The Iraq war and EU asylum law: the CJEU’s answers are blowin’ in the wind

ORIGINAL PUBLISHED HERE 

by Steve Peers

Nearly twelve years since the conflict began, the Iraq war is still controversial, with many believing that Tony Blair and George W. Bush launched an ‘illegal war’. For these critics, the only satisfying result would be the trial of Bush and Blair on war crimes charges. I think this will happen one day – on the condition that the jury consists of flying pigs. (Perhaps they flew off with the mythical weapons of mass destruction).

For now, then, in light of the mysterious death of a scientist and the dubious delay in a planned investigation of the war, critics of the conflict have to litigate these issues indirectly. There is a link to EU law here – as set out in February 26, Shepherd judgment of the CJEU. Unfortunately that judgment is highly problematic, not because the Court avoids the key issue of the war’s legality, but because of its unconvincing interpretation of some key issues concerning the status of deserters in EU asylum law.

Background

The Geneva Convention on refugee status defines a refugee as a person outside his or her country of origin, who is unwilling or unable to return to that country due to a well-founded fear of persecution on grounds of race, religion, nationality, particular social group or political opinion. But it excludes refugee status from those who have committed particularly heinous acts, including war crimes.

These rules are set out again, and further elaborated, in the EU’s Qualification Directive. In particular, there is a further definition of the concept of ‘persecution’, which (among other things) includes legal or policing measures, or prosecution or punishment, which is ‘disproportionate or discriminatory’ (the ‘unfair punishment’ rule), and ‘prosecution or punishment for refusal to perform military service in a conflict’, if ‘performing military service would include crimes or acts falling under the exclusion clauses’ (the ‘military service’ provision).

The Shepherd case concerns an American soldier who developed doubts about the legitimacy of the Iraq war. Although he was not in combat, but rather carried out maintenance work on helicopters, he feared that he was contributing to the commission of war crimes. So he deserted from the US army, but expected that he would be prosecuted in the USA as a result. To avoid this, he applied for asylum in Germany, and the German courts sent questions to the CJEU to clarify the interpretation of the Qualification Directive.

Judgment

The Court began by confirming that it would only interpret the rules in the Directive on the concept of persecution, although the Advocate-General’s opinion had also examined the rules on the grounds of persecution and exclusion. As a result, the Court’s judgment says nothing (for instance) about the definition of ‘war crimes’.

Next, the Court made four main points about the interpretation of the ‘military service’ provision. First of all, the definition of ‘military service’ included support staff, and the circumstances surrounding enlistment in the military were irrelevant. Implicitly it doesn’t matter whether the soldier was conscripted or volunteered. However, the Court stated that being part of the military was a ‘necessary but not sufficient’ condition for the rule to apply.

Secondly, the Court elaborated upon the conditions for applying the provision, setting out four elements to be considered: there must be a relationship with an actual conflict; the rule can apply even to indirect participation in a conflict, if the soldier’s tasks could ‘sufficiently directly and reasonably plausibly, lead them to participate in war crimes’ (the possibility of prosecution before the International Criminal Court being irrelevant); there must be a likelihood of war crimes being committed in future (again, the possible role of the International Criminal Court is irrelevant); and the past conduct of the unit is not an automatic indicator that war crimes will be committed in future. Overall, the test is whether ‘there is a body of evidence which alone is capable of establishing’ whether it is ‘credible’ that war crimes will be committed.

Thirdly, the Court examined the context of the conflict in question, addressing three issues. If there was a Security Council resolution authorising the conflict, there was ‘in principle, every guarantee’ that war crimes will not be committed, although this was not an absolute rule. This also applied to an ‘operation which gives rise to an international consensus’. And if national law of the country of origin provided for the ‘possibility’ of prosecution of war crimes, then it was ‘implausible’ that such crimes will be committed. Overall, the asylum-seeker has to show that there is ‘sufficient plausibility’ that his unit is ‘highly likely’ to commit war crimes.

Fourthly, the Court looked at the soldier’s individual circumstances. Desertion has to be the only way in which he could avoid participation in war crimes, and the Court pointed out that Mr. Shepherd had enlisted and then re-enlisted in the US armed forces.

Finally, the Court interpreted the ‘the ‘unfair punishment’ rule. The starting point was that Member States are entitled to maintain an armed force, including by means of punishing soldiers who desert. A penalty of up to five years in prison was not disproportionate, in the CJEU’s view. Nor was Mr. Shepherd’s punishment discriminatory, since there was no comparator for him. And the social ostracism that might result from his desertion was legally irrelevant, since it was only a consequence of the punishment.

Comments

Let’s begin with the parts of the judgment which are fairly convincing. The Court’s definition of ‘military service’ makes sense in light of the wording of the Directive, as does its interpretation of the conditions for applying this provision.

Unfortunately, the majority of the Court’s reasoning is not as persuasive. As regards the ‘unfair punishment’ rule, the Court should have made clearer why a lengthy prison sentence is acceptable for a deserter, but not (according to prior case law) an LGBTI refugee. (The obvious answer is that an expression of human sexuality is prima facie an exercise of the human right to a private life). On discrimination, the Court’s failure to find a comparator stems from its unwillingness to look at the grounds of persecution: obviously Mr. Shepherd could claim discrimination as compared to persons in other social groups or holding other political opinions. And as for social ostracism, the Court simply asserts that such ostracism cannot be severed from the punishment for desertion. But this is not necessarily correct. However, it should be noted that the judgment leaves open the possibility that social ostracism can exist in the absence of official punishment in another case.

The Court’s reasoning on the context of military conflict is quite implausible. Why should the mere existence of a Security Council resolution amount to a ‘guarantee’ that war crimes will not be committed? In any event, this begs the enormous question as to whether the Iraq war was indeed authorised by such a resolution. This line of reasoning is inconsistent with the Court’s ruling in the Kadi line of cases that the mere existence of a Security Council process was insufficient to guarantee human rights. Many people start out as naive idealists about international law, but end up as disappointed cynics; the Court seems to have undertaken this journey the other way around.

The idea that an ‘international consensus’ could lead to the same result is baffling. Unlike a Security Council resolution, which is clearly a real thing (leaving aside the question of how to interpret one), there is no reference to ‘international consensus’ in the Directive, and the Court makes no suggestion that such a concept exists in international law. How would it even be defined? The State being invaded clearly does not participate in such a ‘consensus’, and if there were such widespread international agreement, why would it not have resulted in a Security Council resolution anyway? The only plausible explanation for this part of the judgment is that Tony Blair hacked into the Court’s computer system, integrating his beliefs about liberal intervention into the heart of EU law. Let’s hope he didn’t charge the Court his usual fee.

Nor is it convincing that the ‘possibility’ of national prosecution for war crimes is sufficient. If it were, why has the international community spent decades building an international criminal court system? The Advocate-General’s opinion gives several examples (such as My Lai) where such a possibility was clearly insufficient.

Finally, as regards the soldier’s individual circumstances, the Court failed to consider the possibility that the conduct of the war changes, that facts about war crimes come to light, or that the solider simply changes his mind. The latter possibility is clearly relevant, since public opinion hardened against the Iraq war as it went on, and the Advocate-General spells out how Mr. Shepherd came to change his own mind. But the final word on this point should go to Bob Dylan:

Yes, how many times can a man turn his head Pretending he just doesn’t see?

 Yes, how many ears must one man have Before he can hear people cry?

Yes, how many deaths will it take till he knows That too many people have died?

The answer my friend is blowin’ in the wind The answer is blowin’ in the wind.

OPINION 2/13 ON EU ACCESSION TO THE ECHR: LOOKING FOR THE SILVER LINING

ORIGINAL PUBLISHED ON EU LAW ANALYSIS

Monday, 16 February 2015

by Catherine Barnard, Trinity College, Cambridge

Introduction

Opinion 2/13 is a judgment for lawyers, not politicians, albeit one with major political ramifications. It engages in a detailed legal analysis of the relevant provisions of the Draft Accession Agreement (DAA), as well as key principles of EU law. This does not always make it an easy read. Others have helpfully explained the Opinion (see the Editorial comments in (2015) 52 Common Market Law Review 1); a number have been have been highly critical of it (eg Douglas-Scott, Peers, Lock). I want to see whether it is possible to adopt a more positive reading of the Opinion. My remarks focus on three points:

  • Was there a failure to see the wood for the trees in the negotiations?
  • Was Opinion 2/13 really a case of judicial vanity?
  • What are the effects of Opinion 2/13 on relations between the CJEU and the European Court of Human Rights?

Was there a failure to see the wood for the trees in the negotiations?

The submissions of the Member States and the AG’s Opinion focused on the content of the Draft Accession Agreement: are the various clauses of the agreement compatible with EU law? But I think the Court felt that the focus on the nuts and bolts of the DAA meant that the negotiators failed to look at the bigger picture, namely (1) that the EU is not a state; and (2) that EU law has special characteristics (the language of Article 1 of Protocol 8[1]) which had not been sufficiently accommodated by the DAA.

In other words, the DAA focused on the state of the soft furnishings of the house – the carpets and curtains – rather than on the structural soundness of the entire edifice. But the Court was much more concerned with the edifice rather than the soft furnishings. This is why it devoted a substantial part of its Opinion (paragraphs 153-177) to identifying the ‘specific characteristics’ of EU law which it thought risked being undermined by accession to the ECHR. It identified these specific characteristics as supremacy, direct effect, conferral of powers, institutional structure[2], as well as the principle of mutual trust[3]and fundamental rights (why so far down the list?).[4] The Court also emphasised the importance of the autonomy of EU law – that is its autonomy from both the laws of the Member States and international law.[5] The Court said that the autonomy of EU law, together with its specific characteristics, were preserved by the judicial system intended to ensure consistency and uniformity in the interpretation of EU law.[6] And the key to this system is the Article 267 TFEU preliminary reference procedure.[7] It was against this backcloth, said the Court, that the DAA had to be considered.

Having set out its stall, the Court was, I think, trying to indicate that anything in – or about – the Accession agreement which jeopardised this core contravened EU law. Putting it another way, the discussion in paragraphs 153-177 was not put there simply to teach EU lawyers to suck EU eggs; these paragraphs are integral to the logic that followed. They provided the context for the Court to consider not just the points raised by the Member States in their submissions but also the bigger constitutional picture.

This broader constitutional context also helps to explain the focus on the three substantive issues: Article 53, mutual trust and Protocol No. 16 which had featured little in the submissions and the AG’s Opinion. At first sight, it is particularly surprising that Protocol No. 16 was considered at all. It allows national courts of last resort of states signed up to the Protocol to make ‘references’ to the European Court of Human Rights for an interpretation of the Convention.[8] It was concluded after the DAA had been agreed and it has not yet been brought into force. Yet the mere existence of Protocol 16 gave the Court the opportunity to express its views on the centrality of Article 267 TFEU to the EU system and how the reference procedure might be undermined.

In other words, for the Court, the EU’s team negotiating the DAA had failed to consider this important constitutional ‘wood’, focusing too much on the ‘trees’. Addressing the concerns about the potential infringement of Article 267 TFEU, together with the issues raised about Article 53 TFEU, the principle of mutual trust and Protocol No 16, was essential before accession could take place.

Was Opinion 2/13 a case of judicial vanity?

Critics of Opinion 2/13 argue that the Court of Justice was determined to protect its supremacy at all costs. Despite the fact that all intervening Member States, the AG (with reservations), and the Presidents’ joint communication indicated support for the DAA, the Court cussedly did the opposite. Even if this narrative is correct (which I doubt – see below), I actually think there would be some justification for the Court refusing to surrender itself so absolutely to the control of a ‘higher’ court. Compared to the US Supreme Court, it is still a teenager as a court. It continues to deal with threats to its supremacy from the Constitutional Courts of the Member States. It has, more or less, successfully held off those challenges. It certainly saw off a challenge to its supremacy from the power of the UN in Kadi I.[9] There, its identification of the autonomy of EU law was largely welcomed: David was seeing off Goliath. The situation is different now. The CJEU has now assumed Goliath-like proportions. Autonomy may now be mistaken for hubris, arrogance, disdain for its sister court. However, to the Court of Justice, subordination to a ‘higher’ court might suggest the Court is not invincible. It has always been very sensitive to this possibility.

However, I am not sure that the narrative of judicial vanity is correct. After all the Court does expressly concede that EU law – and the Court of Justice – are subjecting themselves to external review.[10] It points out that:

It is admittedly inherent in the very concept of external control that, on the one hand, the interpretation of the ECHR provided by the ECtHR would, under international law, be binding on the EU and its institutions, including the Court of Justice, and that, on the other, the interpretation by the Court of Justice of a right recognised by the ECHR would not be binding on the control mechanisms provided for by the ECHR, particularly the ECtHR, as Article 3(6) of the draft agreement provides and as is stated in paragraph 68 of the draft explanatory report.

The Court also recognises that there is an obligation on the EU to accede to the Convention. However, I think the structure of paragraphs 160-162 is telling. The emphasis is not on the obligation to accede under Article 6(2) TEU, first sentence. Rather, the Court emphasises that accession is subject to limitations: accession must ‘not affect the Union’s competences as defined in the Treaties’ (Article 6(2) TEU, second sentence), nor must it interfere with the specific characteristics of the EU (Protocol 8, protocols being of equal value to the Treaties). As the Court put it at paragraph 164:

For the purposes of that review, it must be noted that, as is apparent from paragraphs 160 to 162 above, the conditions to which accession is subject under the Treaties are intended, particularly, to ensure that accession does not affect the specific characteristics of the EU and EU law.

This is a subtle change in emphasis but an important one. Yes, Article 6(2), first sentence, suggests an absolute obligation to accede. However, when viewed through the lens of Protocol 8 and the second sentence of Article 6(2) TEU, the Treaty provided not an absolute obligation to accede but a conditional one.[11] I think this is the line the Court took.

What are the effects of the Opinion on relations with the ECtHR?

For proponents of the thesis of CJEU vanity, the effect of the Opinion on relations with the ECtHR is disastrous. The fact that the Opinion came out just before Christmas – not a bad time to bury bad news – might support the idea that the Court of Justice had something to hide.

Again, a closer look at the judgment might refute, at least in part, this allegation. First, at no point did the Court criticise the European Court of Human Rights or its case law; its ire seems to have been directed at the EU’s negotiating team.

Second, as Peers has helpfully digested, the Court has clearly identified areas for improvement. It has thus provided a drafting ‘shopping list’ for the EU’s (new?) negotiating team. Some of these items are relatively straightforward to address. Some, especially those concerning the CFSP, mutual trust,[12] Article 53 and Protocol 16, may not be. And the logistics of renegotiating the DAA in the face of a number of intransigent states both in the EU and outside, gives considerable pause for thought.

But the fact is that the Court of Justice did not close the door on EU accession to the ECHR. Leaving it ajar, yes, but not slamming the door shut completely. And the Court of Human Rights is a sensitive institution. While its first reaction might be disappointment (see thePresident’s remarks on the opening of the judicial year), judicial comity will lead the judiciary in both Courts to engage – probably privately – with each other.

Conclusions

A number of commentators have been tremendously critical of the Court’s decision. Their disappointment is understandable. There was so much hope associated with accession. The effect of Opinion 2/13 is to stymie these hopes. One reading of the Opinion is that the Court did this to deliver a body blow to the ECtHR and to (re)assert the CJEU’s own supremacy. In this case the judgment is very much a political one dressed up in lawyers’ clothing. Another reading is that the Court was focused on (re)asserting the specific features of EU law, which it felt had not been adequately recognised in the negotiation process. In this case the judgment is very much a legal one.

But there may be a silver-lining. The Court of Justice has put down a marker that it thinks that it can ‘do’ human rights. It may now have to prove this. There may be more decisions like Abdida,[13] delivered by the Grand Chamber on the same day as Opinion 2/13(discussed by Peers), where the Court adopts a pro-human rights line (sweetened by numerous references to the case law of the European Court of Human Rights). Politically this may be very important, not only to start the process of bridge building with the Court of Human Rights, but also to send out a message to its own (troublesome) constitutional courts. For what is sauce to the (CJEU) goose is also sauce for the gander of the national constitutional courts.

These remarks were first delivered to a seminar organised by CELS, Faculty of Law, University of Cambridge, 4 February 2015.

Barnard & Peers: chapter 9

[1] ‘The agreement relating to the accession of the Union to the European Convention on the Protection of Human Rights and Fundamental Freedoms (hereinafter referred to as the “European Convention”) provided for in Article 6(2) of the Treaty on European Union shall make provision for preserving the specific characteristics of the Union and Union law, in particular with regard to: (a) the specific arrangements for the Union’s possible participation in the control bodies of the European Convention;(b) the mechanisms necessary to ensure that proceedings by non-Member States and individual applications are correctly addressed to Member States and/or the Union as appropriate.’

[2] Paras. 165-6.

[3] Para. 168. See also K. Lenaerts, ‘The Principle of Mutual Recognition in the Area of Freedom, Security and Justice’, The Fourth Annual Sir Jeremy Lever Lecture, All Souls College Oxford, 30 Jan. 2015.

[4] Para. 169.

[5] Para. 170.

[6] Para. 174.

[7] Para. 176. See also Opinion 1/09, ECLI:EU:C:2011:123.

[8] Art. 1 says ‘Highest courts and tribunals of a High Contracting Party, as specified in accordance with Article 10, may request the Court to give advisory opinions on questions of principle relating to the interpretation or application of the rights and freedoms defined in the Convention or the protocols thereto.’

[9] Kadi and Al Barakaat International Foundation v Council and Commission, C‑402/05 P and C‑415/05 P, EU:C:2008:461.

[10] Para. 182-5.

[11] For hints of that view, see Discussion document of the Court of Justice of the European Union on certain aspects of the accession of the European Union to the European Convention for the protection of Human Rights and Fundamental freedoms, May 2010, paras. 4-5

[12] See further A. Kornezow, ‘The Area of Freedom, Security and Justice in the Light of the EU Accession to the ECHR—Is the Break-up Inevitable?’ (2012-13) 12 CYELS 227.

[13] Case C-562/13 ECLI:EU:C:2014:2453.

EU COPYRIGHT LAW: IS THE REDA REPORT A LEAP FORWARD FOR THE PARODY EXCEPTION?

ORIGINAL PUBLISHED ON EU LAW ANALYSIS

By Sabine Jacques

In mid-January, Julia Reda (Pirate Party MEP) communicated a draft of her report on the implementation of the Information Society Directive (‘InfoSoc Directive) 2001/29/EC (it’s lengthy, but a summary can be found here). Described as ‘the most progressive official EU document on copyright since the first cat picture was published on the web’, but also as being ‘surprisingly extreme’ and even being ‘inacceptable, this report attracted widespread interest and statements of support from different digital rights organisations.

While the report rightly urges for an ever-increasing ‘internet-friendly copyright law’, the report might have gone too far in relation to parodies. Article 5.3(k) of the InfoSoc Directive currently provides the possibility for EU Member States to introduce a parody exception for the purposes of parody, pastiche and caricature to the exclusive right of reproduction in their national copyright laws (this opportunity was seized by the UK which now includes a parody exception in section 30A CDPA). This provision was interpreted by the Court of Justice of the European Union in the Deckmyn case, guiding national courts in their application of the exception to particular facts (for comments on this decision see here and the AG’s opinion see here).

At 17 on page 6 of the report, Julia Reda suggests ‘that the exception for caricature, parody and pastiche should apply regardless of the purpose of the parodic use’. Without further explanations, such a broad exception raises concerns.

The parody exception is an exception to the right-holder’s exclusive right of reproduction. As such, international treaties subject it to the application of the three-step test (Berne Convention art. 9(2), TRIPS Agreement arts. 9(1) and 13; and, WCT arts. 1(4) and 10). This test requires any exceptions in national legislation to be limited to ‘certain special cases, provided that such reproduction does not conflict with a normal exploitation of the work and does not unreasonably prejudice the legitimate interests of the author’. The French authorities’ response appropriately expresses concerns that a parody exception applicable outside any purpose of parody is unlikely to meet the first step of ‘certain special cases’. As this requirement means that a shapeless provision exempting broad series of uses should not be tolerable and reflects the need for legislators to reconcile opposing interests.

