Criteria for selecting the cases

The following legislative initiatives share one common feature: a great majority of them fall within the scope of the former third pillar of the EU, now called the AFSJ.⁵⁰⁰ Furthermore, each of them contains an element of

499 Kelsen 2008, p. 8. Here Kelsen notes that ”Gesetze sollen nicht nur auf die vorgeschriebene Weise zustande kommen, sondern dürfen auch keinen Inhalt haben, welcher die Gleichheit, die Freiheit, das Eigentum usw. verletzt. Die Verfassung hat dann nicht nur den Charakter von Prozess- d.h.

Verfahrensrecht, sondern auch den Charakter von materiellem Recht.“

500 The Data Retention Directive is the most important exception as it was agreed before the Lisbon Treaty entered into force. What makes the Directive extremely significant is that it perfectly illustrates how ex ante review of fundamental rights can go wrong in the legislative phase.

particular fundamental rights sensitivity – in other words provisions that have caused concern from the point of view of one or more fundamental rights. With this, I refer especially to fundamental rights enshrined in the EUCFR and ECHR, but potential conflicts with fundamental rights set out in national constitutions of Member States are also of relevance in this context. Moreover, common characteristics of the cases of PNR, Security Scanners, ACTA and the Data Retention Directive also include the essential position of two fundamental rights, namely the right to data protection and the right to privacy. These cases will be analysed especially in relation to these substantive fundamental rights in light of the evolving legal texts and the interpretation practice of the CJEU and the ECtHR. As we can see later, these draft legal instruments constituted interference with these fundamental rights.

The further this study progressed, the more I came to a conclusion that an especially important part of the analysis should focus on limiting fundamental rights. The key issue with the legislative dossiers has very often been a situation where certain fundamental rights are being limited, but there have been doubts whether these restrictions fulfil the basic requirements for limitations, i.e. to be provided with law, to be proportional and necessary in a democratic society, the respect for the essence of fundamental rights and so forth. I will also try to tackle this aspect relative to the legislative process and show how institutions involved in the ex ante review of EU legislation have executed it. These cases illustrate European constitutionalism in its pluralistic expression with the many actors carrying out ex ante review.

Whether these interferences qualify as permissible limitations to fundamental rights as set out in the EUCFR, and as interpreted by the CJEU and the ECtHR, remains to be explored. I have therefore devoted a subchapter in the text to limiting fundamental rights under Article 52 of the EUCFR. Key questions that we must tackle are: Did interferences with fundamental rights occur in these legal files? How was this interference detected? How was the fulfilment of limitation criteria verified and what was the role of different institutions? Finally, we can ask what the impact of the eventual legal texts on fundamental rights was. Due to the emphasis set on ex ante review of fundamental rights in this study, I have closely followed the legislative process on these particular files and tried to identify how fundamental rights aspects have been dealt with by different institutions and stakeholders. I have tackled these dossiers in chronological order of the legislative process and analysed fundamental rights related positions and concerns of different institutions.

Regarding the Commission, the main focus of the analysis has been quite naturally on its initial proposals for legislation. This is only one part of the Commission’s contribution in the law-making process, thus I have also studied impact assessments and explanatory memoranda that have accompanied the proposed legislative acts. I think that especially this phase is important because it is a way to look inside the Commission’s internal legislative and preparatory machinery. The status of fundamental rights considerations is central in the impact assessment. In spite of this glance inside the Commission, we should bear in mind that this is only the façade towards the outside world. It is impossible to illustrate the Commission’s internal

decision-making process with all the changes made to the draft texts, in particular in the inter-service consultation phase and the level of chefs de cabinets and finally the college. This information is not publicly available.

