked by economic, political and social mismanagement. But with a European Army perhaps troops from countries like Bulgaria and Romania might have fewer qualms about shooting Frenchmen dead in the streets to help quell unrest?

One view of Europe is a region with Germany at its centre. Germany is surrounded by satellite states. There can be little doubt that one reason for Germany’s economic success is its geographical position. Germany’s location means it can benefit from the assets and resources of its near neighbours for labour, goods, services and the intellectual capital of educated work-forces.

My Hungarian friends have homes in Hungary and in Germany. They live and work in Germany and commute every few weeks home the 700km to Hungary. A drive of 5 hours.

They tell me that educated Hungarians with language skills find work in Germany. This obviously thereby depletes the intellectual capital of the local labour market and potentially inhibits local economic development in Hungary. However, currently the greatest immigrant population in Germany is from Italy, [and not Turkey as many might be misled to think].

Instead of investing in the economies of the satellites, the EU has literally sucked the life out of countries like Estonia, Latvia and Lithuania. These countries have virtually no young people. They have left to find work and not come back. The remaining populations of these countries are literally dying on their feet. Their economies cannot develop in such conditions. So much for the benefits to them of the EU!

Let us compare the location of Portugal. Portugal is at the edge of Western Europe with a long coastline bordering the Atlantic. It does not have the benefits of Germany’s geographical location. Portugal is one of the unhappily named group of European countries called the PIIGS – Portugal, Ireland, Italy, Greece and Spain. All are associated with economic problems and the need for financial bailouts of their economies. Greece’s economic problems threatened the stability of Europe with Angela Merkel at the time stating publicly that no one wanted to see another war in Europe.

So Merkel at that time could see where economic instability was leading Europe.

When on vacation in Italy a couple of years back after the substantial fall of the British pound after the Brexit referendum I was surprised at how inexpensive Italy is. Italy is poor. It is poorer than it was before. Italians have been leaving in search of work. Many do not come home. The local economies are not being developed and countries like Germany benefit from the outflow of workers.

And so to the stupidity of the austerity policy being pursued by the EU with the benefit of financial controls on Member States required to maintain a common currency, the Euro. The UK has also stupidly pursued austerity firstly under Prime Minister David Cameron and the Chancellor George Osbourne.

The UK is a smaller version of the picture seen throughout the EU. Despite being the fifth largest economy in the World, the North has been economically neglected. The industries were run down since the 1970s. There is poverty. There is a large disaffected population in the North-East and many other areas. The South-East centred on the economic power house of the City of London prospers – for the moment at least.

So what has austerity achieved? Mainly economic mismanagement and an increase in a disaffected population which is and feels poorer now than before.

To pay for the fall in economic activity which austerity encourages the national debt has been rapidly rising. In a few short years it rose from around £900 billion when Cameron’s Government came to power and introduced austerity. One estimate puts it now at about £2.2 trillion.

Had the UK instead of pursuing austerity over the time of this £1.3 trillion increase invested it in infrastructure projects and education and training new skills for C21, the UK would been in a much better place today. The monies invested on infrastructure would have stimulated the economy and returned to the Government in taxes whilst the work-forces in the neglected parts of the UK could have been provided with the skills national and international businesses seek. Instead we have an increase in poverty in the neglected areas with an increasing number of families relying on food-banks to feed the children and parents.

A contrast is the success of education with the focus in Scottish universities on computer gaming technology. This was not a Government initiative. One report suggests Scotland’s software and electronic publishing sector employs around 20,000 people and contributes about £1bn to the economy. So investment in infrastructure and education can and does work.

Is a Federation of EU States potentially good? There is no doubt about that.

Is the current form of union in Europe good? No. One must remember that the present political structure was designed to create a common market to aim at freedom of movement of labour, services, goods and capital. The Commission’s job was to create the laws to establish common standards throughout Europe of this common market – a free trade area. The Parliament had little or no power, although that has changed in part. The Commission was supposedly overseen by the Council comprised typically of a Minister representing each Member State.

This political structure is not appropriate for a Federation of States. And it has been mired in corruption and abuse of powers for decades. It is a system open to manipulation by external interests. And we can see that every day.

What no one thinks about is this – how much poorer are European States under the European Union and how much are their economies held back from developing compared to what could have been achieved without the current form of EU government riding their backs and holding them down.

A political friend told me that the record of economic growth in the EU region historically is second only to Antarctica – which is mostly inhabited by penguins.

Most people do not know about this so be prepared for a surprise.

Your right – yes for you personally – to documents of EU instititions  is a fundamental right of EU law and also a basic condition of an open, efficient and independent European administration. Any limitation of this principle must be narrowly construed to comply with the criteria of Article 52(1) of the Charter of Fundamental Rights of the European Union and must therefore be based on law, must respect the essence of the right and follow the criteria of proportionality.

The right to documents is a right enshrined in the Treaty Establishing the European Union:

Article 15(3) TFEU: ‘Any citizen of the Union, and any natural or legal person residing or having its registered office in a Member State, shall have a right of access to documents of the Union’s institutions, bodies, offices and agencies, whatever their medium, subject to the principles and the conditions to be defined in accordance with this paragraph…. Each institution, body, office or agency shall ensure that its proceedings are transparent and shall elaborate in its own Rules of Procedure specific provisions regarding access to its documents, in accordance with the regulations referred to in the second subparagraph….’; Charter, Article 42: ‘Any citizen of the Union, and any natural or legal person residing or having its registered office in a Member State, has a right of access to documents of the institutions, bodies, offices and agencies of the Union, whatever their medium.’

And under Article 42 of the Charter of Fundamental Rights of the European Union [“European Charter”]:

Article 42 Charter: ‘Any citizen of the Union, and any natural or legal person residing or having its registered office in a Member State, has a right of access to documents of the institutions, bodies, offices and agencies of the Union, whatever their medium.’