The exception for the purpose of parody, caricature or pastiche aims to provide the possibility for parodists to copy copyrighted works in limited circumstances. The current parody exception is the result of a compromise in light of the objectives underlying the exception. The issue opposes the interests of right-holders (who are entitled to be rewarded for their creation) against the interest of the users (who need to reproduce prior works to create the new work). Removing its purpose is likely to amount to a shapeless exception rebuffed by international obligations.

Yet, La Quadrature du Net interprets Julia Reda’s proposal as: ‘to admit the parody exception for non-humorous creations’. If this is her aim, this could be achieved through the current wording of the exception for the purpose of parody.

The Court of Justice of the European Union has defined ‘parody’ through its requirements in Deckmyn. At para 20, the Court notes that a parody needs: ‘to evoke an existing work while being noticeably different from it, and, secondly, to constitute an expression of humour or mockery’.

The expression of humour or mockery does not exclude the expression of criticisms. By requiring the parodist to have a humorous intent, it is suggested that a broad interpretation should prevail as to include playful, homage or serious expressions (a glimpse at French case law which knows a long history of the application of the parody exception shows evidence of serious expressions and the inclusion of satire). The limit being that the expression should refrain from being prejudicial to the person of the author or his work(s). The failure to meet this requirement enables the right-holder to enforce his or her moral rights (especially the integrity right). Additionally, where an individual is defamed, this person can bring an action under defamation law.

Also, the primary justification to the introduction of a parody exception is to facilitate the exercise of one’s freedom of expression. While freedom of expression is already considered in the current InfoSoc Directive (Recital 3 reads: ‘The proposed harmonisation will help to implement the four freedoms of the internal market and relates to compliance with the fundamental principles of law and especially of property, including intellectual property, and freedom of expression and the public interest.’) and the interpretation of the parody exception in Deckmyn (at para 25), the report (recitals C and D) confirms the importance of the relationship between copyright and related rights and freedom of expression both protected under the Charter of Fundamental Rights of the European Union (respectively enshrined in article 17(2) and 11).

Yet, the concerns expressed by Julia Reda concerning the likelihood of achieving harmonisation of the exceptions throughout the EU territory under the current InfoSoc Directive (at 10) are shared. Additionally, her wish to make copyright exceptions mandatory is welcomed (at 11) and would certainly contribute to the objective of harmonisation desired.

To conclude, it must be reminded that this report is merely a draft. This one will now be handed over to the Legal Affairs Committee and to the Internal Market and Culture committees. Overall, the report makes important proposals but there is still room for improvement. Against this backdrop, care must be taken regarding the details of each provision such as for the parody exception to ensure that the impact of the exception applicable outside parody uses does not disrupt the balance desired between the interests of right-holders and parodists.

The European Union and State Secrets: a fully evolving institutional framework…in the wrong direction (2).

 By Emilio DE CAPITANI

In a passionate intervention before the Civil Liberties Committee of the European Parliament (LIBE) on January 8 the European Ombudsman has denounced the fact that:For the first time in its twenty year history, the European Ombudsman was denied its right under Statute to inspect an EU institution document, even under the guarantee of full confidentiality, as part of an inquiry… This power to inspect documents is fundamental to the democratic scrutiny role of the Ombudsman and acts as a guarantor of certain fundamental rights to the EU citizen.”

The case concerned Europol’s refusal to give access to a Joint Surpervisory Body (JSB) report on the implementation of the EU-US Terrorist Finance Tracking Program (TFTP) Agreement (known as “SWIFT” agreement). The JSB consists of representatives of the data protection authorities of the Member States which should ensure that the storage, processing and use of the data held by Europol do not violate fundamental EU rights. To check if  Europol was correctly applying EU law the Ombusdman has asked to inspect the JSB report. ”However”,as stated by Mrs O’Reilly,”..according to Europol, the “technical modalities” agreed between the Commission and the US under Article 4(9) of the TFTP Agreement required Europol to obtain the permission of the US authorities before allowing the Ombudsman, or any other entity, any access, including an Ombudsman confidential inspection, to the record. The US authorities have refused such permission to Europol.” Reportedly the  US authorities refused this permission because the Ombudsman “need to know” requirement for having access to that classified document was not met.

Many LIBE members have considered this statement quite appalling because it allowed the US authorities to be the arbiters of whether or not the Ombudsman may exercise her statutory, democratic power to inspect the document at issue in conformity with EU law. It is worth recalling that art. 3 par. 2 of the Ombusdman statute states that : The Community institutions and bodies shall be obliged to supply the Ombudsman with any information he has requested from them and give him access to the files concerned. Access to classified information or documents, in particular to sensitive documents within the meaning of Article 9 of Regulation (EC) No 1049/2001, shall be subject to compliance with the rules on security of the Community institution or body concerned.” 

To shed some light on this controversy it could be worth recalling some elements which to my opinion have not been developed during the parliamentary debate and I had the occasion to recall in a previous post …five years ago.

The “Originator’s principle” in art. 9 of Regulation 1049/01

First of all it should be noted that art. 9 of Regulation 1049/01 cited in the Ombudsman Statute is the only EU legislative basis which allows the classification of “sensitive documents” which are “..documents are documents originating from the institutions or the agencies established by them, from Member States, third countries or International Organizations, classified as ‘TRÈS SECRET/TOP SECRET’, ‘SECRET’ or ‘CONFIDENTIEL’ in accordance with the rules of the institution concerned, which protect essential interests of the European Union or of one or more of its Member States in the areas covered by Article 4(1)(a), notably public security, defense and military matters.” According to paragraph 3 of the same article “Sensitive documents shall be recorded in the register or released only with the consent of the originator.”

However, according to Regulation 1049/01 the Originator’s consent is an exception to the general rule according to which an Institution when requested for access to a document should be driven by objective criteria and not by the will of the “originator” even when the latter it is an EU Member State (see art. 4 p.4-6 of Regulation 1049/01). The only obligation foreseen by the Regulation is to establish a fair dialogue with the “originator” and the final judge will remain the Court of justice which should assess if Regulation 1049/01 principles and rules have been violated. Not surprisingly this general rule was not easy to agree with the Member States but it was chosen as it was the only possible way out to preserve the autonomy of EU law against the risk of inconsistent decisions at EU level if taken  following national standards which are still extremely diverse (think how different is the approach to transparency in Sweden or in Spain..).

Why then establish an exception in art. 9 ?

The main factor has been the Council reqyest to cover the first 2000 EU-NATO agreement  on exchange of classified information  which, like all similar international agreements was built on the “originator” principle and also because of this was challenged by the European Parliament before the Court of Justice. Mid 2001 a deal was then struck with the European Parliament which obtained that the exception of the “originator’s principle” should had been limited to the intergovernmental domains (at the time the internal and external security policies covered by art. 24 and 38 of the EU Treaty). The logic was that for these policies the Member States are mainly under the control of their national parliaments so that the European Parliament (as well as the Court of Justice) could not be considered co-responsible for violation of EU law.

On this basis the Council has progressively built an autonomous legal framework which can hardly be considered a simple implementation of Art.9 of Regulation 1049/01. Not only the Council has added another lower level of classified documents (“Restricted”) but it embodied  the “originator’s principle”. The Council latest version of these security rules is the Decision 2013/488/EU and  has been adopted  by the Council on its internal organizational powers (art. 240 TFEU) and “without prejudice to Articles 15 and 16 of the Treaty on the Functioning of the European Union (TFEU) and to instruments implementing them”.(eg Regulation 1049/01 and the measures protecting personal data).

Notwithstanding this “disclaimer” this Council Decision has become “de facto” an harmonizing measure as it  define the “principles” which should frame the European Union Classified Informations (EUCI). To comply with the rule of law and democratic principles these “principles” should had been adopted by the  co-legislator as foreseen by art. 15 of the TFEU (1) and by the EU Charter. But the general application of these “internal rules” derives by the fact that they should be “copy and pasted” as such in all the EU Institutions agencies and bodies “internal” security rules if the latter want to share classified informations with the Council or between them.

Also in the international negotiations the Originator’s principle has been spread in dozen of international agreements even if since the entry into force of the Lisbon Treaty these agreements deals with the exchange of classified information linked with  the common foreign and security policy (art. 37 of the TEU) (2). When classified informations deals with Judicial and police cooperation in criminal matters they now require an internal legal basis as it happened  for the  Decision concluding the EU-US agreement on TFTP. The “mutual respect clause foreseen by art. 40 TEU (3) should be respected and the European Parliament approbation is required.

Quite rightly then the European Parliament Legal Service has considered that the “technical modalities” invoked by Europol to justify the refusal of access by the Ombusdman could not be considered a sound legal basis as they were simple  “implementing measures” of the TFTP agreement and have been not part of the agreement itself.

Can the Ombusdman, the European Parliament and the Court of justice be considered simple “third parties” ?

However I am less convinced of the EP Legal Service reasoning  when it justify  the EUROPOL refusal to give the Ombusdman access to the JSB report because the originator’s  principle is embodied in …the Europol internal Security Rules.

First of all I believe that in case of conflict between the Europol Security Rules (which mirror the Council Internal security rules which themselves are implementing measure of art. 9 of Regulation 1049/01) and the Ombudsman Statute the latter should  prevail as the latter it is a direct implementation of the Treaty and is of legislative nature (as it has been adopted in codecision by the European Parliament and the Council).

Secondly (and more importantly) I consider that the question as highlighted by the Ombudsman is indeed more of constitutional nature and deals with the preservation of the principle of institutional balance in an autonomous legal order as it is the European Union (see the recent Court of Justice opinion 2/13 on the EU accession to the ECHR).

Under this perspective I think that the way how the Council has implemented the art 9 of Regulation 1049/01 is creating a sort of “executive privilege” which has no  basis in the EU primary law and can which moreover is threatening the prerogatives of the other institutions.

I find also misleading (to say the least) the formula applied by the Council in the international agreements on the exchange of classified information (even if now limited to external security policy). The formula is the following : 

The EU institutions and entities to which this Agreement applies shall be: the European Council, the Council of the European Union (hereinafter ‘the Council’), the General Secretariat of the Council, the High Representative of the Union for Foreign Affairs and Security Policy, the European External Action Service (hereinafter ‘the EEAS’) and the European Commission. For the purposes of this Agreement, these institutions and entities shall be referred to as ‘the EU’..

How can be considered complying with the EU founding values of democracy and of the rule of law as well as with the principle of legal certainty a formula which give the right to a third country such as Russia, Georgia, Turkey,  (4)  to decide that the Ombudsman, the European Parliament and the Court of Justice are “third parties which can be forbidden from acceding to classified information” even when their access is linked with the exercise of their constitutional prerogatives? (5)

Conclusions

For all these reasons I think that the Ombudsman should had challenged the Europol refusal before the Court of justice by giving to the Luxembourg Judges the possibility to better frame the scope of the originator’s principle and of the “third party” rule in the EU law.

In the meantime it could also be possible that the Commission (and notably its Vice president of  Timmermans in charge of the Rule of law of the EU Charter) take on board the amendments to Regulation 1049/01 (and to art. 9) as voted by the European Parliament on December 2011.

Last but not least I think that also the European Parliament should take advantage of what he has learned in Ombudsman-Europol case in  the  current negotiations with the Council on the post-Lisbon  EUROPOL decision. It could be worth amending some worrying articles of the Council “general approach” (Council Doc 10033/14 of May 28 2014) . For instance art.67 of rightly makes reference to Regulation 1049/01 but art. 69 makes reference to the Council Internal Security rules instead to art. 9 of Regulation 1049/01. I think it could also be wise to examine the content of the Europol adopted and pending international agreements as the Council “general approach” foresee  that Europol International agreements “established on the basis of Decision 2009/371/JHA and agreements concluded by Europol as established by the Europol Convention before 1 January 2010 should remain in force”.

NOTES

(1)  “General principles and limits on grounds of public or private interest governing this right of access to documents shall be determined by the European Parliament and the Council, by means of regulations, acting in accordance with the ordinary legislative procedure.” (art. 15 p 3 TFEU)

(2)  See for example the 2011 agreement between the EU and Serbia on the exchange of classified information)

(3) Art 40 TEU. “The implementation of the common foreign and security policy shall not affect the application of the procedures and the extent of the powers of the institutions laid down by the Treaties for the exercise of the Union competences referred to in Articles 3 to 6 of the Treaty on the Functioning of the European Union. 

Similarly, the implementation of the policies listed in those Articles shall not affect the application of the procedures and the extent of the powers of the institutions laid down by the Treaties for the exercise of the Union competences under this Chapter.”

(4)  The third Countries with which the agreements have been concluded are :   Australia, Bosnia and Herzegovina, Former Yugoslav Republic of Macedonia, Iceland,  Israel, Liechtenstein, Montenegro, Norway, Serbia, Switzerland, Ukraine and United States of America. Agreements have also been signed with: Canada (Negotiating mandate approved by the Council  on 21.10.2003 – Under negotiation),  Turkey (Negotiated but not yet approved by the Council), Russian Federation (Agreement signed on 01.6.2010 and published  in OJ L 155, 22.6.2010, p.57. Exchange of  notes verbales following entry into force of the  Lisbon Treaty . Negotiations on  the implementing arrangements are ongoing), Albania Negotiating mandate approved by the Council  on 20.01.2014 (Under  negotiation), Georgia (Negotiating mandate approved by the Council  on 20.01.2014.Under negotiation).

(5) The fact that  the “third party rule” constitutes a guarantee for the third party to a certain extent, but it is not an absolute principle of law has been debated during the negotiations of the EU-Canada exchange of classified informations (with reference to Section 38 of the Canada Evidence Act).

TRIBUNE : “Schengen”, terrorism and security (Bertoncini / Vitorino)

by Yves Bertoncini and Antonio Vitorino (*)

The Paris attacks of January 2015 gave rise to an emotion shared by millions of Europeans, while fueling some doubts on their ability to combat terrorist threats within the “Schengen Area”, write Yves Bertoncini and António Vitorino.

1. The Schengen Agreement has resulted in a diversification of police checks, making them more effective, including those to identify terrorist threats.

The creation of the Schengen Area, which currently comprises twenty-six member countries, including twenty-two of the twenty-eight EU Member States, has led to a redeployment of national and European police checks, based on four complementary principles.

Firstly, the closure of permanent “internal” border posts within the Schengen Area, in order to avoid long and pointless queues to hundreds of thousands of Europeans who cross over every week to work, study, meet relatives and enjoy themselves – while this wait remains compulsory for those who wish to travel to or from Bulgaria, Cyprus, Croatia, Ireland, Romania and the United Kingdom.

Secondly, the organisation of mobile patrols across all Schengen Area member countries, which may be conducted jointly: these checks are much more effective, particularly with regard to the fight against cross-border crime and terrorism, as they can be used to flush out wanted persons when they are not expecting it (as is the case at a border). No terrorist has ever declared his intention when crossing a border!

Thirdly, the joint management of external borders, which are ipso facto “our” borders, as those crossing them can travel to other member countries, provided that they comply with European regulations on visas and resources. These common borders are land, sea and air borders (all airports welcoming flights from non-Schengen countries). Each country is in charge of a section of these borders, and must act to combat terrorist threats as a priority, particularly when they escalate due to conflicts occurring around the EU, namely in the Middle East and the Sahel regions.

Lastly, the possibility of applying “safeguard clauses” to reestablish national border checks for a limited period of time, for example during sporting or social events, and also in the case of terrorist threats. These clauses have already been used dozens of times since 1985, under EU supervision, in order to enable governments to deal with emergency situations.

2. Terrorist threats call for the spirit of the Schengen Agreement to be furthered

The emotion aroused in the aftermath of terrorist attacks often revives a need for reassurance that can be centred around the reopening of posts at national borders, given their importance in the collective psyche. In-depth considerations, however, urge us to satisfy this need for security within the very framework of the Schengen Area, in which the spirit of cooperation and mutual trust must be fostered.

The Madrid bombings in March 2004 were perpetrated by Islamic fundamentalists from Morocco and the East, with the complicity of Spanish nationals: it is through increased security at the Schengen Area’s external borders and stronger police and judicial cooperation that this terrorist attack could have been thwarted. While it is not a member of the Schengen Area, the United Kingdom was the target of bloody attacks in July 2005. These attacks were perpetrated by British nationals, one of whom was able to leave the country after crossing a national border: he was arrested in Rome, thanks to European police and judicial cooperation.

The perpetrators of the Paris attacks in January 2015 were born in France and were known to the country’s police and legal departments and/or its intelligence services. One of the men had been checked by Paris police a few days prior to the attacks and a few hours before leaving for Spain with his girlfriend, currently in hiding in Syria. In light of the information in the police’s possession, it’s equally unlikely that he would have been detained at the border between France and Spain. In hindsight, it can be noted that the surveillance of the three terrorists was insufficiently constant and effective to be able to detect their intention to attack.

It is by granting additional financial, human and legal resources to the police and justice bodies on both national and European levels that we can combat such terrorist attacks more effectively. Not by allocating these resources to controls at Schengen Area internal borders, which would result in pointless and very onerous checks of the millions of crossings that take place each month.

3. The police and judicial cooperation organised by the Schengen Agreement and the EU must be reinforced, including cooperation to combat terrorism

The Convention implementing the Schengen Agreement is made up of 141 articles, which were then integrated into community legislation. The first articles set out the rules that offer residents of member countries the possibility of freedom of movement. Most of the articles concern the organisation of police and judicial cooperation between national authorities – in which even non-member countries such as the United Kingdom may take part occasionally. “Schengen” therefore results in greater freedom and increased security, efforts intended to compensate and to balance, but which could be reassessed in light of terrorist threats.

The reinforcement of the financial and human resources allocated to member country policing and justice must come together with an improvement of the “Schengen Information System”, and the stepping up of exchanges between intelligence services, including bilateral arrangements. The creation of a European legal framework for air passenger data exchanges (known as “EU-PNR”) will improve police forces’ effectiveness – while the guarantees governing the use of personal data are reinforced in consequence.

European bodies such as Europol, Eurojust and the Frontex agency could step up their technical assistance for member countries if they were allocated more resources. They will contribute to reinforcing the quality of checks conducted in all respects of the Schengen Area, including on the basis of one-off assessment assignments that target suspected “weak links” and by heightening mutual trust between countries.

In conclusion, European cooperation with third countries in which terrorists are likely to travel must be improved – for example Turkey and North African countries – and also with the USA. A globalised movement of police and judicial cooperation must be promoted to increase Europeans’ safety, against a movement of unrealistic and ineffective focus on national borders.

An improved application of the Schengen Area’s operating rules is without doubt possible, to enable its member countries and the EU to withstand terrorist threats. Questioning these rules does not in any way impede freedom of movement, a right granted since the Rome Treaty to all EU residents, regardless of whether or not their country is a member of the Schengen Area. Yet this would make the exercise of this right much more complex and costly, while undermining the shared responsibility that Europeans require in order to dismantle terrorist networks.

(*) António Vitorino is president and Yves Bertoncini director of Notre Europe – Jacques Delors Institute, the EU think tank based in Paris. Vitorino is also former European Commissioner for justice and home affairs.

This Tribune of Notre Europe / Jacques DELORS Institute was also published on the HuffingtonPost.fr and on Euractiv.com.

(S. PEERS) BRINGING THE PANOPTICON HOME: THE UK JOINS THE SCHENGEN INFORMATION SYSTEM

ORIGINAL PUBLISHED ON EU LAW ANALYSIS blog

BY Steve Peers

Over two hundred years ago, British philosopher Jeremy Bentham devised the concept of the ‘Panopticon’: a prison designed so that a jailer could in principle watch any prisoner at any time. His theory was that the mere possibility of constant surveillance would induce good behaviour in prison inmates. In recent years, his idea for a panopticon has become a form of shorthand for describing developments of mass surveillance and social control.

The EU’s forays in this area began with the creation of the Schengen Information System (SIS) in the 1990s. The SIS is a well-known EU-wide database containing enormous amounts of information used by policing, immigration and criminal law authorities.

Until now, the UK has not had any access to the SIS. But this week, the EU Council finally approved the UK’s participation in the System, thereby linking the EU’s most iconic database with the intellectual home of the panopticon theory. What are the specific consequences and broader context of this decision?

