By Emilio DE CAPITANI, Henri LABAYLE and Steve PEERS
This week, Members of the European Parliament (MEPs) will continue interviewing candidates for the next European Commission to decide on its confirmation. MEPs have already posed written questions and received responses. However, the upcoming oral hearings offer MEPs a crucial opportunity to understand the Commissioners’ intentions and secure key political promises.
This blog post proposes questions for MEPs to ask two potential Commission Vice-Presidents: the High Representative for the Common Foreign and Security Policy and Commission Vice President for external relations (Mogherini), and the Commissioner for Better Regulation, Fundamental Rights and the Rule of Law (Timmermans). The questions for Ms. Mogherini center on institutional matters, assuming MEPs will address substantial foreign policy issues separately.
QUESTIONS TO HIGH REPRESENTATIVE CANDIDATE MOGHERINI
1. External vs Internal Security Policy
Your written response emphasizes the need for a unified, global approach to both external and internal security. However, these two dimensions are legally separated within the Treaties by a disconnection clause (Article 40 of TEU). This clause designates external security as intergovernmental, requiring consensus among the 28 Member States, lacking legislative powers, and falling outside the Court of Justice’s full jurisdiction.
Considering these limitations of the EU external security policy (particularly regarding democratic principles and the rule of law), would achieving some goals be more effective by leveraging the external aspects of “internal” policies (such as border protection, migration, judicial and police cooperation)? This would establish qualified majority voting as the norm, allow EP approval of external agreements (as seen with certain EU-US agreements), and place EU actions under the Court of Justice’s oversight.
2. Solidarity clause in case of terrorist attack or natural or man made disaster (art. 222 TFEU)
On June 24, 2014, based on a joint proposal from your predecessor and the Commission, the Council approved the procedures for implementing the solidarity clause (Article 222 TFEU). This clause is triggered if a Member State experiences a terrorist attack or suffers from a natural or human-made disaster. The text was adopted without involving the EP and lacks provisions for formally informing the European Parliament about the process of threat definition and monitoring, even in the event of such an incident. Although the Treaty doesn’t mandate this information sharing, the Council could have included it. It seems illogical for MEPs to learn about a terrorist attack through media reports instead of official channels.
Will you propose amending that Decision to ensure appropriate involvement of the EP?
3. Global Approach to Migration and mobility partnership as a binding act
Your written response correctly identifies EU development policy and international agreements as potential solutions to address the root causes of displacement. However, the Global Approach to Migration and the mobility partnership are merely diplomatic instruments, lacking weight without a framework of comprehensive international agreements.
Should these instruments transform into legally binding agreements (obligating both third countries and the EU and its Member States) and be complemented by formal agreements between the EU and relevant UN Agencies (UNHCR, IOM)? Such agreements could define tasks and financing for interventions in third countries.
4. Agreements on the exchange of confidential information with third countries
Since 2000, the Council of the European Union has established numerous international agreements concerning the exchange of confidential information with third-party states and international organizations. Despite the Lisbon Treaty’s entry into force and Article 218(10) of the TFEU, which mandates the European Parliament’s “immediate and full information” during such negotiations, this has not happened.
Worsening the situation, these agreements follow a model (initially established for the EU-NATO agreement) where the Council concludes the agreement on behalf of the European Union. This grants the other participating party veto power over sharing classified information with any third party, including the European Parliament.
In line with the EU’s democratic principles and the principle of loyal cooperation following the Lisbon Treaty, do you believe these agreements require amendments?
5. Art 9 of Regulation 1049/2001 and future revision of the Agreement on the exchange of classified information
Article 9 of Regulation 1049/2001 provides a concise framework for handling classified information categorized as “confidential,” “secret,” and “top secret.” However, there’s no defined criteria for classification or declassification.
Given that limitations on fundamental rights should be legally grounded, not based on internal organizational rules (the EUCI rules), will you propose a revision of Article 9 of Regulation 1049/2001?
Revision of the agreement on exchanging confidential information with the Council, covering areas previously under the second pillar, is currently underway.
If the EP requests declassification after determining a document’s classification is too high, will you consider this request?