In principle therefore you are entitled to documents relating to the forthcoming Brexit negotiations.  There are of course limitations and exceptions.  If any exception or limitation might be invoked in relation to contemporaneous disclosure of Brexit negotiation documents, a main question is whether there is an overriding interest favouring contemporaneous disclosure.  And even if there is any delay in disclosure, there remains the issue of when disclosure will take place.

This law is implemented in an EU Regulation: Regulation No 1049/2001.  Which is grandly titled:

 REGULATION (EC) No 1049/2001 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 30 May 2001  regarding public access to European Parliament, Council and Commission documents

Here we will do things a little bit “backwards” by setting out the Articles of the Regulation so you can see the “nuts and bolts” of the law.  However, unlike statute laws of English and other common law countries, when interpreting the Articles of an EU Regulation, the preambles and recitals are the first source to consult.

For Regulation 1049/2001 these are at the beginning under the oh so grand heading:

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty establishing the European Community, and in particular Article 255(2) thereof,
Having regard to the proposal from the Commission (1),
Acting in accordance with the procedure referred to in Article 251 of the Treaty (2) …..

And then the Preambles and Recitals continue in this vein and here are set out just the first few and grandest of them all.  The first are the most important:

Whereas:
(1) The second subparagraph of Article 1 of the Treaty on European Union enshrines the concept of openness, stating that the Treaty marks a new stage in the process of creating an ever closer union among the peoples of Europe, in which decisions are taken as openly as possible and as closely as possible to the citizen.

(2) Openness enables citizens to participate more closely in the decision-making process and guarantees that the administration enjoys greater legitimacy and is more effective and more accountable to the citizen in a demo­cratic system. Openness contributes to strengthening the principles of democracy and respect for fundamental rights as laid down in Article 6 of the EUTreaty and in the Charter of Fundamental Rights of the European Union,

(3)  The conclusions of the European Council meetings held at Birmingham, Edinburgh and Copenhagen stressed the need to introduce greater transparency into the work of the Union institutions. This Regulation consolidates the initiatives that the institutions have already taken with a view to improving the transparency of the decision-making process.

(4) The purpose of this Regulation is to give the fullest possible effect to the right of public access to documents and to lay down the general principles and limits on such access in accordance with Article 255(2) of the EC Treaty.

The remainder of the Preambles and Recitals can be found in the Regulation:: Regulation No 1049/2001

Again, working from the end first these words found at the end of the Articles are significant for you personally:

“This Regulation shall be binding in its entirety and directly applicable in all Member States.”

This makes the regulation have direct application in every Member State to give effect to your personal right to access to EU documents including EU Brexit negotiation documents.

And here are the Articles:

Article 1

Purpose
The purpose of this Regulation is:

(a) to define the principles, conditions and limits on grounds of public or private interest governing the right of access to European Parliament, Council and Commission (hereinafter referred to as ‘the institutions’) documents provided for in Article 255 of the EC Treaty in such a way as to ensure the widest possible access to documents,

(b) to establish rules ensuring the easiest possible exercise of this right, and

(c) to promote good administrative practice on access to docu­ments.

Article 2

Beneficiaries and scope

1. Any citizen of the Union, and any natural or legal person residing or having its registered office in a Member State, has a right of access to documents of the institutions, subject to the principles, conditions and limits defined in this Regulation.

2. The institutions may, subject to the same principles, conditions and limits, grant access to documents to any natural or legal person not residing or not having its registered office in a Member State.

3. This Regulation shall apply to all documents held by an institution, that is to say, documents drawn up or received by it and in its possession, in all areas of activity of the European Union.

4. Without prejudice to Articles 4 and 9, documents shall be made accessible to the public either following a written application or directly in electronic form or through a register. In particular, documents drawn up or received in the course of a legislative procedure shall be made directly accessible in accordance with Article 12.

5. Sensitive documents as defined in Article 9(1) shall be subject to special treatment in accordance with that Article.

6. This Regulation shall be without prejudice to rights of public access to documents held by the institutions which might follow from instruments of international law or acts of the institutions implementing them.

Article 3

Definitions

For the purpose of this Regulation:

(a) ‘document’ shall mean any content whatever its medium (written on paper or stored in electronic form or as a sound, visual or audiovisual recording) concerning a matter relating to the policies, activities and decisions falling within the institution’s sphere of responsibility;

(b) ‘third party’ shall mean any natural or legal person, or any entity outside the institution concerned, including the Member States, other Community or non-Community insti­tutions and bodies and third countries.

Article 4

Exceptions

1. The institutions shall refuse access to a document where disclosure would undermine the protection of:

(a) the public interest as regards:

— public security,

— defence and military matters,

— international relations,

— the financial, monetary or economic policy of the Community or a Member State;

(b) privacy and the integrity of the individual, in particular in accordance with Community legislation regarding the protection of personal data.

2. The institutions shall refuse access to a document where disclosure would undermine the protection of:

— commercial interests of a natural or legal person, including intellectual property,

— court proceedings and legal advice,

— the purpose of inspections, investigations and audits,

unless there is an overriding public interest in disclosure.

3. Access to a document, drawn up by an institution for internal use or received by an institution, which relates to a matter where the decision has not been taken by the institu­tion, shall be refused if disclosure of the document would seriously undermine the institution’s decision-making process, unless there is an overriding public interest in disclosure.

Access to a document containing opinions for internal use as part of deliberations and preliminary consultations within the institution concerned shall be refused even after the decision has been taken if disclosure of the document would seriously undermine the institution’s decision-making process, unless there is an overriding public interest in disclosure.

4. As regards third-party documents, the institution shall consult the third party with a view to assessing whether an exception in paragraph 1 or 2 is applicable, unless it is clear that the document shall or shall not be disclosed.