Background

The main purpose of the Schengen system is to abolish internal border checks between EU Member States, as well as some associated non-EU States.  At the moment, the full Schengen rules apply to all EU Member States except the UK, Ireland, Cyprus, Romania, Bulgaria and Croatia. Those rules also apply to four associates: Norway, Iceland, Switzerland and Liechtenstein.

All of the Member States are obliged ultimately to become part of the Schengen system, except for the UK and Ireland. Those two Member States negotiated an exemption in the form of a special Protocol at the time when the Schengen rules (which originated in theSchengen Convention, ie a treaty drawn up outside the EU legal order) were integrated into the EU legal system, as part of the Treaty of Amsterdam (in force 1999).

The UK and Ireland are not entirely excluded from the Schengen system. In fact, they negotiated the option to apply to join only some of the Schengen rules if they wished. Their application has to be approved by the Council, acting unanimously. The UK and Ireland essentially chose to opt in to the Schengen rules concerning policing and criminal law, including the SIS, but not the rules concerning the abolition of internal border controls and the harmonisation of rules on external borders and short-term visas.

The UK’s application to this end was approved in 2000 (see Decision here), and Ireland’s was approved in 2002 (see Decision here). But in order to apply each Decision in practice, a separate subsequent Council decision was necessary, because the Schengen system cannot be extended before extensive checks to see whether the new participant is capable of applying the rules in practice.  On that basis, most of the Schengen rules which apply to the UK have applied from the start of 2005 (see Decision, after later amendments, here). The exception is the rules on the SIS, which the UK was not then ready to apply. After spending considerable sums trying to link to the SIS, the UK gave up trying to do so, on the basis that the EU was anyway planning to replace the SIS with a second-generation system (SIS II). There’s a lot of further background detail in the House of Lords report on the UK’s intention to join the SIS (see here), on which I was a special advisor. (Note that Ireland does not apply any of the Schengen rules in practice yet).

It took ages for the EU to get SIS II up and running, and it finally accomplished this task by April 2013 (see Decision here). The UK had planned to join SIS II shortly after it became operational, but this was complicated by the process of opting out of EU criminal law and policing measures adopted before the entry into force of the Treaty of Lisbon, and simultaneously opting back in to some of them again, on December 1st 2014 (see discussion of that process here). This included an opt back in to the SIS rules.

Once that particular piece of political theatre concluded its final act, the EU and the UK returned to the business of sorting out the UK’s opt in to SIS II in practice. This week’sdecision completed that process, giving the UK access to SIS II data starting from March 1st. The UK can actually use that data, and enter its own data into the SIS, from April 13th.

Consequences

What exactly does participation in the SIS entail? The details of the system are set out in the 2007 Decision which regulates the use of SIS II for policing and criminal law purposes. There are also separate Regulations governing the use of SIS II for immigration purposesand giving access to SIS II data for authorities which register vehicles. The former Regulation provides for the storage of ‘alerts’ on non-EU citizens who should in principle be denied a visa or banned from entry into the EU, while the latter Regulation aims to ensure that vehicles stolen from one Member State are not registered in another one. The UK participates in the latter Regulation, but not the former, since it could only have access to Schengen immigration alerts if it fully participated in the Schengen rules on the abolition of internal border controls. On current plans, this will happen when hell freezes over.

The SIS II Decision provides for sharing ‘alerts’ on five main categories of persons or things: persons wanted for arrest for surrender or extradition purposes (mainly linked to the European Arrest Warrant); missing persons; persons sought to assist with a judicial procedure; persons and objects who should be subject to discreet checks or specific checks (ie police surveillance); and objects for seizure or use as evidence in criminal proceedings. There are also rules on the exchange of supplementary information between law enforcement authorities after a ‘hit’. For instance, if the UK authorities find that a European Arrest Warrant has been issued for a specific person, they could ask for further details from the authority which issued it.

On the other hand, the SIS does not, as is sometimes thought, provide for a basis for sharing criminal records or various other categories of criminal law data, although the EU has set up some other databases or information exchange systems dealing with such other types of data. (On criminal records in particular, see my earlier blog post here). The main point of setting up the second-generation system was to extend the SIS to new Member States (although in the end a new system wasn’t actually necessary for that purpose), and to provide for new functionalities such as storing fingerprints, which will likely be put into effect in the near future.

In practice, the UK’s participation in SIS II is likely to result in the Crown Prosecution Service receiving more European Arrest Warrants (EAWs) to process, and in more efficient processing of EAWs which the UK has issued to other Member States. It will also be easier, for instance, to check on whether a car or passport stolen in the UK has ended up on the continent, or vice versa.

Broader context

As noted already, while the UK is only now joining the SIS, the System has been around for many years, and has proved to be the precursor of many EU measures in this field. Indeed, as EU surveillance measures go, the SIS turned out to be a ‘gateway drug’: the friendly puff that led inexorably to the crack den of the data retention Directive.

Of course, interferences with the right to privacy can be justified on the basis of the public interest in enforcement of criminal law and ensuring public safety – if the interference is proportionate and in accordance with the law. Compared to (for instance) the data retention Directive and the planned passenger name records system, the SIS is highly targeted, focussing only on those individuals involved in the criminal law process, or police surveillance, or banned from entry from the EU’s territory. The legitimacy of the system therefore depends upon the accuracy and legality of the personal data placed in to it, and the connected data protection rules. On this point, the EU and national data protection supervisors have reported that many data subjects do not even know about the data held on them in SIS II, and they have produced a guide to help them with accessing their data in the system.

There’s an inevitable tension between the EU’s goal to set the world’s highest data protection standards, on the one hand, while also developing multiple huge databases, information exchange systems and surveillance laws, on the other.  It’s as if the brains of the utilitarian Jeremy Bentham and the libertarian John Stuart Mill were both battling for control of the same body – forcing it to draw up plans for the Panopticon at the same time as it was storming the Bastille. If this tension manifested itself in fiction, it would probably take the form of a comedy about a vegetarian butcher, or a virgin porn star. But the need to ensure that measures to protect our security do not remove all our liberty is not a laughing matter.

 

*This blog post is linked to ongoing research on the upcoming 4th edition of EU Justice and Home Affairs Law (forthcoming, OUP).

 

Image credit: nytimes.com

Barnard & Peers: chapter 25

Posted by Steve Peers at 23:48 No comments:

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Labels: criminal law, data protection, databases, opt-outs, right to privacy, Schengen, Schengen Information System, United Kingdom

Friday, 6 February 2015

Rights, remedies and state immunity: the Court of Appeal judgment in Benkharbouche and Janah

 

Steve Peers

Yesterday’s important judgment in Benkharbouche v Sudan and Janah v Libya by the Court of Appeal raised important issues of public international law, the ECHR and the EU Charter of Fundamental Rights, and demonstrated the relationship between them in the current state of the British constitution. The case involved two domestic workers bringing employment law complaints against the respective embassies of Sudan and Libya, which responded to the complaints by claiming state immunity, based on a UK Act of Parliament (the State Immunity Act) which transposes a Council of Europe Convention on that issue.

The question is whether invoking state immunity for these employment claims amounted to a breach of human rights law, given that Article 6 of the ECHR (the right to a fair trial) guarantees access to the courts, according to the case law of the European Court of Human Rights (ECtHR). In turn, this raised issues of EU law, given that Article 47 of the EU Charter of Fundamental Rights likewise guarantees the right to a fair trial, and some of the claims concerned EU law issues (the race discrimination and working time Directives). (Other claims, such as for ordinary wages and unfair dismissal, were not linked to EU law). The two cases didn’t concern human trafficking or modern slavery, although sometimes embassies are involved in such disputes too. But they would be relevant by analogy to such disputes, and there would also be a link to EU law in such cases, since there is an EU Directive banning human trafficking, which the UK has opted in to.

The Court of Appeal, essentially following the prior judgment of the Employment Appeal Tribunal, made a careful study of recent ECtHR case law, concluding that state immunity could no longer be invoked against all employment law claims, but only against those claims concerning core embassy staff. This could not apply to domestic workers; Ms. Janah’s tasks did not involve (for instance) shooting any British policewomen.

But what was the remedy for this breach of human rights principles? At lower levels, the tribunals had been powerless to rule on the claims for breach of the ECHR, since the UK’sHuman Rights Act awards the power to issue a ‘declaration of incompatibility’ that an Act of Parliament breaches the ECHR to higher courts only. So the Court of Appeal was the first court that could issue such a declaration, and it did so in this case. (The Court concluded that it could not ‘read down’ the relevant clauses in the State Immunity Act to interpret them consistently with the ECHR).

However, as compared to the effect of EU law, even a declaration of incompatibility with the ECHR is relatively weak, given that the potential remedy for a breach of EU law is the disapplication of national law, even Acts of Parliament if necessary, by the national courts. So the Court of Appeal also ruled that the relevant provisions of the State Immunity Acthad to be disapplied, to the extent that they were applied as a barrier to the claims based on EU law. On this point, the Court was following the Employment Appeal Tribunal, which had also ruled to disapply the Act, given that any level of national court or tribunal has the power to disapply an act of parliament if necessary to give effect to EU law.

If I had a pound for every law student who has confused the remedies in UK law for the breach of EU law with the remedies for the breach of the ECHR, I would be very rich indeed. Fortunately, the facts of this case easily demonstrate the distinction between them. Only the higher courts could even contemplate issuing a declaration of incompatibility with the ECHR; and the remedy of disapplication of the Act of Parliament is obviously stronger than the declaration of incompatibility, allowing the case to proceed on the merits (as far as it relates to EU law) rather than having to wait for Parliament to change the law in order to do so. And equally, the case shows the importance of the requirement that a case has to be linked to EU law in order for the Charter to apply: only the race discrimination and working time claims benefit from the disapplication of provisions of the Act of Parliament, and so only those claims can proceed to court as things stand.

From an EU law perspective, the most interesting point examined by the Court of Appeal was the application of the ‘horizontal direct effect’ of Charter rights, ie the application of EU law against private parties (since non-EU States aren’t bound by EU law as States, the court assimilated them to private parties). In its judgment last year in AMS (discussedhere), the CJEU distinguished between those Charter rights which could give rise to a challenge against national law based on the principle of supremacy of EU law, and those Charter rights which could not, since they were too imprecise to base a free-standing Charter claim upon. The right to non-discrimination on grounds of age fell within the former category, whereas the right of workers to be consulted and informed fell within the latter category. (Note that the CJEU case law classifies this as an application of the principle of supremacy, not horizontal direct effect, although the final outcome is the same no matter how the principle is classified, at least in cases like these).

The Court of Appeal reaches the conclusion that Article 47 of the Charter is also a provision which is precise enough to be used to challenge national legislation. That’s an important point, since Article 47 is a far-reaching and frequently invoked provision, and applies not just to state immunity issues but to many broader issues concerning access to the courts (including legal aid) and effective remedies.  For that reason, this judgment is an important precedent for national courts across the European Union faced with challenges to national laws based on Article 47 of the Charter, although of course it doesn’t formally bind any court besides the lower courts of England and Wales.

The Court didn’t need to rule on whether the substantive Charter rights raised by these cases would have the effect of disapplying national law, since it wasn’t ruling on the merits of the cases, but only on the issue of access to court. If it were ruling on the substantive issues, it would seem obvious that race discrimination claims have the same strong legal effect as age discrimination claims, as both claims are based on the same provision of the Charter (Article 21). However, claims based on breach of Article 31 of the Charter (the working time provision) might not have that strong legal effect. Indeed, an Advocate-General’s opinion in the pending case of Fennoll has concluded as much.

Furthermore, the social rights in the Charter (such as the rights set out in Article 31) are subject to a special rule in the Protocol to the EU Treaties which attempts to limit the effect of the Charter in the UK and Poland. The CJEU ruled in its NS judgment that this Protocol does not generally disapply the Charter in the UK, but it did not then rule if the Protocol might nonetheless affect the enforceability of social rights. Given that yesterday’s judgment was about Article 47 of the Charter, not about a substantive social right, it was not necessary for the Court of Appeal to grasp this nettle either.

 

Barnard & Peers: chapter 9, chapter 20

Videosurveillance and privacy in a transatlantic perspective

by Fiammetta Berardo (1)

The following article aims at illustrating how the creation of “societies under surveillance”, whose instruments reshape all people’s life, had started well before September the 11th. For instance within the USA in 1978 an investigation on the privacy violations committed in the course of foreign intelligence surveillance programmes had been leading to the adoption of a special law, the Foreign Intelligence Surveillance Act or FISA. The attacks to the Twin Towers have been offering the context and the casualty for an improvement in quality and intensity. For some political forces or for some economic actors this was an extraordinary opportunity to further develop programmes, ideas (for instance John Ashcroft’s projects previous to September the 11th) or already existing technologies in the field of mass surveillance.

Introduction

Videosurveillance and other surveillance techniques are now used as a tool in the fight against international terrorism worldwide. In Europe measures used in the fight against terrorism that interfere with privacy (in particular body searches, house searches, bugging, telephone tapping, surveillance of correspondence and use of undercover agents) must be provided for by law. But it must be possible to challenge the lawfulness of these measures before a Court.

For instance, with regard to wiretapping, it must be done in conformity with the provisions of Article 8 of the European Convention on Human Rights, notably it must be done in accordance with the law. The adoption of such tools has then to be balanced with the right to privacy. The author tries to sum up the main privacy concerns surveillance techniques and mainly videosurveillance do raise in order to question whether the adoption of these tools in the fight against international terrorism has been challenging such a fundamental right.

Videosurveillance in the United States of America as a response to international terrorism

Already on the 20th of September 2001 Joseph Atick, founder and CEO at Visionics, a New Jersey leader enterprise in the field of biometrics, did present to a government’s committee established by the Secretary of Transportation, the technology called Facelt, able to codify facial structures via eighty unique and non repeatable identifiers.

It was then of fundamental importance to simply put in key areas television cameras, not so recognisable, but rather easily identifiable. The places more suitable for this purpose were first of all airports (300 cameras proposed for the Reagan National Airport in Washington). A rapid scan of passengers’ faces and a counter check made in real time with the codes on the list of suspects should have been sufficient for individuating and capturing terrorists well before they could pass the modern borders, which is to say flights’ boarding lounges (Lyon, 2003). Always in the technological field, the government has been asking the Pentagon to present a project with great expectations.

The Information Awareness Office (IAO) and the Defense Advanced Research Projects Agency (DARPA) completed in January 2002 the Total lnformation Awareness project (TIA). It exploited data-mining technologies, employed since time in the business sector, in order to draw the profiles of potential terrorists and also of Muslim Arabs. With an initial budget of 200 million dollars the programme had the aim of encoding millions and millions of Americans, underveiling their tastes, sexual orientations, religious and political beliefs. The programme implied the constitution of a big database with an antiterrorist function, deputy to the inventory of new algorithms for the deriving, linking and bettering of data.

The majority of them belonged to the kind already screened for years by commercial databases with the purpose of defining the profile of selectioned consumers as special contacts. Up till then intelligence, with the only exception of the most critical phase of Cold War, had mainly been taking care about external enemies, while police activities concerned internal population. Nowadays the techniques of data collection on spies and foreign countries’ rebels are used within a national context. In the same way once data concerning ordinary consumers, apart from those cases of persons under police suspicion for valid reasons, were of no interest, if not for marketing experts.

With the TIA programme those limits have been bypassed and researches on the daily aspects of life have been carried on: the ones on the purchases at automatic bank counters, on credit cards’ receipts, on the consulted web sites via cookies, with a special regard to government ones, on the enrolments at schools, on the subscriptions to magazines and newspapers, on medical archives, on cargo planes’ lists of air companies, on the passages of property and of course on addresses and telephone numbers.

On the contrary the broadening of the definition of terrorist did not imply solely the possibility that critics or even the lack of action could raise not only suspects, but also the reinforcement of strict controls over social and humanitarian activities, mainly among Muslims. On the one side Frank Furedi’s prophecy according to which all foreign disliked persons become terrorists, seemed to come true. Moreover terrorism is newly defined as a multifaceted metaphor every time the Third World asks for a commonly agreed intervention of the Western World (Furedi, 1994).

On the other side the Big Brother’s threat was taking consistency even provoking denounces not only and any more from civil rights associations’ promoters, but also from parts of the Congress and of the Senate, that up till then had approved the main antiterrorist provisions. The TIA website did not leave any doubts: there was a big eye over a pyramid with the motto “Scientia est potentia”, a truly Orwellian Panopticon. There have then been many names trying to hide or to split into fragments the original scheme: Genoa II, Topsail, Basketball. The single projects delocalised on the US territory, have been retaining the original purposes and NSA has been keeping on illegally tapping telephone calls and communications via Internet. In the meantime both researches and the mise en oeuvre of the informatics tools foreseen by TIA, conferred to electronics corporates like AT&T, continued, making now reference to the Advanced Research and Development Activity (ARDA).

Telematic and telephone interceptions are quite an evident breach of the IV Amendment to the American Constitution which establishes for citizens’ safeguard precise limits to inquiries and arrests.

Already in 1978, an investigation on the privacy violations committed in the course of foreign intelligence surveillance programmes had been leading to the adoption of a special law, the Foreign Intelligence Surveillance Act or FISA. The Foreign Intelligence Surveillance Act regulates electronic surveillance inside the USA, balancing civil liberties and the objective of obtaining valuable intelligence in order to safeguard national security. FISA authorises electronic surveillance in specific situations and only if approved by a Court. It foresees exceptional circumstances for wartime where judges’ authorisation for domestic surveillance is not required provided that it will be lasting for the first fifteen days of a war only. It considers illegal every form of surveillance or of controls not authorised by statute.

In case AUMF could be interpreted like an implicit authorisation as the Department of Justice does (however the Congress has in relation to wiretapping referred the issue to the Foreign Intelligence Surveillance Act), there would be a time limit. Many recent Amendments to the Foreign Intelligence Surveillance Act do prove that the legal basis of FISA were weak despite the fact that they were meant to justify the regular breaches of the law made by its management body, the Foreign Intelligence Surveillance Court (FIS Court), like the indiscriminate collection of personal data over hundreds of thousands of individuals.

Section 215 of the Patriot Act modifies FISA, granting authorities the collection of data and of other “tangible things” in order to fight international terrorism and underground activities. 

Section 218 has instead introduced the Amendment on the basis of which for the ends of data storage or of the activation of the other screenings towards an individual, it is sufficient that he/she reveals a “significant purpose” of spoiling, instead of an undoubtful intention, therefore introducing further arbitrary criteria in investigations.

Section 505 broadens the conditions upon which FBI may send “national security letters” in order to compel banks, insurance companies, telephone companies and Internet providers to give information on the own clients without their knowledge. It is sufficient to declare to FBI that the requested data are of fundamental utility for investigations.

In July 2008, the Congress capitulated to the White House’s demands and scare tactics by passing the FISA Amendments Act of 2008, giving the NSA even more power to spy on Americans without warrants than it exercised under its illegal surveillance programme.  This new Act protects telecommunications’ companies from lawsuits for “past or future cooperation with federal law enforcement authorities and will assist the intelligence community in determining the plans of terrorists”. Such immunity is given by a certification process. The Act also permits the government not to keep records of searches and to destroy existing records (it requires it to keep the records for a period of 10 years). The time for warrantless surveillance is increased from 48 hours to 7 days.

FISA Court permission is required only to wiretap Americans who are overseas.

There is more than one discrimination between Americans and foreigners, for instance it is prohibited to target a foreigner to eavesdrop on an American’s calls or electronic mails without any Court approval. It allows Americans eavesdropping in emergencies and without Court approval, provided the government files the required papers within a week. Finally it allows the FISA Court 30 days to review existing but expiring surveillance orders before renewing them.  

On the same day of the adoption of the law the American Civil Liberties Union (ACLU) appealed before the Court of First Instance of the Southern District of New York the dismissal of its lawsuit challenging an unconstitutional government spying law: in particular the law would breach the right of freedom of speech and the right to privacy as protected by the I and IV Amendments.. In an interview organised by ACLU the writer Timothy Ferriss and the journalist Daniel Ellsberg, who had been at the time protagonist of the Pentagon Papers’ publication, have compared the last version of FISA to former DDR Stasi. Such comparisons make us understand how certain excesses in “self defence” risk of transforming modern democracies in their opposite or more easily to lower the human rights’ protection standards inside them.

