The draft UK/EU renegotiation deal: is it ‘legally binding and irreversible’?

ORIGINAL PUBLISHED ON EU LAW ANALYSIS (Wednesday, 10 February 2016)

by Steve Peers

The draft deal on renegotiation of the UK’s EU membership has already caused great controversy: both from those (mostly in the UK) who think it does not go far enough, and those (mostly in the rest of the EU) who think it goes too far in revising EU law to satisfy the objections of one Member State. These issues are mainly substantive, and I have addressed some of them in an earlier post about theimmigration aspects of the draft deal. I’ll write later about the remaining substantive issues, although I will touch on some in this blog post. There’s already an analysis of the proposed ‘red card’ for national parliaments by Katarzyna Granathere.

Yet in addition to concerns about the substance of the deal, there are doubts about its legal nature. In particular, is the deal ‘legally binding and irreversible’, as David Cameron had pledged? The answer is complicated, because there are several different parts of the deal, taking different legal forms. For each part, the legal status depends on several different factors: when the text would be adopted; who would have to approve it; whether the EU courts have power to overturn it, and whether they are likely to do so; and whether the text could be repealed or amended in future. (I am assuming throughout that by ‘irreversible’, David Cameron meant irreversible without the UK’s consent).

This blog post answers that question, looking first at the legal form of the agreement. Next, I suggest ways in which the draft deal could be made more legally secure. Then I examine, based on prior experience, whether the EU can be ‘trusted’ to implement the draft deal. Finally, I provide, in one table, my assessment indication of the extent to which each of the parts of the draft deal are ‘legally binding and irreversible’, based on the factors mentioned above.

Legal form of the main deal

The draft deal takes the form of six draft legal texts: a Decision of the EU Member States’ Heads of State and Government (the ‘draft Decision’); a Statement of the Heads of State and Government (which consists of a draft Council Decision); aDeclaration by the European Council: and three declarations by the Commission. Implicitly, it also includes three planned EU legislative proposals, all dealing with the free movement of EU citizens (the emergency brake on benefits, EU citizens’ non-EU family members and export of child benefit), which are referred to in these texts. The UK government is also likely to table some domestic legislation linked to the renegotiation deal: I consider that prospect briefly (and propose some further national laws which the UK might consider) below.

The basic legal form of the deal, and even some of the proposed text, corresponds with suggestions I made back in May 2014, as supplemented in May 2015 and June 2015. However, the text falls short in some respects of what I suggested there; that’s a substantive issues, so more on that in a later blog post. I’ve integrated the main relevant points from those previous posts into this one, for the reader’s convenience.

One important point before we continue: while the title of the deal refers to the UK only, none of the actual text of the deal applies solely to the UK. So it would apply to all Member States. That means it’s possible, for instance, that a proposal which the UK supports could be stymied by other Member States’ national parliaments (via the Council), using the proposed new ‘red card’. It is possible, however, that the UK would be the only Member State aiming to implement some parts of the proposed deal, in particular the ‘emergency brake’ on benefits; and of course some of the existing opt-outs referred to in the draft deal only apply to the UK and one or two other Member States.

Let’s begin with the easiest parts of the draft deal: the planned EU legislation. We know the legal effect of EU legislation, once it’s adopted: it’s binding and directly applicable (in the case of the two planned Regulations), or binding as to the result to be achieved, leaving national authorities the choice of form and methods (in the case of the planned Directive). (See the definitions of EU legislation set out in Article 288 TFEU). The more difficult question here is the process. Can it be guaranteed that the proposals will: (a) be made; (b) be adopted; (c) not be struck down by the EU Court of Justice (CJEU); and (d) not revoked?

It’s up to the Commission to make proposals. The draft Decision of Member States can’t bind the Commission (more on that below), but the draft deal includes two declarations by the Commission, announcing its intention to make these proposals. For those proposals to be adopted, they must be approved by the Council (by a qualified majority) and the European Parliament (by a majority of the vote, under most variants of the EU legislative process). Again, the draft Decision of Member States can’t bind the Council or the European Parliament. But the Council is made up of Member States’ ministers, and in the draft deal the Member States commit themselves to supporting two of these three proposals (on child benefit and the emergency brake). It’s odd that there’s no parallel commitment as regards the third proposal (on EU citizens’ non-EU family members), but this may be a drafting oversight. The timing of these measures depends on how soon they would be adopted, although the Commission declares that it will table them after a ‘Remain’ vote.

The deal foresees that the law creating an ‘emergency brake’ for EU workers’ in-work benefits would subsequently have to be implemented following a UK request to use it. This would need a proposal from the Commission and a vote by the Council (by qualified majority). There would be no role for the EP at that stage. A draft Commission declaration states that the Commission is willing to make this implementing proposal; there is no commitment from the Member States to support it. Again, this might possibly be a drafting oversight. The timing would follow the adoption of the legislation on this topic: it would likely take at least one month for the UK’s request to be approved. Continue reading

The EU or the Commonwealth: a dilemma for the UK – or a false choice?

ORIGINAL PUBLISHED ON EU LAW ANALYSIS (29 November 2015)

by Steve Peers

The United Kingdom has its finger in many pies: the EU, NATO, the United Nations Security Council and the Commonwealth, to name just a few. Of these, the Commonwealth – which has just finished its latest summit meeting – obviously has the closest specific link to British culture and history, since it’s mainly comprised of our former colonies. (A few Commonwealth members are not former colonies, and some obscure ex-colonies like the USA chose not to join. For a full list of members, see here).

Like many British citizens, I have friends and relatives in many Commonwealth countries: Canada, India, New Zealand, Australia, Singapore and South Africa. But I also have friends in the rest of the EU, as well as a professional interest in EU law. There’s no incompatibility between the two at a personal level: we can all enjoy poutine as well as paella, or watch Antonio Banderas one day and Hugh Jackman the next. But is the same true of the UK’s trade relationships?

When the UK joined the EU over forty years ago, it sundered special trade links which it had with most of the Commonwealth, and replaced them with trade links with the EU (as it’s called now). One of the arguments sometimes invoked in favour of the UK leaving the EU in the forthcoming referendum on membership is that the UK could reverse this process, reviving its Commonwealth trade.

But a lot has changed in forty years. In my view, what’s true for individuals is also true for the country as a whole: the UK does not have to choose between trade with the Commonwealth and trade with the EU, but can (and increasingly does) have both. This blog post explains why. (I’ll write another post on the issue of the EU’s trade with non-Commonwealth countries in future).

Background

Back in 1973, the UK had to end special trade ties with the Commonwealth because the EU is a customs union, which (according to the definition set out in international law) means that it has common trade rules with the rest of the world. The EU has power to sign certain types of trade deals, instead of its Member States (although in practice those deals are usually subject to Member States’ unanimous consent). But the EU’s powers don’t extend to all types of ‘trade deals’, as that phrase is used by non-specialists. Those powers apply to the imposition of taxes at the border (known as tariffs) or other economic regulation of trade between countries, but not to commercial agreements with other countries to buy British goods. So, for instance, the UK and India were free to conclude £9 billion worth of trade deals of that broader type during the recent visit of the Indian Prime Minister.

It’s sometimes argued that trade deals are irrelevant, because ‘governments don’t trade, businesses do’. While it’s true to say that much trade takes place on the basis of contracts between companies, governments still play a large role – either as purchasers of many goods and services, or as regulators with the power to impose tariffs or regulation which might reduce the volume of trade.

When the UK joined the EU, the EU was mainly only interested in special trade deals with nearby countries (although this included the Commonwealth countries of Cyprus and Malta). Mostly the EU then preferred to trade with third countries on the basis of multilateral rules instead. However, the EU did extend its existing special trade agreement for former sub-Saharan African, Caribbean and Pacific (ACP) colonies of France and Belgium to most of the former colonies of the UK in those parts of the world. But it did not extend any special treatment to richer Commonwealth countries, like Canada and Australia, or Commonwealth states in Asia, like India or Malaysia.

But times have changed. In recent years, the EU has become more interested in negotiating bilateral trade agreements with many countries, and not relying so much on the multilateral trade system established by the World Trade Organisation (WTO). This has transformed the EU’s trade relationship with Commonwealth countries (along with many other states). Some of these treaties don’t have the words ‘free trade agreement’ in their title, but the substance includes free trade rules; and indeed the agreements are notified as free trade agreements to the World Trade Organisation.

EU/Commonwealth trade today

The result of this change in policy is that the EU has agreed free trade agreements (FTAs), or is in the process of negotiating free trade agreements, with the vast majority of Commonwealth states – a full 90% of the 50 Commonwealth countries that are not in the EU. This includes the six Commonwealth states that accounted (in 2011) for 84% of Commonwealth trade – and many more besides.

More precisely, there are already FTAs in force between the EU and 18 of those 50 Commonwealth states (36% of the remaining Commonwealth). The EU has agreed FTAs with 14 of those countries (28%), subject only to completing the ratification process. It is negotiating or about to start negotiating FTAs with 13 states (26%). That leaves only 5 Commonwealth states (10% of the non-EU total) that the EU is not planning FTA talks with. (For full details of the status of EU trade relations with each of the countries concerned, with links to further information, see the annex to this blog post).

Of course, the Commonwealth includes many different types of economy, but the EU has agreed FTAs with two of the wealthiest Commonwealth states (Canada and Singapore), and has recently committed to talks with two more (Australia and New Zealand). It also has deals or is negotiating with most of the larger developing Commonwealth members (India, Nigeria, South Africa and Malaysia).

It’s sometimes suggested that the EU’s trade deals with other countries don’t benefit the UK. But the UK’s exports to Commonwealth countries have beenincreasing at over 10% a year – with increases (over two years) of 33% to India, 31% to South Africa, 30% to Australia and 18% to Canada. In fact, since 2004, Britishexports to India are up 143%. Needless to say, this increase in trade with the Commonwealth (while an EU member) must have created or maintained many British jobs.

Criticisms of the EU’s trade policy

The EU’s trade policy is often criticised on three particular grounds. While there may be some force to these arguments, the issue in the upcoming referendum is whether these problems would actually be solved by the UK leaving the EU.