5. A Member State may request the institution not to disclose a document originating from that Member State without its prior agreement.

6. If only parts of the requested document are covered by any of the exceptions, the remaining parts of the document shall be released.

7. The exceptions as laid down in paragraphs 1 to 3 shall only apply for the period during which protection is justified on the basis of the content of the document. The exceptions may apply for a maximum period of 30 years. In the case of documents covered by the exceptions relating to privacy or commercial interests and in the case of sensitive documents, the exceptions may, if necessary, continue to apply after this period.

Article 5

Documents in the Member States

Where a Member State receives a request for a document in its possession, originating from an institution, unless it is clear that the document shall or shall not be disclosed, the Member State shall consult with the institution concerned in order to take a decision that does not jeopardise the attainment of the objectives of this Regulation.

The Member State may instead refer the request to the institution.

Article 6

Applications

1. Applications for access to a document shall be made in any written form, including electronic form, in one of the languages referred to in Article 314 of the EC Treaty and in a sufficiently precise manner to enable the institution to identify the document. The applicant is not obliged to state reasons for the application.

2. If an application is not sufficiently precise, the institution shall ask the applicant to clarify the application and shall assist the applicant in doing so, for example, by providing informa­tion on the use of the public registers of documents.

3. In the event of an application relating to a very long document or to a very large number of documents, the institu­tion concerned may confer with the applicant informally, with a view to finding a fair solution.

4. The institutions shall provide information and assistance to citizens on how and where applications for access to docu­ments can be made.

Article 7

Processing of initial applications

1. An application for access to a document shall be handled promptly. An acknowledgement of receipt shall be sent to the applicant. Within 15 working days from registration of the application, the institution shall either grant access to the docu­ment requested and provide access in accordance with Article 10 within that period or, in a written reply, state the reasons for the total or partial refusal and inform the applicant of his or her right to make a confirmatory application in accordance with paragraph 2 of this Article.

2. In the event of a total or partial refusal, the applicant may, within 15 working days of receiving the institution’s reply, make a confirmatory application asking the institution to reconsider its position.

3. In exceptional cases, for example in the event of an application relating to a very long document or to a very large number of documents, the time-limit provided for in paragraph 1 may be extended by 15 working days, provided that the applicant is notified in advance and that detailed reasons are given.

4. Failure by the institution to reply within the prescribed time-limit shall entitle the applicant to make a confirmatory application.

Article 8

Processing of confirmatory applications

1. A confirmatory application shall be handled promptly. Within 15 working days from registration of such an applica­tion, the institution shall either grant access to the document requested and provide access in accordance with Article 10 within that period or, in a written reply, state the reasons for the total or partial refusal. In the event of a total or partial refusal, the institution shall inform the applicant of the remedies open to him or her, namely instituting court proceed­ings against the institution and/or making a complaint to the Ombudsman, under the conditions laid down in Articles 230 and 195 of the EC Treaty, respectively.

2. In exceptional cases, for example in the event of an application relating to a very long document or to a very large number of documents, the time limit provided for in paragraph 1 may be extended by 15 working days, provided that the applicant is notified in advance and that detailed reasons are given.

3. Failure by the institution to reply within the prescribed time limit shall be considered as a negative reply and entitle the applicant to institute court proceedings against the institution and/or make a complaint to the Ombudsman, under the rele­vant provisions of the EC Treaty.

Article 9

Treatment of sensitive documents

1. Sensitive documents are documents originating from the institutions or the agencies established by them, from Member States, third countries or International Organisations, classified as ‘TRÈS SECRET/TOP SECRET’, ‘SECRET’or‘CONFIDENTIEL’in accordance with the rules of the institution concerned, which protect essential interests of the European Union or of one or more of its Member States in the areas covered by Article 4(1)(a), notably public security, defence and military matters.

2. Applications for access to sensitive documents under the procedures laid down in Articles 7 and 8 shall be handled only by those persons who have a right to acquaint themselves with those documents. These persons shall also, without prejudice to Article 11(2), assess which references to sensitive documents could be made in the public register.

3. Sensitive documents shall be recorded in the register or released only with the consent of the originator.

4. An institution which decides to refuse access to a sensi­tive document shall give the reasons for its decision in a manner which does not harm the interests protected in Article 4.

5. Member States shall take appropriate measures to ensure that when handling applications for sensitive documents the principles in this Article and Article 4 are respected.

6. The rules of the institutions concerning sensitive docu­ments shall be made public.

7. The Commission and the Council shall inform the Euro­pean Parliament regarding sensitive documents in accordance with arrangements agreed between the institutions.

Article 10

Access following an application

1. The applicant shall have access to documents either by consulting them on the spot or by receiving a copy, including, where available, an electronic copy, according to the applicant’s preference. The cost of producing and sending copies may be charged to the applicant. This charge shall not exceed the real cost of producing and sending the copies. Consultation on the spot, copies of less than 20 A4 pages and direct access in electronic form or through the register shall be free of charge.

2. If a document has already been released by the institution concerned and is easily accessible to the applicant, the institu­tion may fulfil its obligation of granting access to documents by informing the applicant how to obtain the requested document.

3. Documents shall be supplied in an existing version and format (including electronically or in an alternative format such as Braille, large print or tape) with full regard to the applicant’s preference.

Article 11

Registers

1. To make citizens’ rights under this Regulation effective, each institution shall provide public access to a register of documents. Access to the register should be provided in elec­tronic form. References to documents shall be recorded in the register without delay.

2. For each document the register shall contain a reference number (including, where applicable, the interinstitutional reference), the subject matter and/or a short description of the content of the document and the date on which it was received or drawn up and recorded in the register. References shall be made in a manner which does not undermine protection of the interests in Article 4.

3. The institutions shall immediately take the measures necessary to establish a register which shall be operational by 3 June 2002.