Section 206 of the Patriot Act expands the authority of the Foreign Intelligence Surveillance Court (FISC) by allowing it to order roving or multi-point surveillance. Previously, the Foreign Intelligence Surveillance Act required a separate FISC authorisation to tap each device a target might be using. Technically, the Court’s order would direct a specific carrier or individual to assist in the surveillance. As a practical matter this required a separate application to the FISC each time a target switched from pay phone to mobile phone, from electronic mail to Blackberry and so on. The Court may then order a surveillance focused on the target, rather than the device he or she is using when the actions of the target of the application may have the effect of thwarting the identification of a specific device. This new order does not specify the person who is directed to assist; the government may serve the generic order on those individuals or carriers that it identifies2.

Section 215 vastly expands the FBI’s power to spy on ordinary people living in the United States, including citizens and permanent residents. It lets the government obtain personal records or things about anyone– from libraries, Internet service providers, hospitals or any other business – merely by asserting that the items are “sought for” an ongoing terrorism investigation. Section 215 threatens individual privacy, because it allows the government free reign to monitor private activities. It also endangers freedom of speech, because the threat of government surveillance inevitably discourages people from speaking out and especially from disagreeing with the government. Section 215 has amended, despite the protests of the judges from the ad hoc Court (FISC), the Foreign Intelligence Surveillance Act of 1978. FISA set out the procedures that the FBI had to follow when it wanted to conduct surveillance for foreign intelligence purposes. The system which has been put in place is unique, last but not least because the FISA Court meets in secret, almost never publishes its decisions and allows only the government to appear before it. But, of course, it applies only to foreign spies. Thanks to the Patriot Act, the FBI can use FISA even in investigations that do not involve foreign spies. In fact, under Section 215, the FBI can now spy on ordinary, law abiding Americans.

Section 218 amends FISA by changing the certification requirement when the government seeks a FISA surveillance or search order. Previously, the government was required to certify that “the purpose” of the application was to obtain foreign intelligence information. After Section 218, the government must certify that obtaining foreign intelligence information is a “significant purpose” of the application. This change was conceived to promote information sharing between intelligence and law enforcement officials and to eliminate what has become known as the metaphorical wall that separated law enforcement and intelligence investigations, protecting privacy in communications.

The FISA also set forth procedures for the conduct of electronic surveillance and physical searches for foreign intelligence purposes. Over the years, the Department of Justice interpreted the FISA’s requirement that “the purpose of collection” be foreign intelligence in order to restrict the use of FISA collection procedures when a law enforcement investigation was involved. The restriction was aimed at ensuring that prosecutors and criminal investigators did not use FISA to circumvent the more rigorous warrant requirements for criminal cases. But law enforcement and foreign intelligence investigations often do overlap and enforcing this separation between intelligence and law enforcement investigations (the “wall”) inhibited the coordination of these investigations and the sharing of foreign intelligence information with law enforcement officials. The change to a “significant purpose” was intended to clarify that such a separation is not necessary. It is not clear whether the change in section 218 was legally necessary to eliminate the “wall”. According to the advocates of the government’s measures, all this was not breaching the Fourth Amendment. The Foreign Intelligence Surveillance Court is still a neutral and disinterested judge, all cases, even if closed to the general public, do follow a standard procedure with a few exceptions that can be due to the special needs of the historical period. Moreover, as argues the former federal prosecutor, the republican Andrew C. McCarthy, “it is not sensible to suspect systematically dishonest resort to FISA. FISA applications require a specialized and rigorous internal approval process before presentation to the Court”. Assuming that an agent is willing to act corruptly, it would be far easier and less detectable to fabricate the evidence necessary to get an ordinary criminal wiretap than to fabricate a national security reason in order to use FISA. According to McCarthy, the FISA proceedings were misunderstood for nearly a quarter-century, as a reaction to Vietnam and Watergate they were seen as an abuse of domestic intelligence, but to a disastrous effect. Thanks to the Amendments of the Patriot Act the original aims of FISA would be restored.

The critics of Section 218 of the Patriot Act are split between those who think that the FISA “wall” in defence of privacy would have been lasting up till the year 2001 (Chesterman, 2011) and those who believe that the FISA Court was “too permissive, for allowing the government whatever eavesdropping powers it requested”(Greenwald, 2006)

It might then be questioned why the Administration decided to bypass the Court. Glenn Greenwald responds:  As Congress devised the law, the FISA court plays two critical, independent functions – not just warrant approval but also, more critically, judicial oversight. FISA’s truly meaningful check on abuse in the eavesdropping process is that the president is prevented from engaging in improper eavesdropping because he knows that every instance of eavesdropping he orders will be known to a federal judge – a high level judicial officer who is not subject to the president’s authority … it is precisely that safeguard which President Bush simply abolished by fiat.

In effect, President Bush changed the law all by himself, replacing the federal judges with his own employees at the NSA and abolishing the approval and warrant process entirely 3 However it seems quite difficult to deny the change occurred together with the Patriot Act: …the very purpose of Section 218’s revision deprives FISA of its constitutional justification. FISA searches are generally defended as constitutional without probable cause of criminal activity because they fall under the “administrative search” exception to the probable cause requirement.

But that exception, the Supreme Court has held, does not apply where the government’s purpose is criminal law enforcement. FISA’s pre-Patriot Act requirement that the search’s primary purpose be foreign intelligence gathering, not criminal law enforcement, may well have been constitutionally required to make FISA searches valid.

After the Patriot Act, foreign intelligence gathering need only be “a significant purpose” of the search—the primary purpose can be criminal law enforcement. That raises a serious constitutional concern 4. FISA defines “foreign power” not only a foreign government, fraction, entity or group, but also “a foreign based political organization, not substantially composed of United States persons”. An “agent” of a foreign power is “any person other than a United States person, who acts in the United States as an officer or employee of a foreign power”. Neither the agent nor the power needs to be involved in any wrongdoing. Thus, a British citizen working in the USA as an employee of Amnesty International is an “agent of a foreign power”. This might sound as paradoxical.

Videosurveillance in Europe at a glance

In Europe thanks not only to the intervention, where they exist, of national Constitutional Courts, but also of the two European Courts, a series of principles is finally being protected: renditions are not allowed in case guaranteed protections of human rights are absent, no military judges can adjudicate suspected terrorists, all alleged government abuses require effective investigations, detainees’ injuries require full investigations, all human rights’ law violation victims must have legal relief, evidence obtained by torture is inadmissible, judicially unsupervised electronic surveillance is strictly prohibited and so on.  According to the Court of Strasbourg the measures used in the fight against terrorism that interfere with privacy (in particular body searches, house searches, bugging, telephone tapping, surveillance of correspondence and use of undercover agents) must be provided for by law.

But it must be possible to challenge the lawfulness of these measures before a Court. The Court accepts that the fight against terrorism may allow the use of specific methods. Democratic societies nowadays find themselves threatened by highly sophisticated forms of espionage and by terrorism, with the result that the State must be able, in order effectively to counter such threats, to undertake the secret surveillance of subversive elements operating within its jurisdiction. The Court has therefore to accept that the existence of some legislation granting powers of secret surveillance over the mail, post and telecommunications is, under exceptional conditions, necessary in a democratic society in the interests of national security and/or for the prevention of disorder or crime5.

With regard to wiretapping, it must to be done in conformity with the provisions of Article 8 of the Convention, notably it must be done in accordance with the law. The Court, thus, recalled that: tapping and other forms of interception of telephone conversations constitute a serious interference with private life and correspondence and must accordingly be based on a “law” that is particularly precise. It is essential to have clear, detailed rules on the subject, especially as the technology available for use is continually becoming more sophisticated (see Kruslin and Huvig judgements, p. 23, para. 33, and p. 55, para. 32, respectively)6.

At EU level the measures taken for the prevention, the pursuit of crimes and the unauthorised use of electronic communications, as foreseen by Article 13(1) of Directive 95/46/EC, have to be exceptional, based on specific and transparent laws. Such measures have to be authorised by the judicial authority or by other competent authorities, anyway never decided for groups or categories of individuals, but always for single cases. In fact it might be argued that any kind of general electronic surveillance, even if explorative, is against the provisions of the European Convention on Human Rights and against the European Court of Human Rights main case law7. On the 30th of May 2002 the European Parliament reviewed all its previous stances, by authorizing the preventive retention of connection data and the establishment of a general control on cybernauts.

In Germany on March the 3rd, 2004, the German Federal Constitutional Court8 decided that the regulations in the “Strafprozessordnung” (StPO – Code of Criminal Procedure) concerning acoustic surveillance of housing space (the so called “Grolier Lauschangriff”) partly violated the Grundgesetz. Article 13.3 of the Basic Law itself, which in 1998 integrated the right to acoustic surveillance of housing for reason of prosecution into the Basic Law, was nonetheless found to be constitutional 9. Article 13, subsection 3 therefore had to be interpreted in a restrictive way regarding human dignity. It does not affect the principles guaranteed in Articles 1 and 20. Those principles include the respect for and the protection of human dignity (Article 1, subsection 1 GG)10.

Finally, on the 27th of February 2008, in a landmark ruling 11, having determined that the existing rights are not sufficient to protect citizens from the threat against their personality rights, the Court established a new fundamental right in the confidentiality and integrity of information technology systems in order to close the regulatory gap.

In relation to France attention has to be paid to the Conseil constitutionnel’s main case law. In a 2010 decision, the Court ruled on several provisions of a legislative bill (the “Bill”) aimed at combating acts of group violence and at protecting public servants. This Bill would have authorised the owners of buildings to provide live, closed-circuit videosurveillance images of a building’s common areas to local or national law enforcement authorities in the event that activities taking place on the premises might require police intervention12. The Court ruled against this provision on the grounds that it did not provide those safeguards which were necessary to protect the privacy rights of individuals entering or living in the buildings. Following the Court’s ruling, the French Data Protection Authority (the “CNIL”) took the opportunity to restate that video surveillance images are considered “personal data” since they allow for the identification of individuals. Consequently, any video surveillance using a system that is installed on the private premises of a building (e.g. in hallways, staircases or elevators) constitutes a data processing activity within the scope of the Data Protection Act and requires prior notification to the CNIL.

Conclusions

Today in the U.S.A new data technologies, particularly the “knowledge discovery in databases” (KDD) applications make any privacy conceptualisation inadequate (Kuhn, 2007). Privacy interpretation as space, privacy as secrecy and privacy as information control cannot offer protection against federal “dataveillance programs”, according to the definition of the surveillance of a person’s or of mass’ activities through electronic data 13.

In the future, decisions about individuals would no longer be based on speculations or influenced by a purely subjective approach. However, the clearer it became that enhanced technology not only allows the processing of a practically endless amount of personal data but also an extendable linkage of data banks, the more the focus has shifted to preventive policies that in a growing number of cases initiate an intensive “predictive surveillance”(Lynch, 2009).

Privacy is now threatened more than ever by technological advances.

There are massive databases and Internet records of information about the individuals’ financial and credit history, medical records, purchases and telephone calls, for example and most people do not know what information is stored about them or who has access to it. The ability for the others to access and link databases, with few controls on how they use, share or exploit the information, makes the individual control over the information about oneself more difficult than in the past. There are many cases where the clash between privacy and technology is quite evident. For instance a caller identifier, originally designed to protect people from unwanted calls from harassers, telemarketers and so on, involves privacy concerns for both the caller and the called.

We gave an overview on the existing legislation at both sides of the Atlantic. The issues raised in the article are complex and demand more and more attention to be paid from public authorities. A new set of regulations will probably be established.

According to the words of Simson Garfinkel, it might then be concluded that: The future we’re rushing toward isn’t one in which our every move is watched and recorded by some all-knowing Big Brother. It is instead a future of a hundred kid brothers who constantly watch and interrupt our daily lives. Orwell thought the Communist system represented the ultimate threat to individual liberty. Over the next fifty years, we will see new kinds of threats to privacy that find their roots not in Communism but in capitalism, the free market, advanced technology and the unbridled exchange of electronic information14.

NOTES

1 Fiammetta Berardo, Ph.D., Faculty of Law and Political Sciences, University of Liège
2 David Cole, consultant of the Humanitarian Law Project and James Dempsey, Director at the Center for Democracy and Technology, found that these measures come at a cost to privacy [See D. Cole, J.X. Dempsey (2006). Terrorism and the Constitution: Sacrificing Civil Liberties in the Name of National Security, London, New York: The New Press, 209-210]. On the contrary Paul Rosenzweig, a senior legal research fellow in the Center for Legal and Judicial Studies at the Heritage Foundation, argues that “roving wiretaps are just a response to rapidly changing communication technology that is not necessarily fixed to a specific location or device” [From P. Rosenzweig, “Terrorism is not just a crime”, in S.A. Baker, J.Kavanagh (Eds.) (2005), Patriot Debates: Experts Debate the USA PATRIOT Act, Chicago: American Bar Association (pp. 22-23). Retrieved from http://apps.americanbar.org/natsecurity/patriotdebates/sections-206%5D.
3 From “How Would a Patriot Act. Defending American values from a president run amok” by G. Greenwald (2006), San Francisco: Working Assets, p. 37. Copyright 2006 by Copyright Holder. Reprinted with permission.
4 From “The Last Word” by D.Cole, in S.A. Baker, J.Kavanagh (Eds.) (2005), Patriot Debates: Experts Debate the USA Patriot Act, Chicago: American Bar Association, pp. 78-79. Copyright 2005 by Copyright Holder. Reprinted with permission.
5 ECHR (Plenary), Klass and Others v. Germany, Judgement, 6 September 1978, Series A No. 28, para. 48. Retrieved from http://cmiskp.echr.coe.int/tkp197/view.asp?item=1&portal=hbkm&action=html&highlight=Klass&sessionid= 72394480&skin=hudoc-en.
6 ECHR (Chamber), Kopp v. Switzerland, Judgement, 25 March 1998, para. 72. Retrieved from http://cmiskp.echr.coe.int/tkp197/view.asp item=1&portal=hbkm&action=html&highlight=Kopp&sessionid=72395589&skin=hudo  c-en. See also Huvig v. France, 24 April 1990, paras. 34-35.
7 Transnational Radical Party Press Release, 11/07/2001, La Commissione Libertà Pubbliche approva il rapporto Cappato. Retrieved from http://coranet.radicalparty.org/pressreleases/press_release.php?func=detail&par=239.
8 Bundesverfassungsgericht, «Leitsätze zum Urteil des Ersten Senats vom 3. März 2004», 1 BvR 2378/98, 1 BvR 1084/99, Neue Juristische Wochenschrift (NJW), (2004), p. 999 (and following). Retrieved from http:/www.bverfg.de/entscheidungen/rs20040303 1bvr237898.html, Abs.-Nr. 103 (and following).
9 If particular facts justify the suspicion that any person has committed an especially serious crime specifically defined by a law, technical means of acoustical surveillance of any home in which the suspect is supposedly staying may be employed pursuant to judicial order for the purpose of prosecuting the offense, provided that alternative methods of investigating the matter would be disproportionately difficult or unproductive. The authorisation shall be for a limited time. The order shall be issued by a panel composed of three judges. When time is of the essence, it may also be issued by a single judge” («Gesetz zur Verbesserung der Bekämpfung der Organisierten Kriminalität», 4 May 1998, Bundesgesetzblatt 1998, Teil I, p. 845).
10 1 BvR 2378/98, Absatz-Nr. 122f., 134. See also J. Stender-Vorwachs (2004). The Decision of the Bundesverfassungsgericht of March 3, 2004, Concerning Acoustic Surveillance of Housing Space, German Law Journal, 5 (11), 1338-1348. Retrieved from http://www.germanlawjournal.com/pdfs/Vol05No11/PDF_Vol_05_No_11_1337-1348_Public_Vorwachs.pdf. Having this development in mind, the Fifth Criminal Senate of the Bundesgerichtshof (BGH – Federal Supreme Court) declared surveillance measures in connection to certain cases based on § 261 Strafgesetzbuch (StGB – Criminal Code) to be unlawful [H.Kudlich & F. Melloh (2004). Money Laundering and Surveillance of Telecommunication – The Recent Decision of the Bundesgerichtshof (BGH – Federal Court of Justice), German Law Journal, 5 (5), 123-134].
11 Bundesverfassungsgericht, «Leitsätze zum Urteil des Ersten Senats vom 27. Februar 2008», 1 BvR 370/07 – 1 BvR 595/07, Neue Juristische Wochenschrift (NJW), 2008, p. 822 (846). Retrieved from http://www.bundesverfassungsgericht.de/entscheidungen/rs20080227 1bvr037007.html.
12 Conseil constitutionnel, «Décision n. 2010-604 DC du 25 février 2010», Journal officiel, 3 mars 2010, p. 4312. Retrieved from http://www.conseil-constitutionnel.fr/conseil-constitutionnel/francais/les-decisions/acces-par-date/decisions-depuis-1959/2010/2010- 604-dc/decision-n-2010-604-dc-du-25-fevrier-2010.47970.html, para. 21.
13 It is a blend of data plus surveillance invented by R.Clarke (1988). Information Technology and Dataveillance, Communications of the Association for Computing (ACM), 31 (5), 498-512 and re-published in C.Dunlop and R.Kling (Eds.) (1991), Computerization and Controversy: Value Conflicts and Social Choices (pp. 496-514), Boston, London: Academic Press. Retrieved from http://www.rogerclarke.com/DV/CACM88.html. Clarke defined dataveillance as “the systematic use of personal data systems in the investigation or monitoring of the actions or communications of one or more persons” (ibi, p. 498).

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“Lisbonisation” of Europol and Eurojust : an in depth analysis for the European Parliament

The inter-agency cooperation and future architecture of the EU criminal justice and law enforcement area

Upon request by the LIBE Committee, the study aims at analysing the current relationship and foreseeable cooperation between several EU agencies and bodies: Europol, Eurojust, the European Anti-Fraud Office, the European Judicial Network and the future European Public Prosecutor’s Office. The study reflects on their cooperation regarding the fight against serious transnational crime and the protection of the European Union’s financial interests. It also identifies good practices and difficulties and suggests possible ways of improvements. AUTHORS Prof. Anne Weyemberg, Université Libre de Bruxelles and Coordinator of the European Criminal Law Academic Network (ECLAN) Mrs Inés Armada, PhD researcher, VUB-ULB, FWO Fellow Mrs Chloé Brière, GEM PhD researcher, ULB – UNIGE

BELOW THE TEXT OF PAGES 8-26. THE FULL STUDY  IS AVAILABLE HERE 

  1. INTRODUCTION

1.1. Context of the study

For the time being, there are 9 JHA decentralised agencies: 6 depending from DG Home, namely EUROPOL, CEPOL, FRONTEX, the European Asylum Support Office (EASO), the European Monitoring Centre for Drugs and Drug Addiction (EMCDDA) and the EU Agency for large-scale IT systems (Eu-LISA) and 3 depending from DG Justice, namely Eurojust, the European Union Agency for Fundamental Rights (FRA) and the European Institute for Gender Equality (EIGE).

Besides the agencies, some other EU bodies/networks, which do not have the agency status, are to be mentioned, such as the EU Anti-Fraud Office (OLAF), the European judicial network (EJN) or the European judicial training network (EJTN). Others are yet to be established, the main one on its way being the European Public Prosecutor’s Office (EPPO).

Complementarity, consistency and a good articulation between all these bodies is crucial if the purpose is to establish a consistent Area of Freedom, Security and Justice (AFSJ) and effectively implement its three components. A good articulation between the EU bodies is also crucial to develop a multidisciplinary approach in the fight against serious cross-border crime.

This need has been repeatedly underlined, particularly by EU institutions1. A better delineation or a clearer definition of each EU agency/body’s competences and functions has been requested. Overlaps are however inevitable (i.e., grey zones) and may even present advantages. The key issue lies in learning how to manage them in good will and good faith. The key word here must be complementarity, which implies working hand in hand for the realisation of common goals, respect of respective mandates and expertise and good communication and coordination in case of overlap. Establishing such complementarity might prove a difficult task, and this for different reasons:

- The different agencies and bodies have been established at different times, in different contexts and in various decisional frameworks. The current agencies/bodies belong to different generations and are more or less mature, the three oldest being OLAF (ex-UCLAF), Europol and the EJN. Some of them are still under the pressure of figures, still fighting/struggling or feeling they have to fight/struggle to justify their existence and prove their added-value.