First of all, it’s often argued that EU trade agreements are not fair for developing countries. In fact, the EU’s negotiation of FTAs with developing Commonwealth countries in the last decade is in part due to WTO rulings that the EU could not just sign one-way trade deals, liberalising only access to EU markets; such treaties have to liberalise trade on both sides (the EU had resisted this). The EU does offer less generous unilateral trade preferences as an alternative to two-way deals (and some Commonwealth states, like Bangladesh, prefer this).

If the UK left the EU, it could decide not to sign trade deals with some of the developing Commonwealth countries that the EU has signed deals with. It could also offer a more generous version of unilateral trade preferences. However, the UK would not be free to sign deals for one-way trade liberalisation, since it would be bound by the same WTO rules on trade agreements that the EU breached when it signed those deals. Moreover, while not replacing the EU’s trade deals would arguably help the poorest countries’ economies, UK exports to those States would logically be lower.

The second argument is that the EU’s trade deals are a problem for the environment and public services, and give industry overly generous intellectual property protection, with the result (for instance) that prices of basic medicines rise due to extended patent protection. But this argument is equally made against many trade deals that the EU is not a party to at all – such as the recent Trans-Pacific Partnership agreement.

So, while (stepping outside the Commonwealth for a moment) the planned EU/US trade agreement, known as TTIP, has attracted critics concerned about its effect upon the UK’s health care (among many other things), those issues would not magically go away if the UK, having left the EU, sought to negotiate its own trade agreement with the USA instead. The controversial parts of the draft deal are surely attractive to the US side as well as the EU side; it’s not as if the EU is in a position to issue non-negotiable demands to desperate, poverty-stricken Americans.

The third argument is that the EU is not sufficiently interested in pursuing trade deals. As the facts discussed above show, it’s quite false to suggest that the EU is not interested in trade deals with Commonwealth countries, or that the UK’s EU membership makes it impossible for British businesses to increase their exports to those countries. But could it be argued that the UK alone would do a better job of negotiating such trade deals, and negotiating them more quickly, after Brexit?

It’s true that it often takes years to negotiate EU trade agreements, and that some negotiations stall or slow down to a snail’s pace (with India, for instance). But this is not unique to the EU. Over twenty years ago, for instance, the Clinton administration developed a plan for a ‘Free Trade Area of the Americas’ – but it has never come to full fruition, and talks eventually fizzled out. There’s no guarantee that the UK alone would be able to reach agreements more quickly than the EU as a whole.

In any event, as noted above, the EU already has agreed trade deals with 64% of Commonwealth countries, and is negotiating with another 26%. Some of the latter negotiations are likely to be completed by the time that Brexit took place – since that would probably happen two years after the referendum date, so likely in 2018 or 2019 (for more discussion of the process of withdrawal from the EU, see here).

So the UK would have to ask perhaps three-quarters of its Commonwealth partners for trade deals to replace those already agreed with the EU. They might agree quickly to extend to the UK a parallel version of their existing arrangement with the EU, since that would not really change the status quo. But they might not be interested in negotiating any further trade liberalisation. If they are interested, they will ask for concessions in return, and this will take time to negotiate.

For the remaining one-quarter or so of states, the UK will have to start negotiations from scratch, in some cases having to catch up with EU negotiations that are already underway. And there is no guarantee that these other states will want to discuss FTAs, or that negotiations would be successful.

Overall then, there’s no certainty that UK exports to the Commonwealth would gain from Brexit. They might even drop, if some Commonwealth countries aren’t interested in replicating the EU’s trade agreements. Alternatively, they might increase – but it’s hard to see how any gain in British exports would be enormous, given the existence of so many FTAs between the EU and Commonwealth countries already, and the uncertainty of those states’ willingness to renegotiate those deals.

Could this very hypothetical increase in exports to the Commonwealth make up for any loss in UK exports to the EU following Brexit? Obviously, this assessment depends on how Brexit would affect UK/EU trade relations. That’s a hugely complex subject, which I will return to another day, but suffice it to say that while I think a UK/EU trade deal after Brexit is likely, it’s far from guaranteed. And it’s hugely unlikely that any such trade deal would retain 100% of the UK’s access to the EU market. There are many reasons to doubt this could happen, but first and foremost: why would the EU send the signal that a Member State could leave the EU but retain all of its trade access? If it did that, the EU would be signing its own death warrant.

The key fact to keep in mind here is that the UK’s trade with the Commonwealth isless than one-quarter of its trade with the EU. So to make up for even a 10% drop in exports to the EU, the UK would have to increase exports to the Commonwealth by more than 40%. How likely is that, when the vast majority of trade between the EU and the Commonwealth would already be covered by FTAs at that point?

Taken as a whole then, it’s clear that the UK can remain a member of the EU andtrade with the Commonwealth – and that this trade will only increase in future as more EU FTAs with Commonwealth states come into force or are negotiated. Leaving the EU, on the other hand, is liable to lead to reduction in trade with the remaining EU without any plausible likelihood that trade with the Commonwealth would increase by anything near the level necessary to compensate.

Annex

Canada: FTA agreed. It must still undergo the formal ratification process.
Australia: FTA negotiations start soon
New Zealand: FTA negotiations start soon
South Africa: FTA in force
India: FTA under negotiation
Singapore: FTA agreed. It must still undergo the formal ratification process.
Malaysia: FTA under negotiation
Pakistan, Bangladesh, Sri Lanka, Maldives: No plans for FTA
12 Caribbean Commonwealth states: FTA in force between EU and 15 countries including Antigua and Barbuda, Bahamas, Barbados, Belize, Dominica, Grenada, Guyana, Jamaica, Saint Vincent and the Grenadines, Saint Lucia, Saint Kitts and Nevis and Trinidad and Tobago
Brunei: No plans for FTA
2 Pacific Commonwealth states: FTA in force with Papua New Guinea and Fiji
7 more Pacific Commonwealth states: FTA under negotiation between EU and 12 more countries including Kiribati, Nauru, Samoa, the Solomon Islands, Tonga, Tuvalu and Vanuatu
3 West African Commonwealth states: FTA agreed with 16 West African countries including Nigeria, Ghana and Sierra Leone. It must still undergo the formal ratification process. (Note that Gambia left the Commonwealth in 2013; but it is also part of this agreement).
Cameroon: FTA in force
4 East African Commonwealth states: FTA agreed with 5 East African countries including Kenya, Tanzania, Uganda and Rwanda. It must still undergo the formal ratification process.
2 Southern and Eastern African Commonwealth states: FTA in force with 4 Southern and Eastern African countries including Mauritius and Seychelles (and also Zimbabwe, a former Commonwealth country).
2 other Southern and Eastern African Commonwealth states: FTA under negotiation with 7 more Southern and Eastern African countries including Malawi and Zambia.
5 Southern African Commonwealth states: FTA agreed with Botswana, Lesotho, Namibia, Swaziland and Mozambique. It must still undergo the formal ratification process. (Update: the Commission proposed the signature and provisional application of this deal in January 2016)

BETTER…ADMINISTRATIVE MAKING AT EU LEVEL (when the European Parliament paves the way to an, almost reluctant, European Commission…).

Since years the European Parliament ask the European Commission to submit a formal legislative proposal framing the administrative activity of the European Union as foreseen by art 298 of the Treaty on the functioning of the European Union and by the European Charter of Fundamental Rights.

According to the former “In carrying out their missions, the institutions, bodies, offices and agencies of the Union shall have the support of an open, efficient and independent European administration”.

Even more clearly the art 41 of the Charter (Right to good administration) states that :
1. Every person has the right to have his or her affairs handled impartially, fairly and within a reasonable time by the institutions, bodies, offices and agencies of the Union.
2.This right includes:
(a)the right of every person to be heard, before any individual measure which would affect him or her adversely is taken;
(b)the right of every person to have access to his or her file, while respecting the legitimate interests of confidentiality and of professional and business secrecy;
(c)the obligation of the administration to give reasons for its decisions.
3.Every person has the right to have the Union make good any damage caused by its institutions or by its servants in the performance of their duties, in accordance with the general principles common to the laws of the Member States.
4. Every person may write to the institutions of the Union in one of the languages of the Treaties and must have an answer in the same language.”

More than six year have past since the entry into force of the Treaty, in the meantime the EU administrative constellation has become even more complex with new agencies, authorities and networks but the European Commission has not yet considered that the time has come to bring some order in a domain which many have described as the “maquis” communautaire (instead of “aquis” communautaire..). This is even more appalling bearing in mind the increasing importance recognized also by the Court of Justice to the principle of good administration when assessing the legitimacy of the activity of the EU Member States or even of third countries. ..

It has then to be praised the fact that also in this legislature the Legal Affairs Committee (JURI) of the European Parliament has decided to ask to a group of eminent experts in this domain to write a full fledged legislative text which can “inspire” the European Commission. The full study and the text are accessible here .

Below the text of the draft legislative proposal as well as the first part of the study “The context and legal elements of a Proposal for a Regulation on the Administrative Procedure of the European Union’s institutions, bodies, offices and agencies” authored by Professors  Diana-Urania    Galetta,   Herwig   C.   H.   Hofmann,   Oriol  Mir Puigpelat and Jacques Ziller.