6. International negotiations and provisional application
In principle, the negotiation mandate for an international agreement should specify the intended legal basis (refer to the CITES judgment of the CJEU). This wasn’t the case for ACTA, TTIP, and currently, the EU-USA umbrella agreement on data protection.
Do you agree that this element is essential for the mandate’s legality, even if negotiations might lead to adjustments of the legal basis?
The European Parliament’s consent is required for signing international agreements not exclusively related to the CFSP. For mixed agreements (such as those on external trade), provisional application is possible, preventing the EP from delaying implementation without rejecting the entire agreement.
Wouldn’t it be more sensible to present the EP with two distinct draft Decisions, one for the agreement and another for its provisional application?
7. Consular Protection
Despite being outlined in the Maastricht Treaty, the right to consular protection remains an underdeveloped aspect of EU citizens’ rights. This is due to Member States’ reluctance to adopt even the Commission’s proposal for establishing a solidarity mechanism in this area.
Will you work to convince Member States that adopting the Commission’s proposal is in their own best interest?
QUESTIONS TO FRANS TIMMERMANS
Unusually, this hearing won’t adhere to the EP’s detailed internal rules (Article 118 and Annex XVI of the EP’s Rules of Procedure), which stipulate hearings before Parliamentary committees. Instead, Candidate Vice President Timmermans will face the Conference of Presidents of political Groups.
1.Rule of law / implementation of EU law
Maintaining trust in the rule of law within Member States, from both EU citizens and national authorities, is crucial for fostering mutual confidence and advancing the EU as “an area of freedom, security and justice without internal frontiers.”
Your written response expresses strong support for the recent Commission proposal for a “common rule of law framework” (COM(2014)158), echoing the European Parliament’s longstanding advocacy (though criticized by the Council Legal Service). However, such an endeavor, encompassing all EU member states, risks becoming inconsequential if the Commission doesn’t bolster mechanisms upholding the principle of sincere cooperation among Member States. For instance, the Treaties provide no basis for confidential discussions between the Commission and individual Member States (even within the “EU Pilot mechanism”) when legal certainty regarding the scope of EU citizens’ rights and obligations is at stake.
As initial steps to strengthen the rule of law, wouldn’t the following be appropriate:
- Modernize how the Commission interacts with Member States daily regarding EU legislation implementation?
- Make Member States’ implementation plans public, along with a table correlating EU and national rules?
- Implement (five years after the Lisbon Treaty’s enactment!) Article 70 TFEU, which calls for an “objective and impartial evaluation of the implementation of the Union policies” regarding Justice and Home Affairs law, by consistently informing the European and national parliaments?
- Conduct annual reviews of European Court rulings and corresponding national-level measures taken?
2. Charter of Fundamental rights as a “roadmap” for the EU legislator ?_
In a recent landmark ruling, the Court of Justice overturned an EU Directive (the Data Retention Directive 2006/24) for the first time. The Court stated that “.., the EU legislature has exceeded the limits imposed by compliance with the principle of proportionality in the light of Articles 7, 8 and 52(1) of the Charter." According to the CJEU, the Directive “..does not lay down clear and precise rules governing the extent of the interference with the fundamental rights enshrined in Articles 7 and 8 of the Charter” and, furthermore, “does not require the data in question to be retained within the European Union, with the result that it cannot be held that the control, explicitly required by Article 8(3) of the Charter, by an independent authority of compliance with the requirements of protection and security, as referred to in the two previous paragraphs, is fully ensured…” In essence, the Court of Justice will now demand rigorous assessment of the proportionality and necessity of measures significantly restricting fundamental rights, regardless of the EU legislature’s objectives.
Considering this crucial ruling, shouldn’t your priority be revising legislation within the sphere of judicial and police cooperation in criminal matters adopted before the Charter and the Treaty of Lisbon came into effect, ensuring its proportionality?
Will you commit to a more robust and transparent approach in addressing EU law infringements where a Member State’s inadequate or absent implementation of its EU law obligations threatens Charter rights?
Given your focus on the REFIT exercise, would it be prudent to establish “sunset clauses” for measures limiting EU citizens’ rights? Additionally, regarding data protection, doesn’t this ruling raise significant doubts about the proportionality of the EU-US agreements on PNR and TFTP and the Commission’s legislative proposals on the EU-PNR and the “Entry-Exit” system (not to mention the “trusted traveller” proposal’s potential conflict with the principle of non-discrimination)?