- The different agencies and bodies are driven/marked by different philosophies/natures/logics: for instance, OLAF has an EC nature, with real « autonomous »/supranational administrative powers, whereas Europol and Eurojust are still marked by the « intergovernmental third pillar spirit » and constitute « service providers » depending on the final decision taken by national authorities;

- They are also marked by differences in professional cultures, be it administrative, police, or judicial;

- Their structure differs (e.g. very different organisation/structure within Europol and Eurojust);

- The resources/means available to each of them are different. Some agencies/bodies are more powerful than others, including in the field of policy orientation. For instance, the major role played by Europol in the design of the EU Internal Security Strategy (ISS) and in the EU policy cycle must be mentioned.

- The articulation between the EU agencies/bodies must accommodate the differences between the different national criminal justice systems. These include the different distribution of competences/tasks between the administrative/criminal, police/justice and police/intelligence services. The treaty imposes respect to such differences, with the result that the EU agencies/bodies must be able to adapt to all the concerned systems. Thus, there is a need to remain vague in the definition of mandates/tasks and to safeguard flexibility. Such vagueness might however make more difficult a good articulation and relationship between the bodies concerned.

- The abovementioned difficulties result in a lack of a consistent vision of the EU area of criminal justice, which is somehow to be built/organised a posteriori. The fact that the different EU agencies/bodies are dealt with by different DGs within the Commission (that do not always entertain the best relations) and the silo approach taken by the General Secretariat of the Council2 clearly do not improve the situation.

- Against this background, the legislative instruments governing each EU agency/body remain quite vague with regard to cooperation with counterparts. Interagency relations are thus mostly left to the EU agencies/bodies themselves.

- Last but not least, the importance of personal relations must be stressed. Sometimes people understand each other and sometimes they do not…

Generally speaking, an improvement in the relations between the EU agencies/bodies has been witnessed, due to the conclusion/revision of bilateral agreements/memorandum of understandings and to the passage of time and the consequent gain of experience.

Such improvement is also due to other reasons such as the creation of coordination/monitoring mechanisms and the encouragement of inter-agency cooperation in the JHA field.

It has especially taken the form of the JHA contact group and the JHA Heads of Agencies meetings. They annually report to the Standing Committee on operational cooperation on internal security (COSI)3, notably through a scorecard on cooperation, which is annexed to the annual report.

However, and in spite of a lot of quite positive official declarations, difficulties remain. Identifying them is the main purpose of this study, in order to suggest, where possible, ways of improvement.

1.2. Scope, methodology and structure of the study

As requested by the LIBE Committee, this study will not cover the relations between all EU agencies/bodies, but will instead concentrate on the relations between Europol, Eurojust, EJN, OLAF and the future EPPO.

Space and time constraints impede an exhaustive analysis of the interactions between the different EU agencies and bodies in the context of this study. Firstly, this study will focus on the « internal » aspects of their relationships, while setting aside data protection issues4.

Their external relations, i.e. their relations with third States and third bodies/organisations will thus not be covered by this study and will only be accessorily addressed.

Secondly, the authors of this study merely aim at highlighting the main points of concern and make some recommendations. Thirdly, assessing interagency relations is quite a difficult task, particularly because public information on the subject is scarce5 and transparency is often lacking. Thus, interviews proved essential to the purpose of our study (see the list of interviews in Annex 4). Interviews with the representatives of the EU agencies/bodies (notably Eurojust, Europol and OLAF) were of course crucial and considerably enriched our study. However, these interviews clearly showed the current climate of tensions linked to the on-going negotiations of the proposals for Regulations on Eurojust, Europol and the EPPO and to the uncertainties resulting from this state of play. The authors of this study endeavour of course to remain scientific, objective and neutral.

This study will be divided into two main parts:

– the first part (2) will concern the interagency/interbody relations in the fight against serious cross-border crime, with a focus on the Europol-Eurojust relationship (2.1.) and the Eurojust-EJN relationship (2.2.);

– the second part (3) will deal with interagency/interbody relations in the specific PIF (protection of the EU financial interests) domain. The relationship between the different agencies/bodies competent in this field, i.e. OLAF, Europol, Eurojust and the future EPPO, will be examined.

(…) 2.1. Cooperation between Europol and Eurojust

2.1.1. Europol and Eurojust are two sisters agencies, both involved in the fight against serious cross-border crime affecting two or more EU Member States

According to the TFEU, Europol’s mission is to “support and strengthen action by the Member States’ police authorities and other law enforcement services and their mutual cooperation in preventing and combating serious crime affecting two or more Member States, terrorism and forms of crime which affect a common interest covered by a Union policy” (Art. 88 (1) TFEU). Europol was set up to gather police and law enforcement information from national authorities and to provide strategic and/or operational analyses on the basis of this information. It has been compared to a ‘mega-search engine’. It also coordinates law enforcement authorities’ actions, and may support operational activities with its mobile office, analysis in real-time of information gathered on actions days, forensic tools, etc.7

According to the TFEU, Eurojust’s mission is to “support and strengthen coordination and cooperation between national investigating and prosecuting authorities in relation to serious crime affecting two or more Member States or requiring a prosecution on common bases” (Art. 85 (1) TFEU). Eurojust is a ‘facilitator’ of judicial cooperation, which intervenes to smoothen the effective functioning of judicial cooperation instruments (such as the European Arrest Warrant), to resolve legal issues arising in complex cases (such as ne bis in idem issues or conflicts of jurisdiction) and/or to stimulate the coordination of judicial authorities8. It has been compared to a ‘control tower”, whose members will intervene when they notice the need to investigate in a coordinated manner cross-border and/or complex cases.

2.1.1.1. Main differences

a) History: two agencies of different generations

Meeting in Luxembourg in June 1991, the European Council agreed in the creation of a “central European criminal investigation office” to fight serious crime10. As a result, the Maastricht Treaty included a provision, according to which Member States should regard police cooperation as a matter of common interest “in connection with the organisation of a Union-wide system for exchanging information within a European Police Office (Europol)” 11. Subsequent negotiations resulted in the signature on 26 July 1995 of a Convention on the establishment of a European Police Office12. Europol began operations the 1st July 1999. The disadvantages of the Convention, and in particular the difficulty to amend it rapidly, were soon noticed13. The entry into force of the Amsterdam Treaty (ex Art. 30 TEU) provided the legal basis to change the instrument establishing Europol and to extend its mandate14. On that basis, Council Decision 2009/371/JHA15 was adopted and is still in force.

By contrast, the idea of establishing a judicial cooperation unit was first brought up at the European Council meeting of Tampere16. In 2000 a provisional judicial cooperation unit was formed under the name of Pro-Eurojust17. The 9/11 terrorist attacks served as catalyst, and Council Decision 2002/187/JHA18 formally established Eurojust. In July 2008, Council Decision 2009/426/JHA19 amending the 2002 Council Decision was adopted. Its purpose is to enhance the operational capabilities of Eurojust, increase exchange of information between the interested parties, facilitate and strengthen cooperation between national authorities and Eurojust, and establish relations with partners and third States20.

Finally, Arts. 85 and 88 TFEU foresee the organisation of the two agencies by means of Regulations, adopted in accordance with the ordinary legislative procedure. In March and July 2013 the Commission put forward the two proposals21 that are currently under negotiation.

b) Nature and logic: “police v. judicial”

2.1. Cooperation between Europol and Eurojust

2.1.1. Europol and Eurojust are two sisters agencies, both involved in the fight against serious cross-border crime affecting two or more EU Member States

According to the TFEU, Europol’s mission is to “support and strengthen action by the Member States’ police authorities and other law enforcement services and their mutual cooperation in preventing and combating serious crime affecting two or more Member States, terrorism and forms of crime which affect a common interest covered by a Union policy” (Art. 88 (1) TFEU). Europol was set up to gather police and law enforcement information from national authorities and to provide strategic and/or operational analyses on the basis of this information. It has been compared to a ‘mega-search engine’. It also coordinates law enforcement authorities’ actions, and may support operational activities with its mobile office, analysis in real-time of information gathered on actions days, forensic tools, etc.7

According to the TFEU, Eurojust’s mission is to “support and strengthen coordination and cooperation between national investigating and prosecuting authorities in relation to serious crime affecting two or more Member States or requiring a prosecution on common bases” (Art. 85 (1) TFEU). Eurojust is a ‘facilitator’ of judicial cooperation, which intervenes to smoothen the effective functioning of judicial cooperation instruments (such as the European Arrest Warrant), to resolve legal issues arising in complex cases (such as ne bis in idem issues or conflicts of jurisdiction) and/or to stimulate the coordination of judicial authorities8. It has been compared to a ‘control tower”, whose members will intervene when they notice the need to investigate in a coordinated manner cross-border and/or complex cases.

2.1.1.1. Main differences

a) History: two agencies of different generations

Meeting in Luxembourg in June 1991, the European Council agreed in the creation of a “central European criminal investigation office” to fight serious crime10. As a result, the Maastricht Treaty included a provision, according to which Member States should regard police cooperation as a matter of common interest “in connection with the organisation of a Union-wide system for exchanging information within a European Police Office (Europol)” 11. Subsequent negotiations resulted in the signature on 26 July 1995 of a Convention on the establishment of a European Police Office12. Europol began operations the 1st July 1999. The disadvantages of the Convention, and in particular the difficulty to amend it rapidly, were soon noticed13. The entry into force of the Amsterdam Treaty (ex Art. 30 TEU) provided the legal basis to change the instrument establishing Europol and to extend its mandate14. On that basis, Council Decision 2009/371/JHA15 was adopted and is still in force.

By contrast, the idea of establishing a judicial cooperation unit was first brought up at the European Council meeting of Tampere16. In 2000 a provisional judicial cooperation unit was formed under the name of Pro-Eurojust17. The 9/11 terrorist attacks served as catalyst, and Council Decision 2002/187/JHA18 formally established Eurojust. In July 2008, Council Decision 2009/426/JHA19 amending the 2002 Council Decision was adopted. Its purpose is to enhance the operational capabilities of Eurojust, increase exchange of information between the interested parties, facilitate and strengthen cooperation between national authorities and Eurojust, and establish relations with partners and third States20.

Finally, Arts. 85 and 88 TFEU foresee the organisation of the two agencies by means of Regulations, adopted in accordance with the ordinary legislative procedure. In March and July 2013 the Commission put forward the two proposals21 that are currently under negotiation.

b) Nature and logic: “police v. judicial”

Whereas Europol provides support and coordination to national police officers and other law enforcement services, Eurojust supports and coordinates national investigating and prosecuting authorities. Since theoretically at least their services target different audiences, their activities are driven by different logics and concerns. In general terms, Europol’s activities are marked by efficiency/proactiveness and pragmatism, which is characteristic of the law enforcement mentality, whereas Eurojust is marked by formalism and law-compliance, typical of the judicial philosophy.

Mirroring the distinction that is often made at national level between law enforcement and judiciary and their attachment to the Ministry of Interior and the Ministry of Justice respectively, Europol and Eurojust depend of different DGs within the Commission. While Europol is attached to DG Home Affairs, Eurojust is attached to DG Justice.

c) Structure and resources

Europol’s structure is hierarchical. The agency is headed by a Director, appointed for a four-year period, and assisted by three Deputy Directors, also appointed for four years. They are notably responsible for the performance of the tasks assigned to Europol.22 The current director is Robert Wainwright, who was appointed in 2009. The Director has extensive powers, for instance he is competent to open Analysis Working Files (AWFs)23 and to intervene to solve disagreements concerning access to AWFs by liaison officers24.

By contrast, Eurojust has a collegial structure. The College, composed of the 28 National Members, is responsible for the organisation and operation of Eurojust25. The College has important operational powers26. The elected President and Vice-presidents exercise their duties on behalf of the College and under its authority. Their functions are detailed in the Rules of Procedure27 and include the representation of Eurojust, the organisation and presidency of the College’s meetings, etc.

Turning now to the two agencies’ resources, important differences also exist. Whereas they are both funded by the EU budget, as opposed to Member States’ contributions28, the amounts they receive and the staff they employ are not comparable29. Nevertheless, both agencies face the challenge to “do more with less”.30 Their tasks and activities are increasing, because of the new responsibilities allocated to them and/or because of the increased recourse national authorities make to their services, whereas this increase in their workload is not reflected in their respective budgets.

2.1.1.2. Main common features

Both agencies are still marked by an “intergovernmental third pillar spirit”. For instance, and in spite of the improvement brought about by Eurojust’s 2008 Council Decision, the limited approximation of the standing and powers of Eurojust’s National Members is a good example of Eurojust’s intergovernmental nature31.

Neither Europol nor Eurojust are intended to replace national authorities, but rather assist them mainly in transnational cases32. Europol has no vocation of being a European FBI and has never received operational powers enabling its members to perform investigative acts on the ground. Similarly, Eurojust has no vocation of becoming a European prosecutor, and cannot directly perform investigative or prosecution acts.

They may both address requests to national authorities but their requests do not bind national authorities. On the one hand, national authorities shall “deal with any request by Europol” and give them “due consideration”33. On the other hand, Eurojust, acting through its National Members or as a College34, can address requests to national authorities. In both cases, if the competent national authorities decide not to comply with the request, they must inform Europol or Eurojust of their decision and state their reasons thereof35.

Their involvement in specific cases depends of the goodwill of national authorities. The EU agencies remain `service providers’36, which can only advertise and offer their support and assistance. National authorities remain the ‘masters’ of the investigations and/or prosecutions.

The two agencies must therefore gain the trust of national authorities and convince them of their added value37.

2.1.1.3. Strong complementarity of their tasks

Close cooperation between these two agencies is essential in order to assist national authorities in fighting serious crime from the preliminary police investigation phase up to the trial stage. Indeed they both pursue the same objective, but “Eurojust’s role is mainly to help prosecute and ensure the judicial follow of police results »38.

The judicial follow-up of investigations carried out by law enforcement authorities is necessary39, notably to ensure that the information collected can at a later stage become admissible evidence. Similarly, judicial authorities rely extensively on law enforcement authorities to carry out investigation acts and to gather the information necessary to the formulation of criminal charges.

Judicial co-ordination and co-operation activities are complementary to the criminal analysis and police co-operation activities carried out by Europol, as is well illustrated by the Skanderberg, Koala and Baghdad operations. In these cases, Europol’s criminal analyses allowed the identification of targets and the links among them. On this basis, Eurojust acted in a proactive way by inviting the involved judicial and police authorities to co-ordination meetings. During these meetings, the involved authorities could safely exchange information; identify the best place to prosecute and where to collect evidence. Finally, an action plan was tabled and discussed, which led to the simultaneous execution of European arrest warrants, the retrieval of evidence and the dismantling of cross-border criminal networks40.

2.1.2. Evolution of their cooperation framework

2.1.2.1. Past and present

The 1995 Europol Convention obviously made no reference to their cooperation since Eurojust was not yet in place. However, the 2002 Eurojust Council Decision contained a provision41 requiring both agencies to “establish and maintain close cooperation, (&) taking into account the need to avoid duplication of efforts”. The elements of such cooperation were to be determined by an agreement to be negotiated by the two parties and approved by the Council. A mirroring provision was then inserted in the Europol Convention through the Third Protocol of 27 Nov. 200342.

A first cooperation agreement between Europol and Eurojust was signed in 2004 and bilateral meetings were organised from 2006 onwards. However, because of the limited impact of such arrangements43, the Council’s conclusions adopted in June 2008 urged Europol and Eurojust to prepare amendments to their cooperation agreements by the end of 2008 (dealing especially with exchange of information). A Task Force was then set up to assist the two agencies in this task.

In the meanwhile, two new Council Decisions were adopted: one replacing the 1995 Europol Convention44 and the other amending the Eurojust 2002 Council decision45. They both contain a general provision on their mutual cooperation46, which slightly differ from the previous texts47. These provisions provide the legal bases giving the possibility to each agency to cooperate with its partners and sign agreements to that effect. References to each other can be found in other provisions. For instance, in the 2008 Eurojust Council Decision, Eurojust is invited to give assistance to improve cooperation between competent national authorities “in particular on the basis of Europol’s analysis”48 and Eurojust is also invited to assist Europol, “in particular by providing it with opinions based on analyses carried out by Europol”49. Finally a special task is entrusted to the Eurojust National Coordination System (ENCS), which shall facilitate the carrying out of the tasks of Eurojust especially by “maintaining close relations with the Europol National Unit” within each Member State50. Similarly, Europol’s Council Decision provides that Europol shall inform Eurojust when making a request for the initiation of criminal investigations51. The adoption of these two instruments and the provisions contained therein illustrate the will of the EU legislator to strengthen the interactions between the two agencies.

A new cooperation agreement between Europol and Eurojust was negotiated and concluded in 2010, which replaced the former agreement. Its purpose is to establish and maintain close cooperation between the parties, in order to increase their effectiveness in combating serious forms of international crime, which will be achieved through the exchange of operational, strategic and technical information, as well as by the coordination of their activities52. Art. 3 provides for regular consultations between the heads of agencies (Director of Europol and President of the College of Eurojust)53. Detailed elements of their general cooperation are set out in Art. 4, and cover for instance the coordination of requests addressed to the national authorities or the conclusion of practical arrangements concerning their attendance to their respective meetings. Art. 6 in turn deals with Joint Investigations Teams (JIT), and provides that the parties shall inform each other of their participation in a JIT at the earliest opportunity.

Exchange of information between the two agencies is then addressed. Europol must inform Eurojust on its own motion of its findings in general and strategic analysis. On its own motion or upon request, Europol will provide Eurojust with its analysis when information provided by Eurojust matches information stored in Europol’s databases54. A parallel obligation is imposed on Eurojust55. Both agencies may be associated to the activities of its counterpart: Eurojust to Europol’s Analysis Working Files (AWF)56 and Europol to Eurojust’s strategic and coordination meetings57. The following chapters cover processing of information, confidentiality, liability and dispute settlement. Art. 22 sets out the parties’ obligation to report annually to the Council and the Commission on their cooperation. Besides this formal mechanism, a Steering Committee and a Task force monitor and improve when necessary the implementation of the cooperation agreement.58

The analysis of the provisions contained in the Europol and Eurojust Council Decisions reveal that the EU legislator left the agencies a wide margin of manoeuvre to define the modalities of their cooperation. The assessment of this flexibility is different within each agency: whereas Europol is satisfied with the situation, Eurojust would rather have a clearer legal cooperation framework.

2.1.2.2. Future

The two proposals presented by the Commission for two Regulations based respectively on Art. 85 TFEU (Eurojust) and Art. 88 TFEU (Europol) represent a change in the approach towards cooperation between the two agencies. Both texts are indeed more detailed in that regard, establishing a more precise framework for their cooperation: besides a general provision dealing with cooperation with their partners59, a specific Art. deals with EuropolEurojust cooperation60. These provisions mainly concern access to the information processed and stored by the other agency, as well as information exchange (see infra). Their impact should not be under-estimated.

If compared with the instruments currently in force, the increase and/or the more detailed provisions dealing with the other agency is to be noted. On the one hand, Europol shall not only continue to inform Eurojust of the requests it makes to national authorities for the initiation of criminal investigations, but shall also inform Eurojust of the consequent decision of the national authorities61. A novelty has been introduced: Europol shall support Member States’ investigations in the context of JITs, “where appropriate in liaison with Eurojust”62.

On the other hand, the Eurojust proposal does not substantially amend the previous regime. Eurojust shall continue to assist national authorities to improve their cooperation “in particular on the basis of Europol’s analysis” and to provide Europol with opinions based on analysis carried out by Europol63. The proposal also maintains the role of the ENCS in maintaining close relations with the Europol National Unit64.

