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Vice-President of the European Commission, EU Justice Commissioner
"I am just a first pillar girl"
Dinner of the Assises de la Justice /Brussels
21 November 2013
It is always a pleasure to listen to such a brilliant lawyer as Hubert Legal. I am very used to the strength of his arguments from the discussions in Council.
At every Council, he sits on the other side of the table, opposite me, just as this evening. But this does not mean that his legal arguments are always on the opposite side, quite the contrary. I my 14 years as Commissioner, I have in fact witnessed the Legal Service of the Council defending European law, our specific institutional framework and the méthode communautaire as much as we in the Commission.
For example, we agree fully with each other that Article 114 Treaty on the Functioning of the European Union (TFEU) is the right legal basis for important Commission proposals such as the optional Common European Sales Law or the Single Resolution Mechanism for banks.
The only disagreement we have at the moment with Hubert Legal is on the legal basis of the Women Quota Directive. However, I count on the women in the Council Legal Service to help me change his mind about this one over the next few months!
This evening, whilst complementing the wise analysis of Hubert Legal, I wanted to share with you a few thoughts about my practical experience of decision-making on Justice matters during the first months of my mandate as EU Justice Commissioner.
When President Barroso nominated me as the first ever EU Justice Commissioner in November 2009, I had gained my experience of European policy-making almost exclusively in what at the time was the "first pillar".
In short: I was a first pillar girl.
And now I was coming to the very special world of Justice and Home Affairs Councils.
President Barroso knew very well what he was doing when he appointed a first pillar girl to Justice. He had very deliberately entrusted me with a policy area which had been to a large extent locked into the EU's third pillar for more than 15 years; and which was now being transferred to the first pillar by the new Treaty of Lisbon that entered into force only three days after my nomination. This was the moment European justice policy was born, one could say.
President Barroso probably anticipated this could become a rather explosive combination: the first pillar girl meets the former third pillar guys – yes, most of them were guys. The combination of the first pillar girl and the third pillar guys was bound to lead to a chemical reaction. It was bound to first produce conflict, then creativity and finally new and unexpected results, thereby setting free a lot of energy, a bit like a firework.
And President Barroso was proven right very quickly, as the first months of the mandate showed. The brand new Lisbon Treaty had abolished the pillars in law, but not in everyone's minds.
Let me tell you about three incidents that illustrate this and which in the meantime have made legal history.
The first incident took place during the very first days of my mandate as EU Justice Commissioner. As you may recall, the Commission was only confirmed by the European Parliament on 10 February 2010, following problems with the confirmation of the Commissioner designate from Bulgaria. Between 27 November 2009 and 10 February 2010, the Commission had been an acting Commission only, which could only take care of current affairs but not make new initiatives.
But the third pillar boys could not wait for the first pillar girl to sit down and come up with proposals. Despite the new Treaty and a European Council programme asking for the Commission to present proposals, the mind-set had not changed. A Member State initiative – on procedural rights – was on the table even before I had been made Justice Commissioner. This of course did not discourage the first pillar girl from setting the record straight: immediately after taking office in February my first proposal was the procedural rights Directive on the right to interpretation and translation. I wanted to make sure that Lisbon was put in action. And I wanted to put the Charter of Fundamental Rights in action, which had been a bit neglected in the drafting of the Member States' initiative.
Of course, this led to some conflict, but in the end, with the help of the European Parliament, together we could ensure that the final legislative text reflected a high standard of fundamental rights protection, as required under the Charter. And we achieved something else: There was no longer any great appetite to repeat a situation in which two competing proposals were on the table, one from the Member States and one from the Commission. Since that time, we have therefore seen all proposals in the field of justice, with only one exception, being made by the Commission, each after a solid fundamental rights impact assessment.
The second incident was on the protection of victims of violence – les femmes battues – and the well-meant European Protection Order, an initiative of the Spanish government at the time. For them, it was imperative to have something proposed and adopted during the lifetime of the Presidency, this means within six months. This was the traditional way of doing business in the third pillar. The aim was just to have something in the statute book, more as a statement of policy intention than as an actual legal instrument which could be upheld in practice in national legal orders. That was the problem: because the Member State initiative on a European Protection Order could only work in half of the Member States, as it required a rather strange mix of criminal and civil law. The Member States' initiative had not been properly thought through, there had been no proper impact assessment and no broad consultation, as is standard practice in the first pillar.
There were lively discussions in the Council on this initiative, and a fascinating debate about the need to respect the differences between criminal and civil law also in well-meant policy initiatives. This led to a blocking minority in the Council against the Presidency and supporting the Commission views – a rather unique situation. There was again conflict, and in the end a good solution was found: we separated the instrument in two, and today, after intense work there is a criminal European Protection Order, and there is now a civil European Protection Order, both published in the Official Journal. As a result, women in Europe are a bit safer from violence than they were before this conflict.
A third and last episode that Hubert Legal will probably remember as well as I do was the Roma controversy with France in September 2010. I do not want to repeat the details of all these events.
But I remember very well that fateful Monday 13 September. For several weeks, the Commission had had technical and political meetings with representatives of the French government to identify whether allegations about discriminatory removal of Roma from France were true. I had personally received a solemn assurance at ministerial level in a room with more than 20 Commission officials that none of the French measures in question ever had targeted members of the Roma minority. On this Monday, however, the news broke on the Internet that an administrative circulaire had been issued during the summer in France that explicitly instructed the police to target the Roma with removal measures.
While the Commission was still checking with Paris whether this was really accurate, the French Minister for European Affairs made an unprecedented pre-emptive strike against Brussels. The Commission would have no right to interfere with such matters, he said to the media, as the guardian of the Treaties is not be the unelected Commission, but the Member States.
This was a step too far for me, and it was a step too far for President Barroso. The Community method as such, of which the rule of law is an integral part, had been openly called into question.
Events took thier course, and now I can only say: We did what we had to do. If at that moment, the Commission, and I personally, had not defended the rule of law, the principle of non-discrimination and the rights related to the free movement of EU citizens on 14 September 2010, I would have ended the mandate of the first ever EU Justice Commissioner on that very day. I did not.
This allowed me to stand up again later in other rule of law crises that happened during this mandate, whether in countries governed by the right or the left. And I believe that we have acquired a solid track record during this Commission of doing what we have to do, as guardian of the Treaties, in such situations.
In periods of transition – and I do not forget that my time as Justice Commissioner has been just that – there will always be controversies. Controversies are not bad as such, as they can clarify matters and lead to better solutions. However, what counts are the results of such controversies. We now see the Community law method in practice in the field of Justice and we have the extra protection given to our citizens by the Charter as a binding instrument. And I think we all have seen that this has improved the results of EU decision-making significantly over the past years. Today, citizens are at the core of EU Justice policies.
In one year's time, on 1 December 2014, the period of transition which I had the chance to oversee will come to an end, and all Pre-Lisbon acts will become automatically "Lisbonised". The next Justice Commissioner will therefore be able to operate in a more normal situation than I could. But I hope he or she will not forget the controversies of the beginning of this mandate: When a first pillar girl met the third pillar guys. And then, something happened.
Let me raise my glass to all of you who have worked with me over the past years. It has been fascinating. And I will always be what I am: A first pillar girl.