Emilio De Capitani

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Proposal for  a REGULATION OF THE   EUROPEAN PARLIAMENT AND OF THE COUNCIL on the  Administrative Procedure  of  the  European  Union’s  institutions, bodies,  offices  and  agencies

THE EUROPEAN   PARLIAMENT  AND  THE  COUNCIL OF  THE EUROPEAN UNION,
Having    regard    to    the    Treaty    on    the    Functioning    of   the    European    Union,   and    in    particular Article  298   thereof,
Having  regard  to  the proposal  from  the European  Commission,
After  transmission of  the draft legislative act  to  the national  parliaments,
Acting in accordance with  the  ordinary  legislative procedure, Whereas:
(1) With the development of the competences of the European Union, citizens are increasingly confronted with the Union’s institutions, bodies, offices and agencies, without  always having their procedural  rights adequately  protected.
(2) In a Union under the rule of law it is necessary to ensure that procedural rights and obligations are always adequately defined, developed and complied with. Citizens are entitled to expect a high level of transparency, efficiency, swift execution and responsiveness from the Union’s institutions, bodies, offices and agencies. Citizens are also entitled to receive adequate information regarding possibility to take any further  action  in the matter.
(3) The existing rules and principles on good administration are scattered across a wide variety of sources: primary law, secondary law, case-law of the Court of Justice of the European Union, soft law and unilateral commitments by the Union’s institutions.
(4) Over the years, the Union has developed an extensive number of sectoral administrative procedures, in the form of both binding provisions and soft law, without necessarily taking into account the overall coherence of the system. This complex variety of procedures has resulted in gaps and inconsistencies in these procedures.
(5) The fact that the Union lacks a coherent and comprehensive set of codified rules of administrative law makes it difficult for citizens to understand their administrative rights under  Union  law.
(6) In April 2000, the European Ombudsman proposed to the institutions a Code of Good Administrative Behaviour in the belief that the same code should apply to all Union institutions,  bodies,  offices   and   agencies.
(7) In its resolution of 6 September 2001, Parliament approved the European Ombudsman’s draft code with modifications and called on the Commission to submit a proposal for a regulation containing a Code of Good Administrative Behaviour based   on  Article  308  of the  Treaty establishing  the European Community.
(8) The existing internal codes of conduct subsequently adopted by the different institutions, mostly based on that Ombudsman’s Code, have a limited effect, differ from one   another  and  are  not   legally binding.
(9) The entry into force of the Treaty of Lisbon has provided the Union with the legal basis for the adoption of an Administrative Procedure Regulation. Article 298 of the Treaty on the Functioning of the European Union (TFEU) provides for the adoption of regulations to assure that in carrying out their mission, the institutions, bodies, offices and agencies of the Union have the support of an open, efficient and independent European administration. The entry into force of the Treaty of Lisbon also gave the Charter of Fundamental Rights of the European Union (“the Charter”) the  same  legal   value  as  the  Treaties.
(10) Title V (“Citizens’ Rights”) of the Charter enshrines the right to good administration in Article 41, which provides that every person has the right to have his or her affairs handled impartially, fairly and within a reasonable time by the institutions, bodies, offices and agencies of the Union. Article 41 of the Charter further indicates, in a non-exhaustive way, some of the elements included in the definition of the right to good administration such as the right to be heard, the right of every person to have access to their file, the right to be given reasons for a decision of the administration and the possibility of claiming damages caused by the institutions and  its servants  in  the  performance  of their  duties,  and  language  rights.
(11) An efficient Union administration is essential for the public interest. An excess as well as a lack of rules and procedures can lead to maladministration, which may also result from the existence of contradictory, inconsistent or unclear rules and procedures.
(12) Properly structured and consistent administrative procedures support both an efficient administration and a proper enforcement of the right to good administration guaranteed  as a  general  principle  of  Union  law  and under Article  41 of  the Charter.
(13) In its Resolution of 15 January 2013 the European Parliament called for the adoption of a regulation on a European Law of Administrative Procedure to guarantee the right to good administration by means of an open, efficient and independent European administration. Establishing a common set of rules of administrative procedure at the level of the Union’s institutions, bodies, offices and agencies should enhance legal certainty, fill gaps in the Union legal system and should thereby contribute to compliance  with  the  rule  of law.
(14) The purpose of this Regulation is to establish a set of procedural rules which the Union’s administration should comply with when carrying out its administrative activities. These procedural rules aim at assuring both an open, efficient and independent administration and a proper enforcement of the right to good administration.
(15) In line with Article 298 TFEU this Regulation should not apply to the Member States’ administrations.. Furthermore, this Regulation should not apply to legislative procedures, judicial proceedings and procedures leading to the adoption of non-legislative acts directly based on the Treaties, delegated acts or implementing  acts.
(16) This Regulation should apply to the Union’s administration without prejudice to other Union’s legal acts which provide for specific administrative procedural rules. However, sector-specific administrative procedures are not fully coherent and complete. With a view to ensuring overall coherence in the administrative activities of the Union’s administration and full respect of the right to a good administration, legal acts providing for specific administrative procedural rules should, therefore, be interpreted in compliance with this Regulation and their gaps should be filled by the relevant provisions of this Regulation. This Regulation establishes rights and obligations as a default rule for all administrative procedures under Union law and therefore reduces the fragmentation of applicable procedural rules, which result from  sector-specific  legislation.
(17) The procedural administrative rules laid down in this Regulation aim at implementing the principles on good administration established in a large variety of legal sources in light of the case law of the Court of Justice of the European Union. Those principles are set out here below and their formulation should inspire the  interpretation   of  the  provisions  of   this   Regulation.
(18) The principle of the rule of law, as recalled in Article 2 of the Treaty on European Union (TEU), is the heart and soul of the Union’s values. In accordance with that principle, any action of the Union has to be based on the Treaties in compliance with the principle of conferral. Furthermore, the principle of legality, as a corollary to the rule of law, requires that activities of the Union’s administration are carried out in full  accordance with the law.
(19) Any legal act of Union law has to comply with the principle of proportionality. This requires any measure of the Union’s administration to be appropriate and necessary for meeting the objectives legitimately pursued by the measure in question: where there is a choice among several potentially appropriate measures, the least burdensome option has to be taken and any charges imposed by the administration not  be  disproportionate  to  the  aims  pursued.
(20) The right to good administration requires that administrative acts be taken by the Union’s administration pursuant to administrative procedures which guarantee impartiality,  fairness  and   timeliness.
(21) The right to good administration requires that any decision to initiate an administrative procedure be notified to the parties and provide the necessary information enabling them to exercise their rights during the administrative procedure. In duly justified and exceptional cases where the public interest so requires,  the  Union’s   administration   may  delay   or  omit   the  notification.
(22) When the administrative procedure is initiated upon application by a party, the right to good administration imposes a duty on the Union’s administration to acknowledge receipt of the application in writing. The acknowledgment of receipt should indicate the necessary information enabling the party to exercise his or her rights of defence during the administrative procedure. However, the Union’s administration should be entitled to reject pointless or abusive applications as they might  jeopardize  administrative  efficiency.
(23) For the purposes of legal certainty an administrative procedure should be initiated within a reasonable time after the event has occurred. Therefore, this Regulation should  include   provisions   on   a  period  of  limitation.
(24) The right to good administration requires that the Union’s administration exercise a duty of care, which obliges the administration to establish and review in a careful and impartial manner all the relevant factual and legal elements of a case taking into account all pertinent interests, at every stage of the procedure. To that end, the Union’s administration should be empowered to hear the evidence of parties, witnesses and experts, request documents and records and carry out visits or inspections. When choosing experts, the Union’s administration should ensure that they  are  technically   competent  and  not  affected  by  a  conflict   of  interest.
(25) During the investigation carried out by the Union’s administration the parties should have a duty to cooperate by assisting the administration in ascertaining the facts and circumstances of the case. When requesting the parties to cooperate, the Union’s administration should give them a reasonable time-limit to reply and should remind them of the right against self-incrimination where the administrative procedure  may  lead  to  a  penalty.
(26) The right to be treated impartially by the Union’s administration is a corollary of the fundamental right to good administration and implies staff members’ duty to abstain   from   taking   part   in   an   administrative   procedure   where   they   have,   directly or indirectly,    a    personal    interest,    including,    in    particular,    any    family    or    financial interest,  such   as  to   impair  their  impartiality.
(27) The right to good administration might require that, under certain circumstances inspections be carried out by the administration, where this is necessary to fulfil a duty or achieve an objective under Union law. Those inspections should respect certain   conditions  and  procedures  in   order  to   safeguard   the   rights   of  the  parties.
(28) The right to be heard should be complied with in all proceedings initiated against a person which are liable to conclude in a measure adversely affecting that person. It should not be excluded or restricted by any legislative measure. The right to be heard requires that the person concerned receive an exact and complete statement of the claims or objections raised and is given the opportunity to submit comments on  the  truth   and  relevance  of  the   facts  and   on   the  documents  used.
(29) The right to good administration includes the right of a party to the administrative procedure to have access to its own file, which is also an essential requirement in order to enjoy the right to be heard. When the protection of the legitimate interests of confidentiality and of professional and business secrecy does not allow full access to a file, the party should at least be provided with an adequate summary of the content of the file. With a view to facilitating access to one’s files and thus ensuring transparent information management, the Union’s administration should keep records of its incoming and outgoing mail, of the documents it receives and measures it takes, and establish an index of the recorded   files.
(30) The Union’s administration should adopt administrative acts within a reasonable time-limit. Slow administration is bad administration. Any delay in adopting an administrative act should be justified and the party to the administrative procedure should be duly informed thereof and provided with an estimate of the expected date  of  the  adoption   of  the  administrative  act.
(31) The right to good administration imposes a duty on the Union’s administration to state clearly the reasons on which its administrative acts are based. The statement of reasons should indicate the legal basis of the act, the general situation which led to its adoption and the general objectives which it intends to achieve. It should disclose clearly and unequivocally the reasoning of the competent authority which adopted the act in such a way as to enable the parties concerned to decide if they wish   to  defend  their   rights  by  an  application   for  judicial   review.
(32) In accordance with the right to an effective remedy, neither the Union nor Member States can render virtually impossible or excessively difficult the exercise of rights conferred by Union law. Instead, they are obliged to guarantee real and effective judicial protection and are barred from applying any rule or procedure which might prevent,   even   temporarily,  Union  law  from   having   full   force  and   effect.
(33) In accordance with the principles of transparency and legal certainty, parties to an administrative procedure should be able to clearly understand their rights and duties that derive from an administrative act addressed to them. For these purposes, the Union’s administration should ensure that its administrative acts are drafted in a clear, simple and understandable language and take effect upon notification to the parties. When carrying out that obligation it is necessary for the Union’s administration to make proper use of information and communication technologies and  to adapt  to their development.
(34) For the purposes of transparency and administrative efficiency, the Union’s administration should ensure that clerical, arithmetic or similar errors in its administrative  acts are corrected  by  the competent authority.
(35) The principle of legality, as a corollary to the rule of law, imposes a duty on the Union’s administration to rectify or withdraw unlawful administrative acts. However,   considering   that   any   rectification   or   withdrawal of   an   administrative   act may conflict with the protection of legitimate expectations and the principle of legal certainty, the Union’s administration should carefully and impartially assess the effects of the rectification or withdrawal on other parties and include the conclusions of such an assessment in the reasons of the rectifying or withdrawing act.
(36) Citizens of the Union have the right to write to the Union’s institutions, bodies, offices and agencies in one of the languages of the Treaties and to have an answer in the same language. The Union’s administration should respect the language rights of the parties by ensuring that the administrative procedure is carried out in one of the languages of the Treaties chosen by the party. In the case of an administrative procedure initiated by the Union’s administration, the first notification should be drafted in one of the languages of the Treaty corresponding to  the  Member  State  in  which  the  party  is  located.
(37) The principle of transparency and the right of access to documents have a particular importance under an administrative procedure without prejudice of the legislative acts adopted under Article 15(3) TFEU. Any limitation of those principles should be narrowly construed to comply with the criteria set out in Article 52(1) of the Charter and therefore should be provided for by law and should respect the essence of the rights and freedoms and be subject to the principle of proportionality.
(38) The right to protection of personal data implies that without prejudice of the legislative acts adopted under Article 16 TFEU, data used by the Union’s administration   should  be  accurate,  up-to-date   and  lawfully   recorded.
(39) The principle of protection of legitimate expectations derives from the rule of law and implies that actions of public bodies should not interfere with vested rights and final legal situations except where it is imperatively necessary in the public interest. Legitimate expectations should be duly taken into account where an administrative act  is  rectified  or  withdrawn.
(40) The principle of legal certainty requires Union rules to be clear and precise. That principle aims at ensuring that situations and legal relationships governed by Union law remain foreseeable in that individuals should be able to ascertain unequivocally what their rights and obligations are and be able to take steps accordingly. In accordance with the principle of legal certainty, retroactive measures should not be taken  except  in  legally justified circumstances.
(41) With a view to ensuring overall coherence in the activities of the Union’s administration, administrative acts of general scope should comply with the principles  of  good administration  referred  to  in  this  Regulation.
(42) In the interpretation of this Regulation, regard should be had especially to equal treatment and non-discrimination, which apply to administrative activities as a prominent corollary to the rule of law and the principles of an efficient and independent  European  administration,
 