2.1.3.   State of their cooperation and points of concern

As evidenced by their respective annual reports65, as well as by the recent elaboration of joint annual reports to the Council and the Commission, cooperation between Europol and Eurojust has developed and improved over time. It takes place at various levels and is of a different nature:

– Strategic cooperation:

  • Meetings: bilateral meetings are held between the heads of the two agencies (Presidency of Eurojust, and Director of Europol) and senior multilateral meetings are also held with the participation of the Administrative Director of Eurojust66. Europol-Eurojust’s Steering Committee and Task force also meet regularly. Informal meetings are also organised for instance to discuss the legislative process on the two proposals for Regulations or to share experience and best practices between analysts.
  • Eurojust contributes to the elaboration of Europol’s Strategic analysis reports on terrorism and serious and organised crime. It is moreover involved in the Serious and Organised Crime Threat Assessment (SOCTA) evaluation process.
  • An exchange program for post holders of the two agencies is also in place67.

– Operational cooperation:

  • Eurojust’s National Desks and Case Analysis Unit have access to SIENA, the secure communication channel developed by Europol, which is used to exchange messages, many of which are shared with Europol.
  • Eurojust is associated to most of Europol’s Focal Points, and is informed of (and may eventually attend) operational meetings held by Europol in relation to them. Similarly, Europol is informed of forthcoming coordination meetings held by Eurojust and sometimes attends them.
  • JITs: the two bodies jointly organised the annual meeting of JITs national experts, participate in training programs and regularly exchange information on the JITs they support. They have also jointly elaborated a JIT Manual68.
  • EC3: Whereas the EC3 is hosted by Europol, Eurojust has nominated one representative to the Program Board and has seconded a staff member69.

In addition to the cooperation between the two bodies and their staff, the cooperation taking place between Eurojust’s national desks and Europol’s national units must be mentioned. The country reports of the 6th round of mutual evaluations reveal the existence of frequent and close contacts between them70. These informal exchanges are sometimes formalised, like in Belgium where a Memorandum of Understanding has been signed: a Europol liaison officer is in charge of relations with Eurojust and is invited to its coordination meetings. Europol informs Eurojust of “any Europol meetings involving Belgium. When a meeting is of judicial interest, the Belgian desk at Eurojust will be attending”71.

Whereas it is evident that both agencies cooperate regularly, several problems have been identified, namely their respective roles on the coordination of criminal investigations, the funding of JITs, and the exchange and analysis of information.

2.1.3.1. Coordination of judicial authorities

On paper, the tasks of each agency are clearly defined. Eurojust is in charge with the coordination of judicial authorities. Its tasks include various activities, from the facilitation of the exchange of information, the implementation of instruments based on the principle of mutual recognition or the execution of mutual legal assistance (MLA) requests, to the provision of legal advice and logistical support. Coordination takes place through the organisation of coordination meetings and coordination centres72.

In turn, Europol is competent for the coordination of police and other law enforcement authorities. Their coordination task is implemented through the organisation of operational meetings, in which action days may be planned. In addition to the performance of synchronised and coordinated investigative acts, such as house searches or arrests, Europol provides assistance through the setting up of operational centres. These centres are essential to assess the incoming data, to crosscheck it with the information stored by Europol and to elaborate strategic analysis on the spot73.

Both roles are essential to ensure the success of a case/operation. They are often performed alongside, and Europol and Eurojust often participate to the meetings organised by their counterpart. For instance, in 2013 Eurojust participated in 31 out of the 214 operational meetings held at Europol and Europol attended 75 out of 206 coordination meetings held by Eurojust74. In practice however the allocation of tasks, particularly in the investigation stage, is complex. One of the reasons for this complexity is the difference between national criminal justice systems75 and the fact that acts that would in country A be performed by a judicial authority may in country B be performed by the judicial police76. Since respect for national diversity is an obligation under the TFEU77, a certain flexibility is required both with regard to the definition of their respective tasks as well as in relation to the competent authorities attending Eurojust or Europol’s meetings. Indeed, national authorities have a discretionary power to decide who will attend such meetings and if they so wish, they may also exclude the participation of the other agency78.

Nonetheless, it is the need for flexibility that creates a grey zone, which in occasions leads to tensions between the two agencies. For instance, it has been brought to our attention that Eurojust is concerned that the participation of judicial authorities to Europol’s meetings results in judicial issues being discussed without the involvement of Eurojust. Eurojust’s concern has increased in the light of the Council’s General Approach on the proposal for a Europol Regulation, according to which Europol shall assist Member States’ “competent authorities”. These would include police authorities, law enforcement authorities as well as other authorities in general79.

Two approaches can be taken in relation to this issue.

The first would be ‘formal’ and aim at a clear, strict division of competences and tasks between the two agencies.

The second would be to favour flexibility, and thus maintain the statu quo which guarantees a certain margin of discretion. Whereas ideally the solution would lie in finding a combination of both (i.e. a better clarification of the respective mandates without losing flexibility) this seems impossible to achieve in practice. It must be kept in mind that a too rigid delineation could create new legal problems and have unexpected results.

In our view, the best approach is thus to maintain flexibility, but with due regard to the treaties. In this respect, it should be recalled that Art. 88 TFEU refers to “police authorities and other law enforcement services”. Since the grey zone with regard to the definition of their respective tasks is both unavoidable and desirable, emphasis must be placed in ensuring that flexibility is handled in good faith. In the interest of all parties, and in order to construct a real AFSJ, both Eurojust and Europol should respect their fields of expertise and their respective ‘raison d’être’. To this end, it would be advisable to include a provision reflecting this duty in each of their Regulations, or at least a recital in the preambles. In addition, it might be wise to include a general duty to involve the other agency in its coordination activities wherever its expertise is relevant unless Member States oppose. In the later event, an obligation to inform the other party of the reasons given by the national authority should apply.

2.1.3.2. Joint Investigation Teams

The possibility of having police and judicial authorities of different Member States working together in the territory of a Member State was first introduced in the Treaty of Amsterdam (ex Art. 32 TEU). The 2000 MLA Convention80 dedicated a provision to joint investigation teams81, which was then developed in a specific instrument, namely Council Decision 2002/465/JHA of 13 June 200282.

A joint investigation team is a group of competent authorities from two or more Member States who cooperate for a specific purpose and a limited period to carry out criminal investigations in one or more of the Member States setting up the team83. It is to be noted that the two EU secondary law texts covering JITs are instruments of judicial cooperation. Nonetheless, a glance at the TFEU reveals that the former Art. 32 TEU, now Art. 89 TFEU, is placed under Chapter 5 of Title V of Part III of the Treaty, dedicated to police cooperation. This evidences the mixed nature of JITs. Moreover, Art. 89 TFEU refers to the participation of both law enforcement and judicial authorities in JITs.

Both Europol84 and Eurojust85 received competences dealing with JITs, but their scope differ slightly.

Under the 2008 Council Decision, Eurojust’s powers86 in relation to JITs are the following:

– Firstly, Eurojust, either through its National Members or through the College, may request the competent authorities in EU Member States to set up a JIT87

– Secondly, Member States are required to recognise National Members as competent authorities to set up and participate in JITs, although they may render their participation subject to the agreement of the competent national authority 88. Furthermore, National Members shall be informed whenever national authorities set up a JIT89.

– Finally, the Secretariat of the JIT network is created and based at Eurojust90; national contact points of the JIT Network are part of the ENCS91.

In practice, the role of Eurojust in facilitating the establishment and operation of JITs is generally considered a success. It is clear that for Eurojust support of JITs was and remains a strategic area in which the agency the agency has become a key player and centre of expertise. Eurojust helped overcoming national authorities’ initial reluctance to setting up JITs, notably through the provision and the administration of financial support92.

For this, Eurojust obtained two grants from the Commission93, and now funds JITs on the basis of its own budget94. Eurojust covers expenses for travel, accommodation, translation and interpretation, as well as the loan of equipment95. In 2013, Eurojust provided financial support through its funding program to 34 JITs96. The development of funding support for JITs had a clear impact on the success of this instrument, as testified by the ever growing number of applications for funding97, proving the significant importance of funding capacity for an effective application of JITs98.

Europol is also competent with regard to JITs. Europol’s powers pursuant to the 2009 Council Decision are:

– Europol can suggest the setting up of JITs in specific cases99

– Europol may participate in JITs in a supporting capacity in so far as those teams are investigating criminal offences in respect of which Europol is competent100.

– Europol staff may liaise directly with members of a JIT and provide members and seconded members information from any of the components of its information processing systems101.

Europol provides financial support to JITs via the provision of financial support for operational meetings102. Europol’s financial support may cover the costs incurred by the organisation of operational meetings (travel, accommodation) as well as the costs associated to the technical equipment it offers (mobile offices, forensic support, etc)103.

The 2010 cooperation agreement provides a clear division of their respective tasks104, as well as a duty to inform each other of their participation in a JIT at the earliest opportunity. JITs are often mentioned as a good example of cooperation between the two agencies:

– Both agencies co-organise the JITs’ experts annual meeting105 and participate in training programs and seminars relating to JITs;

– They conducted together a joint JITs project, which led to the adoption of the “JITs Manual”106.

– Both agencies can participate in JITs, separately as well as jointly, and examples of their cooperation can be found in their annual reports107.

– They also regularly exchange information on the JITs they support throughout the year108.

While their respective roles in JITs have proved effective, they are amended in the two proposals under negotiation. Particularly with regard to their supporting capacities, the following provisions are inserted:

- Art. 4 (1) (h) of the Council’s General Approach on the proposal for a Europol  Regulation: “possibility to support (&- JITs, including by providing operational,  technical and financial support” [part underlined added by the Council]

- Art. 4 (1) (e) of the proposal for a Eurojust Regulation: “possibility to provide operational, technical and financial support to Member States’ cross-border operations and investigations, including JITs”.

Beyond the practical problems to which the use of the exact same wording may lead to in practice, the mention of funding of JITs in both Regulations has created tensions. It has been criticised by some, and welcomed by others.

Among the arguments against it, the risk of duplication (i.e., double requests for funding) and the increase in competition between the two agencies are to be mentioned. In this regard, France has for instance expressed reservations on Art. 4 of the Eurojust Proposal “until the mandate of Eurojust and Europol regarding JITs is clarified”109. Among the arguments in favour, some authorities and officials consider that the increase of funding channels will lead to an increase in JITs which is to be welcomed for instance in the field of terrorism. JITs are proving to be extremely useful in the fight against crime but are expensive tools. In the context of economic crisis we are in, it seems national authorities strongly depend on EU funding.

In any event, the establishment of a mechanism ensuring that there is no risk of double funding of JITs should be introduced. Such system could consist for instance in mutual information and consultations, to be introduced in both Regulations through mirroring provisions. An alternative option would consist in the establishment of a centralised service that would channel the requests to the most appropriate agency. Some have suggested that the JIT Secretariat, having an important expertise in the field, would be ideally placed to play this role. Nonetheless, it should be recalled that the JIT Secretariat is located within Eurojust, which makes this a sensitive issue.

It is to be noticed that this tension intervenes in a context of imbalance with regard to the funding resources of the two agencies. Whereas both may fund JITs through their own budget110, Europol is about to conclude a budgetary delegation agreement with DG Home, which would empower Europol to implement the part of the budget relating to operational actions (including JITs) falling within the EMPACT priorities111. Even though the delegation agreement shall include an obligation for Europol to systematically inform Eurojust about its support to JITs112, if Eurojust is not granted similar funding possibilties, this will end in a true and potentially dangerous imbalance. Indeed, the risk is that Europol’s increased funding power leads to a marginalisation of judicial authorities (and Eurojust) in JITs. This would be to the detriment of the superior interest of criminal justice.

2.1.3.3. Exchange of information

Information exchange between the agencies takes place for different purposes, namely for operational purposes and for policy-making or broader purposes.

Operational information exchange takes place in different contexts: firstly, it concerns information sharing concerning the meetings each agency organises. In particular, on the basis of an agreement reached between the two agencies, Europol began in 2012 to inform Eurojust of operational meetings that are financially supported by Europol. This responds to a need to ensure reciprocity in relation to the existing practice of Eurojust to provide information to Europol on forthcoming coordination meetings.

Secondly, exchange of information takes place ‘on the ground’, in the context of coordination/operational meetings in which both agencies participate113, as well as other joint operational activities such as JITs. As to the latter, when for instance both agencies take part in a JIT, Europol may transfer to Eurojust the analytical reports it prepared on the basis of the information and intelligence gathered by the JIT114.

Thirdly, an exchange of information takes place in the context of Europol’s analysis working files (AWF)115 and Focal Points. By virtue of Art. 11 of Europol-Eurojust’s cooperation agreement, Europol may invite experts from Eurojust to be associated with the activities of a specific analysis group, subject to an association agreement concluded between Europol and Eurojust. Eurojust can also request to be associated with the activities of a specific analysis group. Being associated to an AWF has important practical consequences as it allows Eurojust to attend analysis group meetings and to be informed on the development of the AWF116. Their cooperation in this respect is very effective: in 2013, Eurojust was associated with 20 out of 23 Focal Points117, the latest associations concerning the Focal Points on Italian Organised Crime, Motorcycle gangs and East European Organised Crime118. In addition, since 2013 most of Eurojust’s National Desks and the Case Analysis Unit have access to SIENA, allowing them to securely communicate, including with Europol National Units and with Europol itself119.

Finally, and with a policy-making objective, Eurojust contributes to SOCTA and to the Serious and Terrorism Situation and Trend Report (TE-SAT), providing relevant information and analysis (see infra)120. For instance, Eurojust contributes to Europol’s TE-SAT by providing quantitative and qualitative analysis of terrorism-related court decisions, which reflect the number of convictions and the level of penalties pronounced by national courts over the last twelve months121. Eurojust also provided an overview of the amendments of terrorism related legislation in the Member States122.

It must be noted that in the field of information exchange, interagency relations has not always been smooth123. One of the basic principles in the field is known as ‘the owner principle’, which implies that information sharing can only go as far as Member States allow it. Indeed, the information provider remains the owner of the information, and is therefore entitled to refuse any further transmission.

This principle explains for instance that Eurojust (as Frontex) only receives the third party version of the SOCTA; this is meant to preserve the confidentiality of Member States’ information124. It also explains why Eurojust still is not involved in certain AWFs, such as those on terrorism or domestic extremism: Member States’ are sometimes reluctant to share this sensitive information with the judiciary125.

The situation has however gradually improved over time. For instance, an increase in the participation of Eurojust to Europol’s AWFs is clear. Moreover, information exchange is expectedly going to improve with the adoption of the new Regulations.

Indeed, the two proposals innovate with the inclusion of mirroring provisions whereby a new system is established126: each agency must grant its counterpart the right to have, within its mandate, indirect access on the basis of a hit/no hit system to the information it possesses, without prejudice to any restriction indicated by the ‘owner’.

In case of a hit, the agency shall initiate the procedure so that the information may be shared in accordance with the owner’s decision. Two limitations exist: on the one hand, searches can be made only for the purpose of identifying a hit, and on the other hand, only the staff members specifically authorised may perform them. Moreover, if in the course of information processing activities, Eurojust identifies a need for Europol’s intervention, it shall notify Europol and initiate the procedure for sharing the information. This provision is reciprocal.

This new system will clearly not suppress the ‘owner principle’. The Member States, or any other information provider maintains its power to oppose the sharing of information127. However, this mechanism should improve the exchange of information between the two agencies for a series of reasons. Firstly, the provision on information exchange is transferred from the cooperation agreement to the Regulation, which is crucial both in terms of visibility and enforceability. Secondly, a comparison of the current and foreseen systems shows that a stage is eliminated of the process: a request is no longer needed to find out whether the other agency has information on the matter of the request. Finally, it reflects the evolution of mentalities and the decreased mistrust of national authorities with regard to information sharing.

2.1.3.4. Analysis of information

Both agencies analyse the information they obtain. Broadly speaking, analysis can be divided into two categories: operational and strategic analysis.

Analysis has always been at the core of Europol’s mandate128. Its expertise is well established129 and the existence of specific devices enabling national authorities to load data automatically enhances even further its analytical capacities130. For Eurojust, analysis of information is a more recent activity. Even though the transmission of data from national authorities to Eurojust is not fully ensured131, the agency is now fed by a sufficient amount of information132. It gradually establishes its own analytical capacities133.

This recent evolution, together with confusion created by the terminology employed, may give the impression of an overlap between Europol and Eurojust’s analytical activities. Some have criticised Eurojust for investing in analysis of information, arguing that they duplicate Europol’s tasks without even having the required resources or expertise134. A real overlap, should indeed lead to criticism. However, a closer look at the content and purpose of the analysis carried out by the two agencies reveals their differences:

- Europol’s analysis135

Operational analysis: focused on a specific operation à this type of analysis is of a short term nature, and aims at providing the investigative team of a specific case with hypotheses and interferences concerning for instance the modus operandi of a criminal network, individuals potentially involved in unlawful activities, etc.136 It traditionally involves the information and evidence gathered during an investigation, which is then analysed in the context of AWFs. Information gaps can be identified leading to more targeted information gathering. Europol can disseminate analytical reports containing assembled intelligence (description of criminal organisation, links between criminals, etc.)137

Strategic analysis: this type of analysis focuses more on the long-term aims and objectives of law enforcement services. It reviews current and emerging trends to illuminate changes in the crime environment and emerging threats to public order, in order to identify opportunities for action and likely avenues for changing policies, programs and legislation138. In this framework, Europol elaborates, with the collaboration of other JHA agencies, threats assessments, notably Serious and Organised Crime Threat Assessment (SOCTA), and Terrorism Situation and Trend Report (TE-SAT). SOCTAs play an important role in the EU policy cycle for organised and serious international crime139, which embodies a more rational, efficient and accountable policy-making in the field of security140. They indeed constitute the basis on which to reflect on policy developments, as they provide a complete picture of criminal threats impacting the EU141.

- Eurojust’s analysis

Operational analysis: case-oriented and generally aimed at preparing coordination meetings, i.e., identifying connections between judicial investigations and prosecutions, both on factual and possible legal issues, based on requests for MLA and depending on the request made by the national authorities to the relevant Eurojust National Desk.

Strategic analysis: it aimes at identifying recurring judicial cooperation issues and possible solutions in the prosecution of criminal networks operating cross-border. An example of Eurojust’s strategic analysis can be found in the strategic project on Trafficking in Human Beings142. The analysis carried out allowed to identify recurrent problems and best practices in judicial cooperation among 29 selected THB cases dealt with by Eurojust143. Eurojust’s contribution to the TE-SAT144 is another good example of Eurojust’s strategic analytical activities.

Eurojust’s analysis thus appears to be judicially-oriented, and this is a type of analysis in which Europol is not active. A pedagogical effort seems necessary to solve the existing confusion with regard to analysis of information. This confusion not only affects EU actors but extends to national authorities, who are often unaware of the judicially-oriented information needs of Eurojust.

MORE HERE ….

NOTES

1 See for instance the negotiations that led to the Stockholm program; see also J. Martin, “Europol: nécessité, statut, fonctionnement et devenir~, Mémoire en vue de l’obtention du grade de Master en sciences politiques, IEE, 2013-2014, p. 45 ff.

2 As a result of the division of the ex Directorate 2 devoted to judicial cooperation in civil and criminal matters, police and customs cooperation.

3 This Standing Committee was set up within the Council by Council decision of 25 February 2010 and meets regularly since March 2010.

4 Indeed, these are the object of a separate study by P. De Hert and V. Papaconstantinou

5 The main documents available are the national reports elaborated in the framework of the 6th round of mutual evaluations (mainly covering the cooperation between Eurojust and the EJN), the EU agencies/bodies’ annual reports and the documents presented to COSI, such as the joint Europol and Eurojust reports.

6 Sénat, Europol et Eurojust : perspectives d’avenir, Rapport d’information No. 477, 17 April 2014, p. 10.

7 Europol, 2013 Europol Review, p. 14.

8 Eurojust, 2013 Annual Report, p. 14.

9 Sénat, Europol et Eurojust, supra note 6, p. 39.

10 European Council, Presidency conclusions, 28-29 June 1991.

11 Art. K1 (9).

12 Council Act of 26 July 1995 drawing up the Europol Convention & Convention on the establishment of a European Police Office (OJ C 316, 27 Nov. 1995, p. 1). The Convention only entered into force on 1 October 1998.

13 House of Lords, EU Committee, Europol: coordinating the fight against serious and organised crime, Nov. 2008, p. 11 and f.