3 Better Regulation –interinstitutional agreement on codecision – Transparency
Your written response acknowledges shortcomings in the current inter-institutional agreement on better lawmaking but only anticipates its revision by the end of 2015. However, this delay allows practices contradicting the Treaties’ spirit and text to persist. For instance, the Treaties no longer mention protecting the decision-making process for legislative procedures and require public debates even at the Council level. Despite this new legal framework, the Commission has not taken steps to align the Council and EP on revising Regulation 1049/2001 or to secure a sufficient majority within the Council (an issue you should be familiar with as a former Dutch minister).
As an immediate priority, will you amend the 2008 Commission proposal on access to documents by aligning it with Article 15 TFEU, Article 42 of the Charter, and the European Parliament’s position from December 2011?
Considering the Council’s de facto imposition of its internal security rules as standards for classified documents on other EU institutions, agencies, and bodies, wouldn’t you agree that the current situation contradicts the Treaty’s requirement for a legislative measure under Article 15 TFEU?
4. Delegated / Implementing acts - Transparency
After the Lisbon Treaty, rather than applying the subsidiarity principle case-by-case to define essential rules, delegable elements, and purely executive aspects for each policy, the Commission opted for a “horizontal” approach. This approach relies on pre-existing Committee types as its primary reference.
This “shortcut” disregards developments in various policies and institutional roles. It also proves less efficient than adapting EU legislative objectives to the revised Treaties and the Charter.
Regarding transparency, you state that you “will also consider whether the Commission could systematically publish draft measures at the point at which consultations with expert groups are due to start. This would allow the European Parliament and the Council as well as other stakeholders to express their views before formal adoption. The three institutions could discuss whether a dedicated Register could be part of the solution and depending on the conclusions reached, I would be ready to examine the feasibility of this option and its inclusion in the modernised inter-institutional agreement on better law-making.”
Are you aware that Regulation 1049/2001 already mandates this obligation? It states: “Wider access should be granted to documents in cases where the institutions are acting in their legislative capacity, including under delegated powers, while at the same time preserving the effectiveness of the institutions’ decision-making process. Such documents should be made directly accessible to the greatest possible extent.”
5. Subsidiarity in the Area of Freedom, Security and Justice
In your written response, you reference your initiative, as former Dutch Minister of Foreign Affairs, on how the EU should uphold the principles of subsidiarity and proportionality. However, the 54 recommendations issued by your government a year ago advocate for a less ambitious EU approach in the area of freedom, security, and justice regarding:
- consular protection for EU citizens abroad (despite this right existing only nominally since its Maastricht Treaty establishment)
- family reunification (with NL recommending stricter age and civic integration requirements)
- admission of third-country nationals for research, studies, pupil exchange, etc. (NL believes exchange program students, unpaid interns, volunteers, and au pairs shouldn’t be included)
- harmonizing criminal procedure law (NL believes “legislation should not be ‘Lisbonised’ simply because the Treaty of Lisbon exists” and opposes “the introduction of legislative proposals purely on the grounds that the Council of Europe has already adopted a Convention on the same subject” (Note: This begs the question, why ratify the Lisbon Treaty and a binding Charter if the previous system sufficed, and why bother with the EU if the Council of Europe is sufficient?)
- harmonizing substantive criminal law (NL opposes EU proposals enforcing criminal laws against identity fraud and customs law violations) and revising money laundering legislation.
As Commission Vice President, will you uphold this same approach?
6. EU agencies and their powers /accountability
Over the past decade, the number of EU agencies has surged from 10 to 32. While sometimes justified by technical needs, this increase often allows Member States to influence and control EU policies without true accountability to the Commission, the European Parliament, or national parliaments. With a combined 2014 budget of 800 million euros and over 6,000 staff members, they form a parallel administration operating with unclear legal and administrative boundaries. The Common Approach to decentralised agencies (a 2012 “political” agreement between the Council, Commission, and European Parliament) established parameters for EU agencies’ creation, hosting, human resources, transparency, and accountability. However, it mostly serves as a superficial measure. More concerning is the trend of agencies becoming political agenda-setters. The roles of Frontex and Europol (managing the “policy cycle” that defines EU priorities against crime) within the FSJA exemplify this.