HAVE  ADOPTED  THIS  REGULATION: 
 
CHAPTER I GENERAL   PROVISIONS
 
Article  1 Subject  matter and objective…
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From Dublin to Athens: A Plea for a Radical Rethinking of the Allocation of Jurisdiction in Asylum Procedures 

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FULL STUDY PUBLISHED HERE
by Marcello Di Filippo (1)
ABSTRACT (Policy Brief – January 2016) (2)
The so called refugee crisis of 2015 had several effects, among which the definitive demonstration of the unsustainability of the Dublin system and the need of a radical change in the modalities of allocation of the competence for the exam of asylum claims in the EU. 
The same credibility of the EU is at stake, as well as the capacities of national governments to manage the relevant flows reaching the Schengen area. 
This Policy Brief provides sound arguments both for supporting the demand for a new legal framework, and for the determination of new criteria which combines fairness, realism, solidarity, cooperation. 
A quota approach would be combined with a “genuine link” approach, thus trying to find a proper balance between the States’ interests and the point of view (and related behaviors) of asylum seekers, and also between the objections of human rights defenders and the concerns of European public opinion. 
The need to turn the page with the Dublin age warmly suggests to choose, for the new proposed regulation, a nick name which evokes the features of the current historical (and dramatic) passage of European integration and our deep sense of belonging to a place where much part of our way of thinking and of being a society is rooted: Athens. 
Having regard to the lessons learnt from decades of regulation of the determination of jurisdiction in civil, commercial and criminal matters, a first step to take is the adoption of a new conception for the role of the asylum seeker, who should be allocated to the State with which he/she holds a substantial link: the configuration of the relevant connecting factors (family relations; economic or social ties) should pay due regard to the empirical dimension of the phenomenon and to the need to avoid unnecessary sufferance and waste of public funds and time. 
If the asylum seeker has genuine links with more States, a certain relevance to his/her free choice should be awarded. 
Lacking any connection with a given country, the State with the lowest performance in fulfilling its reference quota should be the competent one. In the same time, an already overburdened country should be afforded the possibility to refuse responsibility, provided that some basic family ties are safeguarded. In such cases, a less connected country should be responsible, or the one less engaged in hosting asylum seekers and refugees, or as extrema ratio the country of first entrance or where the application is lodged. Whether an asylum seeker is allocated to a country where he/she does not have any substantial link and his/her asylum claim receives a positive outcome, the possibility of accepting a genuine job offer in another Member State should be admitted. This way, a partial freedom of circulation for work purposes could be recognized, but its exercise would relieve the first Member State by protection duties. As an accompanying measure, a system of financial incentives/disincentives for Member States should be conceived. 
Continue reading..
 1 Associate Professor of International Law (University of Pisa; marcello.difilippo@unipi.it), Member of the International Institute of Humanitarian Law (http://www.iihl.org), Coordinator of the Observatory on European Migration Law (http://immigrazione.jus.unipi.it).
The author is grateful to G. Beruto, S. Baldini and to the whole IIHL staff for their precious support, and to A. Baldaccini, C. Hein, S. Marinai, and E. Papastavridis for their valuable comments on an earlier version of this paper.
2 Policy Brief elaborated with the support of the Italian Ministry for Foreign Affairs and the International Cooperation (contribution awarded under Article 2 Law No. 948/82).

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The EU, Turkey and the Refugee Crisis: What could possibly go wrong?

ORIGINAL PUBLISHED ON EU LAW ANALYSIS (Friday, 5 February 2016)

by Steve Peersand Emanuela Roman, **

The key non-EU country in the EU’s ongoing refugee crisis is Turkey: the host ofover 2 million Syrian refugees, and a transit country for many asylum-seekers. An increasing number of them have been making the journey from Turkey to the Greek islands, leading to a significant rise in the number of would-be asylum-seekers in the EU over the last year. Tragically, many have died making this crossing.

To address these issues, the EU and Turkey reached a deal in November with a number of different elements. The main aim was to improve the position of Syrian refugees in Turkey (reducing the ‘push’ factor which results in more people planning to leave), and to return to Turkey those who did not need international protection. But, according to the latest Frontex statistics, most of the people arriving from Turkey do need international protection: about 90% of those arriving in Greece in December were from Syria, Iraq and Afghanistan, countries with high recognition rates for asylum claims.

It follows that returning to Turkey only those who don’t need international protection would only make a small dent in the numbers coming to the EU. Many politicians, in reaction to a portion of public opinion, would like to reduce those numbers far more. So last week, a further plan emerged: to return to Turkey those who do need international protection, on the grounds that they already had such protection in Turkey – or if not, they should seek it there. This would entail designating Turkey as a ‘safe third country’. The plan would entail a nearly immediate return to Turkey of any would-be asylum-seekers who reached the Greek islands.

The following analysis looks first of all at the main elements of the overall EU/Turkey deal on the refugee crisis, then in more detail at the new plan to return asylum-seekers to Turkey.

The EU/Turkey deal

The EU/Turkey deal contains concessions on both sides. The EU side has agreed: the opening of another chapter in the EU/Turkey accession process, and preparatory work by the Commission on further chapters; a proposal to lift Schengen visa requirements for Turkey by October 2016, if Turkey meets the requirements of the EU’s ‘roadmap’ on visa liberalisation; and a ‘Refugee Facility for Turkey’, totalling of €3 billion for Turkey. Subsequently, the Commission adopted a Recommendation on an EU ‘humanitarian admission scheme’ of Syrian refugees from Turkey (discussed in detail by Laura Robbins-Wright here).

In return, the Turkish side agreed: to readmit non-Turkish nationals to its territory, from June 2016; to apply a previously-agreed plan on the status of Syrian refugees in Turkey; and to prevent non-EU citizens from leaving.

There are also agreements in both sides’ mutual interest: to hold regular summits (at least twice a year); and to ‘upgrade’ the EU/Turkey customs union, to include services and investment, with negotiations to start before the end of 2016.

Several elements of the deal should be clarified further. It’s sometimes claimed that the deal has ‘fast-tracked’ Turkish membership of the EU. This is clearly not the case. Turkey applied for EU membership in 1987, and negotiation talks opened 18 years later, in 2005. In the eleven years since, the EU and Turkey have agreed only one of the 35 ‘chapters’ of issues being discussed in the negotiation. Before last year’s deal, they had opened another 13 chapters; the deal raised that number to 14. There is no date to open talks on the remaining 20 chapters; the deal is expressly without prejudice to EU Member States’ position on the planned ‘preparatory work’. Overall, the deal means that the enlargement negotiations will now move at the pace of a turtle, instead of a snail.

The prospect of Turkish accession to the EU also faces a number of obstacles on the EU side: objections by many Member States (including possible referendums), and misgivings by the European Parliament (which must approve accession treaties). Nor would accession lead immediately to free movement of Turkish citizens to the EU. Recent accession treaties have provided for waiting periods of seven years before workers from the new Member States can move to the older Member States, and the UK, which has a veto over accession treaties, insists that future enlargements must provide for even longer waiting periods.

As for the visa waiver, it should be noted that it will apply to (short-term) visas to visit the Schengen states. Therefore it will not ever apply to the UK and Ireland; and does not yet apply to Romania, Bulgaria, Croatia or Cyprus. It’s the EU’s usual practice to offer visa facilitation (fast-track issue of visas, with reduced fees) and then a full visa waiver to neighbouring States which have agreed a readmission treaty. As the text of the EU/Turkey deal points out, that waiver is dependent in each case upon the third State fulfilling a list of conditions set out by the EU (for the Commission’s most recent report on Turkey meeting those conditions, see here).

It’s the readmission deal – the quid pro quo for the visa waiver – that is central to the issue of the refugee crisis. The EU/Turkey readmission treaty has applied since October 2014. It applies to Turkish citizens straight away, but Turkey (like many other states signing up to readmission treaties) negotiated a delay before it applies to nationals of other countries. That’s a three year delay, so it was due to expire in October 2017. However, in light of the perceived migration and refugee crisis, the EU was not willing to wait that long until it called upon Turkey to accept third-state citizens back onto its territory.

Finally, the ‘Refugee Facility for Turkey’ aims to reduce the ‘push’ factor which leads to departures from Turkey to the EU. According to the Decision establishing the fund – which Member States finally agreed to recently – the Fund will assist refugees and host communities. No further details are given.