If we then turn to the Council, we must pay attention to the Council proceedings at the ministerial level. It would be useful to use to the full extent evolving drafts of the Council Working Groups and the Coreper, but unfortunately these texts are not always available. This being the case, we must mainly resort to public sources at our disposal that give hints and indications about how the Council as a whole dealt with – and to which directions it steered – the legislative proposals. In addition to only press releases, it is possible to follow the evolution of Council position and texts by analysing different Council documents that have been made publicly available. A practical problem for the researcher is the rather scarce availability of Council texts. Moreover, if texts are made available it is often the case that the most sensitive parts of the texts are deleted in order to preserve the confidential nature of Council proceedings with delicate topics.⁵⁰¹ The council documents used in this study mainly consist of press releases, but most importantly of the different Council versions of legislative texts. By following the different Presidency compromise texts, it is possible to identify the changes made to the previous texts and hence pinpoint the way towards which the Council is heading in its position.

In this context we should note the highly important EU discussion on public access to EU documents. The legal framework for public access has been set out in the EP and Council Regulation 1049/2001.⁵⁰² The application of the Regulation by the Council has been inadequate, however, as public access has been quite restricted to, for example, details on the positions of delegations.

To this effect, the CJEU took a historical position in its verdict in case Access Info Europe on 17 November 2013.⁵⁰³ This NGO had submitted a request for Council documents to the Council Secretariat, which provided the documents but did not disclose delegation details. The Council was against issuing the documents with all the relevant information and justified its stance with the derogation provision of the Regulation, namely Article 4(3). According to the Council, a detrimental effect to the decision-making process and sensitivity of the information were at issue.

In the vivid discussion, the EP took a side with the NGO and positioned itself against the Council by interfering in the legal process. The General Court of the EU came out with a ruling on 22 March 2011 and ruled the case in favour of the Access Info Europe.⁵⁰⁴ The CJEU ruling C-280/11 in 2013 confirmed the interpretation of the General Court. This can be considered to be a real victory for transparency in the Council decision-making and the public access to

501 This inevitably leads to the situation where the somewhat sporadic selection of Council texts can only provide a partial picture of where the Council stood at a given time on a given outstanding issue. In this case, the researcher must do their best to try to collate the big picture from different sources.

502 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.

503 C-280/11 Council v Access Info Europe, 17 October 2013.

504 T-233/09 Access Info Europe v Council, 22 March 2011.

information. In this case, an alliance between the EP and NGOs was formed that strove for greater transparency. Now the Council must open its processes to the public to a greater extent. Despite this, it remains somewhat unclear how the Council will in practical terms carry out the disclosure of the delegation information. Furthermore, this interesting strand of discussion has progressed as the handling of the recast of the Regulation on public access to information has continued since 2008 when the Commission presented its proposal for a recast in the context of the European Transparency Initiative.⁵⁰⁵ In this discussion, a dividing line can also be seen between the EP and the EDPS on one hand, and the Council on the other hand. The Commission has also been criticized for a low level of ambition.

I will base my arguments on EP resolutions and draft reports on draft legal instruments. I will argue that particularly the EP has raised significant fundamental rights concerns throughout legislative processes and sought to strengthen the ex ante review of EU legal acts. My further conclusion is as follows: I believe that especially the EP has extensively used expert opinions of the FRA and thus brought these views to the political discussion and hence all the way to the legislative process. It seems that EP was active in this field already before the change of the constitution framework, i.e. the Lisbon Treaty, and now with its role of the co-legislator also in the former third pillar matters it has taken an extremely high profile in fundamental rights protection. This has happened through the ex ante review of fundamental rights. From a general EU policy point of view, it is interesting that the EP position has often run counter to the Commission’s position. Therefore, there is no way of talking about the EP and the Commission “being in the same plot”

seeking support from each other as is the case in many other policy areas.

I also study the role of the FRA in the legislative process. It is somewhat early to analyse the impacts of the FRA on some key dossiers, but it seems that the FRA has taken a strong role, especially when it comes to exploring the impacts of draft legal texts on fundamental rights. The material used in this study suggests that the expert legal opinions of the FRA have often politically crystallized in the position of the EP in the legislative files. Therefore, one could say that the impact of the FRA has been both direct and indirect and we have a good reason to deal with the FRA as a key player occupying a rather neutral role in the EU legislative process. Finally, I should mention that yet another important stakeholder in legal cases associated with right to data protection and right to privacy is the EDPS. The scope of activity of the EDPS is more limited compared with the FRA, for example, but it has strong expertise in these special fields of European law and it also has clear authority even to impose its views also on the EU legislator in these special questions.