How will you reestablish a truly binding administrative framework and reinforce the rule of law principles for these “independent” EU bodies?
You proposed an “Inter-Institutional Agreement creating a mandatory lobby register covering the Commission, the European Parliament and the Council.” Given instances of conflict of interest, will you include EU agencies in this register?
ANNEX
Article 40 (ex Article 47 TEU)
The implementation of the common foreign and security policy shall not affect the application of the procedures and the extent of the powers of the institutions laid down by the Treaties for the exercise of the Union competences referred to in Articles 3 to 6 of the Treaty on the Functioning of the European Union.
Similarly, the implementation of the policies listed in those Articles shall not affect the application of the procedures and the extent of the powers of the institutions laid down by the Treaties for the exercise of the Union competences under this Chapter.
The model agreement state “The EU institutions and entities to which this Agreement applies shall be: the European Council, the Council of the European Union (hereafter ‘the Council’), the General Secretariat of the Council, the High Representative of the Union for Foreign Affairs and Security Policy, the European External Action Service (hereafter ‘the EEAS’) and the European Commission. For the purposes of this Agreement, these institutions and entities shall be referred to as ‘the EU”.
Rule 118 Election of the Commission
1. The President shall, after consulting the President-elect of the Commission, request the nominees proposed by the President-elect of the Commission and by the Council for the various posts of Commissioner to appear before the appropriate committees according to their prospective fields of responsibility. These hearings shall be held in public.
2. The President may invite the President-elect of the Commission to inform Parliament about the allocation of portfolio responsibilities in the proposed College of Commissioners in accordance with his or her political guidelines.
3. The appropriate committee or committees shall invite the Commissioner-designate to make a statement and answer questions. The hearings shall be organised in such a way as to enable Commissioners-designate to disclose to Parliament all relevant information. Provisions relating to the organisation of the hearings shall be laid down in an annex to these Rules of Procedure16.
4. The President-elect shall present the college of Commissioners and their programme at a sitting of Parliament which the President of the European Council and the President of the Council shall be invited to attend. The statement shall be followed by a debate.
5. In order to wind up the debate, any political group or at least 40 Members may table a motion for a resolution. Rule 123(3), (4) and (5) shall apply.
Following the vote on the motion for a resolution, Parliament shall elect or reject the Commission by a majority of the votes cast.
The vote shall be taken by roll call.
Parliament may defer the vote until the next sitting.
6. The President shall inform the Council of the election or rejection of the Commission.
7. In the event of a substantial portfolio change during the Commission’s term of office, the filling of a vacancy or the appointment of a new Commissioner following the accession of a new Member State, the Commissioners concerned shall be invited to appear before the committees responsible for the areas of responsibility in question in accordance with paragraph 3.
ANNEX XVI Guidelines for the approval of the Commission
1. The following principles, criteria and arrangements shall apply for making the entire College of the Commission subject to Parliament’s vote of consent:
(a) Basis for assessment
Parliament shall evaluate Commissioners-designate on the basis of their general competence, European commitment and personal independence. It shall assess knowledge of their prospective portfolio and their communication skills.
Parliament shall have particular regard to gender balance. It may express itself on the allocation of portfolio responsibilities by the President-elect.
Parliament may seek any information relevant to its reaching a decision on the aptitude of the Commissioners-designate. It shall expect full disclosure of information relating to their financial interests. The declarations of interest of the Commissioners-designate shall be sent for scrutiny to the committee responsible for legal affairs.
(b) Hearings
Each Commissioner-designate shall be invited to appear before the appropriate committee or committees for a single hearing. The hearings shall be held in public.
The hearings shall be organised by the Conference of Presidents on a recommendation of the Conference of Committee Chairs. The Chair and coordinators of each committee shall be responsible for the detailed arrangements. Rapporteurs may be appointed.
Appropriate arrangements shall be made to associate relevant committees where portfolios are mixed. There are three options:
(i) if the portfolio of the Commissioner-designate falls within the remit of a single committee, the Commissioner-designate shall be heard by that committee alone (the committee responsible);
(ii) if the portfolio of the Commissioner-designate falls more or less equally within the remit of more than one committee, the Commissioner-designate shall be heard jointly by those committees (joint committees); and
(iii) if the portfolio of the Commissioner-designate falls mainly within the remit of one committee and only to a small extent within the remit of at least one other committee, the Commissioner-designate shall be heard by the committee mainly responsible, with the association of the other committee or committees (associated committees).