Article 12

Direct access in electronic form or through a register

1. The institutions shall as far as possible make documents directly accessible to the public in electronic form or through a register in accordance with the rules of the institution concerned.

2. In particular, legislative documents, that is to say, docu­ments drawn up or received in the course of procedures for the adoption of acts which are legally binding in or for the Member States, should, subject to Articles 4 and 9, be made directly accessible.

3. Where possible, other documents, notably documents relating to the development of policy or strategy, should be made directly accessible.

4. Where direct access is not given through the register, the register shall as far as possible indicate where the document is located.

Article 13

Publication in the Official Journal

1. In addition to the acts referred to in Article 254(1) and

(2) of the EC Treaty and the first paragraph of Article 163 of the Euratom Treaty, the following documents shall, subject to Articles 4 and 9 of this Regulation, be published in the Official Journal:

(a) Commission proposals;

(b) common positions adopted by the Council in accordance with the procedures referred to in Articles 251 and 252 of the EC Treaty and the reasons underlying those common positions, as well as the European Parliament’s positions in these procedures;

(c) framework decisions and decisions referred to in Article 34(2) of the EUTreaty;

(d) conventions established by the Council in accordance with Article 34(2) of the EUTreaty;

(e) conventions signed between Member States on the basis of Article 293 of the EC Treaty;

(f) international agreements concluded by the Community or in accordance with Article 24 of the EUTreaty.

2. As far as possible, the following documents shall be published in the Official Journal:

(a) initiatives presented to the Council by a Member State pursuant to Article 67(1) of the EC Treaty or pursuant to Article 34(2) of the EUTreaty;

(b) common positions referred to in Article 34(2) of the EU Treaty;

(c) directives other than those referred to in Article 254(1) and

(2) of the EC Treaty, decisions other than those referred to in Article 254(1) of the EC Treaty, recommendations and opinions.

3. Each institution may in its rules of procedure establish which further documents shall be published in the Official Journal.

Article 14

Information

1. Each institution shall take the requisite measures to inform the public of the rights they enjoy under this Regulation.

2. The Member States shall cooperate with the institutions in providing information to the citizens.

Article 15

Administrative practice in the institutions

1. The institutions shall develop good administrative prac­tices in order to facilitate the exercise of the right of access guaranteed by this Regulation.

2. The institutions shall establish an interinstitutional committee to examine best practice, address possible conflicts and discuss future developments on public access to documents.

Article 16

Reproduction of documents

This Regulation shall be without prejudice to any existing rules on copyright which may limit a third party’s right to reproduce or exploit released documents.

Article 17

Reports

1. Each institution shall publish annually a report for the preceding year including the number of cases in which the institution refused to grant access to documents, the reasons for such refusals and the number of sensitive documents not recorded in the register.

2. At the latest by 31 January 2004, the Commission shall publish a report on the implementation of the principles of this Regulation and shall make recommendations, including, if appropriate, proposals for the revision of this Regulation and an action programme of measures to be taken by the institutions.

Article 18

Application measures

1. Each institution shall adapt its rules of procedure to provisions of this Regulation. The adaptations shall take effect  from 3 December 2001.

2. Within six months of the entry into force of this Regulation, the Commission shall examine the conformity of Council Regulation (EEC, Euratom) No 354/83 of 1 February 1983 concerning the opening to the public of the historical archives of the European Economic Community and the European Atomic Energy Community with this Regulation in order to ensure the preservation and archiving of documents to the fullest extent possible.

3. Within six months of the entry into force of this Regula­tion, the Commission shall examine the conformity of the existing rules on access to documents with this Regulation.

Article 19

Entry into force

This Regulation shall enter into force on the third day following that of its publication in the Official Journal of the European Communities.

It shall be applicable from 3 December 2001.

This Regulation shall be binding in its entirety and directly applicable in all Member States.

Done at Brussels, 30 May 2001.

For the European Parliament     For the Council
The President     The President
N. FONTAINE     B. LEJON

If anyone thinks the UK will be at the mercy of the 27 remaining EU Member States in negotiations over and in reaching a final agreement over the UK’s exit from the EU then they may have to rethink.  It is possible that long and well-established principles of European Union law may apply to any illegal actions.  And if the law were to be broken and the final agreement is unlawful then it is conceivable that EU citizens in the UK – which means individuals and companies – may be able to sue the EU after the UK’s exit for losses and damage suffered, even if they have then ceased to be EU citizens.

Individuals and companies have legally enforceable rights to detailed information about information held by the EU which might include at least some information about the negotiations as they take place.  And can negotiations by anonymous EU officials take place in private in what used to be called “smoke filled rooms” [a thing of the past under EU law] or must they be in public with all information published?  See also:

Brexit – Your Personal Right to Have Copies of the Brexit Negotiations Documents

It is conceivable that negotiations to reach a final agreement must seek to achieve the best outcome for the functioning of the Single European Market.  Hence, political claims could have some substance that it is possible an exit from the EU may not be one which excludes the UK from it nor one which imposes punitive trade tariffs and other obstacles to trade.

This blog post is not a detailed analysis of EU law.  It is solely intended to introduce you to some principles of EU law which might apply to control and restrict the conduct of the exit negotiations and the legality of any final agreement.  The intention is to equip you with some basic principles for further consideration of whether they might be applied to benefit the UK and its currently resident EU citizens in the lead up to and after an exit.  How and the extent to which such principles might control and restrict the conduct of the remaining 27 Member States, the EU Commission and Council will no doubt be subject to consideration by others in the coming months and years of the exit process and beyond.

Here are some examples to give you an idea of some provisions of immediate interest:

public authorities shall act and perform their duties within a reasonable time

“Law: Article 5(4) TEU ‘Under the principle of proportionality, the content and form of Union action shall not exceed what is necessary to achieve the objectives of the Treaties […]’.”