The involvement of so many actors in this ex ante form of constitutional review

505 Proposal for a Regulation of the European Parliament and of the Council regarding public access to European Parliament, Council and Commission documents COM (2008) 229 final, 30 April 2008.

After the entry into force of the Lisbon Treaty the Commission presented a renewed proposal, see Proposal for a Regulation of the European Parliament and of the Council amending Regulation (EC) No 1049/2001 regarding public access to European Parliament, Council and Commission documents COM(2011) 137 final 21 March 2011.

offers interesting practical insights into the development of European pluralistic constitutionalism.

It would have been interesting to also study other topical fundamental right sensitive EU legislative cases, in particular the recent data protection reform package.⁵⁰⁶ This package was negotiated for quite some time and various issues with fundamental rights were debated at great length during the decision-making process.⁵⁰⁷ Tackling this set of new rules for data protection in the EU would require a dissertation focused entirely on this topic. Other topical cases of interest for the theme of this study falling under ordinary legislative procedure include directive on trafficking in human beings⁵⁰⁸ and the Eurodac regulation⁵⁰⁹, both important legislative files but beyond the practical reach of this dissertation.⁵¹⁰

It is essential to utilize mainly official documents of the EU and let them

“speak with their own voice”. This illustrates, in its purest sense, the positions of the legislative institutions involved in the law-making process. The sources mainly consist of legislative proposals of the Commission and the related preparatory documents, such as impact assessments. When the Commission has presented its proposal, the legislative institutions, the Council and the EP for their positions on the initiatives and it is possible to follow-up how fundamental rights are treated in these positions. Furthermore, consultative bodies, FRA and EDPS, need to be heard during the process. All these documents can be characterized as EU preparatory documents, which do not have such legal status as preparatory works in some national legal systems.

They are, however, important in terms of illuminating the positions of the institutions in relation to negative and positive obligations during different

506 For initial proposals see Proposal for a Regulation of the European Parliament and of the Council on the protection of individuals with regard to the processing of personal data and on the free movement of such data (General Data Protection Regulation), COM(2012) 11 final, Brussels, 25.1.2012 and Proposal for a Directive of the European Parliament and of the Council on the protection of individuals with regard to the processing of personal data by competent authorities for the purposes of prevention, investigation, detection or prosecution of criminal offences or the execution of criminal penalties, and the free movement of such data, COM(2012), Brussels, 25.1.2012.

507 It can be observed that especially the EP was a very active institution in promoting positive obligations in the texts during the negotiations. These positions often originated from the FRA.

508 Proposal for a Directive of the European Parliament and of the Council on preventing and combating trafficking in human beings and protecting victims, repealing Framework Decision 2002/629/JHA. COM (2010) 95 final, 29 March 2010. For a concise overview of human trafficking set in the context of international human rights see Obokata Tom: Trafficking of Human Beings from a Human Rights Perspective. Towards a Holistic Approach. Martinus Nijhoff Publishers. Leiden 2006.

509 Regulation (EU) NO 603/2013 of the European Parliament and of the Council of 26 June 2013 on the establishment of Eurodac for the comparison of fingerprints for the effective application of Regulation (EU) No 604/2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person and on requests for the comparison with Eurodac data by Member States' law enforcement authorities and Europol for law enforcement purposes, and amending Regulation (EU) No 1077/2011 establishing a European Agency for the operational management of large-scale IT systems in the area of freedom, security and justice (recast), OJ L 180/1, 29.6.2013.

510 These three cases demonstrate the importance of ex ante review of fundamental rights in the EU.

Also in these cases, the EP put a great deal of political pressure to the negotiations on taking a stronger view on fundamental rights in the dossiers concerned. FRA and EDPS positions were taken to the process mainly through the EP.

phases of law-making process. Research literature remains scarce on especially some of the files and, even if it exists, I have considered basing my findings on negative and positive obligations on the primary sources rather than second-hand sources important for the research theme.