Before we look at the substance of the law on returning people to Turkey, it’s useful to make some general observations on EU policy in this area. Some critics of EU asylum policy argue that it should be more like the Australian policy. In fact, in some ways the EU is moving towards such a policy, as we’ll see. But – leaving aside for a moment the desirability of the EU adopting an ‘Australian’ asylum policy – there are legal, political, geographical and practical limits to doing so.

In a nutshell, Australia intercepts vessels of asylum-seekers on the high seas (international waters) and arranges for the asylum-seekers to be detained and their applications processed in other countries, which Australia considers to be ‘safe’. Furthermore, Australia resettles confirmed refugees directly from third countries (about 13,000 a year), as its contribution to sharing the burdens of the countries which host those refugees (the large majority of refugees live in developing countries).

There’s no legal obligation upon the countries which Australia considers ‘safe’ to take the asylum-seekers and process them. The UN Convention on Refugees (the ‘Geneva Convention’) imposes no such obligation (on the international law framework for ‘safe third country’ rules, see discussion here). Even if it did, some of the countries concerned haven’t ratified that treaty. So Australia has to talk those countries into accepting the people concerned. They won’t accept unless Australia pays most of the costs.

How does this compare with the EU? First of all, the numbers are hugely different:18,000 people arrived illegally by sea in Australia in 2012-13, whereas over a million potential asylum-seekers arrived in the EU last year. We’re comparing apples and orchards here. There are simply more people wanting to apply for protection in closer vicinity to the EU, as compared to Australia, and the distance to travel is shorter. Furthermore, there are no ‘high seas’ between Greece and Turkey, so interception raises different legal issues. Once would-be asylum-seekers reach Greek waters, EU law says they can apply for asylum, and Greece is also bound by the European Convention on Human Rights (ECHR) as regards them.

That brings us to the next distinction. The Australian constitution has weak human rights protection, and that country’s High Court has recently ruled in favour of the offshore detention policy. In contrast, EU countries are governed by the case law of the European Court of Human Rights (ECtHR), which is open to individual complaints and can give binding rulings, often critical of national policies in this area. While Australia has signed up to the International Covenant on Civil and Political Rights (ICCPR), and allows individuals to make complaints to the United Nations Committee which interprets that Covenant, the Committee’s rulings aren’t binding. When the Committee rules against Australian policy on asylum-seekers – which it often does – Australian politicians in effect throw the ruling on the barbecue.

So given the large numbers concerned and the legal constraints, if the EU wants non-EU countries to take back non-citizens of those countries who have made their way to the EU, it needs to offer a lot to them to convince them to do so. At first sight, it may seem overly generous for the EU to offer money to Turkey, waive visa requirements and accelerate the accession process a little, in order to secure Turkey’s cooperation as regards refugees and migrants. But Turkey is under no obligation now to take back non-citizens or to restrain them from leaving. Even after it agrees to accept returns of non-citizens to its territory, it could end its obligations at any time by denouncing the readmission agreement – if it is willing to accept the re-imposition of visa requirements by the EU as a consequence. The financial assistance, if spent as intended, will also reduce the ‘push’ factor for migration of Syrian refugees towards the EU.

Returning people to Turkey

Turkish citizens

Turkey is already obliged to accept back its own citizens under the readmission agreement with the EU. Turkish citizens in the EU might have rights to stay under the EU’s immigration and asylum legislation, or under the EU/Turkey associationagreement. But they have no general right of free movement to the EU, and there is no prospect of it being extended to them before (or indeed well after) EU membership. So those Turkish citizens in the EU without such a right to stay, including failed asylum-seekers, must be returned.

It should be noted that the EU Commission has proposed to list Turkey as a ‘safe country of origin’ for asylum purposes, meaning that asylum claims by Turks would be fast-tracked (but not rejected automatically). This is a rather dubious suggestion (for the reasons set out here), and it is not yet known whether it will be accepted.

Non-Turkish citizens: Irregular migrants

Turkey is not obliged to accept back any non-Turkish citizens until it brings forward the relevant obligations in the EU/Turkey plan – as it has agreed to do so. If someone has never applied for asylum, and has no other ground to stay, EU Member States will then be able to return them to Turkey, if the Member States can prove that the person was previously in Turkey. It should be sufficient to show that the person concerned crossed from Turkey to a Greek island.

This is equally the case for failed asylum-seekers, if the person concerned has failed on the merits. In other words, if the non-Turkish citizen has not convinced the Member State’s authorities (or the courts on appeal) that he or she faced persecution or serious harm, that person could be sent back to Turkey once that country extends the scope of the readmission deal.

The more difficult question – which is the subject of the new plan – is whether asylum-seekers who have come via Turkey can be rejected and returned to Turkey on the grounds that their applications are inadmissible. Let’s be clear what that means: those applications would not be rejected on the basis that the person wasn’t a genuine refugee, but that he or she either (a) could have applied for protection in Turkey or (b) already had protection there. The former is the ‘safe third country’ concept; the latter is the ‘first country of asylum’ concept. There are detailed definitions of each concept in EU law, in the Asylum Procedures Directive. We will consider those definitions in turn.

Is Turkey a ‘safe third country’?

On Thursday 28 January 2016, Diederik Samsom, leader of the Dutch Labour Party, announced in an interview with the newspaper De Volkskrant (followed by an interview on the nightly TV programme Niewsuur) a Dutch proposal for a new plan to radically reduce the number of migrants and asylum-seekers entering the EU from Turkey. The proposal was immediately baptised ‘the Samsom Plan’.

The plan would have the support of Dutch PM Mark Rutte and would also receive support by a number of EU Member States, among which Germany, Austria and Sweden. The idea is to offer Turkey the resettlement of 150,000 to 250,000 refugees per year from Turkey to the EU countries that voluntarily agree with the plan. This resettlement would presumably be on the basis of the Commission Recommendation on humanitarian admission from Turkey, referred to above. In exchange for this, Turkey would have to accept the return of all migrants and asylum-seekers who cross the Greek-Turkish border irregularly. According to Mr Samson, these people would have to be very rapidly returned from Greece to Turkey by ferry-boat, and it would be Turkey’s responsibility to deal with their reception and asylum application.

This new plan is based on the assumption that Turkey can be considered a ‘safe third country’ – a non-EU country where an asylum-seeker can apply for asylum and be granted access to asylum procedures and reception conditions in line with international and EU law.

The Samsom Plan, however, does not seem to come from Mr Samsom’s mind. The European Stability Initiative (ESI), a think tank specialised in Southeast Europe, presented a very similar proposal in October 2015. The original plan, based on the fundamental idea of considering Turkey a safe third country, was called ‘Merkel Plan’, because initially Germany alone would have the main role in the resettlement scheme with Turkey. The original plan was then further developed (becoming‘Merkel Plan 2.0’) and a ‘coalition of the willing’ (including the Netherlands) was gathered around Germany. From October 2015 to January 2016 the ESI presented this proposal in different countries across Europe, but it was only following Mr Samsom’s interview, that the now renamed Samsom Plan burst into the public debate.

What is the legal definition of a ‘safe third country’? Article 38(1) of the Asylum Procedures Directive sets out a series of legal requirements that need to be met in order for a third country to be considered ‘safe’ for asylum-seekers:

  1. a) life and liberty shall not be threatened on account of race, religion, nationality, membership of a particular social group or political opinion;
  2. b) there shall be no risk of serious harm (consisting of: death penalty; torture or unhuman or degrading treatment; or a serious threat to the applicant’s life due to indiscriminate violence in situations of conflict, as defined by Article 15 of theQualification Directive, ie the concept of ‘subsidiary protection’);
  3. c) the principle of non-refoulement (non-return to an unsafe country) shall be respected; and
  4. d) the possibility shall exist for the applicant to claim refugee status and to receive protection in accordance with the  Geneva Convention.

Article 38(2) establishes also several procedural guarantees. The safety of a third country must be always assessed on a case-by-case basis in order to check whether the notion is applicable to the particular circumstances of the individual applicant concerned. Moreover, the applicant must be guaranteed the right to challenge the application of the safe third country concept to his or her case, based on the fact that that country may not be safe in his or her particular circumstances. The question is whether an extremely rapid procedure as the one envisaged by Mr Samsom, would allow for a case-by-case examination of the individual circumstances of each asylum-seeker arriving in Greece from Turkey.

A further, more practical, question concerns who would be responsible for these procedures. Considering the difficulties faced by the Greek authorities in managing the current migrant flow and the established deficiencies of the Greek asylum system, it is hard to believe that the Greek authorities (despite the assistance provided by Frontex and the European Asylum Support Office, EASO) would be able to implement a systematic readmission plan as far-reaching as the one foreseen by Mr Samsom. As mentioned above, such plan must indeed be based on the individual consideration of each asylum application, otherwise it could amount to  a violation of the prohibition of collective expulsions entailed in Article 4 Protocol 4 of the ECHR. Such practice has been condemned by the European Court of Human Rights (ECtHR) in the famous Hirsi case, where the Grand Chamber found Italian authorities responsible for violating the ECHR, because they returned a group of Eritrean and Somali migrants intercepted on the high seas back to Libya without granting them the possibility to apply for asylum. The same rule obviously applies to asylum-seekers who enter the territorial waters or land on the territory of a Member State.

In addition, according to Article 46 of the Procedures Directive, asylum-seekers have the right to refer to a national court the decision to consider their application inadmissible pursuant to Article 33(2). They can stay on the territory during their initial application, and apply to a court to stay during this appeal. The Grand Chamber of the ECtHR unanimously confirmed in Hirsi (and reiterated in following case law – see for instance, Sharifi and others v Italy and Greece and Khlaifia and others v Italy) that return is only possible after the asylum-seeker has been able to claim asylum before a national authority, and to stay on the territory at least until the first instance decision on the application was made. However, it is even more doubtful that the accelerated procedure proposed by Samsom would allow for asylum-seekers to challenge the decision to return them to Turkey in front of a judicial authority and in the respect of all due procedural safeguards under the Directive and the ECHR.

However, besides the procedural issues, the crucial question here is more substantive: can Turkey be considered as a safe third country? Does Turkey comply with the requirements established by the Procedures Directive?