“neither the EU nor Member States can render virtually impossible or excessively difficult the exercise of rights conferred by EU law,”

And must the negotiations be conducted in public?  How are the principles of transparency and of participatory democracy to be respected:

Article 10(3) TEU: ‘Every citizen shall have the right to participate in the democratic life of the Union. Decisions shall be taken as openly and as closely as possible to the citizen.’ Articles 11(1) and (3) TEU require Union institutions to hear views and opinions on EU measures and especially enter into consultation procedures.

These rights and obligations are applicable to situations where the proceedings lead to the adoption of an act of general application including decisions with general applicability.  They require that in order to ensure that such hearing can effectively take place, active information of the public and structured means of feedback and response should be created.

That might be taken together with the right of access to documents.  This is a fundamental right of EU law and also a basic condition of an open, efficient and independent European administration. Any limitation of this principle must be narrowly construed to comply with the criteria of Article 52(1) of the Charter of Fundamental Rights of the European Union and must therefore be based on law, must respect the essence of the right and follow the criteria of proportionality.  See Regulation No 1049/2001.

Under Article 15 (3) TFEU:

Article 15(3) TFEU: ‘Any citizen of the Union, and any natural or legal person residing or having its registered office in a Member State, shall have a right of access to documents of the Union’s institutions, bodies, offices and agencies, whatever their medium, subject to the principles and the conditions to be defined in accordance with this paragraph…. Each institution, body, office or agency shall ensure that its proceedings are transparent and shall elaborate in its own Rules of Procedure specific provisions regarding access to its documents, in accordance with the regulations referred to in the second subparagraph….’; Charter, Article 42: ‘Any citizen of the Union, and any natural or legal person residing or having its registered office in a Member State, has a right of access to documents of the institutions, bodies, offices and agencies of the Union, whatever their medium.’

And under Article 42 of the Charter

Article 42 Charter: ‘Any citizen of the Union, and any natural or legal person residing or having its registered office in a Member State, has a right of access to documents of the institutions, bodies, offices and agencies of the Union, whatever their medium.’

Summary of Principles of EU Administrative Law **

The principle of the rule of law:

Article 2 TEU

Applies to administrative actions.

Any action of the Union has to be based on the treaties according to the principle of conferral [Case 46/87 Hoechst v Commission [1989] ECR 2859, summary point 3].

The rule of law requires that EU institutions, bodies, offices and agencies shall act in accordance with the law

[The hierarchy of legal norms must be recognized and respected in that no act may violate higher-level Union law (Case 1/54 France v High Authority [1954] ECR 7, 23; Case 38/70 Deutsche Tradax GmbH v Einfuhr- und Vorratsstelle für Getreide und Futtermittel [1971] ECR 145, para. 10.);]

They must apply the rules and procedures laid down in the legislation.

The principle of legality

Actions of European administration occur under and within the law.

Article 52(1) sentence 1 of the Charter of Fundamental Rights:

‘Any limitation on the exercise of the rights and freedoms recognized by this Charter must be provided for by law and respect the essence of those rights and freedoms’.

Second, it is important to point out that provisions on conferring powers of public authority on border guards – such as the powers conferred in the contested decision, which include stopping persons apprehended, seizing vessels and conducting persons apprehended to a specific location – mean that the fundamental rights of the persons concerned may be interfered with to such an extent that the involvement of the European Union legislature is required’.

Case C-355/10, European Parliament v Council [2012], ECR I- published in the electronic Reports of Cases para 77:

The principle of legal certainty:

This principle requires EU legal rules to be clear and precise aiming to ensure that situations and legal relationships governed by EU law remain foreseeable.

Cases: Case C-199/03 Ireland v Commission [2005] ECR I-8027, para. 69. See also Case C-29/08 SKF [2009] ECR I- 10413, para. 77.22.  And also see : Cases: C-55/91 Italy v Commission [1993] ECR I-4813, para. 66; Joined Cases T-55/93 and T-232/94, T-233/94 and T-234/94 Industrias Pesqueras Campos v Commission [1996] ECR II-247, paras. 76, 116, 119; Case 43/75 Defrenne v SABENA [1976] ECR 455, paras. 69 ff.; Case C-143/93 Gebroeders van Es Douane Agenten vs Inspecteur der Invoerrechten en Accijnzen [1996] ECR I-431, para. 27; Joined Cases 205/82 to 215/82 Deutsche Milchkontor and Others v Germany [1983] ECR 2633.

Individuals must be able to ascertain unequivocally what their rights and obligations are and be able to take steps accordingly;

Cases: e.g. Case C-158/06 ROM-projecten [2007] ECR I-5103, para. 25 with further references.

Retroactive measures shall not be taken except in legally justified circumstances.

Cases: See Case T-357/02 Freistaat Sachsen v Commission [2007] ECR II-1261, para. 98, where the Court stated that ‘provisions of Community law have no retroactive effect unless, exceptionally, it clearly follows from their terms or general scheme that such was the intention of the legislature, that the purpose to be achieved so demands and that the legitimate expectations of those concerned are duly respected’.

Further, public authorities shall act and perform their duties within a reasonable time.

Joined Cases C-74/00 P and C-75/00 P Falck and Acciaierie di Bolzano v Commission [2002] ECR I-7869, para. 140.

The principle of protection of legitimate expectations

This has been recognised since the very early case law of the CJEU as sub-principle of the rule of law:

Cases: See Case 111/63 Lemmerz-Werke v High Authority of the ECSC [1965] ECR 677, where the concept of protection of legitimate expectations was first explicitly enunciated. See also Joined Cases 7/56 and 3/57 to 7/57 Algera and Others v Common Assembly of the ECSC [1957] ECR 39, 55; Cases 42 and 49/59 S.N.U.P.A.T. v High Authority [1961] ECR 53; Case 14/61 Koninklijke Nederlandsche Hoogovens en Staalfabrieken v ECSC High Authority [1962] ECR 253.