14 In particular to facilitate and support the preparation, and to encourage the coordination and carrying out of specific investigative actions by the competent authorities, including operational actions of joint teams (see Art. 30 (2) TEU)

15 Council Decision 2009/371/JHA of 6 April 2009 establishing the European Police Office (Europol), OJ L 121, 15 May 2009, p. 37.

16 European Council, Tampere Conclusions, Oct.1999, Conclusion No. 46.

17 Eurojust, Eurojust News – Eurojust 10th Anniversary, Issue No. 6, Feb. 2012, p. 1.

18 Council Decision 2002/187/JHA of 28 February 2002 setting up Eurojust with a view of reinforcing the fight against serious crime, OJ L 63, 6 March 2002, p. 1.

19 Council Decision 2009/426/JHA of 16 December 2008 on the strengthening of Eurojust (and amending Decision 2002/187/JHA (&), OJ L 138, 4 June 2009, p. 14.

20 Eurojust, Eurojust news – Eurojust 10th Anniversary, Issue No. 6, Feb. 2012, pp. 1 – 2.

21 Commission, Proposal for a regulation of the European Parliament and of the Council on the EU Agency for Law Enforcement Cooperation and Training (Europol), 27 March 2013, COM (2013) 173 final, 109 pages. Commission, Proposal for a regulation of the EP and of the Council on the EU Agency for Criminal Justice Cooperation (Eurojust), 17 July 2013, COM (2013) 535 final, 60 pages.

22 Art. 38 Europol Council Decision.

23 Art. 16 Europol Council Decision.

24 Art. 14 (5) b) Europol Council Decision

25 Art. 28 Eurojust Council Decision (2008).

26 Art. 7 – requests to national authorities, assistance to them, etc.

27 Rules of Procedure of Eurojust, 2002/C 286/01, OJ C 286, 22 Nov. 2002, p. 1.

28 Europol was funded by Member States’ contributions until the change for legal basis and the entry into force of the Council Decision.

29 Europol’s numbers: For 2012 – Budget of 84 million EUR, 800 personnel at headquarters; For 2013 – Budget of 82,5 million EUR, 850 staff members at headquarters, including 160 liaison officers. Budget for 2014: budget of 84,25 million EUR29.

Eurojust’s numbers: For 2012 – Budget 32,9 million EUR, 274 personnel at headquarters (217 staff members); for 2013 – Budget of 32,4 million EUR, 230 Staff members and 65 representatives composing the national desks. Budget for 2014: 32,63 million EUR29.

30 J. Mönar, Developing Europol and Eurojust, contribution to the joint CRIM/LIBE Committee Hearing, 19 March 2013, p. 6, available on the Parliament’s website.

31 P. Jeney, The Future of Eurojust, study at the request of the LIBE Committee, available here, April 2012, p. 23. D. Bigo, L. Bonelli, D. Chi and C. Olsson, “Mapping the field of EU Internal Security Agencies”, available here, p. 16: creation of the Eurojust Unit within the Council could be interpreted as an affirmation of the intergovernmental logic in the field of judicial cooperation in criminal matters.

32 D. Bigo, L. Bonelli, D. Chi and C. Olsson, supra note 31, p. 35.

33 Art 7 Europol Council Decision

34 Art. 6 (1) a) (National Members) and Art. 7 (1) a) (College) Eurojust Council Decision (2008).

35 However, in certain cases they may refer to national security or operational reasons; see Art. 7 (3) Europol Council Decision and Art. 8 Eurojust Council Decision (2008).

36 M. L. Wade, Developing a Criminal Justice Area, study at the request of the LIBE Committee, available here, p. 57.

37 M. Busuioc and D. Curtin, The EU Internal Security Strategy, the EU Policy Cycle and the role of (AFSJ) Agencies, Study at the request of the LIBE Committee, May 2011, available here, p. 20 – biggest challenge from the Member States side – political aspirations are not necessarily reflected in practice, with a strong dissonance between political ambitions and the willingness of national authorities to follow through on these ambitions.

38 P. Jeney, supra note 31, p. 84.

39 P. Jeney, supra note 31, p. 14.

40 House of Lords, Europol, supra note 13, p. 126.

41 Art. 26 Eurojust Council Decision (2002)

42 Council Act of 27 November 2003 drawing up, on the basis of Art. 43(1) of the Convention on the Establishment of a European Police Office (Europol Convention), a Protocol amending that Convention, OJ C 2, 06 Jan. 2004, p. 1. Point 21) provides for the amendment of Art. 43 (3) and inserts these elements on cooperation with Eurojust.

43 D. Bigo, L. Bonelli, D. Chi and C. Olsson, supra note 31, p. 27

44 Council Decision 2009/371/JHA, supra note 15.

45 Council Decision 2009/426/JHA, supra note 19.

46 See respectively Art. 26 of the Eurojust Council Decision as amended in 2008 and Art. 22 of the Europol Decision.

47 Both provisions provide that insofar as is relevant for the performance of its tasks, Eurojust/Europol may establish and maintain cooperative relations (&) with Europol/Eurojust .

48 Art. 7 (1) b), Eurojust Council Decision (2008)

49 Art. 7 (1) f), Eurojust Council Decision (2008)

50 See in particular Art. 12 (5) d) Eurojust Council Decision (2008). Europol National Unit are organised by Art. 8 of 2009 Europol Council Decision. They shall be the only liaison body between Europol and the competent national authorities.

51 Art. 7 (2) Europol Council Decision.

52 Art. 2 Cooperation Agreement between Eurojust and Europol (2010).

53 Art. 3 Cooperation Agreement between Eurojust and Europol (2010).

54 Art. 7 Cooperation Agreement between Eurojust and Europol (2010).

55 Art. 8 (2) Cooperation Agreement between Eurojust and Europol (2010).

56 Art. 11 Cooperation Agreement between Eurojust and Europol (2010). Art. 9 gives Eurojust a right to request Europol to open a new AWF; Europol must reply and state its reasons if it decides not to follow the request.

57 Art. 12 Cooperation Agreement between Eurojust and Europol. Art. 10 gives Europol the right to request Eurojust to offer national authorities its assistance; Eurojust must reply and state its reasons if it decides not to follow the request.

58 Europol, 2012 Europol Review, p. 70

59 i.e. Union bodies, third countries and international organisations; see Art. 29 Europol’s proposal and Art. 38 Eurojust’s proposal.

60 Art. 27 Europol’s proposal and Art. 40 Eurojust’s proposal. The Council General Approach on Europol’s proposal amended this Art., but its modifications seem to aim at mirroring even further the provision in the Eurojust proposal. Source Council, General approach on the Proposal for a Regulation of the European Parliament and of the Council on the European Union Agency for Law Enforcement Cooperation and Training (Europol), 28 May 2014, Council Doc. No. 10033/14.

61 Art. 8b Europol’s Proposal (Council General Approach)

62 Art. 4 (1) c) (ii) Europol’s Proposal (Commission).

63 Art. 4 (1) c) and 3 a) Eurojust’s Proposal.

64 See in particular Art. 12 (5) d) 2009 Eurojust Council Decision.

65 See for instance: Europol, 2013 Europol Review, p. 26, 2012 Europol Review, p. 70 or 2011 Europol Review, p. 70 – 71; and Eurojust, 2012 Annual Report, p. 42 -43, or 2013 Annual Report, p. 43.

66 Senior meetings are organised four times a year, but in practice cooperation at this level is rumoured to be difficult. One meeting of the Presidency, the Administrative Director of Eurojust and the Directorate of Europol took place as well as two bilateral meetings between the President of Eurojust and the Director of Europol.

67 10 exchange visits took place in 2013. 50 Europol staff members have (mainly from the Operations Department) participated in the program since its establishment.

68 Council, Joint Investigation Teams Manual, Council Doc. No. 15790/1/11 REV 1, 4 Nov. 2011.

69 Cybercrime: EC3 Program Board (PB): Eurojust is a permanent member of the EC3 Program Board since its foundation. Mr Harri Tiesmaa, National Member for Finland, is representing Eurojust in the meetings of EC3 PB. European Cybercrime Task Force (EUCTF): Eurojust is also an associate member. Strategic coordination: EC3 and the Eurojust Cybercrime Task Force meet on a regular basis (every 3 months) to discuss cooperation. EMPACT: Eurojust is involved in the 3 EMPACT Sub-priorities on cybercrime. Commission, DG Home, Europol and Eurojust cooperation in the field of preventing and combating cybercrime.

70 Council, Evaluation, Report on the Sixth Round of Mutual Evaluations: Report on Austria (7 Oct. 2013, Doc. No. 11351/2/13, p. 31), Report on Denmark (22 April 2013, Doc. No. 7249/1/13, p. 29), Report on France (11 July 2013, Doc. No. 10249/2/13, p. 58) or Belgium (see infra).

71 Council, Evaluation Report on the Sixth Round of Mutual Evaluations, Report on Belgium, 18 April 2013, Council Doc. No. 1798/2/12, p. 54.

72 For more details, see for instance Eurojust, 2013 Annual Report, pp. 21 and 23.

73 For instance law enforcement authorities may obtain strategic analysis of the modus operandi of a given criminal group, and thus they may be able to detect new suspects/links. For more details, see Europol, 2013 Europol Review, p. 17.

74 Source: DG Home, Statistics on interagency cooperation for 2013.

75 See for instance the fact that “common law countries have in the past shown a degree of nervousness about there being too close a relationship between evidence-gatherers and prosecutors” House of Lords, Europol, supra note 13, p. 48.

76 For more detailed explanations, see P. Jeney, supra note 31, p. 61 – 62.

77 See Arts. 4 (2) TEU and 83 (3) TFEU.

78 Refusals of national authorities may be at the detriment of either Eurojust of Europol. They are often due to confidentiality issues and the wish to keep certain information away from police services/judicial authorities.

79 See Art. 4 (1) (c) read together with Art. 2 (a) of Europol’s Proposal (Council’s General Approach).

80 Council, Council Act of 29 May 2000 establishing in accordance with Art. 34 of the Treaty on European Union the Convention on Mutual Legal Assistance in Criminal Matters between the Member States of the European Union, OJ C 197, 12 July 2000, p. 1.

81 Art. 13 MLA Convention.

82 OJ L 162, 20 June 2002, p. 1 – 3.

83 Art. 1 Council Decision 2002/465/JHA.

84 Art. 3a introduced by the 2nd Protocol amending the Convention on the establishment of a European Police Office (Europol Convention), OJ C 312, 16 Dec. 2002, p. 2.

85 Arts. 6 and 7 of Eurojust Council Decision (2002).

86 For more details see M. Helmberg, “Eurojust and Joint Investigation Teams: How Eurojust can support JITs”, ERA Forum, Vol. 8, 2007, pp. 245 – 251.

87 See Art. 6 (1) a) and Art. 7 (1) a) of Eurojust Council Decision (2008) respectively.

88 See Art. 9 f) Eurojust Council Decision (2008).

89 Art. 13 (5) Eurojust Council Decision (2008).

90 Art. 25a (2) Eurojust Council Decision (2008).

91 Art. 12 (2) d) Eurojust Council Decision (2008).

92 P. Jeney, supra note 31, p. 73.

93 Two grants from the Commission (DG Home): A first grant between July 2009 – Dec. 2010, thanks to which Eurojust supported 11 JITs and a second grant between Oct. 2010 – Sept. 2013 thanks to which Eurojust supported 18 JITs. For more details, see Eurojust, Eurojust News – Joint Investigation teams, Issue No. 9, June 2013, p. 8 – 9.

94 Eurojust website

95 Eurojust, Eurojust News – Joint Investigation teams, Issue No. 9, June 2013, p. 8 – 9.

96 Eurojust, 2013 Annual Report, p. 26.

97 Whereas in 2009, Eurojust National Members were involved as participants in 7 JITs (Annual Report 2009, p. 34), they participated in 20 JITs in 2010 (Annual Report 2010, p. 39), and 29 in 2011 (Annual Report 2011, p. 37). Overall, between 2010 and 2012 the agency received 195 funding applications and supported, in 2011 and 2012, 80 JITs.

98 Joint Europol-Eurojust Annual Report for the Council and Commission for 2012, Council Doc. No. 9038/13, 30 April 2013, p. 3.

99 See Art. 5 (1) d) Europol Council Decision.

100 Art. 6 (1) Europol Council Decision. For a detailed analysis, see B. de Buck, “Joint Investigations Teams: The participation of Europol officials”, ERA Forum, Vol. 8, 2007, pp. 253 – 264.

101 Art. 6 (4) Europol Council Decision.

102 Joint Europol-Eurojust Annual Report for the Council and Commission for 2012, Council Doc. No. 9038/13, 30 April 2013.

103 See Europol website.

104 According to Art. 6 (2) of the Cooperation Agreement between Europol and Eurojust (2010): “When it is decided to participate in such a team, Eurojust shall endeavour to bring its support in order to facilitate coordination between the judicial authorities concerned and Europol shall endeavour to support the intelligence gathering and investigative efforts of the team”.

105 See for instance Eurojust, 2012 Annual Report, p. 35 or Europol, 2013 Europol Review, p. 26.

106 Council, Joint Investigation Teams Manual, Council Doc. No. 15790/1/11 REV 1, 4 Nov. 2011.

107 See for instance Eurojust, 2012 Annual Report, THB case, p. 27 or Europol, 2012 Europol Review, Operation Playa (drug trafficking case), p. 32.

108 Joint Eurojust-Europol Annual Report to the Council and the Commission for 2013, Council Doc. No. 11305/14, 25 June 2014, p. 3.

109 Council Doc. No. 11813/14, 14 July 2014, p. 4.

110 We recall that Eurojust’s is significantly inferior to that of Europol; see supra.

111 A budget of 3,8 billion EUR has been allocated to the Internal Security Fund for the period 2014 – 2020, to promote the implementation of the EU’s Internal Security Strategy. One of its two instruments, established by Regulation 513/2014 (OJ L 150, 20 May 2014, p. 93) focuses on police, and explicitly foresees JITs as actions eligible for funding (Art. 4 (1) a) and (2) a)). According to its work program, Europol will be the beneficiary of a delegation agreement, granting it the indirect management of 7 million EUR. The agency shall be entrusted with budget implementation tasks to finance through grants agreements operational actions including JITs).

112 Annex to the Commission’s Implementing decision, 8 Aug. 2014, COM (2014) 551, p. 13

113 See for instance Art. 12 Cooperation Agreement between Eurojust and Europol.

114 For the content of these reports see infra, and in particular B. de Buck, “Joint Investigations Teams”, supra note 100, p. 258.

115 Art. 11 Cooperation Agreement between Eurojust and Europol (2010).

116 For more details on the rights of associated third parties, see Europol, New AWF Concept, Guide for Member State and Third Parties, 31 May 2012, p. 40 – 41.

117 A Focal Point is an area within an Analysis Working File, which focuses on a certain phenomenon from a commodity based, thematic or regional angle. Europol, New AWF Concept, see supra116, p. 5.

118 Joint Eurojust-Europol Annual Report to the Council and the Commission for 2013, Council Doc. 11305/14, 25 June 2014, p. 5, available here.

119 Ibid.

120 M. Busuioc and D. Curtin, supra note 37, p. 60.

121 See Europol, TE-SAT 2014, EU Terrorism Situation and Trend Report 2014, p. 16 – 19.

122 Eurojust, 2012 Annual Report, p. 25.

123 In 2008, the extent to which sensitive data in Analysis Working Files could be passed by Europol to Eurojust still caused problems. Eurojust was frustrated by the limits on its access to AWFs, and would have liked to see the cooperation agreement amended to allow a freer flow of information (House of Lords, EU Committee, Europol: coordinating the fight against serious and organised crime, November 2008, p. 49.).

124 M. Busuioc and D. Curtin, see supra note 37, p. 9.

125 ibid.

126 Art. 27 Europol’s proposal and Art. 40 Eurojust’s proposal. The Council’s General Approach on Europol’s proposal amended this Art., but its amendments seek to mirror even further the content of the Eurojust proposal.

127 Both provisions stress that the procedure by which the information may be shared must be taken in accordance with the decision of the provider of the information, which may indicate at the moment of providing the information any restriction on access or use, including as regards transfer, erase or destruction (Art. 25 (2) Europol proposal- Council General Approach and Art. 40 (5) Eurojust proposal).

128 About Europol’s intelligence-led rationale, see D. Bigo, L. Bonelli, D. Chi and C. Olsson, supra note 31, p. 39.

129 Sénat, Europol et Eurojust, supra note 6, p. 12.

130 Europol’s website.

131 Art. 13 of the Eurojust Council Decision (2008) has not yet been transposed by some Member States, such as Italy (Report on Italy, Council Doc. No. 15858/1/13, p. 29). Moreover in countries where it is transposed, difficulties arise in its concrete implementation by national authorities (Sénat, Europol et Eurojust, supra note 6, p. 24).

132 Numerous evaluation reports describe how the obligation to exchange information has been implemented in different Member States: Report on Estonia, Council Doc. No. 17899/2/12, p. 19; Report on Finland, Council Doc. No. 7989/2/13, p. 24 f; or Report on Poland, Council Doc. No. 13682/1/13, p. 34 f.

133 P. Jeney, supra note 31, p. 85.

134 The Case Analysis Unit of Eurojust counts approximately 20 members (European Voice, Oiling the wheels of Justice, October 2013, available here, whereas Europol employs around 100 criminal Analysts (Europol’s website).

135 Europol, 2013 Europol Review, p. 14.

136 S. Roberston, Intelligence-Led Policing: a European Union View, in IALEIA, Intelligence Led Policing, International perspectives on policing in the 21st century, 1997, p. 12, available here.

137 B. de Buck, “Joint Investigations Teams”, supra note 100, p. 258.

138 S. Roberston, see supra note 136, p. 12.

139 Council, Conclusions on the creation and implementation of a EU policy cycle for organised crime and serious international crime, Council Doc. No. 15358/10, adopted during the 3043rd JHA Council meeting, 8 and 9 Nov. 2010.

140 L. Paoli, “How to tackle (organised) crime in Europe? The EU policy cycle on serious and organised crime and the new emphasis on harm”, European Journal of Crime, Criminal Law and Criminal Justice, Vol. 22, Issue 1, p. 1.

141 Idid, p. 5.

142 Eurojust, Strategic project on Eurojust’s action against trafficking in human beings, Oct. 2012, 72 pages, available here.

143 ibid, p. 1.

144 Eurojust, Annual Report 2012, p. 25: providing quantitative and qualitative analysis of terrorism-related court decisions and an overview of the amendments of terrorism related legislation in the Member States.

Trafficking in Human Beings: the EU legislates but the Member States keep dragging their feet…

by Federica VIGNALE (Free Group Trainee)

Since more than ten years Trafficking in Human beings is a recurrent issue on the agenda of the European Parliament Committee on Civil Liberties, Justice and Home Affairs. The last debate [i] was notably focused on the Commission Mid-term report on the 2012-2016 EU strategy towards the eradication of trafficking in human beings and the Global Report on Trafficking in persons of United Nations Office on Drugs and Crime.

Trafficking in Human Beings (THB) is recognized by the European and the international law as a gross violation of human rights and as a form of organized crime[ii]. At European level, THB is defined as “the recruitment, transportation, transfer, harbouring or reception of persons, including the exchange or transfer of control over those persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation”. Furthermore, due to the presence of these forms of violence or coercion, trafficking in human beings represents also a form of modern slavery. Currently there are tens of thousands potential people who are kept in captivity or forced to provide services against their will, but there are some people who were lucky enough to have been identified.

In this respect and before analysing the European and the international legal context, it is worthwhile analysing the data related to victims and traffickers that emerge from the Trafficking in Human Beings Report that the DG Home Affairs and Eurostat published on the occasion of the EU Anti-Trafficking day anniversary. Between 2010 and 2012, 30.146 people were registered by the authorities, but this number is more alarming if we consider that there are certainly other victims of THB that have not been registered. The above-mentioned Report indicates also that:

  • “80 % of registered victims were female.
  • Over 1 000 child victims were trafficked for sexual exploitation[iii].
  • 69 % of registered victims were trafficked for sexual exploitation.
  • 95 % of registered victims of sexual exploitation were female.
  • 71 % of registered victims of labour exploitation were male.
  • 65 % of registered victims were EU citizens.
  • There are no discernible trends in the variation of victim data at EU level over the three reference years.
  • 8 551 prosecutions for trafficking in human beings were reported by Member States over the three years 2010-2012.
  • Over 70 % of traffickers were male. This is the case for suspects, prosecutions and convicted traffickers.
  • 3 786 convictions for trafficking in human beings were reported by Member States over the three years.
  • There are no discernible trends in the number of prosecutions or convictions at EU level”.