The President-elect of the Commission shall be fully consulted on the arrangements.
The committees shall submit written questions to the Commissioners-designate in good time before the hearings. For each Commissioner-designate there shall be two common questions drafted by the Conference of Committee Chairs, the first relating to the issues of general competence, European commitment and personal independence, and the second relating to the management of the portfolio and cooperation with Parliament. The committee responsible shall draft three other questions. In the case of joint committees, they shall each be given the right to draft two questions.
Each hearing shall be scheduled to last three hours. Hearings shall take place in circumstances, and under conditions, in which Commissioners-designate enjoy an equal and fair opportunity to present themselves and their opinions.
Commissioners-designate shall be invited to make an opening oral statement of no longer than 15 minutes. Where possible, questions put during the course of the hearing shall be grouped together by theme. The bulk of the speaking time shall be allotted to political groups, mutatis mutandis in accordance with Rule 162. The conduct of the hearings shall aim to develop a pluralistic political dialogue between the Commissioners-designate and the Members. Before the end of the hearing, Commissioners-designate shall be given the opportunity to make a brief closing statement.
There shall be a live audio-visual transmission of the hearings. An indexed recording of the hearings shall be made available for the public record within 24 hours.
(c) Evaluation
The Chair and coordinators shall meet without delay after the hearing to evaluate the individual Commissioners-designate. Those meetings shall be held in camera. The coordinators shall be invited to state whether, in their opinion, the Commissioners-designate are qualified both to be members of the College and to carry out the particular duties they have been assigned. The Conference of Committee Chairs shall design a pro forma template to assist the evaluation.
In the case of joint committees the Chair and the coordinators of the committees concerned shall act jointly throughout the procedure.
There shall be a single evaluation statement for each Commissioner-designate. The opinions of all the committees associated with the hearing shall be included.
Where committees require further information in order to complete their evaluation, the President shall write on their behalf to the President-elect of the Commission. The coordinators shall take the latter’s reply into consideration.
If the coordinators are unable to reach a consensus on the evaluation, or at the request of one political group, the Chair shall convene a full committee meeting. As a last resort, the Chair shall put the two decisions to the vote by secret ballot.
The committees’ statements of evaluation shall be adopted and made public within 24 hours after the hearing. The statements shall be examined by the Conference of Committee Chairs and conveyed subsequently to the Conference of Presidents. Unless it decides to seek further information, the Conference of Presidents, following an exchange of views, shall declare the hearings closed.
The President-elect of the Commission shall present the whole College of Commissioners-designate and their programme at a sitting of Parliament which the President of the European Council and the President of the Council shall be invited to attend. The presentation shall be followed by a debate. In order to wind up the debate, any political group or at least 40 Members may table a motion for resolution. Rule 123(3), (4) and (5) shall apply.
Following the vote on the motion for a resolution, Parliament shall vote on whether or not to give its consent to the appointment, as a body, of the President-elect and Commissioners-designate. Parliament shall decide by a majority of the votes cast, by roll call. It may defer the vote until the following sitting.
2. The following arrangements shall apply in the event of a change in the composition of the College of Commissioners or a substantial portfolio change during its term of office:
_ (a) When a vacancy caused by resignation, compulsory retirement or death is to be filled, Parliament, acting with dispatch, shall invite the Commissioner-designate to participate in a hearing under the same conditions as those laid down in paragraph 1._
(b) In the event of the accession of a new Member State, Parliament shall invite the Commissioner-designate to participate in a hearing under the same conditions as those laid down in paragraph 1.
(c) In the event of a substantial portfolio change, the Commissioners affected shall be invited to appear before the committees concerned before taking up their new responsibilities.
By way of derogation from the procedure laid down in paragraph 1(c), eighth subparagraph, when the vote in plenary concerns the appointment of a single Commissioner, the vote shall be by secret ballot.
Barnard & Peers: chapter 3, chapter 5, chapter 9, chapter 24