Actions of public bodies shall not interfere with vested rights and final legal situations except where it is imperatively necessary in the public interest.

Legitimate expectations shall be duly taken into account where an administrative decision is cancelled or revoked.

The principle of proportionality

This is a criterion for the legality of any act of Union law.

Law: Article 5(4) TEU ‘Under the principle of proportionality,the content and form of Union action shall not exceed what is necessary to achieve the objectives of the Treaties […]’.

CJEU: requires that any measure of the European administration be based on law; to be appropriate and necessary for meeting the objectives legitimately pursued by the act in question; where there is a choice among several appropriate measures, the least onerous measure must be used; and the charges imposed must not be disproportionate to the aims pursued.

Cases: See e.g. Case C-265/87 Schräder v Hauptzollamt Gronau [1989] ECR I-2237 para 21. See also e.g. Case C 343/09 Afton Chemical v Secretary of State for Transport [2010] ECR I 7027, para 45, and Joined Cases C 581/10 and C 629/10 Nelson and Others v Deutsche Lufthansa AG (C-581/10) and TUI Travel and Others v Civil Aviation Authority (C-629/10) [2012] published in the electronic Reports of Cases, para 71.

Next to legislative action as provided for in Protocol n° 2 on the application of the principles of subsidiarity and proportionality.  The principle of proportionality is applicable as criteria of legality of acts of European administration as results from Articles 52(1) of the Charter of Fundamental Rights of the European Union and Article 5(4) TEU.

The right to an effective remedy

Cases: Case 85/76 Hoffmann-La Roche v Commission [1979] ECR 461, para. 9; Case 222/84 Johnston v Chief Constable of the Royal Ulster Constabulary [1986] ECR 1651, para 19.

This right is enshrined in Article 47 of the Charter:

Article 47 Charter: ‘Everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this Article”.

In Articles 6 and 13 European Convention of Human Rights;

This is recognised as a general principle of EU law.  It is a key component to a legal system under the rule of law.

Neither the EU nor Member States can render virtually impossible or excessively difficult the exercise of rights conferred by EU law.

Cases: See e.g. Case C 128/93 Fisscher v Voorhuis Hengelo BV and Stichting Bedrijfspensioenfonds voor de Detailhandel [1994] ECR I 4583, para. 37; Case C-261/95 Palmisani v Istituto nazionale della previdenza sociale (INPS) [1997] ECR I-4025, para 27; C-453/99 Courage and Crehan v Courage Ltd and Others [2001] ECR I-6297, para 29; Case C 78/98 Preston and Others [2000] ECR I 3201, para. 39; Case C-187/00 Kutz-Bauer [2003] ECR I-2741, para. 57; Case C-30/02 Recheio-Cash & Carry [2004] ECR I-6051, paras 17, 18; Case C-212/04 Adeneler and Others [2006] ECR I-6057, para. 95; Joined Cases C-231/06 to C-233/06 Jonkman and Others [2007] ECR I-5149, para. 28.

They are obliged to guarantee real and effective judicial protection:

Cases: Case 14/83 von Colson [1984] ECR 1891, para 23.

And are barred from applying any rule or applying any procedure which might prevent, even temporarily, EU rules from having full force and effect.

Case C-213/89 Factortame [1990] ECR I-2433, paras. 19, 20.

The principle of good administration

This is naturally of particular relevance to administrative procedures.

According to the Charter the right to good administration requires that decisions be taken pursuant to procedures which guarantee fairness, impartiality and timeliness.

Good administration includes the right to be given reasons and the possibility of claiming damages against public authorities who have caused harm in the exercise of their functions.

Good administration also requires the protection of the rights of defence and of language rights.

In addition, good administration extends to information rights which include privacy and business secrets as well as access to information.

It is enshrined in Article 41 of the Charter synthesizing some of the case law of the Court of Justice in this field

Cases: The CJEU has referred to good administration principles since the very early case-law: Joined Cases 7/56, 3/57 to 7/57 Algera and Others v Common Assembly of the ECSC [1957] ECR 0039; Case 32/62 Alvis [1963] ECR 49, para 1A; Joined Cases 56 and 58/64 Consten and Grundig v Commission [1966] ECR 299; Case 64/82 Tradax v Commission [1984] ECR 1359; see the Explanations Relating to the Charter Of Fundamental Rights, Doc. 2007/C 303/02, at

http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri =OJ:C:2007:303:0017:0035:en:PDF

Sub-Principles of the principle of good administration:

The duty of care

This includes the right of every person to have his or her affairs handled impartially, fairly and within a reasonable time: Charter, Article 41(1).

It obliges the administration to carefully establish and review all the relevant factual and legal elements of a case taking into account not only the administration’s interests but also all other relevant interests, prior to making decisions or taking other steps.

AG van Gerven in Case C-16/90 Eugen Nölle v Hauptzollamt Bremen –Freihafen [1991] ECR I-5163; Case C-269/90 TU München v Hauptzollamt München Mitte [1991] ECR I-5469, para. 14.

Impartiality requires the absence both of arbitrary action and of unjustified preferential treatment including personal interest:

Case T-146/89 Williams v Court of Auditors [1991] ECR II-1293, para. 40; Case T-305/94 Limburgse Vinyl Maatschappij v Commission [1999] ECR II-931, paras. 317ff.

Timeliness, which pertains to the principle of fairness, means that decisions have to be taken within a reasonable time: Article 24 fourth subparagraph TFEU ; Article 20(2)(d) TFEU ; Article 41 (1) Charter

This is justified in part on the basis that slow administration is bad administration:  AG Jacobs in C-270/99 P Z v Parliament [2001] ECR I-9197, para. 40 with reference to Art. 41 of the Charter and claiming that this was ‘a generally recognised principle.’