First, Turkey ratified the 1951 Geneva Convention and its 1967 Protocol, but maintains a geographical limitation for non-European asylum-seekers, thus recognising refugees originating only from Europe (i.e. from countries which are members of the Council of Europe). The geographical limitation provides the first barrier to accessing asylum in the country. Moreover, Syrians represent a particular case. They were at first received as ‘guests’ and then subject to a temporary protection regime, formalised by a Regulation on Temporary Protection only in October 2014 (for more details, see the updated AIDA Country Report on Turkey). The basic idea behind the temporary protection regime is to host Syrians until the conflict is over and then possibly let them return to their country of origin. As such, Syrians have a right to reside in the country but are denied the prospect of a long-term legal integration. They have access to limited rights compared to asylum-seekers in the ‘normal’ procedure, in particular as concerns access to education for children (on this point, see for instance, Human Rights Watch report) and access to employment. Although in January 2016, the Turkish government adopted adecision aimed at ensuring that Syrians can enter the labour market, the effects of this new regulation are yet to be seen in practice. Most importantly, Syrians in Turkey do not have access to refugee protection in its full sense, as enshrined in the Geneva Convention. For the reasons set out in more detail in the annex to this blog post, it is arguable that the ‘safe third country’ clause can only be interpreted as applying to countries which have ratified and fully apply the Geneva Convention.

Secondly, Turkey should respect the principle of non-refoulement, a prohibition on returning a person to a place where he or she faces a risk of persecution, torture, or inhuman or degrading treatment. However, several reports suggest that Turkey has engaged in refoulement and push-back practices throughout the years 1990s and 2000s. In particular, in November and December 2015, Human Rights Watch andAmnesty International denounced an increase in deportations, push-backs, arbitrary detentions and physical violence against asylum-seekers trying to cross the Turkish southern border coming from Syria or Iraq, or trying to enter Greece from Turkey, either by land or sea. This increase would coincide with the period leading up to and after the signing of the above-mentioned EU/Turkey deal.

Thirdly, in Turkey asylum-seekers and migrants in general, face a number of obstacles which may increase their risk of serious harm. In particular, Turkey has a record of treating asylum-seekers and refugees harshly in detention: episodes of torture or inhuman or degrading treatment have been reported by NGOs (Global Detention Project and Amnesty International among others) and condemned by the ECtHR in a series of judgments (see for instance, Abdolkhani and Karimnia v Turkey and the recent SA v Turkey, judgement of 15 December 2015). Furthermore, with reference to serious harm due to indiscriminate violence in a situation of conflict, the internal conflict between Turkey and the Kurdish rebels, which has escalated during the last year, may pose threats to the lives of asylum-seekers and refugees in the southeast of the country.

Therefore, it seems that Turkey does not fulfil many of the requirements for designation as a safe third country under the Procedures Directive. Even though the Samsom Plan does not mention this option, it seems now interesting to consider whether a similar policy could theoretically be implemented based on two different concepts entailed in the Procedures Directive, the concepts of ‘European safe third country’ and ‘first country of asylum’. The latter will be examined more in detail.

Is Turkey a ‘super-safe’ third country?

This wasn’t mentioned above, but the Asylum Procedures Directive also provides for a special category of ‘European safe third country’, which has been dubbed (sarcastically) the ‘super-safe’ third country concept. In this case, a Member State could have ‘no, or no full’ consideration of an asylum application – as foreseen by the Samsom Plan. The legal requirements for a country to be considered a ‘European safe third country’ are set out in Article 39(2) of the Directive:

  1. a) the ratification and full implementation of the Geneva Convention without any geographical limitation;
  2. b) the existence of an asylum procedure prescribed by law; and
  3. c) the ratification and full implementation of the ECHR.

Even though Turkey has in place an asylum procedure prescribed by law (Law on Foreigners and International Protection adopted in April 2013 is Turkey’s first-ever national legislation on asylum), is a party to the ECHR (even though one of the parties with the highest number of condemnations by the ECtHR for violations of this treaty) and has ratified the Geneva Convention, as mentioned above, it maintains a geographical limitation to the application of the Geneva Convention, excluding non-European asylum-seekers from the refugee status. For this reason Turkey could not even be considered a ‘European safe third country’.

Could Turkey be considered a ‘first country of asylum’?

Could then the notion of ‘first country of asylum’ apply to Turkey? Could asylum-seekers possibly be returned from Greece to Turkey based on the fact that Turkey is their first country of asylum?

Article 33(2)(b) of the Procedures Directive foresees the possibility for a Member State to deem an asylum application inadmissible if it considers a non-EU country to be a first country of asylum for a particular applicant. Article 35 establishes that a third country can be a first country of asylum in two cases:

  1. a) if the applicant has been recognised as a refugee in that country and can still avail himself or herself of that protection; or
  2. b) if the applicant otherwise enjoys sufficient protection in that country, including benefiting from the principle of non-refoulement.

Article 35 further specifies that in applying this concept Member States may take into account the legal requirements provided for by Article 38(1) – i.e. those used to establish whether a country is a safe third country. It also states that asylum-seekers ‘shall be allowed’ to argue that the principle cannot apply to their particular circumstances. Furthermore, they also have the right to appeal pursuant to Article 46 of the Procedures Directive (and stay on the territory during the application and at least at the outset of the appeal), as discussed above.

For the reasons set out in the annex to this blog post, option (a) arguably refers only to obtaining status under the Geneva Convention. Therefore Turkey cannot be considered a first country of asylum for a non-European asylum seeker, due to its geographical limitation on that Convention. On the other hand, option (b) might apply. In Turkey, indeed, non-European asylum seekers can, at least theoretically, have access to an alternative form of protection: the so-called ‘conditional refugee status’ (for applicants who would qualify as refugees under the Geneva Convention but who come from a non-European country) or the EU-inspired subsidiary protection. Moreover, as mentioned above, asylum seekers originating from Syria have access to a different form of temporary protection.

These three alternative forms of protection differ in terms of the level of rights their holders benefit from, which in all cases (and in particular in the case of Syrians benefiting from temporary protection) is lesser than the one recognised to ‘European refugees’ (for details on the content of these three alternative forms of protection, see the AIDA Country Report on Turkey). The question is: could these forms of protection be considered as ‘sufficient protection’? How can a Member State establish when protection is ‘sufficient’?

Article 35 provides two reference points, one being strictly mandatory, the other one being optional. The first one is the respect of the non-refoulement principle. Turkey is formally bound to the principle of non-refoulement, being a party to the ECHR and having incorporated the principle into Article 4 of its Law on Foreigners and International Protection as well as in Article 6 of its Temporary Protection Regulation. However, as mentioned above, the country has a historical record ofrefoulement practices and there are allegations of a recent intensification of push-backs and deportations of Syrians and other asylum-seekers. Therefore, Turkey does not seem to be fully compliant with the principle of non-refoulement in practice. But, in light of the fact that each asylum application must be examined individually based on the specific circumstances of the case, Member States might argue that the risk of non-refoulement could be assessed on a case-by-case basis in order to establish if that particular applicant enjoys sufficient protection in Turkey.

The second reference point mentioned by Article 35 is Article 38(1). In deciding whether a third country can be considered a first country of asylum, Member States may apply the same criteria they use for determining whether that country could be a safe third country. As discussed above, Turkey does not seem to comply with most of the safe third country legal requirements and, on this basis, it might be argued that in general it should not be considered a first country of asylum. However, because this is a ‘may’ clause, Member States have no obligation to apply Article 38(1) requirements to Article 35 cases and can simply ignore the possible link between the two concepts.

Therefore, although the possible application of the concept of first country of asylum to Turkey seems in general rather controversial, Member States might apply it on an individual basis, based on option (b). However, if they decide to do so, Member States’ authorities would have to conduct a case-by-case assessment, taking into due consideration the particular circumstances of each individual applicant in order to determine whether he or she enjoys sufficient protection in Turkey and does not risk being refoulé(e). As discussed above, an individual examination of all asylum claims (including the applicant’s right to appeal against a negative decision) is incompatible with the extremely rapid procedure and systematic readmission mechanism envisaged by the Samsom Plan.

A change in EU law?

The above discussion is based on current EU legislation. It is, of course, possible in principle for the EU to amend that legislation via the usual process, or arguably via means of an ‘emergency’ measure on asylum pursuant to Article 78(3) TFEU. The previous use of Article 78(3), for a ‘relocation’ system, is being challenged byHungary and Slovakia. (On the latter challenge, see discussion here; and on the general legal issues concerning that provision, see discussion here.) There might be some specific procedural issues about the use of Article 78(3) to establish the Samsom Plan, but the underlying issue is substantive: could EU law be changed (by either means) to set up a ‘return ferries’ process?

The answer is clearly: No. All EU asylum measures are subject to the general rules in Article 78(1) TFEU: ‘compliance with the principle of non-refoulement’, and acting ‘in accordance with the Geneva Convention…and other relevant treaties’. Also, all EU measures are subject to the EU Charter of Fundamental Rights, which must be interpreted consistently with the ECHR (Article 52(3) of the Charter).

It must follow that at the very least, the ECHR case law minimum standards discussed above must apply. So no revised EU law can provide for return of people coming from Turkey without some proper individual consideration of their claim that Turkey would not be a safe country for them; and there must be a right to appeal and stay in the country at least until the first-instance decision is made on this issue. To the extent that the Samsom Plan does not respect this irreducible core of human rights protection, it would be illegal.

Conclusion

Although it is remarkable that Turkey adopted a new comprehensive EU-inspired asylum legislation and is a state party to major human rights conventions, such as the European Convention on Human Rights, the Refugee Convention and the Convention against Torture, the way it has so far implemented its international human rights obligations appears to be still faulty. In particular, the right to asylum in Turkey cannot be considered as ‘fully established’, especially because of the still largely dysfunctional asylum system and the existing inequalities in access to protection and content of protection, which at the present moment are affecting Syrian refugees in particular.

For these reasons, the Samsom Plan proposing the systematic return of all asylum seekers from Greece to Turkey in exchange for increased refugee resettlement in Europe, appears to be not only very difficult to implement (due to both legal and practical obstacles), but also based on the doubtful presumption that Turkey may be (soon) considered a safe third country for refugees and asylum-seekers.

Furthermore, it is unfortunate that the EU and Turkey did not agree to fully apply the Geneva Convention for Turkey, and that there are no mechanisms of accountability in place for the EU institutions to report either in general upon Turkey’s compliance with international human rights standards or in particular to explain exactly how the EU’s money is being spent.

