EUROPEAN DIARY:Plans to protect abused women have sparked a dispute between Spain and the European Commission over the right to initiate new legislation, writes ARTHUR BEESLEY
SPAIN’S ROTATING presidency of the EU and the European Commission are in open dispute over plans for a European-wide system of restraint orders to protect women from violent spouses and partners. It is an increasingly fractious affair, although both sides agree that reinforcing victim protection is a very good thing.
At issue in the first instance is the legal basis for the mooted European Protection Order, a legal restraint which would extend to most EU countries the strictures of national orders to compel abusers to stay away from their victims. This is a tricky area, given the need to reconcile a diversity of legal and administrative procedures in member states.
On another level, however, the conflict smacks of a raw politics. Spain is exercising a right conferred by the newly-enacted Lisbon Treaty to initiate EU criminal legislation. This is something of a threat to the commission, which traditionally maintained the sole right to initiate European legislation.
Both Spain and the commission are backed by groups of member states, adding further intrigue. All this comes before talks with the European Parliament, where MEPs have a big say over EU justice legislation through their power of “co-decision”. The Government is sitting this one out on the sidelines as Minister for Justice Dermot Ahern believes the system proposed by Spain would be open to legal challenge in the Dublin courts. Ahern can do this because Ireland is not automatically included in justice initiatives but can choose to opt-in to a proposal if it is to the Government’s liking.
The same legal protocol applies to Britain, whose experience of opting in to the Spanish proposal offers a particularly telling example of how the rules governing Ireland’s participation in justice initiatives operates in practice. More of that later. Tension over the plan spilled into the open at a justice ministers’ meeting in Luxembourg last Friday when Francisco Caamaño Domínguez, the Spanish minister, clashed with Viviane Reding, the commissioner for justice, fundamental rights and citizenship.
Such meetings can be viewed on the internet thanks to changes under Lisbon which oblige EU ministers to meet in public when deliberating and voting on European legislation. Sometimes they find ways of debating in private, but not last Friday. It was a robust encounter*.
The Spanish plan is backed by Belgium, Bulgaria, Estonia, France, Italy, Hungary, Poland, Portugal, Romania, Finland and Sweden. But Reding said the proposal was not watertight legally and should be supported by new civil law and administrative measures that she could propose. “This is a mess,” she told Caamaño Domínguez.
Caamaño Domínguez insisted there was no such laxity, accusing Reding of a restrictive and inflexible approach. Various other countries had reservations, among them Britain, Germany, Slovenia, Latvia, Denmark, Cyprus and the Czech Republic.
This was significant because the combined strength of these countries might have been strong enough to block the initiative under EU rules on qualified majority voting.
Yet Caamaño Domínguez – following legal advice to the meeting – ruled that there was no blocking minority because the British vote did not count. To do this he leaned on the clause in the Lisbon protocol which states “if after a reasonable period of time a measure – cannot be adopted with the UK or Ireland taking part, the council may adopt such measure . . . without the participation of the UK or Ireland.”
British justice secretary Ken Clarke was not impressed. The move “would have a rather unfortunate effect that we would be opted out of a proposal which we would be genuinely willing to participate in”, he said.
Reding rowed in behind Clarke – as did others – but Caamaño Domínguez persisted, saying it was clear he had a qualified majority to agree a negotiating mandate. Clarke could decide by the next ministers’ meeting if Britain would take part, he said.
At a press conference afterwards, the commissioner let rip. “Let’s not twist the numbers . . . It was very clear today that there is no qualified majority in the council for this proposal in its present form. The Spanish presidency didn’t receive a mandate from the council to bring its proposal forward.”
With Belgium assuming the presidency next month, it will soon fall to someone else to pursue the plan. Reding is in no mood to back down, however, so further tension seems inevitable. If the core of the Madrid proposal remains intact through the legislative process, the ultimate test of the plan may be in the European Court of Justice.
Ireland’s place in the justice pecking order is now clear. The Government would have zero leverage if it opted in to a proposal but found the debate going the wrong way.
The debate can be viewed at: http://video.consilium.europa.euindex.php?sessionno=2961pl=2lang=EN