And it might also be in violation of the concept of legal certainty.

The right to a fair hearing

This must be observed in all proceedings initiated against a person which are liable to culminate in a measure adversely affecting that person.

Case T-306/01 Yusuf and Al Barakaat International Foundation v. Council and Commission [2005] ECR II-3533, para. 325.

That principle (audi alteram partem or audiatur altera pars) is addressed in Article 41(2)(a) and (b) Charter;

Article 41(2)(a) Charter: The right to good administration includes: ‘the right of every person to be heard, before any individual measure which would affect him or her adversely is taken;’ ; Article 11(1) ‘The institutions shall, by appropriate means, give citizens and representative associations the opportunity to make known and publicly exchange their views in all areas of Union action’ and (3) TEU ‘The European Commission shall carry out broad consultations with parties concerned in order to ensure that the Union’s actions are coherent and transparent.’

It cannot be excluded or restricted by any legislative provision:

Case T-260/94 Air Inter v. Commission [1997] ECR II-997, para. 60; case C-135/92 Fiskano v. Commission [1994] ECR I-2885, para. 39

The right to a fair hearing requires that the party concerned must receive an exact and complete statement of the claims or objections raised and must also be given the opportunity to make its views known on the truth and relevance of the facts and on the documents used.

See, e.g., Case 100/80 to 103/80 Musique Diffusion française v Commission [1983] ECR 1835, para. 10; Case 121/76 Moli v Commission [1977] ECR 1971, para. 19; Case 322/81 Michelin v Commission [1983] ECR 3461, para. 7; Case C-328/05 SGL Carbon v Commission [2007] ECR I-3921, para. 71. In Joined Cases C-402/05 P and Case C-415/05 P Kadi v Council and Commission [2008] ECR I-6351, paras. 338-352, the Court held that overriding considerations of safety or the conduct of international relations might justify that certain matters may not be communicated to the persons concerned, but do not allow for evidence used against them to justify restrictive measures or for them not to be afforded the right to be informed of such evidence within a reasonable period after those measures were taken.

The right of access to the file is essential in order to enjoy the right to a fair hearing. The right of access to the file is the right to get full information on matters which may affect a person’s position in an administrative procedure, especially where sanctions may be involved.

Case 270/82 Estel v Commission [1984] ECR 1195, paras. 13ff.; Case 64/82 Tradax v Commission [1984] ECR 1359, paras. 21f.; Case C-34/89 Italy v Commission [1990] ECR I-3603, paras. 14f.; Case T-100/92 La Pietra v Commission [1994], ECR (civil service) I-A-83, II-275, paras. 43ff.; Case C-54/95 Germany v Commission [1999] ECR I-35, para. 118.

It includes the right to get the administration’s response to complaints or representations,

Case 179/82 Lucchini Siderurgica v Commission [1983] ECR 3083, para. 27; Cases 96-102 and 104-106 and 110/82 NV IAZ International Belgium v Commission [1983] ECR 3369, paras. 12ff.

And to receive notice of the outcome of procedures and of decisions made:

Case 120/73 Lorenz v Germany [1973] ECR 1471, para. 5; Case 121/73 Markmann v Germany [1973] ECR 1495, para. 5; Case 122/73 Nordsee v Germany [1973] ECR 1511, para. 5; Case 141/73 Lohrey v Germany [1973] ECR 1527, para. 5; see also Ralf Bauer, Das Recht auf eine gute Verwaltung im Europäischen Gemeinschaftsrecht (Frankfurt/Main: Peter Lang, 2002) 64.

This includes information related to the rights of appeal.

Case 41/69 Chemiefarma v Commission [1970] ECR 661, para. 27.

See also Commission ‘Code of Good administrative behaviour’, Point 3, third indent:

‘Where Community law so provides, measures notified to an interested party should clearly state that an appeal is possible and describe how to submit it, (the name and office address of the person or department with whom the appeal must be lodged and the deadline for lodging it).Where appropriate, decisions should refer to the possibility of starting judicial proceedings and/ or of lodging a complaint with the European Ombudsman in accordance with Article 230 or 195 of the Treaty establishing the European Community.’ European Ombudsman ‘Code of Good administrative behaviour’, Article 19 – indication of the possibilities of appeal: ‘A decision of the Institution which may adversely affect the rights or interests of a private person shall contain an indication of the appeal possibilities available for challenging the decision. It shall in particular indicate the nature of the remedies, the bodies before which they can be exercised, as well as the time limits for exercising them. Decisions shall in particular refer to the possibility of judicial proceedings and complaints to the European Ombudsman under the conditions specified in, respectively, Articles [263] and Articles [228 TFEU].’

The duty to give reasons

The duty concerns decisions and arises from Article 296(2) TFEU.  It is recognised as a right under Article 41(2)c) of the Charter of Fundamental Rights of the European Union as well as being an essential component of the right to an effective remedy recognised in Article 47 of the Charter of Fundamental Rights of the European Union.

The obligation to give reasons comprises an indication of the legal basis of the act, the general situation which led to its adoption and the general objectives which it intended to achieve:

Case 5/67 Beus GmbH v Hauptzollamt München [1968] ECR 83, 95 (English Special Edition 83); See also Case T-13/99 Pfizer Animal Health v Council [2002] ECR II-3305, para. 510; Case T-70/99 Alpharma v Council [2002] ECR II-3495, para. 394; Case C-304/01 Spain v Commission [2004] ECR I-7655, para. 51; Case C-184/02 Spain and Finland v European Parliament and Council [2004] ECR I-7789, para. 79; Case C-342/03 Spain v Council [2005] ECR 1975, para. 55.

The statement of reasons must disclose in a clear and unequivocal fashion the reasoning followed by the authority which adopted the measure in such a way as enable the persons concerned to decide if they want to defend their rights by an application for judicial review.