Barnard & Peers: chapter 26

JHA4: chapter I:5

Photo credit: insidethegames.biz

**Emanuela Roman is a PhD candidate in Human Rights at the University of Palermo and junior researcher at the Forum of International and European Research on Immigration (FIERI). This article was written during the period she is spending as a visiting researcher at the Vrije Universiteit Amsterdam, Faculty of Law, Migration Law Section. Emanuela would like to thank all her colleagues at the VU Migration Law Section, in particular Theodore Baird, Evelien Brouwer, Thomas Spijkerboer and Hemme Batijes for their precious comments and advise. The sole responsibility for the content of this article lies with the authors.

Annex I

Interpreting the ‘safe third country’ clause in the Procedures DirectiveAs noted above, Article 38 of the Asylum Procedures Directive says that in a safe third country it must be possible for the applicant ‘to request refugee status and … to receive protection in accordance with the Geneva Convention’. In my view, this can only refer to States which have ratified and fully apply the Convention; therefore it cannot apply to Turkey. I am grateful for a discussion with Daniel Thym on this issue – although I should note that he holds the opposite opinion.

First of all, this interpretation is supported by the legislative history of the text, which is set out in detail in Annex II. The original draft in 2002 made expressly clear that the clause could apply even if a State had not ratified the Convention. During negotiations that text was revised so that the final wording states that it must be possible to get status ‘in accordance with’ the Convention. Attempts by several Member States to make it clear that alternative types of protection besides full Convention refugee status could also trigger the clause were not successful.

Secondly, the ordinary meaning of the words ‘in accordance with’ in English is ‘in compliance with’, although the other language versions are equally valid. This is confirmed by the words ‘refugee status’: the full title of the Geneva Convention is the ‘Convention on the Status of Refugees’. How can one apply for ‘refugee status…in accordance with the Geneva Convention’ if the state concerned has not ratified, or does not fully apply, the ‘[Geneva] Convention on the Status of Refugees’? While the definitions clause refers to Member States as regards the definitions of ‘refugee’ and ‘refugee status’, this logically cannot be intended to apply to Article 38, since that Article only refers to applications made in non-EU states.

Thirdly, the a contrario rule supports this interpretation. Where the drafters of the Directive wanted to refer to the possibility of applying for an alternative form of protection, they did so expressly, as in Article 35(b) of the Directive. Admittedly Article 39, which refers more clearly to the geographical reservation of Turkey as a (failed) condition for the ‘super-safe’ countries rule to apply, points in the opposite direction. But to the extent that these two a contrario analyses simply cancel each other out, the interpretation in line with the legislative history and ordinary meaning should apply.

Similarly ‘recognised as a refugee’ under Article 35(a) of the Directive should be interpreted to refer to the Convention refugee status, in the absence of any indication that any alternative meaning is intended. However, Article 35(b) does clearly provide for an alternative option of designating a state as a ‘first country of asylum’ due to the existence of other forms of protection.

Annex II: Legislative history of the ‘safe third country’ clause

  • Commission proposal, 2002: explicitly provides in an Annex that a ‘safe third country’ can be a country which has not ratified the Geneva Convention
  • Council doc 6929/03 – a note indicates that the Council will start work looking at ‘safe’ country concepts. This plan is soon dropped; the Council looks first at Arts 1-22 instead.
  • Council doc 7214/03 – Annex unchanged at this point, no MS comments
  • Council docs 10064/03 and 10456/03 – ditto
  • Council doc 10722/03 – minor amendment to annex to state that Cartagena declaration countries must have a procedure compliant with the principles of the Geneva Convention
  • Council doc 11108/03 – no change
  • Council doc 11575/03 – annex shortened a little
  • Council doc 12281/03 – annex shortened significantly
  • Council doc 12734/03 – annex is simplified, but still provides for rules (same as in previous text) on when a ‘safe third country’ can be a country which has not ratified the Geneva Convention
  • Council doc 13369/03 – same text, but Germany now has a reservation linked to the ‘super-safe’ country clause, and Finland says the relevant clause could be deleted
  • Council doc 13901/03 – unchanged
  • Council doc 13902/03 – unchanged. The Presidency notes that delegations have inflexible positions on these provisions.
  • Council doc 14020/03 – ditto
  • Council doc 14182/03 – issue sent to the Council
  • Council doc 14330/03 – text unchanged
  • Council doc 14686/03 – text unchanged. But Spain suggests deleting the annex and having a short description of ‘safe third country’ in the main text, which is vague as to whether the state in question must have ratified the Convention
  • Council doc 14686/03 add 1 – Presidency proposes to delete the annex and have a short description of ‘safe third country’ in the main text, which only mentions the Convention as regards non-refoulement
  • Council doc 15153/03 – clause now in the main text, annex deleted. No change re Convention issue. DE still has reservation linked to ‘super-safe’ clause
  • Council docs 15153/03 rev 1 and 2 – amended to refer to ‘request recognition and be granted protection by that country or by the UNHCR as a refugee’. Spain wants to delete ‘as a refugee’. BE, NL and FI want to add express clause requiring ratification of the Convention and/or observation of the Convention. DE reservation is gone.
  • Council doc 15198/03 – unchanged
  • Council doc 15198/03 add 1 – UK wants to delete the whole sub-para
  • Council doc 6871/04 – redraft adds clause separate from main criteria for ‘safe third country’: ‘…Member States shall have regard to whether the third country has ratified the Geneva Convention…’ when assessing the application of those criteria. The clause in the main criteria now reads ‘request and be granted protection as a refugee in that country’. This deletes the reference to the UNHCR and makes it clear that it must be the country which grants refugee status.
  • Council doc 6954/04 – unchanged, but UK joined by EL/ES/NL/AT want to add the words ‘or other forms of international protection’ to the criteria
  • Council doc 7183/04 – unchanged, NL no longer supporting the UK position
  • Council doc 7184/04 – unchanged
  • Council doc 7184/1/04 – unchanged. UK and ES now want to change to ‘or another form of status which otherwise offers sufficient protection’ to the criteria. This is similar to final ‘first country of asylum’ clause.
  • Council doc 7484/04 – due to deadlock, Presidency proposes dropping clause on ‘request and be granted protection as a refugee’ to get a deal.
  • Council doc 7729/04 – ditto
  • Council doc 8166/04 – redraft retains ‘request and be granted protection as a refugee’ clause, drops requirement to take into account whether third State has ratified Convention
  • Council doc 8158/04 – same text and reservation as in 7184/1/04
  • Council doc 8413/04 – text amended to read:  ‘the possibility exists to requestrefugee status and, if found to be a refugee, to receive protection in accordance with the Geneva Convention’. UK and Spanish proposal rejected – link to Geneva Convention in fact made explicit instead
  • Council doc 8415/04 – as before, except the UK seeks to amend to read ‘in accordance with the principles of the Geneva Convention’. This is clearly rejected in the final version.
  • Posted by Steve Peers 

Protecting civilians in armed conflict International framework and challenges

EUROPEAN PARLIAMENT RESEARCH SERVICE BRIEFING (January 2016)

Author: Carmen-Cristina Cîrlig

SUMMARY

In today’s armed conflicts, whether international or intra-state, the vast majority of casualties are now civilians. Increasingly, civilians are victims of deliberate attacks and other serious violations by parties to a conflict – both states and non-state armed groups, despite the existence of strict legal rules intended to spare civilians from the effects of hostilities: the principles of international humanitarian law, of international human rights law and refugee law.
The lack of compliance with these norms, as well as the United Nations Security Council’s inability to take action to protect civilians in some specific cases, reflects the key concerns regarding the protection of civilians affected by armed conflicts worldwide. Moreover, specific protection concerns relate to the situation of women, children and displaced persons.
Besides this international legal framework, another related concept has garnered significant support internationally in the past decade: the Responsibility to Protect (R2P), meant to apply only in cases of atrocity crimes. However, R2P remains controversial, given the challenge of adequate implementation, particularly with regard to its military intervention aspects.
Notwithstanding the many challenges with regard to protecting civilians in armed conflict, the European Union is a strong promoter of international humanitarian principles and of R2P, and other protection-related issues are consistently among its priorities.

Armed Conflicts

 

Trends in armed conflicts and impact on civilians…

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L’ELSJ à l’heure de l’état d’urgence : un effet collatéral du « syndrome shadok » de la lutte antiterroriste française ?

ORIGINAL PUBLISHED ON CDRE PAGE  (2 FÉVRIER 2016)

by Pierre Berthelet, CDRE

« Il vaut mieux pomper d’arrache-pied même s’il ne se passe rien que risquer qu’il se passe quelque chose de pire en ne pompant pas ». La devise des Shadoks n’aura nullement échappé à l’observateur du droit français de la lutte antiterroriste au moment où le gouvernement prolonge la loi sur l’état d’urgence, validée par le Conseil d’État dans une ordonnance du 27 janvier 2016. La France, en proie à une pulsion législative si bien évoquée dans l’ouvrage Un droit pénal postmoderne ?, empile les textes juridiques destinés à faire face à la menace terroriste. La France semble être atteinte du « syndrome Shadok » caractérisé par une inflation législative constante.

Ce « syndrome Shadok » évoqué par Yves Trintignon de l’Université du Québec met en évidence le fait que le gouvernement français, confronté aux attaques terroristes de janvier et de novembre 2015, s’est empressé de renforcer les capacités des services de renseignement sans réellement s’interroger sur les difficultés rencontrées en matière d’organisation, sur les défaillances de leurs méthodes, ou encore sur les lacunes de leurs pratiques opérationnelles. Pis, il aggrave la situation en répondant promptement à la demande de ces services, et à l’inquiétude de l’opinion publique, sans véritablement faire preuve de distanciation à l’égard des effets pervers à plus long terme.

 

Une telle vision à court-termiste consistant à « pomper » sans relâche, c’est-à-dire à renforcer constamment le dispositif antiterroriste, est constatée à l’échelon national, mais aussi à l’échelon européen. D’emblée, la construction européenne dans ce domaine connaît des progrès sensibles. Ces avancées, observables concernant particulièrement l’ELSJ, s’expliquent notamment par l’implication de la France dans le processus décisionnel, désireuse que l’Union soit pleinement associée à la lutte qu’elle mène (1).

