The first vice-president of the European Commission, Frans Timmermans, said at the end of last week: ‘The European Union is not just a market or a currency, it is first and foremost a Union of values.’
That description is often forgotten in our rancorous Brexit debates. I am sure that, whichever side we favour, we do not intend to abandon the values. Some may have problems with the consequences of the market or the currency, but I have heard little dispute about the values.
Timmermans was launching the Commission’s annual report on the application of the EU Charter of Fundamental Rights, citing a long list of achievements in 2016.
I give below some of the headline results, with the relevant article of the Charter in brackets at the end, both because these initiatives will govern our legal advice for the next two years, and in any case to see how the initiatives fall within the Charter, and so within the EU’s values.
The next two years? The period of applicability of EU law is likely to be longer than that. The annex to the negotiating guidelines of the European Council, recently published, clarifies this point. Articles 32 and 33 cover what is called ‘ongoing judicial cooperation between Member States under Union law’. They state that such cooperation should last beyond Brexit, to cover ongoing proceedings at the date of withdrawal and choices of forum or law made before withdrawal. This is what the articles say verbatim:
- 32. The Agreement should provide for arrangements relating to judicial cooperation proceedings governed by Union law which are ongoing on the withdrawal date. It should establish in particular that such procedures remain governed until their completion by the relevant provisions of Union law applicable before the withdrawal date.
- 33. Regarding judicial cooperation in civil and commercial matters between the United Kingdom and the EU27, the Agreement should ensure that the recognition and execution of national judicial decisions handed down before the withdrawal date remain governed by the relevant provisions of Union law applicable before the withdrawal date. The Agreement should also ensure the continued application of the rules of Union law relating to choices of forum and choices of law made before the withdrawal date.
With that in mind, here is the list of EU Charter achievements from 2016:
- Two new regulations were adopted to help international couples, whether in a marriage or a registered partnership, to manage their property on a daily basis and to divide it in the event of divorce or one of them dying (Council Regulations (EU) 2016/1103 and (EU) 2016/1104) (Article 7 - right to family life)
- The Commission proposed new rules under the Brussels IIa Regulation which, once adopted, will improve the protection of children in cross-border parental responsibility disputes related to custody (COM/2016/0411 final, 30.06.2016) (Article 7 - right to family life)
- The right to a fair trial was improved by a set of adopted directives: on the presumption of innocence and the right to be present at the trial (Directive (EU) 2016/343); on legal aid (Directive (EU) 2016/1919) and on procedural safeguards for children (Directive (EU) 2016/800) (Articles 47 and 48 - the right to a fair trial)
- The Commission launched an online dispute resolution platform to help consumers resolve their disputes with EU traders cheaply and quickly after online purchase, and in any EU official language (Article 38 – consumer protection)
- The General Data Protection Regulation (Regulation (EU) 2016/679) and the Data Protection Directive for Police and Criminal Justice Authorities (Directive (EU) 2016/680) will govern data protection, once implemented; similarly, their transatlantic counterparts - the EU-US Privacy Shield to ensure the free flow of personal data for commercial purposes between the EU and US companies; and the Umbrella Agreement, which provides for a high level of data protection for any transfer of personal data between the EU and the United States in the context of police or judicial cooperation in criminal matters - now govern EU to US data flows (Article 8 - protection of personal data).
- The Commission reached an agreement with Facebook, Twitter, YouTube and Microsoft last year on a code of conduct on countering illegal hate speech online, in which the companies undertook, inter alia, to review in less than 24 hours the majority of valid notifications received from citizens and civil society for removal of illegal content publicly inciting violence and hatred; and to assess them also in the light of national criminal laws transposing EU law.
We are shortly to enter the period of negotiation. None of us wants a deterioration in our rights post-Brexit. To ensure that, the government should make arrangements to protect the existing Charter rights of those of our citizens whose lives will be affected by withdrawal from the EU.