Case C-269/90 TU München v Hauptzollamt München Mitte [1991] ECR I-5469, paras. 14, 26.

The principles of transparency and of participatory democracy

Article 10(3) TEU: ‘Every citizen shall have the right to participate in the democratic life of the Union. Decisions shall be taken as openly and as closely as possible to the citizen.’ Articles 11(1) and (3) TEU require Union institutions to hear views and opinions on EU measures and especially enter into consultation procedures.

These rights and obligations are applicable also to situations where the proceedings lead to the adoption of an act of general application including decisions with general applicability. In order to ensure that such hearing can effectively take place, active information of the public and structured means of feedback and response should be created.

The right of access to documents

See Regulation No 1049/2001.

Under Article 15 (3) TFEU:

Article 15(3) TFEU: ‘Any citizen of the Union, and any natural or legal person residing or having its registered office in a Member State, shall have a right of access to documents of the Union’s institutions, bodies, offices and agencies, whatever their medium, subject to the principles and the conditions to be defined in accordance with this paragraph…. Each institution, body, office or agency shall ensure that its proceedings are transparent and shall elaborate in its own Rules of Procedure specific provisions regarding access to its documents, in accordance with the regulations referred to in the second subparagraph….’; Charter, Article 42: ‘Any citizen of the Union, and any natural or legal person residing or having its registered office in a Member State, has a right of access to documents of the institutions, bodies, offices and agencies of the Union, whatever their medium.’

And under Article 42 of the Charter

Article 42 Charter: ‘Any citizen of the Union, and any natural or legal person residing or having its registered office in a Member State, has a right of access to documents of the institutions, bodies, offices and agencies of the Union, whatever their medium.’

This is a fundamental right of EU law and also a basic condition of an open, efficient and independent European administration. Any limitation of this principle must be narrowly construed to comply with the criteria of Article 52(1) of the Charter of Fundamental Rights of the European Union and must therefore be based on law, must respect the essence of the right and follow the criteria of proportionality.

The right to protection of personal data

This is embedded in Article 16(1) TEU and in Article 8 of the Charter.

Regulation (EC) no 45/2001 of the European Parliament and of the Council of 18 December 2000 on the protection of individuals with regard to the processing of personal data by the Community institutions and bodies and on the free movement of such data.

Special attention needs to be dedicated to data protection aspects of complex and intertwined administrative procedures involving as well EU institutions, bodies, offices and agencies as member States’ authorities, which are related to interadministrative information exchange and databases.

Given that many administrative procedures are inextricably linked to IT systems (e.g. EU PILOT for infringements, CHAP for COM communication with complainants, ARES for COM document management, GEDA and EPADES for EP document management, etc.),

The principle of transparent information management

This includes duties to record data processing activities.  See European Ombudsman ‘European Code of Good administrative behaviour’, Article 24 – Keeping of adequate records: ‘The Institution’s departments shall keep adequate records of their incoming and outgoing mail, of the documents they receive, and of the measures they take.’

This duty supports data protection and also fosters inter-administrative accountability and interaction with regard to collaborative information gathering. According to the principle of data quality, data used by the EU Administration shall be accurate, up-to-date and lawfully recorded. The data supplying authority shall be responsible for ensuring that the data are accurate, up-to-date and lawfully recorded.

___________________________

** This summary is made with due acknowledgement to the work of:

Diana-Urania Galetta, Professor of Administrative Law and European Administrative Law, University of Milan

Herwig C. H. Hofmann, Professor of European and Transnational Public Law,

Jean Monnet Chair, University of Luxembourg

Oriol Mir Puigpelat, Professor of Administrative Law, University of Barcelona
Jacques Ziller, Professor of EU law, University of Pavia

on an in-depth analysis for Directorate General for Internal Policies on the principles of EU Administrative Law.

 

Received a Getty Images threat letter?  Don’t know what to do about it?

Are they accusing you of using images without permission on your website or blog?

Are Getty Images demanding large amounts of money? 

Is a debt collector like Altradius harassing you for the money? 

Don’t understand copyright infringement?

If you have been threatened and don’t want to pay the very large sums Getty Images claim there is help.

It will cost you nothing to contact us to find out more: telephone 0208 663 0044 – email “mail { at } cliffordmiller.com” and include a copy of Getty Images’ copyright threat letter.

Many years ago someone came seeking help with one of these Getty Images threat letters and we told them it would cost more to get advice than to pay up so they went away.  And that bothered us then and since.  So after later taking on a couple of cases successfully we decided to offer a service like this.

It takes a lot more time to provide the service than it is worth to the average lawyer but we know these Getty Images threat letters worry people a great deal we so offer this service generally at well below normal cost semi-“pro bono“.  It helps the “little people” who are threatened even if it is just one image.   It also saves people in business a great deal of their time and worry and lets them get on with their business and do what they do best – earn a living.

Some people and businesses receive initial demands for thousands of dollars, pounds sterling [and almost any other currency you care to think of]. These Getty Images demand letters have earned the nickname with some as the Getty Images “extortion letter“. Business owners almost invariably are unaware of any potential problem until the Getty Images threat letter arrives. Often an independent website designer was responsible for selecting and including the alleged offending images in the business’ websites.

If you cannot phone or email right now you can still post a comment on this page at the end and let us know with some brief details of the problems you have experienced.  We will need your contact details to contact you so don’t forget an email address and/or a telephone number.  Or you can contact us via our website: Clifford Miller.

This post is an addendum to our main post on this topic found here:-

The Getty Images Rip-Off, You, Copyright & The Law – February 28, 2011

Clifford Miller’s legal practice website can be found here:-

Clifford Miller

He is a commercial lawyer with specialist expertise in:-

  • Intellectual Property
  • European & Competition/Anti-Trust Law
  • Computer Law & IT Law

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