 

Cependant, à y regarder de près, la construction européenne risque d’être davantage victime que bénéficiaire de l’engagement de la France dans l’intégration européenne. En effet, son implication est avant tout dictée par une logique en vertu de laquelle le gouvernement entend obtenir un crédit politique à travers une réaffirmation de son autorité. L’État cherche à se légitimer à travers les lois qu’il prend, peu importe d’ailleurs leur efficacité. Il est d’ailleurs à noter que la France réclame une plus grande implication de l’Union dans la lutte antiterroriste, mais elle se garde bien de demander une évaluation globale de l’efficacité des politiques menées par les différents États membres.

 

Le « syndrôme Shadok » de la lutte antiterroriste française, qui consiste à pomper toujours plus même si cela ne sert à rien, a un impact néfaste sur l’édification de l’ELSJ à long terme (2).

 

Toute tentative de vouloir ralentir cette course effrénée est susceptible de constituer un obstacle inadmissible à l’égard d’un État membre désireux de se défendre face à une menace d’une gravité extrême. Qui plus est, les valeurs sur lesquelles l’Union est fondée, la préservation de l’État de droit et le respect des droits de l’homme pourraient faire les frais d’une telle course aveugle. On voit dès lors l’importance du juge européen, comme rempart face au cercle vicieux sécuritaire traduit en langage shadok par « je pompe donc je suis ».

 

  1. Le rôle moteur dans la lutte antiterroriste d’une France aux allures pro-européenne

 

La France apparaît comme l’aiguillon, désireuse de progresser dans l’intégration européenne, et ce, pour ce qui est de l’ELSJ. Un document du Conseil indique ainsi que la délégation française souhaite élargir le champ de la proposition de directive présentée par la Commission européenne le 2 décembre 2012.

Pour mémoire, ce texte, remplaçant la décision-cadre 2002/475/JAI du Conseil relative à la lutte contre le terrorisme, entend harmoniser la législation nationale concernant l’incrimination des « combattants étrangers », de même que l’aide apportée à la sortie du territoire. La décision-cadre a fait l’objet d’une modification en 2008 pour rendre punissable la provocation publique à commettre une infraction terroriste, ainsi que la diffusion sur Internet de la propagande terroriste.

De son côté, la France estime qu’il convient d’aller au-delà de cette actualisation de la législation européenne au regard des textes internationaux ayant trait à ce phénomène des « combattants étrangers » (la résolution du Conseil de sécurité des Nations unies (RCSNU) 2178 (2014)) et le protocole additionnel à la Convention du Conseil de l’Europe pour la prévention du terrorisme de mai 2015).

Elle considère notamment qu’il importe de rendre punissable dans tous les États membres le trafic d’œuvres d’art en provenance de zones sous contrôle terroriste et de supprimer les pages internet incitant au terrorisme ou d’en bloquer l’accès.

Les ajouts de la France dans la proposition de directive s’inscrivent dans un contexte où ces questions font l’objet d’une attention particulière en droit interne.

Ainsi, concernant le trafic d’œuvres d’art, la répression du commerce illicite de biens culturels figure dans le projet de loi contre le crime organisé et le terrorisme, qui doit être présenté courant février 2016.

Pour ce qui est de la suppression des pages internet faisant l’apologie du terrorisme, le Sénat avait adopté le 1er avril 2015 une résolution européenne réclamant l’extension des compétences du Centre européen de lutte contre la cybercriminalité (EC3) en lui donnant la possibilité de supprimer des contenus terroristes ou extrémistes.

Peu avant, le 5 février 2015, un décret a été adopté fixant les modalités permettant aux internautes d’avoir accès à des pages web faisant cette apologie.

La force de proposition de la France concernant ce projet de directive est le reflet d’une volonté politique affichée concernant l’ELSJ : dans une déclaration après le Conseil JAI à Amsterdam du 25 janvier 2016, le ministre de l’Intérieur, Bernard Cazeneuve, fixe les demandes françaises, entendues comme des priorités « essentielles » figurant dans un agenda qui « n’est pas négociable ». Il énumère également les mesures sur lesquelles la France a obtenu satisfaction, en prenant le soin d’ajouter que bon nombre de ces mesures ont été initiées sous son impulsion : la directive PNR, la modification de l’article 7-2 du code frontières Schengen visant à instaurer des contrôles approfondis sur les ressortissants européens quittant l’espace Schengen, ou encore la révision de la directive de 1991 relative au contrôle des armes à feu.

 

  1. La stratégie de fuite en avant sécuritaire d’une France tentée par le repli national

 

La déclaration du ministre de l’Intérieur à l’issue du Conseil JAI du 25 janvier 2016 démontre l’intention de la France de continuer « son travail de persuasion » avec « beaucoup de volontarisme », pour reprendre les termes du texte. Elle fait office également de satisfecit, à la fois au sujet de l’efficacité de l’implication de la France dans la sphère institutionnelle et concernant l’action de l’Union européenne menée sous sa houlette, en matière de lutte antiterroriste.

 

La France s’est engagée depuis de nombreuses années dans une logique de renforcement continuel de l’arsenal répressif au nom de ce que le président de la République a qualifié de « guerre contre le terrorisme ». La fuite en avant sécuritaire se traduit par l’adoption de nombreux textes en 2014 et en 2015 : plan d’avril 2014 contre la radicalisation violente et les filières terroristes, loi du 13 novembre 2014 renforçant les dispositions relatives à la lutte contre le terrorisme et décrets d’application du 14 janvier 2015 destinés à mettre en place l’interdiction administrative de sortie du territoire des ressortissants français, décret précité du 5 février 2015, décret du 4 mars 2015 relatif au déréférencement des sites, plan d’action du 18 mars 2015 pour lutter contre le financement du terrorisme, loi du 24 juin 2015 sur le renseignement et ses multiples décrets d’application, et décret du 14 novembre 2015 instaurant le régime de l’état d’urgence, prorogé par la loi du 20 novembre 2015.

 

D’autres projets sont en cours : projet de loi précité contre le crime organisé et le terrorisme, proposition de loi relative à la sécurité dans les transports, projet de loi constitutionnelle « de protection de la nation » comprenant deux volets, à savoir la déchéance de la nationalité d’un binational devenu français et l’inscription dans la Constitution des conditions de déclenchement de l’état d’urgence.

 

Cette fuite en avant est inquiétante, car s’il est possible de comprendre la stratégie de la France dans une perspective purement nationale, notamment à l’aune des manœuvres déployées par le gouvernement à l’égard du Front national, il est aussi possible d’inscrire le renforcement de l’arsenal répressif dans un contexte de dérive autoritaire que connaissent bon nombre de gouvernements européens, la Pologne au premier chef, vis-à-vis de laquelle la Commission a engagé une procédure de dialogue sur la base de l’article 7.1 TUE.

 

Une telle fuite en avant se traduit, sur le plan européen, par davantage de fermeté de la part de la France : fermeté vis-à-vis d’un Parlement européen réticent à adopter la directive PNR, fermeté à l’égard des délégations nationales enclines à tergiverser au Conseil sur les propositions d’actes en instance d’adoption, fermeté à l’encontre de la Commission désireuse de vérifier la conformité de la décision française de rétablir les contrôles aux frontières intérieures.

 

L’ultimatum lancé à celle-ci par le gouvernement français concernant le rétablissement de ces contrôles en vertu de l’art. 25 du Code Frontières Schengen, aussi longtemps que perdurerait la menace terroriste, est significatif de sa volonté d’afficher, sur tous les fronts, une détermination sans faille. Or, lerétablissement temporaire prolongé en dehors des délais prévus par le Code pose problème du point de vue de la légalité européenne, en particulier au regard des art. 23, 23bis et 25 du code.

L’attitude de la France consistant à faire preuve de fermeté tous azimuts lui permet de faire illusion sur le plan politique. Celle-ci se pare des atours d’une nation leader de la construction européenne pour mieux dissimuler les tentations de repli national. En effet, les efforts menés pour se trouver à la pointe de la lutte antiterroriste masquent la prévalence des intérêts nationaux érigés, en matière sécuritaire, au rang de principes absolus, insusceptibles de limitation.

 

D’ailleurs, pour s’en convaincre, il suffit de constater que, quel que soit le gouvernement, de droite ou de gauche, la France n’hésite pas à remettre en cause publiquement l’acquis de Schengen si celui-ci lui porte préjudice. Une telle attitude se révèle problématique d’un point de vue politique, car elle menace de détricoter cet acquis, faisant, par la même occasion, le jeu de certains gouvernements situés à l’Est de l’Europe.

 

Une telle attitude, prompte par ailleurs à désigner Schengen comme bouc émissaire, et à pointer les défaillances de l’ELSJ, se révèle problématique d’un point de vue juridique, car le droit français adopté dans le contexte de la lutte antiterroriste pose la délicate question de sa conformité du point de vue du droit européen. Ainsi, une France sous état d’urgence prolongé aurait-elle pu adhérer à l’Union européenne conformément aux critères insérés aux art. 6 et 49 TUE ? De manière générale, la législation française est-elle conforme à l’art. 2 TUE ainsi qu’aux dispositions de la Charte européenne des droits fondamentaux ?

 

La question est d’autant plus pertinente que le forcing français à l’égard de la directive PNR pourrait conduire à une annulation de ladite directive et ce, au regard de la jurisprudence Digital Rights. À ce propos, les juges européens se montrent sévères à l’égard de la dérive sécuritaire observée dans les États membres.

 

Prenant appui sur cette jurisprudence Digital Rights, la Cour européenne des droits de l’Homme, dans un arrêt du 12 janvier 2016, Szabo et Vissy c. Hongrie (voir l’analyse de Sylvie Peyrou), s’est montrée très ferme à l’égard des mesures nationales prises dans le cadre de la lutte contre le terrorisme, en l’occurrence les opérations secrètes de surveillance antiterroriste.

 

Le rôle du juge européen n’a jamais été aussi important, non seulement comme défenseur du droit, mais aussi comme gardien des valeurs européennes. Il s’érige comme l’ultime recours face à cette fuite en avant sécuritaire préoccupante pour l’Europe et pour la France. Les mots de la Commission nationale consultative des droits de l’homme (CNCDH) dans sa déclaration du 16 janvier 2015 sur l’état d’urgence et ses suites sonnent particulièrement juste : « la France ne doit pas, sous l’emprise de la sidération, sacrifier ses valeurs, au contraire, elle doit renforcer la démocratie ».