Two thirds of the victims are from the countries within the EU (Romania, Bulgaria, the Netherlands, Hungary and Poland), and the rest of the victims are primarily from Nigeria, China, Vietnam, Brazil and Russia. These figures are extremely worrying, especially because – in terms of legislation – the EU has built a very ambitious legal framework that consists of:

In accordance with the Directive 2011/36/EU, which was supposed to be transposed by all MS on the 6th April 2013, Member States have the legal obligation to focus on prevention (Art. 18), on prosecution of the criminals (Art. 9) and on the protection of the victims (Art. 12 et seq.).

The policy framework is ambitious too, and it includes the EU Strategy towards the Eradication of Trafficking in Human Beings 2012-2016 that has been adopted by the European Commission on the 19th June 2012. This strategy supports the Directive 2011/36/EU and, since this fight against the THB figures also in several other instruments governing the EU’s external relations[iv], it aims also to avoid the duplication of initiatives and to complete the efforts made by MS, International Organisations and civil society in the EU and in third countries. In compliance with the 2012-2016 Strategy, the EU should concentrate on 5 key priorities in its action against THB, which are:

  1. Identifying, protecting and assisting victims of trafficking;
  2. Stepping up the prevention of trafficking in human beings;
  3. Increased prosecution of traffickers;
  4. Enhanced coordination and cooperation among key actors and policy coherence;
  5. Increased knowledge of and effective response to emerging concerns related to all forms of trafficking in human beings;

On the occasion of the last December parliamentary commitees debate, the EU Anti-Trafficking Coordinator, Myria Vassiliadou, illustrated the achievements made so far in each scope of action thanks to the cooperation of MS, civil society, eight EU agencies[v], many services of the Commission and of non-EU countries. Some highlights include:

  • The continuation of the work of the EU informal network of national rapporteurs or equivalent mechanisms;
  • The strengthening of the network between the Commission and the MS[vi];
  • The creation of a civil society platform with over 100 NGOs that work in different areas related to the fight against THB and that share their information with the Member States;
  • The launch of an electronic platform that allows to share information, reports and experiences at EU level;
  • The publication of many handbooks and guidelines on victims’ identification, on victims’ rights and studies on vulnerable groups.

Lack of transposition in several EU Member States

Insofar as the transposition of the Directive 2011/36/EU across all Member States, in 2013 thirteen  Member States[vii] were subject to infringement procedures because they “failed to notify the Commission of any transposing legislation. To date, 25 Member States have indicated that they have transposed the Directive in full. The Commission is currently analysing the information received and will report in 2015, in accordance with Article 23 of the Directive, on the State of transposition across all Member States[viii]. Belgium and Germany, on the other hand, are still pending for notification[ix] while Denmark is not taking part in the adoption of that Directive[x]. By taking advantage of their protocols Ireland has “opted in” differently from the UK who did’nt.

During the debate the EU Anti-Trafficking Coordinator underlined that, although the legal framework is adequate, there is still a lack in its concrete application by the MS. While the European Commission is still analysing received data, it is evident that in some Member States the prevention of the crime, the protection of the victims and the prosecution of the traffickers are often not guaranteed.

Italy : insufficient transposition of the EU Directive … 

Referring to the specific Italian context, for instance, the European Directive has not been transposed accurately in the national legislation, with the result that the intended goal was not fully achieved and a unique and specific legislative instrument was not created.

The Directive 2011/36 has been transposed, in fact, through the Legislative Decree N° 24/2014, which has introduced rules modifying the pre-existing legislation of the Criminal Code, the Criminal Procedure Code and the Consolidated Law on immigration. Furthermore, several Directive’s provisions are missing in the Italian legislation, such as rules that ensure the irrelevancy of the victim’s consent, the non-punishment of victims of THB and assistance and support for victims of trafficking provided for Articles 2§4, 8 and 11 of Directive respectively[xii].

..and of the Council of Europe Convention on the same subject..

An analysis on the implementation of the Directive in the Italian legislation is contained also in the Report concerning the implementation of the Council of Europe Convention on Action against Trafficking in Human Beings by Italy[xiii], in which GRETA – Group of Experts on Action Against Trafficking in Human Beings – highlighted the same deficiencies illustrated before. The report also include a list of the Group of Experts’ proposals to Italy to better react to THB involving, among other things:

  • A comprehensive approach and co-ordination
  • The training of relevant professionals
  • Data collecting and research
  • International co-operation
  • Measures to raise awareness and discourage demand
  • Social, economic and other initiatives for groups vulnerable to THB
  • Border measures to prevent THB and measures to enable legal migration
  • Identification of victims of THB
  • Investigation, prosecution and procedural law
  • Repatriation and return of victims

The United Nations general framework

Besides the Convention on Action against Trafficking in Human Beings, another important instrument at international level appointed to the fight against THB is the Protocol to Prevent, Suppress and Punish Trafficking in Persons, part of the 3 Palermo Protocols, together with the Protocol against the Smuggling of Migrants by Land, Sea and Air and the Protocol against the Illicit Manufacturing and Trafficking in Firearms, Their Parts and Components And Ammunition. The first two Protocols are important especially for the distinction between Trafficking in Persons and Human Smuggling that are often used interchangeably, but the international law set out clearly the difference. According to these Protocols, in fact, ““Trafficking in persons” shall mean the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs” while ““Smuggling of migrants” shall mean the procurement, in order to obtain, directly or indirectly, a financial or other material benefit, of the illegal entry of a person into a State Party of which the person is not a national or a permanent resident”.

Some data related to the fight to THB at international level are briefed by the Global Report on Trafficking in persons of United Nations Office on Drugs and Crime published in November 2014. This report is divided in two parts: in one there are global and regional perspectives, in the other one there is a country’s profile for all those countries that have been covered (155 countries). Even if the Report doesn’t cover every country in the world, we can easily assume that every country has problems with trafficking because this study has proven the existence of at least 510 trafficking in persons flows. People are trafficking among different continents, from poor to rich areas[xiv], but these flows are registered in a very limited regional area, usually in a sub-region. 34% of trafficking in persons occurs domestically, which means that it happens within one country. The rest of it, it is transnational, which means that victims are transported. Most of the traffickers are detected within their countries, where they are usually convicted.

Moreover, while sexual exploitation is the main practice of exploitation of trafficking victims, there are also other forms of this crime: domestic servitude and forced marriage, organ removal, the exploitation of children in begging, the sex trade and warfare. This last crime is increasing, especially in Africa and in conflict zones. However, in these countries, laws are often confusing or – worse – there is a legal vacuum and therefore real figures are missing.

In conclusion, it can be argued that there are already legislative instruments adopted on both the European and international levels. However a cross-compared analysis of Commission Mid-term report and the Global Report on Trafficking in persons of UNODC, shows that the fulfilment of these instruments is not yet sufficient to fully prevent and tackle Trafficking in Human Beings.

NOTES

[i] The last debate took place less than two months after the 8th Anti-Trafficking day, held on the 18th October 2014.

[ii] THB is the only form of organized crime explicitly prohibited in the Charter of Fundamental Rights of the European Union. See Article 5§3 of the Charter.

[iii] Children are the most vulnerable victims and they represent half of all trafficking victims. On the 30th June 2014 the EU Agency for Fundamental Rights (FRA), in order to raise awareness about this issue, published a Guardianship for children deprived of parental care – A handbook to reinforce guardianship system to cater for the specific needs of child victims of trafficking

[iv] The Global Approach to Migration and Mobility; the 2009 Action Oriented Paper on strengthening the EU external dimension against trafficking in human beings; the Country Strategy Papers and National and Regional Indicative Programmes.

[v] As indicated in the Mid-Term Report on the implementation of the EU strategy towards the eradication of trafficking in human beings, these agencies are “The European Police College (CEPOL), the EU Judicial Cooperation Unit (Eurojust), the EU law enforcement agency (Europol), the European Asylum Support Office (EASO), the European Institute for Gender Equality (EIGE), the EU Agency for Fundamental Rights (FRA), the European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union (Frontex) and Eurofound”. See also the Report on individual actions of the JHA Agencies in the field of THB.

[vi] In particular the Article 20 of the Directive 2011/36/EU: Coordination of the Union strategy against trafficking in human beings. In order to contribute to a coordinated and consolidated Union strategy against trafficking in human beings, Member States shall facilitate the tasks of an anti-trafficking coordinator (ATC). In particular, Member States shall transmit to the ATC the information referred to in Article 19, on the basis of which the ATC shall contribute to reporting carried out by the Commission every two years on the progress made in the fight against trafficking in human beings.

[vii] Austria, Cyprus, France, Germany, Greece, Ireland, Italy, Luxemburg, Malta, Netherlands, Portugal, Slovakia, Spain.

[viii] See the Mid-Term Report

[ix] Belgium has transposed only partially the Directive whereas concerning Germany, as underlined in http://ec.europa.eu/anti-trafficking/content/nip/Germany, “The Act to Combat Human Trafficking and Monitor Brothels (Gesetz zur Bekämpfung des Menschenhandels und Überwachung von Prostitutionsstätten), adopted by the German Bundestag on 28 June 2013 and designed to accommodate this need for a legislative response, can no longer enter into force because of the Bundesrat’s convening of the Mediation Committee and the end of the parliamentary term. Full transposition of this Regulation is therefore reserved for the 18th legislative term.”.

[x] See Recital 36 of Directive 2011/36/EU. As underlined in the Report concerning the implementation of the Council of Europe Convention on Action against Trafficking in Human Beings by Denmark, moreover, “Denmark is the only Member State of the European Union (EU) not bound by the new Directive 2011/36/EU of the European Parliament and of the Council of 5 April 2011 on preventing and combating trafficking in human beings and protecting its victims. This is due to the fact that the 2007 Lisbon Treaty  kept a number of exemptions (or “opt-outs”) that Denmark had secured since the 1992 Maastricht Treaty, including measures in the area of justice and home affairs (JHA), while allowing for the possibility to “opt-in” and take part in the adoption and application of JHA measures, on a case-by-case basis. Directive 2011/36/EU replaces the previous Council Framework Decision 2002/629/JHA on combating trafficking in human beings in all EU Member States except for Denmark, where it remains applicable”.

[xi] See page 3 and 4 of the Monitoring Report on the Implementation by the United Kingdom of EU Directive 2011/36 on preventing and combating trafficking in human beings.

[xii] For further information see the “Osservazioni relative allo stato di attuazione in Italia della direttiva 2011/36UE relativa alla prevenzione e la repressione della tratta di esseri umani e la protezione delle vittime e che sostituisce la decisione quadro del Consiglio 2002/629/GAI-Il decreto legislativo 4 marzo 2014 n. 24” in http://www.asgi.it/wp-content/uploads/2014/12/doc_LIBE-ASGI_2014.doc.

[xiii] The Council of Europe Convention on Action against Trafficking in Human Beings is available here.

[xiv] In particular there are three main hubs as destination points: 1) Middle East 2) North America, Western America and the Caribbean 3) Western and Central Europe.

 

ENDING THE EXPLOITATION OF SEASONAL WORKERS: EU LAW PICKS THE LOW-HANGING FRUIT

Original published on EU LAW ANALYSIS

by Steve Peers

For a long time, it proved impossible for the EU to agree on legislation on migrant workers coming from non-EU countries. Eventually, the Member States were able to agree on some laws that mostly concerned higher-income migrants: the Blue Card Directive (on its implementation, see here) and the Directive on intra-corporate transferees (see discussion here). The EU has also adopted some general rules on the overall framework for admission of labour migrants (the so-called single permit Directive).

But for the first time last year, the EU also adopted rules on a less well-paid group of migrant workers: seasonal workers. This group of workers is potentially particularly vulnerable to exploitation and abuse. Does the recent Directive go far enough to protect them from these risks?

Content of the Directive

Member States have to apply this Directive by 30 September 2016, and the UK, Ireland and Denmark opted out of it. It is limited in scope to those who normally reside outside the territory of the EU, and who apply to be admitted as seasonal workers, or who have already been admitted under the terms of the Directive. Also, it applies to those admitted for less than three months as well as those admitted for a longer period. For the former group, the Directive specifies that the EU’s borders and visas legislation continues to apply, and makes a number of cross-references to those measures. Furthermore, the Directive does not apply to those workers who are usually employed in other Member States, and who are ‘posted’ by their employers to work in a second Member State, to non-EU family members of EU citizens, and to non-EU citizens covered by an agreement which extends free movement rights (the EEA or EU/Swiss treaties).

A ‘seasonal worker’ is a worker who normally resides outside the EU, and who lives temporarily in the EU to ‘carry out an activity dependent on the passing of the seasons’, pursuant to a fixed-term contract concluded directly with an employer established in a Member State. The concept of a seasonal activity is in turn defined as an ‘activity that is tied to a certain time of the year by a recurring event or pattern of events linked to seasonal conditions during which required labour levels are significantly above those necessary for usually ongoing operations.’ Member States have to define what the relevant sectors are; the preamble refers to tourism, agriculture and horticulture as areas where seasonal work is usually needed.

Member States are free to set higher standards for certain issues (procedural safeguards, accommodation, workers’ rights and facilitation of complaints), but otherwise the Directive has set fully harmonised rules. So Member States can’t alter the substantive grounds for admission or the rules on duration of stay and re-entry.

The key criteria for admission are fully mandatory. Member States have to ensure that an application to enter as a seasonal worker is accompanied by: a valid work contract or binding job offer, setting out all of the details of the job; a valid travel document (possibly valid for the entire duration of the seasonal work); evidence of having, or having applied for, sickness insurance (unless such coverage comes with the work contract); and evidence of having accommodation, as defined in the Directive (see below). Member States have to check that the seasonal worker has sufficient resources not to have to use the social assistance system, cannot admit persons considered to pose a threat to public policy, public security or public health, and must check that the applicant does not pose a risk of illegal immigration and intends to leave the Member States’ territory when the authorization for seasonal work expires.

Applications have to be rejected whenever these conditions are not met, or where the documents presented with an application are ‘fraudulently acquired, or falsified, or tampered with.’ Member States also have to reject applications, ‘if appropriate’, where there has been a prior sanction against the employer for ‘undeclared work and/or illegal employment’, the employer is being wound up or has no economic activity, or the employer has been sanctioned for breach of the Directive.

Otherwise the grounds for refusal of an application are optional: a labour market preference test for home State citizens, other EU citizens or third-country nationals lawfully residing and forming part of the labour market; the application of Member States’ rules on volumes of admission of third-country nationals; or breaches of employment law by the employer, the use of seasonal work to replace a full-time job, or a prior breach of immigration law by the would-be worker. There are similar provisions on withdrawal of the authorisation to work as a seasonal worker, although it should be noted that Member States can withdraw authorization if the worker applies for international protection.

As for the admission procedure, Member States have to make information available on the conditions of entry and residence and rights, as well as the admission process. It’s up to Member States to decide whether the applicant or the employer makes the application, and the application process takes the form of a single application procedure for a combined work/residence status. Those applicants who fulfil the admission criteria and who do not fall foul of the grounds for refusal must be granted a permit or visa, in the format of the EU standard visa or residence permit.

There’s a total maximum limit of between five and nine months per calendar year of residence for a seasonal worker; they must then return to a third country. Since the Directive only regulates admission and stay of seasonal workers, it should follow that Member States still retain discretion to permit the worker to stay for longer on some other ground.

Within the maximum time limit, seasonal workers will be able, on one occasion, to change employers or to obtain an extension of their stay with their employer, if they still meet the criteria for admission, although the grounds for refusal will still apply. The preamble makes clear that this possibility is intended to avoid abuse, since the worker will not be tied to a single employer. Member States will have an option to allow further extensions or changes of employer. But again they can punish any worker who applies for international protection, by refusing to extend that worker’s stay.

Next, the Directive facilitates the re-entry of seasonal workers who were admitted at least once within the previous five years, if they complied with immigration law during their stay. This could include a simplified application process, an accelerated procedure, priority for previous seasonal workers, or the issue of several seasonal worker permits at the same time. The idea is to give an incentive to workers to comply with immigration law.

Member States have to impose sanctions against employers who have breached their obligations under the Directive, including a possible ban on employing seasonal workers. If seasonal workers’ permit to work is withdrawn because of the employer’s illegal behaviour, the employer must compensate the employees for all the work they have done or would have done. There are specific rules on the liability of sub-contractors.

Moving on to procedural safeguards, the Directive provides for: a notified decision in writing within ninety days of the application; special rules on the renewal of authorization; a chance to provide additional necessary information within a reasonable deadline; and a requirement that a rejection (or withdrawal or non-renewal of a permit) be issued in writing and open to a legal challenge, with information on the reasons for the decision, the redress available, and the relevant time-limits. Member States may charge fees for applications, if they are not disproportionate or excessive, and may require employers to pay the costs of workers’ travel and sickness insurance. Workers’ accommodation must ensure an ‘adequate’ standard of living, rents cannot be excessive, a contract for housing must be issued, and employers must ensure that accommodation meets health and safety standards.

As for the rights of seasonal workers, first of all they have the right to enter and stay on the territory of the relevant Member State, free access to the territory of that Member State, and the right to carry out the economic activity which they have been authorized to take up.  Furthermore, they have the right to equal treatment with nationals as regards terms of employment (including working conditions), freedom of association, back payments, social security, the transfer of pensions, access to goods and services available to the public (except housing), employment advice (on seasonal work), education, and recognition of diplomas, and tax benefits. However, equal treatment can be restricted as regards family benefits, unemployment benefits, education and tax benefits, and Member States are still free to withdraw or to refuse to renew the permit in accordance with the Directive. Finally, Member States must ensure monitoring, assessment, and inspections, and facilitate complaints workers or by third parties supporting or acting on their behalf.

Comments

According to its preamble, the intention of this Directive is to regulate the admission of seasonal workers with a view to enhancing the EU’s economic competitiveness, optimizing the link between migration and development, while guaranteeing decent working and living conditions for the workers, alongside incentives and safeguards to prevent overstaying or permanent stay. In principle it has achieved some of these goals, in particular by including a number of provisions to ensure equal treatment and decent accommodation for seasonal workers, to punish employers who mistreat workers or who breach immigration law, and to guarantee that the rules in question are enforced.

In fact the Directive was significantly improved on these points during the legislative process, in particular as regards monitoring and punishment of dodgy employers, accommodation standards, equal treatment (which was significantly extended in scope), employees’ costs, and remedies against employers (compare the final Directive to the original proposal). Doubtless this was largely due to the hard work of NGOs which raised these issues (see their joint statement here). Perhaps the EU should use this Directive as a template to try and address the exploitation of other vulnerable groups of migrant workers – for instance domestic workers, who are at particular risk of being enslaved or trafficked.

Having said that, there are some limits to what Member States were willing to agree. There are exceptions from the equal treatment rule, and some of the provisions on dodgy employers, as well as the ban on passing costs along to the workers, are optional, not mandatory. (See the comments on the final Directive by a group of NGOs here). The right to change employers is subject to conditions, and Member States might decided to allow only one such change. More broadly, while the provisions on enforcement are stronger than what Member States are usually willing to agree to in EU laws about migrant labour (or indeed EU employment law), it remains to be seen how much resources Member States are actually willing to expend on enforcement in practice.

Furthermore, since the Directive is limited in scope to those who are not yet on the territory, it can do nothing to alleviate the position of those who are present without authorization but who cannot be returned (ie who are in limbo) and it gives Member States express carte blanche to deprive asylum-seekers of even the modest income which they were previously earning as seasonal workers. Overall, while the Directive will hopefully have some effect achieving its objectives, it may be a classic example of what academics call ‘picking the low-hanging fruit’ – focusing on the easier issues and avoiding the harder ones.

*This post is based on my ongoing research for the 4th edition of EU Justice and Home Affairs Law (forthcoming, OUP)